These two cases, which were argued and submitted together, involve respectively the right of the administrator of Jeanette Giuly, deceased, to maintain the action of unlawful detainer for certain lands alleged to have belonged to her in her life-time, and an action for use and occupation of the same by Pliillippi for a period subsequent to her death, he having held over after the expiration of a term for which he entered, and which expired before her death. The general charge ivas asked by both parties on the trials below, and de*304niecl to plaintiff, and given for the defendant; and this action of the City Court is now presented for review.
The principles of law applicable to the facts of the case, and obtaining with respect to both forms of action, are few and familiar. We will, for convenience, first consider separately the unlawful detainer case.
That action is cognizable before j ustices of the peace. These-officers have, and can have under the present Constitution, no-jurisdiction to try questions of title to land. — Const. Art. VI, § 26; Webb v. Carlisle, 65 Ala. 313. The statute conferring: the jurisdiction here invoked, expressly inhibits all inquiry into the merits of the title. — Code, § 3389. And the decisions-of this and all other courts are uniform to the effect, that title-is not within the issue involved in this action.—Welden v. Schlosser, 74 Ala. 355; Houston v. Fariss, 71 Ala. 570; 8 Amer. & Eng. Encyc. of Law, p 126. The thing that is involved is such right of possession between the parties to the record, as may be worked out and adjudged aside and apart from all considerations of title ; and, hence, wholly regardless of whether the plaintiff, or defendant, or a third person, has the superior claim to the ownership of the property. The action is maintainable by any one entitled to the immediate possession, against any one unlawfully withholding possession,, where the relation of landlord and tenant exists between the parties.
It is insisted here, that the plaintiff’s right to recover must, in all cases, rest upon a prior actual possession — actual in the sense oí being possessio pedis by him personally, and prior in the sense of antedating defendant’s entry.' This is not the law. The books are full of declarations to the effect, that in this action, and in that of forcible entry and detainer, the plaintiff must show prior actual possession. We have no purpose to dissent from that view in any particular. It is not meant thereby, however, that the plaintiff in unlawful detainer must show actual possession, either in himself or in another for him, antedating the entry of the defendant. What is meant is, that he shall prove an actual possession in himself prior in point of time to the inception of the wrongful possession of the defendant — prior to the beginning of the unlawful detainer by the defendant. Where the gravamen of the action is forcible entry, the plaintiff’s possession must, of course, antedate the entry, since that is an offense only against the then existing possession, and must be redressed by the party who had that possession. But, here, the offense is against the possession which existed up to the moment of time when the defendant ceased to hold under his lease, and assumed to hold *305otherwise than in subordination to him whose possession he theretofore had. So long as the tenant holds under his lease, his actual possession is the actual possession of the landlord ; and proof of this actual possession, through and by his tenant, prior to and continuing to the time of the beginning of the unlawful detainer, fully meets the requirements of the doctrine under consideration.
Conditions of fact are very numerous, which, while involving no prior actual possession in the person of him who asserts the right to the possession, yet constitute the relation of landlord and tenant between the parties, with all the rights, remedies, limitations and estoppels, incident thereto. Thus, for instance, the relation exists between the heir, upon descent cast, and the tenant of the ancestor (Beezley v. Burgett, 15 Iowa, 192; Turley v. Foster, A. K. Marsh. (Ky.) 204; Stinson v. Gosset, 4 Ala. 597; Dwine v. Brown, 35 Ala. 596; Hightower v. Fitzpatrick, 42 Ala. 597); between a mortgagee, after default, and a mortgagor, who remains in possession under a contract to pay rent (Strauss v. Harrison, 79 Ala. 324); between a vendee and a vendor, who retains possession after conveyance under like agreement (Vancleave v. Wilson, 73 Ala. 387); between the personal representative, who has taken the statutory steps necessary to an appropriation of the decedent’s land or its rents to the debts of the estate, and a tenant originally let in by the latter (Lass v. Eisleben, 50 Mo. 122; Scott v. Lloyd, 16 Fla. 151; Moody v. Ronaldson, 38 Ga. 652); between a purchaser from the lessor, pending the term, and the tenant under the lease (3 Brick. Dig. p. 599, § 28 et seq.); and in general, it may be said, between a person in possession who accepts a lease from, or attorns to another, who in good faith claims title to the land. And in all such cases, the landlord is in actual possession by his tenant, and upon this possession may well ground his right to oust the tenant, who holds over after the expiration of the term, in the action of unlaw'ful detainer.—Taylor’s Land. & Ten. §§ 705, 713 et seq.; Lecatt v. Stewart, 2 Stew. 474; Beck v. Glenn, 69 Ala. 126; King v. Bolling, 77 Ala. 594.
In the case at bar, the defendant, though .at the time and theretofore in possession of the premises, in December, 1887, accepted a lease from the plaintiff as administrator of Jeanette Giuly, retained possession thereunder, and paid for a time the monthly installments of rent as they fell due. His possession during the term of this lease was the possession of Nicrosi; being actual, plaintiff’s possession was actual; and antedating the unlawful detention, was prior possession in the plaintiff, *306in the sense necessary to affording a predicate for the recovery here sought.
