Boyer against Smith, 5 Watts 55

The opinion of the Court was delivered by Kennedy, J. This cause was before us on a prior writ of error at the last term, when all the questions necessary to the determination of it, were not only elaborately discussed by the counsel concerned on both sides, but very fully considered and decided by this court. See 3 Watts 449. The first question raised here, and which was not brought up, in the same form that it is now, on the former writ of error, is, whether the court was not bound, as a matter of right, to have admitted George W.

Boyer, Mary Ann Fought, with her husband James Fought, and Catharine Boyer, by her guardian, Henry Fox, to have become defendants with Jacob Smith the defendant below, in order that they might have joined with him in defending against the claim of the plaintiffs below.

We cannot overlook what it is impossible to disguise in this case — that Fox, the guardian of Catharine Boyer, and Smith, the defendant, combined together for the purpose of preventing the plaintiffs standing in the place of their testator, who was the lessor of the defendant, Smith, from obtaining or taking the possession of the leased premises after the term had expired. It would be the most perfect mockery imaginable of all right, as between landlord and tenant, to permit such a trick .as was attempted, in this case, to be practised by Smith upon his lessor, to pass for a surrender of the possession to him.

The possession of the tenant or lessee being derived from the lessor under the lease, became immediately upon the expiration thereof, the possession of the lessor, and continued to be so after-wards, until the former should make a fair surrender of it to the latter. This possession the lessee was bound to deliver, whether his lessor had a good title to the land or not.

It would be against every principle of justice, as well as sound policy, to permit a tenant, either during the term of the lease as long as he continues to enjoy the land under it, or after the expiration thereof, to dispute his landlord’s title or right to the possession of the land under any pretence. He is bound not only to surrender the possession at the expiration of the lease, but to pay up all the rent that may be due and in arrear, according to the terms of it.

But if he were to be permitted to evade his obligation in this respect by such a juggle as was played here, the rule of law, which has been so wisely established for the protection of landlords or lessors, would be of little or no avail: because it may be practicable, perhaps in every case, for the tenant, at the expiration of his lease, to find a third person who may not only be willing to allege that he has an indisputable title or right to the land, but also willing to give the tenant a new lease of it, as was done here, without allowing the first lessor time sufficient to resume the possession, however anxious he may be to do so.

The fact of the defendant, Smith, having taken the possession of the land under a lease from the testator of the plaintiffs below, was ineontrovertibly established; and indeed was not denied by either Smith or those who applied to be made defendants with him; this being the case, it would have been repugnant to both the letter and the spirit of the act of assembly of 1772, to have permitted those applicants to have been made co-defendants; because they claimed the land not under the title by which the testator of the plaintiffs held it, when he leased to Smith, but in direct opposition to it.

But it is plain, from the whole tenor of the act, that the great design of the legislature in passing it, was to prevent lessors,- and those claiming under them, or consistently with them from losing the possession of the land letten by them to their tenants, either through neglect or design on the part of their tenants. For by the eighth

section of the act, it is made the duty of the tenant, upon being served with a declaration in ejectment, forthwith to give notice to his landlord, under the penalty of forfeiting the value of two years5 rent. And certainly there is no case to be found in which it has ever been even alleged, that a third person, claiming title to the land, can or ought to be made defendant by the court, in an ejectment brought by the lessor or those claiming under him against the lessee to recover the possession after the expiration of the lease.

Indeed, so far from this ever having been conceived to be authorised by the statute of 11 Geo. 2, c. 19, sect. 13, of which our act is substantially a copy, the courts in England held at first, that no one excepting the lessor, or such as had become entitled to and had received rent under the lease, could be admitted to defend. Subsequently, however, it was made to embrace such as remainder-men and reversioners, whose rights are connected with the title of the lessor; but beyond this no one ever even imagined that it could be extended. See M’Clay v. Benedict, 1 Rawle 424.

Supposing, then, this matter to be assignable for error, which may be somewhat questionable, at least in those cases where the matter of fact involved in it is contested, it can admit of no doubt that the court below were right in deciding as they did. The second error assigned is, that the court admitted in evidence the articles of agreement or lease from George Boyer to Smith, the defendant below. There is certainly no reason for this exception.

