The lease of Mrs. Fletcher to Haley for three
years, without the written assent of her husband, was void. Her permission for Haley to assign to Swazey & Rawson, and her assent to the lease of one of the stores by Swazey & Rawson to Mrs. Young, were equally ineffectual to create any estate in either, above that of a tenancy at will. So long as occupation was permitted to continue under the arrangements thus made, the provisions of those several instruments might be resorted to for the purpose of ascertaining the terms upon which such occupation was enjoyed. But they could not operate to affect the qualities of the estate itself, either as to tenure or transmission.
Swazey & Rawson then were tenants at will of Mrs. Fletcher, occupying a part of the premises themselves, and a part by their tenant Mrs. Young, with the consent of their landlord.
A tenant at will has no estate which he can convey, or out of which he can create an estate in another that will be of any avail against the owner of the land. He may make a lease and permit another to occupy a part or the whole of the premises ; and such lease will be a valid contract between the parties. So long as the lessee is permitted to enjoy the advantages of such a lease, he cannot escape its obligations by a denial of the title of his landlord. But if evicted by a superior title, he will be released from payment of all rents that fall due after eviction; and against an action for rent due under the lease he may defend by way of recoupment, setting up any damages suffered by reason of the breach of the covenant for quiet enjoyment, or of any other covenant in the same instrument on the part of the lessor.
In this case the defence rests upon both grounds; and it is agreed that, if the defendants are entitled to recoup for breach of the covenant for quiet enjoyment, the amount of damages there*86for would equal the amount of rent claimed. Consequently, if either defence is maintained at all, it defeats the suit entirely.
It appears that on March 9 Swazey & Rawson vacated that part of the premises which was occupied by them personally, and on March 26 were adjudged bankrupt. During that interval Mrs. Fletcher, by her agent, entered and required the tenant, Mrs. Young, to attorn to her, which she did, and subsequently, but before the quarter had expired, viz., on March 31, paid the rent for that quarter to Mrs. Fletcher, and took from her a new lease for the remaining year of her original term.
These proceedings terminated the tenancy of Swazey & Raw-son, and we are inclined to think they constituted a legal eviction of Mrs. Young. Her estate, whatever it was, depended upon that of her landlords, and fell with it. The assent of Mrs. Fletcher to her lease from Swazey & Rawson was an assent only to the creation by them of a subordinate estate, which the original lease did not permit. That assent is void for the purpose of creating an estate in Mrs. Young, if so intended ; and it could not be set up as an estoppel. It did not purport to create the relation of tenancy between Mrs. Young and Mrs. Fletcher, and that relation does not arise from any of the facts stated. There was no obligation of notice, therefore, in order to put an end to Mrs. Young’s right of occupation after the tenancy of Swazey & Raw-son ceased.
But if this were otherwise, if the tenancy of Swazey & Raw-son, or of Mrs. Young, was not legally terminated before the rent became due, still, as against Mrs. Fletcher, it was a tenancy at will only, terminable in three months by notice, and immediately by lease to another party. There is no suggestion and no ground ."or inference that, in yielding to the demands of Mrs. Fletcher and accepting a lease from her, the defendant acted otherwise than reasonably and in good faith. She was not bound to wait until evicted, at the risk of being deprived of the use of the premises altogether. George v. Putney, 4 Cush. 351. A surrender or offer to surrender to her landlords would have been useless. She could not enjoy the premises for the full term under their lease, and she was not allowed to do so. The covenant for *87quiet enjoyment therefore was not performed, and for its breach the defendants are entitled to recoup.
The title of Mrs. Fletcher does not appear to have been disputed at the trial. No question in regard to it is raised upon this report. Objection to the want of proof of her title cannot be made for the first time here.
Judgment for the defendants.