
    *Smoot v. Doe on Demise of Marshall.
    March, 1830.
    (Absent Coalter, J.)
    Landlord and Tenant — Ejectment by Landlord — Evidence in Defence to Action. — Ejectment by M. against S. it appeared, that M. claimed under P. and that M. and S. had stood in relation of landlord and tenant for many years, but S. the tenant before the suit brought had disclaimed to hold under M. Tenant offers evidence, that P. by deed recorded in 1776 let the premises to L. for three lives, that L. in writing, but not by deed, had assigned term to H. and H. had- in like manner assigned term to S. the tenant, with proof that S. had paid rent to M. but without any proof that any of the three lives on which the term depended were yet in existence. Held, such evidence is admissible and proper evidence in defence to the action.
    Ejectment for one hundred and fifty acres of land, brought by Marshall against Smoot in-the circuit court of Eauquier. Smoot filed two bills of exceptions to opinions of the court given at the trial. There was a verdict and judgment for Marshall, from which Smoot appealed to this court.
    I. The first bill of exceptions stated, that Marshall having proved that Smoot had occupied and possessed the premises as his tenant, and paid him an annual rent of forty shillings from the time he has so occupied the same until the 1st January 1819, Smoot’s counsel thereupon moved the court to instruct the jury, that in order to maintain the action it was necessary Marshall should prove notice to Smoot to quit. And the court so held; and Marshall’s counsel admitted it to be right, in the then state of the evidence; but he proceeded to state, that Smoot had before the institution of the suit disclaimed the tenancy he had theretofore held under Marshall, and held adversely to the title of his said lessor, and thus dispensed with notice to quit; and to prove this, he offered a witness to prove, that in a conversation with Smoot twelve months after the ejectment was brought, the witness asked Smoot what was his contention with Marshall? whether when he purchased his lease, he did not purchase for a term of lives? and whether he did not believe the lives had expired? To which Smoot answered, '"'that he had purchased for a term of lives; that he did not know or care, whether the lives had expired or not; Marshall said so; but that was not his contention; he did not believe Marshall had sufficient title, and till he proved it to his satisfaction, he did not intend to give up the premises. Smoot’s counsel objected to this evidence as improper and inadmissible: but the court overruled the objection, and admitted the evidence as proper to be left to the jury; as evidence from which the jury might infer (if it thought such inference just) that Smoot had, before .the institution of the suit, disclaimed to hold as tenant of Marshall, and claimed to hold the premises adversely to him; and the court told the jury, that if the evidence proved this fact to its satisfaction, no notice to Smoot to quit was necessary. Smoot’s counsel excepted.
    IX. The other bill of exceptions stated, that Smoot to sustain the issue on his part, offered in evidence, 1. a deed of lease of lord Fairfax, proprietor of the Northern Neck of Virginia under whom Marshall claimed, to Samuel Luttrell, dated the 1st November 1776, and duly recorded in Fau-quier county court; whereby lord Fairfax leased the laud in question to Luttrell for three lives, namely, for the lives of Luttrell himself, of his wife Dinah, and of his son Daniel, yielding and paying a yearly rent of thirty shillings sterling, with clauses of dis-tiess and re-entry for non-payment of rent or non-performance of covenants, and with divers special covenants, among which was a covenant that Luttrell should not procure or permit any person to occupy or cultivate the land as his sub-tenant for lives, for years or at will, and should not sell or assign his term without the license or consent of lord Fairfax, his heirs or assigns. 2. An instrument of writing, signed but not sealed by Luttrell, purporting to be an assignment by him to Christopher Hitch, of his term for lives in the premises: this instrument bore date the 14th September 1778, and was indorsed on the deed of lease. 3. The will of Christ. Hitch made and admitted to probat in Fau-quier county court in the year 1805, ^'whereby he devised his lease in the land in question, to his three sons, Levin, Flias, and Thomas Hitch. 4. Parol evidence, that Levin Hitch entered and held the premises from 1he death of his father till 1807. 5. An instrument of writing signed but not sealed by Levin Hitch, whereby he assigned all his interest in the lease to the defendant Smoot: this instrument was also indorsed on lord Fairfax’s deed, and bore date the 11th March 1807. 6. Parol evidence that Smoot immediately entered into possession of the premises, and had thenceforth ever since held the same. And lastly, parol evidence to prove, that Smoot had paid the rent of forty shillings (Virginia currency) to Marshall, yearly, down to the 1st January 1819. To all of which evidence, except that last above mentioned, Marshall’s counsel objected as being inadmissible: and the court was of that opinion, and exclude the evidence accordingly. And Smoot’s counsel excepted.
    I. Briggs for the appellant,
    argued, that the evidence of what Smoot had said twelve months after the institution of the ejectment, could afford no x3ro°f of a disclaimer by him of his tenancy under Marshall, before suit brought: the evidence only shewed the point of contention at that time; the ground on which he then relied as his defence against the action, not the point of contention which led to the institution of the action: therefore, the evidence was irrelevant and consequently inadmissible, since it could only tend to perplex and mislead, as it did in fact mislead the jury. 1
    II. He contended, that the evidence of lord Fairfax’s deed of lease to Luttrell for three lives, and the subsequent assignment of his estate by Luttrell to Hitch, and by Hitch’s devisee to Smoot, and the parol evidence that Hitch, and his devisee,- and Smoot, had successively entered and held under the deed of lease, and under the successive assignments thereof, were improperly excluded. Marshall could only recover by the strength of his own title. He claimed title under lord Fairfax. Here was a lease of lord ^Fairfax for three lives, produced by Smoot, plainly
    evincing that lord Fairfax himself had title only to the reversion expectant on the three lives, and consequently, that Marshall claiming under him could be entitled to nothing else. And whatever Smoot’s rights were, this evidence was sufficient proof, that Marshall had no right, unless he could shew on his part, that the lives had expired.
    Leigh, for the appellee,
    said, I. That the objection taken to the evidence of Smoot’s disclaimer of tenancy under Marshall before suit brought, and consequent waiver of notice to quit, was, in truth, an objection to the sufficiency of evidence, not to its competency: that the question as to its competency, depended on the single consideration, whether a party to a suit, in a conversation after suit brought, can disclose, not whether he in fact disclosed, the point of contention prior to the suit, out of which it originated. Smoot was asked, what was the contention between him and Marshall? that is, what was the point of controversy between them? He said, the contention on his part, was a denial of Marshall’s title. Now, whether or no this related tp the point of contention pre-existing the suit and out of which it grew, whether or no it was an avowal of a disclaimer of tenancy under Marshall before the suit was brought, was matter of inference from the evidence, and rightly left to the jury.
    II. As to the other point, he said Smoot, clearly, did not shew any legal title in himself to Luttrell’s lease for three lives. He exhibited a deed of lord Fairfax, and a parol assignment of the lease for lives, from Luttrell to Crist. Hitch, and another parol assignment from one of three devisees of Hitch, to himself; assignments, which if made by deed, had been contrary to the covenants of the deed of lease; parol assignments, which by law could not pass the title; for by express statutory provisions, such title could only be conveyed by deed. 1748, ch. 1, '$ 1, 5 Hen. stat. at large, 408; 1 Rev. Code, ch. 99, § 1, p. 361; Smoot *then was setting up an outstanding estate in Luttrell for three lives, granted him half a century ago, without offering any proof, that either of the lives was in existence. He insisted, that if a defendant in ejectment may set up an outstanding title in a third person, in bar of the plaintiff’s action, he must shew the title, and shew that it is outstanding and existing. Adams on eject. 285, 6.
    He observed, that Marshall’s title or claim of title was not stated in the bill of exceptions: we were only informed, generally, that he claimed under lord Fairfax, and that Smoot had paid him rent for several years down.to the 1st January 1819; that is, that the parties stood in the relation of landlord and tenant. Now, that relation between the parties being established and admitted, it was not competent to the tenant to deny the landlord’s title, and put him upon proof of it, though he might have proved^ if he could, that the landlord’s right had expired. Driver v. Laurence, 2 W. Black. 1259; England v. Slade, 4 T. R. 682. And the circumstance of the tenant having disclaimed tenancy under his landlord, ought not to vary the case; for if it were allowed to do so, the tenants would have it in their power, at all times, by simply disclaiming tenancy, to put their landlords on proof of title, and avail themselves of every flaw or defect in the title.
    