One of the familiar incidents of the relation of landlord and ■tenant is the estoppel which seals the lips of the latter to deny the title of the former; and in the application of this doctrine, it is entirely immaterial whether the tenant was let into the possession by the landlord, or, being already in possession, accepts a lease from, or attorns to the party claiming to be the landlord. In the absence of fraud and mistake, the tenant, however or under whomsoever he entered into possession, is estopped to deny the title of the party under whom he holds by the acceptance of a lease, or by attornment.—Lyon v. Washburn, 3 Cal. 201; Thayer v. Society, 20 Pa. St. 60; McConnell v. Bowers, 4 T. B. Mon. (Ky.) 392; Patterson v. Hansel, 4 Bush, (Ky.) 654; Richardson v. Harvey, 37 Ga. 224; Berridge v. Glassey, 7 Atl. Rep. 749; School District v. Long, 10 Atl. Rep. 769; Tyler v. Davis, 61 Texas, 764; Terry v. Ferguson, 8 Port. 502; Griffith v. Parmley, 38 Ala. 393; Beck v. Glenn, supra; King v. Bolling, supra.
It is insisted here, however, that the estoppel does not obtain, because the defendant was induced to accept a lease from the plaintiff, and to attorn to him, by fraudulent rejuesentations made by the latter as to the title to the land, or through a mutual mistake of the parties as to the title being in plaintiff’s intestate; and hence that it is open to defendant to show that plaintiff is not entitled to the possession, in that he neither had nor represented the title when the lease was accepted and the attornment made by the defendant. There are two reasons, either of which would be sufficient, why this line of defense could not be resorted to. In the first place, it involves an inquiry into the merits of the plaintiff’s title; whether, for instance, the land belonged to the estate of his intestate, and whether he had intervened in the statutory method to appropriate the land or its issues to the payment of the debts of the estate; and, as we have seen, no right of defense which depends for establishment and effectuation on any question of title, can be availed of in this action. It- is quite an error to suppose that the case relied on by plaintiff involves any such question. He stands upon the lease he has made, and which the defendant has accepted — and this though he may have had no right to make it, and its acceptance was in no wise incumbent on the defendant — and the estoppel which closes the lessee’s mouth to impeach it. No abstract right to the ownership of the land is involved. If this were otherwise, and this action ejectment instead of unlawful detainer, it may be that the principle declared in Crim v. Nelms, 78 Ala. 604, would apply; *307but to apply it here, would be in the teeth of the Constitution, the statute, and all authoritative adjudications which inhibit all inquiry into title. The other reason why this line of defense will not avail is, that the evidence shows that Nicrosi made no misrepresentations as to the title under which he claimed, nor was he at all mistaken in respect thereto. The representation relied was, that the land belonged to Jeannette Giuly in her life-time, and that her husband, Antony Giuly, had no title or interest in it. This is eminently true under the admitted facts of this case.
The muniment under which Jeannette held the land, vested it in her to her sole and separate use, and excluded all the marital rights of Antoni. It may be — indeed, we incline to this as the doctrine better supported by reason and authority, though we have an adjudication to the contrary, Smoot v. Lecatt, 1 Stew. 590—that this fact, of itself, suffices to defeat an estate by curtesy in the surviving husband.—Carrington v. Richardson, 79 Ala. 101. But, if it be conceded that the instrument does not have this effect, the failure of issue born alive to the marriage of Jeannette and Antoni does defeat tenancy by the curtesy in the latter; and the estate, not being statutory in the wife, descends on her death to her heirs, freed from all right and interest of the husband.—Grimball v. Patton, 70 Ala. 626.
It is equally clear that Antoni is not an heir of his deceased wife, under the admitted facts. Her lands descended to her brothers, under our statute of descents. The fact that they are non-resident aliens, is not material. It is specally provided in our law that aliens, resident or non-resident, may take and hold property by purchase, descent, or devise, as native citizens. — Code, § 1914; Code of 187(5, 2860. And this statute, passed February 25, 1875, was not affected by thesubsequent ordination of the Consl itution of 1875, in which it is declared that foreigners, who are bona fide residents, shall enjoy the same rights in respect to the possession, enjoyment and inheritance of property, as native-born citizens, either standing alone, or in connection with the fact, when applied to this case, that Antoni is a naturalized citizen. The constitutional provision was a limitation merely on the otherwise boundless power of the legislature in the premises, and not a grant of power in any sense.—Birmingham v. Klein, 89 Ala. 461. It forbade the legislature to make any discrimination against resident foreigners; but it leaves the competency of the law-making power quite ample to conferring on nonresident aliens the same property rights as may be enjoyed by such resident foreigners, or by native or naturalized citizens. People v. Rodgers, 13 Cal. 165.
*308Nicrosi, therefore, made no misrepresentation as to the title of Jeannette Giuly, nor as to the lack of title in Antoni Giuly; nor did he or the defendant labor under any mistake in the premises, which conduced to the acceptance of the lease by the latter. The estoppel to deny the rights asserted by Nicrosi is still upon him in every aspect of the case; and having held over after the expiration of the term, the court, on the agreed facts, should have given the general charge requested by the plaintiff in the action of unlawful detainer.
Like considerations lead to the same result in the action for use and occupation. The defendant having attorned to Nicrosi, settled with him as administrator for a part of the rent in arrears in December, 1887, and undertaken to pay the' balance, can not now be heard to question his right to demand and receive such balance.—Powell v. Mortgage Co., 89 Ala. 490, and authorities supra.
It follows that the judgment below in each case must be reversed, and both cases remanded.
Reversed and remanded.