[54]*54The opinion of the Court was delivered by
Rogers, J.
One of the objections to the judgment of the Court of Common Pleas, is their answer to the fourth point. The court instructed the jury, in answer to that point, that to entitle the plaintiff to enter agreeably to the terms of the deed, it must appear not only that the rent was in arrear and unpaid, but that there was not sufficient personal property on the lot,' liable to be distrained, to enable plaintiff effectually to compel payment of the rent by distress. By the terms of the deed it is stipulated that if the rent should be in arrear sixty days, the grantor might distrain; and if a sufficient distress should not be on the premises, that the owner of the rent might enter on the lots and repossess them, as though the deed had not been made. The deed must be construed according to the intention of the parties; and, to entitle the plaintiff to enter, it must appear not only that the rent was in arrear for the time specified, but that upon a distress being made by him, it was found that there was not sufficient property on the premises to pay it. In this point of view, therefore, the defendant, rather than the plaintiff, has reason to complain of the charge, as the court put the case upon the fact, whether there was enough of property on the premises to answer the plaintiff’s claim. If the plaintiff had pursued his remedy by distress, there were, if the witnesses are to be believed, at all times goods more than sufficient for that purpose.
But the plaintiff contends that the defendant denied his title, and that this denial amounts to a forfeiture, atid that, therefore, he can maintain ejectment. A forfeiture may be incurred either by a breach of those conditions which are always implied and understood to be annexed to the estate; or those which may be agreed upon between the' parties, and expressed in the lease. The lessor, having the jus dispo\endi, may annex whatever conditions he pleases, provided they be not illegal, unreasonable, or repugnant to the grant iself; and upon breach of these conditions may avoid the lease. Any act of the lessee, by which he disaffirms or impugns the title of his lessor, comes within the first class; for, to every lease the law tacitly annexes a condition that if the lessee do any thing which may affect the interest of the lessor, the lease shall be void, and the lessor may re-enter. Every such act necessarily determines the relation of landlord and tenant; since to claim under another, and at the same time to controvert his title; to affect to hold under a lease, and at the same time to destroy the interest out of which the lease arises; would be the most palpable inconsistency; Bar. on Leases, 119; Woodfal's Landlord and Tenant 219. So where the tenant does an act which amounts to a disavowal of the title of the lessor, no notice to quit is necessary; as where the tenant has attorned to some other person, or answered an application for rent by saying that his connection as tenant with the party, applying has ceased. Bul. N. P. 96; Esp. N. P, 463, In such cases, as the tenant sets his landlord at defi[55]*55anee, the landlord may consider him either as his tenant, or as a trespasser. But these principles only apply where there is no dispute as to the person entitled to the rent; so where there was a refusal to pay rent to a devisee in a will which was contested, it is not such a disavowal of the title as will enable the devisee to treat the tenant as a trespasser, and to maintain ejectment without previous notice. Woodfal's Landlord and Tenant 219, and the authorities there cited. These principles are usually applied to the relation which subsists between landlord and tenant on a demise for a term of years; and whether they are applicable to a grant of land in fee with the reservation of a rent charged'on the land may admit of doubt, although no case has been cited, and I know of none, where it has been so applied. But however this may be, the doctrine does not hold where there is no denial of the title under which the defendant claims, but it is denied that the plaintiff is the person entitled to receive the rent, although he is the representative or devisee of the original grantor, or where, as in this case, the proportion of the rent which he owns is disputed. The plaintiff claims the entire rent, and the court and jury have decided that he is entitled to a moiety only. It would, therefore, be a harsh application of the principle to decide that a defence which certainly has some plausibility about it, should work a forfeiture of the estate. Courts o( law always lean against a forfeiture, and it is the province of a court of equity to relieve against it. Whenever a landlord means to take advantage of a breach of covenant, so as that it should operate as a forfeiture of the lease, he must take care not to do any thing which may be deemed an acknowledgment of the tenancy, and so operate as a waiver of the forfeiture, as distraining for the rent, or bringing an action for the payment of it, after the forfeiture has accrued, or accepting rent. Bul. N. P. 96; Woodfal 227; Bar. on Leases 226. For this reason the court were right in admitting in evidence a receipt from the plaintiff to the defendant for ground rent for the two lots for the year 1831. This evidence was pertinent, because the receipt of rent waives the forfeiture, if any such there was, for neglecting to erect the buildings on the lot, as provided for in the deed.
