57 Pa. Super. 401 | Pa. Super. Ct. | 1914
Opinion by
This was a proceeding instituted by Ellen Robinson before a justice of the peace, under the Landlord and Tenant Act of December 14, 1863 (P. L. of 1864, p. 1127) and its supplements, to recover from the defendant possession of a farm. The magistrate entered judgment against the defendant, that he forthwith deliver actual possession of the premises to the plaintiff. The case was brought into the court of common pleas by writ of certiorari and the judgment was by that court reversed. The plaintiff now appeals from the judgment of the court of common pleas.
The supplement to the Act of 1863, approved March 6, 1872, P. L. 22, prohibits any proceeding under that statute, “unless such proceeding shall be founded upon a written lease or contract in writing, 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.” The question which arises upon the record in this case is whether the written agreement between the parties established the relation of landlord and tenant and reserved a certain rent, and, if it did, had the term ended. The agreement was executed March 7, 1903, and contains the following provisions which are in this case material: “The said Ellen Robinson in consideration of the covenants on the part of the party of the second part, hereinafter contained, doth covenant and agree with the said Joseph W. Moyer, to farm the farm on which Ellen Robinson resides, on
After the parties had acted under this agreement for over nine years, the plaintiff, on December 6, 1912, notified the defendant to vacate the premises on March 7, 1913. The contention of the plaintiff is that the agreement constituted Moyer a tenant at will, which tenancy had by the yearly rendition of one-third part of the fruits of the farm become a tenancy from year to year, which she had the right to terminate by a three months’ notice prior to the end of any year. In order to determine whether this is the correct view of the relation in which these parties stood to each other all the covenants of their agreement must be considered. The agreement is not skillfully drawn, but the intention of the parties is clearly manifest. Moyer undertook to do the work upon the farm, but he was not entitled to the exclusive possession, the plaintiff was to continue to reside there and had the right to maintain thereon certain stock. The produce of the farm was to be divided between them, Moyer to receive two-thirds and the plaintiff one-third, the former to market the share of the latter if she so desired. Moyer was to furnish and cut the
The contention of the plaintiff is that this was a tenancy from year to year, and, if this be conceded as the correct view, the Act of March 31, 1905, P. L. 87, cannot be invoked to sustain the proceeding: Morgan v. Williams, 39 Pa. Superior Ct. 580. The rights of these parties must be determined under the provisions of the statutes of 1863 and 1872. With regard to the act of 1872 Mr. Justice Sterrett, in Davis v. Davis, 115 Pa. 261, said: “.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 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.” The present case is certainly not one of ordinary tenancy. The part of the product of the farm and the personal services which the defendant was to render the plaintiff were not merely for rent of the farm, for the intention of the parties was that, if the defendant continued to perform those services so long as the plaintiff lived, the farm was to become the property of the wife of the defendant, upon the payment of a fixed sum, after the death of the plaintiff. What part of the produce of the farm and of the personal services rendered by the defendant were to be considered as rent and what part as- given or performed in consideration of the covenant that the farm should become the property of defendant’s wife? These were questions which could not be determined without the intervention of a
The judgment is affirmed.