#### DOE ON DEMISE OF CHARLES F. KLUGE *v.*PHILIP LACHENOUR.

When there is a lease, of a house,' and a person lives in it by an assignment or undertaking from the lessee, or by her license merely and at her will, he is concluded from questioning the lessor’s title; for he came in under him, . and cannot withhold the possession, when the term lias expired or been legally surrendered.

Appeal from the Superior Court oí Law of Forsythe County, at the Spring Term 1851, his Honor Judge Bailey presiding*

This was an action of ejectment. The premises consisted of a house and garden in the Town of Salem. The demise was laid on the 1st of January 1850; and upon the trial, the case was this: Benigna Boner leased the premises from one Tan Vleck for one year, commencing on the 30th of April 1837; and she continued to hold as tenant from year to year under him until 1844, and thereafter, she held in like manner under the lessor of the plaintiff, who claimed Tan Tle.ck’s .estate. > She paid the rent on the 30th of April in each year up to 1849 inclusive. On. the first day of *181November 1849, she came to an agreement with the lessor of the plaintiff to pay the rent up to that day and surrender the term, and this was accordingly done. At some time while Mrs. Boner lived,on the premises, the "defendant, by her permission, lived in one part of the house and she in the other; there being two apartments in the house,.with a door between them, which was sometimes kept open and sometimes closed. When the defendant went there, does not appear, further than that he was there in May 1849. After Mrs. Boper went away, the defendant occupied all the premises, and refused to give them up on the demand of the lessor of the plaintiff, who then brought this action;

Thedefendant moved the Court to instruct the jury, that the plaintiff had not shewn a title in his lessor, and could not recover. But the Court held, that, if the defendant entered by the permission of Mrs. Boner, he was estopped to deny the title of her landlord. The defendant then insisted that, if thus treated as a tenant, he was entitled to occupy until the 30th of April, 1850, and therefore, the action would not lie. The Court thereon instructed the jury, that, if Mrs. Boner assigned her .lease, or the residue of the term, to April 30th, 1850, to the defendant, before her surrender, to the lessor of the plaintifl, then the plaintiff could not recover. But, if the defendant' did not purchase the residue of the term, but was permitted by Mrs.-Boner to stay in the house at her pleasure, while she occupied it, then her surrender of the premises to the landlord, and leaving them, gave him the immediate right, to the possession, and entitled him to bring this action, ■ upon the defendant’s refusal to go out, when required.

Yerdict and judgment for the plaintiff and appeal.

*Mendenhall*and *J T. 'Morekead,*for the plaintiff.

*H. W. Miller,*for the defendant.

*182Ruffin, C. J.

Whether the defendant lived in the house by an assignment or underletting from the lessee, or by her license merely and at her will, he was equally precluded from questioning the lessor’s *title;*for he came in under-him, and cannot withhold the possession, when the term has expired or been legally surrendered.

It was competent to the defendant to shew, that the supposed surrender was ineffectual, as the original tenant, before the alleged surrender, had underlet a part of the preña-ses, or assigned the whole of them to him. But as that could only be by contract with her and was peculiarly within the- defendant’s knowledge, the *onus*of establishing the agreement was on him. Instead of doing so clearly, there was no evidence of any such agreement. It did not appear, that the defendant paid or undertook to *pay any*rent or price, or even that the apartments were occupied as distinct tenements, or that the defendant had a family living with him, or carried on any separate business, or, in fine, that there was any thing *to show,*that those two persons did not live together in the house as hers, with a free communication between the two rooms. The Court might, therefore, have properly told the-jury, that there was no evidence of a title in the defendant to any part of the term. But the Court gave him the benefit of that hypothesis, by submitting the question- of fact to the jury, and they found it against the defendant,, which certainly disposes of the-case.

Per Curiam.. Judgment affirmed..