QJnrit^U |[Iatu ^t[\m\ ^libtarg The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924024706057 THE LAW OP PAIDLORD AND TENANT IN PENNSYLVANIA BY WILLIAM TEIOKETT, LL. D. Dean of the Dickinson ScHOOii or Law. ROCHESTER. N. T. The Lawyers' Co-opbrativb ' iblishing Company 1904 Entered according to Act of Congress, in the year nineteen hundred four, by THE LAWYERS' CO-OPERATIVE PUBLISHING CO. In the OfBee of the Librarian of Congress, at Washington, D. C. Thr E. R. Andrews Printing Co., Rochester, N. T. TO LEWIS S. SADLER, LL. B., I INSCRIBE THIS VOLUME IN EXPRESSION OP AN ENDURING AFFECTION AND A PROFOUND REGARD. PREFACE. The law of landlord and tenant is important, and occasions for applications of it are extremely frequent. In this book the subjects of distress, and the statutory remedies of the landlord for the recovery of the possession of the premises within or after the expiration of the term, have been exhaustively treated. Other topics have been discussed with due fullness. Interesting and important chapters on Mining Leases, and Oil and Gas Leases, have been included. The writer here acknowledges his indebtedness to Prof. Sylvester B. Sadler, A. M., LL. B., for indispensable assistance He also recognizes his obligation to Paul Willis, LL. B., for material aid. William Trickett. Carlisle, Pa. CONTENTS. CHAPTER I. AGREEMENT TO LEASE. 1. Lessee's option 1 2. Agreement on the terms 2 3. Owner's breach of contract to lease 2 4. Excuse for nonperformance 3 5. Measure of damages 5 6. Merger of agreement in the lease 6 CHAPTER II. CONTRACTS DISTINGUISHABLE FROM LEASES. 7. Lease and contract to convey 8 8. Conveyance, and not lease 9 9. Lease, and not conveyance 10 10. A cropper 11 11. Lease for the raising of a crop 12 12. Lessee, and not partner 12 13. Employee, and not lessee 13 14. Practical consequences of distinction 14 15. Licenses to live on land 15 CHAPTER III. THE LEASE. 16. Who may be lessor 16 17. Lease to two or more 17 18. Rival claimants of leasehold 18 19. Phrases sufficient 18 20. Wliat makes a lease 19 21. Noncontractual relation 20 22. Lease of sawmill 21 23. Lease or mortgage 21 T vi CONTENTS. 24. Vendee, not lessee 22 2.5. Not a, lessee -2 26. Existence of lease ''■'• 27. Construction of written lease 24 28. Execution of lease 2.') 29. Delivery 2ti .30. Execution by agent 27 31. Mode of execution 2!» 32. Undisclosed principal 21) 33. Lease by two or more owners 29 34. Ratification by owner by estoppel 30' 35. Ratification by the lessee 31 36. Statute of frauds 31 37. Signature 32 38. Oral contract to make a lease 32 39. Exception from operation of statute 33 40. Effect of statute on lease 34 41. Necessity of recording :}7>. CHAPTEE IV. THE SUBJECT OF THE LEASE. 42. Generally 37 43. The area of the leasehold 37 44. Building, and not ground 38 45. Rights to water 3'.> 46. Easements 39 47. Restriction on use of premises 40 48. Use of outside of wall for signs 41 CHAPTEE V. MODIFYING OR ANNULLING LEASE. 49. Deception of tenant 42 50. Affidavit of defense 43 51. Action of deceit 43 52. Lease does not express intention of lessee 44 53. Error in written lease 45 54. Duress 45 55. Insanity of lessor 45 56. Misrepresentations to lessor 45 57. Misreading lease 40 58. Lessee's oral promise 4ti 59. Promissorj' statements by lessor 4li 60. Promissory statements, continued , 48^ CONTENTS. vii ^1. Proving custom 4!) 62. Proving habit ^9 63. Value of premises as test of probability 50 64. Explaining the terms 51 65. Later oral modifications 51 CHAPTER VI. SURETIES IN LEASES. 66. Form of contract 53 67. Must be in writing 54 'Gs. Consideration necessary 54 69. Connection of surety's contract with the lease 55 70. Things to be performed 56 71. Suretyship arising subsequently to lease 56 72. Qualifications of liability of surety 57 73. Further qualifications of surety's liability 5S 74. Effect of unenforceableness of lessor's contract 59 75. Duration of the obligation 60 76. Surety's right to prevent a renewal of lease 61 77. Discharge of surety 62 78. Defenses of surety 63 79. Liability of surety to competitor of lessor 65 CHAPTER VII. THE LESSOR'S COVENANTS. 80. Kinds of covenants 66 81. Covenant as to existing state 68 82. Leasing for particular use 69 83. Covenant that premises are "perfectly dry" 70 84. Covenant as to neighborhood 71 85. Covenant as to safety of stairway 71 86. Covenant as to future state of premises 71 87. Agreement to repair made after the lease 73 88. Lessor's duty to repair 74 89. Covenant to repair 74 90. Destruction by fire 77 91. Destruction by fire; upper story demised 78 92. Fire ; insurance by tenant 78 93. Stipulations with respect to fire 79 94. Stipulations after the fire 80 95. Landlord's right to make repairs 81 96. Landlord's covenant to buy tenant's improvement 81 97. Independent agreements 81 viU CONTENTS. 98. Landlord's covenant to procure right to a switch 82 99. What is breach of covenant to repair 82 100. Defense of tenant for breach of landlord's covenant 82 101. Action for breach 83 102. Measure of damages 83 103. Another measure of damages 85 104. Duties whose breach is not available in replevin 8C 105. Breach an obstacle to recovery of any rent 86 106. Duty imposed on lessor as trustee 88 107. Repairs imposed on the tenant 88 108. Negligence of tenant; injury to tenant 90 109. Waiver of defects in premises 91 110. Covenant running v^ith the land 92 CHAPTER VIII. LESSEE'S COVENANTS AS TO PREMISES. 111. Implied duty to repair 9.? 1 12. Express covenants 94 113. Mortgage to secure performance of covenants 95 114. Covenant to put in machinery and not remove it 96 115. Covenant to restore premises to former condition 90 116. Covenant to deliver the premises in good condition 97 117. Covenant to keep in good, tenantable repair 97 118. Covenant concei-ning fences 98 119. Scope of covenant to repair 9S 120. Covenant to leave improvements 99 121. Covenant to make additions 100 122. Covenant; performance made illegal 101 123. Covenant to use premises properly 101 124. Waste by tenant lOi 125. Covenant respecting hay, corn, etc 103 CHAPTER IX. RELATIONS OP LESSEES OF DIFFERENT PARTS OF BUILDING. 126. Right to stairway 104 127. Use of pavement 105 128. Negligent use of upper story 105 129. Right to use entrance for show cases 105 130. Eight to carry on business noxious to tenants of other parts. 106 CHAPTER X. RENT. 131. For land and personalty 107 132. Repayment, in instalments, of a loan 108 CONTENTS. ix 133. Assessments on property 108 134. Taxes 109 135. Tenants' statutory liability for taxes 110 136. Road taxes Ill 137. Interest on rent Ill 138. When rent is payable 112 139. Rent contingently payable 113 140. Commuting rent; assignment for creditors 113 CHAPTEE XI. RENT PAYABLE IN KIND. 141. Rent in crops 115 142. Ownership of the grain IK! 143. Landlord's remedies 118 144-5. Exceptional right of landlord 119 CHAPTER XII. ACTIONS FOR RENT. 146. Account render 121 147. Assumpsit not local action 121 14S. Assumpsit for use and occupation 122 149. When action for use and occupation is inapplicable 123 150. No agreement to pay rent presumable 124 151. When no rent is specified; void lease 124 152. Express contract, but no rent named 12.5 153. No express contract at all 126 154. Implied contract 127 155. Holding possession despite notice from sheriff's vendee 128 156. Landlord's permission 128 157. What relations negative a contract 129 158. Tenants in common 130 159. Tenant at sufferance 131 160. Other remedies beside assumpsit 131 161. Warrant of attorney 132 102. The measure of compensation 132 163. Lease by tenants in common 134 164. Action by stranger to lease 134 165. Agent ; principal 135 166. Privity with lessor 13.") 167. Declaration 135 168. AfSdavit of defense 13.5 169. Proof of execution of lease ; oyer 1,')7 170. Exemption 137 X CONTKNTS. 171. Jurisdiction of justice 13S 172. Limitations !■■?!» 173. Set-oflF 140 174. Defenses to payment of rent; possession not taken 142 175. Want of title 142 176. Payment by distress 143 177. Appropriation of payments 14^> 178. Presumption of payment 144 179. Former recovery 145 180. Payment 14.') 181. Nonacceptance of lease 140 182. Inability to use premises in covenanted mode 140 183. Surrender 147 184. Mistake in description of premises 147 185. Illegality of object of lease 147 186. Assignment of lease no defense 148 187. Reduction of rent 149 188. Subsequent agreement to reduce rent 150 189. Reduction of rent, of right 151 190. Release 1.32 191. Bankruptcy 152 192. Assignment of rent 152 CHAPTEE XIII. THE RIGHT OF DISTRESS. 193. At common law 154 194. Distress by contract 154 195. Time of distraining, relative to maturing of rent 155 196. Computing time when rent is payable 156 197. Rent payable in advance 157 198. Payment of rent accelerated 157 199. Payment of rent retarded 159 200. Payment of rent conditioned 150 201. Spoliation of deed 160 202. Rent must be certain 100 203. Hold-over tenancies 102 204. Rent payable in kind 162 205. Provision for reduction of rent 163 206. Apportionment of rent 164 207. Assignee of part of reversion; apportionment 165 208. Apportionment by agreement 166 209. Provision for increase of rent 166 210. Distress for penalty 167 211. Taxes, gas, steam heat 167 212. Relation of landlord and tenant; ground rent 168 213. Term of years 169 CONTENTS. xi 214. Cropper 170 215. Character of lessor 170 216. Assignee of the reversion 171 217. Assignee of rent 171 218. Sublessor and assignor of term 173 219. Quantity of rent distrainable 173 220. Nature of the premises 174 221. Rent for land and chattels 174 222. Rent due by assignee of term 175 223. Duration of right to distrain; end of term 176 224. End of term ; when distress not allowable 177 225. Death of tenant 178 226. Loss of landlord's estate 179 227. Loss of landlord's estate by death 180 228. Repetition of distress 181 229. Other remedy no obstacle to distress 183 230. Tender 184 231. Distress as affecting other remedies 184r CHAPTER XIV. WHAT GOODS ARE DISTRAINABLE. 232. Goods of subtenant 18ff 233. Goods of sublessee ; payment of sublessee's rent 188 234. Sufficient goods of tenant 189 235. Goods of assignee or other person in possession 190 236. Goods of assignor of term 191 237. Goods of persons not in possession of premises 191 238. Goods of wife, daughter, or mother of tenant 192 239. Goods lent to tenant or his wife 193 240. Piano, melodeon, lent to tenant 194 241. Sewing machine, typewriter, lent to tenant 105 242. Soda-water apparatus 195 243. Goods sold by tenant 195 244. Where goods must be at time of levy 196 245. Preventing the removal of goods 197 246. Liability of tenant to owaeT of goods 198 247. Exemption of stranger's goods from distress 19S 248. Goods of boarder exempt 199' 249. Commission merchant ; agent 200 250. Warehousemen 202 251. Cattle agisted 204 252. Goods bailed for manufacture or repair 20 1 253. Exemption of stranger's goods not absolute 204 254. Exemption from distress ; sewing machines 20.5 255. Goods of public corporation 206' xii CONTENTS. 256. Goods in legal custody 206 257. Goods on premises after sheriff's sale 208 258. Receivers of tenant 208 259. Things distrainable 209 260. Exemption from distress 210 261. Waiver of the exemption 212 262. Waiver by inurement 212 263. Remedy to secure allowance of exemption 214 CHAPTER XV. THE PLACE OF THE DISTRESS. 264. Place where goods must normally be 216 265. Fraudulent and clandestine removal of goods 217 266. Rent due at time of removal 218 267. Clandestine or fraudulent removal, continued 218 268. Fraudulent removal, continued 210 269. Distress must be made in thirty days after removal 220 270. Fraudulent removal in Philadelphia, Pittsburg, and Allegheny. . . 220 271. Conventional right to distrain beyond premises 221 CHAPTER XVI. DISTRESS; PROCEDURE. 272. Entrance of house to distrain 224 273. Demand for rent as precondition to distress 226 274. Who may make the distress 226 275. Who may be bailiff 22H 276. How bailiff constituted 227 277. Seizure of the goods 22S 278. Inventory of goods taken 220 279. Necessity of notice of the distress 230 280. Form of notice of distress 230 281. What may be done with the goods 231 282. Ending custody of goods by payment, etc 233 283. The bailiff's inventory 234 284. The appraisement 234 285. Time of appraisement 234 286. Effect of premature appraisement and of no appraisement 23.i 287. Delayed appraisement 236 288. Who may be appraisers 23il 289. The appraisers' inventory 237 290. Waiver of appraisement 237 291. Object of the appraisement 238 :292. The sale of the goods 239 CONTENTS. xiii 293. Duty to sell 240 204. Advertisement of sale 240 205. Length of the notice 241 206. Effect of omitting to advertise 241 207. ^^'aiver of advertising or of punctuality in advertising 241 298. Postponement of sale 242 209. Preventing sale by payment 24.") tSOO. Who conducts the sale 244 301. Conduct of the sale 245 302. The proceeds of the sale 24.5 503. Rescue of the distress 246 CHAPTER XVII. REMEDIES FOR IMPROPER DISTRESS. 304. Distress for too much rent 249 305. Excessive distress 251 306. When no rent is in arrear 253 307. Action not on 3d section, act of 1772 254 308. Tenant's recaption of goods 255 309. Irregularity in mode of making distress 255 310. When the goods are not distrainable 257 311. Damages 258 312. Set-off by justice 258 313. Replevin 261 314. Replevin; procedure 262 315. Set-off 263 316. Set-off of taxes 264 317. Damages 264 318. Effect of replevin on lien of distress 265 319. Assumpsit 266 320. Tenant's remedies adequate 260 321. Landlord's remedy against officer 266 322. Liability of surety for rent 267 CHAPTER XVIII. LANDLORD'S PREFERENCE WITH RESPECT TO EXECUTION SALES. 323. The statutory provision 260 324. "Money due for rent;'' apportionment 209 325. Rent payable in advance; apportionment 270 326. No rent after levy 271 327. Successive executions 271 328. Rent payable absolutely in advance 272 529. Rent payable contingently in advance 273 xiv CONTENTS. 330. Rent ; taxes ; water rent 274 331. Kind of rent 275 332. Amount of rent 27.5 333. Deductions from rent 27ft 334. Extinction of rent 277 335. Rent for what year 27S 336. Locality of the goods 27i> 337. Locality; removal after levy 280 338. Goods must be liable to distress 281 339. Goods of a wife, subtenant, etc 282 340. Landlord claims the goods 283 341. Goods exempt 283 342. Landlord's loss of reversion 284 343. Close of the term 28.5 344. Taken by virtue of an execution 28-5 345. The demise 2Sft 346. Use and occupation 287 347. A cropper 287 348. Sublessee 287 349. Interval between lease and commencement of term 288 350. Change of landlord 23~! 351. Notice of claim 289 352. Notice ; when It must be given 290 353. Staying the writ 291 354. Landlord's claim postponed to that of laborer's 293: 355. Bankruptcy 293 356. Costs 294 357. Liability of sheriff, constable 294 358. Landlord's preference in assignment 295 359. Landlord's preference when lessee dies 29C. CHAPTEE XIX. TENANCY AT WILL AND FROM YEAR TO Y'EAR. 369. Tenancy at will 290 361. Will of the tenant 300- 362. Unenforceable contract 300 363. Lease from year to year 300 364. Expiration of term 302 365. Statute of frauds 302 366. Sheriff's sale of reversion 303 367. Notice to quit 303 368. Notice by tenant 304 369. Contractual duty to give notice 305 370. Revocation of notice 305 371. Death of lessee 30G 372. Lease from quarter to quarter 30'> CONTENTS. XV 373. Lease from month to month 307 374. Notice to remove 307 375. Necessity of notice to terminate tenancy 308 376. Contractual necessity to give notice 309 377. Notice by tenant 310 CHAPTER XX. TERMINATION OF THE LESSEE'S INTEREST BY SURRENDER. 378. Surrender of term ; consideration 314 379. Verbal surrender valid 315 380. Surrender by new lease 316 381. Form of surrender 317 382. Consent of both parties necessary 318 383. Consent not manifested by acts on premises 320' 384. Right to surrender secured by lease 322 385. Lease by partnership; change of partners 323 386. Consent not otherwise manifested 323 387. Destruction of premises by fire 324 388. Evidence of landlord's acceptance 324 389. Surrender to an agent 325 390. Effect of surrender 32S 391. Termination of lease by lessee's death 327 392. Termination by merger 328 393. When merger does not occur 329 394. Termination by ejectment 330 CHAPTER XXL EVICTION. 395. Covenant for quiet enjoyment 332 396. What is an eviction; generally 333 397. Making repairs 334 398. Extensive repairs 335 399. Acts which are an eviction 336 400. Lessor's acts ; eviction 33T 401. Lessor's acts which are not eviction 338 402. Nondelivery of possession 340 403. Lessee's remedy to obtain or preserve possession 340 404. Effect of eviction on rent 341 405. Rent due prior to eviction 342 406. Rent after termination of eviction 343 407. Eviction from part of premises 34:5 408. Failure to give possession of part of premises 344 409. Refusal of former tenant to vacate 345. xvi CONTENTS. 410. Partial eviction ; royalty '^" 411. Partial eviction by other than lessor 346 412. Eviction by one who purchases reversion during the term 347 413. Eviction by sheriff's vendee of the fee 349 414. Eviction under eminent domain 349 415. Eviction, — Vhler v. Gowen 350 416. Eminent domain; effect of compensation 351 417. Interference by public authority 352 418. Acts done on adjacent land 353 419. Eviction by stranger 354 420. Liability for mesne profits 355 421. Eviction by stranger under paramount title 356 422. Effect of tenant's guaranty against lien 357 423. Tenant takes the risk of the title 358 424. Tenant waives the eviction 359 425. Actions by tenant for disturbance 359 426. Damages ; total eviction 360 427. Damages ; total eviction by stranger 361 428. Damages ; partial eviction 362 429. Exemplary damages 362 430. Function of jury 363 CHAPTEE XXII. ASSIGNMENT OF TERM. 431. Transmission at lessee's death 364 432. Sheriff's sale of term 365 433. Lessees assignment for benefit of creditors 365 434. Assignment with intention of lessee 367 435. Conditional assignment 369 436. Consideration for the assignment 369 437. Contract to assign conditioned 370 438. Assignment of leasehold in part of premises 371 439. Covenants against assignment 371 440. Enforcing the covenants 372 441. Conditions against assignment 372 442. Waiver of stipulation against assigning 373 443. Lessee continues liable after assignment 374 444. Liability of assignee for rent 375 445. Covenants running with the land; general principle 376 446. Particular covenants falling on the assignee 377 447. Action on the covenant 378 448. When the assignment is complete 37S 449. Assignee's covenant runs with the lease 379 450. Liability of assignee ceases 379 451. When the assignee ceases to be owner 380 452. Insolvency of the second assignee 381 CONTENTS. xvii 453. Assignee primarily liable as respects lessee 382 454. Covenants broken before assignment 382 455. Sublease by assignee 383 456. Rights of assignee 384 457. Assignment subject to lessor's rights 385 458. Recording lease 386 CHAPTER XXIII. SUBLEASES. 459. Subletting 387 460. Sublease of part of premises 388 461. Restricting transferee's right 389 462. Right to underlet 390 463. Underletting a breach of condition 391 464. Sublessee's duty to pay rent 392 465. Surrender by lessee 393 466. Sublessee's powers 394 467. Lessee's covenants do not bind the sublessee 394 468. Subtenant liable to eviction 395 469. Eminent domain 390 CHAPTER XXIV. CONDITIONS SUBSEQUENT. 470. Denial of title 398 471. Failure of consideration by operation of law 398 472. Covenant not condition 399 473. Kinds of conditions 399 474. Payment of rent a condition 402 475. Right of forfeiture lost 403 476. Waiver of forfeiture 403 477. Waiver, continued 404 478. Enforcement against assignee of term 407 479. Apportionment of condition 407 480. Nonpayment of rent 408 481. Days of grace 409 482. Modes of enforcing forfeiture; re-entry 410 483. Re-entry unnecessary 411 484. Re-entry when lease becomes null and void 411 485. When landlord reserves power to terminate 412 486. Ejectment ; equity 412 487. Respite of forfeiture 413 488. Prohibiting the forfeiture 414 489. Demand conditions forfeiture for nonpayment of rent 415 490. Demand unnecessary 417 xviii CONTENTS. 491. Ejectment on warrant of attorney 417 492. Who may act under the warrant 418 493. Against whom judgment can be entered under the warrant 413 494. What period of time covered by warrant 420 495. Filing of warrant with prothonotary 421 496. Filing an averment ot breach 422 497. Description of the premises 423 498. Signing by attorney • 423 499. Forms of warrant 424 500. Judgment for land and for rent 425 501. Strilcing off and opening judgment 425 502. Rule to strike oflf 427 503. Who may ask for the rule 427 504. Setting aside habere facias possessionem 42!) 505. Appeal 429 506. Leasee takes advantage of condition 430 507. Eight of lessee after forfeiture 43 ) CHAPTEE XXV. STATUTORY FORFEITURE FOR NONPAYMENT OF RENT. SOS. Act of April 3d, 1830 432 509. The lease 433 510. Continuance of relation of landlord and tenant to inception of the proceedings 433 511. Supersedure of relation by that of vendor and vendee 435 512. Who may institute the proceedings 435 513. Conditions for inaugurating proceedings 435 514. Conditions; absence of goods 436 515. Notice to quit , 436 516. Notice to quit; demand of rent 437 517. Period of notice 437 518. The complaint 43S 619. Constituents of complaint 439 520. Action of the justice on the complaint 440 521. The precept or warrant 440 522. The hearing and judgment 441 523. Finding the rent due 422 624. The execution 443 525. When execution may issue 443 526. Certiorari 4U 527. Certiorari : the record 44.) 528. Errors affirmatively sliown by the record 446 529. Review of decision of common pleas 447 530. Execution from the common pleas 443 531. Appeal to the common pleas 448 CONTENTS. xix 532. The recognizance 449 533. The statement or declaration 450 534. The pleading 450 535. Facts to be proven 451 536. Defensive facts; lapse of landlord's title 452 537. Defense of facts, generally 453 538. Former recovery 455 539. Set-ofl' 455 o40. Trial, verdict, and judgment 456 CHAPTER XXVI. REPETITION AND PROTRACTION OP TERM. 541. Commencement of term 457 542. AYlien the term ends 458 543. End of term, continued 459 .")44. Provision for renewal 460 .")45. Mode of expressing right to renev7 461 .")4(;. The right to renew implied 462 ■'147. Frequency of renewal ; length of renewed term 462 .■)48. Frequency of renewal, continued 464 549. Indefiniteness of protraction of right of possession 464 550. Renewal conditioned on notice 465 551. Oral notice and statute of frauds 465 •"i52. Renewal conditioned on lessee's notice 466 553. Renewal conditioned on fixing the rent 466 554. Renewal conditioned on prepayment of rent 467 555. Notice by tenant of nonrenewal 468 556. Lessee's option to remain, imless notified by lessor 468 557. Second leases 460 558. Second lease made during a hold-over period 470 559. Agreement for renewal 471 560. Tenant's right to renew not expressly conditioned 472 561. Tenant's right to renew with consent of lessor 473 562. Lease to continue until notice from tenant 473 563. Holding over after definite term 475 564. Repetition of same terms and conditions 476 565. Express provision that same term shall continue 479 566. The landlord's option 479 567. Landlord's option, continued 480 568. Option as to use and occupation 481 569. Holding over makes a new contract 482 570. What constitutes a. holding over 483 CHAPTER XXVII. FIXTURES. 571. Fixtures, what are 485 XX CONTENTS. 572. Annexation not decisive 48fJ 573. Evidence of intention 487 574. Other criteria 488 575. Question of fact and law 489 576. Usage 490 577. Contractual modification of right 490 578. Agreement that fixtures shall be lessor's 491 579. Improvements to be lessor's on paying price 492 580. Agreements extraneous to lease 49.3 581. Instances of removable fixtures 494 582. Kinds of premises 495 583. Sublessee's right 496 584. Right of lessee as lessor's vendee 496 585. Removal of fixtures during the term 496 586. When removal must be made 497 587. Life-tenant lessor 498 588. Lease ending at no certain time 499 .189. Forfeiture 490 590. Remedies of the lessee 50] 591. Remedies of lessor 502 592. Manure 503 593. Land let for agriculture 503 594. Manure; kind of term 504 595. Source and place of manure 504 596. Remedies as respects manure 506 CHAPTER XXVIII. THE WAY-GOING CROP AND EMBLEMENTS. 597. The way-goirg crop 507 598. Kind of lease 507 599. The kind of crop 508 COO. Straw included 509 601. Who entitled 510 002. Effect of sheriff's sale of the reversion 510 603. Inconsistent with right to crop 512 604. Remedies for denial of tenant's right 513 605. Origin of tenant's right 514 606. Emblements 515 607. The nature of the lease 516 608. Lease terminable by act of party 517 609. Nature of the crops 518 610. Crop in the ground at commencement of term 519 611. Hay and fodder on the premises 519 612. Timber 520 613. Hay, straw, fodder 520 CONTENTS. xii CHAPTEK XXIX. TRANSFER OF REVERSION DURING THE TERM. 614. Lease no obstacle 523 61.5. Effect of transfer on rent 524 616. Action for rent by assignee 524 617. Transfer by death 525 618. Transfer by death of life owner 526 619. Transfer by sheriff's sale 527 620. Election of sheriff's vendee to disaffirm 523 621. Rent paid in advance 529 022. Rent assigned before sheriff's sale 530 623. Sheriff's sale of the landlord's share 531 U24. Attaching the rent 532 C25. Money-rent; effect of sheriff's sale on right to crop 532 626. Other judicial sales 532 627. No apportionment of rent between lessor and grantee 533 628. When the alienees title begins 534 629. When rent matures 535 030. Rent in kind, when payable 536 631. Conveying part of reversion 53!) 632. Effect of alienation of part on right of possession 541 CHAPTEK XXX. RECOVERY OF POSSESSION AT END OF TERM. ACT OF MARCH 21st, 1772. 033. Recovery ot possession without legal process 543 634. Recovery by ejectment 544 635. Act 2l3t March, 1772 544 G36. The justices 544 637. The complaint 545 638. Preliminary proof 546 639. The warrant; return day 546 640. Warrant ; service 547 641. The jurors 548 642. Jurors ; by whom selected 549 643. Failure of the summoned to appear and serve 550 644. Second jury 551 645. Continuance of proceedings 551 646. Finality of proceedings 5.12 647. Conditions under which proceedings are permissible 553 648. Lease from mortgagee to mortgagor 554 049. Kind of premises 554 650. Duration of the lease 554 651. The term must have ended 556 xxii CONTENTS. 652. The plaintiff 556 653. The defendant 5-57 654. Kind of rent 557 655. Peaceable possession 559 656. Notice to quit 560 657. Waiver of notice 561 658. Length of notice 562 059. Notice, when term is for a definite time 562 660. Notice ; tenancy from year to year 563 661. How soon proceedings may begin 563 062. Certiorari 564 663. Review on certiorari 565 664. The record 566 005. Form of the inquisition 567 666. Evidence extraneous to record 568 667. Damages 50f) 668. Costs 560 669. The judgment 570 070. Warrant to deliver possession 571 671. Review in appellate court 572 672. Arresting the proceedings before the justices 573 673. How this arrest is effected 573 674. Cause for arresting 574 075. Cause, continued 576 676. Expiration of lessor's title 577 677. Proceedings after affidavit and recognizance 578 CHAPTER XXXI. RECOVERY OP POSSESSION. ACT OF DECEMBER 14, 1863. 678. The act of December 14, 1803 581 679. The lease or demise 58:^ 680. The term 583 081. Rent reserved 584 082. Who may institute the proceedings .iSo 083. Successors to lessor 586 084. The defendant .'>S7 085. When the proceedings may begin .387 686. Three months' notice "iST 087. Notice precedes the expiration of the term .'iSS 088. How compute the months ."iSS 689. Notice longer than necessary 580 090. Notice necessary under whatever kind of lease 590 691. Who gives the notice 590 092. Notice to whom .".!)! 693. Form of the notice 591 CONTENTS. xxiii ^94. Service of notice 592 695. Waiver of notice 593 ■696. The complaint 594 697. Before viiiom complaint made 59f! 698. The summons 596 699. Service of the summons 597 700. What must be proved before the justice 598 701. Defenses allowable 598 702. The judgment 599 703. Damages 600 704. Judgment for damages 601 705. Delivery of possession to lessor 602 CHAPTEK XXXII. ACT DECEMBER 14, 1863. REVIEW ON CERTIORARI AND APPEAL. 706. Remedies for error of justice 604 707. Review in appellate courts 606 708. Certiorari 606 709. Certiorari in Philadelphia 606 710. What the record must show 608 711. Peaceable and quiet possession 609 712. The term 609 7 13. Notice 610 714. Tenant still in possession 611 715. Rent reserved 611 716. The lessor 611 717. The evidence 612 718. Record shows absence of evidence 613 719. .Substantial conformity with statute sufficient 614 720. Review of decision on certiorari 615 721. Execution from the common pleas 615 722. Restoring the tenant to the possession 615 72:1. Liability of landlord in damages 616 724. Appeal 616 725. Time and mode of appealing 616 72(1. The recognizance 617 727. The affidavit 618 728. Procedure 619 729. Procedure; amendment 619 730. Nonsuit 620 731. The trial 620 732. The trial ; proving tenancy 62 1 733. The trial ; proving end of term 022 734. The trial ; tenant's defenses 62.1 7M.3. Tenant's defenses, continued 624 xxiv CONTENTS. 736. Prohibited defenses 025 737. Appeal not u. supersedeas 625 7.'^8. Damages of tenant 625 739. Damages of landlord 628 740. Judgment of restitution 628 CHAPTER XXXIII. RECOVERING POSSESSION. ACT MARCH 25, 1825. 741. The act of March 25, 1825 629 742. The conditions under which the remedy is given 029 743. Necessity of insufficiency of goods or refusal of security 630 744. Application to two aldermen 632 745. The summons and later proceedings 63:5 746. Evidence 633 747. Facts established and judgment 633 748. Certiorari 634 749. The writ of possession Ii36 CHAPTER XXXIV. PROCEEDINGS IN PHILADELPHIA ON LOST LEAKE. 750. Act of February 28, 1865 637 751. Conditions under which the remedy exists 637 752. Conditions; demand of information from tenant 638 753. Proceedings before justice 639 CHAPTER XXXV. ESTOPPEL AGAINST DENYING LESSOR'S TITLE. 754. The estoppel 640 755. Scope of the ordinary estoppel 041 756. Proceedings for rent 642 757. Kind of lease 643 758. No estoppel against denying the lease 643 753. No relation of tenure iM.> 760. Duration of the estoppel 047 761. Eviction under superior estoppel 647 762. To what the estoppel applies lU.'i 703. Misrepresentation or fraud 1)40 764. Violence lioO 765. Fraud on the commonwealth * O'lO 766. Lessee already owner when he accepts lease U-iO 767. Lessee owner and already in possession 651 768. Who may avail himself of the estoppel 053 CONTENTS. XXV 760. To wliat the estoppel does not relate 654 770. Tenant maj' show transfer of lessor's title 65.5 771. Extinction of lessor's interest 656 772. Loss of agency 658 773. Denial that claimant is transferee of lessor 659 774. Declarations of tenant 650 775. Who are estopped 660 776. Others affected by estoppel 661 777. When successor to tenant not estopped 662 778. When there is no estoppel 663 779. When tenant renounces and afterwards resumes possession 664 CHAPTEE XXXVI. LANDLOED'S AND TENANT'S LIABILITY AS TO OTHERS. 780. Sidewalks 666 781. Area-ways 667 782. Injury to adjacent property 668 783. Length of landlord's ownership ; trustee 669 784. Liability of landlord, continued 669 785. Liability of lessee to third persons 670 786. -Lessor's liability to third persons for condition of premises 671 CHAPTEE XXXVII. MINES AND MINERAL LEASES. 787. Mines and minerals 673 788. Options to lease 674 789. Contracts to lease 674 700. Execution of lease 675 791. Successive conveyances 676 792. Fraud 677 793. Construction of lease 077 794. Certainty • 678 795. Option to purchase 670 796. Assignments and subleases 679 797. Interest conveyed 680 a. Sale 680 6. Licenses and incorporeal hereditaments 684 798. Interest of lessee 686 799. Right to work open mines 687 800. Right to open new mines 687 801. Right of lessor to mine 6S8 802. Interest of the lessee when severed 088 803. Right to surface 688 xxvi CONTENTS. 804. Subterranean rights 6!)0 805. Lessee's rights when mineral removed 600 806. Lessee's right to refuse 690 807. Duty of the lessee to furnish surface support 691 808. Release of right 692- 809. Remedy for failure to furnish support 09-3 810. Duty of lessee to adjacent owners 69.'i CHAPTER XXXVIII. MINES AND MINERAL LEASES— CONTINUED. 811. Covenants 695 812. Duty to mine 69a 813. Manner of working 697 814. Rent and royalties 097 815. Preference of rent due 69? 810. Eviction 700 817. Denial of lessor's title 701 818. Minimum royalty 701 819. Defenses 702 820. Release from liability 705 821. Where more than minimum mined 70.5 822. Accounts 706 823. To whom payable 707 824. Actions to recover royalties 709 825. Termination by lessee 710 826. Forfeiture 711 827. Time for forfeiture 711 828. Forfeiture for failure to work 712 829. Notice of forfeiture 713 830. Actions to enforce 713 831. Improvements 714 832. Where no covenant allowing removal 7 l-i 833. Set-off of value 716 834. Appraisement 710 835. Improvements where the lessee is evicted 717 CHAPTEE XXXIX. OIL AND G.4S LEASES. 836. Execution of lease 7 IS 837. Fraud 720 838. Description of premises 721 839. Options to lease or explore 722 840. Successive leases 723. CONTEXTS. xxvii 841. Nature of oil and gaa 724 842. Interest conveyed by lease 725 843. Interest retained by lessor 726 844. Estate acquired 727 845. License 728 846. Tenants in common 728 S47. Interest of lessee after termination of work 729 848. Exelusiveness of lessee's right 729 849. Construction of agreements 730 850. Meaning of words 731 851. Understanding of the parties 733 852. Alteration 734 853. Where lease lost 734 854. Remedy for interference 734 u. By injunction 734 6. By action of trespass 737 c. By ejectment 738 855. Interference with third parties 739 856. Account 739 857. Receivers 740 CHAPTER XL. OIL AND GAS LEASES— CONTINUED, 858. Covenants to operate 743 859. Implied covenant to operate 744 860. Damages for failure to drill 740 861. Rent and royalties 747 862. Time of payment 748 863. For what rent liable 749 864. WIio liable 750 865. Recovery of rents or royalties 750 866. To^whom payable 752 867. Other covenants 753 868. Denial of lessor's title 754 869. Termination of lease 755 u. By abandonment 755 b. By acceptance of new lease 756 c. By forfeiture 757 { 1 ) Where forfeiture clause 757 (2) Facts warranting declaration of forfeiture 758 (3) Where no forfeiture clause 759 ( 4 ) For nonpayment of rent 759 ( 5 ) For failure to produce 760 (6) Declaration of forfeiture 701 ( 7 ) Who bound by forfeiture 762 ( 8 ) Waiver of forfeiture 7 1)2 (9) Effect of forfeiture 702 xxviii CONTENTS. d. Termination by leasee 763 (1) Where no oil 763 ( 2 ) Where lessee evicted 764 (3) Where lease for definite time 764 ( 4 ) Notice of termination 764 ( 5 ) By surrender 764 e. Termination by court 765 870. Property on termination 766 871. Reimbursement for expenditures 767 872. Sublease 767 873. Liability of assignee 768 874. For rent or royalty 760 875. For failure to drill 769 876. Liability ot lessee in case of sublease 770 877. Actions 770 878. Liability to lessee 771 879. Plugging wells 771 TABLE OF CASES CITED. A. Abbott V. Shepherd, 4 Phila. 90 123, 466 467 Aeheson v. Kittaning Consolidated Natural Gas Co. 8 Pa. Super Ct. 477 135, 375, 380, 769 V. Stevenson, 146 Pa. 228, 23 Atl. 331 721, 726, 735, 739 Acklin V. McCalmont Oil Co. 201 Pa. 257, 50 Atl. 955 752, 754 Acme Coal Co. v. Stroud, 5 Lack. Legal News, 169 702, 714 Adam v. Clark, 2 W. N. C. 429 40, 400 Allen V. Ash, 6 Phila. 312 434, 445, 447 Adams v. Adams, 7 Phila. 160 302 V. Beach, 1 Phila. 99 370, 379, 385, 388, 394 V. La Comb, 1 Dall. 440, 1 L. ed. 214 192, 196 V. McKesson, 53 Pa. 81, 91 Am. Dec. 183 11, 12, 14, 170, 287, 303 511, 517, 527, 536, 537 V. Stage, 18 Pa. Super. Ct. 308 744, 745, 749, 751 Aderhold v. Oil Well Supply Co. 158 Pa. 401, 28 Atl. 22 765, 767, 769 Advance Coal Co. v. Miller, 7 Kulp, 541 14, 716 Agerter v. Vandergrift, 138 Pa. 593, 21 Atl. 202 719 Agnew v. Whitney, 10 Phila. 