
    Saml. Maverick vs. Lewis & Gibbs.
    Neither the plea of nil haiuit in tenementss, nil demisit, nor riere passa, can be pleaded to covenant for rent on an indenture, for it operates a3- as estoppel.
    But the estoppel only exists during the continuance of the occupation of'the tenant; and if he be ousted by a paramount title he may plead if.
    An outstanding title, alone, will not discharge a lessee by indenture. He must be evicted, or prevented from entering or from enjoying the thing demised, by virtue of such title; and he must set out the title in his ple»j gnd shew particularly how it arises, Where a person was in possession by an outstanding lease, and refused fa give possession to the new lessee, it is tantamount to an eviction.
    ÍNo particular words are necessary to constitute a lease, but there must be an interest in the freehold conveyed. And an agreement to iak.e charge of a ¡ farm and to work on shares is not such an outstanding lease, as will \ amount to an eviction, where the person in possession under such agree* l ment refused to deliver possession to the lessee.
    The plaintiff by indenture dated 15th February 1823, leased to the defendant his Montpelier plantation in Pendleton district, and a mill about a mile from the farm, together with the following negroes, to wit: Jack, (the miller,JDave, Tom, Martin, Sally, Clarissa, Lucy, Hannah, Jinny, Conder, Ben, and three small boys, likewise the stock and other articles on the farm. The lease was to continue two years; but it was provided, that if the defendant should give notice in writing of his intention to quit on or before the 15th July then ensuing the lease should endure one year only. The defendant on his part covenanted to pay ‡700 annually by way of rent.
    This was an action of covenant brought for one years rent.
    The defendant pleaded that before and at the time of the said demise the said tenements, negroes, and certain other personal property therein mentioned, were demised by the said Samuel Maverick to a certain Anderson Hunter who was then and there in possession of the same, and refused to deliver possession to the said Lewis & Gibbs.
    The replication traversed the demise to Anderson ' Hunter, modo et forma, and on this issue the case went to the jury.
    In support of his plea the defendant produced an agreement between Samuel Maverick the plaintiff, and. Anderson Hunter in the following words:
    “ An agreement made between Sam. Maverick and Anderson Hunter, said Anderson Hunter agrees1 to take charge of Montpelier farm; attend to the horses, cattle, hogs, and all the stock thereon, and take under charge negroes Dave, Hannah, Lucy, Jinny, Sally, Clarissa and Martin, to work in the fields, and Ben and the three little boys, Joe, Ben, and Cato, and Benbow to attend to the vineyard and the three other gardens, and in hauling every day, manure; sand, &tc. into the gardens; and Conder to cook for the whole establishment; to use his best endeavors in making crops, provisions, and such other articles as may be agreed on, or thought most advisable. And should apples and fruit hit, he is to attend and make cider-royal as much as possible, to make peach brandy and to keep Ben or some one if possible to supply the market at Pendleton with fruit of all kinds; to keep an exact account of all money received for the same of every kind, to allow and pay Ben one dollar out of every sixteen dollars so sold, he Ben to pay six and a quarter cents out of each dollar he receives to the three little boys. To keep the vinyard locked and not to suffer visitors to pull the fruit or to touch the vines; but to see that Ben keeps the beds at all times made up light and nice, and the walks all scraped clean in the spring and summer. This agreement shall commence this day, and last fbr two years from the same. The said Sami. Maverick promises to allow to the said Anderson Hunter one fith of all the crop of corn, wheat, fodder, hay, and the same proportion of the money, which he shall receive for fruits of all kinds, cider, cider-royal and vegetables by him sold from the said farm. But should the said Samuel Maverick return before the summer after next, that it is intended that he the said Maverick shall take Ben and the three little boys under his own charge and the five gardens and vineyard for his own proper use of vegetables, .grapes, &c.
    Witness our hands this first day of January 1823. Said agreement is to commence on the 10th December last, say 1822. R. A. Hunter,
    
      Sami. Maverick.
    
    The jury, under the charge of the presiding judge, found for the defendant.
    
      A motion was now made for a new trial on the follow ■ lug grounds.
    1st. Because the agreement between Maverick and Hunter, was a contract for the performance of personal services and conveyed no estate in the property contained in it.
    2nd. If that agreement conveyed any interest it does-not amount to a demise.
    3rd. Anderson Hunter if he had any estate was a tenant in common with the plaintiff.
    4th. The mill, Jack (the miller) and Tom are not embraced in the agreement with Anderson Hunter, nor did' he-exercise any control over them. The plea therefore was not supported.
    
      Harrison for the motion.
    The general rule that a lessee cannot dispute his landlord’s title admits of some qualifications. A person may shew that he was never lessee by indenture; and- may plead paramount title and eviction. He ¡must set out the title that the court may judge. Let us examine the truth of the plea. The agreement with Hunter does not amount to a demise. It is a contract for personal services, and conveys no interest. (4 Jac. Law Die. 95.) Demise and lease are synonymous. Demise conveys an exclusive estate, right of possession and profits; and if the agreement did not convey a right to the possession and- profits it is no demise. The terms were to- take charge of the negroes and to attend to stock, fee. So far from conveying property it excludes the idea. It appoints an agent, servant, or bailiff. He makes crops, not for himself, but for Maverick. He is not the owner but a mere receiver- of a portion as a compensation for his services.
    Only ground on which it is contended, Hunter had an interest, is that he was to receive one fifth. He does not pay Maverick, but Maverick him. It is truly an engagement on-Maverick’s part to allow him one fifth. He had not an interest even in the one fifth. He could not have taken in kind. If’ turned off he might have sued for breach of covenant.
    
