
    DEN ON DEMISE OF ELISHA KING vs. THOMAS MURRAY.
    Where A. is the legal owner of a Tract of Land and leases it to B., though the agreement for the lease may be usurious, yet B. is estopped in an action of ejectment against him by A*s. heirs, from denying the title of A.
    The usury could not be relied on as a defence, in an action for the rent reserved by the usurious coutract of lease.
    The case of Dunwoodie v. Gairington, 2 Gar. L. R. 353, cited and approved.
    Appeal from the Superior Court of Law of Buncombe County, at 'the Special Term, in June, 1815, his Honor Judge Caldwell presiding.
    This was an action of ejectment. From the case it appears, that Benjamin King, who was the owner of the land in dispute, leased it to the defendant, and that the lessors of the plaintiff are the heirs at law of Benjamin King, he being dead. The plaintiff relied upon the lease as an estoppel to the defendant. On the part of the defendant it was denied that it would have such effect, as it was void and of no effect, because made .upon an usurious consideration. In order to sustain his defence, he shewed that the land once belonged to him, and, as such, had been sold by the Sheriff, and purchased by one Smith, who, at his instance, sold it to Benjamin King for $600. The defendant, at the same time, was indebted to King: $400, and it was agreed between them, that he might redeem the land by paying the $1000. In the mean time it was agreed, that the defendant should keep possession of the land, as the tenant of King, at an agreed rent, which was more than legal interest upon $1000. It was denied on behalf of the plaintiff, that the lease was usurious, but, if it were, it nevertheless operated as a complete bar to the defendant’s denying the title of his lessors, and, if it did not have that effect, the plaintiff could recover on the title of Benjamin King, as set forth and proved by the defendant. The presiding Judge charged the jury, that, if the lease was infected with usury, it was no estoppel, but was completely annulled by the statute against usury ; and, to entitle the plaintiff to recover on the title of Benjamin King, under the Sheriff’s sale, if he had any, he must shew, as against this defendant, a judgment, execution and Sheriff’s deed. There was a verdict for the defendant, and the plaintiff appealed.
    No counsel for the plaintiff.
    
      Francis, for the defendant.
   Nash, J.

We differ with his Honor. Although two questions were decided in this case, there is in truth but one, and that is the estoppel. In his directions upon that point, we think there is error, in not drawing the proper distinctions between the contract for rent, and the legal principle growing out of the fact that the defendant was in possession of the land under the title of Benjamin King. By accepting the lease and holding possession, in an action to recover it, he was estopped to deny his title, and it was not necessary for the plaintiff to show any other. But it is said the lease is usurious. We cannot see wherefore. According to the defendant’s own showing, Benjamin King had purchased the land in good faith ; it was his, and he leased it to the defendant. Tf the lease was usurious, it did not affect the principle upon which the estoppel is .founded, which is, that the defendant is in possession under it; and while it continues, he is not at liberty to deny his landlord's title. This doctrine is. too familiar to need support upon authority. Even where an individual takes a lease of his own land, and, under it, gets into possession, he is estopped. Dunwoodie’s Ex. v. Carrington, 2 Car. L. Rep. 353. If, then, the lease were usurious,- the only effect the usury would have, would be to make void the contract for rent, and, if this were an action for the rent, the plaintiff could not recover, because, in that case, the contract would be in violation of the act. The defendant attempts to avoid the natural effect of taking- a lease from the lessor of the plaintiff, by alleging that it was usurious. Now, that can only be shown by going back to the conveyance from Smith to the lessor of the plaintiff and claiming an interest in that conveyance for the defendant. But when %ve thus go back, it results, from the defendant’s own shewing, that Smith had the legal title, and that title he conveyed to the lessor of the plaintiff How is that title to be divested out of him ? A person cannot gain any new rights by an usurious contract; but he does not thereby lose those previously vested in him. So far from shewing that the lessor of the plaintiff had not the- title, which he claimed by estoppel against the defendant, the defence shews that he actually had it by conveyance from Smith.

Per Curiam. Judgment reversed, and a venire de novo ordered.  