DOMVILE

V.

WARD.

E. T. 1865. it was held that the lessee was estopped from denying that the lessor Common Pleas. had an estate in reversion, and that the reversion passed by the assignment to the plaintiff. And Martin, B., at page 754, says :— "Upon consideration, we think the authorities show that the "defendant is estopped from disputing that the lessor was seised "of an estate in reversion, and as there are apt words in the assignment to convey a legal estate in fee in reversion to the "plaintiff, the estoppel continues in his favour notwithstanding the "assignment to him shows the want of title." These cases establish that a lessee by indenture cannot in any way dispute the title of his lessor in the whole of the premises, as that title stood at the time of the execution of the indenture. Can there then be any difference between his disputing his landlord's title in the whole of the premises and in a part? There can be none in principle, and there is no authority for such a distinction. It is the relation of lord and tenant which creates the estoppel; and the question is not as to the quantity of the land, but as to the right of the tenant to controvert the title of the lord at all. It fails therefore as a logical inference that a lessee, though he may not plead nil habuit in tenementis, may yet plead nil habuit in parte tenementorum.

But on the general rule two exceptions have been grafted. First; that although a tenant cannot dispute the title of his landlord as it was at the time of making the demise, yet he may show that the title has determined. Secondly; that if the tenant be actually ousted and evicted from the possession by a person having a legal and paramount title, he may plead the eviction; but he cannot set up a jus tertii at the time of the making of the demise: 1 Wms. Saunders, 204; Co. Litt. 148; Taylor v. Zamira (a); Doe d. Bullen v. Mills (b): Stephenson v. Lombard (c); Delap v. Leonard (a).

The next question is, is this plea equivalent to a plea of eviction by title paramount? By the latter plea the defendant says,-true it is I executed the lease; true it is I entered into possession; and I did everything that it was my duty as tenant to do; but

(a) 6 Taunt. 524.
(c) 2 East. 575.

(b) 4 N. & M. 25.
(d) 5 Ir. Law Rep. 287.

Common Pleas.

DOMVILE

V.

WARD.

a third person who had a legal and paramount title has actually E. T. 1865. ousted and evicted me out of the possession of the premises.. How can the plea in the present case, which denies the title of the landlord altogether, be said to be equivalent to that? To constitute an eviction there must be an actual ouster from the possession. In Neale v. M'Kenzie (a), at page 95, Parke, B., says: "Here "the plaintiff never entered into the eight acres of land; and can "there be an eviction from that of which the party never was "in possession?" He cited Hunt v. Coke (b).

Dillon, and M. Morris.

Estoppel between landlord and tenant is founded, not upon the execution of the indenture, but on the fact of the tenant going into the possession and enjoyment of the demised premises. In Cuthbertson v. Irving (c), Martin, B., speaking of estoppel between landlord and tenant, says: "This state of law in reality tends to "maintain right and justice, and the enforcement of the contracts "which men enter into with each other (one of the great objects of "all law); for so long as a lessee enjoys everything which his lease purports to grant, how does it concern him what the title "of the lessor, or the heir or assignee of his lessor, really is? All "that is required of him is, that having received the full con"sideration for the contract he has entered into, he should on his "part perform it." In Hayne v. Maltby (d), which was an action of covenant by the assignees of a patent for a machine, against the defendant, who had obtained permission from the plaintiffs to use one of the machines, and had covenanted that he would not use any of the patent machines other than the one he had permission from the plaintiff to use, and the action was brought for breach of that covenant; during the argument, the case of landlord and tenant was brought into the case by way of illustration, and Ashurst, J., says: "This is not like the case of landlord and tenant; as long

66

as the latter enjoys the estate, he shall not be permitted to deny

"his landlord's title, for he has a meritorious consideration; but

(a) 2 Cr. M. & R. 84.

(c) 4 H. & N. 758.

VOL. 16.

(b) Cuthbert's R. 242.

(d) 3 T. R. 438.

49 L

E. T. 1865. "when he is expelled by a person having a superior title, he may "plead it." And Buller, J., says: "I think that the case of

Common Pleas.

DOMVILE

บ. WARD.

In

"landlord and tenant is not unlike this: for the facts in this case
"disclosed by the pleas are equivalent to an eviction of the tenant.
"As long as the tenant holds under the lease, he is estopped from
'denying his landlord's title; but when he is evicted he has a
"right to show that he does not enjoy that which was the con-
"sideration for his covenant to pay the rent, notwithstanding he
"has bound himself by the covenant." In Taylor on Evidence,
ss. 76, and following, the general law of estoppel will be found.-
[CHRISTIAN, J. The only averment in the plaint here is that the
lessor by indenture demised the premises to the assignor of the
defendant that of course imports that the indenture was executed
by the lessor; but does it also import that it was executed by the
lessee? In The Irish Society v. Tyrrell (a) we gave leave to amend
the replication by adding an averment that the lease was executed
by both parties.]-Strictly, that averment is not necessary.
1 Wms. Saunders, 291, in the notes to Capell v. Vaughan, it is
said:" There are some words of art, such as indenture, deed, or
"writing obligatory, which of themselves import that the instru-
"ment was sealed by the party, without an averment of sealing."—
[CHRISTIAN, J., asked if the lease was in Court; and if it
appeared that it was executed by the lessee.]—(It was admit-
ted that the lease was executed by both parties, and the Court
gave leave to amend at once by adding an averment that the
indenture was executed by the lessee.)-The pleadings in this
case differ from those in The Irish Society v. Tyrrell; in the
latter case the tenant relied on the facts as constituting a suspension
of the rent, here he sets up a case of apportionment. M'Loughlin
v. Craig (b) is exactly in point: the facts there were precisely the
same as in this case; and they were held to amount to an eviction
by title paramount. In Neale v. M'Kenzie (c) a replication to an
avowry in replevin, setting up a state of facts exactly the same as
the present, was held, on demurrer, to be a good answer to the
(a) Ante, p. 249.
(b) 7 Ir. Com. Law Rep. 117.

