Assuming the facts to be as found by the referee, with some modifications and additions required by the evidence, I am of .opinion there should be a new trial.
On the 28th day of September, 1847, the defendant took a lease from the plaintiff for twelve years, of the premises in question, and covenanted to pay therefor the rent, for the recovery of which this action was brought, and under this lease he took or accepted possession, and repeatedly paid rent, to wit, in 1848, in 1851, in 1852 and in 1855. This possession he never relinquished, but continues to the present day; he never paid rent to any other landlord, nor was any ever demanded; he never attorned to any other landlord, and was never ousted or disturbed in the possession which he held under the plaintiff.
The defense relied upon was, that at the time the defendant took this lease of the plaintiff) he was, in fact, holding under an old lease from Freeborn Garretson, which he delivered to the plaintiff, but upon the understanding and agreement that if it turned out that the plaintiff was not the owner of the land (and as one of the witnesses says, could not hold it) the old lease was to be restored and the rent money paid back, with interest. *153It is claimed that one Patrick Clark was, in fact, the owner at the time this lease was given, and that at that time the defendant informed the plaintiff that Patrick Clark claimed the land.
The title of Clark thus relied on was, at most, an equitable title, and was claimed to arise under an agreement with "Walter Cunningham, (the plaintiff’s grantor,) made about ten years prior to the lease in question, whereby Clark agreed to convey to Cunningham certain Hew York property in exchange for some lands in Ulster county, which Clark was to select. He did so convey, and Clark selected this farm, among others, and Cunningham’s agent executed a sort of livery of seisin to him, by plucking some tufts of grass, and stating that he delivered to him possession. But I think this insufficient to defeat the plaintiff’s action.
1. Clark never in fact took possession, or undertook to enforce payment of the rent. He never had the legal title, which remained in Cunningham till it was transferred by him, by warranty deed, to the plaintiff. I think the fair presumption is that Clark and Cunningham arranged the matter in some other way satisfactorily to themselves, leaving Cunningham this property. If this were not so, it is remarkable that Cunningham should undertake to convey by full covenant deed to the plaintiff.
2. The defendant should not be heard to’dispute the title of the plaintiff. Holding under an old lease of Freeborn Garretson, (whose title, it is highly probable, Cunningham obtained—although for some inexplicable reason neither the plaintiff" nor the defendant have given evidence of the original source-of title beyond the existence of the old lease,) which he voluntarily surrendered to accept this new lease of the plaintiff—acquainted also with Clark’s claim to the premises, and as is not improbable, with the facts in relation to it, he yet consents to take a lease from the plaintiff. Clark has no better title than he had then ; *154indeed, not so good; for the lapse of time since, without any practical assertion of title, militates against the probable validity of his claim. The defendant pays rent to the plaintiff and” is not ousted; does not even ask to have his rent refunded; has not attorned to any other landlord, nor been requested to do so. I think there is some ground for the suspicion that the defendant and Clark are colluding together to defeat the plaintiff.
[Albany General Term, March 4, 1867.3. There has been no eviction of the tenant; no title paramount is shown; no attornment to the party holding such paramount title; and it may well be doubted whether • the defendant can defend under a paramount title without divesting himself of the possession acquired from the plaintiff. (Whalin v. White, 25 N. Y. Rep. 465. 2 Wend. 507. 3 Denio, 214. 4 Comst. 270. 46 Barb. 467. 5 Duer, 447.)
I think the conclusion at which the referee arrived was erroneous; that the judgment should be reversed, and a hew trial granted, with costs td abide the event.
Miller, J. concurred.
' Peckham, J., dissented.
blew trial granted.
JPecMmn, Miller and Eogebomn, Justices.]