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with another person to attorn to him, may afterwards, on an action of forcible entry and detainer by such other person, show that the agreement was corrupt, and for the purpose of unlawfully dispossessing the original landlord. Bryne v. Beeson (1843) 1 Dougl. (Mich.) 179.

So, where the jury found such an agreement, and the defendant in an action for the possession by the second landlord was the successor of the tenant. Payne v. Vandever (1856) 17 B. Mon. (Ky.) 14.

III. Duress.

Where a tenant has entered under a landlord and, while he is so in possession, a third party comes on the land with a gun and threatens to put him off unless he will take a lease from him, one claiming under the tenant may show these facts in defense of an action of ejectment by such third party. Hamilton v. Marsden (1813) 6 Binn. (Pa.) 45.

One who purchases land as agent or trustee for another in possession, and then by duress compels him to execute a lease, cannot claim that the lessee is estopped to deny his title. Brown v. Dysinger (1829) 1 Rawle (Pa.) 408.

Where the owner of land in possession is, by force and threats of another, made to give a deed and take a lease, he is not estopped to deny such other's title. Harvin v. Blackman (1901) 108 La. 426, 32 So. 452.

A person who was carried on land and left there may show this to prove that he was not the tenant of the person carrying him on the land. Foust v. Trice (1860) 53 N. C. (8 Jones, L.) 290.

IV. Mistake.

a. In general.

One already in possession, who acknowledges his tenancy to a landlord, is not estopped to show that he acknowledged such tenancy by a mistake as to title. Chettle v. Pound (1701) 1 Ld. Raym. 746, 91 Eng. Reprint, 1400 (debt for rent); Gregory v. Doidge (1826) 3 Bing. 474, 130 Eng. Reprint, 596, 11 J. B. Moore, 394,

4 L. J. C. P. 159 (replevin); Cornish v. Searell (1828) 8 Barn. & C. 471, 108 Eng. Reprint, 1118, 1 Man. & R. 703, 6 L. J. K. B. 254 (obiter); Rogers v. Pitcher (1815) 6 Taunt. 202, 128 Eng. Reprint, 1012, 1 Marsh. 541 (replevin); Doe ex dem. Shelton v. Carrol (1849) 16 Ala. 148 (ejectment); Cain v. Gimon (1860) 36 Ala. 168 (after lease expired); McDevitt v. Sullivan (1857) 8 Cal. 592; Pacific Mut. L. Ins. Co. v. Stroup (1883) 63 Cal. 150; Michigan C. R. Co. v. Bullard (1899) 120 Mich. 416, 79 N. W. 635; Shearer v. Winston (1857) 33 Miss. 149; Jackson ex dem. Viely v. Cuerden (1801) 2 Johns. Cas. (N. Y.) 353; Hammons v. McClure (1886) 85 Tenn. 65, 2 S. W. 37; Reg. v. Hall (1898) 6 Can. Exch. 145.

If R, in possession as tenant of A, pays rent to B, and B puts an end to the tenancy by notice to quit, and brings ejectment, R may defend that his term under A still continues. Accidental Death Ins. Co. v. Mackenzie (1861) 9 Week. Rep. (Eng.) 783, 5 L. T. N. S. 20, citing 1 Co. Litt. 47b.

Where a tenant was put in possession by a mortgagor, and afterwards paid rent to a second mortgagee, and thereafter paid rent to a first mortgagee, he was entitled to show that he paid rent to the second mortgagee under a mistake. Doe ex dem. Higginbotham v. Barton (1840) 11 Ad. & El. 307, 113 Eng. Reprint, 432, 3 Perry & D. 194, 9 L. J. Q. B. N. S. 57, 4 Jur. 432.

Where a debtor has a tenant in possession of the land upon which the creditor levies, and the tenant promises to pay rent to the creditor upon condition of his having obtained title to the land, the creditor, if the levy proves void, may not put out the tenant of the debtor upon the force of the acknowledgment of tenancy. Swift v. Dean (1839) 11 Vt. 323, 34 Am. Dec. 693.

On the other hand it was held that a school district, in an action brought against it by a landlord of debt for rent, cannot avoid its estoppel by showing that, when in possession, it signed the lease on the advice of its counsel, who would not have advised

it to do so had he known all the facts about the title in favor of the ownership of the school district. School Dist. v. Long (1887) 7 Sadler (Pa.) 337, 10 Atl. 769.