To permit a tenant to call in question the title of his lessor, is not to be endured in any case except where he has been induced to accept of it, to the prejudice of his own rights, or that of the commonwealth, by means of a fraud practised upon him by the lessor. That, however, is not pretended here. But it is alleged and argued that the lessor obtained the possession of the land, which he transferred under the lease to the defendant, by fraud and disseisin. And suppose he did, what has Smith to do with that ?

He held and enjoyed the premises under the lease during the whole of the term ; receiving all the benefit and advantage from them that he could have done, in case his lessor had obtained the possession peaceably and fairly. He has, therefore, no reason to complain. The third error is wholly untenable, and must appear to be so from what has been said above in regard to the second.

Lessees are not to be allowed to impeach the titles of their lessors for any cause whatever, except it be for fraud, as already mentioned, committed either upon themselves, or against the commonwealth, in. whose rights the lessee has an interest in common with the other citizens of the state, and therefore may be said to be prejudiced by the fraud in this latter case also, which may perhaps give him the right to take advantage of it. The fourth error assigned is without even the shadow of a foundation to rest on.

How can it be imagined that a party shall be permitted to make evidence for himself, by his own declarations ? Yet this is the nature of the evidence rejected by the court, to whose opinion in doing so, the exception is here taken. The offer was by the defendant to give his own declaration in evidence in his favour, which the court refused to admit. The fifth error is also destitute of tenability.

Joseph Smith, on his voire dire, having shown to the court that he had lived on, and occupied, a part of the premises in dispute for some time during the pendency of the suit, showed that he had thereby made himself liable for a proportional part of the mesne profits to the plaintiffs, in the event of their recovering. He was, therefore, interested in defeating their recovery and could not be a witness against them.

The evidence offered by the defendant, and rejected by the court, to which the sixth error relates, had not the slightest tendency to prove what it was alleged to be offered for; nor does it appear to have been material to the issue between the parties in any point of view, and therefore was properly rejected. The question presented in the seventh error, was decided when this case was here before: and according to the principles repeated now in observing on the previous matters assigned for error, the evidence offered was clearly inadmissible.

The eighth error is a mere repetition of the first, in which we have shown that the court decided correctly. In regard to the ninth error, it may be proper first, in order to have a more full comprehension of it, to state that it has been admitted by the counsel for the plaintiff in error, who was the defendant below, that George Boyer, his lessor, was not only originally the owner of the land in fee, but was invested also with the legal title to it, which continued in him till his death.

This was also all given in evidence on the first trial of the cause: but Michael Boyer, the father of the .applicants to be made co-defendants, was the son of the lessor, and after being put into the possession of the land by his father, claimed to be the absolute owner of it, under a parol gift, as he alleged, from his father.

This produced a dispute between them, which was alleged to have been finally settled by compact, and a lease thereupon taken by the son from the father of the land for a term of five years, which expired shortly after the death of the son, and about the time the father leased the land to the defendant below. This lease from the father to the son was also given in evidence on the first trial.

The widow of Michael Boyer, the son, lived in the house on the land, when George Boyer, the father, leased to Smith; and by the consent of Boyer the lessor and Smith the lessee, continued afterwards to occupy one or two apartments of it, until, perhaps, the time when she intermarried with Smith, the lessee; when it would seem, if not before, he got possession of the whole of it.

Smith, the defendant, also proved on the former trial, and likewise on the latter, that he and his wife and her children, so far as any of these were then living with her, evacuated every part of the house, leaving nothing in any part of it; thus showing most unequivocally and distinctly, that the possession of the whole was considered by them as having been derived under the lease from George Boyer, the lessor, and that, therefore, a colourable surrender of the possession, at least, was necessary to be made to him.

Under this statement of the circumstances, in relation to this branch of the case, it is perfectly obvious that the offer contained in the ninth bill of exceptions, which is made the ground of the ninth error, was but a mere artifice on the part of the defendant below, resorted to for the purpose of setting up the title of the heirs of Michael Boyer as a defence on the part of the defendant, Smith, against the plaintiffs, which had been overruled from the first by the court.

It was attempting to introduce by a side wind what the court had refused to admit directly; and we think the court were right in repelling it throughout. The tenth error assigned is but another edition of the ninth, and requires no further notice. The eleventh error has not been urged: and the twelfth, which is the only' remaining one, we think cannot be sustained.

The court were right in instructing the jury as they did, because from the evidence there could be no question or controversy raised in relation to the fact of the defendant’s having been in the possession of the whole of the land under the lease before the expiration of it. Judgment affirmed.