The opinion of the court was delivered by
Bennett, J.This case came to the county court upon an appeal from a justice’s court; and in the county court the defendant, for the first time, filed his motion to dismiss the cause; which was overruled in that court, and we think rightly. It is claimed, that this action is local and should have been brought in the county in which the lands are situate. It is doubtless true, that, at common law, actions of covenant to recover rent, founded upon privity of estate, as in this case, where the action is against the assignee of the lessee, are local. But the common law, in this respect, has been superseded by our statute, regulating the places in which -actions shall be brought; and none are local, unless made so by statute. This is not; and consequently it must fall under the general statute, which requires an action before a justice of the peace to be brought in the town, where one of the parties reside.
It is farther objected, that, if the. action is not local, it should have been brought in the town in which the defendant resides, and not in Burlington. But if we suppose this objection sound, it was only proper matter in abatement; and not being pleaded before the justice, it was waived. It in no way affects the jurisdiction -of -the court, or the regularity of the judgment. But suppose it had been so pleaded, and the plaintiff had replied, that, although the corporation did not reside at Burlington, yet that this was their place of business and the residence of the principal corporators; would not *60this have been a sufficient answer to the plea ? Though vve do not find it necessary to decide such a question, it not being raised on the pleadings ; yet I should be inclined to the opinion, that such a replication would be held sufficient.
The next question relates to the defendant’s third plea, and the replication to it. I apa well satisfied, for myself, that the plea is bad. The pleader alleges, that, prior to the execution of the lease to Chandler, one William Dodge and others entered into and expelled the plaintiffs from the demised premises, and continued their possession down to the day of the demise, claiming title thereto adverse to the plaintiffs. The plea does not allege the eviction to be in virtue of any right' or title to the' premises paramount to the title of the plaintiffs; neither does it in any way attempt to connect the defendant, or any of those under whom he claims title, with the disseizors’ claim of title. It must be taken, then, that Dodge and the others evicted the plaintiffs in their own wrong, and that their possession was wrongfully continued,
The question then arises, can the assignee of Chandler insist upon the facts set up in the plea, as a bar to the action 1 From the fact, that our statute makes all conveyances of lands, whether by deed or lease, void, if held and possessed at the time adversely to the grantor, or lessor, it may be claimed, that it follows, that the title to the premises demised remained in the plaintiffs absolutely, notwithstanding the lease to Chandler, and that they might assert their right, precisely the same as if no lease had been givén. If this were so, the plea might be good. The rent is payable as an equivalent for the right or interest enjoyed; and if no right passed from the plaintiffs to Chandler, and from him to the defendant, the payment of the rent should not be enforced. But we think, that, as between the lessors and the lessee, and persons who stand in legal privity with them, the lease is operative to pass the term.
It is a familiar principle of the common law, that a conveyance of lands, where there is at the time a disseizor in actual possession claiming title adverse, is inoperative and void. In 1807 our legislature passed a statute, declaring that such conveyance should be null and void, and of no effect in law to convey the lands described. The reason why this statute was passed doubtless was, that some supposed, though probably without much foundation, that our sfafv *61ute, which enacts that all conveyances of lands, signed and sealed by the party granting the same, having good and lawful authority thereunto, and witnessed and acknowledged and recorded, should be valid to pass the same, without any other act or ceremony, operated to abrogate this principle of the common law. It was not the intention to adopt any new principle, but to re-affirm a well known principle of the common law. Our Revised Statutes, enacted in 1839, declare such conveyance to be absolutely void and of no effect to convey such lands; yet I do not apprehend it was the object of the legislature, by the introduction of the word, “ absolutely ” into the Revised Statutes, to change the operation of the common law principle, or the law as declared in the statute of 1807.
The decisions, then, which have been had at the common law, are applicable under our statute; which I regard only in affirmance of the common law. If the owner have parted with his title, and the grantee cannot assert it, on account of the adverse possession at the time of the execution of the conveyance, it may be claimed to follow, as a consequence, that the title is extinguished; but this does not follow. The conveyance is only void as to the person holding adversely at the time of the conveyance, and those who subsequently come in under him ; and as to all others the conveyance is valid and passes the title or interest from the grantor or lessor to the grantee or lessee. If the possession is abandoned by the person, who claimed to hold adverse, no doubt the grantee, or lessee, may enter into possession; and the grantor, or lessor, could not turn him out, in the face of his own deed. . If the possession is left vacant, and a stranger enter arid possess the premises, the grantee, or lessee, should be allowed to oust him in an action of ejectment. He is not within the reason of the rule, which makes void a conveyance, ov lease, on account of an adverse possession. His entry is tortious, and he should not be allowed to use a shield, which was made for another, when there is no legal privity between them. The rule was established, it is said, “to protect the weak against the strong, and prevent justice from being trodden down” by promoting the sale and transfer of disputed titles. The person holding the adverse possession at the time of the deed is the only one in danger of being injured by a violation of the rule; and consequently he and his privies are the only persons who should fall within its protection.
