
    Camley v. Stanfield.
    A conveyance of land is valid if it describes the land with sufficient certainty to enable the vendee to identify it by the aid of extrinsic evidence.
    The act of 1848 upon the subject of forcible entry and detainer, {'Hart. Dig.,p. 449,) superseded the act of 1840 upon the subject of landlord and tenant, (Ilart. Dig., p. 537;) and as the latter act does not declare that the estate or merits of the title shall not be brought in “question,”as the former did, the question whether the tenant can in «a proceeding under the latter act dispute tho title under which ho entered, is not a question of jurisdiction but one of relation between landlord and tenant, and stands as it did at common law.
    The proposition that ade'jndant will not bo heard-to dispute the title under which he entered, as a general one, is correct, but it is believed to bo subject to some exceptions, and the • modern tendency of the courts has been liberally to allow those exceptions. (Note 300.)
    Jf a defendant pleads the statute of limitations ho will be presumed to hold under the title by which ho entered, yet he will be permitted to controvert that presumption. Any acts of the defendant known to tho plaintiff, or from their notoriety supposed to be known to him, inconsistent with such tenure, will be considered as repudiating it, and from that time the possession would bo adverse. This is clearly the case where tho suit is brought to try title, and we believe that it would not be extending the principle of such exceptions too far where the possession alone is sued for — forcible entry and detainer — to allow the tenant in possession, holding over, to protect himself by showing a title in [54t7J himself consistent with the title under which he originally entered, and this is far enough to go-for the case before us.
    Where the landlord sues by forcible entry and detainer for the possession of lands held over by the tenant, it is a good defense for the tenant to show that, subsequent to the lease, lie purchased the land at a sale under execution on a judgment against the landlord. (Note-101.)
    Appeal from Harrison. This suit was commenced by'the appellee against the appellant before a justice of tlie peace, to recover the possession of certain premises in the possession of the appellant. In the justice’s court there was a verdict and judgment for the plaintiff, and a writ of possession was issued. When the officer went to the premises to give possession, the defendant gave a written acknowledgment that he held the possession as tenant of the plaiutitf, and would give possession on its being afterwards demanded, and was permitted to remain in the possession. Afterwards, a writ of certiorari was obtained by the appellant and the ease was taken into the District Court. On the trial the appellant attempted to sot up title in himself to the land, the possession of which was in controversy in this suit. The appellant offered in evidence a deed made to him by a constable and the proceedings in a suit against the plaintiff—judgment, execution, and sale to the appellant. The court refused to permit the deed to be read in evidence, on the ground that it did not sufficiently describe the land in question.
    
      Clough Lane, for appellant.
    “ The vendee of a tenant who has an apparently clear title to the premises can show title in himself.” (Thomas v. Clark, 7 Barr R., G2, 8 U. S. Dig., sec. 49, R., 247.) “ If a person in posses- “ sion under title of another repudiates that title and gives notice that lie will “no longer hold under that title and sets up title in himself, the statute of “limitations begins to run.” (North v. Barnum, 19 Verm. R., 220; Greeno v. Munson, 9 Id., 37; 5 U. S. Dig. R., 300, sec. 292.)
    This action was commenced under tire act of 1848—forcible entry and detainer. That act does not say the merits of the estate or title shall not be brought in question. The act of 1840, landlord and tenant, does. But it says, when they shall unlawfully hold over. A holding by the above principles would be lawful.
    The court below authorized at the trial the introduction of evidence of a sale of Stanfield’s interest since the commencement of the action. The counsel have seen authority in possessory actions to allow this; the court saying it would be only a question of costs. There would be no good cause of dispossessing Camley, who bought Stanfield’s interest at sheriff’s sale for debt. Any person in the world had the right to buy. No position of Camley’s excluded him from purchasing. The tenant has a right to purchase at public auction the farm lie has rented, sold on execution against the landlord. Reference is made to the bill of exceptions. The court erred in not allowing the deed from the constable to be read in evidence. It was a question of identity.
    
