(dissenting): The prosecutrix demised to the-defendant for the term of three years, by verbal agreement,, seven acres of land, designated by a well defined boundary line, of a tract of thirty-five acres held by her under one deed. The prosecutrix pointed out to the defendant, when the contract was made, not only the boundaries of the demised premises, but those of the tract of which it constituted a part, and at the same time she forbade him from cutting any timber outside of the limits of the seven acres. Subsequently, and during the term, the defendant did cut down and carry away trees on the thirty-acre-tract outside of the demised premises, and, when indicted (under § 1070 of The Code), offered in evidence a grant to one Hemphill, dated in 1857, embracing both the land leased to him and that on which he cut the timber trees for shingle-blocks, and also parol testimony tending to show that he was authorized *754and. employed by said Hemphill to cut down the trees. The Court admitted the testimony for the purpose of showing that he acted under a bona fide claim of right. The defendant excepted to the refusal of the Court to allow the jury to consider the said grant as evidence of title in said Hemphill, and of right on the part of the defendant to enter as his servant, employee or lessee.
The appeal raises two que-tions—
First. Is it competent for one indicted for a trespass under this statute, to prove title in himself or his lessor by exhibiting a chain of title deeds, or does the issue of his guilt or innocence depend rather upon the holding of actual or constructive possession by the prosecutor on the one hand and his own good faith on the other ?
Second. Is the lessee of a definite portion of a large tract of land, held by his lessor under the same title deed under which the latter holds the demised premises, estopped during his term from setting up against the lessor an adverse title to any part of the territory covered by such deed ?
If the law should furnish an affirmative answer to the second interrogatory, this case would be disposed of.
Though feudal tenures have been long since abolished, the reciprocal duties of landlord and tenant and the relations which the law recognizes that they sustain to each other, had their origin in part in that system, and are not easily understood without recurring to its principles. Fealty was, in the middle ages, another name for fidelity. A tenant for years was sworn to be faithful and to render the customs and services due to his lord. 1 Coke on Lit., 67b. Where one held land of a superior, the obligation of the lord was to protect the tenant in his immediate possession; the corresponding duty of the tenant was to defend the right of his lord, not simply to the fields and woodland within the boundaries of the land in his actual possession and under his immediate care, but to the outside limits of his lord’s estate in which it *755was located. 2 Bl., 46. Mr. Chitty (Note 2 Bl., 46) says, that a man could not free himself from this feudal dependence except by renounciug all claim to the land which he was holding and surrendering the possession to his lord. In that early day, when the system prevailed in its original form, the suggestion that a tenant could step over the line of his actual possession, but still within the bounds of the land of the lord under whom he held, and under a lease from a rival lord of a neighboring manor destroy a grove in sight of his home, would have cost the tenant his head, and after the destruction of such tenures would have been considered a breach of good faith and inconsistent with the subsisting relation to his landlord. A man could not be a faithful vassal and fight under two banners. A servant who, when he was placed in charge of a castle, surrendered a bridge, covered by the fire of his archers on the road by which an enemy was approaching it, would have been thrown from the battlements as a traitor. It is because the rule which forbids the tenant to dispute the title of his landlord had its origin in feudal principles, that text-writers agree in saying it is not an estoppel growing out of a contract. One of the evidences that it originates in the idea that there is an obligation on the part of the tenant, inseparable from the very relation he. sustains,, to be faithful to his landlord, is found in the fact that it is often enforced against persons not capable of contracting. Wilson v. James, 79 N. C., 349. Plence, it is often said that the law, in order to punish fraud (which is, in all its forms, but a species of bad faith), imposes upon those who were slaves, infants or femes covert when a tenancy began, the condition that they will not be permitted to deny the title of him under whose permission they acquired possession until they shall have surrendered the premises to him. 2 Kent’s Com., 240.
