86 Pa. 33 | Pa. | 1878
delivered the opinion of the court,
Ejectment is a possessory action; hence the writ is served upon the one found in possession, rather than upon the one who may chance to have title.
If the one in possession happens to be a tenant, his landlord may intervene and defend; if he does not choose so to do, and judgment be obtained against the tenant, the landlord cannot then intervene to prevent the plaintiff in the ejectment from taking possession. The possession of the tenant is the possession of the landlord; therefore the ejectment, whilst it may have no effect in determining the question of title as between the plaintiff and the lessor, does determine the right of possession : Johnsons. Fullerton, 8 Wright 466. . '
Now, it is not denied that McFarland was the tenant of Eva and Lydia Stewart; but it is said that, at the time when the writ was served, his lease had expired, and he was about to remove from the premises. To this, however, it is a sufficient answer that the sheriff, when he served the writ, found him still in possession, and of this, in the present controversy, the return is conclusive, and whether McFarland retained the property under the terms of the lease or merely at the sufferance of the Stewarts, nevertheless he was there under them, and hence the judgment in ejectment determined the right of possession against them and in favor of the plaintiff.
Were the rule otherwise it might be impossible to obtain possession, by ejectment, of land held by a tenant, for the landlord, neglecting or refusing to appear and defend, could always, by substituting a new tenant, defeat the plaintiff’s writ of possession.
The order of the Court of Common Pleas staying the writ of habere facias possessionem in this case is now reversed and set aside.