By the Court, Sanderson, J.:
Whether a tenant can dispute his landlord’s title depends upon a variety of circumstances. The general rule is that he cannot, and that the estoppel continues, not to the end of the term merely, but to the end of the tenant’s occupation, or, where there has been a repudiation of the tenancy and a subsequent adverse holding by the tenant, until the Statute of Limitations has run in his favor. He cannot set up an outstanding title which he may have acquired. Before he can avail himself of such a title he must surrender the possession. (Doe on the demise of Knight v. Smythe, 4 M. & S. 348 ; Greeno v. Munson, 9 Vt. 37.) To say that he may set up an adverse title acquired by him to defeat a recovery by his landlord, after the term has expired, is to say that there is no estoppel, and that a tenant may always deny his landlord’s title. (Wilson v. Cleaveland, 30 Cal. 201.) To allow a party to obtain possession by entering under a lease, and then to disclaim, either before or after the expiration of the term, would be to encourage the very fraud and chicanery which the estoppel was designed to prevent. The estoppel rests upon considerations of public policy which, for obvious reasons, would be defeated in its purpose if one who has been put in possession of land by another should be allowed to controvert the title of the latter without first restoring him [245]*245to as good a condition as he was in before he parted with the possession. (Glen v. Gibson, 9 Barb. 638.)
This general rule is, however, subject to several exceptions. One is where, in taking the lease, the lessee was deceived and imposed upon by .the lessor (Gleim v. Rise, 6 Watts, 44.) So if the tenant has been ousted by title paramount he may plead it (Hayne v. Maltby, 3 Term. R. 441); also that the landlord’s title has ceased or become extinguished (Jackson v. Rowland, 6 Wend. 666); or that he has acquired his landlord’s title by purchase from him or at a judicial sale, or by a redemption. And if the action is brought by a vendee of the landlord the tenant may dispute , the derivative title. (Phillips v. Pearce, 5 B. & C. 433; Reray v. Cotter, 29 Cal. 168.) So if the tenant did not take possession under the lease, but was in possession at the time he took his lease, he may dispute the landlord’s title without first surrendering the possession; for not having received the possession from him, he is under no moral or legal obligation to restore it before adopting a hostile attitude, and he may have attorned, by mistake, to one who had no title. (Cornish v. Searell, 8 B. & C. 471.) To these exceptions may be added, possibly, the case where it appears affirmatively that both parties have acted" under a mutual mistake as to the law in regard to the title of the lessor. (Glen v. Gibson, supra.)
The case comes here upon the findings alone, and although, as stated by counsel, they have been purposely elaborated with a view to an appeal, so that any necessity for a statement might be avoided, yet it is impossible for us to say whether the case comes under the general rule or falls within some one of the exceptions noted above. Bor instance : It does not appear from the findings whether the defendant was in possession before he leased from the plaintiff, or went in afterwards and under the lease. If he did not go in under the lease, he had a right to try the title, as we have seen; for not having received the possession from the plaintiff, the latter is in as good a position now as he was at the time he [246]*246executed the lease, which is all the benefit which the doctrine of estoppel is intended to secure. If the defendant was in possession at the time he took the lease, the plaintiff cannot say, “ You must surrender possession to me before you can try title with me,” because he cannot in the same breath add, “ for you received the possession from me, and fair dealing requires that before you make war on me you should put me in the same condition in which you found me.” The AÚtal fact, which ought to have been found in order to sustain the theory of the appellant, is that tlie respondent received the possession from the appellant under and by virtue of the lease. If he did, he cannot, as we have seen, rely upon a title afterwards acquired by him to defeat a recovery in, whole or in part. Yet this most important fact is not found either way.
The only finding bearing'upon this point is as follows :
“ That on the 23d day of January, 1861, the plaintiff as landlord, and the defendant as his tenant, entered into and executed a certain written lease of the premises described in the complaint, for the term of ten months from the 1st day of January, 1861, and for the rent for said term of fifty dollars cash, and for other considerations expressed in said lease.”
Nothing is said as to which party was in possession at the time the lease was made—whether the defendant was in possession or entered afterwards under the lease—nor any facts found to show that the defendant may not be within some of the other exceptions to the rule in hand instead of the rule itself. Upon such a finding the appellant cannot obtain a reversal Avithout showing that the rule upon which he relies is universal, or without exceptions of any kind, which, as we have seen, is not the case.