We find that a discriminating text-writer (Sedgwick and Wait, T. T. L., § 352) in laying down the rule that a tenant *756must ordinarily surrender possession before he can deny the title of his landlord, says: “ If the rule were otherwise, no person would be safe in parting with the possession of his land. * * * * Jf any defect existed in the chain of his title, or the muniments of title had been lost or destroyed, or the witnesses who were conversant with the facts affecting it had died or were absent from the country, the owner would be practically precluded from letting the property. The possession of land by a servant, a tenant or vendee (certainly until the whole of the purchase-money is paid) enures to the benefit of the master, landlord or vendor, in the absence of a counter adverse possession upon some part of the tract, to the outside limits of the deed under which such master, landlord or vendor claims. Brown v. Brown, 106 N. C., 460; Ruffin v. Overby, 105 N. C., 85; Scott v. Elkins, 83 N. C.( 424; Williams v. Wallace, 78 N. C., 354; Wood on Lim., § 260. Such is the privity between persons standing in these relations to each other, that if one who has been a tenant of a few7 acres of a large tract held by his landlord, takes a bond for title and contracts with the latter to pay a certain price for the land demised until the purchase-money is paid, if not until the land is conveyed to the vendee, the possession, both as tenant and vendee, enures to the benefit of the vendor to the outside boundaries of the deed under which he holds. But after the execution by the vendor to the vendee of a deed for the definite boundary contracted for (if not upon the performance of the condition of the bond by payment of the whole of the purchase-money), the possession becomes adverse to the vendor as well as to all others. Ruffin v. Overby, supra; Wood on Lim., §§ 259, 260.
If there is no other adverse possession within the limits of the landlord’s deed, the’ tenant holds for his benefit constructive possession of the whole boundary. Wood on Lim., §§259,260; McLean v. Smith, 106 N. C., 172. The actual possession of Boyce was confined to seven acres, and had he *757occupied the seven acres without trespassing outside for seven years continuously, it would have enured to the benefit of the prosecutrix under her deed for thirty-five acres from her father, and have matured her title, (supposing the title to have been out of the State) against all persons not laboring under some disability. Ruffin v. Overby and Scott v. Elkin, supra; Lenoir v. South, 10 Ired., 237. If another person had entered claiming adversely to the prosecutrix on any part of the thirty-five acres, then the result would have been the constructive possession of the unoccupied land covered by both titles, supposing both to be seated upon the lappage, would have been drawn by the older title to the occupant holding under it. McLean v. Smith, supra. If the defendant Boyce was at liberty to act under the authority of Hemphill in cutting timber trees, so that the act'itself would amount to an actual adverse possession for the purpose of maturing title,.he might, upon the same principle, under a lease from Hemphill, executed after his entry under the prosecutrix, have enclosed a field and thereby have changed the nature of his own constructive possession by an attornment, while occupying the land under his-old lease, and thus have placed himself in the attitude of holding two adverse and conflicting possessions at the same time. The supposed case would present an unprecedented legal problem that would be difficult of solution, unless we extended the benefit of the estoppel on the tenant to the limits of the possession held constructively for the landlord’s benefit instead of limiting its application to the demised premises. The prosecutrix could, as between herself and Boyce, restrict his right to cut timber to the seven-acre tract, and forbid his trespassing beyond its boundaries, without depriving herself of the benefit of the constructive possession, which grew out of his occupancy as a tenant of any part of the thirty-five-acre tract, and extended to the whole of that tract, until some other person entered and took actual possession by title para*758mount within its boundaries. Scott v. Elkins, 83 N. C., 426; Ruffin v. Overby, supra; Brown v. Brown, supra. It would be a legal anomaly if the tenant himself could destroy the privity existing between himself and the prosecutrix, divest the benefit of constructive possession out of her and transfer it to another claimant by accepting a lease outside of the demised premises, but within the boundary of his lessor’s deed under which he is occupying. And yet, entering as servant and employee of the adverse claimant, his possession, if he is not estopped, would be equivalent to an actual possession by such claimant in his own person. Williams v. Wallace supra. A man takes actual possession and acquires with it the benefit of constructive' possession by the occupancy of his vendee, his tenant or his servant to the same extent as if he had himself entered upon the premises. Qui facit per alium,, facit per se. In Brown v. Brown, supra, Justice Davis, delivering the opinion, says : “A vendee in possession under a contract of purchase is in privity with his vendor, and is entitled to have the time when he held possession under his vendor added to that after receiving his deed in determining whether colorable title has matured into a perfect title by possession.” He further