
    Lane’s lessee vs. Osment.
    If the landlord suffers the time prescribed by the act of limitations to run out, after his tenant has disclaimed by purchasing an adverse title, and claim'* ingunderit, or by any other disclaimer of tenure, with the knowledge of the landlord, the title of the landlord will be barred by the act of limitations.
    Such disclaimer, on the part of the tenant, or those claiming under him, with the* knowledge of the landlord, operates as a forfeiture of the term, and the tenant’s possession becomes so far adverse, that the act of limitations ywll begin to run in his favor from the time of such forfeiture.
    But the tenant can, in no case, contest or dispute the title of his landlord, within the period necessary to form a bar by the statute of limitations. Until the statute has formed a bar, the possession of the tenant, or those who claim under him, with or without notice of the landlord’s right, is the possession of the landlord, and they will be estopped from denyiug his title.
    Where a tenant has forfeited liis term, his landlord may maintain ejectment against him, without giving him notice to quit.
    Ejectment from Wilson county. In 1827, Joseph B. Chance obtained from the State a grant for the lands in dispute, which in that year he sold to Wyatt H. Scott, and executed to him a bond for the title. At this time the land was wood land and supposed vacant. In 1829, Scott compienced building a cabin, but before he went into possession, he took a lease in writing, for five years, from the lessor of the plaintiff, and went into possession under it, saying however, after he had signed the lease, and in the absence of Lane, if Chance would nqt agree to the lease, he would ylaim under his purchase. He afterwards, during the lease, took from Chance a deed in' fee, and conveyed by deed in fee to Thomas Green, who, in the same manner conveyed to defendant. The lessor of the plaintiff showed no title, other than the lease from himself to Scott.
    The circuit court charged the jury, that if they believed a written agreement was entered into between Owen Lane and Wyat H. Scott, by which Lane leased to Scott the land in dispute for five years, that would make Scott a tenant to Lane; and if the suit was against him, he would be estopped from denying Lane’s title. But if Scott, who took this lease from Lane, conveyed to Green, and Green conveyed to the defendant, then, whether the defendant who claims in this way would be estopped to deny Lane’s title, would depend upon the fact, whether he purchased and took session under a deed, purporting to convey' a fee simple* without notice of the lease, which had been given by Lane to Scott, if so, he would not be estopped Jrom denying Lane’s title. But if he had notice of the lease, when he purchased and took possession, then he would be estopped. In that case you ought to find for the plaintiff, although he shows no title except the written Casé to Scott, but if he had no notice, you ought to find for the defendant.
    The jury found a verdict for the defendant, upon which judgment was rendered.
    
      William Yerger, for plaintiff in error, insisted,
    1. That the judge did not in his charge to the jury, state the law correctly. He contended, that Scott was Lane’s tenant, and that neither he, nor those claiming under him by deed in fee simple, whether with ot without notice, could dispute Lane’s title, without first Surrendering the possession. He cited and commented on, 4 Hay. Rep. 158, 207: 5 Hay. Rep. 101: 2 Mass. Rep. 177: Adamson Eject. (Til-lingham’s ed.) 30, 31, 54, 57, 247, and notes: 3 John. Rep. 223, 499: 4 Do. 163, 202: 7 Term Rep. 488: 4 Ser. & Rawl. 467, 470: 2 Dev. Rep. 177: 1 Cowen’s Rep. 123: 7 Cowens Rep. 323: Marley vs. Rogers, 6 Yerg. Rep. 217: Wilson vs. Smith, T. 5 Yerg. Rep. 397* 398: Duke’s lessee vs. Harper, 6 Yerg. Rep. 280.
    He admitted, that if a tenant deprived his landlord, or disclaimed his title by selling to a third person, who claimed adversely to the landlord’s title, and the landlord with full notice of these facts, permitted him to remain in possession seven years after such notice, that the act of limitations would bar the landlord’s recovery; but if the landlord sued within the seven years, he could recover, and the tenant, and those claiming under him, in such case, was estopped from denying his title. He cited on this point, Duke’s leésee vs. Harpéf, 6 Yerg. Rep. 280.
    
