By the Court,
Savage, Ch. J.The first proposition advanced by the judge does not appear to be disputed, that the lease was prima facie evidence of title in the lessors. But it is contended by the defendant’s counsel, that the remedy of the landlord must be upon the lease, either for a forfeiture or for non-payment of rent, when the precise sum must be demanded, if he proceeds at common law, or want of sufficient distress under the statute must be shewn; and it is argued that the parol disclaimer shewn in this case is not enough to Work a forfeiture. It has been often decided by this court that afee cannot be divested by parol where title is shewn in a party in a cause; his declarations cannot in general be given in evidence to shew a title out of him, but parol declarations are received to prove or disprove the fact of tenancy, to establish boundaries, &c. “ It is said that a disclaimer of a freehold estate must be in a court of record, because a *637freehold shall not be divested by mere words in pais. But in the case of terms for years, which are not chattels real, an assignee of them may refuse in pais, and by such refusal the interest will be divested.” (Cruise, tit. 32, ch. 26, § 2.) We have held, however, that a disclaimer of a freehold estate need not be in a court of record, but may be by deed in pais. (6 Cowen, 620, 1.) “If he (the tenant) affirms the reversion, to be in a stranger by accepting his fine, attorning as his tenant, collusive pleading, and the like ; such behaviouramounts to a forfeiture of his particular estate.) Coke Litt. 253.)
In the case of Jackson v. Collins, (11 Johns. R. 1,) it was held that a parol disclaimer, with a declaration that the tenant had accepted a deed with warranty from a stranger, amounts to a waiver of a formal demand of rent. In that case, when rent was demanded, the defendant answered that he did not hold under a lease from Van Rensselaer, but that he claimed the whole under a warranty deed, and that the grantor therein was bound to defend him. In this case the defendant refused to pay rent, saying he had warranty deeds from Ludlow and others. Kent, chief justice, says, “ The disclaimer by parol might not have been sufficient in this case to amount, of itself, to a forfeiture of the lease. That is not the point in the case. But it is sufficient to excuse the plaintiff from the necessity of a regular formal demand of the rent, in like manner as the act or declaration of the opposite party will in many cases supersede the necessity of a formal tender; and, in like manner as such a disclaimer, will excuse the omission of a notice to quit.” It is said that this case stands alone, and is unsupported by any other authority* If it does so, it stands upon the basis of reason and common sense. Why should the landlord be put -to the trouble of making a demand on the premises of the precise sum, at a particular hour, when his tenant had put him at defiance by telling him that he had a better title, that he held in fee from another source of title, and would pay no rent ? But the quotation from Gruise shews that a tenant for years may forfeit his term by a refusal in pais. In this case, there *638is not only a refusal to pay, but the defendant accepted deeds uncfer a hostile title.
Do the circumstances in this case warrant the presump^on °f a release by the landlord ? In Eldridge v. Knott, (Cowp. 214, 216,) it was held that mere length of time, short of the period fixed by statute, without other circumstances, is not sufficient to authorize the presumption of a release of a rent. In Jackson v. Davis, (5 Cowen, 130, 131,) this point is discussed by Mr. Justice Sutherland, and it is clearly shewn that though payment of the rent may be presumed, yet an extinguishment of the right to the rent is not to be thus presumed. The only circumstance in this case from which to presume an abandonment of their claim, consists in the fact that the lessors sold lands bounded upon the commissioners’ line, and within the Halfmoon patent. That circumstance is rebutted by the fact that in other instances they have sold lands which, according to that line, are within the Kayaderosseras patent. This circumstance, therefore, proves nothing.
There is no evidence of any assent by the lessors to the defendant’s purchase under the Kayaderosseras title. In Jackson v. Welden, (3 Johns. R. 283,) it appeared that the lessor had said that he had given up all claim to the land, and told the defendant that a title under the Kayaderosseras patent would be valid. The court held that the lessor must be deemed to have assented to the defendant’s attornment. Not so in this case ; there is no evidence shewing any knowledge in the lessors of the defendant’s purchase until the rent was demanded, in May, 1827.
That the award of the commissioners did not affect the title of those who had not assented to the proceeding and subscribed the agreement or the petition, is a point decided by the legislature by the act of 1795, and by this court in Jackson v. Davis, (5 Cowen, 135, 6.) I shall not repeat here what is there said upon that point, particularly as it was not relied on in the argument. But if it were conceded that Christina Van Schaick was bound by her signature to the petition of 1792, that could not affect the present lessors. She had an estate for life only; and if she had been barred *639during her life from asserting a right to the premises or the rent, those who own the inheritance are not to be prejudiced by any acts of that kind of a tenant for life.
I am of opinion that the motion for a new trial should be denied.