says: “That up to the time of taking the deed the vendor sustains the same relation to the vendee as if his contract with the latter had been for the lease instead of the purchase of the premises.” Tiedman R. P., § 181. Supposing that Hemphill had the older title, which included within its bounds the whole thirty-five-acre tract conveyed to the prosecutrix by her father, and that the term had been for seven years instead of three, then it is clear that by an occupancy for the entire term as her tenant, her colorable title to the whole boundary conveyed by her father would be matured againt Hemphill. Green v. Harman, 4 Dev., 158; Williams v. Miller, 7 Ired., 186. But at the very moment when a tenant or' servant of Hemphill acquired actual possession on the lappage, then *759eo instanti the benefit of Boyce’s occupancy would have been restricted to the actual possessio pedis. McLean v. Smith, 106 N. C., 176; Wood on Lim , § 259. If Boyce was not estopped from defending under the title of Hemphill when indicted for a trespass not amounting to an actual possession, it would inevitably follow that he would not have been estopped from entering as the tenant of Hemphill and clearing a field just across the line of the seven acres, but within the limits of the thirty-five-acre tract.. Yet the effect of entering into such relation with Hemphill would be to transfer to him the constructive possession, not only of all the tract of the prosecutrix outside of the seven acres, but all inside of the demised premises, except so much as he bad actually enclosed. If he could become the tenant of Hemphill at all without surrendering his possession under the pros-ecutrix, his tenancy must carry with it all the benefits that the law attaches to such a relation, and in the case supposed would enable his new landlord, by virtue of it, to deny his possession under the former lease in tolo and confine its benefits to the prosecutrix to his actual possessio pedis at the place of his original occupancy. If he could become his tenant at all, then, after occupying under a lease from her for six years and three hundred and sixty-four days, he could build for Hemphill a hog pen just outside of the seven but within the thirty-five acres, and restrict his lessor’s possession through him to the enclosure made for her. Lenoir v. South, 10 Ired., 237; McLean v. Smith, supra. There is no middle ground, the estoppel must be co-extensive with the .constructive possession of the tenant and not confined to the limits of the demised premises, or we must concede the right of the tenant in a case of lappage to take a new' lease of the holder of the older title and enable his new landlord to maintain what he is estopped to say, that his original lessor had no title inside of the premises demised by her except to the extent of the territory actually occupied. Suppose that a *760civil action had been brought by the prosecutrix after the tenant had held over as her tenant from year to year for seven years on the seven acres, against the same tenant for a trespass in clearing and cultivating under a lease from Hemphill just outside of the boundary of the seven acres, and Hemphill had been allowed to defend as landlord ? Upon proof that Boyce entered into possession outside of the boundary of the seven acres on the three hundred and sixty-fourth day of the seventh year, he would be made tenant of both parties By his last adverse entry his possession would become adverse to himself, and the constructive possession that he had held for nearly the statutory period would, by his own act, pass out of him in one capacity and vest in him in another capacity. Then, if he could take a lease from Hemphill at all, he must take it with all of its incidents, including the divesting of his actual possession in all of the seven acres even, not under fence, out of the prosecutrix and vesting it,- as well as the constructive possession outside, in Hemphill, the holder of the older title. An occupancy by Hemphill, if he had the older title, must have drawn the constructive possession out of the prosecutrix, except where she had actual possession. If Boyce.could occupy as his tenant at all, it must ex necessitate have the same effect as the entry of Hemphill. If any Court of Appeals, which recognizes the English common law as the foundation of its doc'trine of tenures, has ever admitted that a tenant, by his own act, could hold adversely to himself and thereby deprive his original lessor of a benefit incident to his tenancy, even inside 'the limits of his original lease, I have been unable, by diligent effort, to find it. If such shifting of fealty could have been considered as treachery and punished with death in the middle ages, the tolerance and encouragement of the act now, by giving it the sanction of the law, indicates, to my mind, that we have not improved upon the ideas of our rude and uneducated ancestors in enforcing fidelity in one of the *761most important relations incident to civilized society. Our tenure in North Carolina, it is true, has been compared to that of tenants by socage, because military service is not incident to it. But there can be no doubt that the rule of honest dealing, which bound every tenant to be true to his landlord, and gave the latter all of the actual benefits incident to the tenancy till the relation ceased, is one of the features of our system that had its origin in the exalted ideas of mutual fidelity dire from the one to the other which extended to every species of tenure in the middle ages.