      M. J. Hall, for appellee.
    It is objected that the court erred in excluding a judgment of James A. Ceort against appellee, and the execution and deed made by II. Joyce to appellant. This evidence was first read t.o the jury, the appellee protesting against it, but was afterwards excluded by the court, because appellant failed to prove that the deed included the land in controversy. Certainly no deed could be received in evidence unless it described the land in controversy. This proposition, however, is mot by appellee on much broader ground. The object of the introduction of the paper last named was to show title in the appellant, which cannot bo done in this proceeding. The case was commenced before a magistrate, and all that the District Court could do when the cause was carried there was to give such judgment as the magistrate ought to have given. It was never contemplated [54©] by our
    
      law-makers that magistrates should hear and determine questions affecting laud titles. On the contrary, the statute positively declares that the merits of the title shall never come in controversy in this species of action, and so declare the great and fundamental principles of the American and English common law. The only question for the court was, “was there a tenancy?” and that fact was established as the first link in the chain of appellee’s testimony ; and if this was done all proof in relation to the title of the land should have' been rejected. “A tenant can never he heard to dispute or question the title of his landlord.” (1 Hilliard, p. 142, sec. 82.) And all under-lessees are alike estopped from denying the lessor’s title. Nor can a third person having paramount title recover rent from the tenant. The party holding the legal title must assert it in court.. So it is immaterial whether the constable’s deed identifies the land sued for or not; it proving no fact proper to be inquired into, should be rejected. It is believed to be the law that in an action of ejectment by the landlord against the tenant it is competent for the latter to show that the legal title has passed out of the former by operation of law; but in this action such testimony cannot be heard. Had the appellant been able to produce a patent to the land in controversy vesting the land in him absolutely, it could not have been heard in evidence after the establishment of a tenancy. (See Smith v. Dedman, 4 Ky. R., 192; 2 Greeuleaf, par. 305; Bott v. Burnell, 11 Mass. R., 163; "Lawrence v. Pond, 17 Id., 433; IT. S. Digest, vol. 9, pp. 199, 304.)
    It is contended that the possession of Martin was adverse to the appellee, and that three years of such possession would protect the appellant under the statute of limitations. But it is confidently believed that such a doctrine never will be countenanced in a court of justice in this State. Adverse possession is such only as is under a claim or color of title at its commencement. (1 Hilliard, sec. 35.)
    Martin having entered as a tenant cannot become in legal contemplation a disseizor, and set up his disseizin as a defense. The charge of the court on this subject is believed to be erroneous, for it was charged that if Martin, after purchasing a lease from Dunlap, afterwards set up claim to the land in his own right, and continued in possession or claiming for three years, then his title was good, and the jury would find for the defendant; but as the error was against the appellee and in favor of the appellant he has no right to complain. Indeed all the charge of the court was against law and to the prejudice of the appellee ; but it is difficult to perceive why the appellant should complain of it. The jury, however, found that the appellant and those under whom he, claimed had not been in possession claiming the land as his own for three years, and therefore they found a verdict for the appellee, and the presiding judge very properly refused to disturb the verdict.
   Lipscomb, J.

The identity of the land intended to he conveyed by the deed was a question of evidence to be passed upon by the jury, and if it was described with sufficient certainty as to be rendered certain by other testimony it ought to have been permitted to go to the jury. We do not think the deed was obnoxious to the objection sustained by the court to it.

If, however, as is urged by the appellee’s counsel, the deed was incompetent evidence, as going to prove title when an inquiry into the legal title was not in issue, but‘the possession only, and that the legal title or merits of the title was excluded by statute, then the evidence might well be excluded, and the judge’s excluding it on a wrong ground was no ground of error. And this presents the question of the competency of one who has entered into possession under a lease to hold over on a claim of title in himself.

