THOMAS WILLISON, PLAINTIFF IN ERROR vs. ANDERSON WATKINS, DEFENDANT IN ERROR.

It is an undoubted principle of law, fully recognized by this court, that a tenant cannot dispute the title of his landlord, either by setting up a title in himself or a third person, during the existence of the lease or tenancy. The principle of estoppel applies to the relation between them, and operates with full force to prevent the tenant from violating that contract by which he claimed and held the possession. He cannot change the character of the tenure by his own act merely, so as to enable himself to hold against his landlord, who reposes under the security of the tenancy, believing the possession of the tenant to be his own, held under his title, and ready to be surrendered by its termination, by the lapse of time or demand of possession. [47]

The same principle applies to mortgagor and mortgagee, trustee and cestui que trust, and generally to all cases where one man obtains possession of real estate belonging to another by a recognition of his title. [48]

In no instance has the principle of law which protects the relations between landlord and tenant, been carried so far as in this case, which presents a disclaimer by a tenant with the knowledge of his landlord, and an unbroken possession afterwards for such a length of time, that the act of limitations has run out four times before he has done any act to assert his right to the land. [48] When a tenant disclaims to hold under his lease, he becomes a trespasser, and his possession is adverse, and as open to the action of his landlord as a possession acquired originally by wrong. The act is conclusive on the tenant. He cannot revoke his disclaimer and adverse claim, so as to protect himself during the unexpired time of the lease. He is a trespasser on him who has the legal title. The relation of landlord and tenant is dissolved, and each party is to stand upon his right. [49]

If the tenant disclaims the tenure, claims the fee adversely in right of a third person or in his own right, or attorns to another, his possession then becomes a tortious one, by the forfeiture of his right, and the landlord's right of entry is complete, and he may sue at any time within the period of limitation; but he must lay his demise of a day subsequent to the termination of the tenancy, for before that he had no right of entry. By bringing his ejectment he disclaims the tenancy and goes for the forfeiture. It shall not be permitted to the landlord to thus admit that there is no tenure subsisting between him and the tenant which can protect his possession from this adversary suit; and at the same time recover on the ground of there being a tenure so strong as that he cannot set up his adversary possession. [49]

A mortgagee, or direct purchaser from a tenant, or one who buys his right at a sheriff's sale, assumes his relation to the landlord, with all its legal consequences, and is as much estopped from denying the tenancy. [50]

If no length of time would protect a possession originally acquired under a lease, it would be productive of evils truly alarming, and we must be convinced beyond a doubt that the law is so settled, before we would give our sanction to such a doctrine; and this is not the case upon authorities. [51]

[Willison vs. Watkins.]

The relation between tenants in common is in principle very similar to that be. tween lessor and lessee. The possession of one is the possession of the other, while ever the tenure is acknowledged. But if one ousts the other, or denies the tenure, and receives the rents and profits to his exclusive use, his possession becomes adverse, and the act of limitations begins to run; so of a trustee, so of a mortgagee. [51]

In relation to the limitations of actions for the recovery of real property, the court think it proper to apply the remarks of the learned judge who delivered the opinion of the court in the case of Bell vs. Morrison, 1 Peters, 360, and to say, the statute ought to receive such a construction as will effectuate the benefi cent objects which it intended to accomplish, the security of titles and the quieting of possessions. That which has been given to it in the present case is, we think, conformable to its true spirit and intention, without impairing any principle heretofore established. [54]

ERROR to the circuit court of the district of South Carolina.

An action of trespass to try titles was brought in the circuit court of South Carolina, on the 20th of April 1822, by the defendant in error, against the plaintiff in this court, for the recovery of six hundred acres of land situated on the Savannah river. The title claimed by the plaintiff below and the evidence are fully stated in the opinion of the court.

On the trial in the circuit court the defendant proved that Samuel Willison, his father, had possession of the land in 1789, and cultivated it till the period of his death in 1802, from which time his widow and family possessed it until the death of his widow in 1815; and that from 1815 until this action was brought, the children retained possession by ti.air tenants. That in the lifetime of Samuel Willison, Bordeaux, through whom the plaintiff claimed, was apprised that he claimed to hold the land by an adverse title. That the widow in 1802, on demand made, refused to give possession to Ralph S. Phillips who claimed the land, and set up a title in herself, and was sued as a trespasser. That in 1793, Bordeaux and Willison were in treaty for the sale of this land; Bordeaux wishing to sell, and Willison to purchase. The plaintiff then offered in evidence a power of attorney from Bordeaux to Willison, dated February 1792, authorising him to take possession of the land, and sue trespassers; and that Willison was then a tenant of Bordeaux. The defendant having pleaded the statute of limitations (five years adverse

[Willison vs Watkins.]

possession giving a title under it) relied upon the foregoing facts. But the presiding judge overruled the plea, and instructed the jury that, when a tenancy had been proved to have once existed, the tenancy must not only be abandoned, but possession given up, before an adverse possession can be alleged. To this decision the defendant excepted.