Estoppels operate between parties and privies. If Boyce had died during the term, his heirs at law would not have been allowed to deny the title of the prosecutrix to the demised premises without first surrendering possession to her, and neither he nor they can be allowed to attorn to a stranger as to any land of which the tenancy gives them constructive possession-,'without opening the door for fraud upon the rights of the landlords. This proposition would seem to be familiar learning, but the heirs of Boyce would occupy the same relation that he. sustains to the prosecutrix. Suppose that they were holding over, and when she was on the eve of instituting summary proceedings to eject, they should suddenly go outside of the seven acres and enclose a field under a lease from Hemphill ? Before taking that lease they would be estopped from denying her title, and certainly could be ejected from the whole seven-acre tract. But after taking the lease under Hemphill, the holder of the older title, they would hold under him up to their enclosure, and therefore the estoppel would be limited by their own act to the posses-siopedis, instead of the boundary of the lease. We cannot alter the rule to meet this case. If they would hold at all, they would, as the tenants of Hemphill, stand in his shoes and hold with all the incidents attaching to his occupancy.
In the case already supposed, that the land of the prose-cutrix was entirely covered by a paramount title of Hemp-*762hill, it would be a, manifest fraud, upon the rights of the .original lessor if Boyce should take advantage of his lessor •by transferring the benefit of constructive possession. The •.English Courts have gone a step further j^han any Court has done in- this country, and have established, the principle— which, discriminating text-writers ,seem. to; think correct— ■that where a,lessee occupies, in -connection with fn.s. tenancy, land not only outside of the .demised. premises, but outside of his lessor’s boundaries, and by such possession acquires title, the presumption is that be occupied for his landlord» and fhe benefit of the possession enures to the lessor. Tiedman R. P., § 199; Lloyd v. Jones, 15 M. & W., 579 ; Harrison v. Murrill, 8. C. & P., 327; Lisburne v. Davies, S. B. C. C. P., 259; Lewis v. Reese, 6 C. & P., 610. The lease carries with it an implied covenant on the part of the lessor for the quiet enjoyment of the'demised premises during the term. It is equivalent to a stipulation that the lessee shall not for the time be disturbed by act of the landlord or the paramount title of a stranger. Tiedman on R. P., § 187; 1 Smith’s L. C., 185.
The reciprocal obligation resting upon the lessee is, that he shall not, by his own act, in attorning to the holder of the paramount title even as to the land over which his lessee acquires constructive possession by his occupancy, reduce the area over which the landlord’s possession extends to the ■limits of his own actual enclosure, and thereby make it impossible for the landlord to perform his contract for quiet enjoyment to the outside boundaries of the premises described in the lease.
Being in privity with the lessor, there is a mutual obligation wrhieli estops the lessee from doing an act inconsistent with the covenant to which the former is bound to him by the implication growing out of the tenancy. A sub-lessee is also in privity with the original lessor, and can hold him to the implied covenant for quiet enjoyment. Is there no cor*763responding restriction upon a sub-lessee, which prevents him from putting both his immediate lessor and the landlord to disadvantage by entering into an agreement with the holder of the paramount title as to land outside •of the demised premises, but covered by the landlord’s deed, under which he claims the land demised? There is no force in the suggestion that what has been said is in conflict with the principle stated in Scott v. Elkin, supra. The lessee Boyce, as in that case, was “ only in (actual) possession of the part embraced in the contract” (the seven acres), and was positively forbidden, in fact, to use timber outside of it but within the boundaries of the deed under which the prose-cutrix claimed, while he held constructive possession for her to the outside limit of that deed.
This is the application of the doctrine laid down in Scott v. Elkin, supra, to our case. But we are confronted with the further question, not wdiether the right of the tenant by virtue of the lease extends, as between him and his landlord, outside of the demised premises, but whether he is estopped from shifting the benefit of the constructive possession incident to his tenancy by accepting a lease from the holder of the title paramount against whose claim he holds his landlord bound to protect him. I think that the defendant was estopped from showing title paramount in Hemphill as evidence that he was not a trespasser, and that he had no reason to complain of the liberal ruling of the Court that the jury could consider the deed offered in passing upon the question of good faith.
If, in this particular case, the defendant is precluded by his relation as tenant from offering evidence of title paramount, it would be unnecessary to pass upon the vexed question whether in the trial of all indictments under section 1070, it is competent to show title in another than the pros-ecutrix, whether the title becomes material only in certain peculiar cases, or whether the guilt or innocence of a person *764charged depends in all cases upon proof of actual or constructive possession.
As to the other point in the case, I fully concur with my brother Davis, and deem it unnecessary to add anything to what he has said in support of his view.
Per curiam. Error.