Holloway

The defendant was in possession of the premises in controversy at the time when he leased the same from the plaintiff. The plaintiff showed the defendant his title papers, and told him that, if he did not take a lease from him (the plaintiff), he would bring suit against him, and put him out of possession. According to the rule laid down in Tewksbury v. Magraff, 33 Cal. 244 , and Franklin v. Merida, 35 Cal. 558 , 95 Am. Dec. 129 , the defendant is not estopped from disputing the plaintiff’s title. The plaintiff not having held the possession at the time when the lease was made, and the defendant not having acquired the possession by means of the lease, nor any right or interest whatsoever in the premises, from the plaintiff, unless the latter, in fact, then held title, he cannot allege that the lease has worked any detriment to him, or deprived him of any advantage he then might have enjoyed, in trying the title to the premises.

*523 The plaintiff, therefore, not being entitled to the benefit of an estoppel arising from the lease, to show his right to the possession cannot recover except upon proof of title. The same burden of proof is upon him that there would have been had he…