
    Vernam against Smith.
    In an action to recover rent alleged to be due by the defendant’s agreement contained in a written lease not under seal, the defendant is estopped from disputing his lessor’s title, where his answer discloses the feet that he had entered upon and enjoyed the demised premises, although the plaintiff counts upon the contract and not upon lease and occupation.
    
      The agreement implied by the demise that the lessee shall quietly enjoy the premises, is a sufficient consideration for the agreement by the latter to pay rent.
    Whether a denial of the lessor’s title would now be a good defence to his claim for rent, under the lessee’s agreement to pay it, in an unsealed lease although he had not entered upon the demised premises, but might have done so. Quere. 4
    The recovery against the tenant of judgment, in an action of ejectment for the demised premises, which was commenced before any rent became due, and was defended by the lessor, is no defence to the lessor’s claim for rent becoming due before such judgment. Even an eviction is no answer to the claim for rent which has become due.
    The action was commenced in the Superior Court of Buffalo, to recover one year’s rent of certain premises in that city, under a demise in writing, from the plaintiff to the defendant, for the term of two years from May 1, 1855, to May 1, 1857. The plaintiff claimed to recover for the rent of the first year; and the complaint alleged that the letting was by a lease or agreement in writing, by which the plaintiff leased the premises to the defendant and the latter agreed to pay the rent, $275 per annum, quarterly. The lease was not stated to be under seal, and it was not alleged that the defendant had " entered into possession. The defendant, by his answer, introduced two defences, separately : First. That the plaintiff, at the time of making the lease, represented that he was the owner of the premises and entitled to make the lease, but that in fact he was not the owner of any estate or interest therein; but the premises were owned by other persons “ to whom the defendant was liable for the use and occupation thereof,” and that no estate or interest vested in the defendant, by means of the lease. Secondly. That the lease contained an agreement for quiet enjoyment, and that shortly after the defendant entered into possession, and on the 1st day of June, 1855, one W. W. sued the defendant in ejectment for the premises, that the action was defended by and in behalf of the plaintiff, and such proceedings were had that on the 10th of May, 1856, the plaintiff in the ejectment suit recovered judgment for the possession with costs; that W. W. claims and has demanded of the defendant the value of the mesne profits, which are equal to the rent which would have been payable to the plaintiff. The defendant claims that he has sustained damages by the failure of the plaintiff’s title, to $500,-which he claims to recover in this action.
    The plaintiff demurred to the answer, and the court gave judgment in his favor for the year’s rent claimed, which judgment was affirmed at a general term. The defendant appealed here, and the case was submitted on printed argu-
    
      R. B. Stout, for the appellant.
    
      Asher P. Nichols, for the respondent, oooos
   Denio, C. J.

It was a good plea, at common law, in an action of debt for rent, by virtue of a parol demise, or upon a lease not under the seal of the lessee, that the plaintiff had nothing in the tenements at the time of the lease; (Co. Litt. by Thomas, 415; Syllivan v. Stradling, 2 Wils., 217); and the reason of this is, according to Lord Coke, that “ in every contract there must be quid pro quo, and therefore, if the lessor hath nothing in the land, the lessee hath not quid pro quo, nor anything for which he should pay a rent.” If the lease be made by deed indented, then both parties are concluded, and this plea cannot be interposed. The lessee in that case is bound by a technical estoppel, by deed, to deny that the term passed by the lease. Further exceptions to the rule of the common law, have been created by the modern doctrine of equitable estoppeb arising out of circumstances unconnected with a deed. Thus, it has been very often decided that in debt or assumpsit for use and occupation, the defendant cannot deny the title of the lessor. (Lewis, v. Willis, 1 Wils., 314; Cooke v.Loxley, 5 Term R., 4; Phipps v. Schulthorpe, 1 Barn, & Aid. 50; Fleming v. Gooding, 10 Bing., 549; Dolby v. 11 Adolph. & Ellis, 335: Curtis v. Spitty, 1 Bing. N. C., 15; Agar v. Young, 1 Carr, Marsh., 78.) The action for the use and occupation is given by statute, and it arises where there has been an enjoyment by the defendant of the plaintiff’s lands or tenements, under a demise or agreement not made by deed. (Stat. 11 Geo. II, ch. 19, § 14; 1 R. S., 748 § 26.) The statutes do not declare that the defendant in this action shall be precluded from pleading nil habuit in tenementis; but inasmuch as the action is given for the use and occupation, which presupposes an entry and enjoyment of the premises, the courts have constantly held that the defendant was estopped from showing that the lessor was not the owner of the land. The judges have applied the equitable principles referred to in the construction of the statute. “ I cannot help thinking,” said Lord Chief Justice Willes, “ but that they (the legislature), intended 'to take away the plea of nil habuit, fyc., as if they had said, after the tenant has enjoyed the land by a demise or permission of the landlord, he shall not be permitted to pry into they title, and pick holes in settlements and wills.” (Syllivan v. Stradling, supra.) Lord Kenyon, in Cooke v. Loxley, said that the rule precluding the tenant in this class of actions from contesting the title of the landlord, was not a mere technical rule, but one founded in public convenience and policy.

