purchaser; and it was adjudged upon a writ of error from Ireland, that the purchaser should be bound by the lease, for having come in under a person who is bound by the estoppel, he should himself be estopped and if the condition of the mortgage were broken at the time of making the lease, so as that the mortgagor(t) had nothing in the premises but an equity of redemption, yet if he be admitted to redeem the mortgage in equity, the intermediate lease, which originally operated by estoppel, becomes vested in interest, and unavoidable.

A person having entered upon a strip of land without title, and having built a cottage on it, was prevailed on to accept a lease by indenture from one Bullen for ninety-nine years; this strip was claimed by Mills, as being the owner(u) of adjoining lands, and he obtained possession by paying twenty pounds to the occupier: upon an ejectment by Bullen, it was decided that Mills must be considered as sustaining the character of assignee of the lease, and was as completely estopped from disputing Bullen's title as the occupier who was Bullen's immediate lessee would have been.

A husband having conveyed lands to a purchaser in fee, a parol agreement was entered into, that, notwithstanding the conveyance, he should hold the land for his own life, and upon his decease, his wife having retained possession, an ejectment was brought by the heir of the purchaser, when the widow set up a prior(v) mortgage of the premises by her husband, and it was ruled that she was precluded from insisting on such a defence, as she entered into possession under the husband, and as he was bound by the conveyance, it operated as an estoppel against her.

7. Though a party may be estopped in one character, he may shew a title derived by him in a different character. An estoppel created on the part of a mother is not binding(w) on the heir when he derives from his father, though the deed of the mother only conveyed such an interest in the land as she was then entitled to part with: so a person having a right to the use of water, as the owner of lands bordering(x) on a stream, is not estopped from asserting his title to the water, because he afterwards purchases lands lower down the stream from a person who had secretly parted with his interest in that water.

(t) O'Melaghlin v. Hood, Bac. Abr. Leases by Estoppel, O.

(u) Doe dem. Bullen v. Mills, 4 Nev. & M. 25; 2 Ad. & Ell. 17, S. C.; Doe dem. Knight v. Lady Smythe, 4 M. & Selw. 347; Doe dem. Marlow v. Wiggins, 7 Jurist, 529.

(v) Doe dem. Leeming v. Skirrow, 2

Nev. & P. 123; 7 Ad. & Ell. 157; Doe dem. Burrell v. Perkins, 3 M. & Selw. 271.

(w) Syms's case, 8 Rep. 53, B.; Co. Litt. 365, B.; Edwards v. Rogers, Cro. Jac. 524-543; W. Jones, 456, S. C.

(x) Smyth v. Wilson, 2 Jebb & S.

660.

8. The parties to a lease resting merely in estoppel are reciprocally answerable to each other for breach of any of the covenants contained in it, but as long as the lease continues binding by force of the estoppel alone, neither an assignee of the lessee's interest can sue the lessor for breach of any of the covenants, nor can the assignees of the lessor's estate take advantage of any of the covenants. By a declaration in covenant it appeared that John King by indenture(y) demised to the defendant Awder for years, and that Awder by indenture assigned to Abell, and covenanted for quiet enjoyment against all persons: Abell assigned to the plaintiff, and it was averred that before the lessor, John King, had any thing in the premises, one Robert King was seised in fee, and upon his decease the premises descended to Thomas King, who entered and evicted the plaintiff. After verdict for the plaintiff, the judgement was arrested, because John King, the lessor, had nothing in the premises when he demised to Awder, or when Awder assigned to Abell, and nothing passed but by estoppel; and as lessee by estoppel could not assign, an action for breach of the covenant for quiet enjoyment would not lie at the suit of such assignee.

So a party who had only an equitable estate in fee, demised for years by indenture to one Philip Keys, who entered into the usual covenants; the lessor afterwards acquired the legal estate, and having assigned his reversion in the premises, it was decided that the assignee of the reversion(z) could not maintain any action for breach of covenant, as the lessee was at liberty to shew that the lessor had not such a title as enabled him to transfer to his assignee a right to sue the lessee, and that the lessee's covenants were covenants in gross, which do not run with the reversion.

9. Where an immediate interest passes by a lease, there shall be no estoppel, though the interest which the lease(a) purports to grant be really greater than the lessor had at that time power to confer. If a lessee for ten years make a lease(b) for twenty years, and afterwards purchase the reversion in fee, he shall not be bound for more than ten years; and in like manner if tenant, pur auter vie, demise for years by deed indented, and afterwards acquire the reversion in fee, and the ces

(y) Noke v. Awder, Cro. El. 373– 436; Moor, 419; Palmer v. Ekins, 2 Ld. Raym. 1552; Campbell v. Lewis, in error, 3 B. & Ald. 392-396.