An owner who acts freely, with knowledge of his rights, cannot escape the estoppel. Thus, where a tenant who was the owner of a building on the property, with the right to remove it, signed a lease with his landlord's successor inconsistent with such right, he could not claim that he did so under mistake of law and therefore was not estopped. Allen v. Migliavacca Realty Co. (1913) 74 Wash. 347, 133 Pac. 580, where the court said: "We have been cited to no authority, and a diligent search convinces us there is none, which holds that when one, knowing the acts and knowing his rights, waives his obvious remedy by a solemnly executed lease, under the mistaken supposition tnat he can invoke another remedy, will be elieved from the obligations. and estoppels of his lease by reason of such mistake."

And it has been held that, in forcible entry and detainer, one in possession when he made the contract of tenancy is estopped to deny title, except in case of fraud. Locke v. Frasher (1884) 79 Va. 409; Mason v. Wolff (1870) 40 Cal. 246; Knowles v. Murphy (1895) 107 Cal. 107, 40 Pac. 111.

Some of the cases lay down the rule, generally, that a person who was in possession is not estopped, where there has been a mistake or misrepresentation (Meeker v. Kaelin (1909) 173 Fed. 216, where term had expired); or fraud, mistake, or ignorance (Blankenship V. Blackwell (1899) 124 Ala. 355, 82 Am. St. Rep. 175, 27 So. 551); or mistake or fraud (Smith v. Zwicker (1916) 136 Tenn. 77, 188 S. W. 595; Alderson v. Miller 1859) 15 Gratt. (Va.) 279).

A tenant is not estopped, when he has been induced to take a lease from a landlord by his fraud or misrepresentation, or under a misapprehension or mistake. Franklin V. Hurlbert (1882) 1 Tex. App. Civ. Cas. (White & W.) 466.

There are some cases which seem to proceed upon the theory that no estoppel arises against one already in possession, who acknowledges tenancy. This was held in the ejectment cases of Tewksbury v. Magraff (1867) 33 Cal. 237, and Franklin v. Merida (1868) 35 Cal. 558, 95 Am. Dec. 129. This doctrine has been applied in case of leases of water rights. Oneto v. Restano (1891) 89 Cal. 63, 26 Pac. 788; Strong v. Baldwin (1908) 154 Cal. 150, 129 Am. St. Rep. 149, 97 Pac. 178. (But this doctrine is not applicable to cases of forcible entry and detainer. See supra.)

In Fuller v. Sweet (1874) 30 Mich. 237, 18 Am. Rep. 122, it was held that it was competent for the court, where the tenant does not receive possession from the claimant, to authorize the claimant's title to be investigated, unless there is some other ground of estoppel. Followed in Lake Shore & M. S. R. Co. v. Johnson (1909) 157 Mich. 115, 121 N. W. 267.

A parol promise by one in possession, to pay rent to one out of possession who has neither title nor right of possession, is void for want of consideration. Clary v. O'Shea (1898) 72 Minn. 105, 71 Am. St. Rep. 465, 75 N. W. 115.

b. When put in possession by landlord.

By taking a lease and entering into possession, the tenant is not permitted to deny the landlord's title, unless he shows fraud in obtaining the lease, or a judgment showing that his landlord had no title. McDevitt v. Sullivan (1857) 8 Cal. 592.

Assuming that a tenant who is let into possession by the lessor can ever refuse to surrender the possession, on the ground that the lessor falsely represented himself to be the owner of the property, there can be no refusal of this kind unless it is found that the lessor, by fraud, induced the lessee to accept the lease. Camarillo v. Fenlon (1874) 49 Cal. 202.

A man who takes a lease from a landlord in ignorance of the fact that his wife owns the premises, or is entitled to the rent thereof, cannot dispute the landlord's title. Baker v.

Nall (1875) 59 Mo. 265, where the landlord was a trustee for the wife.

