
    Ross vs. Cobb and others.
    
    
      A lease, made by the guardian for nurture, or guardian by nature of an infant’s land* Whether made in the name of the guardian, or of the infant, is void.
    A guiirdian for nurture» is only entrusted by the law with the care of the person and the education of the’inlant, and has no power or authority over his real estate.
    An estoppel must he mutual and bind both parties; therefore, a lease made by a guardian for nurture, not being binding upon the infant, does not estop thcpersoi.s who entered into possession under the lease from disavowing the lease; or from setting up a tiue in themselves; or from holding for a third person.
    Possession of part of a tract of land under a lease, defined by prescribed boundaries, is not a possession of the whole tract; it is a possession only commensurate with these boundaries.
    The deposition of A. was taken in one suit to prove the boundaries of a tract of land, lie [subsequently became deranged. In onothci suit this deposition was offered as evidence of his statements upon oath in relation to boundary: Held, that the matter of the deposition was competent evidence, if proved by witnesses who heard him make the statements, but that the mere certificate of the magistrate who took the deposition^ was i nsufficicnt for that purpose.
    This is an action of ejectment, on the trial of which, various questions arose, all of which it is not necessary to state. The plaintiffs below claim under John and Catharine Blair, wlio, in 1809, were infants and orphans, without a guardian. At that date Joseph Cobb, their step-father, made several leases of the land in controversy for seven years, and put the tenants into possession,which possession was continued for more than seven years. These leases were for part of the land only, as was therein defined and limited. Before the expiration of said seven years, Davis professing himself to be an agent of the defendant, went to see the persons who were put in possession by Cobb, and representing to them that the land belonged to Ross, they agreed to take leases from him, as Ross’ agent, and to hold tlie land under Ross’ title. But afterwards refusing to acknowledge Ross’ title, an action of ejectment was instituted against them in the federal court and a recovery had. A bill was filed enjoining the writ of possession, which was pending many years, but was finally dismissed and the injunction dissolved, and Ross was put in possession of'the land. This action was then brought m the circuit court of Fentress county, at February term, 1S33. The plaintiffs, who claimed under the grants to John and Catharine Blair, relied upon the possession, which was held from 1809, for seven years hf the persons to whom Cobb had given the leases, as confirming, their title. The defendant moved the court to instruct the jury that if Joseph Cobb was not appointed guardian of John and Catharine Blair, but,leased and rented the land in controversy in 1809, or at any other time, merely as their friend, and when he was not their guardian, that this would give the tenants no right to occupy the lands under Blair’s title, and their possession would not operate in favor of Blair’s title or grants. That if those in possession of the interferences under leases' from Joseph Cobb, the step-father of John Blair, afterwards in 1815, and before the expiration of seven years from the time they respectively took leases, gave up to Ross, and took leases from him, and became his tenants under alease from his agent, this would interrupt and break the continuity of Blair’s possession, or the possession claimed for him, and the lease to Ross would be good. The court refused to givethe instructions asked for, but upon this subject charged the jury as follows: £<If Cobb, having married the mother of Catharine and John Blair, who were minors, and was thus-placed in a sort of guardianship relation to them, assumed to act as their agent, guardian or protector, and in this avowed cha-' racier claimed this land for them by virtue of these grants and leased it to tenants who went into possession under their leases, they were the tenants of the Blair’s, and their possession thus' taken and continued, would confirm their title. And if, while a tenant was thus in possession, he took a lease from Ross, or his assumed agent, it was a fraud on Blair; he could not thus change his relation. He would still continue Blair’s tenant, and his possession would continue to be Blair’s possession.” The court also told the jury, “that a possession by a tenant of part of the interference covered by the one thousand acre grant, would be a possession to the extent of the boundaries of "that grant, although the lease to him was only fifteen acres. It would be a possession taken by Blair by virtue of his grant, and would extend to the limits of the grant.” s
    The plaintiff offered on the trial, to read as evidence a deposition of Alexander Blair, which had been taken in another Sait, in Fentress circuit court between the same parties, and also a certified copy of said deposition, which was objected o by the defendant, but on the plaintiff proving that said Alexj ander Blair had become deranged since the deposition Was taken, the court overruled the defendant’s objection, and permitted the deposition to be read as declarations of Blair in relation t'o the boundary of the land.
    