But the defendant’s counsel argues that the present is not an action for use and occupation, but one foupded upon the express contract of the defendant, and if maintainable at all, it is upon facts irrespective of any occupation and enjoyment of the premises; and if the complaint alone be examined the position is correct. No entry or occupation is alleged, but only a demise, and an agreement by the defendant to pay the rent, contained in a writing not under seal. If the defendant in his answer had confined himself to a denial that the plaintiff, at the time of the demise, had any estate in the premises, the question would be presented whether the ancient rule of the common law, to which I have referred, prevails at this day. There would not be much appearance of justice in holding that where one has taken a written lease of premises and agreed to pay the rent, but has not thought proper to avail himself of the right he had thus contracted for by going into possession, when he might have done so without hindrance from any one, he can defend against his engagement by showing that there was a defect in the lessor’s title, and that he was not really seized of the ° land. If he take possession and be evicted by paramount title, his defence is clear, and he has an ample remedy upon the implied contract for quiet enjoyment. In one of the cases in which it was held that, in debt for use and occupation, the defendant could not question the landlord’s title, Chief Justice Tiktdal said that in debt for rent where the plaintiff alleges a demise “it is some semblance of an answer to say that the plaintiff had nothing in the premises.” It is not necessary for us to decide in this case whether such a plea could now be sustained,, for the defendant admits in his pleading that he took possession of the demised premises, and enjoyed them during the first year of the term. He objects to paying the rent from an apprehension that some other person, in whom he supposes the title to be, will recover from him the value of the use and occupation. He has thus voluntarily shown the fact of occupation which the plaintiff omitted to state, and which precludes him from making an issue upon the plaintiff’s title. If there is any other party who has an apparent claim for the use of the premises, the defendant could have avoided the danger of being compelled to make a double payment by bringing an action in the nature of a bill of interpleader. The following cases, in addition to those already referred to, support the position that the defendant cannot under the circumstances disclosed, raise an issue upon the plaintiff’s title: (Ronnie v. Robinson, 1 Bing., 147; Doe v. Wiggins, 4 Adolph. & Ellis N. S., 367; Hall v. Butler, 10 Adolph. & Ellis, 204; Brown v. Sprague, 5 Denio, 545; Doe v. Lady Smythe, 4 Maul, & Sel., 347; Pope v. Biggs, 9 Barn. & Cres., 245; Sharpe v. Kelley, 5 Denio, 431.)

Another aspect in which the defence is presented by the defendant’s argument is, that upon the facts admitted by the demurrer, the defendant’s undertaking to pay the rent was without consideration. The agreement by the plaintiff that the defendant should quietly enjoy the premises, which is implied in the fact of a demise, would be a sufficient answer to his objection, if there had been no actual occupation. ( The Mayor of New-York v. Mabic, 3 Kern., 151; Whitney v. Lewis, 21 Wend., 131.)

The second defence set up in the answer is clearly insufficient. No eviction is shown; but if it had been, it would have been no answer to the claim for the first year’s rent, the answer conceding that during that year the defendant occupied without disturbance. ( Giles v. Comstock, 4 Comst., 270.)

The judgment must be affirmed, aaoe

Brown, J.

I do not think this case falls within the rule that a tenant cannot dispute the right of his landlord, either in an action to recover possession of the demised premises, or for the rent in arrear. The lease referred to in the complaint is not said to be an indenture, executed by both parties, but is simply said to be in writing, and must therefore be taken to be a parol demise. Neither is it said that the defendant entered into possession and held under the demise. In the absence of a deed executed by both parties, or an actual entry, the relation of landlord and tenant did not strictly exist.

The demise was for the term of two years, by writing not under seal, reserving rent, payable quarterly, which the defendant promised to pay. An agreement for quiet enjoy ment is to be implied from the terms of the lease, upon the authority of the case of The Mayor of New-York v. Mabic (3 Kern., 151), and Tone v. Brace (11 Paige, 566). The agreement for quiet enjoyment and that to pay the.rent, were entirely independent of each other, and the former was a good consideration for the latter.

The first count or allegation of the defendant’s answer sets up as a defence the plaintiff’s want- of any interest or estate in the demised premises, and that no estate, term or interest passed to, or became vested in the defendant by virtue of the lease. This is an insufficient ground of defence upon the authority of Whitney v. Lewis (21 Wend., 131), which was an action upon a bond, given for the purchase money for lands sold by the obligee to the obligor, with a covenant in the deed for quiet enjoyment. The defendant pleaded that the plaintiff had no title to the land conveyed, and no right to convey, and that there was no consideration for the bond. The plea was held bad upon demurrer, upon the ground that the covenant for quiet enjoyment was a sufficient consideration for the bond.

The second allegation in the answer sets out as a defence the recovery of a judgment by one William Williams, plaintiff, against Charles W. Smith, the defendant in this action, in the Superior Court of the City of Buffalo, in an action to recover possession of the demised premises, which judgment was rendered on or about the 10th day of May, 1856. The term commenced on the 1st day of May, 1855, and the action was brought on the 3d day of May, 1856, to recover one year’s rent then in arrear. It is not said upon what title Williams obtained his judgment, nor is it alleged that the defendant has been evicted, or deprived of the possession. In pleading an eviction, the plea must state an eviction or expulsion of the tenant from the demised premises, and the keeping him out of possession until after the rent became due; otherwise it is bad. (1 Saunders, 204, note 2.) The answer fails to furnish any of the essential requisites.

The-judgment upon the demurrer should be affirmed.

All the other judges concurring,

Judgment affirmed.  