Gilchrist, J.
On the 29th of April 1839 Keyes and Livermore being in possession of the demanded premises under the mortgage of Putnam Tyler, by indenture leased the same to the defendant for a term of four years, at an annual rent of $200, of which a part not to exceed $600, was to be paid in making certain alterations and improvements.
On the 14th of August following another indenture was made between the same parties, by which it was agreed that the defendant might at an expense not exceeding ¡¡>400 more, make further improvements such as were specified in the indenture ; and if the expense of all the improvements actually made should amount to more than the accumulated rents of the term, the lessors were bound either to pay the defendant that excess, or permit him to occupy the premises for such additional term, as would at the stipulated rent afford him a remuneration for his outlay. The option lay with the lessors.
In this state of things, if the lessors had sought, at the termination of the lease for four years, to recover possession of the premises, without first paying or offering to pay the expense of the repairs made beyond the amount of the rents that had accrued, the question would have arisen upon the effect of the indenture of August 14; and the rule of law in general is, that where a party has covenanted to do or not to do a particular thing, his covenant may be set up in bar of an action brought, or a defence interposed by him contrary to its tenor; as where one has covenanted not to sue another upon a particular contract or cause of action, his covenant shall operate as a release, if such were its intentions, and as a bar to the maintenance of the suit. Fowell v. Forrest, 2 Saund. 48; Smith v. Maplebaek 1 T. R. 446 ; Parker v. Holmes, 4 N. H. 96; Hurell v. Wendell, 8 N. H. 872.
Or when one has covenanted to warrant a title, he shall be estopped thereby to claim the land. The reason assigned is, in the words of Lord Coke, “ for avoiding circuity of action, which is not favored in law, as he that made the warranty should recover the land against the ter-tenant, and he by force of the warrantie to have as much in value against the same person.” Co. Lit. 265; Bates v. Norcross, 17 Pick. 14.
In short the lessors in the event supposed, would be estopped by their covenant from maintaining their action, even if the effect of the indenture taken in connection with, the actual possession of the defendant after the expiration of the term of four years, did not independently of the estoppel vest in him the term and estate for the period necessary to secure the remuneration contemplated in the indenture. For a lease for years may commence in futuro and may be good, although its duration may require to be settled by some thing dehors the lease itself. 2 Black. Com. 148, 144; Shep. Touch. 270; Harris v. Evans, 1 Wils. 262.
In either form the defendant would have an estate or interest which the -lessors could not divest but by the payment or tender of the money. Neither could they assign to these plaintiffs the power to do so; for where one is bound by an estoppel in respect to land, those having his estate are likewise bound. Bates v. Norcross, 17 Pick. 14.
"We are therefore of the opinion that the defendant ought at the trial to have been permitted to show that there was a sum due him, for which he had- a right under the indenture to retain possession of the land; consequently that the verdict must be set aside, and judgment for the plaintiff be rendered upon the payment of such sum as the auditor shall find due to the defendant.