      Wm. E. Anderson, for plaintiff in error.
    The plaintiff in error insists that the admission of Blair’s deposition was erroneous, not because the declarations of Blair were not ádmissa-ble, but because there was no legal proof before the court that he had either signed or sworn to the contents of the paper which was offered, or any way consented to the statements it contained.
    It is believed by the plaintiff’s counsel that .the court erred in saying that if Blair had possession by a tenant, although the lease covered but fifteen acres, it would be a possession of Blair to the whole extent of the grant;
    If a tenant goes into possession under á lease for fifteen acres, the boundaries of which are defined, he must be pte-sumed to enter and possess according to his right of possession; if he entered upon land within Blair’s grant, but without the bounds of his lease, he would be as much a trespasser as any other person. How is it possible to give to his rightful possession of fifteen acres a constructive possession of land, which he would be a trespasser for entering upon. McClung vs. Ross, 5 Wheat. Rep. 116, 123-4.
    
    It is proved clearly by evidence; uncontradicted and undisputed, that Ross had tenants on the interference, aside from those sued, from 1815 and 1817, during the whole time of the pendency of the suit in the federal court.
    It has been often held, and by this court decided, that a tenant may by his own act convert his possession into an adverse possession to his landlord, 3 John. Rep. 290: 2 Sch. and Lef. 624, and Peck’s R 400. So a tenant in common. 5 Peters 438-40: 3 Peters 53.
    If a tenant disclaims holding under his landlord with the knowledge of the landlord, after seven years possession, he can bar the recovery of the landlord by virtue of the statute of limitations. 6 Yerg, 280, Duke vs. Harper: 3 Peter’s Rep. 47, Willison vs. Watkins.
    
    But the statute only produces a bar where the possession is adverse. The character of possession is a matter of fact wholly unconnected with either the obligation of the tenant, or the estoppel which He" may be subject to by the law, and in legal adjudication is to be considered according to the truth of the case. Peck’s Rep. 403.
    The court erred in the opinion that the leasing of Joseph Cobb produced the'relation of landlord and tenant between the lessees and John Blair, although he had' no authority. The tenants inability to dispute his landlord’s title, or to set up a better title in another, is strictly an estoppel arising out of a contract either express or implied, 3 Peter’s Rep. 47, Willison vs. Watkins: Woodfalhs Landlord' and Tenant 156.
    
      J. Cocke and Jl. Cullom, for defendants in error.
    1. If two grants cover in part' the same' land, and the younger grantee takes possession within the bounds of the' interference, there being no opposing possession upon the interference, his possession for seven continuous years- will make his the better title by the statute of limitations. I Tenn. Rep. 453: 1 Yer. Rep. 262.
    2. Whoever takes-possession of land claiming to Hold under the title of another, the benefit of such possession enures to the benefit of the person under whose title possession is taken and held. 8 Yerg. Rep. 179.
    3. A tenant cannot, while in possession, dispute the title of the landlord, nor ought he to betray the confidence reposed in him by delivering possession to another. 5 Hay. Rep. 155: 4 Hay. Rep. 101: 4 Hay. Rep. 206 — 7: 5 Yer. Rep. 379: 6 Yer. Rep. 280.
    4. Although if A. enters as tenant at will of B. and after-wards conveys to C. bona fide, and C. takes possession, his, C’s, possession will not operate in favor of B; still if A. keeps the possession, he holds it for B. and cannot lease or buy of another, and thereby make his possession operate in favor of such other; but he must place his landlord in statu quo. 6 Yer-Sep. 217: 6 Yer. R. 406; 9 Yer. Rep. 86; 2 Yer. R.
    The relation of landlord and tenant existed in this case. Even if the guardian by nurture had no authority, the ward ■could subsequently assent to the lease; this would make it :good, for if one person acts as the agent of another, and the latter having knowledge of such acts, does not in a reasonable •time express his disapprobation, the agency will be presumed. 1 Comyn Dig. 777: 1 John. Cases 110: 1 Cain’s 539: 12 John. 300, 305. Nor can third persons who have re-cognised this authority, afterwards deny it to take any benefit •to themselves.
    5. The objection to Alexander Blair’s deposition, is not .tenable. It was taken in a judicial proceeding. He was at the time of reading it in the court below, insane, consequently had no legal existence. It proves reputation. Depositions, when reputation would be evidence, are admissible even -against a stranger, for as the traditionary declarations of persons dead would be admissable, a fortiori declarations on oath would be. .3 Starkie’s Evi. pt. 2nd 374: 1st Camp. Rep. 100: Peak’s Ev. in note 55,
    