      
      R. M. Burton, for defendant in error.
    The plaintiff must recover upon his own title, and not on the weakness of his adversary’s title. He has shown no title to the land in dispute. Can the mere fact of a lease give title where none existed before?
    At the very time that it is pretended that Scott took a lease from Lane, he (Scott) was then a tenant cf Chance’s, and had bound himself to deliver up possession to Chance by the first day of January, 1833. If it is the law, that Scott could not disclaim Lane as his landlord, could he, on the same principle, deprive Chance of the benefit of his possession, and of the tenancy, through him to Scott?
    The facts, in this case, show that Scott became the tenant, or accepted the lease from Lane, provided Chance, who was absent, would on his return agree to the lease. It further appears in evidence, that Chance, who was absent from home at the the time that Lane gave the lease, did not, on his return home, recognize Lane’s right to make a lease. Scott then disclaimed being Lane’s tenant, and Lane was in possession of that fact. Lane endeavored to get another tenant in possession while Green lived on the land, which shows he no longer considered Scott as his tenant.
    Scott claimed the land by deed from Chance, dated the 14th Nov. 1729, which was duly registered; this was notice to Lane that he disclaimed him as his landlord, about six years before Lane brought suit.
    Scott conveyed by deed to Green, dated 9th January, 1830, and Green to defendant, by deed dated the 29th of November, 1832: which deeds were duly registered.
    Suppose Scott to have leased of Lane, and found he had no title, could he not have acquired a fee simple estate in himself, by purchase from the lawful owner?
    But the facts show that Scott was to become the tenant of Lane, on conditions which subsequently failed. It is not to write a paper, with a certain set form of words, that make a lease; it is possession with it. Upon what terms, then, was this possession of Scott’s to be the possession of Lane? Upon condition that Chance, on his return, would agree to it; these conditions Lane accepted.
    
      It perhaps will not be disputed, but that a tenant has lawful right to disclaim his tenancy, or to change the character of his possession, upon giving his landlord notice. In this case, Lane had notice.
    The defendant did not become the purchaser in fee from a tenant in possession, under a lease, as is presupposed in the charge delivered in this case, but purchased of Green, claiming the fee, and he of Scott, claiming a like estate.
    Suppose the judge in the court below, to have misdirected the jury as to the notice to the defendant of the plaintiff’s lease, in order to affect his title; yet enough is shown in the record to authorize a finding for the defendant, independant of that consideration. It is essential, that the misdirection of the judge should materially affect the verdict. 10 John. Rep. 447: 5 Do. 479: 5 Mass. Rep. 487.
    ' When it is apparent that the plaintiff has no title to the land, would the court deprive the defendant of his possession, and put him to the expense or inconvenience of ejecting the plaintiff on the ground of his better title, if his better title would enable the present defendant, when made plaintiff, to prevail; why not that title protect his possession?
    
      J. S'. Yerger, in reply,
    Commented very fully upon the authorities cited by the opening counsel, and insisted upon their direct and immediate application to the case.
   Reese, J.

delivered the opinion of the court.

On the trial the circuit court charged the jury correctly, except that they were told that if the defendant had no notice of the lease, he would not be concluded by it from insisting upon his title, and might, though deriving his possession from a tenant of the plaintiff, retain it against him without surrendering it to him. This distinction, which we consider not well founded, probably arose in the mind of the court from a misapplication of the doctrine established with reference to the facts and circumstances, as between landlord and tenant, and those claiming the possession from the latter, which will protect them as against the landlord by operation of the statute of limitations. We do not mean to say that the notion of notice in such case would have any proper applica-^011} £or tjie par 0f ⅛6 statute, as between landlord and those claiming in fee under the tenant, will arise, not from .the want df notice, and of the tenancy, on the part of defendant, but from the notorious character of his adverse and .exclusive holding. In the case of Wilbrow vs. Watkins, 3 Peters, alluded to and re-affirmed in Person vs.' Smith, that court declared the law to be settled, that a purchase by a tenant of an adverse title, claiming under or attorning to it, or any other disclaimer of tenure, with the knowledge of the landlord, was a forfeiture of his term; that his possession became so far adverse, that the act of limitations would begin to run in his favor from the time of such forfeiture, and the landlord could sustain an 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; 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 which the statute' has to run. If the landlord under such circumstances, suffers the time prescribed by the statute of limitations to run out, and without making an entry, or bringing a suit, each party may stand upon their right; but until then, the possession of the tenant is the possession of the landlord. The same doctrine is by many cases extended to those who claim under the tenant, as well in fee as by sub-lease. See 4 Hay. Rep. 158, 257: 5 Hay. 101: 2 Hay. 177: Adams on Ejectment, 30, 31, 54, 57, 247: 3 John. Rep. 223, 491: 4 Do. 163, 202: 4 Serg. and Rawle, 467, 470: 1 Cow. Rep. 575: 5 Cow. 123: 7 Cowen, 323: 5 Yerg. 217, 397, 398, &c. Duke vs. Harper, 6 Yerg. 280.

Since this cause was first before the court, it has again been brought under our consideration, and pressed with much zaal and or’'‘Osiness by the counsel for the defendant; but we think the principles applicable to the case, well settled. Let the judgment bo reversed, and the case be tried again in the circuit court, where the law will be charged as in this opinion.

Judgment reversed.  