Common Pleas. THE IRISH SOCIETY บ. TYRRELL. their assigns, on the one hand, or by the third persons in possession E. T. 1865. by title, on the other, after the making of the lease. So far as regards the lessees or their assigns, the averment merely is, that they were "ready and willing and desirous" to enter into possession; but that, from the making of the lease to the pleading of the plea, they were "kept out" by the said persons, and "thereby hindered " from taking possession. As regards the persons having title, the averment merely is that, having been in possession by title before and at the time of the making of the lease, they simply remained so, and their possession "kept out and hindered" that of the lessees. There is no averment that the "desire and willingness" of the lessees was ever manifested by act or even word; and there is none that the resolve of the third parties to hold their right was ever manifested by act or word. The meaning of the defence plainly is no more than this, that the rightful possession of those parties in its nature and of necessity excluded any possession by the lessees. From which there is this result (which it will be important to bear in mind throughout the case), that from the moment the lease was sealed and delivered, to that of the assignment to the defendant, and from thence to the pleading of this plea, it must be taken, in the absence of any averment to the contrary, that no act was done by anyone by which the situation was varied from that in which it was placed by the bare act of making the lease. The plaintiffs' Counsel, I think, will see that, in bringing the case to this, I place it in the point of view the most favourable for their argument upon the question of estoppel, for I take the case as at the instant after the making of the lease. But I am of opinion that, taking it even so, the defendant is not estopped from presenting to the mind of the Court the facts pleaded, for whatever their legal value may be; and that, consequently, so far as the demurrer to the replication at all events, the defendant is entitled to succeed. The question was divided in argument into two; first, could the lessees have pleaded the defence? second, if not, is the defendant, their assignee, in a better position? E. T. 1865. THE IRISH บ. TYRRELL. The first of these is, in my opinion, the real question; and I do not hesitate to answer it in the affirmative. I shall consider the case upon this branch of it as if the premises which belonged to the strangers formed the whole subject of the demise. I take it so, because I did not go along with that portion of the argument of the defendant's Counsel, in which they contended that the estoppel (if otherwise existing) would be satisfied by the passing of an estate in the other part of the demised premises. Here again I take ground the most favourable to the plaintiffs' argument; for of course if the defendant would not be estopped from pleading this defence to the whole, a fortiori he would not as to a part. No decision in point was referred to at either side; but the plaintiffs' Counsel relied on the general rule or maxim that a tenant cannot be heard to dispute his landlord's title, and that as between such parties nil habuit in tenementis is a bad, or more correctly, an inadmissible plea. The maxim thus relied on is one of those about which a certain reverence (so to speak) has gathered in the law; which, whenever it exists, carries with it this danger, that the maxim in question may be sometimes applied in practice to cases not within its original reason. And that would, in my opinion, be precisely the case here, if this maxim were made the means of excluding the present defence. There is a case of Gravenor v. Woodhouse (a) to which I here refer for two purposes; first, for the terms in which the general rule in question is stated (on which I shall refer to other authorities also by-and-bye); secondly, for the line of argument pursued by the Court in dealing with the application of that rule to the case before them. The question in the case was, whether a tenant was estopped by an attornment; which he was held not to be. Parke, J., delivering the judgment of the Court, says :-" Of the general rule "of law, that a tenant shall not be allowed to question the title of "his landlord, where he has originally received possession from "him and has paid him rent, there is no doubt ever since the case (a) 1 Bingh. 38. "of Syllivan v. Stradling. It always furnishes a strong primâ E. T. 1865. "facie case, but to the generality of this rule there are exceptions; 66 16 "for although on the one hand the general rule is most wise and So I say also in the present case, "the question is, whether there is any reason for an exception to the admitted general rule?" Of the exceptions already established, there is one which comes nearest to the present case, and shows in my judgment very clearly the reason and limit of the rule itself. Vary the present defence by substituting, in place of the averment that the lessees were kept excluded from the possession from the making of the lease, an averment that they entered under it, and that, after they had entered, the persons whose estate it was evicted them from the possession, and you have an admittedly good plea, free from all estoppel. Here then is an