Miller v. Bonsadon , 9 Ala. 317 ( 1846 )

GOLDTHWAITE, J.

The facts of this case may be very briefly stated, and are these : Hunt and James recoverecl a judgment in. ejectment in 1841, against the casual, ejector, Miller being the tenant in possession. After the recovery, to avoid being turned out, he admitted the title of Hunt and James, occupied the premises under them, and paid rent as their tenant. Subsequently to this, in 1843, for some cause, which is unexplained, he takes a lease from Bonsadon,' and the question is, whether he can now dispute that title, or set up the one in Hunt and James to prevent Bonsadon from entering. We are clear that he cannot. Whatever may be the right of Hunt and James to the possession, Miller by his voluntary act, has placed himself in a condition in which he cannot assert it. None of the cases cited hy the plaintiff’s counsel, reach the case of a tenant who voluntarily, and without fraud, takes a lease from another than his true landlord. We may not be disposed to deny the proposition advanced in Jackson v. Span, 7 Wend. 401, and Jackson v. Cuerden, 2 John. Ca. 353, that a tenant in possession who has been imposed on, so as to admit the title of a stranger, may show this imposition in connection with a better title when sued for the possession. Under such circumstances the evidence would go merely to the right of possession, and that of the party claiming it being founded in fraud, could not affect the possession, which, but for the fraud, would continue legally with the tenant. No pretence of that kind, however, was asserted in the court below, and the defendant stood there estopped by his lease, admitting the title of the plaintiff. It is, in fact, the very case put in all the hooks as an undeniable proposition. Nor is any injury done to those Avho seem to he parties in this defence, by the recognition of this rule as governing the case. If Miller was willing to accept a lease from Bonsadon, it is probable he at that time would have permitted him to enter, and the only remedy of Hunt and James, under such circumstances, would have been to eject him, as in by collusion with their tenant. There is no error in the record.

Judgmeut affirmed.