Franklin v. Merida

35 Cal. 558, 1868 Cal. LEXIS 127

• Court: California Supreme Court
• Decided: July 1, 1868
• Status: Published

Opinions

By the Court, Sanderson, J.:

In Tewksbury v. Magraff, 33 Cal. 237, we had occasion to consider the principal question involved in this case. In that case, among the exceptions to the general rule that a tenant cannot dispute his landlord’s title, we classed the case where the tenant did not enter into possession under the landlord’s title, but was in possession at the time he took the lease; and in support of that proposition we argued in effect that the law does not favor estoppels, for their effect is to prevent the party against whom they are invoked from proving the truth of the matter, to ascertain which, as a general proposition, is the great end of judicial inquiry. The doctrine of estoppel may be said to be founded upon the adage that “the truth is not to be spoken at all times,” which is not less a rule of law than of ethics. The doctrine is a harsh one, and is never to he applied except where to allow the truth to be told would consummate a wrong to the one party, or enable the other to secure an unfair advantage. If A., being in possession of land, deliver the possession to B. upon his request and upon his promise to return it, with or without rent, at a specified time, or at the will of A., B. cannot be allowed, while still retaining possession, to dispute A.’s title, because to allow him to do so would be to allow' him to work a wrong against A. by depriving him of the advantage which his possession afforded him, and with which he would not have parted but for the promise of B. that he would hold it for him, and in his place and stead. But the maxim, cessanle ratione legis cessat ipsa lex, must not he overlooked. “Beason is the soul of the law, and when the reason of any particular law ceases, so does the law itself.” If B. is in possession, and takes a lease from A., the latter parts with nothing and the former has obtained nothing by the transaction. If, however, either has gained anything, it is A. He has gained rent, and in the event of a controversy, a prima facie case, as against B., without proof of title, while B.’s case is weakened by so much as a prima facie case is worth. A. may have gained more, for he may have severed an adverse possession and stayed the running of the Statute of Limitations, for there can be no adverse possession while the lease subsists, or until there has been an open repudiation and disavowal of the tenancy by B. A.’s right to sue for possession is postponed, it is true. In that respect only is his relation to the property affected by the transaction, except beneficially ; but for the possession, which be might have obtained, the rent promised by B. is a legal equivalent. Having thus obtained no advantage over A. by the transaction, wdiy should B. be estopped from showing precisely wdiat he would have been permitted to show' had the transaction never occurred? If A. is thus in no worse plight than he was before the transaction, upon what principle in law or ethics can the truth be kept hack? Upon what rational ground, either in an action upon the lease for rent, or in an action for the possession, should B. be denied the right to show that A. had no title, and, therefore, no right to the rent or possession ? If B. has promised to pay rent, or hold the possession for A., he having no title, where is the consideration for B.’s promise ? Suppose the title is in O.; B. is then legally bound to pay the value of the use and occupation to C., and surrender to C., notwithstanding the lease from A. If, then, he cannot be allowed to dispute A.’s title, B. can be legally made to pay rent to A., and the value of the use and occupation to C. The doctrine of estoppel between landlord and tenant was never designed to work such a result. It was designed merely as a shield for the protection of the landlord, and not as a sword for the destruction of the tenant.

It may be said that the taking of the lease by B. is a misrepresentation of his owm relation to the land, and calculated to lull A. into security, and induce him to neglect the prosecution of his rights, to his prejudice in some possible way. If so, by parity of reason, the giving a lease is a misrepresentation by A. as to the title, tending directly to the prejudice of B., and if the account of the latter is to be charged with misrepresentation in receiving, the account of the former must, by parity of reason, be charged with misrepresentation in giving the lease, which so far results in a balance, and still leaves the parties upon equal terms, to maintain which is the principal object of the estoppel.

And this brings us to the precise point of difference between us and the learned counsel for the respondent, ivhether the bare possession of the tenant at the time the lease is given and taken is sufficient to take the case out of the operation of the general rule, that the'tenant cannot dispute the landlord’s title, or whether there must be, in addition to the possession of the tenant, some force, fraud, misrepresentation, or mistake induced by the landlord, beyond what is implied in the transaction itself, by which the tenant ivas influenced to take the lease. The latter view is maintained by counsel, while in Tewksbury v. Magraff we declared the former.