77 492, 494, 502 Agnew's Estate, 17 Pa. Super. Ct. 201 752 Ahrns v. Chartiers Valley Gas Co. 188 Pa. 249, 41 Atl. 739. .. , 137, 140, 146 723, 754, 765 Albert v. Uhrich, 180 Pa. 283, 36 Atl. 745 487, 494, 497, 501 Albright's Estate, 1 York Legal Record, 121 129 Alden v. Lee, 1 Yeates, 160 544 Alexander v. Jones, 13 Lane. Bar. 43 574, 578, 57!) Allegaert v. Smart, 2 W. N. C. 397 165 v. Smart, 2 Pennyp. 320 141 V. Smart, 10 W. N. C. 29 4, 5 V. Smart, 11 W. N. C. 177 71 Allen V. Ash, 6 Phila. 312 435, 445, 447 V. Hubert, 49 Pa. 259 54, 57 V. Lewis, 1 Ashm. (Pa.) 184 280, 286, 291, 295 Allison's Appeal, 77 Pa. 221 721, 735 AUman v. Atwel], 33 Pittsb. L. J. 258 259, 260 Allshouse's Estate, 23 Pa. Super. Ct. 146 691, 693 Alter V. Bowman, 2 Legal Chronicle, 324 694 nxix XXX TABLE OF CASES CITED. American Academy of Music v. Bert, 8 Pa. Co. Ct. 223 49, .300 V. Smith, 54 Pa. 130 381 American Pig Iron Storage Warrant Co. v. Sinmemahoning Iron & Coal Co. 205 Pa. 403, 54 Atl. 1047 187, 189, 203, 390 Anderson v. Brinser, 129 Pa. 376, 6 L. R. A. 205, 11 Atl. 809, 18 Atl. 520 C41, 644 Anderson's Appeal, 3 Pa. St. 218 157, 1 66, 171 , 174, 209, 271 Anewalt v. Hummel, 109 Pa. 271 520 Ankermiller v. O'Byrne, 2 Monaghan (Pa.) 766 430 Anspach v. Bast, 53 Pa. 356 697 Ardesco Oil Co. v. North American Oil & Min. Co. 66 Pa. 375 . . 17, 393, 680 V. Richardson, 63 Pa. 162 99 Armstrong ■?. Caldwell, 53 Pa. 284 683 Arnsthal v. Patterson, 3 Pennyp. 25.. 466, 467, 583, 600, 606, 610, 612, 013 Arrison v. Harmstead, 2 Pa. St. 191 154, 160, 169, 172 Arrott Steam Power Mills Co. v. Way Mfg. Co. 143 Pa. 435, 22 At]. 699 49, 301 Ashhurst v. Eastern Pennsylvania Phonograph Co. 166 Pa. 357, 31 Atl. 116 312, 318 Aiier V. Penn, 99 Pa. 370, 44 Am. Rep. 114 319, 321, 325, 327 V. Penn, 92 Pa. 444 315, 316, 326, 327 Aughinbaugh v. Coppenheffer, 55 Pa. 347 49, 102 Aurand v. Wilt, 9 Pa. 54 655 Axford V. Thomas, 160 Pa. 8, 28 Atl. 443 405, 412, 713 Aye \. Brown, 178 Pa. 291, 35 Atl. 957 748, 752 V.Philadelphia Co. 193 Pa. 451, 74 Am. St. Rep. 696, 44 Atl. 555 744, 746, 755, 756, 759 V. Philadelphia Co. 193 Pa. 457, 44 Atl. 556 .. . 35, 723, 724, 730, 746 Ayrea v. Novinger, 8 Pa. 412 549, 550, 552, 572, 578, 579 B. Baer v. Kuhl, 8 Pa. Dist. R. 289 196, 220, 222, 267 Bair v. Warfel, 5 Lane. L. Rev. 81 250, 255, 261, 265 Baird v. Porter, 67 Pa. 105 205 Baker v. Lewis, 150 Pa. 251, 24 Atl. 616 17 V. Robb, 2 Del. Co. Rep. 439 .58 Bakes v. Reese, 150 Pa. 44, 24 Atl. 634 .52.-f Bale v. Hess, 28 Pa. Co. Ct. 25, 11 Pa. Dist. R. 376 234 Balfour v. Russell, 167 Pa. 287, 31 Atl. 570 763 Ball Y. Penn, 10 Pa. Super. Ct. 544 192, 196 Balmer v. Peiffer, 16 Lane. L. Rev. 251 192, 211, -22 Bamsdall v. Guild, 32 Phila. Leg. Int. 152 152. 190 Bandel v. Erickson, 3 Pa. Super. Ct. 389 646, 658 Bangor Excelsior State Co. v. Shimer, 8 Northampton Co. Rep. 409, 96, 102 Bank of Pennsylvania v. Wise, 3 Watts, 394 165, 270, 289, .534, 535 Bannan v. Graeff, 180 Pa. 648, 40 Atl. 805 704 V. Miller, 6 Pa. Dist. R. 719 709 TABLE OF CASES CITED. xxxi Bannon v. Brandon, 34 Pa. 263, 7.5 Am. Dec. 655, 38 Pa. 63 660, 665 Bantleon v. Smith, 2 Binn. 146, 34 Am. Dec. 430 Ill, 18" Barclay v. Steamship Co. 6 Phila. 558 368, 370-373, 384 Bardsley's Appeal, 20 W. N. C. 90 22, 127, 128, 132 Estate, 7 W. N". C. 48 129 Barnes v. Berwind, 3 Pennyp. 140 691 Barnes's Appeal, 76 Pa. 50 294 Barnett v. Plummer, 19 W. N. C. 117 9, 38 Barnhart v. Lockwood, 152 Pa. 82, 25 Atl. 237 728, 744, 755 Barnhart's Estate, 13 York Legal Record, 129 296 Barns v. Carney, 6 W. N. C. 448 58 V. Wilson, ) 16 Pa. 303, 9 Atl. 437 333, 349, 353 Barrett v. Bemelmans, 155 Pa. 204, 26 Atl. 307 29, 658 v. Bemelmans, 163 Pa. 122, 29 Atl. 756 646, 658 Barrington v. Justice, 2 Clark (Pa.) 501 503-506 Bartley v. Phillips, 165 Pa. 325, 30 Atl. 842 544, 756 V. Phillips, 179 Pa. 175, 36 Atl. 217. .431, 723, 724, 730, 732, 756, 762 Bartoe v. Guckert, 158 Pa. 124, 27 Atl. 845 772 Bascom v. Cmnon, 158 Pa. 225, 27 Atl. 968 689 Baskin v. Seechrist, 6 Pa. 154 623", 650 Bassett v. Hawk, 114 Pa. 502, 8 Atl. 18 29 Banders v. Fletcher, U Serg. & E. 419 355, 476, 483, 642, 647, 848 Bauer v. Broden, 3 Phila. 214 343 V. Harkins, 15 Lane. L. Rev. 70, 6 Northampton Co. Rep. 103 411 Baum V. Brown, 11 W. N. C. 202 279 Bausman v. Kreider, 18 Lane. L. Rev. 103 399, 425 Bears v. Ambler, 9 Pa. 193 93, 666 Beatty v. Rankin, 139 Pa. 358, 21 Atl. .74 138, 212 Beaupland v. McKeen, 28 Pa. 124, 70 Am. Dec. 115 540 Becker v. Werner, 98 Pa. 555.. 182, 184, 210, 227, 369, 372, 373, 399, 400 402, 404, 410 Bedford v. Jones, 5 Legal Gaz. 230 63 V. Kelly, 61 Pa. 491 29, 585, 601, 602, 610-613, 615, 656 v. M'Elherron, 2 Serg. & R. 48 304, 308, 309, 477, 479, 544 Bedford's Appeal, 126 Pa. 117, 17 Atl. 538 708 Beech Grove Coal & C. Co. v. Mitchell, 193 Pa. 112, 44 Atl. 245.. 492, 71.5 Beedle v. Hilldale Min. Co. 204 Pa. 184, 53 Atl. 764 714 Beltzhooer v. Waltman, 1 Watts & S. 416 177, 178, 191, 192 Bender v. George, 92 Pa. 36 148, 375, 382 Bennet v. Bittle, 4 Rawle, 339 38, 333, 338, 343, 344, 363 Bennett v. Norton, 171 Pa. 221, 32 Atl. 1112 17 Benz V. Langan, 5 Northampton Co. Rep. 139 26, 368, 418, 423 Bergman v. Roberts, 61 Pa. 497 435, 4.36, 451, 452, 454-456 Bergner v. Palethorp, 2 W. N. C. 297 2, 24, 32, 583, 585, 601, 606, 624 Berridge v. Glassey, 112 Pa. 442, 56 Am. Rep. 322, 3 Atl. 583. .25, 38, 459 V. Glassey, 20 W. N. C. 50 644, 652 Berrill v. Flynn, 8 Phila. 239 598 Berry v. M'Mullen, 17 Serg. & R. 84 380 xxxii TABLE OF CASES CITED. IBestwiek v. Ormsby Coal Co. 129 Pa. 592, 18 Atl. 538 649, 702-704 707, 708, 710 Betz V. Delbert, 16 W. N. C. 360 461, 469 V. Valer, 15 Phila. 324 422 Bevan v. Crooks, 7 Watts & S. 452 195, 201, 205, 209 Bewley v. Tarns, 17 Pa. 483 17, 29, 123, 323 Beyer v. Feiisterniaeher, 2 Whart. 95 156, 157, 162, 174, 262-264 Biegenwald v. Winpenny, 9 W. N. C. 542 202, 261 Big Black Creek Improv. Co. v. Kemmerer, 162 Pa. 422, 29 Atl. 739 . . 696 Biggs V. Brown, 2 Serg. & E. 14 459, 508, 510, 513, 515 Big Mountain Improv. Co.'s Appeal, 54 Pa. 361 689 Binns v. Hudson, 5 Binn. 505 270, 274 Binswanger v. Deareen, 132 Pa. 229, 19 Atl. 32 304, 313 Bischoff V. Loper, 16 Montg. Co. L. Rep. 73 253 Bismarck Bldg. & L. Asso. v. Bolster, 92 Pa. 123 365 Bittinger v. Baker, 29 Pa. 66, 70 Am. Dec. 154.. 303, 507, 508, 511, 517 527, 530, 532 Black V. Alberson, 1 Ashm. (Pa.) 127 630, 635, 636 V. Coolbaugh, 2 Luzerne Legal Obs. 324 258 Blair v. Boring, 200 Pa. 27, 49 Atl. 365 235-237 V. Peek, 1 Pennyp. 247 744, 746, 759 Blakley v. Marshall, 174 Pa. 425, 34 Atl. 564 709, 725, 752 Blanche v. Bradford, 38 Pa. 344, 80 Am. Dee. 489 192, 209 Blashford v. Duncan, 2 Serg. & R. 480 547, 558, 564, 565, 566 Block V. Dowling, 7 Pa. Dist. R. 261 67, 83, 87, 159 Blume V. M'Clurken, 10 Watts, 380 123, 378 Boal V. Citizens' Natural Gas Co. 23 Pa. Super. Ct. 339 750, 754 Bogert V. Battertson, 6 Pa. Super. Ct. 468. .193, 205, 206, 209, 212, 243, 257 262 Boggs V. Black, 1 Binn. 333 301, 304, 475, 480, 559, 563, 572 Boice V. Zimmerman, 3 Pa. Super. Ct. 181 50 Bonniwell v. Hopson, 3 W. N. C. 492 430 Bonsall v. Comly, 44 Pa. 442 170, 211, 212, 214, 261, 262 Booth T. Hoenig, 7 Pa. Dist. R. 529 54, 56, 59, 155, 192, 196, 208 Borie v. Crissman, 82 Pa. 125 115, 180, 517, 518, 526, 536 Borland's Appeal, 66 Pa. 470 379, 382 Borlin v. Com. 110 Pa. 454, 1 Atl. 404 289-292, 294 Borrell v. Borrell, 33 Pa. 492 130 V. Dewart, 37 Pa. 134 115, 116, 508, 537 Bosler v. Kuhn, 8 Watts & S. 183 152, 366 Boteler v. Philadelphia & R. Term. R. Co. 164 Pa. 397, 30 Atl. 303. .389, 396 Bowman v. Bradley, 151 Pa. 351, 17 L. R. A. 213, 24 Atl. 1062. .14, 15, 360 Boyd V. McCombs, 4 Pa. 146 112, 289, 531, 53S Boyer v. Dickson, 7 Phila. 190 79, 324 V. Fulmer, 176 Pa. 282, 35 Atl. 235 701, 703 V. Smith, 3 Watts, 449 66.") V. Smith, 5 Watts, 55 623, 641, 648, 650, 651, 653 V. Strickler, 1 Docket, 35 552, 565 TABLE OF CASES CITED. xxxiii Braddee v. Wiley, 10 Watts, 362 534 Bradfield v. Rehm, 6 Phila. 135 596, 609, 613 Bradford Oil Co. v. Blair, 113 Pa. 83, 57 Am. Rep. 442, 4 Atl. 218 ... . 377 378, 383, 746, 750, 769 Bradley v. BroTOi, 6 W. N. C. 282 320, 325, 327 V. Citizens' Trust & Surety Co. 7 Pa. Super. Ct. 419 72, 85, 88 Brandon v. Bannon, 38 Pa. 63 661 Bressler's Appeal, 2 York Legal Record, 57 128, 132 Breuckmann v. Twibill, 89 Pa. 58 321, 322 Briggs V. Elder, 22 Pa. Super. Ct. 324 765 V. Large, 30 Pa. 287 202, 203, 209, 237-242 V. Thompson, 9 Pa. 338 117 118, 337, 342 Brimmer v. Reed, 23 Pa. Super. Ct. 318 67, 85, 90, 738 Brisben v. Wilson, 60 Pa. 452 166, 169, 174, 235, 236, 240, 256, 262 Broad v. Winsborough, 1 Northampton Co. Rep. 330 83, 455 Brolaskey v. Hood, 6 Phila. 193 371, 372, 377 V. Loth, 5 Phila. 81 72, 94 Brolasky v. Ferguson, 48 Pa. 434 126, 128 Bromley v. Hopewell, 14 Pa. 400 288 Bronson v. Lane, 91 Pa. 153 730 Brown, Re, 27 Pittsb. L. J. N. S. 228 708, 709 v.Beecher, 120 Pa. 590, 15 Atl. 608 10, 11, 36, 365, 369, 086, 727 V.Butler, 4 Phila. 71 301, 307, 387-391, 393, 394 V. Dysinger, 1 Rawle, 408 623, 641, 652 V. Jaquette, 2 Del. Co. Rep. 245 162, 170 V. Jaquette, 94 Pa. 1 13, 39 Am. Rep. 770 11, 13 V. Jaquette, 8 W. N. C. 475 ■. . .287, 289 V. Montgomery, 21 Pa. Super. Ct. 262 304, 306, 623, 626, 028 V. Peters, 2 Kulp, 518 55 V. Sims, 17 Serg. &. R. 138 192, 199, 202, 203, 209 V. Staekhouse, 155 Pa. 582, 35 Am. St. Rep. 90S, 26 Atl. 669 200 201, 205, 207, 209, 227, 257 V. Vandergrift, 80 Pa. 142 405, 743, 757-759 V. Vanhorn, 1 Binn. 334 303, 304, 555, 563 V. Wagner, 1 Pearson (Pa.) 254 110 V. Weaver, 17 W. N. C. 230 105, 666, 609 V.White, 202 Pa. 297, 58 L. R. A. 321, 51 Atl. 962, 206 Pa. 106, 55 Atl. 848 66T Brown's Appeal, 66 Pa. 155 582, 586, 60.5. Brunot's Estate, 29 Pittsb. L. J. N. S. 105 753 Brushwood Developing Co. v. Hickey, 2 Monaghan, 65, 16 Atl. 70.... 749 Bubb V. Bubb, 201 Pa. 212, 50 Atl. 759 753 Buchanan v. Baxter, 67 Pa. 348 544, 554, 565, 5G7-571, 014 V. Montgomery, 2 Yeates, 72 Ill Buck V. Fisher, 4 Whart. 516 Ill Buck's Estate, 185 Pa. 57, 64 Am. St. Rep. 616, 39 Atl. 821 365 Buhl V. Thompson, 3 Pennyp. 267 703, 704, 706, 710- Burchard v. Rees, 1 Whart. 377 155, 280, 29S xxxiv TABLE OF CASES CITED. Eurgwin v. Bishop, 91 Pa. 336 52, 360, 363, 463, 46.5 Burns v. Cooper, 31 Pa. 426 116, 117, 532, 533, 536, 537 Burr V. Cattnach, 19 W. N. C. 22 338, 342 Burton v. Forest Oil Co. 204 Pa. 349, 54 Atl. 266 732, 733, 750, 760 Bush V. National Oil Ref. Co. 5 W. N. C. 143 131, 480, 481 Bupsman v. Ganster, 72 Pa. 285 18, 29, 38, 77, 78 Byrne v. Funk, 13 W. N. C. 503 304, 426 C. Cadwalader v. Tindall, 20 Pa. 422 190 V. United States Exp. Co. 147 Pa. 455, 23 Atl. 775 25, 142 Cairna v. Llewellyn, 2 Pa. Super. Ct. 599. .459, 461, 463, 466, 472, 483, 484 ,543 Caldcleugh v. Hollingsworth, 8 Watts & S. 302. .204, 205, 231, 240, 241, 243 Caldwell v. Fulton, 31 Pa. 475, 72 Am. Dec. 760 674, 681, 684 V. Koehler, 1 Phila. 375 632, 635 Calhoon t. Neely, 201 Pa. 97, 50 Atl. 967 728, 755, 756 Callen v. Hilty, 14 Pa. 286 15 Cambria Iron Co.'s Appeal, 114 Pa. 66 275, 276 Camp V. Casey, 7 Pa. Co. Ct. 160 77, 78 Campbell v. Finney, 3 Watts, 84 254 V. O'Neill, 64 Pa. 290 486, 489, 490, 496, 501 V. Penn, C. P. Phila 607 Campbell's Estate, 21 Pa. Super. Ct. 424 376, 393 Carey v. Bright, 58 Pa. 70 715 Caniahan v. Brown, 60 Pa. 23 085 Carnegie Natural Gas Co. v. Philadelphia Co. 158 Pa, 317, 27 Atl. 951 32 316, 386, 408, 411, .541, 662, 676, 719, 736 757, 759, 761, 762, 7fiS Garner v. Jolmson, 9 Pa. Super. Ct. 29 721 Carpenter v. Koons, 20 Pa. 222 540 Carroll v. Carroll, 2 Chester Co. Rep. 119 127 Carson v. Godley. 26 Pa. Ill, 67 Am. Dec. 404 70, 671 V. Mackin, 23 Pa. Super. Ct. 50 667 V. Shiffer, 1 Lack. Legal News, 399 319 Carter >-. Collar, 1 Phila. 339 477,483 V. Hess, 3 W. N. C. 325 587, 601, 616, (ilS Carver v. Gough, 153 Pa. 225, 25 Atl. 1124 100, 487, 491, 495 Case V. Davis, 15 Pa. 80 269, 271, 274-277, 287 Cassel V. Seibert, 1 Dauphin Co. Rep. 16 441 Cassell V. Crothers, 193 Pa. 359, 44 Atl. 446.. 499, 502, 722, 729, 761, 704 76,6 Cassidy v. Elias, 90 Pa. 434 265 Castle V. Weber, 2 Pearson (Pa.) 79 442, 443, 447, 455 Caulk V. Everly, 6 Whart. 303 75 Chalfant v. Williams, 35 Pa. 212 705 Chamberlain v. Dow, 16 W. N. C. 532 727 TABLE OF CASES CITED. xxxv Chambers v. Shivery, 6 Pa. Dist. R. 101 587, 590, 591, 610 V. Shivery, 9 Pa. Dist. R. 564 596 V. Smith, 183 Pa. 122, 38 Atl. 522 137, 141, 355, 700, 751 Charlotte Furnace Co. v. Stouffer, 127 Pa. 336, 17 Atl. 994 498, 501 Chartiers Block Coal Co. v. Mellon, 152 Pa. 286, 18 L. R. A. 702, 34 Am. St. Rep. 645, 25 Atl. 597 690 Chase v. Goodale, 2 Law Times N. S. 107 587, 605 Chew's Estate, 4 Phila. 186 Ill Chicago & A. Oil & Min. Co. v. Barnes, 02 Pa. 445 171, 210, 228, 2()2 V. United States Petroleum Co. 57 Pa. 83 740 Cliilds V. Gillespie, 147 Pa. 173, 23 Atl. S12 722 Christ V. Diffenbach, 1 Serg. & R. 464, 7 Am. Dec. 624 48, 67, 68, 83 Christ Church v. Bala Golf Club, 10 Pa. Dist. R. 666 103 Christian v. Dripps, 28 Pa. 271 490 Christie v. Blakeley, 2 Monaghan (Pa.) 118, 15 Atl. 874 46, 720 Christie's Appeal, 85 Pa. 463 756, 762 Christman v. Geise, 1 Chester Co. Rep. 342 23."i, 238 Church V. Griffith, 9 Pa. 118, 49 Am. Deo. 548 487, 494, 41)5, 497 Cist V. Zeigler, 16 Serg. & R. 282, 16 Am. Dee. 573 145 Ch^pp T. Sennefif, 7 Phila. 214 608 Clark V. Everly, 8 Watts & S. 226 433-437, 439, 451, 452, 454, 455, 578 V. Harvey, 54 Pa. 142 508, 513-515 V. Lindsay, 7 Pa. Super. Ct. 43 336, 360 V. Smith, 25 Pa. 137 302, 555 V. Yeat, 4 Binn. 185 572 Clarke v. Patterson, 6 Binn. 128 572 Cleland v. Aiken, 23 Pa. Co. Ct. 1 766 Clement v. Youngman, 40 Pa. 341 674, 678, 682, 686 Cleminger v. Baden Gas Co. 15!» Pa. 16, 28 Atl. 293 762 Clifford V. Bemms, 3 Watts, 246 177, 190, 217, 218, 220 Clothier v. Braithwaite, 22 Pa. Super. Ct. 521 199, 202, 261 Cobel V. Cobel, 8 Pa. 342 525, 537 Cochran v. Emmertz, 3 Del. Co. Rep. 433 136, 143 V. Howes, 3 Del. Co. Rep. 248 207 V. Pew, 159 Pa. 184, 28 Atl. 219... 723, 732, 74.3, 744, 746, 751, 757 763 V. Shenango Natural Gas Co. 23 Pittsb. L. J. N. S. 82. .316, 731, 733 765 V. Ward, 8 Del. Co. Rep. 423 48,73, 88 Ooe V. Vogdes, 71 Pa. 383 53, 58-60 C'ogley V. Browne, 11 W. N. C. 224 405, 426 Cogley's Estate, 13 Phila. 308 120 Cole V. Taylor, 8 Pa. Super. Ct. 19 74.5, 756, 762, 764, 767 Colgan V. Forest Oil Co. 194 Pa. 234, 75 Am. St. Rep. 695, 45 At!. 119 745, 751 Colhoun's Estate, 8 Pa. Co. Ct. 550, 20 Phila. 46, 26 W. N. C. 303. .306, 328 Collender Co. v. Speer, 29 Pittsb. L. J. 125 171, 227, 490, 501 xxxvi TABLE OF CASES CITED. Collins V. Mecliling, 1 Pa. Super. Ct. 594 732, 733, 748 V. Whilldin, 3 Phila. 102 393, 395 CoUins's Appeal, 35 Pa. 83 213, 269, 272, 284, 286 Columbia Coal Co. v. Miller, 78 Pa. 246 713 Columbia Iron Co.'s Appeal, 114 Pa. 66 184 Colwell V. Peden, 3 Watts, 327 264, 2BC Comegys v. Russell, 175 Pa. 166, 34 Atl. 657 407, 411, 679, 711, 712 V. Russell, 185 Pa. 283, 39 Atl. 956 679, 712 Comfort V. Duncan, 1 Miles (Pa.) 229 300, 512, 517 V. Taylor, 1 Troubat & H. Pr. § 1184, ed. 1848 246 Com. V. Contner, 18 Pa. 439 107, 160, 164, 175, 270 V. Conway, 1 Brewst. (Pa.) 509 321, 327 v.Demvorth, 145 Pa. 172, 22 Atl. 820 544 V. Dunm, 17 Pa. Super. Ot. 90 699 V. Hippie, 7 Pa. Dist. R. 399 674 V. Knarr, 135 Pa. 35, 19 Atl. 805 481 V. Leech, 27 Pittsb. L. J. 233 245, 248 V. Lelar, 1 Phila. 173 207 V. M'Neile, 8 Phila. 438 462, 468 T. MoStay, 8 Phila. 609 225, 228 V. Martin, 4 Lack. Jur. 93, 12 Pa. Dist. R. 644 234, 248 V. Moreland, 9 W. N. C. 272 225 V. Nichols, 4 Pa. Dist. R. 318 245, 248 V. Sheppard, 2 Clark (Pa.) 393 267 V. Shertzer, 14 Lane. L. Rev. 70 24S Com ex rel. Irwin v. Contner, 21 Pa. 266 113, 273, 277, 287, 294, 458 Menges v. Huttel, 4 Pa. Super. Ct. 95 211, 214 Conable v. Van Housen, 11 Pa. Super. Ct. 497 118 Conger v. National Property Co. 165 Pa. 561, 30 Atl. 1038 758 Conley v. Hickey, 1 Just. 4 599, 603 Connelly v. Arundel, 6 Phila. 49 603, 608, 613, 615 Conroy v. Bitner, 10 Lane. L. Rev. 185 168, 174, 212, 214 Consumers' Heating Co. v. American Land Co. 31 Pittsb. L. J. N. S. 24 735, 750, 764 Conway v. Lowry, 7 W. N. C. 64 222 Conyngham v. Everett, 11 Kulp, 179 583 Cook V. Folsom, 2 Lane. L. Rev. 185 492, 502 v. McDevitt, 6 Phila. 131 586 V. Neilson, 10 Pa. 41 306 Cooney v. Biggerstalf, 34 Pittsb. L. J. 381 55 Cooper V. Rose Valley Mills, 174 Pa. 302, 34 Atl. 559 209, 286 V. Smith, 8 Watts, 536 653, 654, 661 Coppel's Estate, 4 Phila. 378 328, 365 Cornell v. Vanartsdalen, 4 Pa. 364 75, 94, 99 Cornog V. Phelps, 16 W. N. C. 115 615 Cosgrave v. Hammill, 173 Pa. 207, 33 Atl. 1045 137, 391 Coughanour v. Bloodgood, 27 Pa. 285 331, 357, 658 Coulter V. Conemaugh Gas Co. 14 Pa. Super. Ct. 553. , 375, 749, 750, 764, 709 TABLE OF CASES CITED. xxxvii Coxe V. Williams, 15 Phila. 187 356 Cozens v. Stevenson, 5 Serg. & R. 421 4, 48, 333, 346 Craig V. Dale, 1 Watts & S. 509, 37 Am. Dee. 477 509, 513, 515 Crail V. Crail, 6 Pa. 480 647 Cramer v. Carlisle Bank, 2 Grant, Cas. 267 651 Cravener v. Bowser, 4 Pa. 259 654 Crawford v. Bellevue & G. Natural Gas Co. 183 Pa. 227, 38 Atl. 595. .52, 734 V. Evans, 158 Pa. 390, 27 Atl. 1105 225 Creighton v. McKee, 7 Phila. 324 461, 465 Crump V. Morrell, 12 Atl. 333 42 Cryan v. Ridelsperger, 7 Pa. Co. Ct. 473 758 Cummings v. Young, 6 Montg. Co. L. Rep. 161 565, 575, 580 Cunningham v. Entrekin, 3 Pa. Dist. R. 291 105 V. Gardner, 4 Watts & S. 120 545, 546, 551, 556, 568, 573, 574, 577 Currier v. Grebe, 142 Pa. 48, 21 Atl. 755 589, 593, 601, 621 Curtin v. Somerset, 140 Pa. 70, 12 L. R. A. 322, 23 Am. St. Rep. 220, 21 Atl. 244 671 D. Daly V. Barrett, 4 Phila. 350 447 Dalzell V. Lynch, 4 Watts & S. 255 11, 365 Dark v. Johnston, 55 Pa. 164, 93 Am. Dec. 732 728, 738 Darlington v. De Wald, 194 Pa. 305, 45 Atl. 57 97 Darrah v. Baird, 101 Pa. 265 495, 497, 499, 501 Dauphin County v. Bridenhart, 16 Pa. 458. .26, 27, 125, 148, 310, 474, 476 483 Davies v. Maxwell, 5 Kulp, 351 3, 675 Davis V. Davis, 115 Pa. 261, 7 Atl. 746 584, Oil V.Davis, 128 Pa. 100, 18 Atl. 514 169, 227, 231, 235, 2.36, 239 v.Moss, 38 Pa. 346 401, 404, 410, 411, 417, 495, 497, 499, 712, 716 V. Shoemaker, 1 Rawle, 135 139 Davis's Estate, 1 Phila. 360 140, 483 Dawson's Estate, 4 Lane. L. Rev. 343, 35 Pittsb. L. J. 63 296 Debozear v. Butler, 2 Grant, Cas. 417 328, 329, 556, 574, 575, 580 DeCoursey v. Guarantee Trust & S. D. Co. 81 Pa. 217.. 165, 170, 171, 289 544, 549, 557, 558, 561, 564, 571, 577, 580, 607 Deisinger v. Shaud, 12 Pa. Dist. R. 698 583 V. Shaud, 20 Lane. L. Rev. 257 611 Delaware & H. Canal Co. v. Hughes, 183 Pa. 66, 38 L. R. A. 826, 63 Am. St. Rep. 743, 38 Atl. 568 670, 685 Delaware, L. & W. R. Co. v. Sanderson, 109 Pa. 583, 58 Am. Rep. 743, 1 Atl. 394 10, 109, 682 Dellone v. Gerber, 3 York Legal Record, 23 303, 304 Delp V. Hoffman, 7 Pa. Dist. R. 256 195, 233. 247 Demi v. Bossier, 1 Penr. & W. 224 gOS, 513 De Morat v. Palkenhagen, 148 Pa. 393, 23 Atl. 1125 322* 325 V. Howard, 6 Pa. Dist. R. 761 59, 62 xxxviii TABLE OF CASES CITED. Denison v. Wertz, 7 Serg. & R. 372 316 Denniston v. Haddock, 200 Pa. 426, .50 Atl. 197 677, 684, 706 Denny v. Kress, 2 Blair, 34.'j 553 Depuy ^ . Silver, 1 Clark ( Pa. ) 385 67, 140 Detwiler v. Cox, 75 Pa. 200 166, 174, 262 Devlin v. Burns, 147 Pa. 168, 23 Atl. 375 141 Dewey v. Dupuy, 2 Watts & S. 553 137, 324, 374 Dickensheets v. Hotchkiss, 6 Phila. 156 586, 601 Dickson v. Fertig, 21 Pa. Super. Ct. 283 747 V. Wolf, 5 W. N. C. .37 58 Diefenderfer v. Caffrey (Pa.) 9 Atl. 182 599, 624, 645, 660, 663 Diehl V. Bockius, 1 Pa. Dist. E. 479 122, 135 V. Lee, 9 Allen, 865 319 V. Lee (Pa.) 8 Cent. Eep. 867, 9 Atl. 865 307 V. Woods, 4 Pennyp. 57 339, 344 Dietrich v. Dietrich, 154 Pa. 92, 25 AtJ. 1080 136 Diffedorffer v. Jones, 5 Binn. 289, 6 Am. Dec. 413 512, 314 Dikeman v. Butterfield, 133 Pa. 236, 19 Atl. 938 400, 423, 425, 427, 430 V. Parrish, 6 Pa. 210, 47 Am. Dec. 455 660, 661, 663 Diller v. Roberts, 13 Serg. & R. 60, 15 Am. Dee. 578. .157, 160, 161, 202, 273 476-478, 482 Dillon V. Carrol, 2 Luzerne Legal Reg. 89 69, 73, 318 Dinner v. McAndrews, 10 Pa. Dist. R. 221 154, 222 Donaldson v. Likens, 7 Phila. 257 560, 561 V.Smith, 1 Ashm. (Pa.) 197 112, 150, 157, 458, 563 Donnon v. Moore, 1 Chester Co. Rep. 65 438, 520, 521 Doran r. Chase, 2 W. N. C. 609 333, 337, 341 Dorrance, Re, 186 Pa. 64, 40 Atl. 149 709 Dorsh r. Lea, 18 Pa. Super. Ct. 447 200, 202 Dosch V. Diem, 176 Pa. 603, 35 Atl. 207 338, 360 Dos Santos v. Hollinshead, 4 Phila. 57 320 Dttster V. Friedensville Zinc Co. 140 Pa. 147, 21 Atl. 251 691 Double V. Union Heat & Light Co. 172 Pa. 388, 33 Atl. 694 764 Dougherty v. Jack, 5 Watts, 457, 30 Am. Dee. 335 328, 330 V. Wagner, 2 W. N. C. 291 353 Dougherty's Estate, 9 Watts & S. 189, 42 Am. Dec. 326 Ill Douthett V. Ft. Pitt Gas Co. 202 Pa. 416 733, 73U V. Gibson, 11 Pa. Super. Ct. 543 147, 323, 374, 765 Douty V. Bird, 60 Pa. 48 17, 368, 694 Doyle V. Longstreth, 6 Pa. Super. Ct. 475 150, 540, 541 Drake v. Lacoe, 157 Pa. 17, 27 Atl. 538 698, 710, 711, 770 Druckenmiller v. Young, 27 Pa. 97 68, 69, 73 Dubasse v. Martin, 24 Phila. Leg. Int. 92 586, 638, 639 Duddy V. Hill, 3 Leg. & Ins. Rep. 59 444 Duff V. Fitzwater, 54 Pa. 224 544, 582 V. Wilson, 69 Pa. 316, 72 Pa. 442 63, 303, 344, 356, 358, 52: Duffee V. Mansfield, 141 Pa. 507, 21 Atl. 675 55, 60, 58^ TABLE OF CASES CITED. xxxix Duffield V. Hue, 129 Pa. 94, 18 Atl. 566 G89, 762 V. Hue, 136 Pa. 602, 20 Atl. .526. . . .721, 727, 730, 731, 73.3, 734, 738 V. Roseiizweig, 144 Pa. 520, 23 Atl. 4 721, 735, 738 Duffy V. Ogden, 64 Pa. 240 112, 235, 458, 588 Duffy's Estate, 17 Pa. Super. Ct. 244 708, 709 Duke V. Hague, 107 Pa. 57 10, 365, 541, 728 Dunm V. Rothermel, 112 Pa. 272, 3 Atl. 800, 119 Pa. 632, 13 Atl. 509. . 24 31-33, 302, 304, 586, 590, 592, 596, 624, 620 Dun V. :\Jel]on, 147 Pa. 11, 30 Am. St. Pep. 706, 23 Atl. 210 352 Duncan >-. Erady, 1 W. N. C. 314 448 V. Hartraan, 143 Pa. 595, 24 Am. St. Rep. 570, 22 Atl. 1099. .10, 28 29, 30 Dundas v. Muhlenberg, 35 Pa. 351 693 Dungan's Appeal, 68 Pa. 204 293 Dunham v. Haggerty, 110 Pa. 560, 1 Atl. 667 698, 706 V. Kirkpatrick, 101 Pa. 36, 47 Am. Rep. 696 726 Dunlap V. Riddell, 7 W. N. C. 466 740 Dunmire v. Price, 12 W. N. C. 179 601, 618, 619, 628 Dunn V. Mellon, 147 Pa. 11, 30 Am. St. Rep. 706, 23 Atl. aiO 360 Dunwoodie v. Reed, 3 Serg. & R. 435 398 Duppa V. Mayo, 1 Wms. Saund. 287 416 Dutton V. Wetmore, 10 Pa. Super. Ct. 530 514, 519 Dyer v. Wightman, 66 Pa. 425 352 E. Eagen v. Wilkins, 7 W. N. C. 486 449 fiakman v. Sheaffer, 48 Pa. 176 659 Earle v. Arbogast, 180 Pa. 409, 36 Atl. 923 94 Earl's Appeal, 13 Pa. 483 272 Early v. Ashworth, 17 Phila. 248 667 East Conshohocken Quarry Co. v. Boyd, 18 Montg. Co. L. Rep. 58 401 414, 416 East Sugar Loaf Coal Co. v. Wilbur, 5 Pa. Dist. R. 202 493, 4tl8, 716 Eberle v. Bonafon, 17 W. N. C. 335 47 Edmnndson v. Wragg, 104 Pa. 500, 49 Am. Doe. 590 234 Edwards's Appeal, 105 Pa. 103 283 Effinger v. Hain, 18 Lane. L. Rev. 3 340 V. Lewis, 32 Pa. 367 678 Ege V. Ege, 5 \\atts, 134 155, 162, 164, 169, 173, 174, 269, 274, 281 288, 290, 370, 387, 392 V. Kille, 84 Pa. 333 716 Ege's Appeal, 2 Watts, 283 235 Eisenbrey v. Pennsylvania Co. for Insurance, 141 Pa. 566 21 Atl. 635 668, 669 Eisenhart v. Slymaker, 14 Serg. & E. 153 18 xl TABLE OF CASES CITED. Eister v. Paul, 54 Pa. 196 641, 64<> Elder v. Robinson, 19 Pa. 364 9- Electric City Land & Improv. Co. v. West Ridge Coal Co. 187 Pa. 500, 41 Atl. 458 689 Eley's Appeal, 103 Pa. 300 70a Elk Twp. V. Beaver Twp. 6 Pa. Co. Ct. 562 686. Elleiiwold Coal Co., Re, 7 Luzerne Leg. Reg. 19, 9 Lane. Bar, 144 295- Ellenwold Coal Co.s Assignment, 9 Lane. Bar, 144 293 Elliott V. Ackla, 9 Pa. 42 635. V. Curry, 1 Phila. 281 404 V. Smith, 23 Pa. 131 655- Ellis V. Ambler, 11 Pa. Super. Ct. 406 317, 402, 418, 425, 427 V. Lamb, 9 Pa. Dist. R. 491 196, 205, 256 V. Rice, 195 Pa. 42, 45 Atl. 655 112 Ely V. Beaumont, 5 Serg. <& R. 124 8 Emeret's Estate, 2 Pars. Sel. Eq. Cas. 195 365- Emerson v. Schoonmaker, 135 Pa. 437, 19 Atl. 1025 693 Emerson's Appeal, 95 Pa. 258 740- Emery v. Harrison, 13 Pa. 317 644 England ex dem. Syburn v. Slade, 4 T. R. 682 057 English V. Yates, 205 Pa. 106, 54 AtL 503 61, 65, 430 Enterman v. Keebler, 13 Phila. 56 429- Enterprise Oil & Gas Co. v. National Transit Co. 172 Pa. 421, 51 Am. St. Rep. 746, 33 Atl. 687 IT Enterprise Transit Co. v. Hazlewood Oil Co. 20 Pa. Super. Ct. 127 737 Enterprise Transit Co.'s Appeal, 9 W. N. C. 225 724, 740 Erb V. Sadler, 8 W. N. C. 13 200 Erety v. Wiltbank, 8 Phila. 300 632-63.> Er-ivin's Appeal, 20 W. N. C. 278 691 Eshelman v. Thompson, 62 Pa. 495 710 Essler v. Johnson, 25 Pa. 350 447, 448, 454, 455 Esterly Mach. Co. v. Spencer, 147 Pa. 466, 23 Atl. 774.. 201, 205, 241, 245 257, 258, 2C2 Evans v. Bidwell, 76 Pa. 497 653 V. Fries, 9 W. N. C. 462 402, 403, 416-418, 425 V. Hamrick, 61 Pa. 19, 100 Am. Dec. 595 53:i V. Hastings, 9 Pa. 273 30S, .544 V. Lanigan, 1 W. N. C. 299 137 V. Lincoln Co. 204 Pa. 448, 54 Atl. 321 150, 168, 204 V. Radford, 2 Phila. 370 443 Everhart v. Bauer, 1 Lehigh Valley Law Rep. 157 74 Ewing v. Cottman, 9 Pa. Super. Ct. 444 337, 344. 303, 042, 64» v. Fertig, 9 Pa. Dist. R. 756, 24 Pa. Co. Ct. 301 722, 747, 70S V. Vanarsdall, 1 Serg. & R. 370 228 Excelsior Shirt Co. v. Miller, 4 Lack. Legal News, 332 113, 273. F. Fahey v. Howley, 22 Pa. Super. Ct. 472 132 TABLE OF CASES CITED. xli Falmestock v. Faustenauer, 5 Serg. & R. 174 303, 304, 479, 555, 563, 563 567, 569 Fairchild v. Dunbar Furnace Co. 128 Pa. 485, 18 Atl. 443 683 V. Fairchild (Pa.) 9 Atl. 255 683 Fairman v. Fluck, 5 Watts, 516 67, 83, 84, 174, 264 Fanker v. Anderson, 173 Pa. 86, 34 Atl. 434 730 Farley v. Stokes, 1 PMla. 30 3 Farmakis v. Boyle, 8 Pa. Dist. R. 696 502 I'armers' & M. Bank v. Ege, 9 Watts, 436, 36 Am. Dec. 130 527-529 Farmers' Bank's Appeal, 1 Walk. (Pa.) 33 269, 700 Feather v. Strohoecker, 3 Penr. & W. 505, 24 Am. Dec. 342 . . 646, 655, 659 Feehan v. Dobson, 10 Pa. Super. Ct. 6 671 Fell V. Betz, 5 Pa. Dist. R. 310 146, 401 Fennell v. Guffey, 139 Pa. 341, 20 Atl. 1048.. 375, 377, 379, 383, 431, 769 V. Guffey, 155 Pa. 38, 25 Atl. 785 375, 377, 378, 709, 769 Fernwood Masonic Hall Asso. v. Jones, 102 Pa. 307 164, 167, 171, 174 193, 210, 250, 231 Fidler v. Hershey, 90 Pa. 363 55, 58 Finnegan v. Pennsylvania Trust Co. 5 Pa. Super. Ct. 124 683 Fisher v. Allen, 2 Phila. 115 291, 295 V. Bailey, 1 Ashm. (Pa.) 209 439, 446 V. Guffey, 193 Pa. 393, 44 Atl. 452 770 V. McCauley, 2 Dauphin Co. Rep. 180 598, 609, 620, 623, 625 V. Milliken, 8 Pa. Ill, 49 Am. Rep. 497. .77, 148, 151, 152, 374, 680 704 V. Nyce, 60 Pa. 107 614 Fitzalden v. Lee, 2 Dall. 205, 1 L. ed. 350 572 Pitzpatrick v. Childs, 2 Brewst. (Pa.) 365 304, 310, 475, 481 Fitzwater v. Passett, 199 Pa. 442, 49 Atl. 310 91 Flanigan v. Rossiter, 7 W. N. C. 180 58 Flanigen v. Philadelphia, 51 Pa. 491 421, 423, 430, 609 Fleming v. Heitshu, 8 Pa. Dist. R. 715 229, 265 V. Heit.shu, 7 Northampton Co. Rep. 96, 16 Lane. L. Rev. 365 . . 263 Fleming's Appeal, 67 Pa. 18 739 Flickinger v. Forry, 6 Del. Co. Rep. 154, 8 York Legal Record, 84 . . 6, 25 Flory V. Heller, 1 Monaghan (Pa.) 478 Ill Focht's Estate, 2 Woodw. Dec. 269 110 Folsom v. Cook, 115 Pa. 539, 9 Atl. 93 23, 24, 490, 492, 502 Ford V. Buchanan, 111 Pa. 31, 2 Atl. 339 725, 730 Forest Oil Co. v. Hart, 33 Pittsb. L. J. N. S. 17 766 Forestry Commission Powers, Re, 28 Pa. Co. Ct. 465 16 Forrest v. Buchanan, 203 Pa. 454, 53 At). 267 67, 82, 84 Forsythe v. Price, 8 Watts, 282, 34 Am. Dec. 465 507, 508, 513, 515 Fow V. Roberts, 108 Pa. 489 668, 669 Fow's Estate, 3 Pa. Dist. R. 316 365 Fowler v. Eddy, 110 Pa. 117, 1 Atl. 789 258-260 Franciscus v. Eeigart, 4 Watts, 98 110, 169, 172, 174, 228, 254 263-265 xlii TABLE OF CASES CITED. Frank v. Maquire, 42 Pa. 77. . . ..5.5, 56, 63, 136, 148, 315, 319, 324, 327, 375 Frechie v. Drinkhouse, 4 W. N. C. 298 53 Freck v. Locust Mountain Coal & I. Co. 86 Pa. 318 ' 694 Freeland t. South Penn Oil Co. 189 Pa. 54, 41 Atl. 1000. .409, 413, 736, 760 French v. Richards, 6 Phila. 547 89 Fretton v. Karcher, 77 Pa. 423 174, 237, 254-256 Frey v. Leeper, 2 Dall. 131, 1 L. ed. 319 265 V. Zabinski, 10 Kulp, 36 75, 83, 91 Freytag v. Anderson, 1 Ashm. (Pa.) 98 572, 630, 631, 63S Frick V. Fiseus, 164 Pa. 623, 30 Atl. 515 543 V. Hugle, 1 Pa. Co. Ct. 572 137 T. McClain, 9 W. N. C. 32, 12 Lane. Bar, 78 213, 284 Friend v. Oil Well Supply Co. 179 Pa. 290, 36 Atl. 219 39, 351 Frisbie Coal Co. v. Brennan, 1 Lack. Jur. 417 414, 714 Fritz V. Menges, 179 Pa. 122, 36 Atl. 213 10, 13 Frost V. Earnest, 4 Whart. 86 349, 352, 359 Fry V. Jones, 2 Rawie, 11 12, 14, 115, 118, 160, 163, 168, 170, 174 227, 262, 287, 527 Fullerton v. Shauffer, 12 Pa. 220 530 Fulmer v. Grossman, 8 Del. Co. Rep. 78, 2 Luzerne Leg. Obs. 33!.. . . . 149 374, 375 Funk V. Haldeman, 53 Pa. 229 721, 728, 729 Furbush v. Chappell, 105 Pa. 187 210, 226, 228, 488, 489, 495, 496 V. Fisher, 40 Phila. Leg. Int. 286 195, 226 G. Galbraith v. Black, 4 Serg. & R. 207 552, 553 V. Bridges, 168 Pa. 325, 32 Atl. 20 26, 27 Galey Bros. v. Kellerman, 123 Pa. 491, 16 Atl. 474. .403, 431, 723, 757, 759 Gallagher v. Burke, 13 Pa. Super. Ct. 244 334, 360, 362, 363 V. Maclean, 7 Pa. Super. Ct. 408 569, 570 V. Maclean, 193 Pa. 583, 45 Atl. 76, Affirming 7 Fa. Super. Ct. 408 545, 547, 557, o65 Gallagher's Estate, 20 Pittsb. L. J. N. S. 306 3.34, 341, 342 Galloway v. Ogle, 2 Binn. 468 641, 649, 660, 661 Gamble v. O'Mara, 15 Phila. 180 322 Gandy v. Dickson, 166 Pa. 422, 31 Atl. 127 176, 173, 179, 181 Ganley v. Kirst, 7 Lack. Legal News, 172 G93 Gardiner v. Blair, 10 Pa. Super. Ct. 74 311, 31S. 319, 473 Gardner's Estate, 199 Pa. 524, 49 Atl. 346 683, 70S Garman v. Potts, 135 Pa. 506, 19 Atl. 1071 704, 705, 707 Garrett v. Cummins, 2 Phila. 207 335, 342, 359, 360 V. Dewart, 43 Pa. 342, 82 Am. Dec. 570 527, 528, 535, 537, 539 V. Longnecker, 2 Legal Record Rep. 174 171, 245 Garrett's Appeal, 100 Pa. 597 144, 208 Garrison v. Moore, 1 Phila. 282 358 TABLE OF CASES CITED. xliii Garvin v. Dawson, 13 Serg. & R. 246 254 Gates V. Adinolfi, 11 Kulp, 100 44 Gaule V. Bilyeau, 25 Pa 521 9 Gault V. Lowry, 1 Phila. 394 634 V. Neal, 6 Phila. 61 307, 308, 561 Gavit V. Hall, 75 Pa. 363 545, 546, 549, 554, 562, 567-569, 571 Geisenberger v. Cerf, 1 Phila. 17 629, 632-634, 636 German Society v. Philadelphia, 9 Phila. 245 110 Gettysburg Electric R. Co. v. Electric Light, Heat & Power Co. 200 Pa. 372, 49 Atl. 952 95, 96 Ghegan v. Young, 23 Pa. 18 113, 148, 222, 374, 375 Gibbons >'. McGuigan, 6 Phila. 108 619 Gibson v. Oliver, 158 Pa. 277, 27 Atl. 961 743, 746, 763 V. Vetter, 162 Pa. 26, 29 Atl. 292 317, 426 Gifford V. McDonald, 24 Phila. Leg. Int. 92 638 Gilbert v. Henck, 30 Pa. 205 54, 57, 63 Gill V. Ogborn, 1 W. N. C. 28 310, 426 V. Weston, 110 Pa. 305, 312, 1 Atl. 917, 921 36, 674, 724, 727 Gillespie v. McGowan, 100 Pa. 144, 45 Am. Rep. 365 671 Gilliam v. Tobias, 11 Phila. 313 192, 207, 209 Gillion V. Finley, 22 ^Y. N. C. 124 463 Gilman's Estate, 9 Pa. Co. Ct. Ill 129 Giltinan v. Strong, 64 Pa. 242 53, 64 Givens v. Miller, 62 Pa. 133 595, 597, 608, 609, 615 Glasgow V. Chartiers Oil Co. 152 Pa. 48, 25 Atl. 232 723, 729, 744, 747 751, 763 Glazier, Re, 33 W. N. C. 310 295 Gleim v. Rise, 6 Watts, 44 642, 649, 651 Glenn v. Strickland, 21 Pa. Super. Ct. 88 732 V. Thompson, 75 Pa. 389 583, 580, 591. 592 Gloninger v. Franklin Coal Co. 55 Pa. 9, 93 Am. Dec. 720 685, 688 Goddard's Appeal, 1 Walk. (Pa.) 97 393, 399, 415, 422, 680 (Jodley V. Hagerty, 20 Pa. 387, 59 Am. Dec. 731 671 Gold v. Gleason, 26 Pittsb. L. J. N. S. 10, 8 Kulp, 76 154, 222, 223 Goldsmith v. Smith, 3 Phila. 360 576, 580, 641, 650, 656, 659 >'. Smith, 4 Phila. 31 305, 324 Goodman v. Rothaker, 17 Phila. 245 63 Goodwin v. Sharkey, 80 Pa. 149 113, 154, 157, 158, 170, 173, 174, 223 227, 365 V. Shoemaker, 5 Kulp, 321 438, 446 Gordon v. Correy, 5 Binn. 552 183 Goss V. Woodland Fire Brick Co. 4 Pa. Super. Ct. 167. .365, 375, 380, 382 385 Goswiler, Re, 3 Penr. & W. 201 235 Grace v. Shively, 12 Serg. & R. 217 218-2:20 Graham v. Dempsey, 169 Pa. 460, 32 Atl. 408 473, 474, 477 V. Moore, 4 Serg. & R. 467 664 Gramlich v. Wurst, 86 Pa. 74, 27 Am. Rep. 684 671 xliv TABLE OF CASES CITED. Grant v. Gill, 2 Whart. 42 122, 366, 367 Grant's Appeal, 44 Pa. 477 154, 158, 218-220, 280, 281 Grassy Island Coal Co. v. Hillside Coal & I. Co. 1 Lack. Jur. 297. 413, 414 714 Graver v. Felir, 89 Pa. 460 684, 602, 606, 611 Gray v. Catawissa R. Co. 18 W. N. C. 9 412, 717 V. Wilson, 4 Watts, 39 67, 83, 140, 264, 266, 276 Green v. Ashland Iron Co. 62 Pa. 97 688 Green's Appeal, 6 Watts & S. 327 235 Greenleaf v. Haberacker, 1 Woodw. Dee. 436 590, 609, 612 Greenough's Appeal, 9 Pa. 18 18, 19, 298, 687, 699 Greensboro Natural Gas Co. v. Fayette County Gas Co. 200 Pa. 388, 49 Atl. 768 735 Greenwood's Appeal, 79 Pa. 294 269, 286, 287, 289, 290 Gregg V. Irisb, 6 Serg. & R. 211 19, 29 V. Krebs, 5 Pa. Dist. R. 779 112, 405, 436, 536 Greider's Appeal, 5 Pa. 422 2.69, 278, 289, 315, 318, 326 Grider v. Mclntyre, 6 Phila. 112 630, 631, 634, 635 Grier v. Cowan, Addison (Pa.) 347 160, 161, 169, 262 V. McAlarney, 148 Pa. 587, 24 Atl. 119 174, 227 V. Sampson, 27 Pa. 183 666 Griffin v. Fellows, 81 *Pa. 114 28, 398, 674, 687 T. Phffinix Pottery Co. 14 W. N. C. 266 lOS Groetzinger v. Latimer, 146 Pa. 628, 23 Atl. 393 140 Groff V. Levan, 16 Pa. 179 532 Groll V. Gegehheimer, 147 Pa. 162, 23 Atl. 440 430 Grossman's Appeal, 102 Pa. 137 400, 423, 429, 430 Grotz V. Lehigh & W. V. Coal Co. 1 Kulp, 53 458 V. Wilkes Barre Coal Co. 1 Kulp, 53 45, 676, 67S Grove v. Barclay, 106 Pa. 155 125, 127, 128, 131, 403 V. Hodges, 55 Pa. 504 26, 676, 685 Grubb V. Fox, 6 Binn. 460 561 V. Grubb, 74 Pa. 25 686 V. Guilford, 4 Watts, 223, 28 Am. Dec. 700 6S6 Guckert v. Lowrie, 118 Pa. 289, 12 Atl. 282 242, 244, 245 Guernsey v. Froude, 13 Pa. Super. Ct. 40.> 26 Guffey V. Clever, 146 Pa. 548, 23 Atl. 161 720, 768 V. Deeds, 9 Pa. Co. Ct. 449 730 Guldin V. Butz, 2 Woodw. Dec. 74 365, 375. 37S Gulick T. Heermans, 6 Luzerne Legal Reg. 227 487, 495. 496 Gumber v. Kilgore (Pa.) 6 Cent. Rep. 406 691 Gumpert v. Hay, 202 Pa. 340, 51 Atl. 968 16 Gunnis v. Kater, 29 Phila. Leg. Int. 230 177, 254 Guth's Appeal (Pa.) 5 Atl. 728 697 H. Uacke's Appeal, 101 Pa. 245 40 Hackett v. Carnell, 106 Pa. 291 449, 451, 456 TABLE OF CASES CITED. xIt Hague V. Wheeler, 157 Pa. 325, 22 L. R. A. 141, 37 Am. St. Rep. 736, 27 Atl. 714 739, 771 Hahn v. Roach, 7 Northampton Co. Rep. 21 67, 73, 85, 86 Haight V. Conners, 149 Pa. 297, 24 Atl. 302 720 Haines v. Levin, 51 Pa. 412 582, 583, 600, 615, 628 Haldeman v. Sampter, 2 Del. Co. Rep. 106, 6 Law Times N. S. 139. . 405 416 Hall V. Bardsley, 5 W. N. C. 553 148, 149, 374 V. Benner, 1 Penr. & W. 402, 21 Am. Dec. 394 653 V. Phillips, 164 Pa. 494, 30 Atl. 353 51 V. Powell, 4 Serg. & R. 456, 8 Am. Dec. 722 37 Hallwood Cash Register Co. v. Hefferman, 12 Pa. Dist. R. 515 113 Halo V. Schick, 57 Pa. 319 22, 527 Hamilton v. Elliott, 5 Serg. & R. 375 411 V. Marsden, 6 Binn. 45 650, 652 V. Pittook, 158 Pa. 457, 27 Atl. 1079 642, 652, 660, 701, 754 Hampton v. Henderson, 4 Clark (Pa.) 438 180, 284 Hanbest v. Grayson, 206 Pa. 59, 11 Pa. Dist. R. 497, 55 Atl. 786 302 V. Heerman, 2 Walk. (Pa.) 471 232, 246 Hancock, Re, 7 Kulp, 36 707, 708 Hancock's Estate, 7 Kulp, 36 683 Hand v. Suravitz, 148 Pa. 202, 23 Atl. 1117.. 399, 400, 402, 413, 418, 421 425 Hanna v. Clark, 204 Pa. 149, 53 Atl. 758 726, 728 Hannen v. Ewalt, 18 Pa. 9 380, 381 Harding v. Seeley, 148 Pa. 20, 23 Atl. 1118 461-463, 472, 484 Hardy v. Watts, 22 Pa. 33 449, 450 Harlan v. Lehigh Coal & Nav. Co. 35 Pa. 287 69, 677, 681, 685 Harley v. O'Donnell, 9 Pa. Co. Ct. 56 727 Harnish v. Musser, 19 Lane. L. Rev. 283 143, 505 Harrington v. Hamtll, 3 Montg. Co. L. Rep. 31 83 Harris v. Kelley (Pa.) 12 Cent. 394, 13 Atl. 523 24, 491, 502 V. Knowles, 26 W. N. C. 249 31 V. Shaw, 17 Pa. Super. Ct. 1 192, 193, 238, 256 V. Tyson, 24 Pa. 347, 64 Am. Dec. 661 677 V. Watson, 1 Phila. Leg. Int. May 8, 1844 133, 338, 476, 482 Harrison v. Van Gunten, 15 Pa. Super. Ct. 491 227, 256, 257 Hart V. Israel, 2 Browne (Pa.) 22 534 Hartley v. Phillips, 198 Pa. 9, 47 Atl. 929 750 Hartnack v. James, 8 Phila. 