In deducing title to the ground rents, plaintiff proved that the ground rent in Newmantown had been devised by the last will and testament of Walter Newman, to Henry Newman and David Newman, as joint devisees. This, of course, vested in Henry Newman, the plaintiff, a moiety only of the ground rent reserved in the deeds. For the purpose of proving that he was entitled to-the whole ground rent charged on the locus in quo, he offered in evidence a deed from Magdalena Newman, administratrix of David Newman, deceased, one of the devisees of Walter Newman, to Christian Seibert, dated the 24th of August 1786, for sixty-three acres of the tract of one hundred and twenty-eight acres, devised to Henry and David Newman, by Walter Newman, the said sixty-three acres including the [56]*56one-half of Newmanstown; also a deed from Christian Seibert to Francis Seibert, for same, dated the 19th of April 1793; also the will of Francis Seibert, devising the same sixty-three acres, including one-half of Newmantown, to Elizabeth, wife of Peter Shoch, dated February 9, 1811, with parol proof that the said Francis Seibert, in the year 1805, or thereabouts, until the time of his death, and those claiming, under him since his death, held and exercised exclusive ownership and occupation of the said sixty-three acres, including the one-half of Newmanstown, and that Henry Newman, the other devisee of Walter Newman, and those claiming under him, in the same time, viz. from the year 1805, or thereabouts, to the present time, have exercised exclusive ownership on the remainder of the tract of one hundred and twenty-eight acres, including the other half of Newmanstown, and that the two lots for which this ejectment is brought, are located in that part of the said tract last mentioned; with further parol proof that search has been made in the recorder’s office in Dauphin and Lebanon counties, for deed or agreement of partition of the premises, and none such has been found.
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[54]*54The opinion of the Court was delivered by
Rogers, J.
One of the objections to the judgment of the Court of Common Pleas, is their answer to the fourth point. The court instructed the jury, in answer to that point, that to entitle the plaintiff to enter agreeably to the terms of the deed, it must appear not only that the rent was in arrear and unpaid, but that there was not sufficient personal property on the lot,' liable to be distrained, to enable plaintiff effectually to compel payment of the rent by distress. By the terms of the deed it is stipulated that if the rent should be in arrear sixty days, the grantor might distrain; and if a sufficient distress should not be on the premises, that the owner of the rent might enter on the lots and repossess them, as though the deed had not been made. The deed must be construed according to the intention of the parties; and, to entitle the plaintiff to enter, it must appear not only that the rent was in arrear for the time specified, but that upon a distress being made by him, it was found that there was not sufficient property on the premises to pay it. In this point of view, therefore, the defendant, rather than the plaintiff, has reason to complain of the charge, as the court put the case upon the fact, whether there was enough of property on the premises to answer the plaintiff’s claim. If the plaintiff had pursued his remedy by distress, there were, if the witnesses are to be believed, at all times goods more than sufficient for that purpose.
But the plaintiff contends that the defendant denied his title, and that this denial amounts to a forfeiture, atid that, therefore, he can maintain ejectment. A forfeiture may be incurred either by a breach of those conditions which are always implied and understood to be annexed to the estate; or those which may be agreed upon between the' parties, and expressed in the lease. The lessor, having the jus dispo\endi, may annex whatever conditions he pleases, provided they be not illegal, unreasonable, or repugnant to the grant iself; and upon breach of these conditions may avoid the lease. Any act of the lessee, by which he disaffirms or impugns the title of his lessor, comes within the first class; for, to every lease the law tacitly annexes a condition that if the lessee do any thing which may affect the interest of the lessor, the lease shall be void, and the lessor may re-enter. Every such act necessarily determines the relation of landlord and tenant; since to claim under another, and at the same time to controvert his title; to affect to hold under a lease, and at the same time to destroy the interest out of which the lease arises; would be the most palpable inconsistency; Bar. on Leases, 119; Woodfal's Landlord and Tenant 219. So where the tenant does an act which amounts to a disavowal of the title of the lessor, no notice to quit is necessary; as where the tenant has attorned to some other person, or answered an application for rent by saying that his connection as tenant with the party, applying has ceased. Bul. N. P. 96; Esp. N. P, 463, In such cases, as the tenant sets his landlord at defi[55]*55anee, the landlord may consider him either as his tenant, or as a trespasser. But these principles only apply where there is no dispute as to the person entitled to the rent; so where there was a refusal to pay rent to a devisee in a will which was contested, it is not such a disavowal of the title as will enable the devisee to treat the tenant as a trespasser, and to maintain ejectment without previous notice. Woodfal's Landlord and Tenant 219, and the authorities there cited. These principles are usually applied to the relation which subsists between landlord and tenant on a demise for a term of years; and whether they are applicable to a grant of land in fee with the reservation of a rent charged'on the land may admit of doubt, although no case has been cited, and I know of none, where it has been so applied. But however this may be, the doctrine does not hold where there is no denial of the title under which the defendant claims, but it is denied that the plaintiff is the person entitled to receive the rent, although he is the representative or devisee of the original grantor, or where, as in this case, the proportion of the rent which he owns is disputed. The plaintiff claims the entire rent, and the court and jury have decided that he is entitled to a moiety only. It would, therefore, be a harsh application of the principle to decide that a defence which certainly has some plausibility about it, should work a forfeiture of the estate. Courts o( law always lean against a forfeiture, and it is the province of a court of equity to relieve against it. Whenever a landlord means to take advantage of a breach of covenant, so as that it should operate as a forfeiture of the lease, he must take care not to do any thing which may be deemed an acknowledgment of the tenancy, and so operate as a waiver of the forfeiture, as distraining for the rent, or bringing an action for the payment of it, after the forfeiture has accrued, or accepting rent. Bul. N. P. 96; Woodfal 227; Bar. on Leases 226. For this reason the court were right in admitting in evidence a receipt from the plaintiff to the defendant for ground rent for the two lots for the year 1831. This evidence was pertinent, because the receipt of rent waives the forfeiture, if any such there was, for neglecting to erect the buildings on the lot, as provided for in the deed.
