Bell, J,
Though five errors are Specially assigned upon the record, the case resolves itself into but two questions,, and it was accordingly no treated in the argument.' The first of these, whether the defect apparent upon the face of the plaintiff’s supposed title can be' cured by presuming the existence of a petition and order of the Court of Common Pleas, regularly rendered, authorizing* the conveyance made by Andrew Albright, as sheriff, to Patrick Goulding, was considered by th'e court when the case was before it on a former 'occasion, 7 Watts & Serg. 408; and it was then settled that such an order, being In the nature of a judgment, cannot be presumed as against the defendant below, who was a stranger .to the proceeding, claiming by virtue of a possession altogether distinct from and-independent of it. This conclusion will be found to be fully sustained by the case of Woods v. Lane, 2 Serg. & Rawle, 53, if it be thought the principle announced requires the force of superadded authority; ánd an additional reason for the determinatibn is disclosed in • the fact,' that,' so far as the evidence goes, Goulding had no connection with the sheriff’s sale as purchaser, but stood entirely without interest therein. In such case; to presume the recorded order necessary to infuse vitality into the deed to .Goulding, even upon his suggestion of intermarriage with Arabella Yeung, would be to impute an error to the court in order to support, a title obviously defective. In the expressive language of Ch. J. Tilghman, used in the .case last cited-, this would be “ to presume that a transaction was right because it appears to be wrong.” The additional facts offered to-be proved on the 'last trial, are not of such a character as to warrant a departure from the decision already pronounced. It is true that' a defective claim of title may be amended by presuming a1 conveyance from one. shown to have title, where the presumptive -grantee has exercised, for a long course of years, such acts of dominion over the lands as can only indicate a claim of beneficial ownership unchallenged by any counter claim on the part of the supposed grantor. Such was the case of Taylor v. Dougherty, 1 Watts & Serg. 324, where the plaintiff, and those under-whom he claimed, had paid taxes'for wild land for upwards of'thirty years, which was held sufficient to found- a presumption of grant from the original warrantee, as against a naked intruder without colour of title. ' The same principle is asserted in Hastings v. Wagner, 7 Watts & Serg. ' [162]*162215, where it is said, after the deed itself, or the legal registration of it, the next best evidence against a third party is long-continued claim of title with acts of ownership, uncontested by adverse possession on the part of him who is supposed to have conveyed. But the present case is in no particular analogous to these and like instances, to which the plaintiffs’ counsel has sought to assimilate it. Generally speaking, the doctrine of a presumptive existence, springing from lapse of time and attendant circumstances, has no application to records and public documents which are supposed always to remain in the custody of the officers charged with their preservation, and which, therefore, must be proved, or their loss accounted for and supplied by secondary evidence; Greenl. Ev. part 3, ch. 5, sec. 509; Brunswick v. McKean, 4 Greenl. 508; Hathaway v. Clark, 5 Pick. 490. But. if we adopt the opinion of Lord Mansfield, in the Mayor of Kingston v. Horner, Cowp. 102, that after an actual enjoyment for a long course of years, though within legal memory, a grant of the thing enjoyed,' which must be by matter of record, may be presumed, what is there equivalent in our case to such enjoyment ? Certainly an effect so important is not to be ascribed to the mortgage executed by Goulding, considered as an isolated act of dominion, or to the various proceedings dependent upon it. Besides, the original objection recurs. It is not the grant or conveyance of one having the right we are called on to infer on these slender foundations, but the power and authority of a public officer, which can only be conferred by matter of record; and this is certainly, not lightly, to be inferred, if at all, in defeasance of a right residing in a third person. The allegation here is, that the record has been lost; but this rests merely in assertion, since it has not yet been shown the record was ever made. It is not to be doubted that a missing record may be proved by secondary evidence; but then its former existence and loss must be first established by competent proof. Nothing of the kind was attempted here, for it will not be pretended that the recital of Goulding’s petition, and the reference to the order to be found in the sheriff’s deed, can, under the circumstances that have place, be received as any, the slightest evidence, that the documents once had .existence, as against this defendant, who is neither party nor privy to the deed; Cowen v. Jackson, 4 Peters’ Rep. 83. The act of the 4th of March, 1846, Penna. Laws, 124, it is true, withdraws the exemplification offered from the influence of the objection, which, before that statute, was decisive against it as an instrument of evidence, but it places it on no better footing than the original conveyance, which, were it pro[163]*163duced, would be inefficacious to show an operative title in the plaintiffs.
