Newell v. Gibbs

1 Watts & Serg. 496

• Court: Supreme Court of Pennsylvania
• Decided: July 15, 1841
• Status: Published

Opinion

The opinion of the Court was delivered by

Rogers, J.

In an action of ejectment to recover possession of land, evidence such as was offered, is clearly admissible. For although the defendant is not permitted to show that his lessor never had title to the demised premises, he may on admitting that he once had title, prove that his interest has expired. As if the lessor being tenant, pur autre vie, bring debt against the lessee for rent accruing since the death of the cestui que vie, the tenant may prove (not that the lessor never had title, but admitting that he once had,) that the interest of the lessor is at an end. Co. Lit. 47 b; 6 Co. 15, Treport’s case; (2 Saund. 418 n). So in an ejectment by the landlord against the tenant, the tenant was permitted to show that the landlord’s title had expired; although it was agreed that he could not have been permitted to prove that the landlord never had title. Syburn v. Slade, (4 T. R. 682); Doe dem. Jackson v. Rambotham, (3 Maule & Selw. 516). Syburn v. Slade, was the case of a sub-lessee, as here, who defeated his lessor by proof that his title had expired. The doctrine is perhaps to be taken with this qualification, that it must appear that defence is made at the instance, or at least with the knowledge of the original lessor, or owner of the demised premises. But it is said that the lessor cannot be prevented from recovering the possession, when he pursues the remedy provided by the Act of the 21st of March 1772. To avoid the delay and expense incident to the action of ejectment, the Act of 1772 gives a summary remedy to the lessor, when the tenant holds over the tenement demised to him, after the determination of his lease, but in other respects it neither enlarges the rights of the landlord, nor does it control or diminish the rights of the lessee, or of others who may be interested in preserving the possession. The lessor is at liberty to bring ejectment, or he may pursue the remedy given by the Act; and, if he elect the latter, after having required the lessee to remove from the premises, he may complain to two justices of the peace, who are required to summon twelve freeholders in the manner pointed out in the Act, and if on hearing the freeholders find that he had been possessed of the lands or tenements in question, that he demised the same for a term of years or at will to the person in possession, or some other person under whom he claims, or came into possession at a certain yearly rent, that the term is fully ended, that demand had been made of the lessee, or other person in possession, to leave the premises three months before the application, it is the duty of the justices to give judgment (of which record is to be made) that he recover the premises. The 13th section provides, that if the tenant shall allege that the title to the lands and tenements in question, is disputed and claimed by some other persons whom he shall name, in virtue of a right or title accrued or happening since the commencement of the lease, by descent, deed, or from or under the last will of the lessor, and if thereupon the person so claiming, &c., shall on oath, &c., declare that he verily believes that he is entitled to the premises in dispute, &c., and shall become bound, &c., then, and in such cases, and not otherwise, the justices shall forbear to give judgment. The general intention of the legislature seems to have been to limit the jurisdiction of the justices and freeholders, to the simple inquiries above stated: these they were supposed fully competent to decide; but when questions of a more serious and complicated nature may arise, involving the investigation of the rights of others, they are reserved for decision by the common law tribunal; in other words, the intention is obvious, to reserve to the Court of Common Pleas, all the jurisdiction that has not been specially delegated to the Justices’ and Freeholders’ Court. This construction harmonizes the whole system. The objection is, that this case does not come within the proviso: but this depends on how the Act is construed; whether we give it a literal or liberal construction. The plaintiff contends that the title of the person named, must not only accrue since the commencement of the lease, but that it is indispensable that it accrue by descent or deed from him, or under his last will; that the lessor spoken of in the Act, is the immediate lessor under whom he obtained the possession; that to entitle the tenant to the benefit of the proviso, by which the proceedings are suspended, he must allege and prove that the title is in the person named, by reason of a descent cast, by deed, or from or under the last will of him from whom he rented the premises. Qui lusret in litera hceret in cortice, is a maxim which may be applied here. The tenant, it is true, does not offer to prove a literal compliance with the directions of the Act, but he offers to show what is an equivalent, that the title of Gibbs had expired by lapse of time, and that since the commencement of his lease, the title had vested in a certain William Griffis, by virtue of a purchase at a sheriff’s sale, of the interest of Ezekiel Griffis, who was the lessor of Gibbs, the plaintiff! The tenant offers to show that Gibbs has no right to the possession, because his lease from Griffis has expired, and further that Gibbs’s lessor has consented that they, the defendants, should hold the land as his tenants. Disguise it as you may, it amounts to an attempt on the part of Gibbs, to regain the possession of the premises on an expired lease, against the consent of the owner, or in other words, to turn his own landlord out of possession; for as against Gibbs it cannot be doubted that the possession of the defendants is the possession of Griffis. This cannot be done in an action of ejectment, as has been already shown; and I see no indication in the Act, of an intention to enlarge the rights of the landlord, by enabling him to do in a summary process, that which cannot be done in a common law action. Nor is any intention discernible to diminish the rights of the tenant, or rather the rights of a third person, who in certain specified cases claims adversely to the immediate lessor. Although it must be confessed the words of the Act do not embrace the case in terms, yet it comes within the equity of the statute, and every day’s experience shows the utter impossibility of including every case which may arise on a statute; and hence the necessity (to prevent injustice) of looking to the general intention, disregarding the strict letter. As the case stands on the offer, Gibbs was a tenant at sufferance; his lease from Griffis had expired; he held over after notice to quit, and although some time was suffered to elapse without any proceeding against him, yet Griffis had done no act, either by acceptance of rent or otherwise, to recognise his title. As such tenant, he had no right to the possession, as against his lessor. It must be remarked that the tenant cannot in any proceeding, defeat the title of his landlord by an independent title. The title alleged by way of defence, must be connected with the title of the lessor, or it must be shown that the title of the lessor has been devested by an act of his own, or by descent from him. When this case is referred to the Common Pleas in the manner prescribed by the Act, the onus is thrown upon the tenant; for all the facts which would be necessary to recover before the justices, are either found by the jury, or are admitted by the tenant when he alleges the title to be in some third person.

Judgment reversed, and a venire de novo awarded.