Davis v. Davis

7 A. 746, 115 Pa. 261, 1887 Pa. LEXIS 308

• Court: Supreme Court of Pennsylvania
• Decided: January 31, 1887
• Status: Published

Opinion

Mr. Justice Sterrett

delivered the opinion of the court, January 31st, 1887.

As was well said in Graver v. Fehr, 89 Pa., 460, the summary remedy given by the Landlord arid Tenant Act of 1863 and its supplements, though convenient and necessary in proper cases, is in derogation of the common law, and hence “the necessary jurisdiction must appear affirmatively on the facé of the record or the proceeding is non eoram judice and utterly Void.” To the same'effect is Givens v. Miller, 62 Pa., 133, in which it was previously held that jurisdiction under the Act being special, the record of the magistrate must contain every essential to support the judgment, and nothing that ought to appear there can be .taken by intendment.

• - The supplement of 1872 declares: It shall hot be lawful to commence or prosecute any proceeding to obtain possession of any lands or tenements under the provisions of the Act of December 14th, 1868, “ unless such proceeding shall be founded upon a written lease or contract, or on a parol agreement, in and by which the relation of landlord and tenant is established between the parties, and a certain .rent is therein reserved.” This of course does not dispense with other jurisdictional prerequisites required by the original Act; and it also clearly indicates that the legislature in providing a remedy so summary that the person in possession may be ousted therefrom in a few days, intended to further limit the jurisdiction of magistrates and restrict the remedy to plain cases of ordinary tenancy. It is essential, not only that the relation of landlord and tenant shall be established by competent evidence of an express contract, but also that a rent, fixed and certain in its terms, was reserved in and by the contract.

Assuming, for the sake of argument, that the record of the magistrate in this case sufficiently sets forth the existence of a verbal agreement creating the relation of landlord and tenant between the parties, does it also show that as part of same agreement “ a certain rent ” was reserved ? After setting forth a lease for one year from April 1st, 1885, the record, as to the rent, reads thus: “ at the yearly rent of the interest and taxes accruing thereon.” The inquiry naturally arises, what interest, and how is.it to be ascertained? Is it interest on the value of the demised premises, or on the amount paid therefor by the landlord, or on the incumbrances that were then or might thereafter be charged on the property; or, is it interest ou debts owing by the landlord, or interest on something else ? While the contract relation of landlord and tenant is perhaps set forth with sufficient certainty, the quantum of rent reserved is conspicuously indefinite and uncertain. As to that, there is not the slightest approach to precision or certainty ; nor is there anything on the record that would even assist a jury, if the question was before them, in endeavoring to ascertain the amount of rent reserved. Such certainty, or rather uncertainty, as this was never contemplated by the framers of the statute. Moreover, we are not without judicial construction of the words in question. The Act of 1772 contains a similar jurisdictional requisite. The language there employed, in connection with the demise etc. is, “ paying certain rents.” In McGee v. Fessler, 1 Pa., 126, and several other cases, it was held that the words mean what is ordinarily understood bv the expression, and that the Act applies only to leases in which a certain rent is clearly and distinctly reserved, and not to cases where the rent reserved is so uncertain as to require the intervention of a jury to render it certain.

In view of the fact that the special and summary jurisdiction given to justices of the .peace and magistrates by the Act of 1863, and supplements, has been so sharply defined by the legislature and limited to a class of cases that are of easy solution, it would illy become us, even if we had the power to do so, to enlarge its scope so as to embrace cases which the average justice of the peace or city magistrate is incompetent to dispose of. As the law now stands, with all the safeguards that have been provided to prevent injustice and unnecessary oppression, it is to be feared they are too frequently practiced under color of enforcing the remedy given b]r the statute. It is certainly not demanding too much to require that magistrates invested with such summaiy and limited jurisdiction should, clearly and distinctly set forth in the record of their proceedings everything that is required to give them undoubted jurisdiction.

The specification of error is not sustained.

Judgment of the court of Common Pleas affirmed.