317 437, 441, 444 Hartranft's Appeal, 17 W. N. C. 420 280 Harvey v. Gunzberg, 148 Pa. 294, 23 Atl. 1005 46, 319, 470, 476, 479 Haslage v. Krugh, 25 Pa. 97 525 Hawk V. Stouch, 5 Serg. & R. 157 528 Hay V. Parks, 7 Northampton Co. Rep. 391 020 Hayden v. Patterson, 51 Pa. 261 527, 534 Haynes v. Synnott, 160 Pa. 180, 28 Atl. 832 54, 56, 58, .59, 110, 121 Hazen v. Culbertson, 10 Watts, 393 442, 443. 449, 456 xlvi TABLE OF CASES CITED. Hazlehurst v. Kendrick, 6 Serg. & R. 446 ; 372, 37'4 Hazlett V. MeCutcheon, 158 Pa. 539, 27 Atl. lOSfi 210, 510 V. Mangel, 9 Pa. Super. Ct. 139 193, 235, 240 V. Powell, 30 Pa. 293 70, 72, 83, 333, 354 Heartzog v. Borgel, 7 Pa. Super. Ct. 257 302: Heayn v. Felton, 13 W. N. C. 28 336, 341 Heck V. Borda, 18 W. N. C. 212 302 Heckart v. M'Kee, 5 Watts, 385 057 Heckman's Estate, 172 Pa. 185, 33 Atl. 552 149, 375- Heckscher v. Sheafer, 17 W. N. C. 323 109 V. Sheaffer (Pa.) 14 Atl. 53 692, 693 Heffrier v. Lewis, 73 Pa. 302 494-497 Hegea' Estate, 12 Lane. L. Rev. 105 52.") Heil V. Strong, 44 Pa. 264 688 Heilman v. Weinman, 139 Pa. 143, 21 Atl. 29 3, 4, 35, 48, 675-677 Heinouer v. Jones, 159 Pa. 228, 28 Atl. 228 761 Heintz v. Shortt, 149 Pa. 286, 24 Atl. 316 758 Heister v. Brown, 11 Lane. Bar, 159 590 Hele V. Stewart, 19 W. N. 0. 129 41, 106 Heller v. Royal Ins. Co. 151 Pa. 101, 25 Atl. 83, 177 Pa. 262, 35 L. R. A. 600, 35 Atl. 726 336 Helser v. Pott, 3 Pa. St. 179 23, 155, 16.3, 168, 171, 174, 226 Hemphill r. Eekfeldt, 5 Whart. 274.... 144, 145, 333, 341, 342, 356, 359 525 V. Flynn, 2 Pa. St. 144 476, 477, 480 V. Tevis, 4 Watts & S. 535 128, 303, 527-52!) Henderson v. Boyer, 44 Pa. 220 169 V. Ferrell, 183 Pa. 547, 38 Atl. 1018 758 Henkels v. Brown, 4 Pliila. 299 23*^ Hennis v. Streeper, 1 Miles (Pa.) 269 294 Henry v. Wilson, 1 W. N. C. 506 147 Kenwood v. Cheeseman, 3 Serg. & E. 500.. 121, 123, 125, 126, 128, 139 Herbaugh v. Zentmyer, 2 Rawle, 159 376 Herbst v. Hafner, 7 Pa. Super. Ct. 363 338 V. Hodgson, 23 Pittsb. L. J. 182 ISl Heritage v. Wilfong, 58 Pa. 137... 452, 574, 586, 599, 615, 623, 625, 641 656 Herr v. Binkley, 1 Del. Co. Rep. 391, 8 Lane. L. Rev. 234 534 Hertzler v. Worman, 1 W. N. C. 153 45 Hess V. Weingartner, 5 Pa. Dist. R. 451 42, 69, 74, 91, 318, SIS' Hess's Estate, 2 Woodw. Deo. 339 307 Hessel v. Johnson, 129 Pa. 173, 5 L. R. A. 851, 15 Am. St. Rep. 716, 18 Atl. 754 263, 388, 390, 392, 393 V. Johnson, 142 Pa. 8, 11 L. R. A. 855, 21 Atl. 794, 129 Pa. 173, 5 L. R. A. 851, 15 Am. St. Rep. 716, 18 AU. 754. .187, 188, 327 Hewitt V. Mcllvain, 10 Pa. Co. Ct. 562 511 Hey V. Bruner, 61 Pa. 87 487, 491, 494^96, 498 V. McGrath, 81* Pa. 310 301, 304, 389, 394 TABLE OF OASES CITED. xlvii Hickey v. Conley, 18 Montg. Co. L. Rep. 124 448, 616 Hiester v. Brown, 11 Lane. Bar, 159 585, 611, 614, 615 liilke V. Eisenbeia, 104 Pa. 514 259, 260 Hill V. Hill, 43 Pa. 528 22, 398 V. Joy, 149 Pa. 243, 24 Atl. 293 74(5 V. Miller, 5 Serg. & K. 355 655 V. Pardee, 143 Pa. 98, 22 Atl. 815 692 V. Sewald, 53 Pa. 271, 91 Am. Dec. 209 487 Hillary v. Rose, 9 Phila. 139 56, 59 Hilton's Appeal, 116 Pa. 351, 9 Atl. .342 36 Hinkson v. Wagner, 3 Pa. Co. Ct. 297 367, 370, 389 Hitchcock V. Bacon, 118 Pa. 272, 12 Atl. 352 352, 360 Hitner v. Ege, 23 Pa. 305 74, 75, 90, 94 Hoban v. Lawall, 3 Lack. Jur. 38 73, 91, 473, 474 Hobbs V. Geiss, 13 Serg. & R. 417 228 Hoeh V. Bass, 126 Pa. 13, 17 Atl. 512 410, 417 V. Bass, 133 Pa. 328, 19 Atl. 360 412, 413, 714 Hoch's Appeal, 126 Pa. 13, 17 Atl. 512 712 Hockenbury v. Snyder, 2 Watts & S. 249 623, 641, 053 Hockley v. McGlinn, 40 Phila. Leg. Int. 279 418 Hodgson's Estate, 158 Pa. 151, 27 Atl. 878 705 Hoeveler v. Fleming, 91 Pa. 322 77, 80, 333, 335, 336, 341 Hoffman v. Hoeekly, 7 Phila. 267 57-3-575, 580 V. Mill Creek Coal Co. 16 Pa. Super. Ct. 631 694 Hohly V. German Reformed Soc. 2 Pa. St. 293 161, 556, 559, 565, 572 Holder v. Hill, 1 Woodw. Dec. 451 586 Holland v. Townsend, 136 Pa. 392, 20 Atl. 794.... 227, 233, 237, 240, 241 242 Hollis V. Brown, 159 Pa. 539, 28 Atl. 360 72, 82, 95 V. Bums, 100 Pa. 206, 45 Am. Rep. 379 307, 308, 476 Holmes, Re, 30 Pittsb. L. J. N. S. 309 80 Holt V. Martin, 51 Pa. 499 29, 227, 541, 646, 654, 656, 657 Holtsman v. Loudensleyer, 1 Pearson (Pa.) 241 531, 533 Hood V. McDonald, 1 W. N. C. 299 47 Hooks V. Forst, 165 Pa. 238, 30 Atl. 846 315, 325, 327, 729, 763, 765 Hoops V. Crowley, 12 Serg. & R. 219 219, 220 Hoover v. Hoover, 10 Pa. Co. Ct. 563 115, 116, 527, 538 Hope's Appeal, 29 W. N. C. 365 683, 708 Hopkins v. McClelland, 8 Phila. 302 438, 439; Horan v. Barrett, 3 Luzerne Legal Obs. 96, 5 Leg. & Ins. Rep. 27 271 Horberg v. May, 153 Pa. 216, 25 Atl. 750 341, 359" Horner v. Watson, 79 Pa. 242, 21 Am. Rep. 55 691, 692 V. Wetherell, 19 W. N. C. 197 547, 597, 609-011, 615 Hosack V. Crill, 18 Pa. Super. Ct. 90, 204 Pa. 97, 53 Atl. 640 082, 683 Hoskins v. Houston, 2 Clark (Pa.) 489 156 157, 169, 171, 172, 178, 179, 281, 284, 289 Hoskinson v. Bradford, 1 Pittsb. 165 102 Hostetter v. Hykas. 3 Brewst. (Pa.) 162 170, 472 xlviii TABLE OF CASES CITED. Houston V. ftpringer, 2 Rawie, 97 95, 93 Howard v. Murphy, 23 Pa. 173 142, 643 Hower v. Krider, 15 Serg. & R. 43 547 Howe Sewing Macli. Co. v. Sloan, 87 Pa. 438, 30 Am. Rep. 376. .199-201, 204 Howell V. M'Coy, 3 Rawle, 256 39 Hoy V. Gronoble, 34 Pa. 9 V. Holt, 91 Pa. 88, 36 Am. Rep. 659 95 Huber v. Baum, 152 Pa. 626, 26 Atl. 101 68, 69, 72, 99 V.Grossman, 14 W. N. C. 157 426 Huey's Appeal, 29 Pa. 219 211 Huff V. McCauley, 53 Pa. 206, 91 Am. Dec. 203 675, 685 Hughes V. Moody, 10 Pa. Co. Ct. 305 400, 404, 423, 420 V. Stevens, 36 Pa. 320 254 Hughs V. Lillibridge, 8 Pa. Dist. E. 358 416-418, 421, 476, 477, 482 Hull V. Delaware & H. Canal Co. (Pa.) 2 Cent. Rep. 786, 4 Atl. 471. . . 711 Hulseman v. Griffiths, 10 Phila. 350 356, 357 Hultz V. Wright, 16 Serg. & R. 345, 16 Am. Dec. 575 44 Humane Engine Co. v. Salvation Army, 18 Montg. Co. L. Rep. 13 . . 405, 426 Hunt V. Scott, 3 Pa. Co. Ct. 411 508, 509, 514 Hunter v. Apollo Oil & Gas Co. 204 Pa. 385, 54 Atl. 274 734 V. Jones, 7 Phila. 233 508, 417, 519 Hurley v. Delaware & H. Canal Co. 6 Pa. Dist. R. 257 694 Huntingdon v. Longaere, 1 W. N. C. 120 368, 371 Huntingdon & B. T. R. Co.'s Appeal, 114 Pa. 166 293 Hutchinson v. Potter, 11 Pa. 472 561, 565, 572 V. Snider, 137 Pa. 1, 20 Atl. 510 747 V. Vanscriver, 6 Phila. 39 607 Hydraulic Works Co. v. Orr, 83 Pa. 332 671 lams V. Carnegie Natural Gas Co. 194 Pa. 72, 45 Atl. 54 752 Iddings V. Equitable Gas Co. 8 Pa. Super. Ct. 244 744, 747 V. Nagle, 2 Watts & S. 22 115-117, 509, 513 Ike V. Westfield, 10 Kulp, 510 2j3 Ingersol v. Gibbons, 1 Browne (Pa. ) 69 139, 259, 262 IngersoU v. Sergeant, 1 Whart. 337 154, 165, 169, 172, 262 Ingram v. Hartz, 48 Pa. 380 255 Inman v. Vandervoode, 1 W. N. 0. 40 400, 426 Irwin v. Mattox, 138 Pa. 466, 21 Atl. 209 12, 14, 459 V. Nolde, 176 Pa. 594, 35 L. R. A. 415, 35 Atl. 217 362 Israel v. Clough, 5 Pa. Dist. R. 325 418, 528 Jack V. Forsyth, 194 Pa. 227, 45 Atl. 50 699 Jackson v. Farrell, 6 Pa. Super. Ct. 31 67, 84 V. Gleaaon, 6 Phila. 307 607 T.O'Hara, 183 Pa. 233, 38 Atl. 624 757, 771 TABLE OF CASES CITED. xlix Jackson's Appeal, 3 Montg. Co. L. Rep. 96, 9 Atl. 306 155, 218, 220 Jacobs V. Haney, 18 Pa. 240 139 Jalass V. Young, 3 Pa. Super. Gt. 422 590-592, 620, 621 James v. Kurtz, 23 Pa. Super. Ct. 304 393 James Smith Woollen Mach. Co. v. Browne, 206 Pa. 543, 56 Atl. 43 . . . 727 Jamestown & P. E. Co. v. Egbert, 152 Pa. 53, 25 Atl. 151 326 731, 733, 749, 757, 765 Janes v. Emery Oil Co. 1 Ponnyp. 242 744, 746, 759 Jaquette's Estate, 1 Chester Co. Rep. 197 297, 327 Jarden v. Lafferty, 19 W. N. C. 144 337 Jenkins v. Stone, 14 Montg. Co. L. Rep. 27 77, 86, 319 Jenks V. Hendley, 6 Phila. 518 418, 430 Jennings v. Bloomfield, 199 Pa. 638, 49 Atl. 135, 204 Pa. 123, 53 Atl. 1127 724, 725, 727, 762 v.McComb, 112 Pa. 518, 4 Atl. 812 25, 26, 31, 32, 34, 125, 302 Jennings Bros. v. Beale, 158 Pa. 283, 27 Atl. 948 686, 688 Jermyn v. Dickson, 3 Luzerne Legal Reg. 106 491, 502 Jimison v. Reifsneider, 97 Pa. 136 187-190, 228, 250-252 Johnson v. Black, 15 Phila. 252, 9 W. N. C. 438 238, 239 V. Blair, 126 Pa. 426, 17 Atl. 663 75, 76 V. Mathues, 4 Del. Co. Rep. 365 43, 69, 70, 73, 92, 94 V. Smith, 165 Pa. 195, 30 Atl. 675 146 Johnson's Appeal, 19 W. N. C. 98 59 Appeal, 115 Pa. 129, 2 Am. St. Rep. 539, 8 Atl. 36 365 Johnston v. Cowan, 59 Pa. 275 32, 686, 710 V. Filer, 201 Pa. 60, 50 Atl. 940 698 V. Smith, 3 Penr. & W. 496, 24 Am. Dec. 339. . 116, 117, 525, 533, 536 Johnstown Iron Co. v. Cambria Iron Co. 32 Pa. 241, 72 Am. Dec. 783. .685 688 Jones V. Forest Oil Co. 194 Pa. 379, 48 L. R. A. 748, 44 Atl. 1074 739 V. Goldbeck, 8 W. N. C. 533 193, 200 V. Gundrin, 3 Watts & S. 531 163 170, 174, 176, 217, 228, 262, 263, 375, 376, 378 V. Kroll, 116 Pa. 85, 8 Atl. 457 24, 301, 307, 464, 583, 624 V. Peterman, 3 Serg. & R. 543, 8 Am. Dec. 672 31, 33, 302 T. Stowell, 42 Phila. Leg. Int. 92 724 V. Strong, 5 Kulp, 7 708 v. Tatham, 20 Pa. 398 641, 643, 648, 660 V. Wagner, 66 Pa. 429, 5 Am. Rep. 385 691 V. Western Pennsylvania Natural Gas Co. 146 Pa. 204, 23 Atl. 386 731, 758 Joyce V. Lynch, 17 W. N. C. 79 411 Juergen v. Allegheny County, 204 Pa. 501, 54 Atl. 281 10 462, 549, 553, 555, 556 Justice V. Nesquehoning Valley R. Co. 87 Pa. 28 488, 491, 497 K. Kaier v. Leahy, 15 Pa. Co. Ct. 243 582 592, 593, 596, 597, 601, 610, 611, 614 1 TABLE OF CASES CITED. Karns t. McKinney, 74 Pa. 387 191, 192, 199, 204, 209, 227, 250, 2.51 V. Moore, 5 Pa. Super. Ct. 381 192 V. Tanner, 66 Pa. 297 738, 756, 7ii2 Kauffman v. Schaeffer, 2 Walk. (Pa.) 331 115, 117, M>< Keating v. Condon, 68 Pa. 75 328, 364, 586, 620, 622, 623, 625, 020 Keck V. Bieber, 148 Pa. 645, 33 Am. St. Pep. 846, 24 Atl. 170 370, 680 Kellam v. Janson, 17 Pa. 467 303, 543 Kelley v. Bogue, .1 Phila. 91 471 Kelly V. Dayenpoj-t, 1 Browne (Pa.) 231 137. 222 V. Donoliue, 1 W, N. C. 299 320, 327 V. Duffy (Pa.) 11 Atl. 244 74, 95 V. Gilmore, 1 W. N. C. 73 449 V. Loehr, 1 Brewst. (Pa.) 303 472, 599, 625 V. Marshall, 172 Pa. 396, 33 Atl. 690 722 v. Northrop, 159 Pa. 537, 28 Atl. 364 428 V. Philadelphia Riding Club, 2 W. N. C. 584 430 Kelsey v. Turtelotte, 59 Pa. 184 27 Kemble v. Graff, 6 Phila. 402 409, 413 Kemble Coal & I. Co. v. Scott, 90 Pa. 332 2 358, 648, 677, 683, 702. 703 V. Scott, 15 W. N. C. 220 358, 648, 702, 704 Kemp's Estate, 34 Pittsb. L. J. 82 297 Kendig v. Kendig, 3 Pittsb. 287 275 Kenege v. Elliott, 9 Watts, 258 169 Kennedy v. Canavan, 2 W. N. C. 226 395 V. Crawford, 138 Pa. 561, 21 Atl. 19 758 V. Duggan, 23 Pa. Co. Ct. 625 54, 135 V. Duggan, 200 Pa. 284, 49 Atl. 781 65 V. Forest Oil Co. 199 Pa. 644, 49 Atl. 133 724 V. Whalen, 5 Kulp, 35 641, 651, 652, 655, 660 Kenny's Appeal, 22 W. N. C. 89, 12 Atl. 589 489, 494, 502 Kenrick v. Smick, 7 Watts & S. 41 411, 412 Kensil v. Chambers, 5 Phila. 64 192 Keppel V. Lehigh Coal & Nav. Co. 200 Pa. 649, 50 Atl. 302 694 Ker V. Hunt, 1 W. N. C. 115 47, 321 Kern v. Coyle, 12 Phila. 227 602 Kerper v. Booth, 10 W. N. C. 79 148, 322 Kerr v. Day, 14 Pa. 112, 53 Am. Dec. 526 9, 384, 523 V. Sharp, 14 Serg. & R. 399 183, 209, 228, 235, 241. 256 Kershaw v. Supplee, 1 Rawle, 131 92, 329, 330 Kessler v. M'Conachy, 1 Rawle, 435. . .192, 198, 209, 211, 259, 260, 341, 34:f Kiefaber v. Armour, 10 Pa. Dist. R. 383 152 Kier v. Peterson, 41 Pa. 357 674, 678, 72.". Kicster v. Miller, 25 Pa. 481 314-316, 318, 325, 326 Kile V. Giebner, 114 Pa. 381, 7 Atl. 154 • 10, 365, 487, 494, 497 Kille V. Reading Iron Works, 141 Pa. 440, 21 Atl. 666 674, 675 Killeen v. Haddock, 4 Kulp, 408 583, 590, 593, 608, 610, 612, fiUi Killion V. Power, 51 Pa. 429, 91 Am. Dec. 127 105, 671 TABLE OF CASES CITEU' ,U; King V. Blfickniore, 72 Pa. 347, 13 Am. Rep. 684 ... , , . . . . 183-185, 267 V. Bosserman, 13 Pa. Super. Ct. 480 11, 112, 531, 538 Kingsley v. Hillside Coal & I. Co. 144 Pa. 613, 23 Atl. 250 683 Kister v. Remsen, 1 W. N. C. 507 391, 392 Kistler v. Thompson, 158 Pa. 139, 27 Atl. 874 692 Kitchen v. Smith, 101 Pa. 452 HI, 677, 719, 725, 727 Klapp V. Kleckner, 3 Watts & S. 519 55 Kleber v. Ward, 88 Pa. 93 193 Kleckner v. Klapp, 2 Watts & S. 44 55 Kleeman v. Kemmerer, 3 Kulp, 481 104 Klein v. JleFarland, 5 Pa. Super. Ct. 110 158, 223 Kleppner v. Lemon, 176 Pa. 502, 35 Atl. 109 737, 745, 749, 750 Kline v. Jacobs, 68 Pa. 57 17, »9, 74, 94, 121, 123, 125, 128, 130, 133 V. Johnston, 24 Pa. 72 641 V. Lukens, 4 Phila. 296 239, 243, 284 Knauss v. Brua, 107 Pa. 8.5 668, 669 Knerr v . Bradley, 105 Pa. 190 136, 329 Knupp V. Bright, 186 Pa. 181, 40 Atl. 414 732, 747, 748 Koch'.s Appeal, 93 Pa. 434 GSO Koenig v. Bauer, 57 Pa. 168 618-620, 627, 628 Koons V. Steele, 19 Pa. 203 329, 330 Koontz V. Hammond, 62 Pa. 177 582-585 589, 598, 599, 619, 621, 623, 625, 641, 651, 656 Korn V. Hohl, 80 Pa. 333 53 Kost V. Theis, 20 W. N: C. 545, 10 Cent. Rep. 845, 12 Atl. 262 172 262, 263, 530 Kraber's Appeal, 2 York Legal Record, 55 703 Kraft V. Wolf, 6 Phila. 310, 24 Phila. Leg. Int. 212 590, 610 Krause's Appeal, 2 Whart. 398 8, 11, 36« Krauss v. McGlone, 3 W. N. C. 272 55, 56 Kreiter v. Hammer, 1 Pearson (Pa.) 559 182, 184, 275, 277 Kreutz v. JlcKnight, 53 Pa. 319 399, 402, 412, 413, 416, 713 Krider v. Laflferty, 1 Whart. 303 10 Krohn v. Wolf, 7 Del. Co. Rep. 420 69, 83 V. Wolf, 7 Northampton Co. Rep. 18 69, 340 Krueger v. Rutledge, 2 Kulp, 371 605, 623 Kugel V. Painter, 166 Pa. 592, 31 Atl. 338 460 Kunkle v. People's Natural Gas Co. 165 Pa. 133, 33 L. R. A. 847, 30 Atl. 719 147, 643, 701, 719, 751 V.Philadelphia Rifle Club, 10 Phila. 52 18, 20, 364 L. Ladomus v. McCormiek, 5 Del. Co. Rep. 147 40, .Soli Laguerenne v. Dougherty, 3.5 Pa. 45 477 Lake Erie Gas Coal & C. Co.. v. Patterson, 184 Pa. 364, 39 Atl. 68 710 Lamberton v. Stouffer, 55 Pa. 284 533, 535-537 Lancaster v. Flowers, 11 Pa. Dist. R. 495 I7 lii TABLE OF CASES CITED. Lance v. Lehigh & W. B. Coal Co. 163 Pa. 84, 29 Atl. 755 689 690, 699, 707 Landell v. Hamilton, 175 Pa. 327, 34 L. R. A. 227, 34 Atl. 663 375 Lane v. Nelson, 167 Pa. 602, 31 Atl. 864 Ill 305, 307, 308, 311, 318, 319, 321, 323, 325 V. Nelson, 2 Pa. Dist. E. 18 135 V. Steinmetz, 9 W. N. C. 574 188, 200 V. Washington Hotel Co. 190 Pa. 230, 42 Atl. 697 209, 286, 295 Laney's Estate, 14 Pa. Co. Ct. 4 04 Lanigan v. Kille, 97 Pa. 120, 39 Am. Rep. 797 333 359-362, 700, 701 Lansdale v. Richardson, 1 W. N. C. 413 44 Lapsley v. Fifth Avenue Nat. Bank, 30 Pittsb. L. J. N. S. 271 593 Lardner v. Mutual L. Ins. Co. 32 W. N. C. 62 258, 261 Latimer v. Groetzinger, 139 Pa. 207, 21 Atl. 22.... 155, 167, 169, 176, 262 Law's Estate, 20 Phila. 10 532, 533, 535 Lazarus's Estate, 145 Pa. 1, 23 Atl. 372 083, 708 Lea V. Love, 14 W. N. C. 75 6 Leaming's Appeal, 5 W. N. C. 221 272 Leatherman v. Oliver, 151 Pa. 646, 25 Atl. 309 743, 758 Lebanon School Dist. v. Lebanon Female Seminary, 22 W. N. C. 65 . . 64 1 647, 652, 661 Lee V. Dean, 3 Whart. 316 540 Leese v. Home, 30 Pittsb. L. J. N. S. 316 605 Lefever v. Armstrong, 15 Pa. Super. Ct. 565 • 727 Leffingwell v. Wilkes-Barre, 4 Kulp, 494 616 Lehigh & W. B. Coal Co. v. Wright, 177 Pa. 387, 35 Atl. 919 683, 706 Lehigh Coal & Nav. Co. v. Harlan, 27 Pa. 429 678, 716 Lehigh Coal Co. v. Wilkes-Barre & E. R. Co. 187 Pa. 145, 41 Atl. 37. . . 688 Lehigh Valley Coal Co. v. Everhart, 206 Pa. 118, 55 Atl. 864 702 V. Wilkes-Barre & E. R. Co. 8 Kulp, 540 683 Lehr v. Taylor, 90 Pa. 381 115, 119 Leibert v. Baker, 1 Northampton Co. Rep. 333, 3 Del. Co. Rep. 557. . . 178 Leidich's Estate, 161 Pa. 451, 29 Atl. 89 207, 275, 290 Leidy v. Proctor, 97 Pa. 490 543 Leinbach v. Kaufman, 2 Walk. (Pa.) 515 43.3, 4.39, 446, 448, 594 Lemar v. Miles, 4 Watts, 330 487, 492, 494-496 Lengert Co. v. Bellevue Bldg. & L. Asso. 15 Pa. Super. Ct. 380 170 182, 205, 227, 229, 232, 257 Lentz V. Schaflfer, 3 Hazard Penn. Reg. 410 562 Leon V. Groswith, 2 W. N. C. 535 373, 374 Lerew v. Rinehart, 3 Pa. Co. Ct. 50 11, 365 Lesley v. Randolph, 4 Ra,wle, 123 300, 301, 304, 305, 308 Lewin v. Acheson, 30 Pittsb. L. J. N. S. 215 275 V. Pauli, 19 Pa. Super. Ct. 447 71, 105 Lewis V. Bradford, 10 Watts, 67 28 V. Effinger, 30 Pa. 281, 32 Pa. 367 464 V. Jones, 17 Pa. 262, 55 Am. Dec. 550 503, 505, 506 TABLE OF CASES CITED. liii Lewis's Appeal, 66 Pa. 312 171, 176, 177, 179, 278, 281, 288, 290 Liehtenthaler v. Thompson, 13 Serg. & R. 157, 15 Am. Dec. 581 62 269, 278, 284, 286 Liggett V. Shira, 159 Pa. 350, 28 Atl. 218 757 Lightner v. Axe, 3 Del. Co. Rep. 110 59 Lillibridge v. Lackawanna Coal Co. 143 Pa. 293, 13 L. R. A. 627, 24 Am. St. Rep. 544, 22 Atl. 1035 682, G90 Limbert v. Jones, 118 Pa. 589, 12 Atl. 584 419, 423, 430 V. Jones, 136 Pa. 31, 19 Atl. 956 582 Linton v. Hart, 25 Pa. 193, 64 Am. Dec. 691 165 341-343, 348, 53«, 540 Lipper v. Bouvg, 6 Pa. Super. Ct. 452 142, 318, 321, 463, 469, 472: Lippincott v. Cooper, 19 W. N. C. 130 139 Little Schuylkill Nav. R. & Coal Co. v. Richards, 57 Pa. 142, 98 Am. Dec. 209 692 Livingood v. Moyer, 2 Woodw. Dee. 65 599, 608, 609, 612 Lloyd V. Cozens, 2 Ashm. (Pa.) 131 30O 304, 367, 385, 386, 388, 555, 557, 561-563 V. Underkoffer, 1 Legal Rec. Rep. 8 212 Lobach v. Breisch, 8 Northampton Co. Rep. 193 315, 376, 387 Lockard v. Robbins (Pa.) 7 Cent. Rep. §65, 10 Atl. 120 38, 375 Lockwood V. MeNamara, 6 W. N. C. 367 42 Loftus V. Corles, 9 W. N. C. 333 58 Logan V. Herron, 8 Serg. & R. 459 304, 308, 309, 544, 554, 555, 562, 563 V. Quigley (Pa.) 10 Cent. Kep. 403, 11 Atl. 92 544, 641 Loley V. Heller, 1 W. N. C. 613 47 Lomis V. Ruetter, 9 Watts, 516 67, 70, 13.j Long V. Fitz.simmons, 1 Watts & S. 530 74 93, 94, 101, 115, 118, 121, 642-644, 648 V. Seavers, 103 Pa. 517 116, 531, 53<) V. Swavely, 1 Just. 75 596, 611 T. Swavely, 1 Phila. 518 446 V.Wood, 22 Pittsb. L. J. 93 360, 391, 392, 403, 404, 406, 698 Longmore v. Tiernan, 3 Pittsb. 62 109 Longstreth v. Pennock, 9 Phila. 394 294 Loose V. Scharff, 6 Pa. Super. Ct. 153 119, 612, 532, 536 Loran's Estate, 10 Pa. Co. Ct. 554 31, 32, 34, 302, 303, 305, 306, 328 Loughlin v. Carey, 21 Pa. Super. Ct. 477 98 Lowenstein v. Helfrich, 7 Kulp, 533 258-260 v. Keller, 3 Kulp, 361 599, 605, 623, 624 Lower v. Hummel, 21 Pa. 450 138 Lowry v. Evans, 2 Lack. Jur. 43 274 V. Hay, 2 Walk. (Pa.) 239 691, 692 Luck V. Luck, 113 Pa. 256, 6 Atl. 142 17 Lukens v. Hedley, 1 W. N. C. 266 72, 73 Lutz V. Browne, 10 Pa. Dist. R. 355 263 v. Haley, 10 Montg. Co. L. Rep. 18 672 V. Wainwright, 193 Pa. 541, 44 Atl. 565 472, 586, 620, 623, 626 liv TABLE OF CASES CITED. Lutz's Appeal, 124 Pa. 273, 16 Atl. 8.58 234 Lykens Valley Coal Co. v. Dock, 62 Pa. 232 132, 431, 679, G88 Lyle V. Richards, 9 Serg. & R. 322 398 Lynch v. Burford, 201 Pa. .52, 50 Atl. 228 721 V.Versailles Fuel Gas Co. 165 Pa. 518, 30 Atl. 984 748 ^ 7.39-762 Lynn's Appeal, 31 Pa. 44, 72 Am. Dec. 721 687 Lyon V. Houk, 9 Watts, 193 166, 180, 184, 191, 244, 376, 525, 533 V. Miller, 24 Pa. 392 46, 696, 697, 699 M. Maberry v. Dudley, 2 Pennyp. 367 76, 81, 99 McAnniny v. Miller, 19 Pa. Super. Ct. 406 113 McBride v. Daniels, 92 Pa. 332 102 McBrier v. Marshall, 126 Pa. 390, 17 Atl. 647 462, 46.3, 468. 474 McCaflferty v. Griswold, 99 Pa. 270 3. 5. 6, 35 McCahn v. Wharton, 121 Pa. 424, 6 Am. St. Rep. 799, 15 Atl. .")7;V ... 703 M'Call V. Lenox, 9 Serg. & R. 302 .328. 529 McCanna v. Johnston, 19 Pa. 434 309, 479, .544 McCarroll v. Clements, 2 W. N. C. 305 311, 483 McCarthy v. Sykes, 7 Pa. Dist. R. 243 433, 437, 441-443. 446 McCarty v. Mellon, 5 Pa. Dist. R. 425 7iS. 7iiO, 76i McClane v. People's Light & Heat Co. 178 Pa. 424, 35 Atl. 812 7.34 McClaren v. Citizens' Oil & Gas Co. 14 Pa. Super. Ot. 167 380 384, 390, 770, 771 McClay v. Western Pennsylvania Gas Co. 201 Pa. 197, 50 Atl. 978 7.51 754. 767 McCIeary v. Allen, 2 Penr. & W. 144 324, 355 McClelland v. Patterson (Pa.) 5 Cent. Rep. 734, 10 Atl. 475 586 587, 599, liOO. 602. 603 V. Rush, 150 Pa. 57, 24 Atl. 354 463, 46.5. 460 McClintock v. Dana, 106 Pa. 386 70S V. Loveless, 5 Pa. Dist. R. 417 2,5.418 McCIoskey v. Miller, 72 Pa. 151 127 V. Wiltbank, 1 W. N. C. 413 72. S2 McCloud V. Jaggers, 3 Phila. 304 438 M'Clowry v. Croghan, 31 Pa. 22 3-5 McClung V. Price, 59 Pa. 420, 98 Am. Dec. 356 344 M'Clure v. M'Clure, 1 Grant Cas. 222 111. 130, 139. 140 A . White, Addison (Pa.) 192 564 McClurg V. Price, 59 Pa. 420, 98 Am. Dec. 356 S7 McComb's Appeal, 43 Pa. 435 1 87-1 SO, 2S1 . 2S2. 2SS, 2S9 McConnell v. Lawrence Natural Gas. Co. 30 Pittsb. L. J. X. S. :?46. . 751 763 McCormick v. Connell, 6 Serg. & R. 151 416 V. Sidles, 163 Pa. 590, 30 Atl. 195 117 M'Coy V. Scott, 2 Rawle, 222, 19 Am. Dec. 640 525 TABLE OF CASES CITED. Iv MeCullough V. Irvine, 13 Pa. 438 406 M'Curdy v. Randolph, 2 Clark (Pa.) 323 169, 263 McDermott v. Crippen, 5 Law Times N. S. 109 365 V. McIIwain, 75 Pa. 341 433, 439, 448, 594 McDonald >■. Gifford, 6 Phila. 315 6ir> V. O'Neil, 21 Pa. Super. Ct. 364 719, 750, 754, 7«!l McDowell V. Addams, 45 Pa. 430 525 V. Shotwell, 2 Whart. 26 214 V. Simpson, 3 Watts, 129, 27 Am. Dec. 338 28, 31-34, 302 McElroy v. Dice, 17 Pa. 163 155, 156, 227, 245-247, 250, 251, 255, 257 McEhvaine v. Brown (Pa.) 9 Cent. Rep. 789, 11 Atl. 453 686, 727 JIcGeary v. Mellor, 87 Pa. 461 194 V.Raymond, 17 Pa. Super. Ct. 308 183, 193, 196, 197, 228, 265 McGee v. Fessler, 1 Pa. St. 126 555, 558, 559, 565, 572 McGinnis v. Thompson, 29 Pittsb, L. J. 336 369 V. Vernon, 67 Pa. 149 594, 597, 602, 606, 608-610 M'Glinsey's Appeal, 14 Serg. & R. 64 120 McGowen v. Sennett, 1 Brewst. f Pa. ) 397 580 McGrath v. Donally, 6 Phila. 43 608, 609 McGregor v. Haines, 6 Phila. 62 586, 600 V. Rawle, 57 Pa. 184 309, 544 M'Gunnagle v. Thornton, 10 Serg. & 1"!. 251 28, 123 ileHugh V . Malony, 4 Phila. 59 207 Mellvaine v. Souders, 15 Lane. L. Rev. 371 511, 514 McKay v. Pearson, 6 Pa. Super. Ct. 529 508, 513-51.J McKee v. Colwell, 7 Pa. Super. Ct. 607 723, 729, 763, 770 V. Pfout, 3 Dall. 486, 1 L. ed. 690 398 McKeeby v. Webster, 170 Pa. 624, 32 Atl. 1096 508, 511 McKenna v. Martin & W'm. H. Nixon Paper Co. 176 Pa. 306, 35 Atl. 131 670 McKeon v. King. 9 Pa. 213 435, 436, 439, 447, 448 Mackey v. Robinson, 12 Pa. 170 123, 126, 129, 135 M'Kim's Estate, Re, 2 Chark (Pa.) 224 297 M'Kinney v. Reader, 6 Watts, 34 156, 212, 230, 232-234, 250, 2.52, 250 V. Reader, 7 Watts, 123 315 McKnight v. Kreutz, 61 Pa. 232 404, 413, 696, 711, 712 V. Manufacturer's Natural Gas Co. 146 Pa. 185, 28 Am. St. Rep. 790, 23 Atl. 164 745, 743 V. Rateliff, 44 Pa. 156 694 McLaughlin v. McGee, 79 Pa. 217 600 V. Zeidler, 13 Pa. Co. Ct. 47 42.S McLean v. McCaffrey, 3 Pennyp. 406 235, 230 McMichael v. McFalls, 17 Lane. L. Rev. 279, 7 Northampton Co. Rep. 66 451 V. McFalls, 23 Pa. Super. Ct. 256 450 McMillan v. Graham, 4 Pa. 140 548, .566, 568, 570, 571 -V. Philadelphia Co. 159 Pa. 142, 28 Atl. 220 723, 758 MeJIulIen v. Orr, 8 Phila. 342 550, 552, 568, 574, 580 Ivi TABLE OF CASES CITED. McMullin V. McCreary, 54 Pa. 230 637-039 MeNamee v. Cresson, 3 W. N. C. 450 60, 62, 185, 267, 474 McNish V. Stone, 152 Pa. 457, 23 Pittsb. L. J. N. S. 232 723 729, 744, 755 McQuestney v. Hiester, 33 Pa. 435 Ill MeVieker v. Dennison, 45 Pa. 390 81 Maffet's Estate, 8 Kulp, 184 683, 708 Magaw V. Lambert, 3 Pa. St. 444 77, 78, 315, 335 Mahon v. Luzerne County, 197 Pa. 1, 46 Atl. 894 17 V. Morton, 175 Pa. 279, 34 Atl. 660 17 Mair's Estate, 12 Phila. 2 449 Maitland v. Wilcox, 17 Pa. 231 2, 122, 123, 146 Makinson, Ee, 8 Phila. 381 HI Maloney v. White, 24 Pa. Co. Ct. 23 422 Maloy's Estate, 1 Del. Co. Rep. 331 293, 295 Mammoth Vein Consol. Coal Co.'s Appeal, 54 Pa. 183 694 Manderbach v. Bethany Orphans' Home, 109 Pa. 231, 2 Atl. 422 108 Manley v. Dupuy, 2 Whart. 162 148, 306, 324, 374, 390 Mannerbaeh v. Keppleman, 2 Woodw. Dec. 137 77, 152, 315, 335, 363 Manuel v. Reath, 5 Phila. 11 155, 172, 173, 180, 263, 392 Market Co. v. Lutz, 4 Phila. 322 349, 529 Marks v. Russell, 40 Pa. 372 235 Marlatt v. Marlatt, 4 Pennyp. 91 127, 128 Marseilles v. Kerr, 6 Whart. 500 122, 318 Marsh v. Nelson, 101 Pa. 51 35 Marshall v. Forest Oil Co. 198 Pa. 83, 47 Atl. 927 399 744, 747, 751, 755, 759, 760, 763 V. Mellon, 179 Pa. 371, 35 L. R. A. 816, 57 Am. St. Rep. 601, 36 Atl. 201 709, 725 Marsteller v. Marsteller, 132 Pa. 517, 19 Am. St. Rep. 604, 19 Atl. 344 435, 447, 4C4, 455, 352 Martin t. Berens, 67 Pa. 459 45, 80 Martin's Appeal, 2 Pa. Super. Ct. 67 540 Appeal, 5 Watts & S. 220 273, 276, 288-290 Marys v. Anderson, 24 Pa. 272, 2 Grant Cas. 446 112 131, 134, 156, 458, 532, 533, 535, 53ft Mather v. Wood, 12 Pa, Co. Ct. 3 222 Mathews t. People's Natural Gas Co. 179 Pa. 165, 36 Atl. 210 T.iS 761,704 Matthews v. Rising, 31 Pittsb. L. J. N. S. 163 299, 393 Matthews's Appeal, 104 Pa. 444 051 Mattocks V. CuUum, 6 Pa. 454 70 Maule V. Ashmead, 20 Pa. 482 333, 356, 359, 300 Maull V. Lowery, 1 W. N. C. 169 130, 137 JIaxwell V. Perkins, 93 Pa. 255 439, 44.-1-44S May V. Hazelwood Oil Co. 152 Pa. 518, 25 Atl. 564 744, 761, 763, 704 V. Kendall, 8 Phila. 244 556, 557, 565, 566, 569 Mayberry v. Dudley, 2 Pennyp. 367 335 TABLE OF CASES CITED. Ivii Mayfield v. White, 1 Browne (Pa.) 241 225 Mays V. Dwight, 82 Pa. 462 739 Meadville v. Boush, 92 Pa. 327 23 Meason V. Philips, Addison (Pa.) 346 115, 118 Medary v. Cathers, 161 Pa. 87, 28 Atl. 1012 63, 64, 74, 94 Meek v. Frantz, 171 Pa. 632, 33 Atl. 413 55, 59, 64 Megarge v. Tanner, 1 Clark (Pa.) 331 271, 280, 287 Megargee v. Longaker, 10 Pa. Super. Ct. 491 311, 337, 469, 473, 474 Meigs's Appeal, 62 Pa. 28, 1 Am. Rep. 372 483 Menough's Appeal, 5 Watts & S. 432 112, 527, 529, 531, 535 Mercer Min. & Mfg. Co. v. McKee, 77 Pa. 170 698 Merkel's Estate, 131 Pa. 584, 18 Atl. 931 525, 676, 708 Merrill v. Trimmer, 2 Pa. Co. Ct. 49 113, 159, 274, 281 Metz's Estate, 1 Legal Record Rep. 201 129 Mickle V. Miles, 31 Pa. 20 107, 174, 175 Mihlvauer v. Infantry Corps, 205 Pa. 180, 54 Atl. 776, Affirming 10 Pa. Dist. R. 585 16, 18 Mill Creek Coal Co. v. Androkus, 2 Pa. Dist. R. 764 583 593, 608, 610-612 Miller v. Chester Slate Co. 129 Pa. 81, 18 Atl. 565 401, 412, 712 V. Clement, 40 Pa. 484 507, 510-512, 515 V. Frees, 1 Woodw. Dec. 409 609 V. Fretts, 25 Pa. Co. Ct. 669 341 V. Keller, 1 W. N. C. 27 53, 58 V. Lankard, 1 Pittsb. 75 108 V. Logan, 31 Pittsb. L. J. N. S. 217 751, 758 T. M'Brier, 14 Serg. & R. 382 22, 645, 649, 650, 663 T. Neidzielska, 176 Pa. 409, 35 Atl. 225 423, 427 V. Peters, 1 Lack. Jur. 23 260 V.Rankin (Pa.) llAtL615 390 Milling V. Becker, 96 Pa. 182 142, 301, 319, 322, 325, 320 Mine Hill & S. H. R. Co. v. Lippincott, 86 Pa. 468 692 V. Zerbe, 2 Walk. (Pa.) 409 687 Miners' Bank v. Heilner, 47 Pa. 452 108, 700 Minnig v. Sterrett, 7 Pa. Co. Ct. 73 271, 272, 290 Mintzer v. Greenough, 192 Pa. 137, 43 Atl. 465 667, 669 Mitchell V. Coates, 47 Pa. 202 138, 212 V. Com. 37 Pa. 187 19, 21 V. Stewart, 13 Serg. & R. 295 291 Moderwell v. Mullison, 21 Pa. 257 29, 30, 643, 644, 646 Mogg V. Stone, 4 Del. Co. Rep. 170 439, 441, 445, 446 Mohan v. Butler, 112 Pa. 590, 4 Atl. 47 435, 450, 453, 455, 641, 648, 655 Montooth V. Gamble, 123 Pa. 240, 16 Atl. 594 683, 696, 710 Moody T. Alexander, 145 Pa. 571, 23 Atl. 161 726 Mooney v. Reynolds (Pa.) 12 Atl. 481 140, 141 V. Rogers, 8 Phila. 297 638, 639 Moore v. Gardiner, 161 Pa. 175, 28 Atl. 1018 75, 82, 91 V.Logan Iron & Steel Co. (Pa.) 4 Cent. Rep. 505, 7 Atl. 198.. 670 ^Iviii TABLE OF CASES CITED. Moore v. Miller, 8 Pa. 272 18, 301, 07.7 V.Weber, 71 Pa. 429, 10 Am. Rep. 708 68, 69, 71, 7.5, 3S4, 300' Morgan v. Bloecker, 6 Pa. Dist. R. 659 » V. Luzerne Lodge, 5 Kulp, 512 316, ?>2i V. Moody, -6 Watts & S. 333 27u, 281, 283, 28ft V. Negley, 3 Pittsb. 33 377, 393, 502 V. Yard, 12 W. N. C. 449 379 Morgan's Estate, 1 Pa. Dist. R. 402 168 Estate, 11 Pa. Co. Ct. 536 297, 29S Morris v. Billings, 1 Phila. 464 270, 272 V. Guffey, 188 Pa. 534, 41 Atl. 731 50, 720, 734 V.Parker, 1 Ashm. (Pa.) 187 155, 156, 217, 220, 221, 29.5, 366 V. Shakespeare (Pa.) 12 Atl. 414 42 Morrison v. Gross, 1 Browme ( Pa. ) 1 254 Mortimer v. O'Reagan, 10 Phila. 500, 1 Legal Chronicle, 129 58a Moss's Appeal, 35 Pa. 162 157, 169, 173, 176, 177, 273, 285, 286, 288 Moulson's Estate, 1 Brewst. (Pa.) 296 17.3,214 Moyers v. Tiley, 32 Pa. 267 401, 412, 712 Mozart Bldg. Asso. v. Friedjen, 12 Phila. 515, 5 W. N. C. 318 128 Muhlenberg v. Henning, 116 Pa. 138, 9 Atl. 144 703 Muller V. Bohringer, 3 Pa. Co. Ct. 144 400, 41.'5 MuUer's Estate, 16 Phila. 321 302, 466, 476, 479 Mullin's Appeal (Pa.) 2 Cent. Rep. 843, 5 Atl. 738 548, 5.50, 551, 556 Mund V. Vanfleet, 2 Phila. 41 629, 632, 634-636 Munroe v. Armstrong, 96 Pa. 307 757, 758 Murphy v. Borland, 92 Pa. 86 187, 189, 192 V. Cawley, 7 Kulp, 128 529, 530 V. Chase, 103 Pa. 260 227, 230, 237, 241 v. Losch, 148 Pa. 171, 23 Atl. 1059 326 V. Marshell, 179 Pa. 516, 36 Atl. 294 151 157, 184, 233, 339, 341, 343, 402, 425 V. Rementer, 7 Del. Co. Rep. 203, 15 Lane. L. Rev. 270. .192, ino, 217 Murry v. Vaughn, 2 Dauphin Co. Rep. 354 225 Mutter V. Shackman, 28 Pittsb. L. J. 51 260 Myers v. Esery, 134 Pa. 117, 19 Atl. 488 193, 199 V. Hulseman, 3 W. N. C. 487 62, 18.5, 207 V. Kingston Coal Co. 126 Pa. 582, 17 Atl. 891 30 464, 465, 07G, i;78 V. Loveland, 10 Kulp, 289 70(1 Myers's Appeal, 16 W. N. C. 137 30 N. Naglee v. Ingersoll, 7 Pa. 185 Ill, 3.54 Nailor v. Skelly, 1 Chester Co. Rep. 408 279-28 1 Napier v. Darlington, 70 Pa. 64 :>, 384 Nass V. Winpemiy, 9 W. N. C. 542 202, 261 National Oil Ref. Co. v. Bush, 88 Pa. 335 126, 128. 131, 4S0, 481 TABLE OF CASES CITED. Gi Kational Pub. Asso. v. Shupe & N. Furniture Co. 18 W. N. C. 379 404 413, 417, 420, 426 Neel V. Neel, 19 Pa. 323 687 Negley v. Morgan, 46 Pa. 281 112, 381, 382, 385 Nehr v. Krewsberg, 187 Pa. 53, 40 Atl. 810 428, 642 Neill V. Shamburg, 158 Pa. 263, 27 Atl. 992 720, 729 Nelson V. Eachel, 158 Pa. 372, 27 Atl. 1103 744 V. Hoch, 14 Phila. 655 691, 693 V. Miller, 1 Legal Record Rep. 187 691 Xesbit V. Godfrey, 155 Pa. 251, 25 Atl. 621 459, 710, 764 Neumoyer v. Andreas, 57 Pa. 446 552-555, 558, 573-575, 578-580, 084, 688 Newbold v. Comfort, 2 Clark (Pa.) 331 524, 525 Newell V. Gibbs, 1 Watts & S. 496 544, 554, 556, 557, 573, 577, 578-580, 641, 657 Newell's Appeal, 100 Pa. 513 329 Newlin v. Brinton, 1 Chester Co. Rep. 233 127 V. Palmer, 11 Serg. & R. 98 057 Newman v. Rutter, 8 Watts, 51 398-400, 404, 650 Nickols V. Jones, 166 Pa. 599, 31 Atl. 329 Ill, 140 Noble V. Becker, 3 Brewst (Pa.) 550 387, 389, 390 V. Warren, 38 Pa. 340 338, 339, 343 Nogle V. Cumberland Ore Bank Co. 1 Chester Co. Rep. 491 293 Noll V. Kline, 1 Del. Co. Rep. 101 293 V. Kline, 2 York Legal Record, 118 19 Noonan v. Pardee, 200 Pa. 474, 55 L. R. A. 410, 86 Am. St. Rep. 722, 50 Atl. 255 09.> Norman v. Wells, 17 Wend. 136 STii Norris v. Gould, 15 W. N. C. 187 17, 131 Northampton County's Appeal, 30 Pa. 305 31, 227, 22.S No. 2 Assistance Bldg. & L. Asso. v. Wampole, 6 Pa. Super Ct. 238. . . 524 527, 52S O. Oakford v. Nirdlinger, 196 Pa. 162, 46 Atl. 374 20, 60, 304, 312 V. Nixon, 177 Pa. 76, 34 L. R. A. 575, 35 Atl. 588 334, 354 Obermyer v. Nichols, 6 Binn. 159, 6 Am. Dec. 439 67, 83, 87, 111 O'Brien v. Hamilton, 12 Phila. 387 293 O'Donnel v. Seybert, 13 Serg. & R. 54 192, 194, 198, 252, 253 O'Donnell v. Luskin, 12 Montg. Co. L. Rep. 109 687 Offerman v. Starr, 2 Pa. St. 394, 44 Am. Dee. 211 19, 692 Ogdeu V. Hatry, 145 Pa. 640, 23 Atl. 334 743, 758 V. Offerman, 2 Miles (Pa.) 40 317, 321 Oil Creek & C. Branch Petroleum Co. v. Stanton Oil Co. 23 Pa. Co. C^t. 153 109, 371, 377, 379, 384, 394, 679, 680, 763, 768 O'Kie V. Depuy, 3 Pa. Co. Ct. 140 606, 625, 628 Oliver v. Brophy, 18 W. N. C. 427 406 O'Neal V. Sneeringer, 12 York Legal Record, 141 300, 471 Ix TABLE OF CASES CITED. O'Neill V. Cahill, 2 Brewst. (Pa.) 357 303,437,456, 561 Oram's Estate, 5 Kulp, 423 19, 269, 275, 687 Osborne's Estate, 5 Whart. 267 195, 295 Overdeer v. Lewis, 1 Watts & S. 90, 37 Am. Dec. 440.. 302, 308, 480, 543 Overton v. Williston, 31 Pa. 155 495, 497, 501 Owens V. Shovlin, 116 Pa. 371, 9 Atl. 484.... 113, 154, 158, 217, 218, 222 P. Page V. Middleton, 118 Pa. 546, 12 Atl. 415 199, 203, 261 Palethorp v. Bergner, 52 Pa. 149 101 V. Schmidt, 12 Pa. Super. Ct. 214 433, 435, 450, 451 Palmer v. Truby, 136 Pa. 556, 20 Atl. 516 677, 741, 760, 767 Palmore v. Morris, 182 Pa. 82, 61 Am. St. Rep. 693, 37 Atl. 995 669 Pancoast v. Coon, 20 W. N. C. 89 50 Pancoast's Appeal, 8 Watts & S. 381 Ill Pantall v. Rochester & P. Coal & I. Co. 204 Pa. 158, 53 Atl. 751 693 Park Coal Co. v. Cummings, 2 Law Times, 0. S. 121 690 Parker's Appeal, 5 Pa. 390 209, 278 Parsons v. Roumfort, 2 Pearson (Pa.) 81 304, 58:) Patterson v. Hausbeck, 8 Pa. Super. Ct. 36 715, 718, 760 V. Park, 166 Pa. 25, 30 Atl. 1041 470 V. Pyle, 1 Monaghan (Pa.) 351, 17 Atl. 6 419, 422 V. Silliman, 28 Pa. 304 373, 680, 686 Pattison v. M'Gregor, 9 Watts & S. 180 286 Pearee v. Bridgewater Gas Co. 28 Pittsb. L. J. N. S. 171 733, 730 Pearson v. Priedensville Zinc Co. 1 Pa. Co. Ct. 660 504-506, 519 Peirce v. Peirce, 199 Pa. 4, 48 Atl. 689 125, 131, 134, 141 Penn v. Divellin, 2 Yeates, 309 544 Pennell v. Percival, 13 Pa. 197 550, 551 Penn Iron Co. v. Diller, 113 Pa. 635, 6 Atl. 272 82, 85 Pennsylvania v. Kirkpatrick, Addison (Pa.) 193 368 Pennsylvania Co. for Ins. on Lives & G. A. v. Shanahan, 10 Pa. Super. Ct. 267 185, 210, 402-404, 423, 425, 427, 430 Pennsylvania R. Co. v. Brisbin, 35 Phila. Leg. Int. 317 129 V. Hei^ter, 8 Pa. 445 549 Pennsylvania Salt Mfg. Co. v. Neel, 54 Pa. 9 676 People's Sav. Bank v. Alexander, 140 Pa. 22, 21 Atl. 248 152. 374 People's Street R. Co. v. Spencer, 156 Pa. 85, 36 Am. St. Rep. 22, 27 Atl. 113 9 Periepi v. Frankenfield, 2 Del. Co. Rep. 112 293 Perriu v. Wells, 6 Kulp, 313 240, 241, 243 V. Wells, 155 Pa. 299, 26 Atl. 543 155, 187, 188, 257, 258 Pershing v. Feinberg, 203 Pa. 144, 52 Atl. 22 40S Peters v. Grubb, 21 Pa. 455 39, 349, 350 Peterson v. Haight, 1 Miles (Pa.) 250 384, 385 V. Haight, 3 Whart. 150 86, 493, 501 Pettibone v. Smith, 150 Pa. 118, 17 L. R. A. 423, 24 Atl. 693 109 TABLE OF CASES CITED. Ixi Pfeiffer v. Schubmehl, 7 Del. Co. Eep. 575, 6 Lack. I^gal News, 60, 182 258 Pfund V. Herlinger, 10 Phila. 13 336, 342, 343 Phelps V. Cornog (Pa.) 2 Cent. Rep. 844, 4 Atl. 922 587, 597, 598, 601, 602, 612, 614 Philadelphia v. Elvins, 1 W. N. C. 2 317, 326, 327 V. Reeves, 48 Pa. 472 55 V. Schuylkill Bridge, 4 Binn. 283 064 , V. Weaver, 155 Pa. 74, 25 Atl. 876 317 Philadelphia & R. Coal & I. Co. v. Taylor, 1 Legal Chronicle, 335, 5 Legal Gaz. 392 379, 679, 687 Philadelphia & R. R. Co. v. Thornton, 3 Phila. 257 442, 448, 456 Philadelphia Fire Extinguisher Co. v. Brainerd, 2 W. N. C. 473. 121, 135, 321 Philadelphia Trust, S. D. & Ins. Co. v. Purves (Pa.) 12 Cent. Rep. 659, 13 Atl. 936 79 Phillips V. Coast, 130 Pa. 572, 18 Atl. 998 767 V. Epp, 2 Lack. Jur. 41 95 V. Epp, 4 Del. Co. Rep. 426, 2 Lack. Jur. 41 77, 98 v.Monges, 4 Whart. 226 72, 73, 162, 174, 264, 476, 477 V. Vandergrift, 146 Pa. 357, 23 Atl. 347 757 Phcenixville v. Walters, 184 Pa. 615, 39 Atl. 490 302 V. Walters, 147 Pa. 501, 23 Atl. 776 476, 479, 587, 606, 621 V. Walters, 147 Pa. 501, 23 Atl. 776, 184 Pa. 615, 39 Atl. 490.471, 590 Pickering v. Breen, 22 Pa. Super. Ct. 4 216 V. O'Brien, 23 Pa. Super. Ct. 125 20, 304, 341 Pier V. Carr, 69 Pa. 326 319, 321, 327, 334, 341, 342, 344, 363 Pierce v. Scott, 4 Watts & S. 344 206, 207, 209, 286 Pittfield V. Ewing, 6 Phila. 455 303, 480, 484 Pittsburg Consol. Coal Co. v. Greenlee, 164 Pa. 549, 30 Atl. 489 770 Pittsburg, J. E. & E. R. Co. v. Altoona & B. C. R. Co. 196 Pa. 452, 46 Atl. 431 170, 206, 401, 414 Pittsburgh & A. Drove Yard Co.'s Appeal, 123 Pa. 250, 16 Atl. 625. . . 461 463, 465, 582 Piatt V. Johnson, 168 Pa. 47, 47 Am. St. Rep. 877, 31 Atl. 935 113. 158, 273, 276, 278 Pleasants v. Claghorn, 2 Miles (Pa.) 302 300 Pleasonton's Appeal, 75 Pa. 344 53, 58, 59, 61 Plummer v. Hillside Coal & I. Co. 160 Pa. 483, 28 Atl. 853 683 v. Shulmyer, 12 Lane. L. Rev. 217 74 Plumstead v. Conway, 2 Del. Co. Rep. 43 47, 521 Pollard V. Shaaffer, 1 Dall. 210, 1 L. ed. 104, 1 Am. Dec. 239 95, 354, 377 Pollman v. Morgester, 99 Pa. 611 100, 465, 478 Poterie Gas Co. v. Poterie, 153 Pa. 10, 25 Atl. 1107 735, 736 Pott V. Lesher, 1 Yeates, 576 123, 125, 126, 128 Potter V. Bower, 2 W. N. C. 408 474 V.Gilbert, 177 Pa. 159, 35 L. R. A. 580, 35 Atl. 597. .695, 711, 717 V. Rend, 31 Pittsb. L. J. N. S. 223 697 Pottsville Bank v. Cake, 12 Pa. Super. Ct. 61 45, 427, 430 Ixii TABLE OF CASES CITED. Powell V. Burroughs, 54 Pa. 329 696, 701, 704, 705 V. Campbell, 2 Phila. 42 629, 631, 636 Powelton Coal Co. v. McShain, 75 Pa. 238 48 Power V. Howard, 22 W. N. C. 475 261, 208 Pratt V. Keith, 4 Del. Co. Rep. 69 487, 488, 494, 495 V. Levan, 1 Miles (Pa.) 358 366 V.Richards Jewelry Co. 69 Pa. 53 121, 316, .32.5, 326, 327 Prentiss v. Kingsley, 10 Pa. 120 112, 152, 270, 536 Prescott V. Otterstatter, 79 Pa. 462 71, 86 V. Otterstatter, 85 Pa. 534 67, 83 Prevost V. Gorrell, 11 Phila. 