were assigned to defendant. Subsequently plaintiff brought an action against defendant for breach of covenants contained in the lease for 21 years. Defendant pleaded, 1st. That H. did not demise to plaintiff, 2nd. That the reversion on the term of 21 years did not vest in defendant. Held, that both these issues should be entered for plaintiff; for that the lease for 21 years, being by deed, was a good demise by estoppel, and that a reversion in H. by estoppel was thereby created, which primâ facie was a reversion in fee, and consequently was not surrendered to the company, but passed to defendant. Per Parke, B., "All the reversion of H. which was a reversion by estoppel, passed to defendant. This estoppel was fed by the demise for 100 years from the Broderers' Company to H., and thereby the lease from him to plaintiff became good in point of interest" (q).

The above doctrine however does not seem to have been regarded favourably in equity, for, even after the Statute of Uses, a cestui que use could not take advantage of it. Thus where A., made a feoffment by deed indented to B. of Blackacre in which he had nothing, to the use of C. and the heirs of his body, remainder to B. and his heirs, and afterwards purchased Blackacre, C. was not allowed to take advantage of the above doctrine (r). Moreover, the above doctrine does not apply so as to bind persons who, after improperly, and even fraudulently, making a conveyance of property to which they are not entitled, subsequently acquire the legal estate

(2) Sturgeon v. Wingfield, 15 M. & W. 224; see also per Martin, B., in Cuthbertson v.

Irving, 4 H. & N. at p. 754.

(r) See a case in Freeman's Rep., p. 475, pl. 651.

as trustees only. Thus, where A., as lessee under a fictitious lease of freeholds from a fictitious freeholder, mortgaged it by sub-demise to B., and subsequently acquired the legal estate in the freehold as trustee for C'., who was a confederate with him in granting the fictitious lease; held, that the mortgage by sub-demise was not perfected by estoppel through the acquisition by A. of the legal estate, so as to confer a title upon the mortgagee as against a subsequent purchaser for value (s). Per Bacon V. C. (at p. 577), "There is no case in which a trustee, having made a fraudulent representation by which he is bound, or even a fraudulent conveyance, when he got his legal estate, but still remaining a trustee, was so estopped as to deprive the persons beneficially entitled to the estate which was theirs, and of which he was the trustee, and trustee only." And further, the doctrine does not apply in cases where the interest from which it is sought to feed the estoppel, arises from a conveyance which was obtained fraudulently, and which the Court would order to be cancelled (t).

Finally, the doctrine does not apply to the surrender of copyholds. Thus, it has been held that no estate by estoppel arises from the surrender of copyholds in which the surrenderor had no estate at the time of the surrender, but which descended to him subsequently to the surrender, so as to bind his heir at law (). And

(s) Keate v. Phillips, L. R. 18 Ch. D. 560.

(t) See remarks of Bacon, V.C., Heath v. Crealock, L. R. 18 Eq.

215; on appeal in L. R. 10 Ch. App. 22.

(u) Goodtitle v. Morse, 3 T. R. 371; Roe v. Hicks, 2 Wils. 13.

devisees of contingent remainders in copyholds, not being in the seisin, cannot make a surrender, so as to bind either the parties or their heirs by estoppel (x). For no estoppel that runs with the land (y), and in fact it appears no estoppel at all (z), arises from the surrender of copyholds; and unless such surrender is valid at the time, no estate passes thereunder into the hands of the lord of the manor (a).

(c) Doe d. Blacksell v. Tomkins, 11 East, 185.

(y) Morse v. Faulkner, 1 Anstr. 11; 3 Swanst. 429.

(z) Taylor v. Phillips, 1 Ves.

Sen. 230; Doe v. Wilson, 4 B. &
Ald. 303; Doe d. Baverstock v.
Rolfe, 3 N. & P. 648.

(a) Taylor v. Phillips, 1 Ves. Sen. 230.

CHAPTER VIII.

LANDLORD AND TENANT.

THE term estoppel in pais, according to Lord Coke, originally meant an estoppel arising from "matter in the country," as distinguished from an estoppel arising from "matter in writing" (a). The instances which Lord Coke gives of estoppels of this kind, are (1) by liverie, (2) by entry, (3) by acceptance of rent, (4) by partition (b), and (5) by acceptance of an estate (c).

The following remarks are made by Parke, B., in his judgment in Lyon v. Reed (d): "The acts in pais which bind parties by way of estoppel are but few, and are pointed out by Lord Coke. They are all acts which anciently really were, and in contemplation of law have always continued to be, acts of notoriety, not less formal and solemn than the execution of a deed, such as livery, entry, acceptance of an estate, and the like. Whether a party had or had not concurred in an act of this sort, was deemed a matter which there could be no difficulty in ascertaining, and then the legal consequences

(a) Co. Litt. 352 a, 352 b; ante, p. 4.

(b) For instances of estoppels by partition, see Co. Litt. 170 a,

170 b, et seq.

(c) See Moore, p. 679, Tit. Dower, pl. 928.

(7) 13 M. & W. at p. 305.

followed." The above classification does not, however, include the more modern estoppels in pais, or equitable estoppels as they are sometimes called (e), but the present chapter deals with those cases of estoppel which are most nearly connected with Lord Coke's enumeration, viz., the estoppel subsisting between landlord and tenant. Certain cases of estoppel between landlord and tenant, have indeed already been cited in the chapter on Estoppels by deed, but in those cases the foundation of the estoppel was the deed itself, and not the particular relationship of landlord and tenant.

In dealing with this branch of estoppel in pais, Bigelow, in his work on Estoppel, makes the following observations (f): "The origin and character of the modern estoppel of the tenant, is to be found in the ancient action of assumpsit for use and occupation. In this form of action what was sought to be recovered was, not technically rent, but compensation from day to day for actual enjoyment. But to the maintenance of the action the relation of landlord and tenant must be established; and, when established, the modern estoppel in pais arises. Enjoyment by permission is the foundation of the action, and is, therefore, the foundation of the rule that a tenant shall not be permitted to dispute the title of his landlord. . . . Let it, then, be borne in mind. that two conditions are essential to the existence of the estoppel: first, possession, secondly, permission; and that

(e) Per Lord Selborne in Citizens' Bank of Louisiana v. First National Bank of Orleans, L. R.

6 H. L. 352, at p. 360.

(f) Bigelow on Estoppel (2nd ed.), p. 350.