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1892.

GRAVENOR

WooDHOUSE.

termined by the husband's decease, unless the wife had afterwards adopted or confirmed it. In Parry. Hindle (2), a joint demise by a husband seised in right of his wife, and his wife, was disproved by evidence of a receipt for rent given by the husband only: and Lord Chief Justice Mansfield there said (6), “ a husband, seised in right of his wife, may, and usually does, demise alone during the coverture: when he dies, all the rent accrued up to the time of his decease, does not go over with the reversion to the wife; it is assets in the hands of the husband's executors. The wife has nothing to do with the demise or the rent.” Here, therefore, the attornment by the plaintiff to Thomas and wife, created a tenancy in Thomas alone; and the plaintiff held under him and Woodhouse, as stated in the first and second avowries. At all events, the third and fourth are sufficient, which state that the title accrued to Thomas in right of his wife, and in their own right; so that the tenancy is alleged in every possible shape.

And in Nooth v. Wyard (c), where 4., being seised in fee, made a lease for years to the defendant, and afterwards conveyed the reversion to the plaintiff and his wife in fee, and the defendant attorned, the lease expired, and the husband alone brought an action of debt for rent in arrear: it was held, that the action was well brought; for that his suing alone was not iņ regard of his estate with his wife, but of the thing to be recovered by him, viz. the rent, which he only was to have; and it was added by the reporter, that the baron might have an action alone, although the lease had been continuing: With respect to the second objection, it is a well known and established rule, that where a person has consented to become tenant to another, he cannot afterwards dispute the title of his lessor, under which he gained possession. The leading case on this point is that of Syllivan v. Strad

(a) 2 Taynt. 180. (6) Id. 181. (c) 1 Ron. Rep. 52. S.C. 2 Bulst, 233. Vix. Abr. vol. 4, tit. Baron & Feme (T), pl. 38, page 86.

1822.

GRAVENOR

WOQDHOUSE

ling(a), the principle of which was recognized and adopted by Lord Chief Justice Dallas, in Parry v. House (b), where all the cases on this subject are collected, and their result given, in a learned and elaborate note by the reporter, Mr. Holt. In England d. Syburn v. Slade (c), the lessor's title had expired, and therefore he had no right to turn the tenant out of possession ; and in Rogers v. Pitcher, the tenant by mistake paid rent to a person who was not authorised to demand it. He, therefore, had a right to shew that the latter was not entitled to it. These two latter cases are the only exceptions to the general rále : and here, the plaintiff having admitted his tenancy by the attorament, be cannot dispute the title of the defendants at the time that instrument was executed by him.

Mr. Serjeant Hullock (and Mr. Serjeant Lawes was with bim), in support of the rule. The objection as to the form of the avowries, does not depend on the effect of a lease or demise by husband and wife, but on the language of the attornment alone ; for it is quite clear, that during coverture, a husband may demise alone, and sue for rent in his own name. Although the objection is merely formal, yet having been made at the trial, and the point reserved, the plaintiff is entitled to claim the advantage of it; and none of the avowries state the ine terest in the estate to be in all the three defendants, either as joint tenants or tenants in common in three undivided shares, or in James Thomas as well as his wife, or in any other separate proportions whatever.

['The learned Sergeant was proceeding with this branch of his argument, when the Court observed, that the attomment' was not to be used as a special plea; that in point of legal effect, it was an attornment to Woodhouse

(a) 2 Wils. 208. () Holt Ni. Pri. Cas. 491.

-(c) 4 Term Rep. 682.

1822.

GRAVENOR

WOODHOUSE.

and Thomas,' who might alone demise without joining the wife of the latter. The language of the attornment to Woodhouse, Thomas, and Ann his wife, is in itself ambiguous. If the defendants claimed title under the will of James Woodhouse, deceased, the legal effect of the attornment would be to create a tenancy in Thomas and his wife in right of his wife, in which case the third avowry would be right; for the testator devised the premises in question to his cousins Edward Woodhouse and Ann, the wife of Thomas, for their lives; and after their respective deaths, to be divided equally amongst their children (a).]

On this intimation by the Court, the objection as to the avowries was abandoned.

