DOE dem. JOSEPH MANTON v. AUSTIN and PLOMER. 1832. June 5. THE lessor of the Plaintiff sued as the administrator The acts of of David Betson, surviving trustee under the will of occupiers John Aitkens. Aitkens, who died in 1794, bequeathed to Betson and another, as trustees for his daughters, certain leasehold premises which he held by indenture from Mark Bell for a term of sixty-six years, commencing in November 1773. during their their оссиpation has ceased, evidence against the parties under whom came into possession. By a codicil to his will, Aitkens, after reciting the such occupiers above bequest, and that he had in March 1793 mortgaged the premises to John Veysey for 500l., directed that in case the 500l. should remain charged upon the premises at the time of his death, the trustees under his will, who were also his executors, should immediately pay off the mortgage out of any other property that should come to their hands, it being his intention that the premises should continue vested in the trustees in trust for his daughters. In 1807 the trustees underlet the premises to Catharine Fairfield for a term which expired at Christmas 1826. Mrs. Fairfield, some time before the expiration of her underlease, assigned it to Thrupp; and Thrupp, at the expiration of the underlease, 25th of December 1826, delivered the possession of the premises to the defendant Plomer, who put in an occupier, and, with Austin, now defended as landlord. At the trial before Park J. the lessor of the Plaintiff produced the probate of Aitkens' will, stamped with a heavy probate duty; proved Aitkens' possession of the property in question; his death; the death of the trustees named 1832. DOE dem. V. AUSTIN. named in his will; and the administration to the effects of the survivor: next, he put in the counterpart of the lease from Bell to Aitkens, the Defendants, after notice, having failed to produce the original lease, which was in their possession. Then Thrupp, who appeared to be in the interest of the Defendants, and failed upon a subpoena duces tecum to produce the under-lease assigned to him by Mrs. Fairfield, after prevaricating as to the existence or destruction of that instrument, was allowed to state that he had paid rent for the premises to the lessor of the Plaintiff upon an under-lease assigned to him by Mrs. Fairfield, which expired at Christmas 1826, till within about six months before its expiration; and that on the 9th of December 1826 he refused to pay the lessor of the Plaintiff the rent due at the preceding Michaelmas, referring him to the Defendant Plomer for the reason. Mrs. Fairfield proved her own occupation under the demise from Betson and his co-trustee; payment of rent to Betson, and after his death to the lessor of the Plaintiff; and the sale of the under-lease to Thrupp. Betson had received the rent from 1794. On the part of the Defendant it was objected, First, that the original lease from Bell to Aitkens ought to have been produced, or that the lessor of the Plaintiff should have shewn what had become of it before he produced the counterpart; Secondly, that the lessor of the Plaintiff should have shewn that the mortgage mentioned in the codicil to Aitkens's will was paid off; Thirdly, that the under-lease from Betson and his cotrustee to Mrs. Fairfield ought to have been produced; and, Fourthly, that Mrs. Fairfield and Thrupp being no longer in possession under the demise from Betson and his co-trustee when Plomer entered the premises, their acts acts and declarations ought not to be taken as evidence against the Defendants. A verdict, however, was given for the Plaintiff, which Taddy Serjt. obtained a rule nisi to set aside on the above objections. Wilde and Bompas Serjts. shewed cause. From the language of the codicil to Aitkens's will, and the length of time which has elapsed, coupled with the fact that Aitkens's devisees have been in the receipt of rent from 1794 to 1826, it may be presumed that the mortgage has been paid off. And if the Defendants take under Thrupp they, as well as Thrupp, are estopped to say that the lessor of the Plaintiff, whom Thrupp by payment of rent has acknowledged to be his landlord, had not a good title, either in respect of the mortgage or the non-production of the original lease from Bell. But the Defendants take under Thrupp or nobody; and Thrupp having disclaimed the lessor of the Plaintiff as his landlord on the 9th of December 1826, before the expiration of the lease under which he had paid rent to the lessor of the Plaintiff, the case cannot be distinguished from Doe d. Knight v. Lady Smythe (a), where it was held that a third person could not defend as landlord upon the trial of an ejectment if it appeared that the tenant in possession came in as tenant to the lessor of the Plaintiff, paid rent to him, and then disclaimed, although the term for which he came in had expired before the ejectment. The lease under which Thrupp occupied having expired, it may be presumed to have been destroyed, and secondary evidence of its contents was admissible after Thrupp's testimony. on his subpoena duces tecum. 1832., DOE dem. V. AUSTIN. (a) 4 M. & S. 347. Taddy 1832. DOE dem. บ. AUSTIN. Taddy, and Andrews Serjt. with him, endeavoured to distinguish the present case from Doe d. Knight v. Smythe, and contended that, at all events, the principle of that case ought not to extend to the acts of tenants who had been so long out of possession as Thrupp and Fairfield; otherwise there was no limit to the effect of such acts short of twenty years; a decision which would be productive of great inconvenience and confusion. And Thrupp's testimony should not have been received without proof of further enquiry for the expired under-lease. At all events, it appearing on the evidence produced by the lessor of the Plaintiff himself that the legal title to the premises was in Veysey under the mortgage, it should have been shewn that that mortgage had been paid off; for the objection is not here made by a tenant or one claiming under him, to the title of his landlord; but is disclosed by the landlord himself, who fails therefore to shew a title on which he can recover. TINDAL C. J. I think this rule ought to be discharged. It is not necessary for us to decide whether the lease from Bell to Aitkens ought to have been produced, for it appears that rent has been paid by a succession of tenants, under whom the Defendants claim, to the personal representative of Aitkens's devisee, who could only claim in respect of a leasehold interest; and with respect to the mortgage disclosed in the codicil to Aitkens's will, such evidence, on whichever side produced, is open to the same degree of consideration with respect to its concomitant circumstances, such as the presumptions arising from lapse of time or otherwise. Here the codicil itself contains express directions that the mortgage shall be called in; a large stamp appears on the probate; and none but the repre sentatives sentatives of the testator have interfered with the property since 1793. I admit that these circumstances are not conclusive; but unanswered by any evidence of a mortgage now in existence, they afford a strong presumption that the money has been paid, particularly against the Defendants who claim under a lease granted by the devisees of the mortgagor. Then, as to the admission of Thrupp's testimony, the lease under which he occupied having expired may fairly be presumed to have been destroyed; at all events, upon his failing to produce it upon a subpœná duces tecum, and prevaricating with respect to its existence, the learned Judge was warranted in letting in the secondary evidence. That brings us to the main question, whether the Defendants who come in under Thrupp can be permitted to dispute the title of his lessor. The principle is that a tenant shall not contest his landlord's title; on the contrary, it is his duty to defend it. If he objects to such title, let him go out of possession. But it is urged that Thrupp's admissions were made six years ago, and it is asked, how far back are such admissions to be evidence against a subsequent claimant? I answer, as far back as the tenant has admitted himself to be in under the landlord who comes forward to assert his title. I think, therefore, that the Defendantsare bound by the acts of Thrupp, and that this rule must be discharged. GASELEE and ALDERSON Js. expressed a similar opinion, and PARK J. referred to the language of Dampier J. in Doe d. Knight v. Smythe, as conclusive on the point, "The tenant in possession paid rent to the lessor, and then disclaimed. But he ought to give back the possession to the lessor, and after that the Defendant may have her ejectment. It has been ruled after that neither the 1832. DOE dem. V. AUSTIN. |