Page:Federal Reporter, 1st Series, Volume 10.djvu/550

 638 FBDEBAL BEFOSTEB. �of Magruder this would create a tenancy from year to year. If a person onter lands as a tenant of another, or after entry lias become tenant by the payment of rent, he is estopped from asseiting any title in another until he bas restored possession to his landlord. The possession of the tenant is the possession of the landlord, and 80 long as the possession subsista so long does the relation of land- lord and tenant exist. This doctrine of estoppel bas been applied very benefioially to the relation of landlord and tenant, and is intended to insure honesty and protect the landlord against the faithlessnesa of the tenant. The refusai of the agent of Magruder to receive rent in 1869 did not destroy the tenancy. It could only be terminated by the surrender of the possession to the landlord or his authorized agent. The surrender must be real and not colorable. The mere departure of the tenant one day, wifch the intention of returning and going back the same day, was by no means suf&cient. This doc- trine of estoppel between landlord and tenant does not apply to the latter when he bas been evicted, and subsequently let into possession by a ne w and distinct title under another landlord. �It was insisted by the counsel for plaintifis that if a tenant is threat- ened with eviction by a suit by a person claiming a paramount title the tenant may attorn to such claimant. The case in 9 Wallace, {Merryman v. Bourne, 9 Wall. 592,) to which the counsel referred, seems to sustain such a position, but there is no evidence to raise the question. �It is very material to ascertain whose tenant Mincy was during 1870-71-72. He did not pay rent to Magruder, but paid rent to a per- son claiming to be an agent of the heirs at law of Yates & Mointyre. The declarations of a person in possession of lands are ordinarily ad- missible in evidence to establish the relation of landlord and tenant ; but if you are satisfied that Moses Mincy was the tenant of Magruder previous to 1870, he could not put an end to such tenancy by declar- ing that he held under another. He must have completely surrendered the premises to his former landlord before he could attorn to another claimant. If Moses Mincy was the tenant of Magruder previous to 1870, the tenancy continued until the fall of 1872, when Moses went out and Wesley went into possession as the tenant of Magruder. If you are satisfied that Magruder was in possession of the lands in controversy, through his tenants, from January 1, 1870, until the commencement of the suit in September, 1877, then he bas acquired a title under the statute of limitations and he is entitled to your ver- ��� �