*62These views, I think, are well sustained by authority, as well as by the reason of the case. See Co. Lit. 369 a. Cro. Eliz. 445. Hawk. b. 1, c. 86, sec. 3. Jackson v. Demont, 9 Johns. 60. Livingston v. Peru Iron Co., 9 Wend. 516. Van Hoesen v. Benham, 15 Wend. 164. Livingston v. Proseus, 2 Hill 528. The lease, or deed, is absolutely void against the person holding adversely; and as against him the title is still in the grantor, or lessor, but in trust for the use of the grantee,' or lessee; and the suit must be in his name ; and when a recovery is had, it will enure to the benefit of the grantee, or lessee. If the deed were absolutely void as between the parties, it would be difficult to see, how a recovery in the name of the grantor should enure to the use of the grantee. He could have no right for a court of equity to enforce. We think, then, this plea cannot be sustained upon the ground that the lease to Chandler was, as to him and his assignees, inoperative and void.
It may be urged, that, though the plea is not sustained upon that ground, yet it should be held good upon the ground, that the adverse possession in Dodge and the others is alleged as continuing from the day of the demise to Chandler hitherto, thereby excluding as well the said plaintiffs as this defendant from the possession of the demised premises. I think, as a member of the court, the plea cannot be sustained on that ground. It is doubtless true, that when the lessee, or his assignee, has been evicted, by a title paramount to the title of the lessor, from the entire premises, such eviction is a good bar to a recovery for rent claimed to have accrued subsequent to such eviction. But the eviction, when by a stranger, must be by means of a title paramount to that of the lessor; and it is said it must also be by due process of law. 1 Saund. R. 205, n. Lansing v. Van Alstyne, 2 Wend. 563, n. But I incline to think, if the plea had alleged, that Dodge and the others, named in it, were in possession adverse to the plaintiffs, and by a paramount title, at the time of the demise, and continued such possession, excluding the lessee and his assignee from possession, it would have been good. This, it appears to me, would have been equivalent to an eviction. See Ludwell v. Newman, 6 T. R. 458. Neither the lessee, nor his assignee, should be required to enter and commit a trespass; and when sued for rent, he might well say, that the lease conveyed to him no right to enjoy the premises. If the lease gives the lessee $ *63right to enter and possess the premises, it is, I think, his business to get into possession; and it is not incumbent upon the lessor to put him in. The lessee has as perfect and effectual a remedy to dispossess the wrong doer, after the execution of the lease, as the lessor had before that time.
But it may be said, that, in this case, the lessee could only dispossess the wrong doers by a suit in the name of the plaintiffs. This, I am inclined to think, should not alter the case. The lessee, as between the lessors and himself, is vested with the right to the term, created by the lease, which the lessee can enforce against him ; and, as against the wrong doers, the lessee and his privies in law may, and indeed must, bring their ejectment to get into possession in the name of the lessors. This they have the right to do, and I think chancery would compel the lessors to permit this to be done, 'if they should refuse, upon being indemnified against costs. It would be upon the ground, that the lessors, so far as the term is concerned, held the legal title as against the wrong doers in trust for the lessee, and his assignees ;■ and having this right, I think the lessee, or his assignee, after the assignment, should use it, if necessary, to get the possession; and that they cannot lay by and call upon the lessors to expel the intruders.
There may, however, be some difference of opinion in the different members of the court in regard to this point; and we do not find it essential to pass upon the plea, as we are all well agreed, that the plaintiffs’ replication is sufficient. That is in the form of a special traverse, denying, Under an absque hoc, the fact, that the plaintiffs and defendants, or either of them, were expelled or excluded from, the entire possession of the demised premises. The law is now well settled, that, in case of an eviction from a portion of the demised premises by a paramount title, the rent may be apportioned; and if the wrong doers exclude the parties only from a possession of a part of the premises demised, the same reason exists for an apportionment of rent, as in case of a partial eviction. Stevenson v. Lambard, 2 East 575. Lansing v. Van Alstyne, 2 Wend. 561. If there had been a partial eviction by the lessors, the rule might have been otherwise. The plea purports to be an answer to the entire cause of action, and the matter is so pleaded in form; and if not an answer *64to the whole, it would for that cause, if for none other, be bad. We all think the replication to this plea must be adjudged sufficient.