263 694 Price V. McCallister, 3 Grant, Gas. 248 192, 193 V. Wright, 4 Lane. Bar, 32 115, 117 Prindle & Co. v. Kountz Bros. Co. 15 Pa. Super. Ct. 258 730, 731 Proctor V. Benson, 149 Pa. 254, 24 Atl. 279 2, 074 Providence Trustees' Appeal, 2 Walk. (Pa.) 37, 6 Kulp, 251 28 Prutzman v. Ferree, 10 Watts, 143 649, 661 Purdy's Appeal, 23 Pa. 97 157, 270 Purfel V. Sands, 1 Ashm. (Pa.) 120 156, 218, 220, 221 Quigney v. Quigney, 1 Northampton Co. Rep. 20 595, 597, 608, 609, 614 Quinn v. McCarty, 81 Pa. 475. . 399, 400, 410-412, 583, 589, 601, 602, 622 628 ». Wallace, 6 Whart. 452 182, 183, 188, 189, 209, 230, 240, 243, 261, 262 Q. Rainow's Estate, 4 Kulp, 153 297, 328, 365 R.ilston, Re, 2 Clark (Pa.) 224 296, 328 Ramsey v. White, 21 Pittsb. L. J. N. S. 425 765 Rank v. Rank, 5 Pa. 211 115, 117, 509, 513 Rankin v. Tenbrook, 5 Watts, 386 650-652, 654 Rapp V. Klair, 5 Montg. Co. L. Rep. 16 349, 352 Rathbone v. Rathbone, 23 Pa. Super. Ct. 297 12 Rawle V. Balfour, 16 W. N. C. 195 93 Ray V. Western Pennsylvania Natural Gas Co. 138 Pa. 576, 12 L. R. A. 290, 21 Am. St. Rep. 922, 20 Atl. 1065. . . . 723, 743, 757, 761 Rpa V. Eagle Transfer Co. 201 Pa. 273, 88 .\iii. S(. Rep. 809, 50 Atl. 764 40.'-, 410, 413, 416, 417 V. Ganter, 152 Pa. 512, 25 Atl. 539 51, 149 Read v. Kitchen, 1 Am. L. Reg. 635 160 Reading > . Reiner, 167 Pa. 41, 31 Atl. 357 668 Reading Iron Works, Re, 150 Pa. 369, 24 Atl. 617 7, 25, 114 Reading Trust Co. v. .Jackson, 22 Pa. Super. Ct. 69 60 Ream v. Harnish, 45 Pa. 376 116, 117 Reams v. Fye, 24 Pa. Co. Ct. 671 402, 403, 410, 413, 417, 422, 424 V, Pancoast, 111 Pa. 42, 2 Atl. 205 403, 410 TABLE OF CASES CITED. Ixiii Reaney v. Pannessy, 14 W. N. C. 91 3in, 327 Reber v. Gilson, 1 Pa. St. 54 59, 64, 316 Reed v. Harrison, 196 Pa. 337, 46 Atl. 415 90, 97 V. Reed, 1 Am. L. J. 263 141 V. Ward, 22 Pa. 144 144, 165, 343, 349, 539, 540 Rees V. Emerick, 6 Serg. c& R. 286 254, 2') 5 Reeves v. MeComeskey, 168 Pa. 571, 32 Atl. 90. .72. 82, 310, 321, 322, 325 Reid V. Christy, 2 Phila. 144 436, 439, 441, 445-44 7 ReiflF V. Reiflf, 64 Pa. 134 517, 518 Reigart v. Ehler, 1 Whart. 18 641 Reineman v. Blair, 96 Pa. 155 336, UZ, 359 Reiner v. Cambria Steel Co. 28 Pa. Co. Ct. 13 699 Reith V. Reith, 13 W. N. C. 435 035, 653 Replogle V. Singer, 19 Pa. Super. Ct. 442 44 Repp V. Sousman, 9 Kulp, 180 26 1 Reukauflf v. Aronson, 13 Phila. 87 .",69, 370 Reynolds v. Davis, 1 Kulp, 342 605 V. Robinson, 3 C. P. Rep. 20 585, 611 Rhoad V. Cain, 2 Chester Co. Rep. 496 570 Rhoades v. Patrick, 27 Pa. 323 124. 643, 701, 709 Rhoads v. Wesner, 1 Woodw. Dee. 79 549. 569 Rich V. Keyser, 54 Pa. 86 304, 308, 563, 582, 5S3, .588, 590 Richards v. McGrath, 100 Pa. 389 230, 231, 234, 235, 240, 244, 24-5, 2.i0 Richardson v. Oberholtzcr. 2 W. N". C. 332 106 Richie v. McCauley, 4 Pa. 471 278, 279 Ricketts v. Unangst, 15 Pa. 90, 53 Am. Dec. 572 242 Riddle v. Mellon, 147 Pa. 30, 23 Atl. 241 7G0 V. Welden, 5 Whart. 9 199, 200 Riddlesburg Coal & I. Co.'s Appeal, 114 Pa. 58, 6 Atl. 381 293 Ridgway Light & Heat Co. v. Elk County, 191 Pa. 465, 43 Atl. 323 725 Riegelman v. Focht, 141 Pa. 380, 23 Am. St. Rep. 293, 21 Atl. 601. .54, 57 Riely v. Cullen, 7 W. N. C. 114 55, 59 Riggin V. Becker, 9 Pa. Dist. R. 439 225, 227, 256, 257 Rinehart v. Olwine, 5 Watts & 157 116, 118, 162, 287, 503 Ritchie v. McAllister, 14 Pa. Co. Ct. 267 485, 716 Robert v. Ristine, 2 Phila. 62 226, 416 Robertson v. Youghiogheny River Coal Co. 172 Pa. 566, 33 Atl. 706 691 Robinson v. White, 39 Pa. 255 143, 183, 185 Robison v. Inman, 35 Phila. Leg. Int. 263 31 Rockafellow v. Hanover Coal Co. 2 Pa. Dist. R. 108, 12 Pa. Co. Ct. 241 690 Rodgers v. Lees, 140 Pa. 475, 12 L. R. A. 216, 23 Am. St. Rep. 250, 21 Atl. 399 071 Rohbock V. McCargo, 6 Pa. Super. Ct. 134 316, 325 Rohrer v. Cunningham, 138 Pa. 162, 20 Atl. 872 194. 195 Rohrheimer v. Hofman, 103 Pa. 409 150, 151 Rooks V. Seaton, 1 Phila. 106 101,399 Rosenberger v. Hallowell, 35 Pa. 369. .187, 188, 209, 211, 214, 235, 393, 395 Ross V. Dysart, 33 Pa. 452 333, 356, 357 Ixiv TABLE OF CASES CITED. Rothermel v. Dumn, 119 Pa. 632, 13 Atl. 509 23, 584, 619, 621 Rowan v. Gates, 9 Pa. Dist. R. 564 586, 594, 505, 608, 609 V. Rowan, 179 Pa. 411, 36 Atl. 1130 274 Rowland v. Goldsmith, 2 Grant, Cas. 378 213, 281, 284 Royer v. Ake, 3 Penr. & W. 461 138, 155, 185, 226, 410, 415, 416 Royse v. May, 93 Pa. 454 249, 250, 253, 254 Rubicura v. Williams, 1 Ashm. (Pa.) 230 442, 444, 445, 606 Rundal v. Stedge, 2 Pa. Co. Ct. 608 282 Russell V. Rush, 2 Pittsb. 134 72, 76, 82, 94 V. Stratton, 201 Pa. 277, 50 Atl. 975 486 V. Titus, 3 Grant, Gas. 295 694 Ruttledge v. Kress, 17 Pa. Super. Ct. 490 694 Rynd v. Rynd Farm Oil Co. 63 Pa. 397 728, 738 Sacks V. Sehimmel, 3 Pa. Super. Ct. 426 43 Sallade v. .James, 6 Pa. 144 349, 532 Saltzman v. Hacker, 1 W. N. C. 6 193 Samson v. Levy, 12 Pa. Pist. R. 600 263 Samuel v. Scott, 13 Phila. 64 68, 70, 72 Sanders v. Sharp, 153 Pa. 555, 25 Atl. 524 733, 757 Sanderson v. Scranton, 105 Pa. 469 10, G81 Sandwith v. De Silver, 1 Browne (Pa.) 221 109 Sargent v. Matehett, 20 W. N. C. 96 218, 222 Sassaman v. Feagly, 4 Watts, 268 113, 643 Sassman v. Brisbane, 7 Phila. 159 257 Ratterlee v. Matthewson, 13 Serg. & R. 133 664 Sattler v. Opperman, 14 Pa. Super. Ct. 32 499, 716, 766 Sausser v. Steinmetz, 88 Pa. 324 2, 33-35 Saving Fund v. Marks, 3 Phila. 278 144 Sayers v. Hoskinson, 110 Pa. 473, 1 Atl. 308 687 V. Kent, 201 Pa. 38, 50 Atl. 296 409, 413, 759, 760, 762 Schaetzle v. Christman, 16 Pa. Super. Ct. 294 68 Scheerer v. Dickson, 7 Phila. 472 89 V. Stanley, 2 Rawle, 276 535 Scherr v. Seymour, 2 W. N. C. 534 400, 426 Schilling v. Abernethy, 112 Pa. 437, 56 Am. Rep. 320, 3 Atl. 792. .670, 671 Schleppi V. Gindele, 14 W. N. C. 31 68, 70, 71, 74, 82 Schock V. Vogle, 18 Lane. L. Rev. 257 497 Schoenhut's Appeal, 43 Phila. Leg. Int. 347 420 Schoneman v. Fegley, 14 Pa. 376 50 School Board's Appeal, 2 Walk. (Pa.) 37 687 School Dist. v. Long (Pa.) 9 Cent. Rep. 350, 10 Atl. 769 642, 652, 661 School Fund v. Heermans, 2 L. T. N. S. 137 178, 190, 266 Schooley v. Butler Mine Co. 175 Pa. 261, 34 Atl. 639 702 Schulte V. McCormick, 6 Phila. 313 601 Schultz V. Burlook, 6 Pa. Super. Ct. 573 25, 32, 307, 419, 426 TABLE OF CASES CITED. Ixv Schuyler v. Philadelphia Coach Co. 29 W. N. C. 343 291, 295 Schuylkill & D. Improv. & R. Co. v. Schmoele, 57 Pa. 271 349, 355, 415 V. McCreary, 58 Pa. 304 481 Schwartz's Appeal, 119 Pa. 208, 13 Atl. 69 419 Estate, 14 Pa. 42 525 Scott V. Fox Optical Co. 38 Pittsb. L. J. 368 41, 106 V. Fuller, 3 Penr. &. W. 55 554, 558, 559 V. Lohyer, 3 Luzerne Legal Obs. 393 447 V. McEwen, 2 Phlla. 176 191, 196, 261, 265 V. Swain, 19 W. N. C. 547 53, 55, 57 Scott's Estate, 35 Pittsb. L. J. 443 168, 297 Scranton v. Phillips, 94 Pa. 15 681, 692 Seabrook v. Moyer, 8S Pa. 417 165, 166, 343, 347, 348, 540 Secor V. Shippey, 7 Pa. Co. Ct. 555 423, 427 Seeger v. Pettit, 77 Pa. 437, 18 Am. Rep. 452 487, 489, 490, 494, 49.i, 502 Seitzinger v. Alspach, 42 Phila. Leg. Int. 68 128, 132: V. Marsden, 2 Pennyp. 463 403, 497, 501 V. Steinberger, 12 Pa. 379 286, 295 Selzter v. Robbins, 181 Pa. 451, 37 Atl. 567 427 Sennett v. Bucher, 3 Penr. & W. 392 50 Seybert v. Bean, 83 Pa. 450 29, 157, 227, 23." 360, 646, 054 Shaaber v. Reading, 150 Pa. 402, 24 Atl. 692 481 Shaffer v. Sutton, 5 Binn. 228 Iftl, 168, 554, 558; Sharpless v. Murphy, 7 Del. Co. Rep. 22 103, 520, 521 V. Weigle, 7 W. N. C. 376 320 Sharpless's Estate, 8 Lane. Bar, 125 112, 534 Sharp's Estate, 6 Kulp, 467 708 Shaw V. Bowman, 91 Pa. 414 508-510, 513, 515 V. Oakley, 7 Phila. 89 269, 278 Sheaffer v. Ealcman, 56 Pa. 144 659, 660> V. Sheaffer, 37 Pa. 525 411, 417 Sheed v. Wartman, 4 Yeates, 237 260' Sheets v. Allen, 89 Pa. 47 674-676 Shellar v. Shivers, 171 Pa. 569, 33 Atl. 95 716, 766; Shenk v. Shaffer, 8 Lane. L. Rev. 49 618 Sheridan v. Krupp, 141 Pa. 564, 21 Atl. 670 672 Sheriff Machinery Co. v. Singer, N. & Co. 32 Pittsb. L. J. N. S. 90 408 Shermer v. Paciello, 161 Pa. 69, 28 Atl. 995 391, 400, 429. 031, 63-2 Shetsline V. Keemle, 1 Ashm. (Pa.) 29 ' 183,253 Shettler v. Hartman, 1 Pennyp. 279 759, 761, 765 Shillingford v. Good, 95 Pa. 25 707, 709' Shoemaker v. Beaver, 42 Phila. Leg. Int. 511 24, 475 V. Mount Lookout Coal Co. 177 Pa. 405, 35 Atl. 731 698 Shoemaker's Appeal, 106 Pa. 392 687, 708 Shouffler v. Coover, 1 Watts & S. 400 169 Shourds v. Way, 8 Phila. 301 59& Jxvi TABLE OF CASES CITED. Showaker v. Boyer, 3 Pa. Co. Ct. 271 42, 68, 82 Shughart v. Moore, 78 Pa. 469 48, 67, 68, 75, 84 Siedel v. Shelly, 7 Lack. Legal News, 286 697 Silliman v. Whitmer, 11 Pa. Super. Ct. 243, 196 Pa. 363, 46 Atl. 489 488, 490, 502 Sims V. Hampton, 1 Serg. & E. 411 235 V. Steadwell, 12 W. N. C. 292 214 Simons v. Thompson, 2 W. N. C. 209 668 V. Van Ingen, 86 Pa. 330 365, 376, 377, 384 Singer v. Solomon, 8 Pa. Dist. R. 402 524, 534 Singerly ,. Fox, 75 Pa. 112 209, 286 Sizer v. Pv,ussett, 11 Pa. Super. Ct. 108 472, 593, 621, 022 f^kelton V. ilason, 23 Phila. Leg. Int. 126 600 Skiles V. Sides, 1 Pa. Super. Ct. 15 206, 207 Skillen v. Logan, 21 Pa. Super. Ct. 106 82, 147, 704 Sleeper v. Parrish, 7 Phila. 247 193, 196, 261 Smalley v. Morris, 157 Pa. 349, 27 Atl. 734 720 Smart v. Allegaert, 8 W. N. C. 217 6, 344 Smeidel v. Lewellyn, 3 Phila. 70 54 Smiley v. Gallagher, 164 Pa. 498, 30 Atl. 713 17 Smith V. Ankrim, 13 Serg. & E. 39 77, 151, 1.52 V. Carter, 17 Phila. 344 001 V. Clark, 1 W. N. C. 445 27 V. Crosland, 106 Pa. 413 435, 452, 650 V. Harley, 1 W. N. C. 132 428, 429 V. Hickman, 14 Pa. Super. Ct. 46 731, 732, 767 V. Meanor, 16 Serg. & R. 375 159, 184, 254, 410 V. llishler, 7 Lane. L. Rev. 169 136, 138 V. Munhall, 139 Pa. 253, 21 AtL 735 771 V. Pringle, 100 Pa. 275 421 V. Rawle, 19 Phila. 378 70S V. Snyder, 168 Pa. 541, 32 Atl. 64 305, 307, 470 V. Wistar, 5 Phila. 145 180, 181 Smoyer v. Roth (Pa.) 13 Atl. 191 179, 180, 188, 189, 236. 238, 239 Snyder, R«, 8 Phila. 302, 1 Legal Gaz. 302 366 V. Boring, 4 Pa. Super. Ct. 196 230, 231, 235-237, 256 V. Bro^vn, 197 Pa. 450, 47 Atl. 1135 735, 737 V. Carfrey, 54 Pa. 90 613-615 V. Hersberg, 11 Phila. 200 106 V. Kunkleman, 3 Penr. & W. 487 177, 183, 209, 275 V. May, 19 Pa. 235 27, 45 V. Middleton, 4 Phila. 343 319, 321 Society v. Swindell, 2 W. N. C. 560 Ill Sommer Piano Co. v. Wood, 8 Kulp, 494 261, 262 Spangler's Appeal, 30 Pa. 277,n 699 Spaekman's Appeal, 16 W. N. C. 79 Ill, 130 Sparks v. Walton, 4 Phila. 72 655 TABLE OF CASES CITED. Ixvii Spear v. Allison, 20 Pa. 200 354 Speer's Estate, 8 Pa. Diat. R. 212 36 Speigle V. McFarland, 25 Pliila. Leg. Int. 165 588, 596, 608, 610, 015 Spencer v. Clinefelter, 101 Pa. 219 174, 249-252, 259, 261 V. Darlington, 74 Pa. 286 210, 368, 370, 372 V. Kunkle, 2 Grant, Gas. 406 40, 160, 174, 216 Spidle V. Hess, 20 Lane. L. Rev. 385 583, 609, 610 Spotts V. Farling, 2 Pearson (Pa.) 295 594, 595, 597, 608, 609 Springer v. Citizens' Natural Gas Co. 145 Pa. 430, 22 Atl. 986 733, 743, 746, 757, 761 Springer's Appeal, III Pa. 274, 2 Atl. 352 21 Stafford v. Ames, 9 Pa. 343 117 Stage V. Boyer, 183 Pa. 560, 38 Atl. 1035 756, 765 Stahlman's Estate, 26 Pittsb. L. J. 113 178, 179 Stark V. Hight, 3 Pa. Super. Ct. 516 275, 282, 286 V. Scott, 4 Luzerne Legal Reg. 49 706, 709 Starr v. Simon, 9 Pa. Co. Ct. 15 257, 261, 262 Steel V. Frick, 56 Pa. 172 4, 5, 11, 12, 14, 170, 287, 333, 345 V. Thompson, 3 Penr. & W. 34 554, 559, 560, 573, 574, 577- 580 Steelsmith v. Aiken, 14 Pa. Super. Ct. 226 772 Steigelman v. Klugh, 9 Lane. L. Rev. 321 595, 609 Steiner v. Marks, 172 Pa. 400, 33 Atl. 695 406, 762 Steininger v. Butler, 17 Pa. Co. Ct. 97, 5 Pa. Dist. R. 43 213 Sterling v. Com. 2 Grant, Gas. 162 11, 365 V. Richardson, 24 Phila. Leg. Int. 140 58:'! 586, 587, 590, 600, 609, 612, 613 Stern v. Stanton, 184 Pa. 468, 39 Atl. 404 203 Sterrett v. Wright, 27 Pa. 259 130 Stevens's Estate, II Lane. L. Rev. 137 520 Stevenson v. Ebervale Coal Co. 203 Pa. 316, 52 Atl. 201 694 Stewart v. Hasson, 4 Legal Gaz. 85 449, 452 V. Jackson, 181 Pa. 549, 37 Atl. 518 419 V. Martin, I Yeates, 49 552, 564, 568, 572 V. Roderick, 4 Watts & S. 188, 39 Am. Dec. 71 660 Stiles V. Himmelwright, 16 Pa. Super. Ct. 649 145, 311 Stockton's Appeal, 64 Pa. 58 12,S, 527 Stoddard v. Emery, 128 Pa. 436, 18 Atl. 339 525, 734, 744, 771 Stoever v. Miller, 4 Phila. 149 442, 444 V. Whitman, 6 Binn. 419 416 Stokes v. McKibbin, 13 Pa. 267 642, 645 Stone V. Marshall Oil Co. 188 Pa. 602, 41 Atl. 748 375 389, 390, 394, 724, 761, 768, 769 V. Van Nort, 3 Law Times N. S. 84 49 V. Wimmill, 24 Phila. Leg. Int. 212, 6 Phila. 311 585, 589, 592, 600, 611, 612 ■Stoughton's Appeal, 88 Pa. 198 718, 725, 727 Ixviii TABLE OF CASES CITED. Stout V. Hight, 3 Pa. Super. Ct. 516 28ft V.Williams, 203 Pa. 161, 52 Atl. 169 340 Stout Coal Co. V. O'Donell, 4 Kulp, 495 307, 423, 424 Stover V. Cadwallader, 2 Pennyp. 117 18, 31, 34, 125, 139, 140 Sti-aight V. Mahoney, 16 Pa. Super. Ct. 155 485, 488, 490, 497. 501 Strange v. Austin, 134 Pa. 96, 19 Atl. 492 532, 533, 535 Strickhouser v. York County Iron Co. 1 York Legal Record, 46 679 Strohm v. Carroll, 11 Lane. Bar, 62 599, 614 Strojny v. Merofchinski, 9 Kulp, 444 139 Stroup V. M'Clure, 4 Yeates, 523 544, 547, 557, 564, 567-570 Stull V. Thompson, 154 Pa. 43, 25 Atl. 890 72, 82 Stultz V. Dickey, 5 Binn. 285, 6 Am. Dec. 411 49, 508-510, 512-515 Suplee V. Harley, 3 W. N. C. 240 320 Supplee V. Hermann, 9 Pa. Dist. R. 27 54, 58, 63 V. Timothy, 124 Pa. 375, 23 W. N. C. 386, 16 Atl. 864 305, 475, 586, 587, 599, 619, 625, 627 Sutton V. Foulke, 19 Phila. 419 333, 338 Swartz's Appeal, 119 Pa. 208, 13 Atl. 69 400, 430 Sweatman's Appeal, 150 Pa. 369, 24 Atl. 617 366 Swigert v. Hartzell, 20 Pa. Super. Ct. 56 464 Swint V. McCalmont Oil Co. 184 Pa. 202, 63 Am. St. Rep. 791, 38 Atl. 1021 134, 539, 540, 643, 647, 752, 754 Snyder v. Carfrey, 54 Pa. 90 587, 590, 597, 598, 602 Tanner f. Hopkins, 12 W. N. C. 238 421, A2S- Tate v. Reynolds, 8 Watts & S. 91 316, 327 Tatham v. Lewis, 65 Pa. 65 26- Taylor v. Kennelly, 14 W. N. C. 124 65 V. Manderson, 1 Ashm. (Pa.) 130 207 v. Maule, 2 Walk. (Pa.) 539 493, 498 V. Winters, 6 Phila. 126 23, 149, 151, 317 Teller v. Boyle, 132 Pa. 56, 18 Atl. 1069 142, 146, 318, 327, 431 Temple v. Gough, 9 Pa. Co. Ct. 85 212, 213 Tennery v. Drinkhouse, 2 W. N. C. 210 672 V. Schoch, 1 Phila. 428 452, 455 Ter Hoven f. Kerns, 2 Pa. St. 96 Ill Teufel V. Rowan, 179 Pa. 408, 36 Atl. 224 113, 158, 274 Thamm v. Hamburg, 7 Phila. 266 556, 561 Thayer v. Society of United Brethren, 20 Pa. 60 651, 652 Third Nat. Bank v. Hanson, 1 W. N. C. 613 535 Thomas v. Baner, 6 Pa. Dist. R. 177 205, 257, 261 V. Connell, 5 Pa. 13 379 V. Flamer, 1 Phila. 518 436, 445, 446 V. Gibbons, 21 Pa. Super. Ct. 635 249, 250, 252, 254 V. Hukill, 131 Pa. 298, 18 Atl. 875 736 TABLE OF CASES CITED. Ixix Thomas v. Pyle, 2 Pa. Co. Ct. 258 259, 260 V. Schock, 1 W. N. C. 38 341 V. Wright, 9 Serg. & R. 87 301, 304 Thomas's Estate, 1 Dauphin Co. Kep. 381 ^0'^ Thompson v. Christie, 138 Pa. 230, 11 L. R. A. 236, 20 Atl. 934 724 733, 758, 759, 761 V. Clark, 7 Pa. 62 657, 661, 663 V. Graham, 9 Phila. 53 649, 658, 660 V. Pennsylvania Coal Co. 1 Luzerne Legal Obs. 25, 4 Luzerne Legal Reg. 86 693 Thompson's Appeal, 101 Pa. 225 768 Estate, 205 Pa. 555, 55 Atl. 539 121, 374, 466 Estate, 1 Kulp, 235 129 Thropp's Appeal, 70 Pa. 395 210, 269, 277, 282, 314, 327, 494-490 Thudium v. Yost, 20 W. N. C. 217 46 Tiley v. Moyers, 25 Pa. 397 687, 712 v.Moyers, 43 Pa. 404.... 333, 340, 342, 343, 346, 688, 700, 704, 711 Tilford V. Fleming, 64 Pa. 300 583, 586 590, 615 Times Co. v. Siebrecht, 11 W. N. C. 283 407, 426 Timlin v. Bro-ivn, 158 Pa. 606, 28 Atl. 236 495, 683, 703, 715 Timmes v. Metz, 156 Pa. 384, 27 Atl. 248 269 277, 282, 289, 290, 293 Tinware Mfg. Co. v. DufT, 15 Pa. Super. Ct. 383 199 202, 205, 227, 243, 257, 262 Tischner v. Bambriek, 3 W. N. C. 94 47 TituBville Novelty Iron Works' Appeal, 77 Pa. 103 365, 727 Todd V. Ashton, 4 W. N. C. 347 272 Townsend v. Hendriekson, 5 W. N. C. 492 334 V. Underhill, 6 Pa. Co. Ct. 544 495, 496, 502 Towt V. Philadelphia, 173 Pa. 314, 33 Atl. 1034 388, 392, 670 Traeger v. Hartnett, 15 W. N. C. 300 61 Trimbath v. Patterson, 76 Pa. 277 433, 435, 439, 442-446, 448 Trimble's Appeal, 5 W. N. C. 396 192, 282, 587 Tripp V. Barnes, 1 Law Times, 73 616, 617 V. Bishop, 56 Pa. 424 32 Trout V. McDonald, 83 Pa. 144 30, 41, 687 Troxell v. Wheatly, 2 Luzerne Legal Reg. 37 388 Truby v. Palmer (Pa.) 4 Cent. Rep. 925, 6 Atl. 74 760 Tufts v. Park, 194 Pa. 79, 44 Atl. 1079 193, 209, 210 Turner v. Hauser, 1 Watts, 420 297 V. Reynolds, 23 Pa. 190 661, 689, 701 Turrell v. Ball, 26 Pa. Co. Ct. 36 293 Twibill V. Brown, 17 W. N. C. 221 69 Tyrell BIdg. & L. Asso. v. Daughen, 7 W. N. C. 244 439, 445, 446 U. Vher V. Hickson, 6 Phila. 132 632, 635 Uhler V. Cowen, 199 Pa. 316, 49 AtL 77, 192 Pa. 445, 44 Atl. 42. . . , . . 351 Ixx TABLE OF CASES CITED. UncU'vhill V. Wynkoop, 15 Pa. Super. Ct. 230 144, 145, 265 Underwood's Estate, 5 Pa. Co. Ct. 621 54, 6-3 Union Improv. Co. v. Markle, 191 Pa. 329, 43 Atl. 1103 716 Union Oil Co.'s Appeal, 3 Pennyp. 504 729, 748 Union Petroleum Co. v. Bliven Petroleum Co. 72 Pa. 173 728, 729, 737 Vanarsdalen v. Whitaker, 2 Legal Chronicle, 190 454 Van Beil v. Shive, 17 Phila. 104 424 Vandegriflf's Estate, 3 Pa. Dist. R. 421 297 Vanderlin v. Hovis, 152 Pa. 11, 25 Atl. 232 734 Vanleer's Appeal, 24 Pa. 224 31 Vansant v. Pishel, 1 York Legal Record, 101 392 Van Voorhis v. Oliver, 39 Pittsb. L. J. 114 758 Vaughan v. Blanchard, 4 Dall. 124, 1 L. ed. 769 336, 341 V. Blanchard, 1 Yeates, 175, 4 Dall. 124, 1 L. ed. 769 343 Veditz V. Levy, 18 Phila. 328 307, 308, 562, 564, 565 Venture Oil Co. v. Fretts, 152 Pa. 451, 25 Atl. 732 728, 744, 755, 763 Verbach v. Davis, 3 Walk. (Pa.) 176 720 Verdolite Co. v. Richards, 7 Northampton Co. Rep. 113 402, 404, 416, 417, 674, 677 Vetter's Appeal, 99 Pa. 52 107, 175, 283, 473 Vincent v. Woodland Oil Co. 165 Pa. 402, 30 Atl. 991 722 Vogel V. Trumberg, 26 Pa. Co. Ct. 464, 12 Pa. Dist. R. 106 583 W. Wager v. Duke, 1 Clark (Pa.) 316 271 Wagle V. Hartley (Pa.) 9 Cent. Rep. 551, 11 Atl. 223 476, 477, 642, 643, 647, 651 Waitt V. Ewing, 7 Phila. 195 231-233, 235. 241 Walbridge v. Pruden, 102 Pa. 1 173, 180 Walbridge's Appeal, 95 Pa. 466 527 Walker v. Githens, 156 Pa. 178, 27 Atl. 36 471, 476 V. Marion, 148 Pa. 1, 23 Atl. 1002 130 V. Wiese, 8 Del. Co. Rep. 565 22.5 Walker's Estate, 9 Pa. Co. Ct. 515 297, 328. 30.1 Wall V. Ullman, 2 Chester Co. Rep. 178 307 Wallace v. Harmstad, 15 Pa. 462, 53 Am. Dec. 603 172 v. Harmstad, 44 Pa. 492 154, 160, 169, 262 V. Headley, 23 Pa. 106 38 Waller v. Kingston Coal Co. 191 Pa. 193, 43 Atl. 235 707 Wain v. O'Connor, 1 Phila. 353 503, 505, 506 Walnut Run Coal Co. v. Knight, 201 Pa. 23, 50 Atl. 288 402, 410, 412, 413, 713 Walsh V. Greenwood, 2 Pa. Dist. R. 64 258, 261 V. The Bourse, 15 Pa. Super. Ct. 219 40, 174, 193, 198, 206 TABLE OF CASES CITED. Ixxi Walter v. Transue, 22 Pa. Super. Ct. (ill 300, .302, 304, 359 Walters \ . Transue, 6 Northampton Co. Rep. 406 360, 363 ^^■alz V. Rhodes, 1 W. N. C. 49 72, 82 Wanamaker v. McCaully, 11 W. N. C. 450 405, 426 Wananiaker & Brown v. Carter, 22 Pa. Super. Ct. 625 201 Ward V. Philadelphia, 4 Cent. Rep. 662, 6 Atl. 263 642, 651 V. Wandell, 10 Pa. 98 632, 636 Ward's Estate. 22 Pa. Co. Ct. 284, 8 Pa. Dist. R. 153, 22 Pa. Co. Ct. 516, S Pa. Dist. R. 369 359, 482 Wardlaw v. Sliarpless, 13 Lane. Bar, 124, 1 Del. Co. Rep. 155 510 Warner v. Caulk, 3 Whart. 193 67, 83, 174, 263, 264 Warren v. Forney, 13 Serg. & R. 52 162, 163, 171, 184, 262 Washington Natural Gas Co. v. Johnson, 123 Pa. 576, 10 Am. St. Rep. 553, 16 Atl. 799 143, 146, 148, 377, 380, 381, 383, 768-770 Water r. M'Clcllan, 4 Dall. 208, 1 L. ed. 803 217 Watson V. O'Hern, 6 Watts, 362 18, 19, 145, 675, 696 V. Serverson, 1 Del. Co. Rep. 87 150, 345 Watt T. Dininny, 141 Pa. 22, 21 Atl. 519 679, 698 V. Equitable Gas Co. 8 Pa. Super. Ct. 618 380, 769, 770 Watterson v. Reynolds, 95 Pa. 474, 40 Am. Rep. 672 41, 678 Watts V. Fox, 64 Pa. 336 548, 554, 556, 560, 563, 569, 573 V. Lehman, 107 Pa. 106 487, 492, 494, 496, 500, 501, 710 V. Tibbals, 6 Pa. 447 688 Waugh V. Waugh, 84 Pa. 350, 24 Am. Rep. 191 508, 512, 517, 518 Wayne v. Lapp, 180 Pa. 278, 36 Atl. 723 80, 83 Weakland v. Cunningham, 7 Atl. 148 683 Weaver v. Craighead, 104 Pa. 288 054, 662, 663 V. McDevitt, 21 Pa. Super. Ct. 597 424, 427 V. Wood, 9 Pa. 220 3, 48 Webber v. Vogel, 159 Pa. 235, 28 Atl. 226 689, 690 Weber v. Loper, 16 Montg. Co. L. Rep. 70 222, 250, 253 V. Porr, 1 Legal Record Rep. 131 584, 587, 000-612 V. Rorer, 151 Pa. 487, 25 Atl. 100 227 Webster v. Ross, 42 Pa. 418 460 Weeks v. Clause, 19 W. N. C. 108 428 Weidel v. Roseberry, 13 Serg. & R. 178 192 Weidner v. Foster, 2 Penr. & W. 23 146, 371, 379, 380 Weightman v. Harley, 20 W. N. C. 470 320, 325 Weiler v. Kershner, 109 Pa. 219 365 Weinmann's Estate, 164 Pa. 405, 30 Atl. 389 306 Weixel v. Lennox, 179 Pa. 457, 36 Atl. 229 720 Wells V. Hornish, 3 Penr. & W. 30 128, 160, 171, 226-228, 244, 254, 255, 263 Weltner's Appeal, 63 Pa. 302 183, 269, 276, 279, 285, 286 Wenger v. Raymond, 104 Pa. 33 30, 585, 587, 589, 592, 594, 596, 619, 621 Wentz's Appeal, 106 Pa. 301 708 West V. Connell, 6 Montg. Co. L. Rep. 196 316 V. Herrod (Pa.) 1 Cent. Rep. 924, 2 Atl. 871 534 Ixxii TABLE OF CASES CITED. West V. Sink, 2 Yeates, 274 260 V. Zint, 5 Binn. 506 269 Western Pennsylvania Gas Co. v. George, 161 Pa. 47, 28 Atl. 1004 760 Westmoreland & C. Natural Gas Co. v. DeWitt, 130 Pa. 235, 5 L. R. A. 731, 25 W. N. C. 103, 18 Atl. 724.. 431, 721, 725, 729, 735, 738 760, 761, 764 Westmoreland Coal Co.'s Appeal, 85 Pa. 344 673 West Ridge Coal Co. v. Von Storch, 5 Lack. Legal News, 189 343, 415, 416, 697, 700, 703, 705, 712-714 Wetherill v. Curry, 2 Phila. 98 365 Wettengel v. Gormley, 160 Pa. 559, 40 Am. St. Rep. 733, 28 Atl. 934. . 72(5 727, 753 V. Gormley, 184 Pa. 354, 39 Atl. 57 753 Wettling V. Kelly, 25 Pa. Co. Ct. 33 727 Weyandt v. Diehl, 4 C. P. Rep. 74 260 Wheeler v. Conrad, 6 Phila. 209 31 V. Crawford, 86 Pa. 327 68, 72, 83, 88 Wheeling v. Phillips, 10 Pa. Super. Ct. 634 763 Wheelock v. Fuellhart, 158 Pa. 359, 27 Atl. 997 543 White V. Arndt, 1 Whart. 91 478, 487, 494, 495, 497, 498, 501 V. Arthurs, 24 Pa. 96 550, 551, 552, 554, 556, 562, 564, 570 V. Campion, 1 W. N. C. 130 73 V. Murray, 7 Phila. 302 399 White's Appeal, 10 Pa. 252 487 Whitehill v. Wilson, 3 Penr. & W. 405, 24 Am. Dec. 326 152 Whiting V. Lake, 91 Pa. 349 177, 187, 190-192 V. Pittsburgh Opera House Co. 88 Pa. 100 31, 33, 302 Whitney v. Shippen, 89 Pa. 22 490, 494, 502 Whitton V. Milligan, 153 Pa. 376, 26 Atl. 22 174, 231, 235, 240, 241 Whorley v. Karper, 20 Pa. Super. Ct. 347 508, 514, 515 Wick V. Bredin, 189 Pa. 83, 42 Atl. 17 487, 496, 500, 714, 715, 766 Wickersham v. Irwin, 14 Pa. 108 380 V. Stetson, 34 Phila. Leg. Int. 248 274 Wickey v. Eyster, 58 Pa. 501 270 Wieder v. Bethlehem Steel Co. 205 Pa. 186, 54 Atl. 778 671 Wien V. Simpson, 2 Phila. 158 69, 70, 74 Wier's Appeal, 81* Pa. 203 693 Wilbur V. Hankins, 3 Lack. Legal News, 49 280 Wilcox V. Cartright, 1 Lack. Legal Record, 130 416, 417, 425, 713 V.Montour Iron & Steel Co. 147 Pa. 540, 23 Atl. 840. .310, 311, 473 479 V. Palmer, 163 Pa. 109, 29 Atl. 757 47, 71 Wiles V. People's Gas Co. 7 Pa. Super. Ct. 562 722, 767 Wiley's Appeal, 8 Watts & S. 244 328, 365 Estate, 6 W. N. C. 208 368, 376, 380 Wilgus V. Whitehead, 89 Pa. 131 52, 112, 151, 305 Wilhelm v. Shoop, 6 Pa. 21 643, 647 Wilke v. Campbell, 5 Pa. Super. Ct.,618. .583, 590, 593, 594, 608, 611, 612 614 TABLE OF CASES CITED. Ixxiii Wilkes-Barre v. Chase, 7 Pa. Super. Ct. 343 124 Wilkes-Barre & S. L. Coal Co. v. Elliott, 4 Lane. Bar, 43 694 Wilkes Barre Gas Co. v. Turner, 7 Kulp, 399 40 Wilkes-Barre Times v. Wilkes-Barre, lU Pa. Dist. R. 691 495 Wilkinson v. Kugler, 153 Pa. 238, 25 Atl. 1133 276, 491 V. Nichols, 20 W. N. C. 350 420 Willard v. Earley, 22 W. N. C. 122 398, 648 V. Martin, 23 Pa. Co. Ct. 285 616, 625 Willcox V. Philadelphia Sectional Electric Underground Co. 15 W. N. C. 367 334 Williams v. Do\vning, 18 Pa. 60 11, 35, 365, 368, 369, 386 V. Flood, 1 W. N. C. 199 266 V. Fowler, 201 Pa. 336, 50 Atl. 969 736 V. Guffy, 178 Pa. 342, 35 Atl. 875 751, 764, 760 V. Hay, 120 Pa. 485, 6 Am. St. Rep. 719, 14 Atl. 379 692 V. Ladew, 171 Pa. 369, 33 Atl. 329. .107, 131, 133, 309, 476, 480, 481 482 V. McAnany, 1 Pa. Dist. R. 128 307, 308, 426 V. Sheridan, 7 Luzerne Leg. Reg. 14 448 V. Short, 155 Pa. 480, 26 Atl. 662 768 V.Smith, 3 Clark (Pa.) 22 139 Williams's Appeal, 1 Monaghan (Pa.) 274, 16 Atl. 810 716 Wills V. Manufacturers' Natural Gas Co. 130 Pa. 222. 5 L. R. A. 603, 18 Atl. 721 403, 431, 723, 743, 748, 758, 763 Wilmington S. S. Co. v. Haas, 151 Pa. 113, 25 Atl. 85 544, 554-557 565-569, 571, 572 Wilson V. Beech Creek Cannel Coal Co. 7 Pa. Super. Ct. 241 703 V. Beech Creek Cannel Coal Co. 161 Pa. 499, 29 Atl. 95 703 V. Freeman, 7 W. N. C. 33 486, 487 V. Goldstein, 152 Pa. 524, 25 Atl. 493 761 V. Hubbell, 1 Pennyp. 413 303, 527, 642, 654 Winston's Appeal, 111 Pa. 387, 5 Atl. 240 679 Wireman v. Ditson, 5 W. N. C. 428 194 Wistar v. Campbell, 10 Phila. 359 322, 327 V. Conroy, 1 Troubat & H. Pr. S. 201 560, 569 V. Ollis, 77 Pa. 291 550, 555, 568, 569 Witman v. Reading, 191 Pa. 134, 43 Atl. 140 27, 32, 33, 38 Wodock V. Robinson, 28 W. N. C. 288 48 Woelpper v. Philadelphia, 38 Pa. 203 301 Woglam V. Cowperthwaite, 2 Dall. 68, 1 L. ed. 292 197, 231, 232, 236 239, 265 Wolf V. Goddard, 9 Watts, 544 641, 648, 660, 664 V. GufFey, 161 Pa. 276, 28 Atl. 1117 761, 762 V. Studebaker, 65 Pa. 460 5, 6 V. Weiner, 7 Phila. 274 342, 343 Wolfe V. Arrott, 109 Pa. 473, 1 Atl. 333 42, 70, 141 Wood V. Custer, 16 Montg. Co. L. Rep. 118 171, 214, 231 V. Sharpless, 174 Pa. 588, 34 Atl. 319 86, 98 bcxiv TABLE OF CASES CITED. Wood's Appeal, 30 Pa. 274 293, 699 ^Vooclburn's Estate, 138 Pa. 006, 21 Am. St. Rep. 932, 21 Atl. 10. .7IJS. 75.3 \Yoodland Cemetery Co. v. Carville, 9 Phila. Leg. Int. 98 51, 300 Woodmansie v. Boyer, I Lehigh Valley L. R. 106 293 Woodward v. Leiby, 36 Pa. 437 22 Work's Appeal, 92 Pa. 258 291, 292 Workman v. MifSin, 30 Pa. 362 349- Worley v. Meekley, 1 Phila. 398 272 Worrilow v. Sharpless, 13 Lane. Bar, 124, 1 'Del. Co. Rep. 155 190 Wray v. Lemon, 81* Pa. 273 357 Wright V. Clendenning, 6 Phila. 329 505. V. Milne, 9 Pa. Dist. R. 170 76 V. Warrior Run Coal Co. 182 Pa. 514, 38 Atl. 491 699, 707 Wunder V. McLean, 134 Pa. 334, 19 Am. St. Rep. 702, 19 Atl. 749. .mS, liGO^ Wyke V. Wilson, 173 Pa. 12, 33 Atl. 701 210, 235, 238, 240, 242 Wyoming Coal & Transp. Co. v. Price, 81 Pa. 156 045, 701, 707 X. Xander v. Weiss, 28 Pa. Co. Ct. 80, 12 Pa. Diat. R. 724 608-610 Y. Yanko v. Leizerowitz, 18 Lane. L. Rev. 1 132, 33S V. Leizerowitz, 8 Del. Co. Rep. 107, 18 Lane. L. Rev. 1 113 Yeager v. Cassidy, 12 Pa. Super. Ct. 232 52, 507 \.Cassidy, 16 Lane. L. Rev. 305, Affirmed in 12 Pa. Super. Ct. 232, 13 York Legal Record, 141 5 14 V. Cassidy, 16 Lane. L. Rev. 305 511, 515 V. Toole, 1 Dauphin Co. Rep. 120 246 V. Weaver, 64 Pa. 425 4, 5, 346 Youghiogheny River Coal Co. v. Hopkins, 198 Pa. 343, 48 Atl. 19 692 V. Peairs, 2 Pa. Dist. R. 134 686 Yormg V. Algeo, 3 Watts, 223 334. 385. 057 V. Equitable Gas Co. 5 Pa. Super. Ct. 232 744 V. Forest Oil Co. 194 Pa. 243, 45 Atl. 121. .736, 745, 751, 763, 764. 771 V. Jones, 1 Lehigh Valley Law Rep. 175 534 V. Watters, 5 Pa. Co. Ct. 127 521 Young's Estate, 16 Phila. 215 144, 145 Z. Zahn V. McMillin, 198 Pa. 20, 47 Atl. 976 739, 752 Zeigler v. Lichten, 205 Pa. 104, 54 Atl. 489 400, 42e THE LAW OF LANDLORD AND TENANT. CHAPTER I. AGREEMENT TO LEASE. 1. Lessee's option. 2. Agreement on the terms. 3. Owner's breach of contract to lease. 4. Excuse for nonperformance. 5. Measure of damages. 6. Merger of agreement in the lease. 1. lessee's option. — An agreement to grant a lease or to ac- cept a lease is enforceable in the same mode in which other con- tracts are enforceable, and subject to the same restrictions. The owner may bind himself to make a lease on the demand of X, or on the demand of X aft«r certain things shall have been per- formed, whether by X or others. It does not follow tliat X is bound to accept a lease. If he has obtained an option, it rests with him to determine whether he will or will not accept the lease. A, in consideration of one dollar, agreed in writing with B that, on the completion of a railroad by B within one year, "I will lease to said B all my iron ore interests and rights . . . for the term of twenty years ... at a royalty of not ex- ceeding twenty-five cents per gross ton of 2240 pounds of the iron ore raised by said B," and that "I shall execute unto the said B the lease of mineral interests and rights above men- tioned. But in the case of failure on the part of the said B to Land. & Ten. 1. 2 LANDLORD AND TENANT. complete said road within the time above stated, this agreement shall be null and of no effect." The instrument was signed by both A and B. Though the railroad was built within the time, B not having asked for a lease nor gone into possession of the premises, A could not recover royalties stipulated for in the agreement. The contract was not a lease, but, at most, an op- tion.* 3. Agreement on the terms. — An agreement between A ajid B as to all the terms which are to be incorporated into a written lease neither forms a lease nor any relation between them that would support an action by A for the use and occupation of the premises. B may change his mind, and, though A has drawn up the lease, may decline to accept it, or to occupy the premises. If no possession is taken, no action for use and occupation can be sustained.^ "An arrangement of terms," says Lewis, J., "in con- templation of a written contract, is not a perfect agreement upon which an action can be maintained." But if a written "agTee- ment to rent" is executed by A, the owner, and accepted by B, the person named in it as lessee, with the intention that it shall regulate his rights to the premises and his obligations towards A, it will be a lease, and not a mere proposal, although B was already in possession of the premises under an earlier lease with different provisions, and with a different period of termination.* 3. Owner's breach of contract to lease. — A contract to make a lease is enforceable as other contracts. It may be specifically ^Proctor V. Benson, 149 Pa. 254, 24 have not increased the general rental Atl. 279. If B orally agrees with A value of the premises. A may recov- to accept from A a lease for five er nominal damages, however, in any years, and then refuses, A cannot re- case. Sausser v. Steinmetz, 88 Pa. cover, as damages, the rent agreed 324. An instrument wherein A upon for the first year during which "doth grant and lease the exclusive- he is unable to obtain another ten- right to mine, dig, and take away ant, in the absence of proof that he iron ore" for eleven years is a lease,, would have been able to obtain an- and not an agreement to lease. other tenant at the same rent; nor Kcmhle Coal & I. Co. v. Scott, 90 Pa. can he recover for improvements 332. made to fit the buildings to serve the 'Maitland v. Wilcoa), 17 Pa. 231. uses of B, unless such improvements 'Bergner v. Palethorp, 2 W. N. C. aie useless for other purposes and 297. AGREEMENT TO LEASE. 3 executed by a court of equity compelling the making of the lease and enjoining the lessor or one to whom, with knowledge of the contract, he has conveyed the premises in fee, from interfering with the lessee's taking and retaining the possession.* It may probably be specifically enforced by the action of ejectment. It may be indirectly enforced by compensating the expectant lessee in damages.^ The oral promise to make the lease may be shown though the consideration of it was, in part, the surrender by a writing of an existing term which recites, as its consideration, the sum of $1 and a release from the obligation of the lease, but not the making of a new lease." The promise may be enforced, although it defines the rent to be payable only as a "fair rent," because a fair rent can be reduced to certainty by recourse to ex- trinsic circumstances. But an omission to define the length of the term would probably make the enforcement of the contract by an action for damages impossible.'' An agreement to make a lease of coal land "for as long as coal was in the hill" is en- forceable.* 4. Excuse for nonperformance. — The making of a contract t^j let land, or the making of a lease for the land, from a certain date, binds the le,ssor to make the lease and deliver the posses- sion ; or, having made the lease, to deliver the possession ; and this obligation is not contingent on the continuance of his owner - ehip to the time when the lease is to be made or possession given, » *Farley v. Stohes, 1 Phila. 30. ment being that the other party will, 'Heilman v. WeinmoM, 139 Pa. 143, before a. certain date, bore for the 21 Atl. 29; Weaver v. Wood, 9 Pa. purpose of discovering whether coal 221; McGafferty v. Griswold, 99 Pa. in paying quantities is in the land, 270. the latter fails to bore within the °md. time. The owner may regard the op- '76id. It is said that the expectant tion as lapsed, and bore himself, lessee would have to tender a lease The court, at least, will refuse a pre- naming a rent that would be fair, be- liminary injunction against the own- fore bringing the action. er. Davies v. Maxwell, 5 Kulp, 351. 'Beilman v. Weinman, 139 Pa. 143, The court observed that the owner's 21 Atl. 29. boring did not prevent the other The owner will not be compelled party's boring also, specifioally to perform if, the agree- 'M'Olowry y. Croghan, 31 Pa. 22. 4 LANDLORD AND TENANT. or upon Ills ability to give the possession.^* Though, e. g.. A, a life tenant, having contracted to make a lease, before the time for performance arrives, dies, and the remainderman refuses to make the lease, A's executor will be liable in damages.-'^ And the lessor is not discharged from liability for not giving posses- sion because he has been unable to give it on account of the re- fusal of a prior tenant to surrender the possession.^ ^ Whether, if this refusal was without right, and unexpected, the lessor would be liable, is, perhaps, doubtful. In Cozens v. Stevenson}^ a written lease for two years described the property as "now oc- cupied by G. W. H.," a tenant. G. W. H. improperly refused to give up possession until he was evicted under landlord and tenant proceedings, nine months after the commencement of the term. It was held that there was no implied covenant of the les- sor to give the lessee possession at the beginning of the term. On the other hand, in Steel v. FricV^ Buffington, P. J., told the jury that if the tenant could not obtain possession of the prem- ises "either by the act of Steel (the lessor) or the want of right or power to give possession," the tenant could recover damages. In Yeager v. Weaver^^ the same result was reached, when the tenant of the preceding year refused to vacate, as also in AHe- gacrt v. Smart,^^ where the preceding tenant was ultimately dis- possessed by proceedings under the landlord and tenant act. Damages can be recovered for breach of an oral promise to make a lease exceeding three years, viz., damages for work done and expense incurred under the direction of the intending lessor in developing the coal on the land, the discovery of which was the condition on which the lease was to be made.^'' "Allegaert v. Smart, 10 W. N. C. "5 Serg. & R. 421. 29; Yeager v. Weaver, 64 Pa. 425; "50 Pa. 172. Steel V. Frick, 50 Pa. 172. '" 64 Pa. 425. "M'Glou-ry v. Groghan, 31 Pa. 22. " 10 W. N. C. 29. "Steel V. Frick, 50 Pa. 172; Yeager "Hcilman v. Weinman, 139 Pa. V. Weaver, 64 Pa. 425. 143, 21 Atl. 29. AGREEMENT TO LEASE. 5 5. Measure of damages. — For tLe omission to execute the lease, or, having executed it, for the failure to give the tenant posses- sion, the tenant may recover damages. The proper measure of damages will not be the worth of the bargain, i. e., v?hat the ten- ant could have made on the farm, in the absence of bad faith or of a refusal to perform the promisor's covenant Vi'hen he might do so,-'* nor even, apparently, if the promise to lease is oral, vyhen the promissor could carry out his promise.^ ®^ When the lessee has paid money to the lessor or another with the consent of the latter, in order to procure the lease, he will be entitled, on disap- pointment, to recover it with interest^® The lessee, expecting to get possession, but being refused it, has to haul his goods away and store them in a barn, and put his family in an almost unten- antable house at another place.