Counsel does not claim that force, fraud, misrepresentation, etc., are not of themselves, irrespective of the fact of possession, sufficient to take the case out of the operation of the general rule. If they are, and of that there can be no doubt, it follows that, on the score of principle, the fact of possession is a false quantity for all the purposes of the question. If the bare possession of the tenant is not enough, and force, fraud, misrepresentation, and the like, are of themselves enough to take the case out of the operation of the general rule, obviously the fact of possession is then wholly immaterial, and constitutes no quantity in the problem to be solved. So, on the score of logic, the argument, if it proves anything, proves too much.

But it is said that Tewksbury v. Magraff goes further than any previous case has gone, and that it cannot be maintained upon authority. That there are cases where it has been held that the bare possession of the tenant at the letting does not relieve him from the estoppel, cannot be denied; nor can it be denied, as we shall presently see, that there are cases the other way. The latter, in our judgment, accord with the reason upon which, as we have seen, the estoppel is founded, but the former do not.

Of the eases which declare a doctrine contrary to the one entertained by us, there are two classes : first, those in which the facts presented the dry question whether the bare possession of the tenant at the letting relieves him from the estoppel; and second, those in which the dry question was not presented by the facts, and the docrine was announced merely in the course of discussion. The latter are entitled to no consideration as precedents. For the former only can that distinction be claimed. Of them only two have been called to our attention in which the decision turned upon a bare possession by the tenant at the time of the letting": McConnell v. Bowdry's Heirs and Widow, 4 Monroe, 392, and Jackson v. Ayres, 14 Johns. 224. In neither case was the reason upon which the estoppel is founded considered or applied. In each the Court merely stated what it considered to be the rule; and the latter case, as the report shows, was submitted without argument. Such cases are far from satisfactory, and are not to be received as conclusive of the law. The remaining cases, upon which the respondent relies, are entirely consistent with the rule announced by us in Tewksbury v. Magraff.

In Hall v. Butler, 10 Ad. & Ellis, 205, N., having no title to certain premises, let them by parol, and received rent. Afterwards another claimant, B., demanded the rent; and 27. being satisfied with B.’s title, informed his tenant, in B.’s presence, that he had given up the premises to B., who was now the landlord, and that the rent was thenceforth to be paid to B. The tenant acquiesced, and when B. demanded the next quarter’s rent, paid part of it on account. Lord Chief Justice Denman, Mr. Justice Littledale, and Mr. Justice Patterson, all delivered opinions to the effect that the tenant was estopped, but put their conclusions upon somewhat different grounds. Lord Denman put his judgment upon two grounds: first—that 27. was to be considered as the agent of B., and, therefore, that the entry of the tenant was under B.’s title; and second—that there was a fresh demise by B., unaccompanied by any misrepresentation as to the title by B. In this latter ground Lord Denman implied merely that the possession of the tenant, of itself, made no difference in the result. Mr. Justice Patterson, however, recognized the contrary doctrine. He said: “There is a distinction between disputing the title of one who has actually let the party into possession, and of one who afterward claims to be entitled. In the latter case the tenant may generally dispute it by showing title in another.” He then adds: “ I am not sure that it [the transaction between '27. and the tenant] may not be considered as an original taking from B. himself; for 27. treats himself as the agent of B. who adopts the demise.” This common ground must be considered as the ground upon which the judgment in the case rests, in which view the case is entirely consistent with the rule in this Court.

Ingraham v. Baldwin, 9 N. Y. 45, was a case where the tenant entered under the lease, and the landlord afterward conveyed to the plaintiff, to whom the tenant then attorned; and it was held, that the tenant could not dispute the title of the plaintiff. Instead of being at war with Tewksbury v. Magraff, this case is entirely consistent with it. We there held, that in such a case the tenant could dispute only the derivative title. By so doing he does not deny the title of his landlord, but merely that the plaintiff has become the grantee of his landlord. But beyond that he cannot go, for to do so would be to dispute the title under which he entered.

