
    Duke vs. Harper.
    A parol lease for two years is not a binding contract; but where the ten-an|. ontered antj held the premises, it was held, a tenancy at will or from year to year.
    A tenant may forfeit his own right of possession by openly and notoriously disclaiming the title under which he entered. In such case' he becomes a trespasser, and his landlord may ejoct him without notice to quit the premises.
    Although a tenant may disclaim, and thus forfeit his right of possession, yet he cannot, during the term, by such disclaimer or by adversely holding for another, resist a recovery by his landlord.
    But where there is a disclaimer known to the landlord, or actual ouster of the landlord by the tenant, the possession will be adverse from such actual ouster, or from the time the landlord acquired a knowledge of such disclaimer. And if the landlord permit the tenant to hold without suit brought for seven years from such ouster or knowledge of disclaimer, his right will be barred; but the tenant can set up no claim or outstanding title during the time the statute has to run.
    Where there has been a disclaimer and a length of possession greatly exceeding the time required by the act of limitations, notice to the landlord or an actual ouster may be presumed; but where length of time furnishes no such presumption, actual knowledge of the disclaimer is necessary.
    A demand of possession and refusal, on the ground that the tenant held adversely, is evidence of actual ouster.
    A refusal to pay rent to a person who was not authorized to enter upon the land, or sue for it in the landlord’s name, is not evidence of an actual ouster, unless the landlord had actual knowledge of the transaction.
    This is an ejectment brought in the circuit court of Montgomery, against the defendant, on the 29th of December, 1829. The facts are as follows: The lessor of the plaintiff introduced and read a grant from North Carolina, for one thousand acres of land, to Philip Whitsett; he also read a deed from Simpson Harris to the plaintiff, for two hundred and fifty acres, dated 25th August, 1803. Plaintiff proved by Absalom Tribble that this grant and deed covered the land in question, and that defendant, Harper, occupied the same at the commencement of the suit, Plaintiff proved by same witness, that he went to the State of Mississippi to reside in 1821; that previous to his going he rented the premises by parol to Harper for two years; witness also stated that plaintiff gave him a power of attorney to receive the rent from Harper, and rent out the land again; that in the fall of 1822 he called on Harper for the rent; Harper refused to pay him, told him he had accepted a lease from Burton, under whom the defendant claims, and that he would have nothing to do with Duke. Plaintiff also proved that he had taken possession of the land as early as 1803 or 1804, and continued the possession up to the time when he rented to Harper. Plaintiff proved by William Trotter, a surveyor, that he had surveyed the Whitsett grant, under which the plaintiff'claims, and the Archer grant, under which the defendant claims, and that there was an interference of about one hundred and four acres, and that the defendant occupied about four acres which was covered by the plaintiff’s grant and not covered by the defendant’s grant. Plaintiff also proved by" Harper, the tenant in possession, that he rented the place of Duke in 1821, for two years by parol, and took possession in March, 1821. That in February, 1822, after survey of the land he took a written lease from Burton for the premises in question. From that time he disclaimed Duke’s title; refused to pay rent to Tribble, Duke’s agent to receive the rent, and paid rent uniformly to Burton, and to Trotter, to whom Burton sold. Plaintiff proved demand of the possession from Harper on the 25th of December, 1827. The defendant read a grant from North Carolina, older than the Whitsett grant to Baker Archer, for six hundred and forty acres of land, including the land in question, also a deed for the same from Archer to Hardy Murfree, a copy of the partition of the lands of Hardy Murfree among his heirs at law, which showed that this land was allotted to his daughter, Lavinia, and proved that sai(J Lavinia married F. N. W. Burton. Defendant also produced a conveyance of the lands in question, from Burton and wife to Leonard Henderson, and a -re-convey-anee from Henderson to Burton, also a deed of the land from Burton to Isham Trotter, and the will of said Isham, devising the land to the present defendant. Defendant proved that Harper, in the fall of 1822, refused to pay rent to Duké’s agent, and disclaimed Duke’s title. He aipo proved that the land in question was within the bounds of Baker Archer’s grant, and of Burton’s deed, except about four acres. The jury found a verdict for the defendant. The court charged the jury “that if Harper disclaimed the title of Duke and renounced bold-ing under him, and seven years afterwards elapsed before Duke brought suit, the statute of limitations would bar his recovery.” The plaintiff excepted to this part of the charge and appealed to this court. The counsel for the defendant requested the court to charge, that if the plaintiff regarded the defendant as his tenant, he could not sue, • without giving him six months notice to quit. But the court refused so to charge and the defendant excepted thereto.
    
