
    *Lessee of Devacht v. L. Newsam.
    In ejectment, plaintiff may recover on possessory title alone. Tenant, or those coming in under a tenant, can not controvert landlord’s title, but may show that it was determined after the making of the lease on which tenant entered.
    This was a case adjourned from Gallia county, upon a motion for a new trial, in an action of ejectment, where the jury found a verdict for the defendant.
    At the trial the plaintiff gave in evidence that he rented the lot in question, No. 59, in the town of Gallipolis, to one Cooper, by parol, in the year 1822, who took possession under the lease, and afterward rented the same lot to the defendant, and put him in possession, under a like parol agreement to perform the conditions of the lease from Devaeht, the plaintiff’s lessor.
    The defendant then proved to the jury that in the year 1796,' one Quieffe owned the lot No. 59, and died in possession of it. That one Maguet, administrator of Quieffe, took possession upon his demise, and afterward made an agreement with Devaeht to exchange the possession of the lot No 59, with Devaeht, for a lot owned by him, each to pay the taxes on his own lot, and the change of possession to remain as long as it should be found mutually convenient. The possession of the respective lots was changed by this agreement until the death of Maguet, when Devaeht inquired of the son and heir of Maguet, whether he was willing to continue the change of possession, who assented to it.
    Newsam, on the expiration of Cooper’s lease of 1822, refused to restore possession to Devaeht, who prosecuted against him a forcible detainer, iti which the jury found for the defendant. After this, Devacht applied to Maguet to pay rent for the lot No. 59, which he refused to do, when Devaeht told him he should rent his own lot, occupied by Maguet, to some other person, and in May, 1824, did accordingly make a written lease to one Workman, who took possession under it. Maguet, after the conversation with Devaeht respecting rent, made a lease to Newsam for lot No. 59, upon which he claimed to maintain his possession. To the admission of the testimony establishing these facts, the plaintiff’s counsel objected at the trial, and the objection was overruled.
    
      The plaintiff then offered evidence to prove that Quieffe was never the legal owner of the lot No. 59, and the plaintiff *had been in peaceable possession for twenty-five years before the possession was divested out of him. But upon the suggestion of the defendant’s counsel, the court rejected tho evidence, and charged the jury that if they should find from the evidence that the agreement between Maguet and Devacht had been put an end to by the parties, and tho possession restored to Maguet before the suit was commenced, the plaintiff could not recover. The verdict was for the defendant and the motion for a new trial was founded on the allegations that the court erred in receiving the evidence offered by the defendant, and in rejecting that offered by the plaintiff respecting the original title of Quieffe and the possession by himself, and that the verdict was against evidence.
    Nye, in support of the motion:
    1. The court erred in admitting the evidence offered by the defendant to controvert plaintiffs title,
    2. They erred in rejecting the evidence offered by the plaintiff to rebut that of the defendant, and to show that Quieffe had no title.
    In support of the first ground, he cited 2 Black. 1259; 2 Phil. Ev. 177; 10 East, 353; 4 Maule & Selw. 347; 4 Barn. & Ald. 401; 2 Saund. 111; 4 Turn. 247; 1 East, 20; 2 Starkie’s Ev. 507; 9 Johns. 167.
    On the second ground, he argued that as no title was shown in any of the parties, the plaintiff should have been allowed to show that Quieffe, under whom Maguet took possession had no title to rebut the evidence given by defendant.
    Yinton, against the motion :
    The motion for a new trial of this case was made upon two grounds, to wit: that the court erred in admitting improper evidence of the defendant to go to the jury, and also in rejecting the plaintiff’s evidence.
    It is believed to be a well-established rule of law “ that the tenant can not dispute the title of his landlord, or of him under whom he claims or admits to hold.”
    Both of the questions made in this case depend for their *decision upon a correct application of this rule. The rule ends with the title of the landlord; and therefore proof of the extinguishment was admissible, as the landlord’s title forms an exception to the rule, or rather does not fall within its principle.
    It was, therefore, competent to the defendant to prove that Devacht’s interest in the land in controversy was at an end before the commencement of this suit. The case of Syburn v. Slade, 4 Term, 682, fully establishes this exception. See also 1 Caine, 190, note n; 4 Johns. 483.
    If the defendant’s testimony was properly admitted, then the plaintiff’s offer to prove that Maguet, the defendant’s witness, or his (Maguet’s) father never had any title to the land, comes directly within the rule insisted upon by plaintiff, for the exclusion of defendant’s testimony.
   By the Court :

Both the plaintiff and defendant, in this case, claim upon a possessory title; neither of them pretend to be invested with the original right. The lessor of the. plaintiff being in possession, made a lease of the lot for one year, and the defendant came into possession under the lease. The plaintiff, therefore, insists upon the benefit of the rule, that a tenant, or person coming in under him, shall not be permitted to dispute the title of the landlord, or set up any objection to the right under which he entered. The defendant answers this position by claiming the benefit of another rule, equally well established, and forming an exception to the general operation of the first, which is, that where the landlord’s title expires subsequent to the demise, the tenant may show that fact to defeat an ejectment by the landlord.

The plaintiff’s counsel do not controvert the existence of the latter rule, but they insist that the evidence does not bring the ease within it; because no right or possession is shown to have been in Maguet. We think otherwise. Maguet was in undisputed possession; Devacht contracted with him for that possession, and entered under him. The possession of Devacht was, therefore, the possession of Maguet, and after his death, Devacht recognized the right, of possession to have been cast upon his son, and again agreed with him to continue it. Parol evidence was properly admissible *to explain the possession of Devacht, when that possession was not connected with any written title. As the possession of Devacht originated in parol, and was terminated by parol, no other evidence could exist to establish the one fact or the other. We conceive that there was no error in admitting the evidence.

The next error complained of, is the rejection of the testimony-offered by the plaintiff by way of rebuttal. Supposing the fact proved that Devacht entered under Maguet and held possession under him, proof that Quieffe had no title could not be admitted, upon the very rule urged by the plaintiff himself. It would be to permit Devacht who held under Maguet to dispute Maguet’s title. If the fact of Devacht holding under Maguet was not proven, then Quieffe’s title was immaterial, because the plaintiff would be entitled to recover in virtue of his own possession. That part of the evidence offered was properly rejected. With respect to the evidence offered of twenty-five years’ possession, that, too, was immaterial, unless intended to establish a possession adverse to that of Maguet, which was not pretended, consequently it was rightly overruled.

It is alleged that as to the fact of the expiration of the estate or interest of Devacht before the suit brought, the jury found .against evidence.

The suit was commenced early in the year 1825. Nearly twelve months before this time, Devacht called upon Maguet to pay rent for the lot which he possessed as an equivalent for Devacht’s possession of the lot No, 59, and notified him that if he did not agree so to pay rent, that Devacht would rent his own lot to some other person. Accordingly, in May, 1824, he resumed the possession of his own lot, thus, by his own act, putting an end to the agreement for the exchange of possession. The law would not permit him, in such a case as this, to violate his part of the agreement, and at the same time enforce it against the other party. He can not be allowed to allege that such was his intention. The jury rightfully inferred that the agreement, and the right under it, was at an end. The motion for a new trial is overruled, and judgment given for the delendant.  