#### Den on demise of Wm. Bufferlow v. Richard Newsom.

From Northampton.

A widow remaining in possession as widow, of lands occupied by her husband in his life, is bound by an estoppel, which bound her husband.

A jury is bound by an estoppel, and the Court will disregard a finding-contrary thereto, except where the party entitled to the estoppel has waived it by mispleading.

Ejectment, tried before Rueein, Judge, when a verdict was taken subject to the opinion of the Court upon the following case:

One *Jesse W ebb*being seised, and in the actual possession of the premises in dispute, on the 16th March, 1817, conveyed to one *John B..Amis*in fee *upon trust,*to sell and pay a debt due to one *William, Amis,*if *Webb*should fail to pay. On the 30th October, 1820, *Webb*having fully paid the debt, *TP, Amis'*executed to him a release of the same, and also of ali claim to the land. No sale or conveyance was ever made by *J. J). Amis,*and *Webb*continuing in possession with the consent of both *William*and *John,*on the 30th September, 1820, sold and com eyed to the lessor of the Plaintiff in fee simple, with general warranty. After this sale and conveyance, *Webb*still continued in possession of the land by leave of the lessor of the Plaintiff, (though without any formal or express lease for any particular time) and cultivated it until March, 1821, when he died. *Mary,*the widow of *209
      *Webb,*after his death, remained (without any allotment of dower) with the other members of his family, in possession, setting up no other title than such as she had under her husband, until November, 1823, when she intermarried with the Defendant *Newsom,*who thereupon, as her husband, entered into possession, setting up no other title than that of his wife.

Upon this case it w'as agreed, if in the opinion of the Court, the Defendant was estopped to set up the outstanding legal title in *John B. Jlmis,*to defeat, the action, then the verdict to stand *;*otherwise the verdict to be set aside and a nonsuit entered.

„ The presiding Judge w7as of opinion with the Plaintiff, and from the judgment rendered upon the verdict, the Defendant appealed.

In this Court, the case was submitted without argument, by *Seawell,*for the Appellant, and *Badger,*contra. -

Henderson, Judge.

The Defendant is doubly estop-ped from showing title in *John B. Amis,*first by the deed of *Jesse Webb*to the lessor of the Plaintiff. The widow is estopped by her husband’s deed, for she is tenant to the heir who is estopped, and the tenant is always bound by au estoppel on bis landlord, when his title is derived after it arises. She is also estopped by matter in *pais;*her husband, after his conveyance to the lessor of the Plaintiff occupied the lands as tenant at will or sufferance under the lessor, he could not therefore, dispute his landlord’s title. Upon his death, the widow .succeeded to the jiossession, accompanied by the estoppel, as she could not succeed to her husband’s possessions stripped of its incidents; one of which was that lie could not dispute his lessor’s title. The Defendant, upon his marriage with the widow, succeeded to her possession in the same manner in which site held. The Judge was therefore correct in disregarding the facts showing title in *John*
      *210
      *J}. Amis;*and although it is said that a Jury is not topped but may find the truth, that is only in such cases where the party has waived the estoppel, as when having an opportunity to plead and rely on it, lie omits to do so, but relies on the real fact, *(Trevivan v. Lawrence,*1 *Salk.*276.) In this case, from the nature of the action, he could not plead it, he shall therefore have the same advantage on the evidence, as if he had pleaded and relied «n it; If is not intended to impugn the rule, that in an ejectment the lessor of the Plaintiff recovers by the strength of his own title, and not by the weakness of his adversary’s. In this case, the evidence which shows hie title to- he weak, to-wit, that the title is in *John D. Amis,*is excluded by the estoppel, and if offered and found by the Jury; must be disregarded, for the est‘Jipéis (the admissions of the parties) appear also.

Per' curiam. Judgment affirmed.