
    
      C. M. Milhouse vs. John M. Patrick.
    
    One entering as sub-tenant, afterwards acquiring a perfect title, and then holding over, is estopped from disputing the landlord’s title — he must surrender the possession.
    A tenant holding over and asserting title in himself is a trespasser.
    In trespass to try title against a former tenant holding over, defendant, without objection, produced evidence which showed title in Jiimself acquired after his entry: Held, that plaintiff had not waived Ms right to insist upon the estoppel.
    
      Before Wi-iitner, J., at Barnwell, Bpring Term, 1853.
    Trespass to try title. The locus in quo originally belonged to one Henry Touchstone, the grantee, who, in 1841, removed to Georgia.
    Plaintiff proved, that about the time of his removal Col. Howell entered as owner, and continued in possession until 1847, when he also removed to Georgia. No deed of conveyance from Touchstone to Howell was produced, but Touchstone’s declarations, that he had sold to Howell, were given in evidence. In 1848 the land was sold by the sheriff as the property of Col. Howell and purchased by the plaintiff. In 1849 and 1850 defendant, who lived on adjoining lands, entered and planted a part of the land as sub-tenant of plaintiff, and paid rent for the same — and in 1851 and 1852, he continued his occupation, claiming the premises as his own.
    Defendant produced in evidence the grant to Touchstone and a deed of conveyance from Touchstone to himself, dated June 29, 1850, and recorded July 19,1850.
    The jury were instructed that a tenant could not contradict the title under which he entered, and that whenever a party defendant had entered into possession under the plaintiff, he should not be permitted, while he thus retained or remained in possession, to dispute the plaintiff’s title. That although he had a right to purchase any title he might please, yet in such case he was bound, bona fide, to give up possession, and either bring his action, or re- enter on the title so acquired or claim set up.
    The jury found for the plaintiff. The defendant appealed and moved for a new trial on the grounds :
    
      1.Because the plaintiff having failed to show title by paper or possession, and the defendant having shown a perfect title, the only grounds on which the verdict can possibly rest, are either,
    1. Fraud in defendant, which was charged but not proved, and in fact disproved. Or
    II. A supposed deed from Henry Touchstone to Joseph Howell, under whom plaintiff claimed, the loss or destruction of which supposed deed was not attempted to be shown — nor even its existence, except by the declarations of Henry Touchstone, that he had sold the land to Howell, which declarations were only admitted on the condition that they would be followed up by proof, as to the loss or destruction of the supposed deed, which proof was not forthcoming. Or
    III. That defendant had entered as tenant of plaintiff, and therefore was estopped from disputing the plaintiff’s title; whereas the proof was that although the defendant in 1849 rented some of the land from Whetstone, plaintiff’s tenant, and in 1850 planted some of the land, and paid for it to Stokes, plaintiff’s tenant, yet early in 1851, defendant gave notice to Whetstone, who had rented the land from plaintiff, that he thenceforward claimed the land in his own right; nor did defendant who lived on another tract, ever have possession on the land, further than, to plant a portion of it. His entry in 1851, was as distinct from his entry in 1850, as the entry in 1850 was from the entry in 1849. It was a trespass committed not under color of tenancy, and defendant did not rely on his possession, but made as full proof as if he (defendant,) had been plaintiff, or had pleaded liberum tenementum — so that plaintiff was not prejudiced.
    2. Because no trespass was proved.
    3. Because, if the defendant’s planting a portion of the land in 1849, a portion in 1850, and a portion in 1851, constituted a continuous possession, and thereby estopped the defendant from asserting title in himself after the expiration of 1850, such a state of things equally restrained the plaintiff from suing the defendant, who was either tenant, or a former tenant out of possession, re-entering as trespasser, and it is submitted that his Honor should have charged the jury, that in either aspect the plaintiff could not recover.
    