(2) Whitton v. Peacock, 2 Bing. N.
C. 411; 2 Scott, 630; 3 My. & K. 325;
Webb v.
Russell, 3 T. R. 393; Carvick

v. Blagrave, 1 Brod. & B. 531; 4 Moore,
303, S. C.

(a) Co. Litt. 47, B.; Treport's case, 6 Rep. 14, B.; Bac. Abr. Leases by Estoppel, O.; Walton v. Waterhouse, 2 Saund. 418, A., note 1; Foote v. Berkley, Bridg. by Bann. 544; 2 Prest. Abstr. 216.

(b) Anon. 1 Ventr. 358; Hilman v. Hore, Carth. 247; 1 Salk. 275, S. C.

tuique vie die(c) within the term, the lessor may avoid his own lease, because it took effect in point of interest, and determined by the decease of the cestuique vie; but if a party, who had no estate in the land, granted a similar lease, and afterwards purchased the fee or any other estate in the premises, the lease which had been previously granted would bind the estate subsequently acquired. Estoppels, however, continue no longer on either(d) part than during the lease, for as they begin at first by the grant of the lease, so they are at an end by its determination.

10. A lease never can take effect by estoppel, when it passes an immediate interest for any part of the term demised, and though the lessee is not allowed to dispute that he took an interest by force of the demise under which he entered, yet he is at liberty to shew that the lessor's estate was subsequently determined and at an end. In an action of covenant on a lease for years for not repairing, brought by a party, as heir of the reversion in fee to his father, who made the demise, it was ruled (e) on demurrer, that the lessee was not estopped from pleading, that the lessor, at the time of making the lease, was only tenant for his own life, and that by his decease the lease was at an end neither will a lessee be estopped from proving that the lessor was only seised in right(ƒ) of his wife, and that she died before the covenant was broken; because an interest having passed to the lessee by the lease, he is not estopped(g) from shewing the facts by which the lease was afterwards determined.

Where a lease expires, or the tenancy determines by notice to quit, it is competent for the occupier to shew upon an ejectment by the lessor, that the lessor's own title(h) was at an end, and that he had no right to recover possession; and a defendant in ejectment will be allowed to prove that his landlord, pending the term, conveyed(i) away his reversion in the premises, either absolutely or in mortgage,

(c) Co. Litt. 47, B.; Moor, 20, pl. 69; Dalis. 26; 2 Prest. Abstr. 409; Bac. Abr. 191, Leases by Estoppel, O.; Doe dem. Strode v. Seaton, 2 Cr. M. & Rosc. 728-731; Tyrw. & Gr. 19, S. C. (d) James v. Landon, Cro. El. 36; Co. Litt. 47, B.

(e) Brudnell v. Roberts, 2 Wils. 143; Andrew v. Pearce, 1 New Rep. 158.

(f) Blake v. Foster, 8 T. R. 487; Hill v. Saunders, 2 Bing. 112; 4 B. & Cress. 529, in error; 9 Moore, 238; 7 D. & Ry. 17, S. C.

(g) Treport's case, 6 Rep. 15, A.; Walton v. Waterhouse, 2 Saund. 418,

note 1.

(h) England dem. Syburn v. Slade, 4 T. R. 682; Doe dem. Jackson v. Ramsbottom, 3 M. & Selw. 516; Morgan r. Ambrose, Peake's Evidence, 259; Hill v. Saunders, 4 B. & Cr. 529-534; Claridge v. M'Kenzie, 4 Scott's N. R. 796; 4 Mann. & Gr. 143, S. C.; Downs v. Cooper, 1 G. & Dav. 573; 2 Q. B. Rep. 256.

(i) Doe dem. Lowden v. Watson, 2 Stark. N. P. C. 230; Doe dem. Marriott v. Edwards, 5 B. & Ad. 1065; 3 Nev. & M. 193; 6 Carr. & P. 208, S. C.

for though a lessee cannot, in general, controvert the existence of his landlord's title during a period for which rent was paid by the tenant, still it may be shewn that the lessor's interest was subsequently determined.

11. If the owner of land join with a third person who has no estate in the premises, in making a lease for years by indenture to J. S., this is the lease of the owner of the soil alone, and the confirmation of the stranger, and yet the lease(j) operates as to the stranger by way of estoppel, because the indenture could not otherwise take effect as to him who has nothing in the land.

