104 Pa. 288 | Pa. | 1883
delivered the .opinion of the court, "November 12th 1883.
On May 1st 1876, upon the payment of $500, and the conveyance of forty acres of land, situated in Kansas, Weaver was bound by his covenant to convey the lot in controversy to Chamberlain, and give full possession. Soon after that date Chamberlain paid $250, and conveyed the forty acres to Weaver. Then, if Chamberlain’s testimony is true, by oral contract, he rented the lot to Weaver for $5 per month, until such time as he should build a house; no specified time; and Weaver extended the time for payment of the remaining $250 for an indefinite period. It was competent for the parties to so agree, and the verdict establishes that they did, for the present consideration. The court was bound to submit the testimony, no matter how flatly contradicted ; whether there was a contract, and what its terms were for the jury to determine. In equity to establish a claim that is denied, two witnesses, or the equivalent of two, are necessary ; but- this claim under the alleged lease is at law. The first, fifth, and sixth assignments are not sustained.
For many purposes the possession of Weaver was the possession of Chamberlain. Taking a lease was an acknowledgment of the landlord’s right of possession. Chamberlain had the equitable title upon which he could have recovered posses-, sion in an ejectment, after tender or payment of all the purchase money that was due. Had Weaver not become his tenant, Chamberlain would probably have paid the balance and required possession. In violation of his written contract with Chamberlain, and of the oral lease, Weaver sold and conveyed the land in fee simple to Gaston. Now, he cannot restore possession if he would, for Gaston claims to be an innocent purchaser. There are no peculiar equities to except this case out of the general rule that a tenant is estopped from denying his landlord’s title. Had Weaver been honest and fair, and remained in position to convey and give possession on receipt of the purchase-money, it would be doubtful if his case would then be an exception to that rule; now, it is against equity that he should deny the plaintiff’s right to recover possession because they did not tender the purchase-money before bringing suit. He cannot complain of the matters set forth in the third, fourth, and seventh assignments.
But one question remains that need be noticed, namely, the admission of testimony that Chamberlain’s interest in the property was advertised for sale in a newspaper and by handbills
The eighth, ninth, and tenth assignments are well taken, and the
Judgment reversed, and venire facias de novo awarded.