It may well be doubted whether the Act of the 20th of May, 1861, (so far as it relates to findings, and reproduced in the amendments of 1866 to section one hundred and eighty of the Practice Act,) is not productive of more mischief than good. It certainly proceeds upon an illogical theory, [247]*247for it inverts the natural and logical order of the proceedings. Instead of making it the duty of the successful party to see that the findings contain facts sufficient to sustain the judgment, it makes it the duty of the unsuccessful party to see that it contains facts sufficient to reverse it. Instead of making the finding a consistent and visible foundation for the judgment to stand upon, the statute converts it into air or a mine for its explosion. This change certainly detracts from the logic of the judgment roll, the various parts of which, like the members of a Macedonian phalanx, should rest upon and support each other, and entails a practice which, in a majority of cases, defeats the end which findings were intended to subserve.
The practice, which prevails to a very considerable extent, if not universally, of allowing the successful party to draw the findings after the judgment of the Court has been announced, does not favor the ends which a finding is designed to accomplish. To be of any use, under the operation of section one hundred and eighty, as amended in 1866, the finding should contain all the facts disclosed by the evidence which, in the judgment of counsel on both sides, have any bearing upon the question as to what the judgment should be. Unless it does, it is no better than a general verdict, and wholly fails to accomplish the object intended, which is to obviate the necessity of a motion for a new trial and a preparation of a statement of the evidence preliminary to an appeal.
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By the Court, Sanderson, J.:
Whether a tenant can dispute his landlord’s title depends upon a variety of circumstances. The general rule is that he cannot, and that the estoppel continues, not to the end of the term merely, but to the end of the tenant’s occupation, or, where there has been a repudiation of the tenancy and a subsequent adverse holding by the tenant, until the Statute of Limitations has run in his favor. He cannot set up an outstanding title which he may have acquired. Before he can avail himself of such a title he must surrender the possession. (Doe on the demise of Knight v. Smythe, 4 M. & S. 348 ; Greeno v. Munson, 9 Vt. 37.) To say that he may set up an adverse title acquired by him to defeat a recovery by his landlord, after the term has expired, is to say that there is no estoppel, and that a tenant may always deny his landlord’s title. (Wilson v. Cleaveland, 30 Cal. 201.) To allow a party to obtain possession by entering under a lease, and then to disclaim, either before or after the expiration of the term, would be to encourage the very fraud and chicanery which the estoppel was designed to prevent. The estoppel rests upon considerations of public policy which, for obvious reasons, would be defeated in its purpose if one who has been put in possession of land by another should be allowed to controvert the title of the latter without first restoring him [245]*245to as good a condition as he was in before he parted with the possession. (Glen v. Gibson, 9 Barb. 638.)
This general rule is, however, subject to several exceptions. One is where, in taking the lease, the lessee was deceived and imposed upon by .the lessor (Gleim v. Rise, 6 Watts, 44.) So if the tenant has been ousted by title paramount he may plead it (Hayne v. Maltby, 3 Term. R. 441); also that the landlord’s title has ceased or become extinguished (Jackson v. Rowland, 6 Wend. 666); or that he has acquired his landlord’s title by purchase from him or at a judicial sale, or by a redemption. And if the action is brought by a vendee of the landlord the tenant may dispute , the derivative title. (Phillips v. Pearce, 5 B. & C. 433; Reray v. Cotter, 29 Cal. 168.) So if the tenant did not take possession under the lease, but was in possession at the time he took his lease, he may dispute the landlord’s title without first surrendering the possession; for not having received the possession from him, he is under no moral or legal obligation to restore it before adopting a hostile attitude, and he may have attorned, by mistake, to one who had no title. (Cornish v. Searell, 8 B. & C. 471.) To these exceptions may be added, possibly, the case where it appears affirmatively that both parties have acted" under a mutual mistake as to the law in regard to the title of the lessor. (Glen v. Gibson, supra.)
The case comes here upon the findings alone, and although, as stated by counsel, they have been purposely elaborated with a view to an appeal, so that any necessity for a statement might be avoided, yet it is impossible for us to say whether the case comes under the general rule or falls within some one of the exceptions noted above. Bor instance : It does not appear from the findings whether the defendant was in possession before he leased from the plaintiff, or went in afterwards and under the lease. If he did not go in under the lease, he had a right to try the title, as we have seen; for not having received the possession from the plaintiff, the latter is in as good a position now as he was at the time he [246]*246executed the lease, which is all the benefit which the doctrine of estoppel is intended to secure. If the defendant was in possession at the time he took the lease, the plaintiff cannot say, “ You must surrender possession to me before you can try title with me,” because he cannot in the same breath add, “ for you received the possession from me, and fair dealing requires that before you make war on me you should put me in the same condition in which you found me.” The AÚtal fact, which ought to have been found in order to sustain the theory of the appellant, is that tlie respondent received the possession from the appellant under and by virtue of the lease. If he did, he cannot, as we have seen, rely upon a title afterwards acquired by him to defeat a recovery in, whole or in part. Yet this most important fact is not found either way.
