
    
      James Wood vs. A. H. Chambers.
    
    In an action for rent the tenant may shew, that the lessor declared that he would not claim the rent, if the title to the demised premises was in another, and then prove that the title was not in the lessor.
    The general rule, that a tenant cannot shew that his lessor never had title, is for the protection of the lessor, and may be waived by him.
    
      Before Frost, J. at Fairfield, Spring Term, 1846.
    The report of his Honor, the presiding Judge, is as follows :
    “ This was a sum. pro. to recover the amount of a note given by the defendant to the plaintiff, for a year’s rent of a tract of land, which the defendant rented of the plaintiff.
    The plaintiff had bought the land at sheriff’s sale, and then rented it to the defendant. One Harrison, who claimed the land, was offered as a witness, to prove that the plaintiff had told the defendant, after the note had been given, that he, the plaintiff, would not claim the rent, if the title to the land were not in him. The competency of the witness was admitted, but the proof rejected.
    It was proposed to .prove that the plaintiff had no title to the land; and this proof was also overruled. A decree was rendered for the plaintiff.”
    The defendant appealed, and now moved this court for a new trial, on the grounds,
    1. Because the defendant should have been permitted to show that the plaintiff had no right to the land which he had rented to the defendant.
    2. Because the defendant should have been permitted to show that the plaintiff had promised not to require the rent note, if the land was not his.
    3. Because the proposed evidence of the witness, James Harrison, should have been received.
    
      Boyce, for the motion,
    submitted a written argument.
    -, contra.
   Curia, per

O’Neall, J.

The defendant’s argument Aere has placed his defence upon a very plain ground, that when the landlord’s title after the granting of the lease has been determined, the tenant may shew it; Com. on Land. & Tenant, 521. But the report does not justify us in saying that the defendant offered to shew, as his argument assumes, that “ the plaintiff’s title %oas the interest of one Belton during life, and that he d,ied soon after the tenancy began." If this had been so, there is no doubt the proof to shew the failure or cessation of the plaintiff’s title, was admissible. Taking the case as it was presented to the Judge below, still we think the defence was admissible, and ought to have been considered by the Judge. The defendant proved, that the plaintiff told him, after the note was given, that he would not claim the rent, if the title to the land was in another. Then the defendant proposed to shew that the plaintiff had not title. This the presiding Judge refused to hear. There is no doubt about the general rule that a tenant cannot shew that “ his lessor never had title Com. on'Land. & Ten. 521. But there is no doubt that this rule is for the protection of the landlord, and if he chooses to waive it, he has the right to do so. It is in this point of view, that I regard the landlord’s declaration, that he would not claim the rent if the title was in another. But it is said, this was not binding on the landlord. Why not'/ If title te in another, his tenant might be sued, and the rent recovered from him as damages by the person having the title paramount. This, if the tenant had paid the rent, would necessarily give him the right to recover over against his landlord. So, too, if the tenant were evicted by the paramount title, it is perfectly clear that he could give the eviction in evidence against the c]aim for rent, — where it had not been paid; Com. on Land. & Ten. 523. To avoid the necessity of the tenant submitting to be sued, the landlord might very legally arrange with him, “ if you can shew title in another, I will not claim the rent, — you may pay it to him.” This being the case, it followed, that under such an arrangement with the tenant, the proof of paramount outstanding title was admissible by the consent of the landlord. The motion for a new trial is granted.

Richardson, Butler and Wardlaw, JJ. concurred. 5  