#### TRUSTEES OF GREEN, FOR THE USE OF WORTHINGTON TOWNSHIP, *v.*ROBINSON.

Tille oflessor — enjoyment by lessee — execution of deed — consecutive facts — pleading—demurrer — technical defect.

It is essential to a lease for land, that the lessors have authority to lease at the execution of the instrument.

The date of a sealed instrument is only prima facie the time of its execution; it takes effect from its delivery, and the time of its delivery may be shown, if it differ from the date.

A tenant having entered and enjoyed under the lease, is estopped from questioning the title of his landlord.

The want of title in the lessor, and the consequent non entry of the lessee, are consecutive facts.

A plea setting up new matter, and concluding to the country, is technically bad, but the defect is not reached by a general demurrer.

Covenant on a lease, dated the 1st of January, 1815, executed by the trustees of Green township and the defendant, for school section sixteen, township twenty-one, and range seventeen, for fifteen years, on account of improvements. The declaration avers, that Worthington is now an incorporated original surveyed township, hut at the date of lease had not twenty-one electors, and being then attached to Green township, the trustees of Green had power to lease for the benefit of the township, and also, that the defendant entered the leased premises and enjoyed.

Oyer was prayed of the levy, and being set out, appeared only to he executed by two of the trustees of Green and Robinson, and thereupon, Robinson pleaded—

1. Non est factum.

2. That at the date of the lease, township twenty-one was not called Green for any purposes, and that Robinson did not enter and enjoy the premises as alleged; concludes to the country.

3. That the lease was executed by the two trustees of Green, on the 1st of January, 1816, and before that time, township twenty-one was organized as Worthington, including sixteen.

4. That the individuals executing the lease as trustees of Green, were not trustees the 1st of January, 1816, when they executed the lease, and the defendant did not enter and enjoy under the premises.

The second, third and fourth pleas, are demurred to generally.

By the Court.

It is material that the lessors have title or authority to lease, when they execute the lease. The lease can only take effect from the time of its execution and delivery; the date is only prima facie evidence of the execution, and may be explained by proof of the actual time. The question then, is, had these persons who claimed to act as trustees of Green, on the 1st of January, 1816, any authority as such? or, if they had, was the *437original surveyed township twenty-one then subject to the lease of the trustees of Green? If the lessee, however, had entered and enjoyed, the case might be altered; he would then be estopped by the lease from denying the authority under which he entered and enjoyed. If a tenant would controvert the title of his lessor it must appear that he did not enter and enjoy. The want of title in the lessor, and the non acting under the lease, are not independent facts and defences, but one defence consisting of consecutive facts, and in that way, the imputation of duplicity is avoided. The second plea is technically bad, because it sets up new matter, and concludes to the country. But, as the demurrer is general, it don’t reach that want of form. By going back to the declaration, it is only negativing the averment in the declaration.

Leave is given to withdraw the demurrer and reply; *5 O. R.*186.