Secondly. It was competent for the plaintiff to have gone into evidence to impeach or defeat the attornment, as that instrument was of itself by no means conclusive evidence of a tenancy; for there must be at least a competent estate to support it. Itis quite clear, that he might have shewn that it was obtained from him by surprise, misrepresentation, or fraud ; and it cannot be contended for a moment, that it operates by way of estoppel, nor will it convey a title to the landlord, nor preclude the tenant from disputing it. Besides, the instrument on the face of it was not absolute and final, but was given without prejudice to the plaintiff's claims in equity; and the Master of the Rolls has decided those claims in his favour, and made a decree accordingly, in the case of Woodhouse v. Meredith (6). There, the question was, whether the defendants' testator, James Woodhouse, was the purchaser of the estate, or whether it was bought by the present

(a) See the will, as set out on another point, arising upon the construction of it, 1. Meriv. 450; and 2 Maul. & Selw. 5, where a codicil was decided to be a re-publication of it.- -() 1 Jac. & Walk. 204.

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plaintiff, and that Woodhouse only advanced him a certain sum as a loan, to enable him to pay the purchasemoney. The bill there stated, that the estate was conveyed by the President and Governors of Guy's Hospital to the plaintiff, in July, 1807; and in that case the letters from James Woodhouse were given in evidence: and the Master of the Rolls observed, that(a) “it was evident, from the whole of the correspondence, that the plaintiff was to be the mortgagor; and that the preponderance of the evidence shewed that he was the bona fide purchaser for himself:"-and the bill filed by the representatives of James Woodhouse, was dismissed with costs. At all events, that correspondence tended to shew that the legal title was in the plaintiff.

[Mr. Justice Richardson.It is stated in that case, that there was a re-conveyance by the plaintiff to Woodhouse. That was a question of law, and could not be gone into in a Court of Equity ; if so, the question now is, whether that re-conveyance was fraudulent or not?]

The letters from the defendants' teslator, and under whom they claimed, should, at all events, have been admitted in evidence, as they contained expressions ad-, verse to such claim, and would have shewn that they derived no title whatever under the will to the estate in question, as he had no power to devise it to them, as he was a mere mortgagee. The attornment cannot operate so strongly as payment of rent; and in Rogers v. Pitcher it was decided that even such a payment was not conclusive evidence of a tenancy. Besides, the defendants never acted under the attornment until the time of the distress, but suffered seven years to elapse without even demanding any rent. On these grounds, the verdict found for them cannot be supported.

Cur. Adu. Vult.

(a) 1 Jac. & Walk. 221, 225.

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1822. Mr. Justice Park now delivered judgment as folGRAVENOR

lows : WOQDHOUSE,

This case came before the Court on a motion for a new trial, at thie instance of the plaintiff. It was an action of replevin, in which the defendants avowed the taking for seven years rent in arrear, at 70l. per annum, from the 2d February, 1814, due to Edward Woodhouse, James Thomas, and Ann his wife, in right of the said Ann. The defendants, in order to support their apowries, gave in evidence at the trial, an attornment by the plaintif,

dated the 9th February, 1814. (Here the learned Judge · read the attornment.) An objection was then raised,

and renewed on the motion for a new trial, that this attornment toʻ Edward Woodhouse, James Thomas, and Ann his wife, did not support either of the avowries, which stated the title of James' Thomas to be in right of his wife; but on the argument, in sbewing cause againsť that motion, we thought there was nothing in the objection, and it was most properly abandoned by my brother Hullock. With respect to the second objection, as to the defendants' title, it appeared to us to require a more serious and weighty consideration. They had made out a primdfacie case of title ; but it appears from the notes of the learned Baron who tried the cause, that certain letters, as well as a feoffment from the defendants' testator (and under whom they claimed), were offered in evi. dence, but not received'; and it does not now distinctly appear what the nature of those documents was.---The question then is, whether there is sufficient doubt in the case, as it now stands, to warrant the Court to send it to a new and further enquiry? It is an established rule of law, since the case of Syllivan v. Stradling, that a tenant cannot dispute his landlord's title, where he has originally received' possession from him, or has paid him rent. Still, however, there are some exceptions to this general rule. Although, on the one hand, it is both wise and politic not to allow a tenant to dispute the title of

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