      Bellinger, for appellant,
    cited 2 Esp. N. P. 1, 6, 9, 17, 29 ; Giles vs. Pratt, 2 Hill, 439 ; Whaley vs. Whaley, 1 Sp. 233 ; Willison vs. Watkins, Car. L. J. 121; Calhoun vs. Perrin, 2 Rice Dig. 320; Wilson vs. Weather shy, 2 Rice Dig. 323; Dud. 54 ; Givens vs. Mullinax, 4 Rich. 590 ; Martin vs. Ranlett, 5 Rich. 541; 3 Bl. Com. 187, 199, 200 ; Prather vs. Oiuens, Cheves, 236 ; 3 Rich. 150; Jones vs. Weathersbee, 4 Strob. 50; Byme vs. Banders, 4 Strob. 348.
    
      Owens, contra,
    cited Wilson vs. Wealhersby, 1 N. & McC. 369 ; Haile vs. Cantey, 2 Sp. 684; 3 Fairf. 374; 1 Cowen, 575 ; 2 Binn. 468; 1 A. K. Marsh. 245.
   The opinion of the Court was delivered by

WhitNER, J.

I shall not attempt to consider the grounds of appeal in their order. The character of defendant’s entry and possession, was the hinge on which this case turned on circuit. The precise points were, whether the defendant had entered the lands in question as tenant of plaintiff, and whether the possession so acquired had been continuous and unbroken. These questions were exclusively for the jury, and, however perplexing to the mind of the Circuit Judge, it is considered by this Court, that the proof very well justified the conclusion of the jury. The verdict, then, furnishes the starting point for the judgment here. The instructions to the jury as to the law, as far as they were furnished, certainly call for no vindication. In fact the principles laid down are mere legal truisms, and have not been called in question.

The defendant claims exemption from the operation of the rule, for reasons assigned, either in his grounds, or in argument. Because, as he says, he has taken the burthen of a plaintiff, and did, in fact show aperfect title, therefore the rule does not apply. W ithout travelling out of our own Courts, such cases as have been referred to, have been examined, to ascertain the terms used by judicial minds in asserting the rule.

Cheves, J., in Wilson vs. Weather shy, 1 N. & McC. 373, said, “ a distinct and bona fide abandonment of the possession, at least, was necessary to put the defendant in a situation to dispute the plaintiff’s title.” Johnson, J., in Anderson ads. Darby, Id. 370, said, “a tenant is not at liberty to controvert the title under which he entersand in Whaley vs. Whaley, 1 Sp. 233, Butler, J., said, “ the tenant cannot dispute the title of his landlord, either by setting up title in himself or another.” The terms used wholly exclude all notion of a right to defeat, to destroy that which may not be disputed or controverted. But it is the reason of the rule and the end to be subserved, that are fatal to this defendant. It is said to be founded in morality, and that, where such confidence is reposed, the law exacts the utmost good faith. Possession is the right guarded, and where this has been gained through such a relation, it shall not be turned as a weapon against him who claims it to be restored. The allegation is, defendant does not rely on what he tints acquired but on a perfect title. How can this ever be said to have been established, on an issue thus made? Take the case of a senior grant, with which this plaintiff might not be able to connect himself. Its production by him would have been suicidal, when, by a change of position, in his hand, as a defendant in possession, it would have been a shield safe and impenetrable.

I may add, perhaps this right to dispute is of course on a different footing, when there has been a disclaimer of tenancy, unequivocal notice of that fact to the landlord, and a subsequent adverse possession for the statutory term.

The defendant next relies on the supposed advantages of the position in which he finds himself, although against his will and previous act. If a tenant, then he was no trespasser. Though he has been denied by the verdict the right to advance to his ground of title in himself, it is equally clear this mode of retreat is cut off. Even a tenant may forfeit his lease and become a trespasser. Much more clearly is he a trespasser, whose lease having expired, holds over without the consent and against the will of his former landlord, asserting title in himself and thereby distinctly disclaiming the relation, or all implication arising out of it.

The defendant further insists that his title was offered in evidence without objection, and that plaintiff must be held to his waiver.

This would be a stern rule. Defendant has suffered no harm by being heard, and however clearly it may be demonstrated, that such testimony might have been excluded, he who offers it can in no way complain.

The motion for a new trial is dismissed.

Wardlaw, Frost, Withers and Glover, JJ., concurred.

O’Neall, J., absent.

Motion dismissed.  