The opinion of the court was delivered by
Strong, J.The affidavit of defence is neither more nor less than a denial by the tenant of the title of her landlord. The sale of the lot by Seabrook to Angelina Smith, is averred to have been in fraud of his creditors, and for the purpose of enabling her to hold it for his benefit. So, the ground-rent which she reserved to herself out of the lot, when she sold to McCurdy, the defendant below, is averred to have been not hers, but reserved in trust for Seabrook. What is this but a denial of her equitable title? That cannot be done for such a purpose as is here attempted. It has been mistakenly argued, that the affidavit sets up a dissolution of the relation of landlord and tenant existing between the plaintiff and defendant, before the rent sued for began to accrue. Such is not its meaning. It strikes at the existence of the relation at any time. It avers that the landlord never had title. It does not pretend that she has parted with her interest, since the defendant covenanted to pay rent to her. Her position is precisely the same as it was when she conveyed the lot on ground-rent to McCurdy. Even if she then held the lot in trust for Seabrook, the sale of his interest did not divest her legal title, and her legal title is sufficient to enable her to maintain her action against the tenant who covenanted with her to pay rent..
The judgment is affirmed.