And now to wit, this tenth day of December, A. D. one thousand nine hundred and fifteen, the above case having been presented and argued by counsel, the court being of the opinion that the said deed, which was tendered by the said plaintiff to the said defendant would, if accepted and received by *339the said defendant, have conveyed to him a good fee simple and marketable title, clear of all liens and encumbrances of every nature and character whatsoever of record prior to the twenty-fourth day of May, A. D. one thousand nine hundred and twelve, excepting the mortgage held by “Security Trust & Safe Deposit Company,” the balance due thereon being the sum of five thousand dollars.
It is therefore ordered, adjudged and decreed, that judgment be entered in favor of the said plaintiff and against the said defendant for the sum of nine thousand and nine hundred dollars, besides costs.
Judgment was accordingly entered on the same day.
Counsel for the defendant took a bill of exceptions, and subsequently a writ of error.
Argued before Curtis, Ch., Pennewill, C. J., and Conrad and Heisel, J.J.
The only error assigned was: The court erred in entering judgment in favor of the plaintiff below against the defendant below.
Argument for Plaintiff in Error.
It appears from paragraph 13 of the case stated that John Moody, sheriff, granted a certain piece of land, including the lands in question, unto “President, Directors and Company of the Bank of Wilmington and Brandywine,” its successors and assigns, for and during all the rest, residue and remainder yet to come and unexpired of the term of nine hundred and ninety-nine years in and by a certain lease granted and demised by James Lea to a certain John Martin, subject nevertheless, to the payment of the yearly rent and the performance of the covenants, provisos, conditions and agreements in and by said lease reserved, mentioned and contained.
It nowhere appears therein that James Lea, or his heirs, devisees or assigns, ever conveyed the fee simple estate .in said lands to said bank, or to any of its successors in title.
The release of Margaret McLean and others to Lea Pusey, *340appearing in paragraph 18, is for and during the remainder and all the unexpired part of the term mentioned in the said lease, so that the effect of said release would be to extinguish the rent charge for the balance remaining of the term of nine hundred and ninety-nine years.
It is respectfully submitted that the title which would have been conveyed by the deed of the defendant in error to the plaintiff in error, if the same had been accepted, would not have been a good fee simple marketable title clear of all liens and encumbrances except as provided in the agreement of sale, and that the deed would not have conveyed any interest in said lands other than the residue of the term of nine hundred and ninety-nine years which was created by the lease of James Lea to John Martin.
Subject to certain exceptions and qualifications, no rule is better settled by the decisions, than the general one that a tenant in undisputed possession of the demised premises, is estopped to deny the title of his landlord as such title of the landlord existed in him at the time of the creation or the inception of the tenancy before a surrender of possession to the landlord. 24 Cyc. 934, and the cases cited.
Not only tenants, but their privies in blood or estate, are estopped from disputing the title of the landlord. The estoppel extends to subtenants, assignees of the lessee, a mere licensee holding under the lessee or any one who succeeds to the possession to or from the tenant. This includes heirs of a tenant who are in possession after his death, purchasers of the leased premises from the lessee, the wife of a tenant in possession with him, and the husband of a tenant who is in possession in her right. 24 Cyc. :943, and cases cited.
A tenant cannot deny his landlord’s title until he is discharged from the estoppel arising out of his lease and possession by a yielding up of possession to his lessor. A surrender is necessary even after the expiration of the term of the lease. This rule applies not only to the tenant, but also to all who succeed to the possession from or through him. 24 Cyc. 946, and cases cited.
Without the landlord’s consent a tenant in possession cannot set up against his landlord a title acquired by him before or during *341his tenancy hostile in its character to the title which he acknowledged in accepting the demise. This rule does not prevent, however, the assertion of the adverse title at the end of the term after possession is surrendered to the landlord. 24 Cyc. 952, and cases cited.
Argument for Defendant in Error.
First. The first paper of record in the chain of title (paragraph 16) is the deed of Thomas McConnell and wife to John Martin, bearing date October 28, A. D. 1801, which conveys inter alia one-fifth interest in a lot which John Martin, deceased, by virtue of a lease duly executed under the hand and seal of James Lea, dated the fifteenth day of March, A. D. 1787, became seized and possessed. There is nothing in this deed to disclose the term demised by said lease. The said deed purports to convey a fee to said one-fifth interest.
Second. The next link (paragraph 15) is the Orphans’ Court proceedings in the year 1803, for the sale of certain real estate of John Martin, deceased, to pay the debts of the said decedent. In the record of said proceedings it is recited that John Martin, in his lifetime, became lawfully seized in fee of and in three full equal and undivided fifth parts of the lot therein described. On March 6, A. D. 1804, the executors of John Martin, deceased, made return that they did sell the said undivided three-fifths parts of the premises described in the petition to Rebekah Martin, to hold to her, her heirs and assigns forever, under and subject to an annual ground rent of three pounds and twelve shillings, and subject also to the right of dower of the. widow of John Martin, the elder. In this proceeding no mention is made of any lease for any term. The fact that the Orphans’ Court entertained jurisdiction and ordered a sale and particularly subject to the right of dower of the widow of John Martin, the elder, conclusively indicates that the Orphans’ Court held the said interest to be fee.
