I. The refusal by the Court, at the hearing, to allow Warschauer so to amend his answer as to plead that Mrs. Wheelock acted upon the oral notice she received of the existence of the suit of Dutton v. Warschauer, by employing counsel and conducting the defense to the action, was right.
1. Section twenty of the statute authorizes amendments " in matters of form only." The amendment proposed was one of substance. 2. The right to amend had been lost by the stipulation as to the facts, the waiver of the right of jury trial, and the submission of the cause to the Court upon the agreed statement. 3. The grantingor refusal of the amendment was within the sound discretion of the Court, which, under the circumstances, was properly exercised.
II. The Court did not err in refusing to permit testimony to be introduced to support the allegation proposed to be made in the amendment, which had been previously refused. It is true that the statute (sec. 20) provides that " all matters in excuse, justification, or avoidance, may be given in evidence under the answer; " that is, when specially pleaded in the answer. That part of the section is merely declaratory of the ordinary rule of evidence, and a different construction would render the first part wholly inoperative. The matter proposed to be given in evidence was neither in excuse, justification, or avoidance, of the allegations in the complaint. The argument under this head will be stated hereafter.
III. The special plea set up by Warschauer and admitted by the stipulation is not in law sufficient to defeat our recovery.
The general rule of law applicable to the relationship of landlord and tenant, in the aspect presented by this case, is well expressed in the following extract from the opinion of Mr. Justice Baldwin in the case of Willison v. Watkins (3 Pet. 47, 48). " It is an undoubted principle of law, fully recognized by this Court, that a tenant cannot dispute the title of his landlord, either by setting up a title in himself or a third person, during the existence of the lease or tenancy. The principle of estoppel applies to the relation between them, and operates in its full force to prevent the tenant from violating that contract by which he obtained and holds possession. He cannot change the character of the tenure by his own act merely, so as to enable himself to hold against his landlord, who reposes under the security of the tenancy, believing the possession of the tenant to be his own, held under his title, and ready to be surrendered by its termination by the lapse of time, or demand of possession. * * On all these subjects the law is too well settled to require illustration, or reasoning, or to admit of a doubt."
Hovenden v. Lord Annesley, (2 Scho. & Lef. 607) case of a tenant who attorned to an adverse claimant, Lord Redesdale said: " The attornment will not affect the title of the lessor so long as he has a right to consider the person holding possession as his tenant." Porter v. Mayfield, (21 Penn. 263, 264) " The principle is, that when the relation of landlord and tenant appears, that relation must be dissolved and the possession restored before the tenant can set up another title." In Camp v. Camp (5 Conn. 301) the person " once a tenant, so long as he remains in the occupation of the land demised, must be deemed to continue in that character, unless he has surrendered the possession to his landlord," etc. In this action the tenant certainly cannot put his landlord's title on trial.
Ryerss, Baxter et als. v. Wheeler, (25 Wend. 436) leaving out of consideration, for the present, the oral notice Mrs. Wheelock received and the form of the action, is precisely similar to this case. The tenants were sued in ejectment by one Bogert, and dispossessed by the Sheriff of Yates County by virtue of a writ of habere facias possessionem. They then attorned to Bogert and set up these proceedings as a defense to an action of ejectment by their landlord. Chief Justice Nelson, in delivering the opinion of the Court, said: " For aught that appears, Baxter (the landlord) had no knowledge of the suits against his tenants, (the Wheelers) nor any opportunity todefend. Under such circumstances, I cannot say the recovery is to have the effect of destroying the presumption of title arising from his prior possession. It is very easy to see that great injustice might be done if, by the default or collusion of his tenants, he should be driven to put himself on the legal title." (See also Coburn et al. v. Palmer, 8 Cush. 124; Wall v. Goodenough , 16 Ill. 415; McCartney v. Hunt et al., Id. 76; Dumas v. Hunter , 25 Ala. 711.)
The above authorities show--1st. That the special defense set up by Warschauer could, under no circumstances, avail him in this form of action; although if the proper notice had been given, or if the landlord had in fact defended the ejection suit, it might perhaps have been used as the basis of a bill in equity brought to restrain the proceedings in this action. 2d. That it would not avail him in any form of action unless he could show that this landlord had, in fact, full and exclusive control of the suit in ejectment, or that a written notice was served upon the landlord immediately after commencement of the action, apprising her of its character and offering her the opportunity to come in and defend.