The other cases are where extrinsic misrepresentation and the like, on the part of the landlord, accompanied the possession of the tenant at the letting, and where it was held that the tenant was not estopped. They are: Hall v. Benner, 1 Penn. 402; Hamilton v. Marsden, 6 Binney, 45; Brown v. Dysinger, 1 Rawle, 409; Miller v. McBrier, 14 S. & R. 385; Swift v. Dean, 11 Vt. 325; and Shultz v. Elliott, 11 Humph. 186. Of them it is sufficient to say that they are not authority upon the question in hand. They establish the proposition that a tenant who was in possession at the time he took his lease, and who was induced to take it by unfair means, may dispute his landlord’s title—a proposition which no one disputes. Because they do that, however, they cannot be taken as negatively establishing the proposition that the tenant cannot dispute the title of his landlord solely upon the ground that he was in possession when he took his lease. They cannot be considered as implying such a proposition; but even if they did, so important a question is not to he so decided.

We now come to those cases by which, as we consider, the rule in Tewksbury v. Magraff is sustained. Chettle v. Pound, 1 Ld. Raym. 746, was an action of debt for rent. Upon nil debet pleaded, the plaintiff gave in evidence a note in writing, by which the defendant had agreed to hold for one year, rendering rent of fifteen pounds sterling. The plaintiff was grantee of a reversion expectant upon an estate for life, and the tenant for life was dead at the time the note was given. The grant to the plaintiff was made forty years before, and he had never been in possession. The defendant offered to prove a grant of the reversion prior to that of the plaintiff, and thus show that the plaintiff had no title at the time the note in writing was given, and it was ruled by Mr. Chief Justice Holt, that the defendant could do so because the plaintiff had never been in possession; but if he had, that then the defendant could not have given the prior grant in evidence without having been evicted. There was no pretense that the note in writing, by which the defendant had agreed to hold for the plaintiff, had been obtained by any unfair means not implied in the transaction itself, and the case turned wholly upon the bare fact that the defendant did not receive the possession from the plaintiff.

Rogers v. Pitcher, 6 Taunt. 202, was replevin for property distrained for rent. The plaintiff was in possession, and the defendant obtained a judgment and elegit against a moiety of the premises, aud thereafter the plaintiff had paid rent for such moiety. The defendant, on whom the issue of tenancy lay, proved the payment of rent, and rested. The plaintiff proposed to answer it by showing that the defendant was not, at the time the rent was paid, or then, legally entitled to the rent. To which the defendant objected upon the ground that by the payment of the rent the plaintiff had acknowledged the defendant as her landlord, and was now estopped from contesting his title. It was held that the plaintiff was not estopped. There was no pretense of any extrinsic misrepresentation, or the like, on the part of the defendant by which the plaintiff had been induced to pay rent. There was, therefore, no ground for the rule adopted, except the possession of the plaintiff' before and at the time of the attornment; although there is, as we admit, language in the opinions of the Judges which, unless road by the light of the facts of the case, might lead to the inference that the case included express misrepresentation or the like. But it is well understood th.at, on the score of authority, it is the facts and the judgment thereon which constitute the case, and not the mere language of the Court in announcing its conclusions.

Gravenor v. Woodhouse, 1 Bing. 38, was also an action of replevin for property distrained for rent. At the trial the defendant put in a written attornment, by which the plaintiff, being in possession at the time, as the attornment upon its face showed, agreed to hold for one year, and from year to year, at a yearly rent of seventy pounds sterling, without prejudice to any right or claim of his own to the premises.

It was objected on the part of the plaintiff that the language of the avowries was not sustained by the attornment, and evidence was offered of a feoffment made to the plaintiff by a person under whom the defendants claimed, and of certain letters from that person containing expressions which were said to be adverse to the defendants. The Court, however, thought the avowries sustained by the language of the attornment, and rejected the evidence, upon the ground that the plaintiff could not dispute his tenancy, after having made the attornment in question. There was no pretense, so far as the case shows, that the attornment had been obtained by any unfair means, not implied in the transaction, on the part of the defendants. The judgment went against the plaintiff, and there was, therefore, no ground for a new trial, except the fact that the plaintiff was in possession when he attorned. A new trial was, nevertheless, granted, the Court holding that the attornment did not estop the plaintiff.