(c) 1 M. & W. 742.

avowry. He cited Doe d. Vaughan v. Meyler (a); The Ecclesi- E. T. 1865. astical Commissioners v. O'Connor (b).

The Solicitor-General, in reply.

Neale v. there the second lease was by parol, here it is by indenture. In M'Loughlin v. Craig it does not appear that the cases which have been relied on by the plaintiff on the present occasion were cited to the Court.

M'Kenzie is distinguishable from the present case;—

He cited Comyn's Dig., vol. 4 (A. 2), p. 192, 5th ed.; Viner's Abridgment, tit. Estoppel, iv., 1 & 2; Walton v. Waterhouse (c); The Duchess of Kingston's case (d); Jarman's Conveyancing, vol. 9, p. 366; De Medina v. Norman (e); Lainson v. Tramere (f); Burnett v. Lynch (g); Carpenter v. Buller (h).

On this day the Court delivered judgment.

O'HAGAN, J.

Cur. adv. vult.

This was an action of ejectment for non-payment of rent; and the question for decision arises on the plaintiff's demurrer to the defendant's defence. I believe that, in the ultimate judgment, we shall be unanimous; but there is some difference amongst the Members of the Court, as to the grounds of that judgment; and it has been thought proper and reasonable, that they should severally state their views upon the legal principles which affect the case. I shall very briefly indicate my own.

The action is brought, in the ordinary form, to recover 24 acres and 7 perches of the lands of Ballyfermot, held by the defendant as tenant to the plaintiff, under a lease, at the yearly rent of £61. 15s.; and the summons and plaint alleges, that one year's rent, at that rate, was due and owing on the 25th of March 1864. The defendant pleads, by way of set-off, as to the sum of £2. 8s. 1d., portion of the

(a) 2 M. & Sel. 276.
(c) 2 Saund. Rep. 418.

(6) 9 Ir. Com. Law Rep. 242.

(d) 2 Sm. L. C. 642.

Common Pleas.

DOMVILE

v.

WARD.

May 6.

May 11.

DOMVILE
V.

WARD.

E. T. 1865. sum of £61. 15s. Od., claimed as due by the plaintiff, that the plainCommon Pleas. tiff is indebted to him in that amount, for money paid as poor-rate and rentcharge, and received to the plaintiff's use. And, as to the sum of £1. 14s. Od., further portion of the sum of £61. 15s. Od., the defendant pleads that, by indenture bearing date the 28th day of April 1836, Sir Compton Domvile, the father of the plaintiff, demised the premises in the summons and plaint mentioned to one John Verschoyle, for a term still unexpired, at the yearly rent of £61. 15s. Od.; that the lease so made was assigned to the defendant by indenture bearing date the 9th day of November 1855, and that the defendant now holds under the lease. And then the defendant proceeds to aver that, at and before the making of the indenture of the 28th of April 1836, a portion of the premises, amounting to 2 roods and 26 perches, or thereabouts, was, and has thence remained, the absolute property in fee of the Grand Canal Company, and neither Sir Compton Domvile nor the plaintiff had, at the time of the making of the demise, or thence hitherto, any right or interest in that portion of the premises; and neither John Verschoyle, nor the defendant, nor any other person holding under the demise, has ever obtained any use, possession, or enjoyment of it, or any benefit or advantage from it; but it has always, since the making of the demise, remained in the exclusive possession of the Grand Canal Company or their servants. And the defendant further avers that the portion is worth annually the sum of £1. 14s. Od.; and, as to the residue of the sum of £61. 15s. Od., being the sum of £57. 12s. 10 d., the defendant alleges that he tendered that sum to the plaintiff, who, through his agents, declined to accept it. To this defence, the plaintiff has demurred, on the ground that, on the state of facts which it discloses, the defendant is by law precluded and estopped from averring that, at the time of the making of the indenture of demise, the portion of the premises amounting to 2 roods and 26 perches was then, and has since remained, the property of the Grand Canal Company; and from averring that neither Sir Compton Domvile nor the plaintiff had right or interest in that portion; or that neither John Verschoyle nor the defendant, nor any other person holding under the demise, had ever possession or enjoyment