Third. The next paper of record (paragraph 13) is the deed, poll made by John Moody, sheriff, to the Bank of Wilmington and Brandywine, which conveys the lot of land therein described. *342to the said bank, its successors and assigns, for and during all the rest, residue and remainder yet to come and unexpired of the term of nine hundred and ninety-nine years in and by a certain lease bearing date the-day of-, A. D.-, granted and demised by James Lea to a certain John Martin, subject, nevertheless, to the payment of the yearly rent and the performance of the covenants, provisos, conditions and agreements in and by said lease reserved, mentioned and contained. Nowhere else in the chain of title is the lease of James Lea to John Martin described to be for any definite term of years. This deed poll was made pursuant to a sale held under a vend. exp. which was issued upon a judgment after a levy had been made upon the lands conveyed and inquisition held. In the proceedings taken on the judgment the land was treated as real property, and no mention was made of any lease except in the sheriff’s deed.
Fourth. The next deed of record is the deed of the Bank of Wilmington and Brandywine to Lea Pusey, which conveys said lot of land to said Lea Pusey, his heirs and assigns, subject to the payment of the yearly rent and the performance of the covenants, provisos, conditions and agreements reserved, mentioned and contained in and by a certain lease bearing date the—-day of -, A. D.-, granted and demised by James Lea to a certain John Martin. No mention is made in this deed that the lease is for any term of years. During the time that the said Lea Pusey was seized a release of the ground rent was made to him, his heirs and assigns, by the attorney in fact, for Margaret McLean, Eliza Lea and Henry Lea for and during the remainder and all the unexpired part of the term mentioned in the said lease.
In the will of Margaret Marshall, devising said ground rent to Margaret Lea, afterwards McLean, Elizabeth Lea and James Lea, the ground rent is described as all that ground rent of sixteen dollars per annum, payable forever, out of that lot of land late in the tenure of Thomas McConnell. {Pars. 12 and 18.)
Fifth. In the next deed of record which was made by Lea Pusey and wife to Benjamin Webb and Jonas Pusey, on September 29th, A. D. 1837, none of the real estate conveyed is described by metes and bounds, but the said deed conveys generally all the *343lots of land, lands, tenements and hereditaments of said Lea Pusey lying and being within the limits of the State of Delaware. (Par. 11.)
Sixth. In all the subsequent conveyances of said lot down to the date of the filing of the case stated, whether by deed, or devise, the title to said lot has always been treated as a fee.
The plaintiff in error relies upon but one proposition of law, namely, that the tenant cannot dispute the title of his landlord.
It is respectfully submitted that this proposition of law is not applicable in the case at bar. Only in two instances it is suggested that the title to said lot, piece or parcel of land is a lease for a term of years. The presumption that it is a leasehold is overcome by the numerous instances in which it has been described or treated as a fee. But assuming that the interest was originally a leasehold interest any reversion which remained in James Lea has been lost by the adverse possession of the defendant in error and her predecessors in titler
"The general rule is well settled that a tenant cannot dispute the title of his landlord by setting up title either in himself or in a third person during the existence of the lease or tenancy. While the decisions are far from harmonious as to what acts will initiate an adverse possession by the tenant it is at least well settled that there can be no adverse possession by the tenant until one of the following acts has occurred: Surrender of the premises to the landlord; actual, open and notorious disclaimer of the landlord’s title brought to his knowledge, or actual disseizin or ouster of the landlord. The disclaimer and notice thereof must be actual or so open and notorious as to raise the presumption of notice, and the statute will run only from the time of such knowledge and notice.” 1 Cyc. 1058.
According to a considerable number of decisions, when the tenant disclaims to hold under the lease and the landlord has notice of it the tenant’s possession is adverse and the statute will run from the time when the landlord has notice, and this notice it seems need not be actual or express. 1 Cyc. 1060.
The acts of the various owners by conveying and treating said title as a fee simple is a sufficient disclaimer of the title of the landlord to initiate the running of the statute, and such disclaimer has been so' open and notorious as to charge the landlord with notice.
The syllabus to Dougherty v. Flemming, 7 Pennewill, 278, 79, Atl. 104, is:
*344“It appearing to the court, from the case stated, that the real estate described having been held and transferred in fee simple for over fifty-eight years, and that no claim for ground rent, nor any payment thereof, had been made for over sixty years, held that the deed executed by the plaintiffs and tendered to the defendant, would, if it had been accepted have conveyed to the defendant in fee simple the said real estate discharged of ground rent; and that judgment should, therefore, be entered in favor of the plaintiffs.”
The facts in Townsend v. Boyd, 217 Pa. 386, 66 Atl. 1099, 12 L. R. A. (N. S.) 1148, are almost identical with the facts in the case at bar. In that case the court held that after a great lapse of time and a series of circumstances disclosing an unchallenged fee simple title during such period of property originally held under a lease the courts will presume whatever grant is necessary to establish the landlord’s title in an ejectment proceeding against one claiming under such title.
Per Curiam:The court are of the opinion that the judgment below should be affirmed, it appearing from the agreed statement of facts that the conveyance made by James Lea to John Martin in 1787 was a conveyance in fee simple reserving rents; and that the persons entitled to the rents reserved, assigned the same absolutely to Lea Pusey, to whom the land had been conveyed in fee simple subject to the payment of said rents; through whom, and his successors in title, the plaintiff claims a fee simple title.
Judgment below affirmed.