writ of dower (u) until seisin be delivered to her by execution (x).

But a possession, however short, and whether it be a possession in fact, or in law (y) or rightful, or tortious, as in the case of a disseisor (z), or, as it seems, an abator, or an intruder upon the possession of the lessee of the Queen, who is not herself disseisable (a), will warrant a lease for years, which will avail against all persons, except the party having the right of possession (b), by whose re-entry the lessee's estate may be defeated (c), and the lessee absolved from the performance of covenants dependent upon the enjoyment of the premises (d); though a lease by a disseisor, being voidable only, and not void, is capable of confirmation (e); and the disseisee may apportion his confirmation, where the disseisor's tenant for years has underlet, by ratifying the one lease, and not the other, or by confirming the whole or part of the land, for all or any number of the years (f).

The possession conferred by the statute of uses (g) is sufficient to enable the cestui que use to grant a lease without a previous entry into the lands demised (h).

And it is clear that a person having a present right to the future enjoyment of an estate, as a remainder-man or reversioner, expectant either upon an estate for years, for life, or in tail, may make a lease, which will take effect in possession on the determination of the preceding estate (i).

v. Goodman, 2 Q. B. 580; S. C. 2 Ga. & Dav. 159.

(e) Belford v. Foord, or Betford v. Ford, Cro. Eliz. 447, and 472, being the second page of that number; S. C., nom. Foord's case, 5 Co. 81, a. b.; 3 Dy. 383, b.; 1 And. 47. (f) Ibid.

(g) 27 Hen. 8. c. 10.

(h) But he cannot maintain trespass till entry; Lutwich v. Mitton, Cro. Jac. 604. Cart. 66. Other cases ante, p. 23, n. (r).

(i) Jenk. Cent. 267. case, 77. Palmer v. Thorpe, Cro. Eliz. 152.

II. As to Leases by Estoppel.

It has been stated (k), that, in order to create an effectual lease to operate in præsenti, it was essential, with reference at least to demises made on or before the 1st of October, 1845, that the lessor should be in possession of the premises at the time of the demise. It is not, however, to be understood that the lease of a party out of possession was totally inoperative; for a demise of this description derived a new feature from the doctrine of estoppel, of which I shall here attempt a succinct explanation, with an assurance to the reader of its being, in Lord Coke's phrase, an excellent and curious kind of learning (1), well deserving his attentive consideration.

An estoppel is, properly speaking, an impediment or bar raised by law upon a man's own deed to his averring or proving anything in contradiction to what he has once so solemnly and deliberately avowed (m). It is sometimes also termed a conclusion, from its determining, finishing, closing, or shutting up the mouth, so that the party cannot speak, plead, or claim, anything contrary to his deed (n).

Estoppels, having a tendency to prevent the investigation of the truth (0), are considered odious in law (p); and the reasons why they are allowed seem to be, that no man ought to allege anything but the truth for his defence, and what he has alleged once is to be presumed true, and, therefore, he ought not to contradict it; for allegans contraria non est audiendus; and, secondly, that as the law cannot be known till the facts are ascertained, so neither can the truth of them be found out but by evidence; and, therefore, it is reasonable that some evidence should be allowed to be of so high

(1) Ante, p. 50.

(1) Co. Lit. 352, a.

(m) 2 Bla. Com. 295. Co. Lit. 352, a. Com. Dig. Estoppel, (A).

(n) Co. Lit. 37, a. 170, a.

(0) Rex v. Lubbenham, 4 Term Rep. 254.

(p) Co. Lit. 365, b. 2 Ld. Raym. 1553. Skipwith v. Green, 8 Mod. 311. 313. Bac. Ab. Joint-tenants, (H) 1.

Reversin

CH. I. S. II.] WHO MAY BE LESSORS:-ESTOPPEL.

53

and conclusive a nature as to admit of no contradictory proof (g).

Hence, a lease by indenture (r) by a person having no estate whatever (s), as an heir apparent; by a party claiming under an executory devise (t), or contingent remainder (u); or by a person having a wrongful estate only in the premises (x); would operate by way of estoppel and conclusion against him on his obtaining a vested or rightful interest, whether by purchase (y) or descent (~). A mortgagor is similarly circumstanced, and will be precluded by estoppel from claiming the land after redemption in opposition to his own lease (a). So, if one having no interest in the premises, by indenture make a lease for years to B., reserving a rent, and afterwards by indenture demise the same land to C. for forty years, C. shall have the rent by the same means by which he has the reversion, i.e., by estoppel (b).

If a party lease lands in which he has no estate, and afterwards acquire an estate, the lease which before operated by estoppel only, becomes a lease in interest (c).

It is, however, in all cases requisite that the premises forming the subject of demise be particularly specified or referred to; for a demise by A. of all his lands in Dale, not being at the time owner of any lands there, to B. for years, will fail, on account of its generality, to create an estoppel

(9) Co. Lit. 352, a. note (1).

(*) See post, p. 55, as to the necessity for an indenture.

(8) Mo. 20. pl. 69. 1 Rol. Ab. 874. pl. 9. Rothwell's case, Hetl. 91. Anon. Dal. 26. pl. 4. Foote v. Berkley, Plowd. 527. 545. Rawlyns's case, 4 Co. 53, a., 4th resolution. Iseham v. Morrice, Cro. Car. 109; S. C., nom. Norris v. Isham, Hetl. 81. Hermitage v. Tomkins, 1 Ld. Raym. 729. Smith v. Low, I Atk. 489. Co. Lit. 47, b. 3 Term Rep. 371.