It is, however, upon the supposed legal effect of the lease of the 12th of January, 1841, and the agreement of February, 1841, endorsed thereon, by which the defendant consents to become the tenant of the plaintiff, and which, it is assumed, estops him from denying their title to, the land in question, that their right to recover in this action is principally urged. Whether this be so, is the second, and, indeed, only open question in the cause. As a general rule, it is incontrovertible, that a lessee is not permitted to impeach, or, in any way, call into question the title of his landlord; and to make a lease binding on a lessee, a mere inception of claim in the lessor is enough; provided, he be guilty of no fraud, unfair dealing, or misrepresentation in the transaction. Boyer v. Smith, 3 Watts, 449; Boyer’s Estate, 5 Watts, 55. But the exception is as well established as the rule itself, that where the tenant is induced to accept the lease by the employment of trick, the suggestion of falsehood, or the use of undue promises or threats, such acceptance will not close his mouth against the assertion of a title superior to that residing in the lessor. This is so, even though, at the time of acceptance, the lessee be not in the occupancy of the demised premises. But the exception is more stringently applicable, where he who is improperly prevailed on to attorn as tenant, is in the peaceable occupancy of the land, and thus enjoying a right of possession against all the world but the owner of the true title. In reference to such a position, it has been observed, that if one having no right induces him in possession to become tenant, it must be the result of misrepresentation of law or fact, or both; and it will require but slight proof to dissolve the relation of landlord and tenant; Hockenbury v. Snyder, 2 Watts & Serg.
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Bell, J,
Though five errors are Specially assigned upon the record, the case resolves itself into but two questions,, and it was accordingly no treated in the argument.' The first of these, whether the defect apparent upon the face of the plaintiff’s supposed title can be' cured by presuming the existence of a petition and order of the Court of Common Pleas, regularly rendered, authorizing* the conveyance made by Andrew Albright, as sheriff, to Patrick Goulding, was considered by th'e court when the case was before it on a former 'occasion, 7 Watts & Serg. 408; and it was then settled that such an order, being In the nature of a judgment, cannot be presumed as against the defendant below, who was a stranger .to the proceeding, claiming by virtue of a possession altogether distinct from and-independent of it. This conclusion will be found to be fully sustained by the case of Woods v. Lane, 2 Serg. & Rawle, 53, if it be thought the principle announced requires the force of superadded authority; ánd an additional reason for the determinatibn is disclosed in • the fact,' that,' so far as the evidence goes, Goulding had no connection with the sheriff’s sale as purchaser, but stood entirely without interest therein. In such case; to presume the recorded order necessary to infuse vitality into the deed to .Goulding, even upon his suggestion of intermarriage with Arabella Yeung, would be to impute an error to the court in order to support, a title obviously defective. In the expressive language of Ch. J. Tilghman, used in the .case last cited-, this would be “ to presume that a transaction was right because it appears to be wrong.” The additional facts offered to-be proved on the 'last trial, are not of such a character as to warrant a departure from the decision already pronounced. It is true that' a defective claim of title may be amended by presuming a1 conveyance from one. shown to have title, where the presumptive -grantee has exercised, for a long course of years, such acts of dominion over the lands as can only indicate a claim of beneficial ownership unchallenged by any counter claim on the part of the supposed grantor. Such was the case of Taylor v. Dougherty, 1 Watts & Serg. 324, where the plaintiff, and those under-whom he claimed, had paid taxes'for wild land for upwards of'thirty years, which was held sufficient to found- a presumption of grant from the original warrantee, as against a naked intruder without colour of title. ' The same principle is asserted in Hastings v. Wagner, 7 Watts & Serg. ' [162]*162215, where it is said, after the deed itself, or the legal registration of it, the next best evidence against a third party is long-continued claim of title with acts of ownership, uncontested by adverse possession on the part of him who is supposed to have conveyed. But the present case is in no particular analogous to these and like instances, to which the plaintiffs’ counsel has sought to assimilate it. Generally speaking, the doctrine of a presumptive existence, springing from lapse of time and attendant circumstances, has no application to records and public documents which are supposed always to remain in the custody of the officers charged with their preservation, and which, therefore, must be proved, or their loss accounted for and supplied by secondary evidence; Greenl. Ev. part 3, ch. 5, sec. 509; Brunswick v. McKean, 4 Greenl. 508; Hathaway v. Clark, 5 Pick. 490. But. if we adopt the opinion of Lord Mansfield, in the Mayor of Kingston v. Horner, Cowp. 102, that after an actual enjoyment for a long course of years, though within legal memory, a grant of the thing enjoyed,' which must be by matter of record, may be presumed, what is there equivalent in our case to such enjoyment ? Certainly an effect so important is not to be ascribed to the mortgage executed by Goulding, considered as an isolated act of dominion, or to the various proceedings dependent upon it. Besides, the original objection recurs. It is not the grant or conveyance of one having the right we are called on to infer on these slender foundations, but the power and authority of a public officer, which can only be conferred by matter of record; and this is certainly, not lightly, to be inferred, if at all, in defeasance of a right residing in a third person. The allegation here is, that the record has been lost; but this rests merely in assertion, since it has not yet been shown the record was ever made. It is not to be doubted that a missing record may be proved by secondary evidence; but then its former existence and loss must be first established by competent proof. Nothing of the kind was attempted here, for it will not be pretended that the recital of Goulding’s petition, and the reference to the order to be found in the sheriff’s deed, can, under the circumstances that have place, be received as any, the slightest evidence, that the documents once had .existence, as against this defendant, who is neither party nor privy to the deed; Cowen v. Jackson, 4 Peters’ Rep. 83. The act of the 4th of March, 1846, Penna. Laws, 124, it is true, withdraws the exemplification offered from the influence of the objection, which, before that statute, was decisive against it as an instrument of evidence, but it places it on no better footing than the original conveyance, which, were it pro[163]*163duced, would be inefficacious to show an operative title in the plaintiffs.
