Field, C. J. and Norton, J. concurring.
This is an action under the thirteenth section of the Forcible Entry and Unlawful Detainer Act. The complaint alleges that the defendant is a tenant of the plaintiff, and that he unlawfully detains the demised premises, setting forth facts showing a wrongful holding over. The answer admits that a tenancy once existed between the parties, but alleges that it was terminated by the eviction of the defendant under a judgment in ejectment recovered against him by one Dutton. It alleges also that the defendant pleaded his title *316as tenant in defense of the ejectment suit, and that he now holds under a lease executed by Dutton subsequent to the eviction. There is no allegation that the plaintiff had notice of the pendency of the suit, but there is a stipulation authorizing an amendment in this respect, and admitting verbal notice of the fact. On the trial the defendant asked leave to amend by inserting an allegation that the plaintiff had acted upon this notice, and employed counsel to defend the suit, but the Court refused to allow it. He then offered evidence to that effect, which was rejected, and the case being submitted to the Court, a judgment was rendered in favor of the plaintiff. The eviction was admitted, and if the matters alleged upon that subject, together with the fact of notice, are sufficient to constitute a defense, the judgment must be reversed.
The right to maintain the action depends upon the existence of a tenancy, and a tenancy once created is presumed to continue so long as the tenant remains in possession. This presumption may be rebutted, however, for the rule which estops a tenant from disputing the title of his landlord does not prevent him from showing that the tenancy has been determined. He is estopped so long as the tenancy continues, but the tenancy being dissolved, the disabilities resulting from his position as a tenant are removed, and the estoppel ceases. “ The tenant,” says Greenleaf, “ may always show that his landlord’s title has expired, or that he has sold his interest in the premises, or that it is alienated from him by judgment and operation of law.” (2 Greenl. Ev. 253.) This doctrine is supported by a multitude of cases, and it seems that where the tenant is evicted by one having an adverse title, he may take from the latter a new lease, and set it up as against the landlord. (1 Washburn on Real Property, 359 ; Foster v. Norris, 3 A. K. Marsh. 609.) It is the duty of the landlord to protect him in his possession, and he may treat the eviction as terminating the tenancy, and resist any claim by the landlord, either for rent or for the possession. It is necessary, of course, that notice be given of the proceeding by which the tenant is evicted, so that the landlord may not be taken by surprise, and suffer an injury by reason of the carelessness or collusion of the tenant. There is no doubt that a defense of this character is admissible in the present case, for the statute expressly *317provides that matters of excuse, justification, or avoidance may be given in evidence. No question of title is involved, the question being simply as to the eviction, the effect of which was to dispossess the plaintiff as well as the defendant, relieving the latter from the obligations of the tenancy. So far as the notice is concerned, we regard the stipulation as sufficient, for it admits that verbal notice was given, and the necessary inference is that the notice was full and complete. It is true the amendment authorized does not appear to have been- made, but the object of the stipulation was to supply the defect; and we think the admission is to be considered as properly in the case. It is possible that the answer is not sufficiently explicit as to the title upon which the defendant was evicted, but under the circumstances we think an objection of this character ought not to be allowed. It appears that the tenancy was from month to month, and taking all the allegations together, they are sufficient to justify the conclusion that the title was adverse to that of the plaintiff. The fact is not directly alleged, but the case appears to have been determined without reference to technical defects, and solely upon the ground of the inadmissibility of the defense.
The judgment is reversed and the cause remanded for a new trial.