8 Watts 51 | Pa. | 1839
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
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
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.
Judgment reversed, and venire de novo awarded.