      W. E. Anderson, for the plaintiff in error.
    1st. It is admitted by the plaintiff in error, that a lease for two years is void by the act of 1801, ch. 25, unless it be in writing. Yet if the tenant enters and holds the premises under the contract, the relation of landlord and tenant exists, and it is a tenancy at will or from year to year. Van-derberg’s lessee vs. Bradt, 2 Caine’s Rep. 169: 1 John. Rep. 322: 1 Wilson’s Rep. 176: 4 Haywood’s Rep. 158: 5 Haywood’s Rep. 101. And the possession of a tenant at will or from year to year, is the possession of him under whom he entered. Young’s lessee vs. Ellis, 13 John. Rep. 118, a: 3 John. Rep. 223, 499.
    2d. A person who has entered into possession under another, and thereby acknowledged his title, cannot dispute it or set up an outstanding title in a third person. 5 Term Reports, 4: 7 Wheaton’s Rep. 535: Wilson vs. Smith, T, 5 Yerger’s Rep. 379: 6 John. Rep. 34: 7 JohrrTRep. 157, 186: 1 Caine’s Rep. 144: 2 Caine’s Rep. 215: 10 John. Rep. 292.
    3d. Should it be held that where there is an actual ouster, or a disclaimer made with the knowledge of the landlord, the statute of limitations would be a bar; this knowledge on the part of the landlord, did not exist in the present case for seven years before the suit was brought, which is absolutely necessary. 3 Peter’s- Rep. 47. As to what amounts to an actual ouster, vide Burrows’ Rep. 2604: Fisher vs. Prosper, Cowper, 217: Hellings vs. Bird, 11 East, 49. *
    4th. A denial of the landlord’s right, or a refusal to pay rent to a person who was not authorized to enter upon the land, or to sue for it in the landlord’s name, is not evidence of an actual ouster. Vide authorities last cited.
    5th. A disclaimer by the tenant dispenses with the necessity of a notice to quit. Locksell’s lessee vs. Wheeler, 6 John. Rep. 272: Adams on Ejectment, 55.
    
      Clayton and G. S. Yerger, for the defendants in error.
    1st. Although as a general rule a tenant cannot dispute his landlord’s title, or set up an outstanding title in a third person to defeat the landlord’s title; yet, where there is an actual ouster or a disclaimer the tenant’s possession becomes adverse, and if seven years elapse from the time of such disclaimer, the landlord’s title will be barred by the act of limitations. Willison vs. Watkins, 3 Peters’ Rep. 47: Peyton vs. Stith, 5 Peters’ Rep. 491.
    2d. It is insisted, that the act of limitations cannot bar until seven years from the time the landlord has notice of the disclaimer. Notice to the agent is notice to the principal; and the refusal of the tenant to pay rent to Tribble, and to acknowledge Duke as his landlord, amounted to an actual ouster and put an end to the tenancy. Doe vs Prosper, Cowper, 217: Doe vs. Bird, 11 East, 49: A . -p- , ’ ,r Adams on Ejectment, 56.
    3d. If the plaintiff proceeded against the defendant as his tenant, a notice to quit the premises was necessary. Adams on Ejectment, 103: 1 John. Rep. 322 : 7 John. Rep. 1: 8 East, 165: 3 Marshall’s Kentucky Reports, 18. And the demise should have been subsequent to the notice. Jackson vs. Wheeler, 6 John. Rep. 272.
   Catron, Ch. J.

delivered the opinion of the court.

In February, 1822, Harper took a lease from Burton, and proves he disclaimed Duke’s title. But Duke resided in Mississippi and had no notice of this disclaimer. Tribble, in the fall of 1822, was authorized by Duke to receive the rent from Harper for the year I822, and at the commencement of 1823, rent the premises. Harper refused to pay the rent, and informed Tribble he disclaimed Duke’s title. There is no evidence Tribble informed Duke of the fact. Tribble’s agency did not extend to any control of the premises until 1st January, 1823. Duke could have no idea of the lease taken from Burton, and the adversary holding of Harper, until informed of the fact. The strongest presumption was the contrary.

To obviate these objections, it is insisted Harper was not the tenant of Duke. Duke rented to Harper by parol for two years, the term to expire with the year 1822. As a binding contract, this lease for two years was void, but still Harper went in under Duke, and was the tenant at will or from year to year of the latter. . This is the condition of all who hold without any special contract with the landlord as to time. Such is the settled law of England, (Warren vs. Fearnside, 1 Wil. 176,) and of this State. Phillips’ lessee vs. Robertson, 4 Haywood, 158: Same case, 5 Hay. Rep. 101. Harper then stood in the relation to Duke, as if he rented the premises for the year 1822. Could he, thus holding, disclaim Duke’s title, and oust bis own possession for Duke? He could forfeit his own right oi possession and title, by openly and notoriously disclaiming the title under which he entered, and thereby become a trespasser as to Duke, who had the right to treat him as such, and eject him, without notice to quit the premises. Fisher vs. Prosper, Cowp. 217: Runnington on Ejectment, 192-3: Adam's Ejectment, 55.