^" The premises being a hotel, the lessee, after taking the lease, the term under which began three months later, sold his house and his personal property at a vendue for the purpose of preparing to occupy the hotel. He bought furniture for the hotel, but was compelled, after some months, failing to gain possession, to sell it He was then with- out a house, and was compelled to board.^^ In these cases, com- pensation was allowed for the facts stated. In Smart v. Alle- gaert ^^ however, the court refused to allow the tenant to show that, expecting to get possession of the desired premises, he had laid in a stock of goods which his failure to gain possession com- pelled him to sell at a loss; that he had been obliged to store ^'M'Clowry v. Croghan, 31 Pa. 22. jection by the defendant. In Wolf v. ^iMcCafferty v. Griswold, 99 Pa. Studebaker, 65 Pa. 460, the value of 270. the bargain was laid down as the ^'M'Clowry v. Croghan, 31 Pa. 22; measure of damages for refusal to al- ifcCafferty v. Grisicold, 99 Pa. 270. low tlie tenant for one year under a "Steel V. Frick, .56 Pa. 172. Dam- verbal lease to take possession, but ages recovered, $315.91. that measure was not controverted by ^Yeager v. ^^'eaver, 64 Pa. 425. the defendant. Damages, vim., $910, were recovered. ^'8 W. N". C. 217; Allegaert v. The value of the lease was proved in Smart, 10 W. N. C. 29. this case but apparently without ob- 6 LANDLORD AND TENANT. them ; that they fell in price, and were damaged by storing. If B accepts a lease from A for tract X, on A's verbal promise to make a lease for the adjoining tract Y, and B puts down an oil well on X, only because he expects the lease of Y, he will be entitled to nominal damages only for A's refusal to make the lease of tract Y, if he has made as much money by the operation of X as he has expended.-''* When the lease or agreement is in writing, and the lessor is guilty of a fraud, the measure of dam- ages will be the value of the bargain.^'' But if the promise to lease is oral, the voluntary refusal to keep it will not expose the promissor to liability for the value of the bargain.^^ The de- fendant, s\ied for refusing to give possession to his lessee, can- not show, in mitigation of damages, that the plaintiff obtained another farm, or another occupation, which paid him better than the farm in question would have done.^* Ifo action can be brought against the lessor for his announced decision not to al- low the tenant to take possession, until the commencement of the term.^' 6. Merger of agreement in the lease. — Ordinarily the written lease will be assumed to express the final form of the intetitions of the parties, and anterior different intentions wilt be under- stood to have been abandoned. If, e. g., tibe oral contract is for a lease of two years, and the written lease actually made, and ac- cepted by the lessee, is for one year, and no explanation of tlie inconsistency is offered except that the written lease was a mis- take, it will be presumed to express the final intent of the par- ties.^' When the court, however, discovers that the lease is not "the legal equivalent — the formal embodiment — of the previous ^McCafferty v. Grisioold, 99 Pa. "McCafferty v. Ch-iswold, 99 Pa. 270. 270. ''Smart v. Allegaert, 8 W. N. C. -'Wolf v. Studeiaker, 65 Pa. 460. 217. In Hoy v. OronoUe, 34 Pa. 9, 'WlicUnger v. Forry, 6 Del. Co. the profits which the plaintiff would Rep. 154. have iD-ade were stated to be tlie "Lea v. Love, 14 W. N. C. 75. Cf. measure of the damages. McCafferty v. Grlsivold, 99 Pa. 270. AGREEMENT TO LEASE. 7 agi'eement," and that it was not intended to supersede that agree- ment, the agreement will be enforced, after the making of the lease. A orally agreed with B that, with a view to B's accepting a lease of the premises for iron works, he would erect a building on his lot, according to plans furnished by B, and B agreed to accept the lease for ten years, at an annual rent equal to 9 per cent of the cost of the building. The building was erected and the lease made. Within thirteen months, B became insolvent, assigning for the benefit of creditors, and, shortly afterwards, the assignee gave up the premises. On account of the special arrangement of the building made to accommodate B, it was im- possible to let it except for a small rent The loss to A during the remainder of the ten years of the term would be $40,000. It was held that the original contract survived; that for its breach, A was entitled to $40,000 damages, and that he was enti- tled to claim a dividend on this sum, from the assigned estate.^* ^Re Reading Iron Works, 150 Pa. 369, 25 Atl. 617. CHAPTEE 11. CONTRACTS DISTINGUISHABLE FROM LEASES. 7. Lease and contract to convey. 8. Conveyance, and not lease. 9. Lease, and not conveyance. 10. A cropper. IL Lease for the raising of a crop. 12. Lessee, and not partner. 13. Employee, and not lessee. 14. Practical consequences of distinction. 15. License to live on land. 7. Lease and contract to convey. — It sometimes happens that the contract between the parties is hoth a lease and an agree- ment to convey the fee within or at the end of the term, at the option of the lessee, and upon his performing certain stipula- tions. A lease, e. g., for forty-nine years, authorized the tenant to erect buildings and improvements, and provided that, at the expiration of the term, the parties should choose seven ap- praisers, who should appraise the land, and, separately, the buildings and improvements. It provided further, that if the lessor paid the lessee the appraised value of the latter, they should become his, biit, if he refused to pay for them, the tenant might pay him the appraised value of the land, and he should then convey the premises to the tenant, his heirs, and as- signs. This contract gave not only a leasehold to the tenant, but an equitable interest in the fee.^ The tenant, under a lease 'S7j/ V. Beaumont, 5 Serg. & R. 124. on the termination of the tenancy by This equitable interest could be bound A's act, he should compensate B for by the lien of a judgment against the aU his improvements, gives to B no- lessee, freehold interest on which a judg- A lease for one year by A to B and ment becomes a lien. Krause's Ap~ so from year to year so long as A and peal, 2 Whart. 398. B should please, which provides that, S CONTRACTS KISTINGUISHaBLE FROM LEASES. » for seven years, had the right to take, at a stipulated price, a portion of the premises on ground-rent during the first three years. Before he exercised this right, he erected buildings on the premises. Materialmen acquired a mechanics' lien on the fee, which was afterwards conveyed to him by the lessor.^ Tlie right of purchase, under a lease, passes to the assignee of it, and is enforceable by the latter against the lessor or a grantee of the reversion, who has notice by the possession of the prem- ises by the tenant or his assignee, or otherwise, of the lessee's right of purchase.^ But no interest in the reversion is created by a stipulation in the lease that, when the land shall be offered for sale, the first opportunity to purchase shall be given to the lessee, on terms as favorable as those given to any one. The lessee has no right to purchase valid against the lessor's grantee.* A lessee who has an option to purchase is, when the purchase is made, to be regarded as owner ab initio so far that, if he has, agreeably to his contract with his lessor, taken out a policy of insurance "payable to him as his interest may appear," and, a fire occurring before the exercise of his option, the insurance money is paid to the lessor, he will be entitled to receive it from the lessor.* 8. Conveyance, and not lease. — An Instrument calliug itself a "lease" of all the coal beneath the surface, declaring itself "perpetual" until all the coal shall be mined, securing all rights and privileges conferred in it to the heirs and assigns of the respective parties, is a conveyance in fee of the coal, and not a lease, though it provides for a periodic payment of a royalty, authorizes distress for default in such payment, and 'Gaiile V. Bilyeau, 25 Pa. 521. A 'Kerr v. Day, 14 Pa. 112, 53 Am. mechanics' lien entered during the pe- Dec. 526 ; Napier v. Darlington, 70 riod of the option will not be struck Pa. 64. off, after the expiration of that pe- 'Elder v. Robinson, 19 Pa. 364. riod, unless it appears that it lapsed '^People's Street R. Co. v. Spencer, without exercise of the option. Mor- 156 Pa. 85, 30 Am. St. Rep. 22, 27 gan v. Bloecker, 6 Pa. Dist. R. 659. Atl. 113. Cf. Barnett v. Plummer, 19 W. N. C. 117. 10 LANDLORD AND TENANT. makes the grantee's rights forfeitable for the absence of suffi- cient personalty on the premises to satisfy, by distress, the royalty due.® The use of the word "lease" and the presence of ■stipulations in the instrument which are often found in leases do not make it a conveyance of a term, which a lease is, but of the fee.'' An agreement by A to "let" his farm to B, with the ordinary stipulation in leases concerning good husbandry, and reserving to A one half of the crops, followed by a provision that if B shall perform the stipulations, and in addition do such work as A and his wife may request him to do, furnishing fuel, provisions, and nurses, in case of sickness, "then I, the said A, and wife, do hereby grant to him, the said B, one day after my and my wife's death, the farm, . . . his heirs ;and assigns forever, and free of all encumbrances," is a con- veyance in fee, with conditions subsequent, or a contract for such a conveyance, enforceable in equity.* 9. Lease, and not conveyance.— A grant for a limited time, e. g., for fifteen years, of the right to take stones from a tract, is a lease, and not a sale of the coal. The stone not actually taken within the fifteen years would be the property of the lessor as before the lease was made.^ A demise for a term of years of land "with the sole and exclusive right and privilege, ■during said period, of digging and boring for oil and other minerals, and of gathering and collecting the same therefrom," is a lease, and not a sale.^" The leasehold interest, however 'Delatvare, L. d W. R. Go. v. San- piece of meadow ... at tUe rate derson, 109 Pa. 583, 58 Am. Rep. 743, of $15 per acre, to be paid by the said 1 Atl. 394; Sanderson v. Scranton, B or his legal heirs annually, to the 105 Pa. 469. The coal as a sepai-ate said A, his heirs and assigns." estate in fee, was taxable, independ- 'Fritz v. Menges, 179 Pa. 122, 36 ently of the surface. Atl. 213. ' Cf. Krider v. Lafferty, 1 Whart. "Duncan v. Hartman, 143 Pa. 595, 303. Where the use of the word 24 Am. St. Rep. 570, 22 Atl. 1099. 'iet" was deemed consistent with the "Brown v. Beecher, 120 Pa. 590, 15 creation of a fee. The words were A Atl. 608; Duhe v. Hague, 107 Pa. 57 ; "hath let unto the said B, his legal Kile v. Oiebner, 114 Pa. 381, 7 Atl. iheirs and representatives, a certain 154. CONTRACTS DISTINGUISHABLE FROM LEASES. 11 long, is a chattel real, i. e., personalty/^ — not bound by the lien of a judgment/^ and vendible on a "fi. fa." and without a sheriff's deed.^* 10. A cropper. — A distinction must be observed between a ten- ant and a cropper. A tenant has a right of occupancy and posses- sion of land for a term, which is valid against the landlord and against all other persons. He is, for the time being, an owner of the land, and as such entitled to the ordinary remedies of an owner for the defense or recovery of his possession; e. g., tres- pass, ejectment. Nor is he the less a tenant because the rent which he is to pay consists of a fraction of the crop which he is to raise. ^* The crop usually belongs to him until he divides and sets apart the lessor's share from his own. And he is more than the owner of the crop. He is the owner of the soil itself for the period of his term. On the other hand, a cropper is one who acquires no right of continuous and exclusive possession of the soil; no interest in it which the law vindicates by trespass or ejectment. -"^ He is a mere employee of the owner of the land, whose work is to till the soil and harvest the crop, and whose distinctive name, "cropper," is bestowed on him because he receives compensation for his labor and skill in a share of the crop which they produce. The crop belongs to the person to whom the soil belongs until he divides and sets apart to the em- ployee the share which they have agreed he shall receive. Hence, the owner of land, E, agreeing verbally with F "to put out from 25 to 30 acres of the farm in wheat, E to have two thirds of the crop, and R one third," the whole crop, it was held, passed with a sheriff's sale of the land while it was in the ground, to the pur- '^Brotim V. Beecher, 120 Pa. 590, 15 '-'Steel v. Frick, 56 Pa. 172; Broton Atl. 608. V. Jaquette, 94 Pa. 113, 39 Am. Rep. ^-Krause's Appeal, 2 Whart. 398. 770; King v. Bosserman, 13 Pa. Su- ^'Dalzell V. Lynch, i Watts & S. per. Ct. 480. 255; Williams v. Downing, 18 Pa. '^'^Adams v. McKesson, 53 Pa. 81, 60; Lerew v. Rinehart, 3 Pa. Co. Ct. 91 Am. Dec. 183; Fry v. Jones, 2 50; Sterling v. Com. 2 Grant Cas. Rawle, 12; Steel v. Frick, 56 Pa. 172. 162. 12 LANDLORD AND TENANT. chaser. F owned and had a right to take away none of it.** On the other hand, when B is put in possession of a grist mill by the owner, A, for a term, he undertaking to deliver to A one third of the tolls taken, in kind, B is a tenant of the mill.*^ An agreement whereby A agreed to "let" to B "part of the Worden farm" for one year ; B to put one field in corn, and work it well, to put another field in oats in the spring, to sow so much of the land in wheat and rye in the fall as A may wish, to haul out all the manure, and put it on the ground before sowing, to keep the fences in good repair, to pay the taxes for the year, and to de- liver to A one half of all the grain at market when ready for delivery, B to have all the hay and all the pasture during the year, — constituted B a tenant, not a cropper ; because these stipulations indicated that B was intended to have the posses- sion.-'* 11. Lease for the raising of a crop. — The fact that the owner of land confers on A, for a money consideration, the right to one field for the purpose of raising crops, does not make him a crop- per. He becomes tenant of the field from the time when he is, according to the agreement, to take control of it, until he cuts and removes the crop. If the agreement is that he is to have the land "for the raising of two crops," his tenancy does not end with the taking away of the first crop, and, in the interval be- tween the taking away of this crop and the planting of the sec- ond, he may turn his cattle into the field,* ^ in order that they may feed on the damaged part of the crop which has been left, or may otherwise occupy it. 12. lessee, and not partner. — A partnership for the purpose of '"Adams v. McKesson, 53 Pa. 81, 91 no expectation of compensation from Am. Dec. 183. the lessor, the tenant's father, cannot "Fry V. Jones, 2 Rawle, 12. subsequently, on being divorced, re- "Steel V. Frick, 56 Pa. 172. cover compensation from the lessor. The tenant farming on the shares, Bathbone v. Rathbonc, 23 Pa. Super, and agreeing to do all labor in good, Ct. 207. workmanlike manner, his v,\ie, who "Inrin v. Mattox, 138 Pa. 467, 21 does manual labor on the farm, with Atl. 209. CONTRACTS DISTINGUISHABLE FROM LEASES. 13 farming, to "which the owner of the farm contrihates the farm for a term, and the farmer his time, skill, and instruments of husbandry, is possible ; but the court refused to find that a part- nership was produced by an agreement between A, owner of land, and B, that B, for one year, in consideration of one half of the crop, should "farm for" A his land on the following terms : Each party was to find one half of the stock, including •cattle, poultry, hogs, and one half of the seeds for crops ; B was to find all the farming implements, and all the working stock, and all the requisite labor, to pay all the road tax, and one half of other taxes; to submit to A, every three months, an account ■of receipts; to keep the fences in repair, to cut no timber, to keep the farm in good order. A was to pay one half of the wheelwright's and the blacksmith's bill, and might keep one horse ■on the premises for his own use. This agreement lacked the features of a partnership. It provided for no division of prof- its, no responsibility on A's part for losses, and no joint owner- ship of anything. One half of the crop was to be delivered to A, though it had been raised at a loss to B. The contribution ■of stock by A to the work did not make the stock joint property. B was merely a tenant of the farm, having the use of the farm and of the property of the landlord, and making compensation for the use of both kinds of property by one half of the crops. Hence, A had no partner's lien on the personalty on the farm for a balance due him by the tenant.^" 13. Employee, and not lessee. — The owner of land may em- ploy one to move on it with his family, in order to do the farm work, take care of the cattle, milk the cows, deliver the milk, etc., stipulating to pay him $1 per day and allow him the occu- pancy for himself and family of the house on the premises. -Such a person is not a cropper, nor a tenant paying rent. His -"Brown v. Jaquette, 94 Pa. 113, 39 property passed to the sheriff's ven- Am. Rep. 770. Having made no dis- dee without liability to A. Cf. Frits tress nor claimed rent from the pro- v. Menges, 179 Pa. 122, 36 Atl. 213. 'Ceeds of an execution, the tenant's 14 LANDLORD AND TENANT. possession of the land and the cows, and the farm implements is that of his employer, the owner. Whenever, therefore, the owner has a right to terminate the employment, he has a right to terminate the occupancy of the farm and house of the em- ployee. Hence, when for sufficient cause under the contract the employ is terminated, if the employee refuses to vacate the house, his goods can be lawfully removed by the owner. It is error to allow the jury to find that, although the employee can be properly dismissed from the service within a year, he cannot be properly expelled from the house until its expiration.^^ 14. Practical consequences of distinction. — The distinction be- tween tenant and cropper is important because of the different legal incidents of the two relations. To the former, but not to the latter, attaches the landlord's right of distress,^^ of claiming for rent from the proceeds of an execution, of resorting to the special remedies for the recovery of possession. The tenant, hav- ing a right to take possession, may sustain an action on the land- lord's implied covenant if prevented from taking possession.^* The cropper would have no such right. The tenant may retain his share of the crop despite a sheriff's sale of the reversion. The cropper would have no share in the crop until it was set apart to him ; and the whole crop would pass to the sheriff's vendee.^* The tenant could defend his possession, even against the land- lord ;^^ the cropper, or the employee could sustain no action, trespass or otherwise, for this purpose, since his right is only ■'Bouyman v. Bradley, 151 Pa. 351, the necessary buildings and mactin- 17 L. R. A. 213, 24 Atl. 1062. ery. C was not a sublessee or as- A leased one half of a culm bank to signee of the lease, but a mere em- B for the purpose of screening the ployee of B, and acquired no interest coal and conveying it to market; B in the culm bank, or the coal. Ad- paying a certain price per ton of coal vance Coal Go. v. Miller, 7 Kulp, 541. sold. B made a contract with C to ''Fry v. Jones, 2 Rawle, 12. clean and prepare the coal for the '-Steel v. Frich, 56 Pa. 172. market. C was to deliver three hun- " Cf. Iniin v. Mattox, 138 Pa. 466, dred tons of coal daily to the cars 21 Atl. 209. and was to be paid 20 cents per ton. "Adams v. McKesson, 53 Pa. 81, C was to provide, erect, and maintain 91 Am. Dec. 183. CONTRACTS DISTINGUISHABLE FROM LEASES. Ifr to a quasi-possession, the true possession belonging to the owner of the soil.2« 15. License to live on land. — A distinction is drawn in Callen V. Hilty^'^ between a lease of land and a "mere license to live upon land and to do certain acts thereon." The latter, it is said, "niay be granted without creating the relation of land- lord and tenant, or giving any other rights to the occupant than those conceded or granted by the license." An agreement un- der seal witnessed that A "doth let or give" B, "privilege of living four years on his farm" from April 1st. B was to clear 35 acres, build fences, put up such buildings as might suit his convenience; A furnishing the boards, nails, and lath. The clearing was to be at designated places, 4 acres of the clearing, to be put in grass. One third of the plowland was not to be seeded when B left the premises. A reserved the use of all the timber except what might be necessary for the buildings, rails,, and firewood of B. This, said Coulter, J., was no grant of the farm for any time. The inference drawn was that A could enter to take cut timber away. Hence, B suing A for failure to furnish boards, nails, and laths, A could set off the value of timber cut by B, and sold by him. The timber cut in the pro- cess of clearing, if not used on the premises for fences, for build- ing the house, and for firewood, belonged to A, and he had a right to enter in order to take it away. ^Bowmcm v. Bradley, 151 Pa. 351, " 14 Pa. 286. 17 L. R. A. 213, 24 AtL 1062. CHAPTER IIL THE LEASE. 16. Who may be lessor. 17. Lease to two or more. 18. Rival claimants of leasehold. 19. Phrases sufficient. 20. What makes a lease. 21. Noncontractual relation. 22. Lease of sawmill. 23. Lease or mortgage. 24. Vendee, not lessee. 25. Not a lessee. 26. Existence of lease. 27. Construction of written lease. 28. Execution of lease. 29. Delivery. 30. Execution by agent. 31. Mode of execution. 32. Undisclosed principal. 33. Lease by two or more owners. 34. Ratification by owner by estoppeL 35. Ratification by the lessee. 36. Statute of frauds. 37. Signature. 38. Oral contract to make a lease. 39. Exception from operation of statute. 40. Effect of statute on lease. 41. Necessity of recording. 16. Who may be lessor. — Any o^vner of land, if of sound mind, and adult, may make a lease of it. The guardian of a minor, or other trustee, if the character of the trust allows, may make the lease. The lessor may be a county,^ a city,^ a borough. It ^Jvergen v. Allegheny County, 204 HJIumprrt v. Hay, 202 Pa. 340, 51 Pa, 501, 54 Atl. 281. As to lease of Atl. 968; ilihlhaner v. Infantry state land by forestry commission, Corps, 205 Pa, 180, 54 Atl. 776. ride Uf. Forestry Commission Poio- Wilkes-lnirre could lease to Luzerne ris, 28 Pa. Co. Ct. 465. county for 999 years a tract of land 16 THE LEASE. 17 may be any non-municipal corporation.' One of several ten- ants in common may make a lease of his undivided interest in the land. If he makes a lease intended to be of the whole in- terest in the land, and receives rent from the lessee, he will be compellable to account to the other cotenantu for their proper share, under the statute of 4 and 5 Anne, chap. 16, § 27.* A firm may make a lease. ^ A lessee,® or his assignee of the lease'' may lease the same premises, or a part of them. 17. Lease to two or more.r— A lease may be made to two or more persons, who become tenants in common for the period of the lease. They may change this relation subsequently. One of two may assign his interest to the other, who thereupon will become the sole owner of the leasehold. After such an assign- ment, the former colessees may form a partnership to conduct operations on the leased premises without the leasehold becom- ing the property of the firm.* Colessees will be presumed to have equal rights ; but evidence dehors the lease will be heard to show that their interests are unequal.^ The lessor's implied covenant in a lease to two or more persons will be considered to be joint or several, as the tenants are joint lessees or in com- mon. A covenant for quiet enjoyment, e. g., will follow the nature of the estate. Hence, if the lessees take as tenants in for a court house. Cf. Mahon v. Lu- he may be made to account to the serne County, 197 Pa. 1, 46 Atl. 894; other cotenants under the act of Mahon v. Morton, 175 Pa. 279, U June 24th, 1903, P. L. 237. Cf. .A'or- Atl. 660; Bennett v. Norton, 171 Pa. ris v. Gould, 15 W. N. C. 187; Luck 221, 32 Atl. 1112. V. Luck, 113 Pa. 256, 6 Atl. 142: 'Ardesco Oil Co. v. North Ameri- Baker v. Lewis, 150 Pa. 25], 24 At!. can Oil & Min. Co. 66 Pa. 375. The 616. corporation was one for manufactur- ''Beuyley v. Tarns, 17 Pa. 485. ing and refining oil. Such a corpo- "Ardesco Oil Co. v. North American ration can absolutely convey its prop- Oil & Min. Go. 66 Pa. 375. erty or can lease it. ''Brwley v. Tarns, 17 Pa. 485. 'Kline V. Jacols, eS Pa. 57 ; Enter- 'Douty v. Bird, 60 Pa. 48. The prise Oil & Gas Go. v. National Tran- partners may, however, have a joint sit Co. 172 Pa. 421, 51 Am. St. Eep. possession, and therefore bring a 746, 33 Atl. 687; Lancaster v. Flow- joint trespass q. c. f. ers, 11 Pa. Dist. R. 495. If one co- 'Smiley v. Gallagher, 164 Pa. 498, tenant is himself in sole possession, 30 Atl. 713. Land. & Ten. 2. 13 LANDLORD AND TENANT. common, a release of this covenant by one of them will not be binding on the other.^" 18. Rival claimants of leasehold. — The membership and the purposes of an incorporated "Infantry Corps of State Fenci- bles'' and of an unincorporated military body being nearly identical, their names being confused, a lease naming the form- er as lessee, and executed by its president and secretary, and sealed with its corporate seal, will be deemed the property of the corporation, and not of the other body, which has been at- tached to a regiment of the l^ational Guards of Pennsylvania." 19. Phrases sufficient. — "It is an established rule of law that whatever words are sufficient to explain the intent of the part- ies, that the one should devest himself of the property and the other come into it for a determinate time, whether they run in the form of a license, covenant, or agreement, will, in construc- tion of law, amount to a lease as effectually as if the most proper and pertinent words were made use of for that purpose. . . . A license to inhabit amounts to a lease. . . . ^Yo^d3 in an agreement that A shall hold and enjoy, if not accom- panied by restraining words, operate as words of present de- mise."-"^^ The word "lease" is unnecessary to make a lease. ■'^ The compensation for the use of the land may be a lump sum paid at the beginning, or to be paid at the end of a term of several years.'^* It may be payable in money, in grain, in ore.^° It may be a determinate sum of money or a sum to be iixed by the quantities of ore, coal,^'^ oil, or stone to be extracted during the term. The compensation may be made in the less. ^"Eisrnliart v. Slaymaker, 14 Serg. "Moore v. Miller, 8 Pa. 272; Buss- & R. 153. man v. Ganster, 72 Pa. 285. "Mihlhauer v. Infantry Corps, 205 "Stover v. CddintUadcr, 2 Pennyp. Pa. 180, 54 Atl. 770, Affirming 10 Pa. 117. Dist. R. 585. ^'Kitnldc v. Philadelphia Rifle Cluh, "Watson V. O'Bern, 6 Watts, 362; 10 PliiUi. 52. Kunkle V. Philadelphia Rifle Club, 10 '"Greetioiigh's Appeal, C Pa. 19. Phila. 52j Bnssinan v. Ganster, 72 Pa. 285. THE LEASE. 19 than ordinary rate at which the lessee is to sell to the lessor articles of the manufacture of the former, such as lumber.^''^ An agreement letting premises to X for one year, X paying "a rent of 75 cents per thousand for all bricks made and burnt during the term, as soon as each kiln is counted" is a lease.^^ The rent may take the form of a building to be erected on the premises and left there at the expiration of the term.^® 20. What makes a lease.— An agreement that B "may have the pri-\dlege of taking coal out of the P mine, he paying . . . the sum of 25 cents per cubic yard of coal so taken out, as rent for the privilege" was held to be a lease.^° An agreement wit- nessing that A "doth . . . let on a lease of six years" unto B and C, stone cutters, "the privilege of quarrying and hauling away all the stone they may be able to find use for, during the said term of six years . . . provided they fulfil the follow- ing conditions, viz. : they agree to pay unto the said A . . . a quarry rent of 7 cents for every perch ... of common building stone they take out, etc. They also engage to fulfil any and all of the contracts A may agree for in such materials and workmanship as the conditions of such contracts call for," — is a lease, not a mere privilege, of which B could avail him- self or not, as he chose. As it deprived A of control of the quarry, it v/as B's and C's duty to operate it so as to yield to A a compensation for the loss of his possession.^^ The Phila- delphia Eifle Club agreed March 2-±th, 1873, with K, that he was to be permitted to occupy, for himself and family, such rooms in the main building and such piece of ground within the closed property as the committee might designate until March 31st, 1876, the club reserving the right to make alter- " Mitchell V. Com. 37 Pa. 187. the party of the second part the right "Noll V. Kline, 2 York Legal Rec- to mine and take away coal from the ord, 118. S vein," made a lease, and not a. ^'Gregg v. Irish, 6 Serg. & K. 211. mere license. Offerman v. Starr, 2 ''Greenough's Appeal, 9 Pa. 19. Pa. St. 394, 44 Am. Dec. 211. Cf. Oram's Estate, 5 Kulp, 423. -'Watson v. O'Hern, 6 Watts, 3li2. ''Hath demised, leased, and let unto 20 LANDLORD AND TENANT. ations and repairs for a restaurant or otherwise. K, in con- sideration of $500 per year, payable quarterly "during said term," was to enjoy the privilege of selling certain articles upon the premises. He agreed to furnish glasses, light, fuel, and servants, music, and the service of conducting the restau- rant in a proper manner. He was to have the ten-pin alley and keep it in good condition. In default of his removing at the "expiration of his term," the club reserved the right to take possession, K authorizing an amicable action of ejectment, a confession of judgment, and the issue of habere facias posses- sionem. This created a tenancy, some of the indicia that it did being the mention of a term, the provision for compensation quarterly to the club, and for the entry of a judgment of eject- ment. It did not create a mere personal license which ended with the death of K shortly after he entered into possession.^^ An agTeement for the use of the roof and the north wall of a building for the purpose of displaying stcreopticon views, on the roof and wall, for nine months, and providing for a rent, for distress, and that, if the tenant holds over, it shall be for a year, and on the same terms, and so on from year to year, is a lease.^^ 21. Noncontractual relation. — If the owner of a farm devises a life estate in it to B, and to C the remainder, and also "the refusal of renting the farm" during B's lifetime at a certain rent, the taking of the land by C under this refusal establishes the relation between B and him of landlord and tenant. It -^ICunkle v. Philadelphia Rifle Club, to plant posts in a vacant lot and 10 Phila. 52. The club was enjoined stretch signs upon them, for advertis- against interfcring with the posses- ing purposes, is a lease, whatever the sion of the administratrix. language used. It matters not -■'Oo/,'/ord V. Sirdlinger, 196 Pa. whether it is termed a privilege, or 162, 46 Atl. 374. The tenant could license, or lease. Any language by not romove within the term of ninw wliich the possession is transferred months and escape rent, nor within for a limited time, for the stipulated any hold-over year, but could remove return, creates a tenancy and is, in at the end of such hold-over year. fact, a lease. Pickei-ing v. O'Brien, An agreement giving to B the right 23 Pa. Super. Ct. 125. THE LEASE. 21 does not determine B's life estate, or give C any other interest in the land than that of a lessee during B's lifetime. Pay- ment of the rent could be compelled, not by the orphans' court, but by the modes open to the ordinary landlord.^* 22. Lease of sawmill. — A, owning a sawmill and timber land, contracted with B that B should stock and saw and manufacture boards at the sawmill for "the term of three years." B bound himself to keep the mills running, to saw and manufacture good, merchantable lumber, to deliver it to A at Allegheny; to keep the mills in good repair. B was to have the privilege of stocking the mills from land of A, taking all the sound timber from it. He was to have the use and occupancy of all the houses, stables, and out-houses, with the cleared land attached to the mills, free from rent or charge. B was to manufacture the lumber and boards in such thicknesses as A should direct. On the failure of B to observe his contract, it was to end, and A to have the right to "take possession." A bound himself to pay to B $7 per thousand for boards and lumber delivered at Allegheny. This contract made a lease of the mills, and not a mere bailment of them. The lumber after manufacture, but before delivery, was the property of B, and, as such, subject to a sale in execution for his debt. The exemption from rent, the use of the word "term," the stipulation for keeping the premises in repair at the expense of B, and for his surrender at the "termination of the contract," were indications that B was to be a tenant.^^ 23. Lease or mortgage. — A lease might be made as the equiva- lent of a mortgage, with the right of possession in the mortgagee ; but the fact that the lessor is indebted to the lessee, and that the agreement is that the rent agreed upon is to be retained by the lessee as payment "pro tanto" of the debt, does not con- "Springer's Appeal, 111 Pa. 274, '^Mitchell v. Com. 37 Pa. 187. 2 Atl. 352. In the absence of any different agreement, a tenancy from year to year was created. 22 LANDLORD AND TENANT. stitute the agreement a mortgage. A, owing $1,000 to B, lets his land to B for the term of ten years, at a yearly rental of $300, of which $132 is to be paid by B to the ground-rent land- lord, and from the residue of which taxes and water rents are to be paid, and any balance is to be applied to the debt. The lease not being defeasible on its face, the court found no evidence dehors that it was agreed to be subject to a defeas- ance.^® 24. Vendee, not lessee. — One who enters into possession under a contract to sell, and who continues in possession without com- pleting the purchase, on account of the vendor's inability to make a title clear of encumbrances, does not become a lessee, and as such liable for use and occupation.^'^ The sale of an interest in the nature of an easement does not make the vendee a lessee of the vendor. A and B, owning adjoining land, agreed that, at their joint expense, a boiler, engfne, and stack should be put up on B's land, and be used by both as a common source of power. B did not thereby become landlord of A, and A's denial of his right to the use of the boiler, etc., would not cause a forfeiture of his right.^^ 25. Not a lessee. — An agreement by A, who is in possession of land, with B, an adverse claimant, to abandon it by a certain day, does not make A the tenant of B.^® An agreement by X, who becomes lessee of a vendee of land, or by his assignee of the lease, with the vendee to pay the rent to the vendor, does not create a tenancy between the vendor and X, or X's assignee, nor does it constitute the vendor the vendee's assignee of the '■^Balo V. Schick, 57 Pa. 319. Hence, free, the lessor will pay $1,500 for a purchaser of the reversion at a the building. Though this is a lease, .sheriflf's sale on a lien posterior to it subjects the lessor's fee to a nie- the lo.ase, could not disturb the les- chanic's lien for the building. Wood- see's possession during the term. icard v. Leiby, 36 Pa. 437. A lease may stipulate that the les- "Bardsley's Appeal, 20 \Y. N. C. 90. see shall erect, during the five years '^Hill v. Bill, 43 Pa. 528. term, a building, and that, in addi- "Miller v. M'Brier, 14 Serg. & R. tion to the use of the premises rent 382. THE LEASE. 