(t) Cooks, or Hooks, v. Bellamy, 1 Keb. 530. 628, 708; S. C. 1 Sid. 187.

(u) Weale v. Lower, Pollexf. 54.

3 Com. Dig. 274, Estoppel, (B).

(x) Paulin v. Hardy, Skin. 2. 62.
(y) See the cases cited in note (s),
sup.

(2) Smith v. Low, 1 Atk. 489. Plowd.

434.

(a) Edwards v.Omellhallum, March, 64. Omelaughland v. Hood, 1 Rol. Ab. 874. pl. 10. 876. pl. 5. Webb v. Austin, 8 Scott's N. R. 419; S. C. 7 Man. & Gra. 701; Law Jour. N. S. vol. 13. p. 203, C. P. And see Doe dem. Marriott v. Edwards, 6 Car. & Pa. 208.

(b) Jenk. Cent. 254, case, 46. Plowd. 433. Webb v. Austin, sup.

(c) Webb v. Austin, sup.

against him, on his subsequent acquisition of an estate in Dale (d).

But should it appear upon the face of the indenture that the lease is made by one who has not an interest (and who really has not) to make a lease, and he afterwards purchases the land, the rule of estoppel will not prevail (e). And, for the same reason, where a church in the incumbent's lifetime was appropriated in futuro to a body corporate, and the said body, reciting this, made a lease in the life of the incumbent, the lease was held to be void; it appearing by the deed that the corporation had nothing (f). But where a party seised of an estate in Dale, falsely reciting that he had nothing in that manor, made a lease to B. by indenture for years, the recital was held to be void, and the lease good by estoppel; for the law rejects a false recital which makes a contradiction (g).

Whether a deed incapable of operating in the way intended may conclude the party by falling within the doctrine under consideration is not decided. The point arose in the case of Roe v. The Archbishop of York (h), where a demise was made by tenant for life, and expressed to be in pursuance of a power of leasing; but, as the Court held the lease to be void for informality as an execution of the power, they did not deem it necessary to enter into the question of estoppel. There seems to be reason for contending that if the lease could have derived its validity from the lessor's ownership, the doctrine of estoppel could not apply, as it is a rule that a lease shall not work by way of estoppel when it may pass an interest (i).

(d) Jenk. Cent. 255, case, 46. (e) Hermitage v. Tomkins, 1 Ld. Raym. 729. Jenk. Cent. 255, case, 46. Cooks v. Bellamy, 1 Keb. 531. Co. Lit. 352, b. And see Right dem. Jefferys . Bucknell, 2 Barn. & Adol. 278; and Doe dem. Lumley v. Earl of Scarborough, 3 Adol. & Ell. 2; S. C. 4 Nev. & Man. 724.

(f) Jenk. Cent. 255, case, 46. Montgomery's case, 2 Dy. 244, a.; 1 Co. 155. a. 2 Barn. & Adol. 281.

(9) Jenk. Cent. 255, case, 46. (h) Roe dem. Earl of Berkeley v. The Archbishop of York, 6 East, 86; S. C. 2 Smith, 166.

(i) 2 Prest. Conv. 139.

One of the rules connected with this learning requires every estoppel to be reciprocal, and binding on both parties (k); hence, a stranger can neither take advantage of, nor be bound by, an estoppel (1). Infants also (m), and married women (n), on account of their legal disability, and persons contracting with them, are exempt, for want of mutuality from the operation of the doctrine; and, accordingly, if one takes a lease by indenture of his own land from an infant or feme covert, he is not bound by estoppel from disputing the demise (o). So, if husband and wife declare against a party in debt for rent on a lease made by the feme and her former husband, the defendant may plead the sole seisin of the former husband, without being estopped by the lease (p). So, on the other hand, if a man and his wife make a lease, reserving a rent to himself and his wife, and his heirs, he may bring debt for the rent, and declare as on a lease made by himself alone, and the reservation to himself. In each case the lease being void as to the wife, want of mutuality prevents an estoppel (g). And as the Crown is not bound by estoppel, a man taking a lease of his own land by patent from the King is not estopped from showing it (r).

The rule which requires reciprocity in cases of estoppel obviously involves the necessity for a lease by indenture; for, according to Littleton (s), Coke (t), and other authorities (u), if a lease be made by deed-poll, the lessee is not estopped to say that the lessor had nothing at the time of the lease made; and the reason why a deed indented will,

(k) Co. Lit. 352, a.

(1) Ibid. Right dem. Jefferys v. Bucknell, 2 Barn. & Adol. 278. (m) James v. Landon, Cro. Eliz. 37. Smith v. Low, 1 Atk. 489.

(n) Sacheverel v. Frogate, 1 Vent. 161. James v. Landon, Cro. Eliz. 37. Brereton v. Evans, Cro. Eliz. 700.

(0) James v. Landon, sup.

(p) Brereton v. Evans, Cro. Eliz. 700.

(4) Sacheverel v. Frogate, 1 Vent.

161. But Boverton v. Evans, 1 Rol. Ab. 872. pl. 6, semb. cont.

(r) Stanhop's case, 1 Rol. Ab. 871.

pl. 3.

(8) Lit. s. 58.

(t) Co. Lit. 47, a. b. 363, b.

(u) Hilman v. Hore, Carth. 247-8. Cooks, or Hooks, v. Bellamy, 1 Keb. 530. 628. 708. Plowd, 421. 433-4. Pike v. Eyre, 9 Barn. & Cres. 909.914; S. C. 4 Man. & Ry. 661.