But in Fenner v. Duplock (1824) 2 Bing. 10, 130 Eng. Reprint, 207, 9 J. B. Moore, 32, 2 L. J. C. P. 102, where a tenant, hearing that a third person claimed the land, refused to pay the rent to his landlord, but on distress did so, not knowing the precise nature of the claim, it was held that thereafter the tenant was not estopped from showing the nature of the claim, and that it was founded on the fact that the landlord's title had expired.

c. Successors of landlord. Where the landlord under whom a tenant has entered dies, and the tenant, by mistake, pays rent to one who is not the rightful successor, this creates no estoppel. Jew v. Wood (1841) 3 Beav. 579, 49 Eng. Reprint, 228, Craig & Ph. 185, 41 Eng. Reprint, 461, 10 L. J. Ch. N. S. 261, 5 Jur. 954; Knight v. Cox (1856) 18 C. B. 645, 139 Eng. Reprint, 1523; Petterson Sweet (1883) 13 Ill. App. 255 (representations considered fraudulent).

V.

But it has been held that the tenant cannot escape, except by showing that someone else has a better title. Carlton v. Bowcock (1884) 51 L. T. N. S. (Eng.) 659.

And that, having rented from a devisee, he cannot claim that the testator was incapable of making a will. Doe ex dem. Marlow v. Wiggins (1843) 4 Q. B. 367, 114 Eng. Reprint, 937, 3 Gale & D. 504, 12 I. J. Q. B. N. S. 177, 7 Jur. 529.

Where one, having entered under a landlord, is informed by him that he has sold the land to a certain person, and the tenant pays rent to such person, this will not estop the tenant from showing that the landlord had really conveyed the property else

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It was held in Batten Pooll v. Kennedy [1907] 1 Ch. (Eng.) 256, 76 L. J. Ch. N. S. 162, that voluntary payments of so-called rent for an incorporeal hereditament create no estoppel, as rent cannot issue out of any incorporeal hereditament.

Where, in a lease, one of the boundaries is described as a joint alley used by the parties of the first and second parts jointly, the lessee is not estopped estopped from showing that he claimed the exclusive right to use the alley after the term of the lease had expired, the court stating that the recital that the alley was a joint alley was wholly unnecessary to the lease, and did not operate as an estoppel. Barker v. Mobile Electric Co. (1911) 173 Ala. 28, 55 So. 364.

A payment of rent to the landlord, after his title has expired, does not estop the tenant from showing that such title has expired. Claridge v. Mackenzie (1842) 4 Mann. & G. 143, 134 Eng. Reprint, 59, 4 Scott, N. R. 796, 11 L. J. C. P. N. S. 72.

It may be noted that in Lakin v. Roberts (1893) 4 C. C. A. 438, 7 U. S. App. 539, 54 Fed. 461, affirming (1891) 53 Fed. 333, it was considered that the evidence as to tenancy was too vague to cause the enforcement of estoppel.

B. B. B.

(98 Kan. 75, 157 Pac. 28.)

H. E. HAYES

V.

JOE NUTTER, Appt.

Kansas Supreme Court - May 6, 1916.

(98 Kan. 75, 157 Pac. 428.)

Evidence proof of slander.

1. In an action for slander, the proof of the words spoken need not correspond in every particular with the words as charged. It is sufficient that the words charged are substantially proved by the evidence. [See note on this question beginning on page 367.]

Appeal

refusal of instructions.

2. It is not error to refuse instructions which are fairly covered by those given.

Same-instruction for plaintiff.

3. In a slander case it is not error

Headnotes by MARSHALL, J.

for the court to instruct the jury that they may find for the plaintiff if they find from the evidence that the defendant spoke the slanderous words, or words of substantially the same meaning.

APPEAL by defendant from a judgment of the District Court for Washington County in favor of plaintiff in an action brought to recover damages for an alleged slander. Affirmed.

The facts are stated in the opinion of the court.
Messrs. A. J. Freeborn and J. R.
Hyland, for appellant:

There was clearly a variance between the allegations and the proof which was fatal to the cause of action.

Berry v. Dryden, 7 Mo. 324; Tipton v. Kahle, 3 Watts, 90; 25 Cyc. 487, note 32; Irish-American Bank v. Bader, 59 Minn. 329, 61 N. W. 328; Crotty v. Morrissey, 40 Ill. 477; Kimball v. Page, 96 Me. 487, 52 Atl 1010; Taylor v. Kneeland, 1 Dougl. (Mich.) 67; Smith v. Moore, 74 Vt. 81, 52 Atl. 320; Searcy v. Sudhoff, 84 Ill. App. 148; Crandall v. Greeves, 181 Mo. App. 235, 168 S. W. 235; Parson v. Henry, 177 Mo. App 329, 164 S. W. 241; Burkhiser v. Lyons, Tex. Civ. App. 167 S. W. 244.

