On October 22, 1942, by warranty deed that day made, executed and delivered to her, the defendant Anna Waitt acquired the fee simple title to the land here involved.
On October 23, 1942, being the following day, the defendant Anna Waitt as first party entered into a written farm lease with plaintiff, E.J. Hankins, as second party for the farming of the land for the three ensuing years.
The lease, in part, provides:
"Witnesseth, That the said party of the first part, for and in consideration of the rents, covenants and agreements hereinafter mentioned, * * * by these presents does grant, demise and to farm let, unto the said party of the second part for and during the crop seasons of 1943, 1944, 1945 and ending Nov. 1, 1945, except as hereinafter provided, the following described land in Chouteau County, Montana, to-wit: * * *
"It is further understood and agreed that the title to and possession of all crop produced on said farm under this leaseshall be and remain in said party of the first part until satisfactory division and settlement has been made with first party. * * *
"It is further understood and agreed by and between the aforesaid parties that the said party of the first part reservesthe right to sell the above described land at any time, but in case of sale, delivery of the said land to purchaser cannot be *Page 603 made until after any crop growing thereon may be harvested, or the second party repaid current prices for any work done toward growing a crop where same has not been planted." (Emphasis supplied.)
Pursuant to the terms of the foregoing written lease the plaintiff E.J. Hankins entered into possession of the described land and commenced to farm same.
While continuing in such possession under and by virtue of such written lease and five months prior to its expiration, to wit, on May 31, 1945, the plaintiff Hankins commenced this action against his landlord, Anna Waitt.
It will be noted that the written lease subscribed by both plaintiff and defendant recites that the agreement is "between Anna Waitt of Great Falls, owner of real estate hereinafterdescribed, party of the first part, and E.J. Hankins, of Highwood, Montana party of the second part" and "that the saidparty of the first part reserves the right to sell the abovedescribed land at any time."
It is the law of this state that:
"The following presumptions, and no others, are deemedconclusive: * * *
"2. The truth of the facts recited, from the recital in awritten instrument between the parties thereto * * * but this rule does not apply to the recital of a consideration. * * *
"4. A tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation." Sec. 10605, Rev. Codes. (Emphasis supplied.)
"As a general rule a tenant may not, while continuing in possession, set up against his landlord a title hostile to the title which he acknowledged in accepting the demise." 51 C.J.S., Landlord and Tenant, sec. 276, subdivision d.
Thus is the plaintiff absolutely precluded from denying the validity of the title under which he entered and agreed to hold (4 Thompson on Real Property, Perm. Ed., p. 264, note 1, citing Alderson v. Marshall, 7 Mont. 288, 16 P. 576) and it isconclusively presumed that the defendant Anna Waitt is *Page 604 the owner of the described real estate as is recited in the written lease between the parties thereto, subdiv. 2 of sec. 10605, Rev. Codes, and this conclusive presumption the tenant Hankins "is not permitted to deny." Subdiv. 4 of sec. 10605, Rev. Codes.
While I am unable to agree to all that is said in the majority opinion yet there is ample evidence to sustain the decree and I concur in its affirmance. *Page 605