Hodges v. Shields , 57 Ky. 828 ( 1858 )

Judge Duvall

delivered the opinion of the court.

It is a well established general principle of law, that the tenant must be faithful to the title of his landlord. He cannot controvert that title by showing either an outstanding superior adverse title in another; nor would he be permitted, in an action brought by the landlord to recover the possession, to set up such superior title acquired by himself, either before or after the execution of the lease, because by taking the lease, and the possession under it, he impliedly admits the title of his landlord, and is estopped to deny it.

But this salutary rule is neither inflexible nor universal in its application. It has been held that, as allegiance and protection are correlative and coextensive, therefore, whenever it is ascertained by a competent judgment or decree, that the landlord’s title is insufficient for the security of the tenant, the relation between them may be renounced, and the tenant may protect himself by taking shelter under the paramount title, or may even show in himself, the acquisition of a superior title. (Swan vs. Wilson, 1 A. K. Marsh. 73; 5 J. J. Marsh. 104.)

We suppose that no case can be found in which it has been held that the acquisition of title by a tenant for years, by a fair purchase of the land after the execution of the lease under which he took possession, was a breach of his fidelity to his landlord, or that such title enured to the benefit of the latter. The tenant, in such case, cannot be regarded as holding the title in trust for his landlord, especially in a case like the present, where it is shown that the landlord had no title at all. The equitable rule upon this subject has never been so extended as to embrace the class of cases to which this belongs.

The courts of this country have never gone further than to establish the general principle, that if a trustee, mortgagee, tenant for life, or purchaser under an executory contract, get an advantage by being in possession, or behind the back of the party interested, and purchase in an outstanding title or incumbrance, he shall not use it for his own benefit, but shall be considered as holding it in trust. And it has been decided that even this rule does not apply to such outstanding titles or incumbrances as were known by the vendor, and. concealed from the vendee, but only to such as were known at the time of the contract, and understood by the parties. (Young vs. Hopkins, 6 Monroe, 25.)

The court below therefore erred in deciding that Shields was entitled to the benefit of the purchase made by Hodges of the land in contest, from the Thompsons, who, it appears, were the real owners, and had never sold it to Porter, (from whom Shields purchased) by verbal,contract or otherwise. Shields, therefore, had no title, legal or equitable, at the time the lease was executed, and the subsequent purchase by Hodges was no breach of his fidelity or obligations as tenant, but was perhaps necessary to prevent the loss of his improvements, and to protect him against the claim of the real owner, for rents.

But inasmuch as he failed, to show any fraud on the part of Shields in procuring the execution of the lease, and had not surrendered or offered to surrender the possession he had acquired under it, he did not show himself entitled to a rescission of that contract. Shields, it is true, consents in his answer, to a rescission, but upon the express condition that Hodges should quit the premises. Until he does that, he cannot avail himself of any right he may have acquired in virtue of his purchase from the Thompsons, and his petition should therefore have been dismissed.

Wherefore, the judgment is reversed, and the cause remanded, with directions to dismiss the petition, and all the subsequent pleadings.