The defendant brought this writ of error.

In the argument of the cause, the counsel for the plaintiff in error presented for the consideration of the court other exceptions besides that upon which the judgment of the circuit court was reversed. The decision of the court is exclusively upon the law arising on that which is stated.

The case was argued by Mr Blanding and Mr M'Duffie for the plaintiff in error, and by Mr Berrien, attorney general, for the defendant.

Mr Justice BALDWIN delivered the opinion of the Court. This was an action of trespass to try titles, brought in 1822, in the circuit court of the United States for the district of South Carolina, by Watkins against Willison, for a tract of land containing six hundred acres, on the Savannah river. This land was originally granted to James Parsons, who conveyed to Ralph Phillips, whose estate was confiscated by an act of assembly of South Carolina, and vested in five commissioners appointed by the legislature of that state. The five commissioners acted in execution of the law, but before any conveyance was made of the land in question, one of them had died, and two of the others had ceased to act, or resigned in 1783. The two remaining commissioners, in 1788, conveyed this land to' Daniel Bordeaux and R. Newman, who in the same year executed to the treasurer of the state, a bond and mortgage to secure the payment of the purchase money, which, pursuant to an act of assembly passed for that purpose in 1801, was transferred and delivered to Ralph S. Phillips, the son of Ralph Phillips, to be disposed of as he should think proper; and by the same law the confiscation act, so far as respected Ralph Phillips, was repealed. A suit was brought on this bond in the name of the treasurer of the state

[Willison vs. Watkins.]

in 1803, against Daniel Bordeaux, and prosecuted to final judgment against his administrators in 1817, when an execu-. tion issued, on which the land was sold and conveyed by deed, from the sheriff to Anderson Watkins, the plaintiff in the circuit court, who claims by virtue of the sheriff's deed, and as standing in the relation of landlord to the defendant.

Samuel Willison, the father of the defendant, entered into possession of the premises in question in 1789, and cultivated them till his death in 1802; from which time his widow and children possessed them, till her death in 1815; since which time the children have retained possession by their tenants, till the commencement of this suit.

In 1802, Ralph S. Phillips, who was then the assignee of the bond and mortgage, made a demand of the possession from the widow, who refused to give it up, and set up a title in herself. He brought an action of trespass against her to try titles in January 1803, in which he was nonsuited in November 1805; and in March 1808 he brought another action of the same nature against her, in which no proceedings were had after 1812, which, by the law and practice of South Carolina, operates as a discontinuance of the action.

In 1792 Bordeaux, the mortgagor, executed to Willison a power of attorney authorising him to take possession of the land, and sue trespassers. Willison was then a tenant of Bordeaux.

In 1793 they were in treaty for the sale of the land; Bordeaux wanting to sell, and Willison to purchase. But during the life time of Willison, Bordeaux was apprised that he claimed to hold the land by an adverse title. The defendant exhibited no title other than what is derived from the possession of his father and the family.

The first question which arose at the trial, was on the admission in evidence of the deed from the two commissioners to Bordeaux and Newman; the defendant alleging, that no title passed by it, because it was not signed by the other two commissioners. The circuit court overruled the objection; the deed was read, and this becomes the subject of the first error assigned in this court.

As the court have been unable to procure the confis

[Willison vs. Watkins.]

cation act of South Carolina, we are unwilling to express any opinion on this exception without examining its provisions, which are very imperfectly set out in the record; and as the merits of the case can be decided on another exception, we do not think it necessary to postpone our judgment.

The remaining exception is, that the circuit court erred in charging the jury, that the claim of the plaintiff was not barred by the act of limitations of South Carolina, which protects a possession of five years from an adverse title.

It appears from the record, that the defendant and his family have been in possession of this land for thirty-three years next before this suit was brought; but whether that possession has been adverse to the title of the plaintiff during the whole of that time, or such part of it as will bring him within the protection of this law, becomes a very important inquiry.

The plaintiff contended, at the trial, that, by becoming the tenant of Bordeaux, Willison the elder and his heirs, so long as they remain in possession, are prevented from setting up any title in themselves, or denying that of Bordeaux, without first surrendering to him the possession, and then bringing their suit. That the possession of the tenant being the possession of the landlord, he could do no act by which it could become adverse, so that the statute of limitations would begin to run in his favour, or operate to bar his claim, by any lapse of time, however long.

The defendant, on the other hand, contended, that from the time of the disclaimer of the tenancy by Willison, and the setting up of a title adverse to Bordeaux and with his knowledge, his possession became adverse, and that he could avail himself of the act of limitations if no suit was brought within five years thereafter.

It is an undoubted principle of law fully recognised by this court, that a tenant cannot dispute the title of his landlord, either by setting up a title in himself, or a third person, during the existence of the lease or tenancy. The principle of estoppel applies to the relation between them, and operates in its full force to prevent the tenant from violating that contract by which he obtained and holds possession. 7 Wheat. 535.