      James Campbell in reply.
    It is clear that Cobb as the friend or step-father of John and Catharine Blair, had no right .or power to take possession of the land of the infants and make a valid lease. The possession thus taken, though for the benefit, and so intended, would nevertheless nc:t be obligatory on the infant or his guardian. The contract might be disavowed by either, and the tenants turned out of possession. Comyn on Landlord and Tenant 45: Bacon’s Abr. vol. 3 letter G. title Guardian 414-15: 2 Mass. 55: 1 Nott and Mc-Cord 369. Such being the relation between these tenants under Cobb and the infants, John and Catharine Blair, we are next to look at the obligation of landlord and tenant. When a landlord puts a tenant in possession of land, he incurs an obligation to the tenant. That obligation binds him to keep the tenant in possession during the lease, and to protect him in that possession. In consideration of this obligation on the part of the landlord, a correspondent one arises on the part of the tenant, to hold possession under and for his landlord. The ver7 définition of a lease is illustrative of ibis. A lease for years is a contract between lessor and lessee for the possession and profits of land on the one side and a recompense by rent or other consideration on the other. In this case it is not pretended on either side that Joseph Cobb made the leases in his own name, for then the tenants would be tenants of his and not of John and Catharine Blair; but the evidence conduces to prove he made the leases for and on behalf of the "children. The tenants were holding under a lease confessedly made, without authority. John and Catharine Blair were under no obligations to keep the tenants in possession. They were placed under no estoppel to disavow the lease. This being the situation of the tenants, they are placed under no estoppel as regards John and Catharine Blair, for estoppels must be mutual. Coke Lit. 352 a :• Bacon’s Abr. vol. 4th title leases Letter, O. 190 et seq.
    
    
      2. The copy of Alexander Blair’s deposition was improperly received, there being no proof of it except the certify cate of the justice.
    3. The court erred in its instructions to the jury, that a pos-* session taken under a lease from Blair or Cobb for fifteen acres, extended to the bounds of the whole tract. Posses-» sion is always taken according to the fact — according to the extent of the possession claimed, and over which ownership is exercised.
   Green, J.

delivered the opinion of the court.

The first question for our consideration, is, as to the authority of Joseph Cobb, to make leases of the lands of Catha-rine and John Blair, and how far those leases created any obligation on the part of the tenants to hold for Blair.

It is laid down in 3 Bacon Abr. Guardian G. 414, 15, that a guardian for nurture, has only the care of the person and education of the infant, and has nothing to do with his lands, and that he cannot make a lease of them for years, either in his own name, or in that of the infant. The same principle is laid down in Comyn on the Law of landlord and tenant 45: 6 Law Lib. 25, and is recognised in the case of May vs. Calder, 2 Mass. 55, where it is determined that a lease of an infant’s land, by his father, as natural guardian was void. The court there say, that the statute of Massachusetts requiring general guardians to give bond, &c., forms an additional reason why a natural guardian should not be permitted to meddle with the estate. This court, at the present term, in the case of Kegler vs. Miles, (MS.) decided that a guardian for nurture, has no authority to receive the money in satisfaction of a judgment obtained by him for the infant, and to give an acquittance therefor, and the defendant notwithstanding he had paid the guardian, was decreed to pay the amount again. From these authorities it is clear that Cobb had no power or authority to act for the Blair’s, who were then infants, when in 1809, he made his leases in their name to the tenants, whose possession is claimed as the possession of Blair. As these leases were made without authority and were void, they created no obligation on the Blair’s to comply with their conditions. The obligations of landlord and tenant, are reciprocal. The landlord in making a lease for years, contracts that the lessee shall have the possession and profits of the land for the time limited, and the lessee is bound to hold possession for the landlord, and to recompense him by the payment of rent or other consideration. Was Blair, it may be asked, bound to keep these tenants in possession according to the terms of the leases made by Cobb. The- authorities above cited show clearly that he was not. Blair might have treated them as wrong doers, and turned them out of possession at pleasure. As the Blair’s were under no estoppel to disavow these leases, we will inquire whether the tenants were estopped to disregard them.