IV. The oral notice to Mrs. Wheelock of the existence of the suit of Dutton v. Warschauer was insufficient. That any oral notice would have been insufficient is, I think, clearly established by the able dissenting opinion of Mr. Justice Bronson in the case of Miner v. Clark, (15 Wend. 428) which was subsequently sustained by the Supreme Court of New York in McEwen et als. v. The Montgomery County Mutual Insurance Co., (5 Hill, 101) and which has been adopted by the Supreme Court of this State in Peabody v. Phelps (9 Cal. 226). But even if the respondent might have been orally notified of the character of the suit of Dutton v. Warschauer, and of the effect it was likely to have upon her rights and interests, so as to fix upon her the responsibility of defending the action, she was not so notified. In the language of Mr. Justice Field (Peabody v. Phelps, supra ) she was not apprised " of what was required of her, and of the consequences which might follow if she neglected to defend the action." And it clearly appears by the record that she had, in fact, no opportunity to defend the action, because the appellant himself alleges that he exercised full control over it.
Itis proper, also, to observe here, that the cases above cited were not between landlord and tenant, and therefore not within the rule requiring the strictest good faith upon the part of the tenant. The reasoning they contain applies a fortiori to this case. (Paul v. Witman, 3 Watts & Serg. 409; Collingwood v. Irwin, 3 Watts, 310; In re Cooper, 15 John. 533; Adams on Ejectment, 255.)
If the respondent had been actually present in Court, and had cross-examined witnesses at the trial of Dutton v. Warschauer, her rights as against Warschauer would not have been affected. (4 Phil. Ev. 3.)
JUDGES: Cope, J. delivered the opinion of the Court. Field, C. J. and Norton, J. concurring.
OPINION
COPE, Judge
This is an action under the thirteenth section of the Forcible Entry and Unlawful Detainer Act. The complaint alleges that the defendant is a tenant of the plaintiff, and that he unlawfully detains the demised premises, setting forth facts showing a wrongful holding over. The answer admits that a tenancy once existed between the parties, but alleges that it was terminated by the eviction of the defendant under a judgment in ejectment recovered against him by one Dutton. It alleges also that the defendant pleaded his title as tenant in defense of the ejectment suit, and that he now holds under a lease executed by Dutton subsequent to the eviction. There is no allegation that the plaintiff had notice of the pendency of the suit, but there is a stipulation authorizing an amendment in this respect, and admitting verbal notice of the fact. On the trial the defendant asked leave to amend by inserting an allegation that the plaintiff had acted upon this notice, and employed counsel to defend the suit, but the Court refused to allow it. He then offered evidence to that effect, which was rejected, and the case being submitted to the Court, a judgment was rendered in favor of the plaintiff. The eviction was admitted, and if the matters alleged upon that subject, together with the fact of notice, are sufficient to constitute a defense, the judgment must be reversed.
The right to maintain the action depends upon the existence of a tenancy, and a tenancy once created is presumed to continue so long as the tenant remains in possession. This presumption may be rebutted, however, for the rule which estops a tenant from disputing the title of his landlord does not prevent him from showing that the tenancy has been determined. He is estopped so long as the tenancy continues, but the tenancy being dissolved, the disabilities resulting from his position as a tenant are removed, and the estoppel ceases. " The tenant," says Greenleaf, " may always show that his landlord's title has expired, or that he has sold his interest in the premises, or that it is alienated from him by judgment and operation of law." (2 Greenl. Ev. 253.) This doctrine is supported by a multitude of cases, and it seems that where the tenant is evicted by one having an adverse title, he may take from the latter a new lease, and set it up as against the landlord. (1 Washburn on Real Property, 359; Foster v. Norris , 3 A. K. Marsh. 609.) It is the duty of the landlord to protect him in his possession, and he may treat the eviction as terminating the tenancy, and resist any claim by the landlord, either for rent or for the possession. It is necessary, of course, that notice be given of the proceeding by which the tenant is evicted, so that the landlord may not be taken by surprise, and suffer an injury by reason of the carelessness or collusion of the tenant. There is no doubt that a defense of this character is admissible in the present case, for the statute expressly provides that matters of excuse, justification, or avoidance may be given in evidence. No question of title is involved, the question being simply as to the eviction, the effect of which was to dispossess the plaintiff as well as the defendant, relieving the latter from the obligations of the tenancy. So far as the notice is concerned, we regard the stipulation as sufficient, for it admits that verbal notice was given, and the necessary inference is that the notice was full and complete. It is true the amendment authorized does not appear to have been made, but the object of the stipulation was to supply the defect; and we think the admission is to be considered as properly in the case. It is possible that the answer is not sufficiently explicit as to the title upon which the defendant was evicted, but under the circumstances we think an objection of this character ought not to be allowed. It appears that the tenancy was from month to month, and taking all the allegations together, they are sufficient to justify the conclusion that the title was adverse to that of the plaintiff. The fact is not directly alleged, but the case appears to have been determined without reference to technical defects, and solely upon the ground of the inadmissibility of the defense.
The judgment is reversed and the cause remanded for a new trial.