If the matter relied upon by way of estoppel, being pleaded, must have been deemed conclusive ; there having been no opportunity to plead it, it will have the same effect in evidence. The judgment, as between these parties, establishes the fact that, at the time of the alleged trespass, the demandant had the lawful possession of the close, where the same was committed. It does not appear at what time this was done. It might have been at any time within six years, prior to the commencement of that action. The tenant’s title accrued only fifteen months before; and could have protected him but for that period. Prior to that time, he might, have been a trespasser upon the premises, and have been so adjudged; *226but this could have no tendency to affect an after acquired title. So if the demandant had been the tenant’s lessee, he might have maintained trespass against him ; but a judgment thus obtained would not have defeated the general title of the lessor.
With regard to the plea of soil and freehold in the former action, no issue was joined or trial had upon it. After filing this plea, the defendant was defaulted. The d acia ration against him is thereupon to be taken as true; and the effect is the same, whether the default be made before or after the plea.
The facts, therefore, established by the judgment, are not necessarily inconsistent with title in the tenant; and do not estop him from controverting the title of the demandant in this action.
If the fee of the land was in the tenant, his taking a lease of it for one year of the demandant, did not extinguish his title, or pass it to the demandant, by way of estoppel or otherwise. The tenant would be holden to fulfil all the covenants, by him entered into as lessee and he would be estopped from averring, by way of defence, that the lessor had nothing in the premises; nor would he be permitted to disclaim his tenure, or deny the title of the lessor, during ■the continuance of the lease. Having performed his duties as lessee, there is no legal impediment, after the expiration of the term, to his maintaining a paramount title to the premises, against him to whom he once stood in the relation of lessee. Co. says, “ if a man take a lease for years of his own -land by deed indented, the es-toppel doth not continue after the term ended. For by the making of the lease the estoppel doth grow, and consequently by the end of ihe lease, the estoppel determines.” Coke Lit. 47 b.
The exceptions are overruled, and there must be
Judgment on the verdict.