Lord Coke’s first rule, Coke Lit. 352 a, for makingthe reader more capable of the learning of estoppels, is, “that every estoppel ought to be reciprocal; that is, to bind both parties.” And this, he adds, is the reason that a stranger shall neither take advantage of, nor be bound by the estoppel. InBacon’s Abr. vol. 4, page 190, it is laid down, that if a man takes a lease for years of his own lands, from an infant or feme covert by indenture, this works no estoppel on either part, because the infant or feme, by reason of their disability to contract, are not estopped, therefore, neither shall the lessee be est0PPeclj because all estoppels ought to be mutual. So, in same authority, it is said, if a man take a lease for years of his own land by patent from the King, rendering rent, this shall not estop the lessee, as an indenture between common persons in such cases would do, because the King cannot be estopped, and if he be not estopped, neither shall the lessee, because all estoppels, ought to be mutual.

From this view of the subject it is clear, that if John and Catharine Blair were not estopped by the leases executed in their behalf by Cobb, so neither were the lessees. But from the above authority from Bacon, it is shown, that if they, being infants, had made the leases themselves, they would have created no estoppel on either side. Surely then, it cannot be contended, that a lease made for them by Cobb without authority, and merely acting as their friend, would place either the infants or the lessees under any estoppel. If this view of the subject be correct, the circuit judge erred in telling the jury, “that if while these tenants were in possession under the lease made by Cobb, they took leases from Ross, it was a fraud on Blair, for, that they could not thus change ■their relation.” As they were not estopped by those leases .to liave set up a title in themselves, so neither could they be estopped to lease from, and hold under another.

The relation of landlord and tenant did not exist between them and the Blairs, and they could violate no duty arising out of that relation, in taking the lease from Ross.

2. The court also erred in telling the jury, “that a possession by a tenant of part of the interference covered by the one thousand acre grant, would be a possession to the extent of the boundaries of that grant; although the lease to him was only fifteen acres, it would be a possession taken by Blair by virtue of his grant.” The making a lease of part of a tract of land is certainly no greater act of dominion, than a sale of the same part would be. But in the case of M'Clung vs. Ross, 5 Wheat. Rep. 123, it is held that a sale of part, of which the purchaser took possession, although coupled with an agreement to hold the balance for the vendor, constituted no possession of the part not sold and actually possessed. So neither would a lease of fifteen acres, defined by prescrib-écí boundaries', possessed by the lessee, be a possession of any other part of the tract than the fifteen acres. 10 Peter’s Rep; 444. But if a lease were made of a tract and no boun-darie’s were inserted circumscribing the tenant, then a possession tinder such lease, would be a possession of the whole tract,- although the lessee might actually occupy only fifteen acres.

3. We think the court also erred in permitting the deposition of Alexander' Blair to be read without proof that he had made the statements contained in it. The matter of the deposition was proper enough to be given in evidence, but the certificate of the magistrate who took the deposition, could not give it verity as the statement of Blair, except in the suit in which it had been taken. In order to have justified the reading of it in this case, it should have been- proved' to have been his statement by some one of those who heard him make it.-

Several other interesting questions have been debated with great force and ingenuity in this case, but as we think the circuit court did not err except as to the foregoing propositions, we deem it unnecessary to enlarge further in the case.

Reverse the judgment and remand the cause to White county for another trial.

Judgment reversed.  