
    Joanna Lane, Resp't, v. Peter A. Young et al., App'lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1893.)
    
    1. Landlord and tenant—Estoppel.
    A tenant is estopped to deny the title of his landlord so long as it remains as it was when the tenancy commenced; but he is not estopped from proving that such title has expired' by its own limitation, if it was a limited title, or was aliened by the landlord or extinguished by a paramount title in his lifetime and after entry by the lessee.
    2. Justice’s court—Title to real estate.
    In an action for rent brought by the heir of the lessor, where the tenant disputes that the lessor was the owner at the time of his death, it is necessary for the plaintiff to prove such title in the lessor at the time of his death, and the title to real estate necessarily comes in question, and it is the duty of the justice to dismiss the complaint.
    Appeal by defendants from a judgment of the county court of Cattaraugus county, reversing the judgment of a justice of the peace of the town of Olean.
    
      M. B. Jewell, for app’lts;
    
      EL Donnelly, for resp’t.
   Dwight, P. J.

The action was for rent. Issue was joined in the justice’s court by written pleadings. The complaint alleged that one John S. Lane, in his lifetime, rented the premises to the defendants at a monthly rental which they agreed to pay in ad'Vance, on the first day of each month from Aug. 1, 1889; that on the 3d day of ¡November," 1889, the lessor died intestate, leaving the plaintiff his only heir at Mw; that since his. death the defendants had paid the rent accruing to the plaintiff, except the balance due, for which this actidn was brought. The answer was a general denial, and a plea of payment.

On the trial the plaintiff produced one Cornelius Lane as a witness, who testified that the deceased, John S. Lane, was a son of the plaintiff; that he died ¡November 3, 1889, leaving ho wife or children ; that since his death the witness had collected the rent from the defendants, for the plaintiff; and, under the defendants’ objection, that John S. Lane was the owner of the premises at the time of his death. At this point the defendants gave notice that they disputed that John S. Lane was the owner of the premises at the time of his death, and thereupon moved that the complaint be dismissed on the ground that the title to real property was in question on the plaintiff’s own showing, and that the title was disputed by the defendants. The justice granted the motion, the complaint was dismissed, and judgment was entered accordingly, from which the plaintiff appealed to the county court. That court reversed the judgment of the justice, and from its judgment this appeal was taken.

We think the complaint was properly dismissed and that the reversal of the judgment of the justice was error. The complaint made a case in which the defendants were estopped to deny the title of the deceased, John S. Lane, at the time of the letting, and in which, that title being presumed to continue until the contrary was shown, the plaintiff had succeeded thereto by descent. The complaint also contained allegations to the effect that the defendants had attorned to her and were thus estopped to deny her own title. Both of these allegations were denied by the answer and the plaintiff might recover upon establishing either.

Under the former of the two allegations, viz.: that the plaintiff has succeeded to the title of her deceased son, it was necessary that it should appear, either by direct proof or by implication, that title was in the son at the time of his death ; and this it was which the defendants proposed to dispute; and this they were entitled to dispute. They admitted the title of their lessor at the time, by entering into possession under a lease from him, and they are estopped to deny what they have thus admitted. But the estoppel goes no further. Jackson v. Rowland, 6 Wend. 670; Despard v. Walbridge, 15 N. Y., 374; Hilbourn v. Fogg, 99 Mass., 12. In the first of these cases the court says: “A tenant cannot dispute the title of his landlord so long as it remains as it was at the time the tenancy commenced; but he may show thatthe title under which he entered had expired or been extinguished.” In the Massachusetts case, the court, in an opinion by Justice Gray, says: “The well settled rule of law by which a tenant who has entered into possession under an oral lease is estopped, so long as he continues in possession under the lease, to deny the lessor’s title at the time of making the lease, as against the lessor, his heirs and assigns, is founded on the injustice of allowing a person who has obtained possession by admitting the title of another to deny that title, and, in ease of failure in proof of it, hold the premises himself. The rule applies in every form of action by which the lessor may seek to assert the rights reserved or promised to him in his lease. But it is equally well settled that the tenant is not estopped to deny that since his entering into possession his lessor’s title has expired, either by its own limitation, by the act of the lessor, or by eviction by title paramount; and that when the estoppel is set up by one claiming as assignee of the lessor, the tenant may show that such assignment was ineffectual to pass the lessor’s title.” To this proposition Judge Gray cites, among other authorities, the case of Despard v. Walbridge, supra.

In that case Judge Selden quotes the language of the court (as above) in Jackson v. Rowland, and himself states the rule limiting the estoppel in the words, “ the tenant can be estopped only from denying what he has once admitted.”

The defendants in this case, therefore, were not estopped to deny that the title of their lessor which they admitted when they entered into possession under a lease from him, either expired by its own limitation, if it was a limited title, or was aliened by himself, or extinguished under a paramount title, in his lifetime and after their entry as lessees; in either of which cases the plaintiff would take no title, as heir, at his death. For the defendants to dispute the title of the lessor at the time of his death was only a mode of disputing the title of the plaintiff at the time of the commencement of the action, which was within the issues joined by the pleadings.

The case seems, therefore, to have been brought, distinctly, within the provisions of § 2956 of the Code of Civil Procedure, viz.: where it appeared from the plaintiff’s own showing, on the trial, that the title to real estate was in question, and the title was disputed by the defendants. Such being the case it was the duty of the justice to dismiss the complaint, as he did, and render judgment against the plaintiff accordingly.

The fact that, possibly, the plaintiff might have made a case under her allegation of attornment to herself by the defendants, did not change the duty of the justice. The plaintiff chose to proceed under the other allegations of her complaint and give evidence tending to show that she had succeeded to the title as heir of her son, and the defendants had a right to try that question, if at all, before a court having jurisdiction.

The judgment of the county court should be reversed and that of the justice affirmed.

Judgment of the county court of Cattaraugus county reversed, and that of the justice affirmed, with costs of the two appeals to the defendants.

Macomber and Lewis, JJ., concur.  