Cornish v. Searell, 8 B. and C. 471, was assumpsit for use and occupation. A. being tenant in possession under B, and a sequestration having issued out of chancery against B., signed the following instrument: “ I hereby attorn and become the tenant of C. and D., two of the sequestrators named in the writ of sequestration issued in the said suit in chancery, and to hold the same for such time and on such conditions as may be subsequently agreed upon.” It was held, first, that this was an agreement to become tenant and required a stamp; and, second, that A., not having received possession from C. and D., might dispute their title. So far as the statement of facts as given by the reporter, shows, there was in this case no suggestion of unfair means not intrinsic, on the part of C. and D., by reason of which A. was induced to attorn to them. Yet it has been said that it was a case of mistake. This statement has no foundation whatever in the facts of the case, and rests entirely upon a single word found in the opinion of Mr. JusticeBaylev, who said: “As sequestrators they [the plaintiffs, C. and D.] have no legal right to receive the rents. It has been said that the defendant, having agreed to become tenant to tbe plaintiffs, cannot dispute their title. If the defendant had received possession from them, he could not dispute their title. In Rogers v. Pitcher, and Gravenor v. Woodhouse, the distinction is pointed out between the case where a person has actually received possession from one who has no title, and the case where he has merely attorned by mistake to one who has no title. In the former case the tenant cannot (except under very special circumstances) dispute the title; in the latter he may.” The claim that the case was one of mistake is founded solely upon the use of the word “mistake” in the foregoing passage. There was no mistake whatever as to the title of 0. and D. There could be none, for the instrument which was signed by A. showed upon its face that they were only sequestrators, and, therefore, without legal claim to the rents. It cannot be supposed that a person in possession will knowingly take a lease from a party who has no title to the premises, and it is not, therefore, a forced use of language to speak of it as a “mistake;” and it is in that sense that we understand Mr. Justice Bayley. But were it otherwise, the incautious use of words by the Court cannot override the facts of the case, or limit the force of the judgment. It is very certain that A. signed the instrument with his eyes open, knowing all the facts and circumstances, and that it was considered that he was not estopped by that act.

In Jackson v. Cuerden, 2 Johns. Cases, 353, the defendant A. being in possession under B., the supposed proprietor, applied by letter to C., as the real owner, to purchase, and requested to be considered as a tenant. In ejectment by C. against A., it was held that the latter was not estopped by his letter from showing that his letter was grounded on a mistake, or that the fee existed in himself, or out of the plaintiff. (See, also, Jackson v. Spear, 7 Wend. 401.)

In all cases where a party out of possession seeks a taking and holding under himself by another in possession, from the very nature of the case there must be a representation by him that he is the owner. The bare proposition to lease involves such a representation, and if he be not the owner the representation is false. If, under such circumstances, a party in possession takes a lease, his act can be accounted for upon no ratioiial theory except that he was influenced by this express or implied representation. When, therefore, in the opinions of the Judges, such expressions are used, their sense is fully satisfied, as we consider, by the intrinsic probability that there was unfair means employed, or there was some mistake, by which the tenant was induced to act; and, in our judgment, such intrinsic probability not only justifies, but requires the Courts to look behind the lease, and unearth the truth. As already suggested, the doctrine of estoppel was not designed to secure to any one an advantage over another, but to prevent such a result, and to maintain the status which existed at the outset—to protect the landlord in his actual possession against the trickery or sharp practice of the tenant, not to enable him to impose upon the tenant, and thereby obtain that which before he had not. To hold otherwise would be to blow hot and cold—to approve fraud and trickery in one, and reprove it in another, in the same breath. At best, the landlord gains the advantage of a prima facie case, and casts upon the tenant the burden of overcoming it, for he has but to prove the lease and rest. With this he must be content; for, in our judgment, the cases which go further are departures from principle, and therefore precedents which ought not to be followed.

Judgment and order reversed, and a new trial granted.