majority">Butler, J.

•Our statute giving a summary process for recovering possession of leased property wrongfully holden over is framed upon the idea that the tenant shall not be permitted to dispute that his landlord had title at the time the lease was given. It accordingly specifies the issues to be tried, and excludes the question whether he had such title or not. The justice was right therefore in refusing to entertain the question, as an isolated one, whether the deed from David to Mary Dodgers was valid or not, because if fraudulent in respect to creditors it was good between the parties and their lessees, and because the deed by itself was of no importance in the case.

But the statute does expressly provide that if the lessee obtain a title after the date of the lease, from the lessor, or any other person, he may show it in defence of his continued possession. By the term “ title ’’ in that connection is meant a •right to the possession paramount to that of the complainant. The complainant may be a lessee, and the defendant a sub-lessee. Both leases may have expired and the defendant may *157have taken in the legal.title or taken a new lease from the owner of the fee. It would not be just to permit him to show merely that the complainant’s lease had expired, but it would be clear injustice to prevent him from showing that he had acquired the absolute estate after the date of the lease, or a new lease from the owner, or from a grantee of the owner, or from one who had taken the title of the owner by levy of execution. As against Harriet B. Markham, as a creditor, the deed from David to Mary Rodgers may have been fraudulent, and Harriet B. Markham may have obtained the legal title to the.premises by her execution, and the defendant by attornment may have become her tenant. If these three things were true the defendant had procured a title after the date of the lease, within the letter and spirit of the statute, and had a right to show it in his defence. In order to do so it became necessary not only to show a levy of execution and an attornnlent, but a title in David Rodgers at the time of the attachment or levy, and to attack for that purpose the validity of that deed from David to Mary Rodgers. It is sufficiently apparent from the bill of exceptions that the justice did not permit that to be done, and because he did not think it within his province and jurisdiction to determine that question, even in connection with the other two facts and for the purpose claimed. In that he erred, and there is therefore manifest error in the record.

In this opinion the other judges concurred.

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