We come now to the question, was there error committed on the trial of the issue of fact by the jury in the court below 1 It was objected, that the court ought not to have permitted the lease to Chandler to have gone to the jury, under the plea, that it was not his deed, accompanied with the instructions which the court gave them. We see nothing in these objections; and, indeed, they have not been insisted on in argument in this court. See Cheney v. Gates, 12 Vt. 565.
It is however insisted, that the court below should not have ex* eluded the defendant’s evidence in relation to the adverse possession, at the times when the lease to Chandler and the assignments were executed, and in regard to the defendant’s not having been in possession. It cannot be claimed, that this was proper evidence under the plea of non est factum. If the adverse possession had rendered the lease and the assignments void, as between the parties, still it must have been avoided by a plea of'the special matter ; and it could not be given in evidence under the plea of non est factum. Whelpdale's Case, 5 Co. 119. The plea, however, is simply, that it was not the deed of Chandler; and upon the authorities, and for the reasons that have before been given, we think the adverse possession could not render the lease void between the. parties and their legal privies. And as the case shows, that the lessors had the. legal title, it must follow, if the lease and the assignments are valid to pass the title, as between the parties and their privies, notwithstanding the adverse possession, such evidence was not admissible under the plea denying the assignment.
The plaintiffs might, if they had seen fit, have relied upon the fact, that the defendant had been in possession, as evidence from which they might have asked the jury to infer an assignment; and if this had been so, the defendant should have been allowed to controvert the possession. But the lease and the written assignments were in evidence; and no objection to the regularity, or validity, of the assignments, in form, was made; and besides, the bill of exceptions assumes the passing of the premises, at least, in legal form, by the assignments, from the lessee to the defendant. There is nothing in the case to show, that the validity of the assignments was ques*65tioned, as to their legal form, and nothing to show, that the plain» tiffs sought to recover by reason of any other assignment; and if the assignment had been defective in form, the possession by the'defendant, or his want of possession, could have had no effect upon them, in a court of law. It must, then, be taken as a fact, about which there was no dispute at the trial, that the premises had passed to the defendant, unless the effect of the lease and the assignments should be impeached by matter extrinsic, -The evidence as to the possession of the defendant, no doubt, was given by the plaintiffs with reference to that part of the issue joined between the parties. It is always sufficient to prove .the substance of the issue; and if the plaintiffs had shown such an assignment, as to carry to the assignee the term with the covenant of the lessee to pay rent, the possession of the assignee was notcmaierial. It was not necessary to allege in the declaration an entry and possession by the assignee; and though alleged, and traversed by the plea, it may be rejected, it being immaterial. 2 Chit. PI. 194, n. 1 Greenl. Ev., sec. 61, n.
If the title and possessory right passed, the assignee became possessed in law of the term, and an actual possession is not material. Williams v. Bosanquet, 1 B. & B. 238. Pingry v. Watkins, 15 Vt. 488. The case of Eaton v. Jaques, Dougl. 455, which advanced a different doctrine, has long since ceased to be law. It follows, then, if the plaintiffs gave immaterial testimony, it was not error for the court to exclude testimony to rebut it. The extent of the defendant’s offer was, to prove, that he had not, in point of fact, been in possession of any part of the premises demised to Chandler, and that there was a possession adverse to the plaintiffs, though not an adverse title, at the time they executed the lease, and at the time of the several assignments. The defendant must be confined strictly to his offer, and cannot extend it; and by this it does not appear, that he was prevented from taking possession of the premises by reason of the continuation of an adverse possession, which existed against the plaintiffs, at the times specified in the offer, or that there ever was a possession adverse to the defendant. Besides, if the defendant had been kept out of the possession of the premises by reason of a continuation of the adverse possession, after the estate was assigned to him, and this would have constituted a sufficient defence, it must have been specially pleaded, upon the same principle, *66that requires an eviction to be pleaded. It could not arise under the present issue, so long as both the lease to Chandler and the assignment are held valid, and operative to pass the term, as between the parties and their legal privies, — the adverse possession notwithstanding.
We think, then, without inquiring what should be the effect of the payment of rent by the defendant to the plaintiffs after the assignment, there was no error in the proceedings of the county court on the jury trial. The result is, the judgment of the county court is affirmed.