It is, however, upon the supposed legal effect of the lease of the 12th of January, 1841, and the agreement of February, 1841, endorsed thereon, by which the defendant consents to become the tenant of the plaintiff, and which, it is assumed, estops him from denying their title to, the land in question, that their right to recover in this action is principally urged. Whether this be so, is the second, and, indeed, only open question in the cause. As a general rule, it is incontrovertible, that a lessee is not permitted to impeach, or, in any way, call into question the title of his landlord; and to make a lease binding on a lessee, a mere inception of claim in the lessor is enough; provided, he be guilty of no fraud, unfair dealing, or misrepresentation in the transaction. Boyer v. Smith, 3 Watts, 449; Boyer’s Estate, 5 Watts, 55. But the exception is as well established as the rule itself, that where the tenant is induced to accept the lease by the employment of trick, the suggestion of falsehood, or the use of undue promises or threats, such acceptance will not close his mouth against the assertion of a title superior to that residing in the lessor. This is so, even though, at the time of acceptance, the lessee be not in the occupancy of the demised premises. But the exception is more stringently applicable, where he who is improperly prevailed on to attorn as tenant, is in the peaceable occupancy of the land, and thus enjoying a right of possession against all the world but the owner of the true title. In reference to such a position, it has been observed, that if one having no right induces him in possession to become tenant, it must be the result of misrepresentation of law or fact, or both; and it will require but slight proof to dissolve the relation of landlord and tenant; Hockenbury v. Snyder, 2 Watts & Serg. 240 : and it has been expressly ruled, that if the occupant’s assent be induced - by the exhibition of a forged deed, or by the false pretence of having acquired a title to the land, by purchase or otherwise, especially if accompanied by threats to displace the occupant, if he will not submit to acknowledge the pretended owner as landlord, the former will, by operation of law, be remitted to his original vantage ground, free of the legal fetters which an unenforced submission would have imposed on him: Miller v. McBriar, 14 Serg. & Rawle, 312; Hall v. Benner, 1 Penna. Rep. 402. And, I take it, it matters not whether the deception practised, originates in voluntary falsehood or in simple mistake, for the immunity it confers springs not so much from the fraud of the usurper, as from the wrong which the [164]*164deception would otherwise work upon the rights of the lessee; though, questionless, the presence of moral turpitude will tend to hasten a conclusion, which, without it, may sometimes halt and hesitate; but yet the principle remains the same, the only difficulty being found in its application. The charge of the court below, which has been subjected to exception and criticism here, contains nothing beyond a clear exposition of the rule we have been considering, with its qualification, and a just adaptation of it to the facts of the case. • These are, in short, that the plaintiffs, aware of the peaceable occupancy of the defendant for a period of upwards of eighteen years, possessed themselves of a defective title, which they represented to the defendant as complete and perfect, accompanied by an offer of favourable terms, if he would accept alease of the land from them; and a threat to turn him out of possession by process of law, if he refused, under the influence of which he was induced to yield his independent occupancy, and to assume the dependent position of a lessee. There can be no question made, but that for the misrepresentations, promises, and threats of the plaintiffs, the defendant would not have accepted the proffered demise. His prior rights are, consequently, not subject to be compromised by his subsequent surrender of them; and this, whether the misrepresentations proceeded from mistake or design. It follows, there was no error in the instructions given to the jury, that the plaintiffs being, otherwise, without title, could found no right to recover in this action upon the agreements,of 1841, which, upon the facts shown, turn out to be utterly destitute of consideration. The minor bills of exception to evidence, being dependent on, and subordinate to these principal question's, have not been insisted on, and call for no particular notice. It is sufficient to say, the ruling of the court below, in respect to them, was correct.
Judgment affirmed.