23 lease.^* An agreement in the midst of a term between lessor and lessee, to increase the rent, does not make a new lease or tenancy.^^ Under an ordinance of a city, the office of super- intendent of the market was let out to the highest bidder, he having the right to collect and keep the rents of market stalls. A cellar under the market house had never been used for the storage of meat and vegetables. The city fitted up a portion of it for the confinement of tramps. This use of it caused odors and efiluvia to pervade the entire cellar, so that it could not be used for storage of proditce and meat. The inability of renters of stalls to use the cellar made renting of some of the stalls im- possible. This was no ground of recovery by the superintendent against the city, since he had not obtained a lease of the cellar.^^ 26. Existence of lease. — Whether a lease has been made or not is a question of fact, which must, in jury trials, be de- termined by the jury, and not by the court. A writing intended to be a lease becomes such only when signed by the parties or otherwise adopted. If it purports to be signed, whether the parties actually did the signing is a question of fact. If it is not signed, whether the parties have assented to it, and so adopted it, is also for the jury.^^ If B, who has been in pos- session under a former lease, accepts a receipt for rent paid, which contains the terms of a lease, and fixes a different period for the beginning of the year, whether it constitutes a new lease or changes the point of commencement of the year under the old, or does neither, depends on the intention of the parties. The lessee may prove that he accepted the receipt with the understanding that his position under the former lease should in no respect be altered. Whether he did so, or whether a new commencement for the year was agreed upon, and the receipt was the expression of this agreement, is for the jury to decide.^* "^Reiser v. Pott, 3 Pa. St. 179. "Rothermel v. Du?nn, 119 Pa. 632, ^'Taylor v. Wmt&rs, 6 Phila. i26. 13 Atl. 509. '-Aleadville v. Boush, 92 Pa. 327. ''Folsom V. Vook, 115 Pa. 539. 9 Atl. 93. 24 LANDLORD AND TENANT. A tenant already in possession under a lease procures from the lessor a written agreement to lease for a longer term. Whether the lessee accepts it as a substitute for the existing lease is a question of fact.*^ There being a writing containing the term of a lease for ten years, it is for tlie court to say whether it is binding on the lessor, who has not signed it, nor authorized in writing the person who does, to sign for him, and whether it is, according to its terms, a lease, or only the proposal of terms to be further canvassed, or whether, the writing not being a lease, there was an oral lease made, and if so, whether, reliance being had upon improvements by the lessee to take it out of the operation of the statute of frauds, the proven improvements would do so.** If the lease is oral, the jury must decide all its terms; whether, e. g., it was for one year or longer, etc.*^ 27. Construction of written lease. — The construction of a writ- ten contract of lease is for the court. The court may state to the jury what its construction is, or, referring to them the question whether the unsigned virriting has been adopted by the parties as the lease, may reserve the question of its proper inter- pretation.*® It is error, therefore, to allow the jury to say that an additional wood floor, put by the tenant onto a skating rink, was not an "improvement," the lease stipulating that all im- provements were to remain in the building.*^ But if the court allows the jury to construe the lease, no reversible error will have been committed, if the jury puts the proper construction upon it.*" When the lease is ambiguous, the intentions of the parties should be sought in the entire instrument. If that in- tention remains doubtful after exploring the whole instrument, '^Bergner v. Palethorp, 2 W. N. C. "Jones v. Eroll, 116 Pa. 85, 8 Atl. 297. 457. Tile question was whether the '"Dumn V. Rothermel, 112 Pa. 632, will created a lease for five ye;irs, 3 Atl. 800. with a right of renewal for another '"Shoemaker v. Beaver, 42 Phila. equal term, or whether it created n Leg. Int. 511. term of one year with u. right of re- '"FoUom V. Cook, 115 Pa,. 539, f) newal for five. The lease was con- Atl. 93. sidered by the trial court as ambigu- "Rarris v. Kelly (Pa.) 13 Atl. 523. ous. THE LEASE. 25. the circumstances oi the parties when the lease was made, and their subsequent acts, may assist in discovering it,*^ and even the previous parol negotiations and agreement to make the lease may be considered.*^ Occasionally tb? principle that the stipulations favorable to the lessor are to be construed most strongly against him is invoked. The lease, for a term of five years, e. g., containing the words "and said parties of the first part reserve the right absolutely to terminate this lease at any time by giving 30 days' notice in writing to second party to that effect," it was held that their right to cut off the term within the five years did not pass to the grantee of the reversion.** 28. Execution of lease. — A lease for a term not exceeding three years does not need to be in writing. If it is put in writing, it does not need to be signed by the lessor, unless his signature is,, by the agreement of the parties, the precondition to its going into effect. If the lessee signing takes possession, the assent to the lease manifested by word or act will make the lease operative. If the lessor, accepting the lease drawn up and signed by the lessee, but not himself signing it, demands the rent, or enters judgment in an amicable action, according to its terms, the lessee will be bound to pay the rent or to submit to eviction by the habere facias that may be issued on the judgment,** and the lessee, after the lessor's parol adoption of the lease, may re- cover damages for not being put in possession of the prem- ises.**''^ A lease for a term exceeding three years does not become binding, as such, upon the lessor by a parol adoption of it.*® The signature of the lessor at the place where witnesses usually sign will be a valid execution, if it was there made as. *^Berridge v. Glassey, 112 Pa. 442, "ScJiultz v. Burlock, 6 Pa. Super. 56 Am. Pep. 322, 3 Atl. 583. Ct. .573. '-Re Beading Iron Works, 150 Pa. "iFUckinger v. Forry, 6 Del. Co. 369, 24 Atl. 617; Cadwalader v. Rep. 154, 8 York Legal Record, 84. United States Exp. Co. 147 Pa. 455, ^''Jennings v. McGomb, 112 Pa. 518, 23 Atl. 775. 4 Atl. 812. '^McClintook v. Loveless, 5 Pa. r>i3t. R. 417. 26 LANDLORD AND TENANT. lessor, and not as witness.*^ When a lease is signed by A, as lessor, but with the understanding between him and the lessee that it is not to operate until A's wife signs it, the refusal of A's wife to sign it prevents its ever becoming binding, either on the lessee or on A, and A may therefore destroy it.*^ The lessee need not sign a written lease, even when, being for more than three years, it is within the statute of frauds.*^ Hence, a lease to a county may bind it, when accepted for it by the commis- sioners, although they have signed it and sealed it with their private seals, and not with the county seal.*® The written lease being made to B, it may be shown in a controversy between C and a creditor of B, with respect to the ovwiership of the crops on the premises, that B was merely the agent of C, to whom, therefore, the crops belong.^" 29. Delivery. — A delivery of the paper on which the lease is written may be made to the lessor or lessee only conditionally, to be void unless a certain thing happens. The lessee who physically delivers the lease to the lessor may show that he did so with the understanding that a copy of the lease was to be submitted to counsel for his judgment as to the legal effect of its stipulations, and that if he should think they would have certain legal effects, the lease should be ''declared off;" that the counsel put this interjsretation on them, and that he, the lessee, thereupon notified the lessor that he would not abide by the lease.''^ When it is so understood, the lease may be kept by the lessor. A physical delivery of it to the lessee would be unneces- sary. If the lease is signed by the tenant and his surety, and is then returned to the lessor, it is necessary, if it be understood that he is to sign it, that he should sign it with their knowledge and assent. If the lessor does not sign it until several days after "Benz V. Langan, 5 Northampton "Dauphin County v. Bridenhart, 16 Co. Rep. 139. Pa. 458. "Tatham, v. Lewis, 65 Pa. 65. ''Galbraith v. Bridges, IGS Pa. 325, "Grove v. Hodges, 55 Pa. 504; Jen- 32 Atl. 20. nings v. McComb, 112 Pa. 518, 4 Atl. "Guernsey v. Froude, 13 Pa. Super. 812. Ct. 405. Lease of a chattel. THE LEASE. 27 its reti;rn to him, and then signs it in the absence of the lessee, to whom no notice of the signing is given, the lease can not be deemed operative. "Delivery," says Agnew, J., "in its legal acceptation, was as necessary on part of the lessor, even though he should retain possession of the paper, as it was on part of the lessee." "" A having made a lease of a strip of land 10 feet wide for the construction of an inclined railway by the lessee, at the request of the latter, agreed to extend it for five additional years, and to sign any proper writing ; at the same time indors- ing on the original lease in his possession a statement that it was extended for five years. Shortly afterwards, when spoken to abotit drawing up a formal lease, A replied, "It don't matter. I indorsed it on the other lease the same as before." To this the lessee assented, and proceeded to erect machinery. It was held that physical delivery of the writing to the lessee was, under the circumstances, unnecessary.^* 30. Execution by agent. — The lessee may be represented by an agent, and the right of the former, at least as against third persons, may be established, though the agent only is named in the lease, and the fact that he is agent for anybody is not dis- closed.'^* But a lease to a partnership composed of A and B, which is signed and sealed by A alone, without written and sealed authority of the firm, will not bind the firm.''' And though B applies to A for a lease, stating that he wishes the premises for two young men, he is himself the lessee, and not the young men (whom he does not name).^® The lessor may be ''Kelsey v. Tourtelotte, 59 Pa. 184. dence for the sheriff, and they had no The lessee had not taken possession power to furnish him with such resi- nor paia rent. The action was for dence, if the lessor laiew no nioie rent. than that the house was intended for ^'M'itman v. Beading, 191 Pa. 134, the sheriff. He could properly pre- 43 Atl. 140. sume that the commissioners were "Galbraith v. Bridges, 168 Pa. 323, acting in the line of their duty. •32 iVtl. 20. DaujjJiin County v. Bridenhart, 10 The lessor who has leased to the Pa. 458. county through its commissioners ''t-iiiyrlrr v. May, 19 Pa. 235. may recover rent even though the ''"Smith v. Clark, 1 W. N. C. 445. lease was taken by them for a resi- The fact that rent is received from. 28 IiANDLOEX) AND TENAm\ represented in the making of a lease by an agent. The author- ity of this agent, when the lease is for not more than three years, may he proved by paroP' and by the testimony of the agent.^* The proprietors of a town appointing three men as a committee, and authorizing them to lease public lands, a lease executed by two of them was so well executed that, after pos- session and payment of rent under it for eighty years, the court would not order the cancelation of it.^® The owners of land by writing under seal declared that they "do hereby employ X to act as our agent for our properties, situated in Bedford and Blair counties, Pennsylvania ; and if the said X shall honestly and diligently manage said properties, we do hereby agree to pay him the sum of $700 for a period of one year," X made a lease for fifteen years of the right to quarry, take, and sell all the ganister stone, the lease purporting to be "by and between X, agent for the Duncan heirs of the one part, and B . . ., of the other part," and witnessing that "the said X, agent, doth lease or let" to the said B, a certain tract. B agreed to pay the said Duncan heirs or their agent $70 per year. B entering and taking stones, the Duncan heirs brought trespass against him, denying the authority of X to make the lease. It was held that, prima facie, the power of attorney was not wide enough to cover such a lease, but that it might be shown, to be wide enough by proving that such leases were usual in that local- ity, or that a previous course of dealing between the principals and the agent had shown that such a lease was understood by them to be within the power. It might also be shown that the owners had knowingly received the rent paid by B, and had therefore estopped themselves from denying the goodness of the lease.''** and a, receipt given to, the young "Providence Trustees' AppeaL 2. men, does not preclude the lessor Walk. (Pa.) 37, 6 Kulp, 251; Cf. from asserting that B is his tenant. Griffin v. Fellows, 81* Pa. 114. "■'Leu-is V. Bradford, 10 Watts, (J7. "'Duncan v. Ilariman, 143 Pa. 595, '-'M'Ounnagle v. Thornton, 10 Serg. 24 Am. St. Eep. 570, 22 Atl. 1099. C&; R. 251; M'Dowell v. Simpson, 3 Land was granted to the proprietor* Watts, 129, 27 Am. Dec. 338. of land in a town "to be applied only THE LEASE. 29 31. Mode of execution. — A written lease made by the lessor in his own name, not indicating that he was agent for anybody, may probably be treated by the principal as a nullity;®^ but one wherein the lessor styles himself "agent for the Duncan heirs," and reserves rent, payable to the heirs or to himself, and which he signs "X, agent," is suificient to bind the princi- pals, if they have conferred authority on X to make it.®^ 32. Undisclosed principal. — A lease executed by A, in which he describes himself as "agent," naming no principal, is so far his, and not his principal's lease, that the lessee cannot question his right to recover the possession,®^ or his right, to the exclusion of the principal, to distrain for the rent.®* 33. Lease by two or more owners. — If a lease is made by a iirm, the firm name being signed and the firm seal aifixed, by one of the partners, the signature as subscribing witness of all the members of the firm will make the execution binding on the firm.®' An oral lease by one partner, made in his own name, of land belonging to and used by the partnership, will be treated as a partnership lease, and the partnership can sue on it for the rent.®® An oral lease for a year, made by one of two coten- ants, but with the authority of the other, and for both, is the for public uses," to be applied or im- ity of the agent after making the proved as a majority of the said in- lease, Of. Barrett v. Bemelman^, 155 habitants may from time to time or- Pa. 204, 26 Atl. 307. der and direct, and for no other pur- ''Bedford v. Kelly, 61 Pa. 401. pose whatsoever. The council of the The revocation of his authority town, with the consent of a majority cannot be shown by the tenant, to of the inhabitants, could lease a part prevent his recovery of possession. of the land for ten years to X, who Holt v. Martin, 51 Pa. 499. was to erect a warehouse on it which, "'Seybe^'t v. Bean, 83 Pa. 450. Cf. at the end of the term, should become Barrett v. Bemelmans, 155 Pa. 204, the town's, the lot being a water lot, 26 Atl. 307. and a warehouse being the best way "'Bussman v. Ga-nster, 72 Pa. 285. of improving it. Oregg v. Irish, 6 Cf. Beivley v. Toms, 17 Pa. 4S5, Serg. & E.. 211. where A made a sealed lease in the "' Cf. Bassett v. Hawk, 114 Pa. 502, name of the firm, A and B, without 8 Atl. 18. B's knowledge. Its validity was not "'Duncan v. Hartman, 143 Pa. 595, in question. 24 Am. St. Rep. 570, 22 Atl. 1099. ^Moderwell T. Mullison, 21 Pa. As to the revocation of the author- 257. 30 LANDLORD AND TENANT. lease of both, not of the one who makes it.^'' One partner may, in the name of and for the firm, make a written lease of its lancl.«8 34. Ratification by owner by estoppel. — The owner of land which has been leased, whether for him or not, by another with- ont authority, may estop himself from denying the right of the tenant under the lease. The husband of A, the owner of land, makes a lease of it, in her presence and with her knowledge, to B, who puts improvements on it, in order to obtain the ad- vantages contemplated by the lease. After the husband's death A continues to receive rent. Though she was not estopped before, she now precludes herself from subsequently challenging B's right. "^ If an agent to manage land makes a lease in excess of his authority, the receipt of rent with knowledge that it comes from the tenant will estop the owner. '^'' Owners, by re- ceiving rent after reaching majority, will estop themselves from denying the validity of a lease made by their guardians.''-' A's will devises his land to B, C, and D, in trust, to make leases, collect the rents, jDay one third of the net income to B during her life, and the rest, during the life of B, to X, and after the death of B, all of the net income to X, and in trust at the death of X to convey in fee to his issue. With the acquiescence of C and D, B undertook the renting of the land, and made a lease to Z for six years at a certain rental, agreeing to allow $300 to Z for certain improvements, to be deducted in annual instal- ments of $50. After the death of B, X, a married woman, with lier husband, gave a receipt to Z for rent. The lease was bind- ing on X for the remainder of the term. Her long acquies- cence justified the tenant in believing that B was, in leasing the '''Wenger v. Raymond, 104 Pa. 33. "'Tront v. McDonald, 83 Pa. 144. Apparently, he cannot oust the ten- ^'Duncan v. Hartman, 143 Pa. 505, aut by landlord and tenant proceed- 24 Am. St. Rep. 570, '22 Atl. 1099. ing8, without th^ consent of the oth- '"Mjiers v. Kingston Coal Go. 126 cr. Pa. .582, 17 Atl. 891; Myers's Appeal^ "Moderwell v. Mullison, 21 Pa. lli W. N. C. 137. THE LEASE. 31 premises, acting with the approbation of all concerned. Hence, the orphans' court would not, at the instance of X, order a sale of the premises, free from the residue of Z's term.'^^ 35. Ratification by the lessee. — For the period during which the lessee has had possession of the premises, he cannot escape paying rent on the ground that the lessor was a minor when he made the lease, and that, since reaching his majority he has, prior to suing for the rent, done no act of ratification,''^ or that the lessor was a married woman and did not separately acknowl- edge the lease,''* or that the lease had been made by the com- missioners of a county for a marble manufactory, of a por- tion of a tract which had been conveyed to trustees in trust for the county, for the erection thereon of a common jail or prison, and "for no other purpose whatever."''^ 36. Statute of frauds. — The 1st section of the act of March 21st, 1772,''^ declares that all leases, etc., of lands made "by parol, and not put in writing and signed by the parties so mak- ing or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only . . . except, nevertheless, all leases not exceeding the term of three years from the making thereof." A lease for not more than three years, if made prior to the desig- nated inception of the term, — if made, e. g.^ March 10th, for three years which are to commence on the following first day of April, ''' is within the statute. Within it are leases for four years,^® seven years,'** ten years.^*^ "KonJeer's Appeal, 24 Pa. 224. "Stover v. Cadumllader, 2 Pennyp. ''^Harris v. Knowles, 26 W. N. C. 117. 249. "M'Dotoell v. Simpson, 3 Watts, "Robison v. Jnman, 35 Phila. Leg. 130, 27 Am. Dec. 338. Int. 263. ""Diimn v. Rothermel, 112 Pa. 272, '''Northampton County's Appeal, 30 3 Atl. 800; Loran's Estate, 10 Pa. Co. Pa. 305. Ct. 554. " 1 P. & L. 2190; 1 Smith's Laws, A subleaso for the remainder, ex- 389. ceeding three years, of a term of ''''Jennings v. McGomh, 112 Pa. 518, seven years, is within the statute. 4 Atl. 812; Wheeler v. Conrad, 6 Jones v. Peterman, 3 Serg. & R. 543, Phila. 209; 'Whiting v. Pittsburgh. 8 Am. Dee. 672. Opera House Co. 88 Pa. 100. ^2 LANDLORD AND TENANT. 37. Signature. — The lease for more ttan three years must be -signed by the party making the same, — that is, by the lessor or by his properly authorized agent. Signature by the lessee is unnecessary.*^ The signing of the lessor's name by his agent is insufficient unless he had written authority to sign it.*^ The agent's signature of the lessor's name may subsequently be ratified in writing by the lessor.^* A ratification, however, by the lessor signing the lease, or by other writing, is too late, if, the lessee having died, his executor has given notice of his in- tention to vacate the premises at the end of the current year, and if he accordingly vacates. He cannot be held for subse- quently accruing rent** A parol ratification will be ineffectual. The lessor's reception of rent from the tenant, or suffering the tenant in possession to do the repairing which a tenant should ordinarily do, is not a ratification which makes the lease more than one from year to year.*^ A letter written by the husband of the lessor, in his own name, and signed by him, stating what terms he thinks will "do," with the approval of the other party, inviting him if there is anything else to be put in, to write, and also to write whether all contained therein suits him, is only a part of the preliminary negotiation, and, even if duly authorized in writing by the owner of the premises, would not indicate the terms of a final agreement.*® 38. Oral contract to make a lease. — An oral contract to make and accept a lease for more than three years is subject to "THjjp V. Bishop, 56 Pa. 424; '*Loran's Estate, 10 Pa. Co. Ct. Berc/ner v. Palethorp, 2 W. N. C. 554. -297 ; Johnston v. Coican, 59 Pa. 275 ; "M'Dowell v. Simpson, 3 Watts, Carnegie Natural Gas Go. v. Phila- 129, 27 Am. Dec. 338. delphia Co. 158 Pa. 317, 27 Atl. 951; Ratification by the lessor after he Witman v. Reading, 191 Pa. 134, 43 has conveyed the reversion will be in- Atl. 140. Cf. Schultz V. Burlock, 6 effectual. Dumn v. Rothermel, 112 Pa. Super. Ct. 573. Pa. 272, 3 Atl. 800. "Jennings v. McComl, 112 Pa. 518, "Dumn v. Rothormel, 112 Pa. 272, 4 Atl. 812; Loran's Estate, 10 Pa. Co. 3 Atl. 800. €t. 554. "Jennings v. MeComb, 112 Pa. 518, 4 Atl. 812. THE LEASE. 33 the same infirmity as an oral lease. It conld not be enforced specifically by the lessee, nor could he do the equivalent, viz., compel the payment to him of a sum of money representing the loss of his bargain ; nor, on the other hand, though the owner of the premises is willing to make the lease in writing, can he compel the tenant to accept it, or, the equivalent, to pay the rent named in it.*^ 39. Exception from operation of statute. — Te-king possession under the lease, and making improvements which cannot be compensated in damages, will enable the lessee to insist on the lease according to its terms, though it be oral. The mere being in possession of the tenant, he having gone into possession under some earlier lease, will not exempt the oral lease for more than three years from the statutory infirmity,®* nor will replacing a large pane of glass and building an elevator, in accordance with the requirements of the lease, the tenant having taken possession before the lease.®® It is intimated by Kennedy, J., that making improvements not stipulated for in the lease will be at the risk of the tenant, in the sense that he cannot, by reason of them, preclude the lessor from invoking the statute of frauds. Mak- ing ordinary repairs, e. g., to the pavement in front of the house, will not confer on him a right to hold the premises during the term orally stipulated for, nor will the fact that the rent is larger on account of the length of the term than it would have been for a term of not exceeding three years, and that the lessor has received instalments of it.®* "Sausser v. Steinmet::, 88 Pa. 324. Dean, J., in Wit man v. Heading, 101 ^Joncs V. Peterman. 3 Serg. & R. Pa. 134, 43 Atl. 140, where a tenant 543, 8 Am. Dee. 672. Tilghman, Cli. in possession under a two-years lease J., intimates that, though the lessee obtained an extension for Ave years, had gone into possession before the the agreement for which was in- lease was made, his making import- dorsea on the lease in the possession ant improvements would give it va- of the lessor, and never delivered to lidity. the lessee, that, even if the extension "^Whiting v. Pittsburgh Opera could be treated as oral, the landlord House Co. 88 Pa. 100. could not plead the statute of frauds, ^il'Dowell V. Simpson, 3 Watts, because, with his assent, the tenant 129, 27 Am. Dec. 338. It is said by had retained possession and expend- IjAvd. & Ten. 3. 34 LANDLORD AND TENANT. 40. Effect of statute on lease. — The statute of frauds does not make a parol lease for more than three years wholly void. That lease is capable of being made obligatory on the landlord by acts of the lessee, subsequent to its making. The lessee is a tenant at will. He can be kept from taking possession, or, if he has taken possession, can be at any time put off, until the lessor has done some act additional to the making of the lease and the giving of possession. If the lessor recognizes him when in possession, as a tenant, by receiving rent from him, or otherwise, the lessee will be regarded henceforth as a tenant from year to year,"'' who, on receiving the proper notice, may be required to vacate the premises at the end of any year.®^ The covenants of the lessee, e. g., to pay the rent mentioned, cannot be enforced by the lessor since the consideration of these covenants has failed,"* but the rent named in the lease may be considered by the jury in an action for use and occupa- tion, as a guide to the value of the occupation."* A parol lease, or a parol contract to make a lease, for more than three years, is not so far void that nominal damages, at least, cannot be recovered for violating its terms. The lessor may probably recover from X the rent he has failed to get from others, on account of his reliance on the promise of X to accept the lease. He will not be entitled to the stipulated rent for the time during which he is unable to obtain another tenant. If he has ex- pended money in preparing the premises for X, he will not be entitled to reimbursement of this money unless the improve- ments made have added nothing to the general rental value of ed a large amount of money in im- '^'Jennings v. McComb, 112 Pa. proveraents. Cf. Dumn v. Rother- 518, 4 Atl. 812; Stover v. Cadiralla- mel, 112 Pa. 272, 3 Atl. 800, as to der, 2 Pennyp. 117. effect of improvements. "Ihid. In Sausser v. Stcinmetz, ''^DmiiH V. liothermel, 112 Pa. 272, 88 Pa. 324, Gordon, J., says that, the 3 Atl. 800; Loran's Estate, 10 Pa. lease being void, it cannot be used to Co. Ct. 554; M'Doicell v. Simpson, ascertain the value of the use of the- 3 Watts, 129, 27 Am. Di'C. 338. premises. '-Mhiting v. Pittsburgh Opera Bouse Co. 88 Pa. 100. THE LEASE. 35 the premises, and were unnecessary for their improvement or repair.®^ If the owner declines to make the lease to X accord- ing to his oral contract, X may, as damages, recover money paid, or expenses incurred, on the faith of the contract.^^ 41. Necessity of recording.— The first section of the act of May 19th, 1893,®^ requires all deeds and conveyances of land to he acknowledged or proved, and recorded in the office of the recorder of deeds of the county within ninety days after the execution of such deeds and conveyances, and adjudges such of them fraudulent and void against any suhsequent purchaser or mortgagee as shall not be so acknowledged or proved, and re- corded. It was said in 1851^® by Chambers, J., that it had not been the practice to record leases for terms of years, and that the acts of assembly do not require them to be recorded when the possession accompanies the lease unless the lease is for a term exceeding twenty-one years. But it has been understood that even conveyances in fee do not need to be recorded if the grantee or his tenant is in possession. If the lessee neither re- cords his lease nor takes possession of the premises, the lease will be valid as against another lessee or grantee of the same land, who has actual notice of it, but it will not be valid as against a gTantee or lessee without notice, or against an assignee withotit notice of the lessee who had notice.^^ When a lease of oil land is made to B, who covenants to put a test well down on a tract in the vicinity, the putting down of the test well is not a taking of possession of the leased premises, so far as notice to others of the lease is concerned^"" but, if the lessee takes open, notorious, visible, and exclusive possession of the land, such pos- session is sufficient notice to a subsequent mortgagee^"^ or grantee ^'^Sausser v. Steinmetz, 88 Pa. 324. "Aye v. Philadelphia Co. 193 Pa. "McCa-fferty v. Griswold, 99 Pa. 457, 44 Atl. 556. 270. Cf. Heilman v. Weinman, 139 "Mj/e v. Philadelphia Co. 193 Pa. Pa. 143, 21 Atl. 29. 457. 44 Atl. 556. '' 1 P. & L. 1571; P. L. 108. ^'Hlarsh v. yelson, 101 Pa. 51. '^Williams v. Dcirning, 18 Pa. 60. As to the necessity of recording a 36 LANDLORD AND TENANT. of the premises, although the lessor, the tenant's father, is allowed to continue to reside on them. lease of any colliery, mining land, L. Digest, 1612, P. L. 160), vide Hil- nianufactory, etc. in order to make ton's Appeal, 116 Pa. 351, 9 Atl. valid a mortgage of the leasehold, 342; tipeer's Estate, 8 Pa. Dist. R. under the acts of April 27th, 18.15 (1 212; (}ill v. Weston, 110 Pa. 305, 1 Pepper & L. Digest, 1607, P. L. 368), Atl. 917; Brovm v. Beecher, 120 Pa. and of May 13th, 1876 (1 Pepper & 590, 15 Atl. 608. CHAPTEE IV. THE SUBJECT OP THE LEASE. 42. Generally. 13. The area of the leasehold. 44. Building, and not ground. 45. Rights to water. 46. Easements. 47. Restriction on use of premises. 48. Use of outside of wall for signs. 42. Generally. — The lease may be of any sort of land; of land of any size, shape, or situation, and for all kinds of uses : to extract oil, coal, stones, iron ore, chrome from it, to use it for pasture, for the display of signboards and other advertise- ments. It may be of land without a house, or of a house, of stores, or rooms of a house, of the roof of a house, of the super- ficies of the wall of a house. 43. The area of the leasehold. — The lease of "that certain plan- tation . . . containing about 230 acres, be the same more or less, now in the possession of T. H.," covers all the land then in the possession of T. H. in the described locality, although it may be larger than 230 acres; the occupancy and not the magnitude, of the land, being the defining fact.-* A lease for twelve years described the premises by the words "being all the land which may or can be flooded or covered with water by a dam to be made at a certain place across the aforesaid creek, to be built so high as to raise the water to the top of a certain rock or fixed stone on the north bank of said creek, near the place of said dam." Under this lease the lessee had a right to erect a dam so high as to raise the water to the mall V. Powell, 4 Berg. & R. 456, 8 Am. Dec. 722. 37 38 LANDLORD AND TENANT. top of the rock in the ordinary stage of the water, and though in extraordinary stages more than the leased land woxild be overflowed, he woiild not be liable for such overflow.^ The lease describing the land so as to exclude from it an alley, over which the upper stories of the building on the premises project, and stating that it is imderstood "that the lessee takes the buildings as they now stand," it does not embrace the soil of the alley, and, under a provision in the lease that the lessee may purchase the premises, he will not be entitled to a deed which will embrace the soil of the alley.^ A demise of a messuage, tenement, or tavern house, barn, sheds, . . known by the name of "Spread Eagle Tavern," did not embrace a lot of 11 acres, in which the barn stood.* There can be a lease of a piece of land however small, e. g., of a strip 10 feet wide,' of a strip 15% inches wide and 49 feet long, or 10% inches wide and 27 feet long.^ 44. Building, and not ground. — A house belonging to A, and standing on the land of B, may be the subject of a lease. Should B become the lessee, or the assignee of the lessee, he would be liable to pay the rent reserved in the lease f but an agreement by C with D to erect for D on a certain lot a stone house, to be ready by a certain date, at the rent of $600 until April 1st, 1869, and thereafter for five years at the rate of $800; "and to have stable room during the term for two horses, and the parties of the second part to have the option of continuing in the said premises for five additional years, at the same rent, payable as aforesaid," and if C wishes "to sell the property," D to have the first offer, — was a lease, not of the building only, but of the soil on which it was to stand.* 'Wallace v. Headley, 23 Pa. 106. "Berridge v. Gla^sey, 112 Pa. 442, 'Barnett v. PVummer, 19 W. N. C. 56 Am. Rep. 322, 3 Atl. 583. 117- 'Lockard v. Rohbins (Pa.) 10 AtL 'Bennett v. Bittle, 4 Rawle, 339. 120. 'Witman v. Reading, 191 Pa. 134, 'Bussman v. Oanster, 72 Pa. 285. 43 Atl. 140. THE SUBJECT OF THE LEASE. 39 45. Eights to water. — The lease of a "furnace, gristmill, saw- mill, dwelling house, etc., and the tract or piece of land belong- ing thereto ... on the south side and near the mouth of the Swatara creek," passes with the land a right to the use of the water power of the creek, although the words "with the appurtenances" are not in it.^ A lease to B of land with the privilege of erecting a tanyard, and taking from a neighboring ■creek, at a point not on the leased premises, as much water as necessary, provided that any water so taken, in excess of what shall be consumed, shall be condiicted without unnecessary loss or waste to the creek, does not authorize the tenant to empty the contents of his tanyard into the stream, or otherwise pollute its water.^" 46, Easements. — The lessee takes the premises subject to any permanent servitudes to which it is visibly subject, and cannot defend an action for rent by alleging their existence. Over the land the elevated viaduct of a railroad, e. g., extended when the lease was made. Within the term, the railroad company was obliged to make repairs to it, and the lessee was deprived, for a time, of the use of a portion of the premises. This was no excuse for the nonpayment of the rent in full. If the railroad company, to an unnecessary degree, for an unnecessary time, inconvenienced him, his redress must be sought from it.^^ If the owner of a building creates a permanent servitude on one part for the benefit of another part, the lessee of the former would take it charged with the servitude. When, however, gas is introduced into the building through the cellar, pipes to the various stories conducting the gas thence, — while the lessee of the cellar would take it with the duty of sufl^ering the pres- ence of the pipes, he is not bound to allow the meters for the measurement of the gas furnished to the upper stories to remain The burning of the building did not ^'HoiceU v. M'Coij, 3 Rawle, 256. discharge the lessee from future "-Friend v. Oil Well Svpply Co. rent. 179 Pa. 290, 36 Atl. 219. 