      
      Landlord and Tenant. — S'ee generally, mono-graphic note on “Landlord and Tenant” appended to Mason v. Moyers, 2 Roh. 606.
      Ejectment. — See generally, monographic note on “Ejectment” appended to Tapscott v. Cobbs, 11 Gratt. 172.
    
   GREEN, J.

The law in respect to notice to quit was correctly laid down by the court as stated in the first exception. But I strongly incline to think, that the evidence allowed to go to the jurjr, as tending to prove the fact of the defendant’s disclaimer of his tenancy before the institution of the suit, had no such tendency, and ought therefore to have been rejected as irrelevant. But in this, I submit to the better judgment of my brethren.

The ground upon which the evidence offered by the defendant, mentioned in the second exception, was rejected, is not stated. If it was that a tenant cannot set up against his landlord in ejectment, an adversary title in a stranger, *the principle of law, although true, was misapplied. The title set up here was a lease for lives, duly recorded, from lord Fairfax, under whom the lessor of the plaintiff claimed, to one under whom the tenant claimed, the validity of which the lessor of the plaintiff had admitted by the regular annual receipt of the rents stipulated by the lease, from the defendant, and those under whom he claimed, down to a period of 2 months before the institution of the suit. If the evidence was rejected, because the assignment of the lease under which the defendant claimed, not being by deed, did not pass the legal title to the freehold estate created by the lease, and so the defendant was setting up against his landlord a title in Luttrell, the lessee for lives, or his representatives, the answer is, that if the defendant had not the legal title, yet Luttrell was a stranger neither to the lessor of the plaintiff, nor the defendant. The latter being in possession with the assent of Luttrell, had the legal title under the lease, as his tenant at will or at sufferance, and so claimed under him, and that with the assent of the landlord, which was necessary according to the terms of the lease; and such a possession he had a right to maintain against the landlord, without violating any rule of law, as long as the lease continued. If the objection was, that the defendant was in possession, by the authority of one only of three tenants in common or joint tenant, neither was that a valid objection; for that permission gave him a right to hold in common or jointly with the others, and exclusively against all the world except those others. Upon this exception, I think the judgment should be reversed.

The other judges concurring on the last point, the judgment was reversed, and the cause remanded to the circuit court for a new trial.  