The only finding bearing'upon this point is as follows :
“ That on the 23d day of January, 1861, the plaintiff as landlord, and the defendant as his tenant, entered into and executed a certain written lease of the premises described in the complaint, for the term of ten months from the 1st day of January, 1861, and for the rent for said term of fifty dollars cash, and for other considerations expressed in said lease.”
Nothing is said as to which party was in possession at the time the lease was made—whether the defendant was in possession or entered afterwards under the lease—nor any facts found to show that the defendant may not be within some of the other exceptions to the rule in hand instead of the rule itself. Upon such a finding the appellant cannot obtain a reversal Avithout showing that the rule upon which he relies is universal, or without exceptions of any kind, which, as we have seen, is not the case.
It may well be doubted whether the Act of the 20th of May, 1861, (so far as it relates to findings, and reproduced in the amendments of 1866 to section one hundred and eighty of the Practice Act,) is not productive of more mischief than good. It certainly proceeds upon an illogical theory, [247]*247for it inverts the natural and logical order of the proceedings. Instead of making it the duty of the successful party to see that the findings contain facts sufficient to sustain the judgment, it makes it the duty of the unsuccessful party to see that it contains facts sufficient to reverse it. Instead of making the finding a consistent and visible foundation for the judgment to stand upon, the statute converts it into air or a mine for its explosion. This change certainly detracts from the logic of the judgment roll, the various parts of which, like the members of a Macedonian phalanx, should rest upon and support each other, and entails a practice which, in a majority of cases, defeats the end which findings were intended to subserve.
The practice, which prevails to a very considerable extent, if not universally, of allowing the successful party to draw the findings after the judgment of the Court has been announced, does not favor the ends which a finding is designed to accomplish. To be of any use, under the operation of section one hundred and eighty, as amended in 1866, the finding should contain all the facts disclosed by the evidence which, in the judgment of counsel on both sides, have any bearing upon the question as to what the judgment should be. Unless it does, it is no better than a general verdict, and wholly fails to accomplish the object intended, which is to obviate the necessity of a motion for a new trial and a preparation of a statement of the evidence preliminary to an appeal. In a vast majority of cases there would be no occasion for a motion for a new trial, and as incidental thereto, for the trouble, labor and expense of getting, up a record upon which the motion is to be heard, if the findings were what they are designed to be, and what they ought to be; for in nine cases out of ten, where the trial is by the Court, the sole controversy here is as to whether the conclusions of law are correct. In all such cases there should be, and there certainly need be, no occasion for a motion for a new trial, or for bringing the evidence to this Court in any form. Every such case ought to come here upon the judg[248]*248ment roll. But under the present practice, in getting up the findings serious obstacles are thrown in the way, and the end of a finding often defeated, and therefore a motion for a new trial attended by delay, labor and expense made necessary. Instead of announcing its judgment, and then, if findings are demanded by the unsuccessful party, directing the successful party to draw them, it would be a better practice for the Court to first ask counsel upon both sides if they desire findings; and if they do, reserve its judgment and direct each side to prepare and submit such questions of fact as they desire to have found. This being done, the Court should answer from the evidence every question submitted, and then, having first determined and settled all the facts, pronounce its judgment, and not before. By such a course a defective finding will rarely happen or a motion for a new trial be required. If exceptions have been taken to the rulings of the Court, upon demurrers to evidence, they can be embodied in bills of exceptions and brought up for review in that form. If, however, the practice of first announcing the judgment, and preparing the findings afterwards, is followed, the Court ought to direct the losing party to draw the findings; for the successful party, under the operation of the Act in question, has no motive to make the findings, in the first instance at least, what they ought to be. Under the former practice the successful party was primarily interested in having the findings full and complete for the purpose of sustaining the judgment, and it was therefore proper that he should be allowed to draw them; but under the present practice the conditions are inverted, and the losing party has become primarily interested in the fullness and completeness of the findings, and, by parity of reason, he should be allowed to draw them. The course first suggested, however, is in all respects the better practice.
Judgment affirmed.