'Peters v. Grubh, 21 Pa. 455 40 LANDLORD AND TENANT. in the cellar, and to be there periodically inspected by the servants of the gas company. He will not be enjoined from re- moving them, at the suit of the gas company. "Although visible when the defendant leased," says Eice, P. J., "they seem to us to lack that characteristic of permanency which, even in the absence of strict necessity, has been held to be evidence in certain classes of cases, of an intent to subject one part of land to a servitude in favor of another, and notice thereof to a pur- chaser or lessee of the servient tenement. For it is to be ob- served, they do not belong to the landlord, nor to the tenants (of the upper stories) ; are not a part of the structure, and are not essential to the supplying of gas to the upper iloors."^^ A release by a lessee of his right to use an alley appurtenant to the premises, the releasee agreeing at the end of the term to reopen it, is binding for the term only. Should the lessee accept a renewal lease, he will have a right to the use of the alley. ^* 47. Restriction on use of premises. — The lessee may accept the premises for certain uses only, so as to entitle the lessor to for- feit the lease, or its privileges, on account of any different use. If, e. g., the lessee is to use the premises for a store and dwell- ing house only, he cannot complain if, introducing machinery to commence a manufacturing business, he is temporarily denied the use of water ;^* and if the lease so provides, should the ten- ant become obnoxious or objectionable for any cause, he may be required to quit the premises after twenty days' notice.^* ^'Wilkes-Barre Gas Co. v. Turner, ises. Spencer v. Kunkle, 2 Grant 7 Kulp, 399. Cas. 406. Miners' houses are ordinary ap- ^'Hacke's Appeal, 101 Pa. 245. purtenants to coal mines, and when "Ijodomus v. ilcCormick, 5 Del. they are on the premises, and includ- Co. Kep. 147. ed in the lease of mines, they consti- The lease of an office may require tute part of the estate, and all the all furniture to be carried on tho remedies of the landlord attach to freight elevator. If it does, the ten- them without stipulation in the ant may be prevented from carrying lease. For rent accruing from houses it on the stairway. Walsh v. The or mines, there can be a distress on Bourse, 15 Pa. Super. Ct. 219. goods found anywhere on the prem- ^'Adam v. Clark, 2 W. N. C. 429. THE SUBJECT OF THE LEASE. 41 A lease of land authorizing tlie tenant to take possession as soon as he commenced to build an iron furnace thereon, and to "hold the same and enjoy and use all the rights and privileges of real ownership as in fee simple" as long as he should carry on the furnace, and requiring him to pay royalty for every ton of iron ore mined, confers the right to take limestone for the use of the furnace without charge.^* A lease giving to the lessee the right to take out all the coal he could reach beneath the surface for a royalty of 30 cents per ton, he working the mine so as to do the least possible damage to the land, would permit him to sink as many shafts as would conduce to the profitable working of the mine; and that sinking one of them would probably de- stroy a spring would be no reason for restraining him from sink- ing it.-'''^ 48. Use of outside of wall for signs. — ^When a building is let for a dwelling, there is no implied right of the lessee to occupy the outer walls with signs, and advertisements,^^ but if a build- ing or a part of a building is let for business purposes, there is an implied right of the occupant of a room to iise so much of the wall as can be used without interfering with a similar right in occiipants of other rooms, for the display of signs. A, a dentist, was, when he leased a room to B, occupying with his professional sign, and with hooks on which to suspend a box of exhibits, the space between the hall door and the rear window of B's room. B could, at the instance of A, be restrained from placing signs on the outer wall of his room where they would interfere with A's sigTis and box, but not from placing them elsewhere on that waU.*^ '^'^Watterson v. Reynolds, 95 Pa. J., reached the conclusion, apparent- 474, 40 Am. Rep. 672. ly, that a tenant of the third and -''Trout V. McDonald, 83 Pa. 144. fourth floors of a business building "Scott V. Fox Optical Co. 3S had no right to use the outer walls Pittsb. L. J. 368. of these stores for advertising, nor "Scott V. Fox Optical Co. 38 to prevent the use of them, vpith the Pittsb. L. J. 368. But in Bele v. lessor's consent, by the tenants of Steuart, 19 W. N. C. 129, Allison, the lower floors. OHAPTEE V. MODIFYING OR ANNULLING LEASE. 49. Deception of tenant. 50. Affidavit of defense. 51. Action of deceit. 52. Lease does not express intention of lessee. 53. Error in written lease. 54. Duress. 55. Insanity of lessor. 56. Misrepresentations to lessor. 57. Misreading lease. 58. Lessee's oral promise. 59. Promissory statements by lessor. 60. Promissory statements, continued. 61. Proving custom. 62. Proving habit. 63. Value of premises as test of probability. 64. Explaining the terms. 65. Later oral modifications. 49. Deception of tenant. — In a suit on the lease for rent, the tenant may show that representations were made as to the condition of the huilding and premises, whereby he was induced to accept the lease, and that these representations were known to be untrue by the lessor when they were made. The lessee, e. g., may show that he was deterred from employing a plumber to examine the premises, that he was induced, without the ex- amination such plumber would have made, to accept the lease by representations that the plumbing and drainage were very good, and that a plumber had been employed to put them in perfect order; that the well was newly dug; and that these representations were grossly false. ^ The lessee may defend, by ^Wolfe V. Arrott, 109 Pa. 473, I Co. Ct. 271; Grump v. Morrell, 12 Atl. 333; Showaker v. Boyer, 3 Pa. Phila. 249. 42 MODIFYING OR ANNULLING LEASE. 43 ■showing that he was induced to accept the lease through the false representations of the lessor that a railroad siding belonged to him and would pass to the lessee under the lease, and that the leasehold premises were valueless to him without the siding.^ 50. Affidavit of defense. — The statements alleged to be false, and to have been an inducement to enter into the lease, should be stated in the affidavit of defense with reasonable precision. It should appear when, relatively to the making of the lease, they were made. They should appear to be of such definite facts that the lessee might reasonably rely on them. The tenant's averment that, relying on an advertisement in the Ledger, and on a statement to the same effect, that the premises Avere well known, that they had been arranged for, and in use as, a first-class summer boarding house, and that there was a never- failing supply of pure, soft, spring water on them; that in fact the supply of water had entirely stopped ; that the place was not known as a summer resort, and had been used only by a private family, and that the lessee had spent much money in fitting up the place for boarders, and had, for the reasons stated, failed to secure any, — was insufficient to prevent judg- ment.* 51. Action of deceit. — If a tenant is induced, by the false rep- resentations of the lessor that the roof of a bow-window of the premises is new and water tight, to accept a lease and to place millinery in the window for exhibition, and the goods are de- stroyed by a rain, on account of the had condition of the roof, the lessee may sustain an action of trespass for the deceit, although the lease contained a covenant on the lessee's part to repair.* 'Morris v. Shakespeare (Pa.) 12 tion for rent, if the lessee, before ac- Atl. 414. cepting the lease, knew the fact that 'LockiEOod V. McNamara, 6 W. N. one room was not furnished. Hess CySGl. ^' Weingartner,' 5 Pa. Dist. R. 451. A representation by the landlord Cf. Johnson v. Mathues, 4 Del. Co. that the house is completely fur- Rep. 365. nished cannot be a. defense to an ao- ^Haclcs v. Schimmel, 3 Pa. Super. 44 LANDLORD AND TENANT. 52. Lease does not express intention of lessee. — A written lease may be modified by evidence that its language was adopted in mistake as to its import, or that, it being understood by the parties that it was to bear one interpretation, one of the parties is attempting to enforce it in a different sense. A, under a devise, being entitled to the profits of land during his minority, and B entitled to the remainder, A's guardians, when he is twelve years and nine months old, lease the premises to B. The intention of both parties, expressed at the conference at which the lease was written, was that it was to be for the period of A's minority and ownership. The period named in it was for nine years; the scrivener stating to both parties that A could claim no rent after he came of age. Evidence of these facts should have been received. If not mistake, there was fraud. Fraud consists in the fraudulent use of the instrument by A, though no fraud existed in the procuring of the lease.^ B, while in possession under a verbal lease, in which the lessor promised to make certain necessary repairs, accepts and signs a Avritten lease containing a statement that the premises are in good repair. Sued for the rent, B may show the oral promise, and account for his acceptance of the written lease by a state- ^ ment of the lessor that the written lease was a mere matter of' form, and should not affect the agTeement for repairs.® Ct. 426. Although the action was the condition of the premises nor not on the contract, the court said any other cause shall excuse from that the same kind and degree of paying the rent," an affidavit alleg- evidence was necessary as to reform ing that the lessor verbally agreed. a contract for omissions. The evi- prior to the signing of the lease, to dence must be clear, precise, and in- make repairs, will not prevent a re- dubitable. One of the two lessees, covery of rent, or a forfeiture of the who did not sign the lease, could, lease for nonpayment. Gates v. nevertheless, unite with the other in Adinolfi, 11 Kulp, 100. an action for the deceit; they being A parol agreement contemporane- joint o^vners of the goods. ous with the written lease, which in- ^Hultz V. Wright, 16 Serg. & R. duced the execution of it, must be- 34.'). 16 Am. Dec. 575. proved by clear, precise, and indu- The written lease expressly saying bitable evidence. Replojle v. Sing- that the premises are rented with c c, 19 Pa. Super. Ct. 442. tlie "distinct understanding that the "Lansdah v. Richardson, 1 W. N. landlord shall rot be put to any ex- C. 413. pcnse for repairs, and that neither The lease for five ypars providing' MODIFYING OR ANN ULLING LEASE. 45 53. Error in written lease. — A mistake in a written lease may be shown by the lessee. The lease reserving a "semiannual rent of $300," he may prove that the agreement of the partici had been that the annual rent should be $300, payable in equal semi- annual instalments ; and he may thus reform the lease as against an assignee of the lessor's interest in it, and of the reversion.'^ 54. Duress. — A purchaser at a sheriff's sale of X's land, in proceedings to eject him, informs him that he will be put out unless he accepts a lease from the purchaser. This is not such a duress as avoids the lease, and deprives the lessor of the right to maintain proceedings under the landlord and tenant acts for the recovery of possession.* 55. Insanity of lessor. — The unsoiindness of mind of the lessor may be a defense to an action upon the lease by the lessee. The smallness of the rent reserved, e. g., 8 cents per ton for all coal mined, would be important only in conjunction with other facts, e. g., the feebleness of mind of the lessor, imposition, etc. It would not, of itself, preclude the enforcement of the lease.* 56. Misrepresentations to lessor. — The lessor may avoid a lease signed by him, by showing that it was procured from him by false representations of facts the correct apprehension of which would have deterred him from making it. A lease, e. g., for one year from April 1st, 1886, may be sho-svn by the lessor, when sued for not giving possession to the lessee, to have been made by him on the lessee's assurance that he had, for a price, procured the consent of the tenant already in possession, and having a right to continue in possession until April 1st, 1887, that the lessor could terminate it by an affidavit of defense alleging an giving one year's noticej at the end oral agreement that, in case of fire, of any year, the tenant cannot pre- the rent should cease, was insuffi- vent an eviction by showing that it cient to prevent judgment for the was agreed that this provision rent accruing after a fire, should not take effect unless the les- ''Snyder v. May, 19 Pa. 235. sor sold the property and the pur- 'Pottsville Bank v. Oake, 12 Pa. chaser required the possession. Super. Ct. 61. Eertzler v. Worman, 1 W. N. C. 153. 'Grots v. Coal Co. 1 Kulp, 53. In Martin v. Berens, 67 Pa. 450, 46 LANDLORD AND TENANT. to vacate the premises on April 1st, 1886, whereas he had in fact not done so.^" The lessor may prove that the lessee obtained the lease by declaring that he was seeking it for him- self and that he was worth $45,000, whereas he was getting it for X, to whom he immediately assigned it, and who sues the lessor for refusing to gi^'e him possession.^-' 57. Misreading^ lease. — An illiterate lessor, the lease stipulat- ing for rent of $1,000 for each well for the whole term of twenty years, may prove in ejectment by the tenant that the agreement was that $1,000 for each well should be paid annually during the term, and that, being unable to read, the lessee read it as if it contained a provision accordant with the agree- ment, and thus procured his acceptance of it.-'^ 58. Lessee's oral promise. — Probably if a lessor refrains from requiring, in a lease of coal land, reserving as rent so much per bushel of coal mined, a stipulation that the lessee will mine as much coal as he can dispose of, on account of his request that it be omitted, and promise to perform it, it will be enforcea- ble. But if such an agreement is not declared on, it cannot be proven as a ground of recovery for the rental of coal that was not mined.-'^ 59. Promissory statements by lessor. — The mere fact that a promise by the lessor, by which the tenant is known by him to be induced to accept the lease, is not carried out, will not, in the absence of fraud, be a defense to the rent. An affidavit of defense, e. g.j which alleges, that, to induce the defendant to accept the lease, the lessor represented that objectionable hoiises on the opposite side of the street, under his control, would be demolished, and that, on this representation, the defendant ac- ^"Thudium v. Yost, 20 W. N. C. parently there was in fact a, recov- 217. ery. The measure of damages was '^Harvey v. Gunsiberg, US Pa. 294, the difference between the stipulated 23 All. 100.5. rate of compensation per bushel, and ^"Christie v. Blakdrt/. 2 Mona- the value of the coal, per bushel, in ghan (Fa.) 118, 15 Ath 874. place. '^Lyon V. Miller, 24 Pa. 392. Ap- MODIFYING OR ANNULLING LEASE. 47 ccpted the lease, but not averring that it was "false" [it was averred that it had not been carried out] or that there was any fraud in the making of it, or in the failure to perform it,^* or an affidavit alleging that the defendant "was led to believe b_y representations made to him" that no building would be erected between the leased lot and another building owned by the plain- tiff, that he would not have accepted the lease had he not be- lieved these representations, and that the plaintiff had leased the intervening ground for the erection of a bowling alley and shooting-gallery-'^ is insufficient to prevent judgTaent. In re- plevin by the tenant under a sealed lease the plea to the avowry averred that the lessor had agreed orally, when the lease was made, that he would not let the adjoining premises as a liquor store, and that, in violation of his promise, he had done so. A demurrer of the landlord was sustained.^* An offer of the ten- ant, when sued for the rent, to show that the lessor agreed orally when the lease was signed that he would put the roof of the building in good condition and tliat he would malce other repairs, and that the lease would not have been accepted but for such an agreement, was properly rejected because it did not tend to show "fraud, mistake, or trust ;"^^ and, the lessee covenanting to keep the premises in good order and repair, and to deliver them in such condition at the expiration of the term, the tenant's declara- tion, in an action for personal injury for the breaking through of the kitchen floor, will be demurrable, which alleges that the lessor promised to repair the floor, unless it also alleges that the "Wilcox V. Palmer, 163 Pa. 109, 94. A verbal agreement, inducing 29 Atl. 757. the tenant to sign the lease, that the An affidavit of defense that, at the tenant should have the straw and time of the executing of the lease, hay left by the outgoing tenant, was the lessor agreed to furnish the shown in Plumstead v. Conway, 2 premises with water, but he had not Del. Co. Rep. 43, as a defense to an furnished it, and that the tenant had action for rent. never read the lease, relying on the ^'Uood v. McDonald, 1 W. N. C. lessor's representations, was insuffi- 299. cient. holey v. Eeller, 1 W. N. C. "Eberle v. Bonafon, 17 W. N. C. 613. 335; Ker v. Hunt, 1 W. N. C. 115. "Tischner v. Bambrick, 3 W. N. 0. 48 LANDLORD AND TENANT. lease was accepted by him in its actual form as the result of fraud, accident, or mistalse.'^ The lessee, on failing to get punctual possession of the premises on account of the refusal of the former tenant to retire, cannot recover damages from the lessor on a parol promise made the day before the execution of the lease, that the tenant should have immediate possession, no mistake of the scrivener, no trick or artifice of the lessor be- ing shown.' ^ A promise to deepen and widen the tailrace of tlie mill, the subject of the lease, being omitted from the written contract, if the lessee is induced to assent to the lease by an as- surance that the omission is of no consequence, that the lessor is a man of honor and will punctually perform his promise, the tenant, on showing these facts, may set off against the rent the damage arising from the lessor's nonperformance.^" 60. Promissory statements, continued. — If the lease, when pre- sented to the tenant for acceptance, does not contain a promise, •orally made, of the lessor to build a barn on the premises by har- vest, and for this omission the lessee declines to accept it, until the lessor says that the insertion of the promise in the lease is unnecessary, that he will do as he has promised, — the lessee may ■enforce the promise by an action for damages for its nonper- formance.^' The lease containing tlie covenant that the lessee shall keep the premises in repair, an oral promise of the lessor to keep them in tenantable state must be averred directly, and not inferentially, in an affidavit of defense to an action for the rent.'" ^'WodocJc V. RoUnson, 28 W. N. C. -\Tiiuffhart v. Moore, 78 Pa. 469. 288. Cf. Weaver v. Wood, 9 Pa. 220; ^'Cozens v. Stevenson, 5 Serg. & R. Pouelton Coal Go. v. McShain. 75 421. Pa. 238. A written lease for one A written lease for a portion of tract does not prevent a parol lease the lessor's land does not preclude of an adjacent tract, between tlie proof of a later oral lease of another same parties. Heilman v. ^Ycill- contiguous portion of that land, man, 139 Pa. 143, 21 Atl. 29. fjeilinan v. Weinman, 139 Pa. 143, '"Cochran v. Ward, 8 Del. Co. Rep. 2! Atl. 2'1. 423. The lease being from month to -'Chrisl V. Diffenhach, 1 Serg. & R. month, the continuance in the pos- 404, 7 Am. Dec. 024. session by the tenant many months MODIFYING OR ANNULLING LEASE. 49 61. Proving custom. — A custom may be proved, for the pur- pose of creating a right or a duty not expressed in the lease, nor inconsistent with what is therein stipulated. The written lease, e. g., being silent as to the way-going crop, and specifying the time when the lessee is to surrender the premises, he may prove the ctistom according to which tenants take the way-going crop after the expiration of the lease.^' A lease of a hall for the- iitrical purposes being silent as to the lesseo's right to terminate it on a month's notice, the custom of the theatrical profession to exercise the right thus to cancel a lease may be shown. 2* JSToth- ing being said in the lease concerning the payment of water rent, the lessee may, when sued for the rent, prove a custom of land- lords, when the lease is silent, to pay this water rent.^° Custom may be proved to explain a vague phrase in a lease. The lease, ■e. g., requiring the tenant to cultivate the land in a "workman- like manner," it may be shown that in the locality in which the land is it is the custom for the tenant who is about to occupy a farm in the spring, to prepare the ground the previous fall, if he can procure the consent of the person in possession.^'' 62. Proving habit. — Evidence of the habit of an individual is not so readily admissible as is that of a custom. In a suit for the rent, after the tenant, claiming that his term was froiii month to month, had vacated the premises against the will of the lessor, who insisted that the letting was from year to year, the lessor cannot show the habit of the former owner or of himself in letting the premises to the lessee or others, for the purpose of making a letting from year to year probable.^' The terms of after the lessor's failure to repair '"Aughinbaugh v. Goppenheffer, 55 would preclude a defense to the rent Pa. 347. for these later months, even if the "Arrott Steam Power Mills Co. v. landlord made the promise. Way Mfg. Co. 143 Pa. 435, 22 Atl. ^Stultz V. Dickey, 5 Binn. 285, 6 699. Am. Dec. 411. But when the evidence indicates -'American Academy of Music v. that an oral lease was on the same Bert, 8 Pa. Co. Ct. 223. terms as a former written lease of '"^Stone v. Van Nort, 3 Law Times the same premises between different N. S. 84. parties, the lease may be put in evi- Lakd. & Ten. 4. 50 LANDLORD AND TENANT. a destroyed lease being in dispute between the lessor and tlie lessee, the latter, in an action for rent, cannot, in order to sus- tain his version of its contents, prove that he acquired a very large number of leases of oil land, and that he had a standard to which they all conformed, for it would not follow that this particular lease was made to conform to that standard.^* 63. Value of premises as test of probability. — The rental value of the premises may be appealed to when there is a dispute con- cerning the duration of the term, the area of land embraced in the lease, etc. An agTeement for a lease being made between A and B, X, who was present, wrote a lease, which the tenant, however, never signed or accepted, or, so far as appears, saw. B taking possession and refusing to vacate the premises at the end of a year, alleging that he had leased for three years, A brought an ejectment against him. The evidence being in conflict, B could prove that the rent, viz., $100 per year, was greatly exces- sive if the term was but for one year, since he had been obliged to make valuable and permanent improvements; but would have been a fair rent for a term of three years.^^ A lease of a tract described it as containing 138 acres. On one side of the farm, fronting a public road, were three tenant houses, occupied by persons not employed on the farm. The tenant defended a claim for rent by showing that he had not been allowed to have possession of the tenant houses, and that the lessor had collected rents from their occupants. It was allowable for the lessor to show that the rent reserved in the lease would have been a fair rent for the farm without the houses, and that the rental value of the houses was equal to half the rent reserved, for the pur- pose of giving probability to the lessor's version of the bound- aries of the subject-matter of the lease.^'' dence. Pancoast v. Coon, 20 W. N. blanks printed, and that it was used C. 8-9. by the recorder of deeds. ^Morris v. Quffey, 188 Pa. 534, 41 -'Sennett v. Bucher, 3 Penr. & W. Atl. 731. Cf. Schoneman v. Fegley, .392. 14 Pa. 376. The defendant attempt- '"lioice v. Zimmerman. 3 Pa. Su- ed to show that he had a book of per. Ct. 181. It was allowable to MODIFYING OR ANNULLING LEASE. 51 64. Explaining the terms. — In an action for the rent, a lease for oil land was slio"wn which provided that work should com- mence within three months, or that thereafter $180 per year should be paid until the work commenced, and that a failure of the lessee to make any one of the payments when due would ren- der the lease null and void and not binding on either party. The lesssee, not commencing within the three months or ever, it was not permissible for him to prove that his agents informed the lessor that the words of the lease meant that the lessee would have the power to terminate it at any time, by declining to pay the rental.^ ^ The lease requiring the tenant to relinquish pos- session after a six months' notice, when the lessor should have occasion for a part of the premises, letters and negotiations pre- vious to the execution of the lease cannot be employed by the tenant to show that tlie occasion was a special one, upon which he was to be required to vacate the premises.^^ A lease for two years, at an annual rent of $1,400, provided that if the tenant should fail to secure a retail liquor license, the lessor agreed to receive $400 for the term of one year only. The tenant failing to obtain a license for the second year, insisted that his rent was but $400. He was not permitted to ask a witness ''what took place when the lease was signed or before it was sigiied," or to prove by the witness that the agreement for a $400 rent expressly applied to the second as well as to the first year. The offers "were not comprehensive enough to justify their admission for the purpose of reforming the lease."^^ 65. Later oral modifications. — After a lease is made in writing, show that, in the preliminary nego- '^Hall v. Phillips, 164 Pa. 4Pi, 30 tiation, the tenant houses were ex- AtL 353. eluded and that the scrivener was di- '^Woodland Cemetery Co. v. Car- reoted to exclude them from the ville, 9 Phila. Leg. Int. 98. written lease. Such evidence, though ^'Rea v. Ganter, 152 Pa. 512, 25 not enough to justify a reformation Atl. 539. But the court put the of the lease, was pertinent with re- same interpretation on the lease, speet to the application of the writ- without the evidence. ten description to the premises. 52 LANDLORD AND TENANT. and even under seal, the parties may orally modify it, e. g., with respect to the time for jDaying the rent** or with respect to the rental. The rent reserved in the lease being $500 per year, the lessor, e. g., may agree, in order to dissuade the lessee from abandoning the premises, as he has a right, under existing cir- cumstances, to do, that no rent shall be paid, but that the lessee shall allow the lessor all the gas from the well, needed by him, and shall have the residue for himself without charge.^" The written lease providing that the way-going crop should belong to the landlord, the parties may afterwards agree, for a con- sideration, that it shall belong to the tenant*® It is not neces- sary that such modifications should be proved by two witnesses, nor does proof by two witnesses become necessary because the modification is expressed by an erasure of a part of the original lease, and by interlineations upon it, made with the concurrence of both parties.*®* '^'Wilgiis V. Whitehead, 89 Pa. 131. support a right, even one not affect- '^Crawford v. Bellevue d G. Nat- ed by the alteration, until it is ex- ural Gas Go. 183 Pa. 227, 38 Atl. plained. The lease for 27 months 595. containing a covenant to allow the "'i'eager v. Gassidy, 12 Pa. Super, lessee to renew it for three addition- Ct. 232. al years, and also a covenant by the '^iiY eager v. Gassidy, 12 Pa. Su- lessee to keep the water pipes and per. Ct. 232. The change of terms hydrant in good repair, the lease of the lease, if not with a fraudulent cannot be put in evidence by the les- intent, will bind a subsequent pur- see to support his action for the les- chaser at a sheriff's sale of the rever- sor's breach of the former covenant, sion. An alteration in a lease to if the second covenant is erased, and the advantage of a lessee prevents no explanation is offered. Burgwin his putting the lease in evidence to v. Bishop, 91 Pa. 336. CHAPTEE VI. SUKJiTIES IN LEASES. 66. Form of contract. 67. Must be in writing. 68. Consideration Jiecessary. 69. Connection of surety's contract with the lease. 70. Things to be performed. 71. Suretyship arising subsequently to lease. 72. Qualifications of liability of surety. 73. Further qualifications of surety's liability. 74. Effect of unenforceableness of lessor's contract. 75. Duration of the obligation. 76. Surety's right to prevent a renewal of lease. 77. Discharge of surety. 78. Defenses of surety. 79. Liability of surety to competitor of lessor. 66. Form of contract. — Since the distinction between a surety- ship and a guarantee is important, it is profitable to note the phraseology that has been considered to create the former, and not the latter, contract. Instances of suretyship are: "I do hereby agree to become surety for the faithful performance of all or any of the conditions . . . which are to be kept, done, and performed" by the tenant, and "in default thereof on the part of said lessees, to be liable therefor to the lessor as fully . . . as if I was the lessee."^ "We do hereby agree to be responsible to the lessor for the true and faithful perform- ance of the above contract" on the part of the lessee.^ "I do ^Scott V. Sioain, 19 W. N. C. 547. pal, i. e., a lessee, in (Hltinan v. "I hereby become surety for rent Strong, 64 Pa. 242. of house 111 Strawberry, at $1,200 ^Coe v. Vogdes, 71 Pa. 383; Korn per annum, payable monthly from v. Hohl, 80 Pa. 333; Frechie v. this date. (Signed) David Gilti- Drinlhouse, 4 W. N. C. 298; Miller nan," was held capable of being un- v. Keller, LW. N. C. 27; Pleasonl- derstood to make Giltinan a princi- on's Appeal, 75 Pa. 344. Similar 53 54 LANDLORD AND TENANT. hereby guarantee to the lessor the true and punctual payment of the rent ... at the times mentioned" in the lease.^ "I hereby guarantee and become security for the faithful perform- ance" of "the tenant."* "For consideration received, I hereby agree to become security for the faithful performance of the above agreement."^ "We do hereby guarantee the faithful per- formance of all the covenants of the foregoing lease" of the lessee "and in case he fails to pay the rent and keep the cove- nants as to repairs and improvements ... we will do it for him."^ 67. Must be in writing. — Being an assumption for the debt or default of another, the suretyship must be expressed in writing, and all its terms must be written^ unless it be the consideration. If, e. g., the lessor, being about to evict the tenant for a year, be- fore the exjjiration of the term, for nonpayment of rent, X agrees to pay the future rent if the tenant be allowed to remain, and fails to pay, the agTeement, if oral, will be invalid. Ap- parently the assumption can be by telegraph.^ 68. Consideration necessary. — Ordinarily the contract of the surety is before or sijnultaneous with that of lease, and the mak- ing of the lease is the consideration for the assumption of the surety. If tlie making of the suretyship is posterior to that of the lease, some other consideration will be necessary^ unless the language was understood by Lowrie, 'Allen v. Hulert, 49 Pa. 259. Ch. J., to make a guarantee in Gil- "h'eimedy v. Duggan, 23 Pa. Co, hert V. Henck, 30 Pa. 205, but the Ct. 625. result would have been the same had '•Riegelman v. Focht, 141 Pa. 380, the words been thought to make a 23 Am. St. Rep. 293, 21 Atl. GOl ; suretj'ship. Cf. Allen v. Hubert, 49 Svj)plee v. Hermann, 9 Pa. Dist. 11. Pa. 259. 27. 'Hayiies v. Synnott, 100 Pa. 180. 'Booth v. Hoenig, 7 Pa. Dist. R. 28 Ati. 832. 529. 'Smeidel v. Lcwellyn, 3 Phila. 70. "Booth v. Hoenig, 7 Pa. Dist. R. Held to be a suretyship because of 529; Vndenix>od's Estate, 5 Pa. Co. the word "security" and because Ct. 62-1. "faithful performance" is equivalent to "nunctual performance." SURETIES IN LEASES.. 55 suretyship is under seal. A seal will, when no consideration is intended to exist by the surety and the lessor, dispense with it.-'" 69. Connection of surety's contract with the lease. — The surety's contract may be separate from the lease, whether writ- ten on the same paper, below the lease, or on the back of the paper on which the lease is written, or on a different paper.^^ If the surety signs his contract before the tenant has signed the lease, but with the intention that the lease shall be signed by the tenant, he will not be bound, unless the tenant signs it.-'^ The lease may name the lessor and the lessee alone as parties ; but if it is signed by another, along with the lessee, with the in- tention to assume the liability of surety, he will become so lia- ble.^ ^ He may write the word "bail" before^* or after, or the word "surety" after^" or before his name to indicate in what ca- pacity he has signed. When the surety signs the lease, he may- be sued jointly with the lessee.^^ A lease contained the state- ment, "The lessee and the sureties J. C. & S. J. R. covenant with the lessor to pay the rent punctually, as above provided for," and was signed by the lessee and the sureties. Their en- gagement was joint, and not several, and the sureties could not be sued apart from the lessee. The fact that the sureties are so named in the covenant does not make them separately suable. ^'^ A lease signed by the lessee and also by the surety, who desig- nates himself as such, is several as well as joint, and the surety can be separately sued.^^ If the surety becomes such in a "Meek v. Frantz, 171 Pa. 632, 33 is liable, althoug-h the lessor does Atl. 413. not sign.^ Duffee v. Mansfield, 141 ^^Scott V. Swain, 19 W. N. C. Pa. 507, 21 Atl. 675. 547; Meek v. Frantz, 171 Pa. 632, "Bronn v. Peters, 2 Kulp, 518. 33 Atl. 413; Riley v. Gullen, 7 W. N. ^Kla-pp v. Kleckner, 3 Watts & S. C. 114; Duffee v. Mansfield, 141 Pa. 519. Cf. Kleclner v. Klapp, 2 507, 21 Atl. 675; Frank v. Maguire. Watts & S. 44. 42 Pa. 77; Krauss 7. McGlone, 3 W. '"Fidler v. Hershei/, 90 Pa. 363; N. C. 272. Broivn v. Peters, 2 Kulp, 518. '^^Cooney v. Biggerstaff, 34 Pittsb. "Philadelphia v. Reeves, 48 Pa. L. .J. 381. 472. ^'Fidler v. Eershey, 90 Pa. 363. "Klapp v. Kleckner, 3 Watts & S. The surety who signs with lessee 519. 56 LANDLORD AND TENANT. separate contract, he is liable separately, and not jointly with th& lessee.-'^ 70. Things to be performed.— When the surety signs the lease he engages for the performance of all the duties imposed by it upon the lessee. The separate assumption may be made to ap- ply to all the terms of the lease, e. g., to the duty of keeping the premises in good condition, ordinary wear and tear excepted.-" Usually the surety's covenant is enforced for the payment of rent Besides undertaking to be responsible for the rent, the surety may agree to be security for "the taxes and water taxes payable" on the premises during the term. Under such a con- tract, the term expiring June 1st, 1891, and taxes being assessed in May, 1891, for the years 1891, 1892, the surety would be liable for the taxes assessed in May, 1891, tho\xgh of the year for which they were assessed the term embraced only one month. ^^ 71. Suretyship arising subsequently to lease. — One may, for a consideration, become surety pending the term, for the rent to become due, or already due. If, e. g., the lessor has distrained on goods, and X is known for some reason to desire their re- lease, and if, in answer to the lessor's telegram, stating that he would not permit the goods to be taken away Tm.less X would agree to pay the balance of the rent due upon the Hoenig leases, X telegTaphs the reply, "I will be responsible for Hoenig leases," X will be liable for the rent, if the lessor releases the goods from the distress.