exception, well established, from the general rule. Why is it an exception? The assertion of nil habuit in tenementis is just as direct and complete in that case as in the other. Nil" in the maxim means nothing in estate-it does not assert anything as to the possession. And down to the moment of the eviction-i. e., while the indenture and the possession co-existed-the estoppel was complete; but the moment the possession is withdrawn, the estoppel vanishes; and the lessee may assert, not merely in verba de præsenti or prospectively, but retro Common Pleas. THE IRISH SOCIETY v. TYRRELL. E. T. 1865. spectively and in the teeth of the lease, that before and at the Common Pleas. making of it the lessor had nothing in the premises. THE IRISH v. TYRRELL. Is there anything then, in reason or in principle, in the absence of direct authority, which obliges us to hold that while the lessee, who has once got the possession, but from whom it is taken by the right owner, can be heard to defend himself, the lessee who never got or could get it at all, has his mouth stopped? To test the proposition, I will put an extreme case: suppose that I induce a person, who is ignorant of Dublin and its neighbourhood, to accept from me a lease of premises therein described, at a rent £1000 a-year, and he executes the lease in reliance on me; he comes over to Dublin to take possession, and there discovers that the subject of the demise is Her Majesty's palace, called the Viceregal-Lodge. He finds he has been hoaxed, and he does nothing. But, when the first gale day arrives, I bring an action against him for £500. Is his mouth stopped? Is he defenceless? Or did the law impose it upon him, in order to let him into his defence, to do anything so absurd as to make an endeavour or demonstration towards taking possession, in order to call into action the resistance of the right owner; the result of which to him, in the case I have put, may be divined. Having examined, as carefully as I could, the authorities which were cited by Counsel, and such others as I was myself able to discover, I have now to state that the reasonable rule to be extracted from them is, in my opinion, this—nil habuit in tenementis simply is a bad plea; but nil habuit in tenementis, coupled with negation of possession, is a good plea. When the facts enable you to add to the negation of title the negation of possession, the plea is admissible; and, whether that negation of possession consist in an averment that it was taken away by eviction, or in an averment that it never was, and never could be, obtained at all, is not in my opinion material. In either case I think it repels the estoppel which forbids nil habuit in tenementis. During the recent argument in the case of Domvile v. Ward,* many passages from cases and text-books were cited to us, and many strong observations made in the reply on behalf of the (a) Post, page 381. Common Pleas. THE IRISH SOCIETY v. TYRRELL. plaintiff, as to the binding nature of estoppels in the abstract, E. T. 1865. the sanctity of statements made under seal, and the inexorable sternness with which the law imposes silence on those who, having executed a lease by indenture, would question the title which it purports to confer. Now it occurs to me, I confess, that this method of dealing with the question advances it but little in argument. The defendant's Counsel admit it all; but they assert that in all those authorities it was an essential term, either expressed or tacitly assumed, that the lessee was enjoying, or could, if he chose, be enjoying, the land professed to be demised. The whole question is, whether this kind of estoppel, estoppel by tenancy, be not something quite apart from mere estoppel by deed; whether its essence be not in the possession, whilst the form of the lease-i. e., whether it be by indenture, deed-poll, or by parol-is a thing subordinate subordinate but important, in the way I shall presently point out. Mr. O'Connor Morris, in his clear and thoroughly lawyer-like argument, touched the root of the matter when he said that this doctrine was the echo, in our day, of the old principles of the feudal tenures. But the very essence of feudal tenure was the seisin of the land. It was the livery of seisin, giving not only the manual possession, but putting the tenant into the freehold, which constituted the tenure. What would a feudal lawyer have said of tenure without land? I confess it occurs to me that the way to investigate the case is not to pick out abstract passages, and read them without reference to the facts to which, expressly or tacitly, they were applied; but to look out for the cases in which the reason of the rule has been touched on. For, if the plaintiff's contention be right, viz., that in case of a lease by indenture, the deed alone constitutes complete estoppel, possession or no possession, we would expect to find that, when such a case was in hand, the only thing adverted to would be the execution of the indenture, and that no stress would be laid on a fact so irrelevant as the presence of the possession. Now, so far is this from being the case, that what I now purpose to do is to show, by a number of instances, taken almost at random, that, whenever the reason of the rule is stated, whether it be a case of indenture or not, it is put exclusively VOL. 16. 35 L |