Tiie act of 1840, providing a summary remedy to enable landlords or lessors to obtain possession of lands or tenements unlawfully detained or withheld by tenants, (art. 1759, Dig.,) authorized the summary proceedings in this case, and the act contains the express provision that the estate or merits of the title shall not be brought in question. (Art. 1707, Dig’.) Under this last provision it was manifestly intended that, in this summary proceeoding, the only question should be whether the defendant held tiie possession iu tin; character of tenant under or derived from the plaintiff iu the suit. The act of 18-18 (Dig'., p. 449) contains ail the provisions of the former act as to the rights of the landlord, and is, in its terms, the same, excepting that it drops from its provisions that, on the trial, “the estate or merits of the title shall not be “brought in question.” It being a re-enactment of the former act, with the exception noticed; it is believed to have superseded that act, and that the exception is no longer a part of the statute regulating such trials.

This brings us to inquire how this question stands at common law. The proposition, that a tenant will not be heard to dispute the title under which he entered, as a general one, is correct; but it is believed to be subject to some exceptions. And the modern tendency of the courts has been liberally to allow those exceptions, and each one, of course, must depend upon its own peculiar circumstances.

If a defendant pleads the statute of limitations, he will be held to hold under the title by which he entered; yet he will be permitted to controvert the x>re-snmption of his possession being under the title by which lie had entered. Any acts of the defendant known to the plaintiff, or from their notoriety supposed to be known to him, inconsistent with such tenure, will bo considered as repudiating it; and from that time the possession would be adverse. (Opinion of Chief Justice Marshall in ■-v.-.)

This is clearly the case where the suit is brought to try title; and we believe that it would not be extending the principle of such exceptions too far, when, the possession alone was suecl for, to allow the tenant iu possession, holding over, to protect himself by showing a title consistent with the title under which he had originally entered; aud this is far enough to go for the case before us.

Suppose that, after the lease had been made, and the tenant had eutered, the lessor had, before the expiration of the lease, sold all his right aud title to the land in question. If, notwithstanding such sale, ho should, after tiie ■term of the lease expired, bring an action to recover tiie possession, he could not recover; because that the sale of the whole estate carried with it to the Vendee the right of possession. But, to make the ease still stronger, suppose this vendee had sold to tiie tenant in possession; tiie defendant, if sued by tlri original lessor, under whom lie had entered, could protect himself by such title so derived from the person under whom he had acquired (lie possession. Tiie sale made under the judgment against Stanfield is prima facia good, and conveyed to the appellant, as the purchaser, all tiie right, title, ami interest that Stanfield held or possessed in the premises as fully as if made by himself, the right to the possession included. If these rules are not correct, and a person who lias entered as a tenant for a term, cannot, under any circumstances, be allowed to protect himself after holding over, against a suit brought for the possession against him by his lessor, it would result in this, that if, after making a lease, the loasor conveys all his right and title to tiie tenant before tiie expiration of tiie term, ire could yet sue for tiie possession and recover it, aud drive the tenant to another suit to try title, or upon tiie covenants eomniued iu the deed of tiie very person who had turned him, under such circumstances, out of possession of his own property. A state of tilings not to be tolerated under any sound and wise system of'jurisprudence, aud, more ('.specially, not our own, where all the rights of the parties can aud ought to he litigated aud adjudged in one action.

We believe that it was competent for tiie appellant to have offered in evidence the sale made under the execution from the justice of tiie peace, and, if valid, that it would have been a complete defense to the action, and that tiie court erred in withholding it from tiie jury. This is the most material question presented by the record, and 'on which it must turn on a new trial. We have not leisure to discuss other questions raised. The judgment is reversed and the cause remanded.

Reversed and remanded.

Note 100. — Moffatt v. Sydnor, 73 T., 628; Lyles v. Murphy, 38 T., 75. Yefc if ihere he fraud on the part of the landlord in the execution of the lease, and ho is unable by reason of insolvency to indemnify the tenant for rents wrongfully exacted, the tenant may, while in possession, purchase a superior title if he does so in good faith, from a well-grounded fear of eviction, and may rely on the tide thus acquired in resisting a suit by the landlord for possession, (Gallagher v, Bennetts’ Heirs, 38 T., 291.)

Note 101. — Andrews v. Richardson, 21 T., 288.  