| Pa. | Jul 1, 1852
The opinion of the Court was delivered by
We conjecture that the plaintiff below is, or claims to be, the landlord of the defendant, and that the contest is induced by an effort of the latter to set up title in himself.
Where a lessee, at the time the lease is executed, is not the occupant of the land leased, and he goes into possession under and in pursuance of the lease, he cannot afterwards claim title to the land without first surrendering possession to the lessor. Justice requires that the parties should assume their original position before any dispute about the title can be tolerated.
But if the lessee was in possession at the time the lease was executed, he may, under certain circumstances, be permitted to. prove that the land is his .own, and thus resist the proceedings to turn him out. This is allowed because the landlord, if he fails, is not in a worse condition than he was before the léase.
In order, however, to give the tenant this right, it is necessary for him to prove that he accepted the lease in mistake, or that he was induced to accept of it by some fraud or misrepresentation. He will be able to avoid the lease by proof of such facts as would entitle him to relief in equity from any other obligation created by deed. ’ .
A lease given in good faith by one party and accepted by another with his eyes open, is valid and binding on both, though the actual occupancy be not changed. It creates the relation of landlord and tenant. It is a solemn admission of the lessor’s title. It disarms him of the power to. take possession during the term, and therefore ought to be conclusive of his right to do so afterwards." The mere fact that the tenant has a better title than his landlord does not of itself
We have thus given our opinion in the abstract upon the question argued. But it is impossible to give a final judgment on the case before us. The jury found a special verdict, but it omits almost every important fact. The defendant, it seems, accepted a lease from the plaintiff in 1824, and another in 1833. At the date of the first one he “ had enclosed of this land in dispute the field mentioned in the first lease, amounting to five and three-quarter acres, and continued in possession to this time as at the time of the leases.” This is absolutely all that the verdict finds. Whether the two leases were for the same land; whether either of them embraced the whole of the land in dispute; whether the defendant was in possession only of the five and three-quarter acres, or of all that is claimed in this suit; whether any fraud was committed by the plaintiff, or any mistake by the defendant; all these questions of fact have been left open, and some of them have been argued here as if we were expected to determine them. What is worse, the verdict does not say whether the defendant has any title, and it leaves the plaintiff in the same-condition; for though it says that a field mentioned in the first lease is a part of the land in dispute, when we turn to the lease we find no word about any field there. Whatever is not found in a special verdict must be taken not to exist. It is useless to talk of what was proved. We can do nothing but send the cause back for a new trial.
Judgment reversed and venire facias de novo awarded.