Evidence of transactions long subsequent to and remote from the time of the alleged slander has no bearing on the question of malice, nor is it admissible to show the state of feelings between the plaintiff and defendant at the time of the alleged slander. 25 Cyc. 495.

Mr. Edgar Bennett, for appellee: There was no variance between the petition and proof.

Russell v. Anthony, 21 Kan. 450, 30 Am. Rep. 436; Boldon v. Thompson, 60 Kan. 856.

Marshall, J., delivered the opinion of the court:

This is an action for slander. The plaintiff recovered judgment. The defendant appeals.

The plaintiff's petition sets out three causes of action. No evidence was introduced to support the second cause, and it was withdrawn from the consideration of the jury. The jury found in favor of the defendant on the third, and returned a verdict in favor of the plaintiff for $100 on the first cause of action.

The slanderous words set out in the first cause of action are: "He" (meaning the plaintiff) "has been stealing chickens." The evidence to support this charge was that the defendant had said of the plaintiff and another person that they had stolen his, the defendant's, chickens, and "the sons-of-bitches stole my chickens," The defendant urges that this is a variance between the peti

tion and the proof, and cites 25 Cyc. 484, where the auther says: "As a general rule a failure on the part of plaintiff to prove the words strictly as alleged in the petition constitutes a variance, and apart from a statute to the contrary is fatal to his cause of action. In some states, however, the Code provides that the variance shall not be deemed material unless it has actually misled the adverse party. Moreover, it is very generally held that a failure to prove all the words alleged does not constitute a fatal variance, provided sufficient of the precise words alleged are proved so as to constitute a cause of action. It is a general rule that proof of

Evidenceproof of slander.

similar or equivalent words is insufficient. On the other hand it is generally held that the proof need not correspond in every minute particular with the words as laid, provided the identity of the charge is substantially made out."

This does not support the defendant's contention. Section 134 of the Code of Civil Procedure provides that "no variance between the allegations in a pleading and the proof is to be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled, and thereupon the court may order the pleading to be amended, upon such terms as may be just."

The slight variation between the proof and the allegation of the petition could not mislead the defendant. The proof does not correspond in every particular with the words as charged, but the words charged are substantially proved by the evidence. In Ramsey v. Partridge, 86 Kan. 398, 121 Pac. 343, this court said: "Language substantially the same as charged, shown to have been spoken at the time and place

charged, in the presence of only one of the two alleged persons, and language substantially the same as charged, shown to have been spoken at the place and in the presence and hearing of the persons alleged, and at or near the time alleged, sufficiently meets the allegations of the petition and is not subject to the charge of material variance." (Syl. 12.)

The briefs in that case disclose that the difference between the charge in the present case and the language proved to have been used is no greater than the difference between the language charged and that proved in Ramsey v. Partridge,

supra.

In Cooper v. Seaverns, 97 Kan. 159, 155 Pac. 11, this court said: "The jury were instructed that recovery might be had if the language charged in the petition, or language of identical import or substantially the same, were uttered. Many decided cases hold that the identical words must be proved. To do this is to sacrifice substance to form. Words are important only as vehicles of meaning. If the very slander be established by proof of substantially the language charged, that is sufficient, and that is the thought conveyed to the jury by the words of the instruction." (p. 160.)

2. The defendant complains of the refusal of the court to give certain instructions requested by him. The reason given by the court for refusing them was that "same given in other words but none given as requested." An examination of the original instructions shows that the court's statement was correct, so far as the instructions now complained of are concerned. Each of Appeal-refusal these requested instructions was substantially given by the court. That is all that was necessary. Baugh v. Fist, 84 Kan. 740, 115 Pac. 551; Taylor v. Atchison Gravel, Sand & Rock Co. 90 Kan. 452, 454, 135 Pac. 576; Rogers v. Kansas Co-op. Ref. Co. 91 Kan. 351, 354, 137 Pac. 991.

of instructions.

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