Where two several owners of separate estates join in a lease for years by indenture, several leases will be constituted by the deed according to the separate interests of the lessors, and will not operate by estoppel (k), because each has an estate out of which the lease may be derived. The reason assigned by Chief Baron Gilbert for allowing estoppels is, because otherwise the indenture of a party who had no estate in the land would be absolutely void, but when an interest passes from each lessor, the indenture works upon such interest, and no room is left for its operating by estoppel; where, however, two persons join in granting a lease, without distinguishing their several interests in the land, the indenture works by way of confirmation by each of the demise of the other's part. If two tenants in common join in a lease for years by indenture, this shall be the lease of each of them for his own undivided part, and the confirmation of each for the part() demised by the other, and no estoppel arises, because an interest passes from each of them respectively.

If two joint-tenants in fee, or for life, join in a lease for years by deed indented, reserving rent to one of them only, such reservation shall give him the rent exclusively of his companion(m) by estoppel, but if the demise were made by parol or by deed-poll, reserving rent to only one of the lessors, the reservation should enure for the benefit of both joint-tenants: so upon a lease by husband and wife, reserving the rent to them and to the heirs of the wife, with a covenant for its payment to them and the heirs(n) of the wife; in an action of covenant brought by the husband after his wife's death without issue, it was ruled that the lessee might shew that the reversion descended to her

(j) Co. Litt. 45, A.; 1 Ro. Abr. 877, Estoppel, B. pl. 1; Brereton v. Evans, Cro. Eliz. 700.

(k) 1 Ro. Abr. 877, Estoppel, pl. 3; Co. Litt. 45, A.; Bac. Abr. Leases by Estoppel, O.

(7) 1 Ro. Abr. 877, Estoppel, B. pl. 4. (m) 1 Ro. Abr. 878, Estoppel, B. pl. 6; Co. Litt. 47, A.

(n) Hill v. Saunders, 4 B. & Cress. 529-534; 7 D. & Ry. 17, S. C.

heir, and Lord Tenterden expressed his opinion, that the husband could not recover, as the lease was framed upon an intent that on the wife's death the rent should be paid to her heirs.

12. Estoppels must be mutually and reciprocally binding(o) on both parties, and, therefore, if a person accept a lease of his own lands from an infant or married woman by indenture, it will not work(p) an estoppel on either part, because the lessors, by reason of their disability to grant, are not estopped, and consequently the lessee shall not be estopped; and upon this principle of reciprocity a stranger to the indenture shall neither take(g) advantage of, nor be bound by the estoppel.

Both parties are estopped and concluded by their execution(r) of a lease by indenture: the lessee is precluded from insisting that the lessor had no estate enabling him to demise the premises, and the lessor is estopped from denying that he made such demise; but if the indenture were only executed by the lessor, or were made by deed-poll(s) which is only the deed of the lessor, the lessee would not be estopped or prevented from averring that the lessor had nothing in the lands at the time of making the lease; however, as the acceptance of an interest granted either by indenture executed only by the lessor, or by deed-poll, binds the lessee to the performance of the covenants(t) on his part, it follows, that a lessee, after entering into possession, will be estopped from disputing his lessor's title or right to demise at the time of making the lease.

Unless the indenture of lease be executed by the lessor there can be no estoppel, and the lessee will not be precluded from shewing the fact, even though the counterpart executed by the lessee himself should contain a recital that the lessor had demised. In an action of covenant for rent in arrear, three surviving lessors declared that they, along with another person then deceased, had demised to the lessee, and made profert of the counterpart of the lease: on a plea of non est factum it was decided(u) that after proof of the execution of the counterpart

(0) Co. Litt. 352, A.; Hudson v. Robinson, 4 M. & Selw. 479, by Lord Ellenborough.

(p) Bac. Abr. Leases by Estoppel, O.; James v. Landon, Cro. Eliz. 37; Brereton v. Evans, Cro. Eliz. 700.

(q) Doe dem. Marchant v. Errington, 6 Bing. N. C. 79; 8 Scott, 210, S. C.; Gaunt v. Wainman, 3 Bing. N. C. 69; 3 Scott, 413; Co. Litt. 352, A.

(r) Co. Litt. 47, B.

(s) Bac. Abr. Leases by Estoppel, O.;

1 Ro. Abr. 871, Estoppel, N. pl. 6.

(t) Co. Litt. 231, A. and Butler's note, 141, to Co. Litt. 230, B.; Anon. 1 Dyer, 13, B. pl. 66; Brett v. Cumberland, 3 Bulst. 164; 2 Ro. Rep. 63; Burnett v. Lynch, 5 B. & Cr. 596; 8 D. & Ry. 368.

(u) Wilson v. Woolfryes, 6 M. & Selw. 341; Cardwell v. Lucas, 2 Mees. & W. 111; Rose v. Poulton, 2 B. & Ad. 822-828, by Ld. Tenterden; Frontin v. Small, 1 Stra. 705; 2 Ld. Raym.