But what act of the tenant shall be evidence of a holding adverse to his landlord, and which will give effect to the act of limitations, destructive of the landlord’s title, is a question of great delicacy, and yet greater importance to a country circumstanced as this is. The tenant cannot, during the term, when holding by force of a written contract, or when holding from year to year, rightfully disclaim the landlord’s title. He is estopped by the contract. 5 Term Rep. 4: 7 Wheaton, 535: 3 Peters’ 47: 4 Haywood, 158: Wilson vs. Smith T. 5 Yerger’s Reports, 379.

In an ejectment by the landlord against the tenant, the controversy rests upon the privity existing between the parties. If the tenancy be proved, the plaintiff is entitled to recover, because the defendant is estopped by contract to say the plaintiff has no title. Adams’ Ejectment, 276.

Estoppels are mutual, (4 Com. Dig. A. 2,) and therefore the tenant may defend himself, or eject the landlord, if need be, on the contract, without showing further title. Neither can he at his pleasure put an end to the contract, yet if the tenant disavows the title of the landlord, and claims to hold for himself, or for another, he forfeits his lease and title, and may be proceeded against as a trespasser by an action of ejectment: but this is at the election of the landlord, who may still treat him as tenant if he prefers it. If, after such forfeiture, the tenant hold out the landlord attempting to enter, this amounts to “an actual ouster,” places the tenant in the condition of an adversary to his lessor, and is such a trespass against him, as to create an adverse holding on part of the lessee; by force of which, the statute of limitations will commence its operation, to confirm the adverse claim set up by the tenant. Cowp. Rep. 217: 3 Peters’ Rep. 47: 5 Peters’ 491: Adams’ Ejectment, 55-6.

Ad.ams informs us, some ambiguity seems formerly to have prevailed as to the meaning of the word, actual ouster, as though it signified some act accompanied by real force, (Burrows, 2604,) but it is now clear, that an actual ouster may be inferred from circumstances, which circumstances are matter of evidence to be left to the jury. Thus, thirty-six years sole and uninterrupted possession by one tenant in common, without any account to, demand made, or claim set up, by his companion, was held to be sufficient ground for the jury to presume an actual ouster of the co-tenant, and they did so presume. Fisher vs. Prosper, Cowp. 217.

It was holden by the Supreme Court of the United States, in Payton vs. Smith, (5 Peters, 491,) as the settled law, that a purchase by a tenant of an adverse title, claiming under, and attorning to it, or any other disclaimer of tenure, with the knowledge of the landlord, was a forfeiture of his term; that this possession became so far adverse that the act of limitations could begin to run in his favor from the time of such forfeiture; and the landlord could sustain ejectment against him without notice to quit at any time before the period prescribed by the statute had expired by the mere force of the tenure, without any other evidence than proof of the tenancy: but that the tenant could in no case contest the right of his landlord to possession, or defend himself by any claim or title adverse to him, during the time the statute has to run. If the landlord suffers it to run out, without bringing suit, each party may stand upon their rights; but until then, the possesion of the tenant is the possession of the landlord. The principles assumed meet our entire approbation.

The same court held, in Willison vs. Watkins, 3 Peters, 47, that from a length of possession greatly more than to form the bar, without claim on part of the landlord, and a notorious holding for himself under a different title by the tenant, notice to the former, and an actual ouster, might be presumed by the jury.

But where length of time does not furnish evidence of ouster, (as in this cause it does not) actual knowledge for seven years must be distinctly proved by the defendant on the lessor of the plaintiff, that the tenant claimed for himself or for another. 14 Vin. Ab. 512: Adams, 56.

A demand of possession, and a refusal on the ground that the,tenant held adversely, is sufficient evidence of actual ouster. Hellings vs. Bird, 11 East 49. But this information must be given to the landlord, or to his agent authorized to enter upon the premises, or sue for them by reason of the forfeiture; because the landlord must have neglected to sue for seven years. Before knowledge he could not be guilty of neglect. As to him, positive and undoubted knowledge is the date of the ouster, or rather the evidence from which it may be inferred. The privity of the parties being mutual, so must be its severance. It is going far enough to say, Duke was hold-en out so soon as he had knowledge Harper claimed adversely, and that this knowledge was equal to an actual turning out or holding out, on an attempt to enter for the forfeiture. But to hold that the refusal to pay rent to Tribble who had no authority to enter upon the land or sue for it in Duke’s name, is evidence of an actual ouster of Duke, is not warranted by any authority. There being no evidence in the record going to show Duke had actual notice of the adverse holding seven years before he sued; and the court below having charged the jury that the statute commenced its operation from the 16th of February, 1822, the lime Harper took his lease from Burton, which was contrary to the principles above declared to be the law, is erroneous. Therefore the judgment of the circuit court will be reversed, and the cause remanded for another trial.

Judgment reversed.  