      Suppose the agreement was to pay him $200. The amount of the crop only regulates the wages to be received. In Stewart vs. Doughty, 9 Johns. Rep. 108, property was leased and the owner reserved a share, the question was who was the owner, and the court said the lessee; because he was the paymaster. The interest in the soil passed. The •interest in the crop was in the lessee till delivered, and that the lessee could maintain an action of trespass.
    Another test is (L Co. Lit. B. 1. C. 7. Sec. 58.) that a lease is assignable. - It is a lease if it conveys an interest in the soil and is assignable. Here the man was selected for his personal qualifications. Could he assign? So an executor of a lessee may enter. Could he in this case enter and carry on the contract?
    Again who to provide supplies, &c. for the farm? Maverick. Because he was the owner.
    But the clause “take Ben and gardens and vineyard” is a resumption of a trust quoad hoc. But still it is a personal contract. In the agreement with Gibbs, the contract with Hunter is recognised, and Gibbs stipulates to allow the same.
    No form of words is necessary, if the intention appears to transfer possession and profits.
    If he has any interest it must be as a joint tenant Maverick is in the legal possession. If he be a tenant in common the plea is not supported. (Stephens Civil Pleads ing 338.) Title pleaded must be proved as pleaded. (Ib. 213. Archbold Civil Plead. 368-376. 2 Saund, 97. 1 Lord Raymond 404.)
    The defendant has pleaded that the whole property had been demised to Hunter. The agreement shews that it is not so. The defendant must prove the whole or the plea is not supported. {Stephens on Plead. 107. Archbold, 368. 1 Phillip’s Evi. 165.)
    
    
      W. R. Davis, contra.
    It is not pretended that Mr. Maverick has suffered damages. lie claims the whole rent, while Hunter remained in possession. It is insisted that the plea contained too much. The agreement was not in the possession of the defendant. It was formed on the information of Hunter. The lease is not set forth in the declaration. No other plea could be used, than a special one, negativing the declaration. The whole house was leased. Would any one take one on such terms? If Hunter could not be removed how could Maverick put Gibbs into possession? If this plea be not good, none other would have been sufficient.
    
      Harrison in reply.
    The only question is whether the plea is supported? Meverick could have turned off Hunter.,. If so Gibbs had the same right. The lessor is bound to pul the lessee in possession. If he suffer himself to be kept out, by a wrong doer, he must take the consequences.
   Colcock, J.

Neither the plea o(nil kaluit in tenc< mentis — nil demisit, nor nenpassa can be pleaded* to covenant for rent on indenture; for it operates as an estoppel; but the estoppel only exists during the continuance of the occupation of the tenant; and if he be ousted by a paramount title he may plead it. As a lessee by indenture cannot plead nil Jiabuit in tenements, it follows that an outstanding title alone will not discharge him. He must be evicted, or prevented from enjoying the thing demised, by virtue of that title; and he must set out the title in his plea, and shew particularly how it arises.

The defendant has pleaded a paramount title, and al-ledges that the person having that title was in possession and refused to deliver up the possession. If the plea be true, it affords a sufficient bar; for the possession of the person having title and his refusal to deliver up the possession is tantamount to an eviction. (Story’s Pleading, 170—note and authorities.) Is is not necessary for the plaintiff to alledge entry. On an indenture the rent is due on the lease and not on the occupation, (2 Chitty’s Pleading, 194, n. 1 Saund, 03, n. 1 Com. Dig. Tit. Pleader, 2 w 14, Doug. 455, and the lessee is liable for rent without occupation. (3 Term Rep, 441, 442) Eviction suspended the rent. (1 Selwyn’s JST. P-539.)

it it not necessary in this case to follow the learned s-.oi.inse! through all the arguments and authorities which he has produced, to shew that the contract of Maverick with Hunter was not a lease. It is clear that no particular words'^ are necessary to constitute a lease, but there must be an in-' terest in the freehold conveyed. Now here was an express contract for the personal services of Hunter, giving him no interest in the soil; and had he died his executor would have had no power to enter. There would have been an end to the contract. He was to take charge of the farm and manage it in the best manner. There is no stipulation that he shall live on it, or be found in provisions; much less that he shall exclusively occupy any part of it. His intrusion was illegal, and the lessee, Gibbs, had the same right to expel him from the house, as if he had been a stranger.

The plea of the defendant can not therefore be supported- It would be allowing the misconduct of Hunter to injure Maverick, which the law will not permit. In such a case as the present, nothing but an outstanding paramount title would have availed the defendant. Again, the defendant took the lease with a knowledge of Hunter’s situation, and agreed to find him with provisions, so that if his right had been such as legally to conflict with the defendants, it might have been doubted whether the defendant could have taken advantage of the circumstance. It was certainly an improvident bargain, and attended with unpleasant circumstances, but that does not warrant the interference of the court. There must be a new trial.

T he motion is granted.

Harrison for the motion.

Davis and Earle contra,  