In deducing title to the ground rents, plaintiff proved that the ground rent in Newmantown had been devised by the last will and testament of Walter Newman, to Henry Newman and David Newman, as joint devisees. This, of course, vested in Henry Newman, the plaintiff, a moiety only of the ground rent reserved in the deeds. For the purpose of proving that he was entitled to-the whole ground rent charged on the locus in quo, he offered in evidence a deed from Magdalena Newman, administratrix of David Newman, deceased, one of the devisees of Walter Newman, to Christian Seibert, dated the 24th of August 1786, for sixty-three acres of the tract of one hundred and twenty-eight acres, devised to Henry and David Newman, by Walter Newman, the said sixty-three acres including the [56]*56one-half of Newmanstown; also a deed from Christian Seibert to Francis Seibert, for same, dated the 19th of April 1793; also the will of Francis Seibert, devising the same sixty-three acres, including one-half of Newmantown, to Elizabeth, wife of Peter Shoch, dated February 9, 1811, with parol proof that the said Francis Seibert, in the year 1805, or thereabouts, until the time of his death, and those claiming, under him since his death, held and exercised exclusive ownership and occupation of the said sixty-three acres, including the one-half of Newmanstown, and that Henry Newman, the other devisee of Walter Newman, and those claiming under him, in the same time, viz. from the year 1805, or thereabouts, to the present time, have exercised exclusive ownership on the remainder of the tract of one hundred and twenty-eight acres, including the other half of Newmanstown, and that the two lots for which this ejectment is brought, are located in that part of the said tract last mentioned; with further parol proof that search has been made in the recorder’s office in Dauphin and Lebanon counties, for deed or agreement of partition of the premises, and none such has been found.
From the evidence here offered, it is plain that the ground rent was not divided between the devisees by writ of partition; so that the only question is, was such proof offered as will justify the jury in presuming a deed, grant, or mutual conveyance? The evidence would have proved that the plaintiff had been in the enjoyment and receipt of the entire rent, charged on the premises, for a period of thirty years and upwards, and that they who deduce their title from David Newman, had received the whole ground rent charged on this portion of the estate. A jury is required, or at least may be advised by a court, to infer a grant of an incorporeal hereditament, after an adverse enjoyment for the space of twenty-one years; and in Hearn v. Lessee of Witman, 6 Bin. 416, it is held, that what circumstance will justify the presumption of a deed, is matter of law; and that it is the duty of the court to give an opinion whether the facts proved will justify the presumption. This presumption • seems to have been adopted in analogy to the act of limitations, which makes an adverse enjoyment of twenty-one years a bar to .an action of ejectment; for as an adverse possession of that duration .will give a possessory title to the land itself, it seems, also, to be reasonable, that it should afford a presumption of right to a minor , interest arising out of the land. The ground of presumption, in such cases, is the difficulty of accounting for the possession or enjoyment, without presuming a grant or other lawful conveyance. This is not an absolute presumption, but one that may be rebutted by accounting for the possession consistently with the title existing in another. Here we cannot account for the enjoyment and receipt of the entire rent, without presuming a grant or some lawful con-veyance from the one tenant in common to the other; and for this reason we think the court erred in excluding the evidence.
[57]*57The court were right in admitting the evidence of Job Pearson. The objection goes to his credit rather than to his competency.
Judgment reversed, and venire de novo awarded.