^^ A landlord being about to evict the tenant for failure to pay the rent, may consent to his remaining in possession on B's promising to pay the rent if he is allowed to remain. If the tenant is understood to continue liable, and B's "Erauss v. McOlone, 3 W. N. C. ^^Hayncs v. Synnott. 1(J0 Pa. ISO, 272. Cf. Prank v. Maguire, 42 Pa. 28 Atl. 832. 77. -Booth V. Boenig, 7 Pa. Dist. E. ^Hillary v. Rose, 9 Phila. 139. 529. SURETIES IN LEASES. 57 undertaking is not that of a lessee, B's promise will, as a prom- ise to pay the debt of another, need to be in writing.^* 72. Qualifications of liability of surety. — The surety agrees to do the same things that the tenant agrees to do, and at the same time, and on the same conditions. The guarantor's liability is subject to conditions of various sorts additional to these, which qualify the liability of the tenant or principal debtor. In the ordinary case, the guarantor becomes bound to do the acts to which he obliges himself, not at the time when the tenant is to do them, but later, and only after the tenant's failure to do tliem ; and, further, he becomes bound to do them only in case the lessor fails to secure satisfaction from the tenant for his nonperformance of the contract, after due and unsuccessful dili- gence to obtain it, or in case there are circumstances which ex- cuse this diligence. It is enough for the lessor, there being two tenants, to sue both, although the sheriff returns nihil habet as to one, if, judgment being obtained ag-ainst the other, a fi. fa. issues, to which the sheriff returns nulla bona, unless it is shown that the defendant in the judgment had property real or per- sonal in some other county that was known to the lessor, or ought to have been, and that could have been reached by ordinary exe- cution process. A return of nulla bona to a justice's execution is not sufficient, because it does not negative the existence of real property of the defendant in the county.^* These measures to obtain satisfaction from the tenant should precede the com- mencement of the action against the guarantor. It is not enough for them to be adopted between its commencement and tlie trial.^^ The fact that the lessor has attempted, by distress or otherwise, to collect the rent from the lessee, does not convert the surety's liability into that of a gaiarautor.^** '^Riegelman v. Focht, 141 Pa. 380, the beginning of the action against 23 Am. St. Rep. 293, 21 Atl. (iOl. the guarantor would be a, m.itter in -'Gilbert v. Bench, 30 Pa. 205; Al- abatement, and not in Dar. len V. Hubert, 49 Pa. 259. -"Scott v. Swain, 19 W. N. C. 547. ^ But the taking of the steps after 58 LANDLORD AND TENANT. 73, Further qualifications of surety's liability. — Notice to the surety of the lessor's acceptance of his written suretyship is not necessary to bind him.^'' Seeking payment of the rent from the lessee is not a condition precedent to the right to sue the surety ; nor does failure to seek payment from the lessee dis- charge him;^^ and an affidavit of defense alleging a want of due diligence in collecting the rent from the lessee will not pre- vent judgment.29 The act of May 14th, 1874/° enacts that the sureties in any wTitten instrument for the forbearance or pay- ment of money at any future time shall not be discharged from their liability upon the same, by reason of notice from them, to the creditor, to collect the amount thereof from the principal, unless such notice shall be in writing, and signed by the party giving it. The notice must not be given before the rent has be- come due.^-* It must be a positive and explicit declaration by the surety that he will hold himself discharged ixnless the lessor bringg su.it against the lessee.*^ A notice to the lessor, before the rent is due, to push for it as soon as due, and that the surety ''wants out of it/' is not enough to discharge the surety, tliough there is enough property of the tenant on the premises to pay the rent.^^ It is hardly necessary to observe that a notice from the surety, during the term, tliat he will not be longer responsible for rent, does not disengage him from his contractual obliga- tion.^* An agreement, after the lease is made, between the les- sor and the lessee, which simply reduces the rent of the tenant for the future, does not discharge the surety, though he did not participate in it^^ Merely giving time to a tenant to repay to ''Baker v. Robh, 2 Del. Co. Rep. =-7'id?cr v. Eershcy, 90 Pa. 3(53. 439. "^Fidlcr v. Hershey, 90 Pa. 3fi3. '-■^Iluynes v. SynnoU, 100 Pa. ISO, Cf. Lofius v. Corles, 9 W. N. C. 333. 28 Atl. 832; Supplee v. Bcrmann, 9 ''Coe v. Vogdes, 71 Pa. 383; Pleas- Pa. Dist. H. 27. onion's Appeal, 75 Pa. 344. -''Miller V. Keller, 1 W. N. C. 27. ^'Dickson v. Wolf, 5 W. N. C. 37; "'2 Pepper & L. Digest, 4425, P. Flanigan v. Rossiter, 7 W. N. G. L. 1,57. 180; Bams v. Carney, 6 W, N. C. "Ftdlcr V. Hcrshcy, 90 Pa. 363. 448. SURETIES IN LEASES. 59 tlie landlord taxes which the landlord has, but the tenant should have, paid, does not discharge the surety.^'^ The surety may take a stipulation from the lessor that the latter shall notify the former, quarterly, of any nonpayment of rent, which is payable quarterly. For one quarter's rent there could be no recovery from the surety unless, before suit, this notice had been given.^^ The death of the surety within the term does not relieve his estate from liability for the rent subsequently accruing.'* One of two administrators of the surety may, with the lessor and the lessee, agree to terminate the term (originally of five years) at the end of the second year, so as to escape the liability for the rent of the other three years.'® An offer by the surety, who has obtained control of the premises, to surrender the term, will not relieve him from the rent, unless it is accepted by the lessor,*" nor will the abandonment of the possession by the ten- ant. '^^ The untenantableness of the premises will not discharge the surety, if the tenant keeps possession, nor if, though he leaves in the midst of the term, he does not do so on account of the con- dition of the premises.*^ 74. Effect of Tinenforceableness of lessor's contract. — The fact that the lease, made by a married woman, is not sepa- rately acknowledged by her, should that acknowledgment be nec- essary in order to bind her, will not discharge the surety from liability for the tenant's rent, if the tenant in fact has enjoyed possession.*' A lease for five years ^vas signed by the lessee, but not by the lessor. The surety executed a writing agreeing to be responsible for the true and faithful performance of the "Haynes v. Synnott, 160 Pa. 180, "Meefc v. Frantz, 171 Pa. 632, 33 ■28 Atl. 832. Atl. 413. 'UJillary v. Rose, 9 Phila. 139; *'Coe v. Vogdes, 71 Pa. 383. Pleasonton's Appeal, 75 Pa. 344. Tlie landlord's want of diligence in ^De Morat v. Hoioard, 6 Pa. Dist. collecting rent does not discharge E,. 761. the surety. Lighlncr v. Axe, 3 Del. ^'lieber v. Gilson, 1 Pa. St. 54. Co. Rep. 110; Johnson's Appeal, 19 "'Booth V. Eoenig, 7 Pa. Dist. R. W. N. C. 98. ^29. ''Riley v. Cullen, 7 W. N. C. 114. 60 LANDLORD AND TENANT. lessee's contract "for the full time in which lie may retain pos- session of said premises." The liability of the surety, under this contract, was dependent simply upon the continuance of the tenant in possession, and not upon the enforceableness of the lease for the five years.^* 75. Duration of the obligation. — If the lease is for a defi- nite term, with provision for a renewal from year to year if the tenant holds over or unless legal notice of removal be given, the surety becomes responsible for the rent of a renewal year if the tenant holds over,*^ or if no notice to quit has been given. Under such a lease for one year, beginning ~Sov. 15th, 1865, the tenant continued in possession in 1870. The surety was liable for the rent of 1870.*^ And even if notice to quit has been given, under a lease for one year, which provides that, if the ten- ant remains on the premises after the termination of the year, the contract is to continue in force another year, and so on from year to year, until legal notice shall be given for a removal, if the tenant actually continues in possession, despite the notice, for a second year, the surety will be liable for the rents of the second year.^^ But if, after the notice to quit, a new lease is made with the lessee, and not with the surety, the lessee's con- tinuance in possession will be referred to it, and not to the for- mer lease, and the surety will not be liable for rent accruing sub- sequently to the expiration of the original term.** The lease providing that, for nonpayment of rent, it should become void, the surety remains liable for rent accruing until the exercise by the lessor of his power to avoid the lease. One default in pay- "Duffee V. Mansfield, 141 Pa. 507, supreme court, "did not tenninate the 21 Atl. 675. lease, the tenant holding' over in "Oakford v. Nirdlinger, 196 Pa. 1874 by its terms." 162, 46 Atl. 374. ''Reading Trust Go. v. Jachson. 22 ""Coe V. Vogdes, 71 Pa. 383. Cf. Pa. Super. Ct. 69. This case inti- Oal-ford v. Virdlinger, 196 Pa. 1B2, mates that the mere notice terminat- 46 Atl, 374. ed the first lease and exen.pted the "ilrKaniee v. Oresson, 3 W. N. C. surety from liability for rent for tiie 450, "The notice of 1873," says the time following its expiration. SURETIES IN LEASES. 61 ment does not, ipso facto, extinguish the duty of the lessee or his surety to pay the future instalments.** 76. Surety's right to prevent a renewal of lease. — If the lease is for a term, with provision for holding over from year to year, vmless notice is gi\'en by lessor or lessee of the intention to demand or to relinquish the possession the surety may escape liability for the rent for any renewal period, by giving notice the proper time before its inception, that he will not continue bound. A lease for one month, commencing May 1st, 1883, •contained the usual clause that, in the event of a holding over, the lessee should be considered tenant for another month, and so •on from month to month, and provided that either party could terminate it at the end of any month by giving the other twenty days' notice of his intention. A notice by the surety on April 5th, 1884, to the lessor that he would not be surety any longer, "would discharge him from liability for rent for the following month of May and later months.'" In Pleasonton's Appeal''^ a lease for one year from January 1, 1867, was to continue from year to year until one month's notice was given of the in- tention to terminate it. On June 4th, 1869, the surety notified the lessor that he would not be such after the 31st •of December, 1869. The tenant continued in posses- sion until February, 1871. The surety died September 10th, 1870. His estate was not liable for the rent of August, 1870, or for future rent. "Plad De Silver suffered the lease to begin again for 1870," says Ag-new, Ch. J., "his estate would have been liable. But his notice and death were facts probing the conscience of the landlords, who could not in equity "English v. Yates, 205 Pa. 106, to assume that the renewal of the -54 Atl. 503. lease had taken place after the death ^'Traeger v. Hartnett, 15 W. N. C. of the surety. Only one month's 300. rent for the year beginning after his " 75 Pa. 344. The opinion of the death -was claimed. The rest was for coui-t does not apprehend the facts as the year that began prior to hia they are presented in the history of death, but after his notice to the the case. The court's remarks seem lessor. 62 LANDLORD AND TENANT. permit a renewal of the lease on the credit of the surety, when tliey had it in their power to compel the tenant to give a new surety or terminate the lease." Perhaps, the death of the surety, known to the landlord, and other circumstances, may be the equivalent of notice from him not to renew the term in re- liance on his suretyship ; but no such equivalence to notice was found, when, the term being for three years, with provision for renewal from year to year unless notice was given, the surety died in the midst of the term^ and the tenant was allowed to con- tinue in possession beyond the term, and the administratrix of the surety, who was his widow and the mother-in-law of the ten- ant, continued to dwell with the latter on the premises. The widow, it was said, in effect affirmed the propriety of the lessor's act in allowing the tenant to hold over.^^ 77. Discharge of surety. — If the lessor, having made a dis- tress on goods, allows the tenant to remove them on his promising to pay the rent in instalments, the surety will be discharged to the extent of the value of the goods.'^ If, an execution being levied on the tenant's goods, the surety in the lease notifies the landlord to apply to the constable who is making the sale, for the rent of the term, and he declines to do so, but, as agent for the lessor of the same premises for the preceding year, demands and receives the rent of that year, relying on the surety for the rent under the lease in which he is lessor, the surety will be pro tanto discharged.^* The surety is not discharged if a distress is ren- dered abortive by the clandestine removal of the goods after they were distrained upon, which the lessor's want of care and dili- gence did not make practicable, nor possible, the goods being taken from the constable by the tenant himself."^ The lease stipulating against assigning or subletting, an assignment with "'De Morat v. Howard, 6 Pa. Dist. "Lichtcnthaler v. Thompson, 13 E. 761. Serg. & R. 157, 15 Am. Dec. 581. '"iWcAamee v. Gresson, 3 W. N. C. '•''Myers v. Hulseman, 3 W. N. C. 450. 487. SURETIES IN LEASES. 63 the consent of the lessor will free the surety from liability for subsequent rent;^* but when the lease stipulates against assign- ment, not absolutely, but only when made without the lessor's consent, the surety will be liable for rent accruing after an as- signment is made with the lessor's consent.''^ "This provision is for the benefit of the lessor, and not of the guarantors, "°^ says Lowrie, Ch. J., "and an assignment according to it is not incon- sistent with their guaranty." A landlord's eviction of the ten- ant discharges him and his surety from liability for rent subse- quently falling due,^® and if, the lessee dying, his widow is al- lowed by the lessor to continue in possession and to pay some rent, though no letters of administration are granted to any one, these acts of the lessor will be "analogous to the eviction of the prior tenant" and the lessee's surety will not be liable for the rent which accrues diiring the widow's occupancy, although he orally urges the widow to continue the possession. Even his oral promise to pay the rent would not make him liable."'* 78. Defenses of surety. — A surrender of the term accepted by the lessor will end the liability of the surety for rent that would have subsequently accrued.®-' As the surety has no right to the possession of the premises on the lessee's vacating them without assigning the lease to him, he will not be discharged by the lessor's refusal to allow him to take possession."^ To the extent to which the tenant could protect himself from the pay- ment of the rent, on account of the failure of the landlord to perform his covenant to make rei^airs, viz., to the extent of the diminution of the value of the premises to the tenant, but no farther, the surety will be excused from paying the rent."^ If ^Bedford v. Jones, 5 Legal Gaz. "Supplee v. Hermann, 9 Pa. Dist. 230. R. 27. '''Gilbert v. Bench, 30 Pa. 205. '^Frank v. Maguire, 42 Pa. 77. ™ The parties were really sureties. "Goodman v. Rothaker, 17 Phila. '''Duff V. Wilson, 69 Pa. 316. 245. A married woman cannot become ''Medary v. Gathers, 161 Pa. 87, surety. Underwood's Estate, 5 Pa. 28 Atl. 1012. Co. Ct. 621. 64 LANDLORD AND TENANT. the lessor refuses for some weeks to give possession to the ten- ant, the surety is discharged though the lessee himself waives the refusal; but the continuance of the lessor in some of the rooms of the house for two months after the term began, with the consent of the lessee, no change having been made in the contract, would not discharge the surety.^* If the surety was induced to become such by the fraud of the lessor, if, e. g., he is falsely told by the lessor that the lessee, his brother-in-law, de- sires him to become surety, he will be discharged. The false- hood is material, since if he became surety without the request or consent of the tenant, he would have no action against the tenant for reimbursement for rent paid.®^ The surety's er- rficous impression when he signed the lease, that it was for but ■one year, when in fact it was for three years, is no defense, there being no obstacle to his reading it, and no misrepresentation by which he was deceived.*"* It is no defense for the surety that before she signed the lease, one, not an agent of the lessor, but an agent of the lessee, asked her to sign, and stated that the lessor, who was then occupying the premises, was going to give up entire possession ; that she then said she would "go security, but Mrs. Medary (the lessor) must give up full possession," and that, notwithstanding, the lessor continued on the premises for two months after the term began, no ground being laid for the introduction of the oral agreement into the lease, no representa- tion having been made by any one to induce the surety to sigTi, and the lessor not having authorized, or been informed of, the statement made to the surety before signing.'''' A change of ownership of the reversion does not terminate the surety's liabil- "Meda/ry v. Gathers, 161 Pa. 87, A judgment against the tenant, 28 Atl. 1012. and a sheriff's return to an execution '■"Meek v. Frantz, 171 Pa. 632, 33 on it of nulla bona, could not be put Atl. 413. in evidence, in a, suit for the rent "Meek v. Fronts:, 171 Pa. 632, 33 against the surety. Giltinan T. Atl. 413. Strong, 64 Pa. 242. " But see Reher "'Medary v. Gathers, 161 Pa. 87, v. Qiison, 1 Pa. St. 54. 28 Atl. 1012. SUEETiES IN LEASES. 65 ity for rent afterwards accruing, when the tenant's promise is to p&j the rent "as long as the said premises shall be held or oc- cupied" by him, and the surety has made himself responsible for the tenant's performance.®^ A statement by the lessor to the lessee (who informs the former I'hat he will pay a portion of the rent due), that he will not accept such payment, does not pro ianto discharge the surety, there having been no tender of any part of the rent, nor clear offer of any.'^" 79. Liability of surety to competitor of lessor. — Pending an ejectment by A, claiming to be a cotenant with B against B, B made a lease of the premises to C, A refusing to join in it, and announcing his intention to claim mesne profits in the ejectment. The lease provided that should A succeed in the ejectment, one half of the rent only should thereafter be paid to B, until it should be legally determined to whom the other ialf was due ; and in case C should be legally required to pay one half of the rent to A during the entire term, he, C, should be al- lowed to apply all the rent to the payment of A until A should receive as much as had been paid to B. On this contract A, who had recovered a judgment for mesne profits, could not main- tain an action against the sureties on the lease. The lease did not admit of the construction that the stipidation was made for the benefit of A if he succeeded in establishing his right. It was intended to protect the lessee from loss.''* •^Taylor v. Kennelly, 14 W. N. C. ''"Kennedy v. Duggan, 200 Pa. 284, 124. 49 Atl. 781. Cf. Kennedy v. Duggan, "English v. Yates, 205 Pa. 106, 23 Pa. Co. Ct. 623. 54 Atl. 503. IiAND. & Ten. 6. CHAPTEE Vn. THE LESSOR'S COVENANTS. 80. Kinds of covenants. 81. Covenant as to existing state. 82. Leasing for particular use. 83. Covenant that premises are "perfectly dry," 84. Covenant as to neighborhood. 85. Covenant as to safety of stairway. 86. Covenant as to future state of premises. 87. Agreement to repair made after the lease. 88. Lessor's duty to repair. 89. Covenant to repair. 90. Pestruction by fire. 91. Destruction by fire; upper story demised. 92. Fire; insurance by tenant. 93. Stipulations with respect to fire. 94. Stipulations after the fire. 95. Landlord's right to make repairs. 96. Landlord's covenant to buy tenant's improvement. 97. Independent agreements. 98. Landlord's covenant to procure right to a switch. 99. What is breach of covenant to repair. 100. Defense of tenant for breach of landlord's covenant. 101. Action for breach. 102. Measure of damages. 103. Another measure of damages. 104. Duties whose breach is not available in replevin. 105. Breach an obstacle to recovery of any rent. 106. Duty imposed on lessor as trustee. 107. Piepairs imposed on the tenant. 108. Negligence of tenant; injury to tenant. 109. Waiver of defects in premises. 110. Covenant running with the land. 80. Kinds of covenants. — Covenants of various sorts -with respect to tlie premises to be demised may be made by the land- lord, and the appropriate remedies for the breach of them by him may be resorted to by the tenant He may agree, e. g., to 6S THE LESSOR'S COVENANTS. 6T erect stabling on premises leased as a furnace ;^ to build a house and improve the mill on the premises f to build a barn.^ The covenant to put up the dam and wing dams "so as to drive at least two saws in low water" is a stipulation for the effect, and is not carried out by putting up a dam and wing dams which, in low water, will not drive at least two saws.* The shop being on the Board-Walk at Atlantic City, the moving of which towards the sea is in contemplation, the lessor may agree that if the Board-Walk is moved, he will move the shop so that it will continue to be upon the walk.^ He may stipulate to repair a break in a kiln, to build a counting house and a weigh-house, to plank the wharf,® to repair a porch floor,''^ to keep the fences of the premises — a dairy farm — in repair,^ to keep in repair the roof of a hotel,^ to lay cinders and gravel in the yard of the tav- ern,^" to make alterations and improvements," to make an addi- tion to the dwelling house and improvements to the mill,^^ to deepen and widen the tail race.^^ He may covenant that the tenant shall have the free use of the road and well upon other premises than those leased.^* The lease may authorize the ten- ant to make repairs at his discretion at the expense of the lessor, five per cent of the expense to be added to the rent. One em- ployed by the tenant to make these repairs could not collect the cost from the tenant, if he knew that the tenant was acting un- der the authority of the landlord, and was intending to bind the ^Gray v. Wilson, 4 Watts, 39. ^'Fairman v. Fluck, 5 Watts, 516. -Obermyer v. Nichols, 6 Binn. 159, "Block v. Bowling, 7 Pa. Dist. R. C Am. Dec. 439. 261. ^Shughari v. Moore, 78 Pa. 469. "Oiermyer v. Nichols, 6 Binn. 159,, 'Lomis V. Ruetter. 9 Watts, 516. 6 Am. Dec. 439. Cf. Prescott v. ^Jackson v. Farrell, 6 Pa. Super. Otterstaiier, 85 Pa. 534. Ct. 31. ''Christ V. Diffenlach, 1 Serg. & R. 'Warner v. Caulk, 3 Whart. 193. 464, 7 Am. Dec. 624. ^Uahn V. Roach, 7 Northampton "Depuy v. Silver, 1 Clark (Pa.) Co. Rep. 21. 385. Damages from the breach may 'Brimner v. Reed, 23 Pa. Super. Ot. be set off in an action for the rent. 318. "Forrest v. Buchaman, 203 Pa. 454, 53 Atl. 267. 68 LANDLORD AND TENANT. landlord, and not himself. If he did not know of this right of the tenant to bind the lessor, and gave credit to the tenant, he could recover from the latter. If the lessor and lessee agree on the erection of a cold storage room, and the former makes a con- tract with X to do the work, in which he names the tenant as architect and agent, and authorizes changes and additions at the discretion of the tenant ; for any alterations and additions to the work sj)ecified in the contract, the lessor would be liable, and not the tenant, to X.''® If the promise is omitted from the written lease, which is accepted by the tenant on the lessor's assurance that it shall be performed, it will be enforceable.'® 81. Covenant as to existing state. — The landlord may cove- nant as to the existing state, or fitness for certain purposes, of the premises, e. g.j that they are adapted to a certain business, that they are suitable for residence, but there is no implied promise on the part of the lessor that they are fit for any par- ticular purpose, e. g., for the purpose of making and selling hats,'^ of serving as a vault for the storing of beer,'* of manu- facturing morocco,'" of being a boarding house^" or an inn,^' of being a residence.^^ Though it is said by Finletter, J., that "the supreme court has said that there is an implied covenant that the house [the subject of the lease] is habitable,"^^ it is un- derstood that, except in special cases, e. g., when an examination of the premises by the tenant before he accepts a lease is, owing to his distance from them or other causes, impracticable, or when, by representation or artifice, he is dissuaded from exam- ining them, it is the business of the tenant to examine them, and "Schaetsle v. Christman, 10 Pa. '^Huher v. Baum, 152 Pa. 626, 26 Super. Ct. 294. Atl. 101. ^'Christ V. Diffenhach, 1 Serg. & R. -'Samuel v. Scott, 13 Phila. 64. 484, 7 Am. Dec. 624; Shughart v. "Wheeler v. Crawford, 86 Pa. 327. Moore, 78 Pa. 469. -"-Druckcnmiller v. Young, 27 Pa. "Moore v. Weber, 71 Pa. 429, 10 97. Am. Rep. 708. "-^Showaker Y. Boyer, 3 Pa. Co. Ct. "Schleppi V. aindele, 14 W. N. C. 271. 31. THE LESSOR'S COVENANTS. 69 to judge for himself of their fitness, and if he wants the cove- nant of the landlord that they are and shall be fit for his pur- poses, to insist upon getting an express covenant. His eyes are said to be his bargain or his market.^* There is no implied promise or warranty that the premises, a residence, are in sufii- ciently good repair to be tenantable,^' or that, let with its furni- ture, all the rooms of the house are completely furnished,^" or that the heating plant and apparatus are in such order that steam will not escape and injure goods in the store. ^^ There is no implied covenant that the premises, rented as a drinking saloon, are free from the reputation of being an opium joint and a bawdy house.^* A lease of the "right and privilege to mine and take away" coal, tliough a lease of the coal itself, and not a mere license, does not imply a warranty that there is sufficient coal to work profitably and compensate for expenditures in mak- ing preparations for carrying on the business.^^ Nor does the lessor of a part of a building covenant impliedly that the heat- ing apparatus in another portion is, or will remain, in good or- der, and not, by escaping steam, etc., injure the tenant's goods in the leased portion."** 82. leasing for particular use. — The fact that the lessor knows to what use the lessee intends to put the premises, or men- tions the use in the lease, or even prescribes it, does not imply a covenant on his part tliat they are adapted to the use. The '*Hulier V. Baum, 152 Pa. 626, 26 '^Krohn v. Wolf, 7 Del. Co. Rep. Atl. 101; Moore v. Weber, 71 Pa. 420. 429, 10 Am. Rep. 708; Eess v. Wein- '"TtciUll v. Brown, 17 W. N. C. gartner, 5 Pa. Dist. R. 451 ; Johnson 221. V. Mathues, 4 Del. Co. Rep. 365 ; "Harlan v. Lehigh Coal & Nav. Co. Wien V. Simpson, 2 Phila. 158 ; 35 Pa. 287. Action by the lessee on Dillon V. Carrol, 2 Luzerne Legal the alleged implied covenant. Reg. 89. ^"Krohn v. Wolf, 7 Northampton ^Druchenmiller v. Young, 27 Pa. Co. Rep. 18. The action for damages 97 ; Hess v. Weingarlner, 5 Pa. Dist. to the tenant's goods would be found- R. 451 ; Wien v. Simpson, 2 Phila. ed, not on contract, but on the negli- 158; Kline v. Jacobs, 68 Pa. 57. gence of the lessor. "Hess V. Weingartner, 5 Pa. Dist. R. 451, 70 LANDLORD AND TENANT. thing leased may be a dwelling house, and the lessee's intention to use it as such be well known to the lessor.^* The lease may specify that it is to be used as a boarding house^^ or hotel.^^ But, in all these cases, the tenant must exercise his own judg- ment as to the fitness of the premises now and the probable con- tinuance of their fitness hereafter, for his uses and needs, and he must rely on this judgment, imless he obtains an express cove- nant from the lessor, or unless the landlord's representations are intended to dissuade, and do dissuade, the tenant from investi- gation.** 83. Covenant that premises are "perfectly dry." — A repre- sentation, or covenant, by the lessor, that the premises are "perfectly dry," must not be understood to mean that they are not so far damp as the tenant, on inspection, sees them to be, nor that they will not become daijip by the action of neighbors, or the negligence of the tenant himself in not keeping the spouts from the roof in good condition or preventing the cesspool from overflowing so that its contents reach the cellar. When the lease was made, there was a damp spot on the wall, caused by a neigh- bor's ice-box ; but the dampness did not loosen the paper. The house subsequently grew damp from the bad order of the spout- ing and the overflow of the privy. The covenant that the house was "perfectly dry" was not violated by the slight dampness at the time it was made, which was visible to the tenant, nor by the dampness which subsequently arose from the neglect of the lessee, nor from improper acts of neighbors, which the lessee could have taken measures to prevent.^* '^E.g., Wien v. Simpson, 2 Phila. ed and declared the house to be in all 158. Cf. Carson v. Qodley, 26 Pa. respects fit and suitable for that pur- 111, 67 Am. Dec. 404; Schleppi v. pose. Gindele, 14 W. N. C. 31. "Samuel v. Scott, 13 Phila. 64. In Wolfe V. Arrott, 109 Pa. 473, "Hasilett v. Powell, 30 Pa. 293. I Atl. 333,, it was intimated that the "Wolfe v. Arrott, 109 Pa. 473, 1 lease stipulating that the premises Atl. 333. should not be used otherwise than as "Johnson v. Mathues, 4 Del. Co. II dwelling house, it fairly represent- Rep. 365. THE LESSOR'S. COVENANTS. 71 84. Covenant as to neighborhood. — A covenant that the lessor ■will cause objectionable houses in the neighborhood to be •demolished and better houses erected instead is merely collateral, and the nonperformance of it will not suspend or discharge the rent. A fortiori, a mere representation dehors the lease, by the agent of the lessor, made to induce the acceptance of the lease, that the houses opposite were controlled by him and would be de- molished, and better houses erected, not averred to be false or fraudulent, and being contrary to the terms of the lease, would not defeat the rent.*® 85. Covenant as to safety of stairway. — When the rooms or floors of a house are let to different parties, all of whom use XI common stairAvay in control of which the lessor continues, he is bound to keep it in safe condition although he does not ex- pressly covenant to do so, and although the respective lessees have covenanted to make repairs. They are not tenants of the stair- way, and their covenants do not apply to it. A tenant who, in descending the stairway, is hurt in consequence of its defects, will have a right to indemnity from the landlord.*'' 86. Covenant as to future state of premises. — The landlord no more covenants impliedly for the future state of the premises than for their state at the time of making the lease. He does not, e. g., covenant that an ice-house, connected with a beer vault, shall not fall in;*® that the wall of the adjoining house belonging to another person shall not be taken down so as to expose to the weather the wall of the demised premises;*^ that a building rented as a morocco factory shall not, after four years' use, become, by reason of age and dilapidation, so imsafe "Wilcom V. Palmer, 163 Pa. 109, "Lemn v. Pauli, 19 Pa. Super. Ct. 29 Atl. 757. But the intention, al- 447. leged by the representation to exist, ^Schleppi v. Q-indele, 14 W. N. C. was never carried out. Prescott v. 31. Otterstatter, 79 Pa. 462; Allegaert v. '"Moore v. Weber, 71 Pa. 429, 10 Smart, 11 W. N. C. 177, are cited. Am. Rep. 708. 72 LANDLOKD AND TENANT. as to preclude the further prosecution of the business there;*"' that a house will be kept, by necessary repair, in a tenantable state s*-* that eighteen windows looking over an adjoining vacant lot, belonging to another, shall not be closed up by the erection against them of a party wall ;*^ that the roof of a barn shall not so get out of repair as to leak and make the bam untenantable, and the pump so worn out as to render the well useless ;*^ that the ceilings in the upper rooms of an inn shall not fall or threaten to fall, so as to render the rooms insecure and untenant- able ;** that the drainage shall be such as to make it safe for the health and lives of the lessee and his family for them to remain on the premises during the term, and as to avoid the prohibition by the board of health, of the continuance of the occupancy;'*' that the drainage shall not become so defective as to render the back buildings of a boarding house tminhabitable, and to dis- suade boarders from taking rooms in them ;*^ that the roof shall not leak and, by so doing, cause the cellar to be flooded and the house to be rendered untenantable ;*'' that the bulk windows shall be made not to leak^ a hand-rail constructed in the stair- case to the second floor, terra-cotta collars put on the chimneys, and necessary plumbing done to keep the cellar dry ;** that the roof shall not become decayed and leaky, or the spouting clogged up and out of order ;** that the house shall not become damp by the action of the neighbors, or by the neglect of the tenant to "'Euber v. Baum, 152 Pa. 626, 26 Stull v. Thompson, 154 Pa. 43, 25 Atl. 101. Ati. 890. "Phillips V. Monges, 4 Whart. 220; In BroJaskey v. Loth, 5 Phila. 81, McCloskey v. Wiltbank, 1 W. N. C. Thompson, P. J., held that a leaking 413; Reeves v. McComeshey, 168 Pa. roof making the house untenantable, 571, 32 Atl. 96. the tenant could remove, and escape "Easlett V. Powell, 30 Pa. 293. liability for future rent. '"Luhens v. Eedley, 1 W. N. C. 266. "IT'a/r v. Rhodes, 1 VV. X. C. 49. ^'Wheeler v. Crcmyford, 86 Pa. 327. "Bradley v. Citizens' Trust & *'-Hollis V. Brown, 159 Pa. 539, 28 Surety Go. 7 Pa. Super. Ct. 419. Atl. 360. "Russell v. Rush, 2 Pittsb. 134. '^Samuel v. Scott, 13 Phila. 64; THE LESSOR'S COVENANTS. 7» 'ileanse the drains and conductors;^" that a stable shall be kept in a tenantable state for horses.^ ^ 87. Agreement to repair made after the lease. — An agreement between the landlord and tenant, made after the lease has been made, that the former will make repairs or changes, xs, like any other agreement, enforceable only if some consid- eration for it exists. The tenant being by the lease bound to pay the rent without repairs being made, escapes that duty only by a posterior contract for which he has furnished a considera- tion.^^ A tenant having the right to remove at the end of the current year woiild, by holding over, and becoming liable for the rent of another year, furnish a consideration for the lessor's prom.ise during the first year to make repairs if the tenant would retain possession such another year. But if the lease requires the tenant to remain another year unless he gives notice prior to the close of the current year, and if, such notice not be- ing given and the time to give it having gone by, the lessor's grantee promises to make the repairs if the tenant will continue in possession the next year, the grantee is not legally bound to make the repairs, and whether he mal?;es them or not, the tenant will be liable for the whole of the next year's rexitf^ and if a tenant, who has held over for a second term, but, removing from the premises before its expiration, desires to escape the rent, alleges that the lessor promised to make repairs, he must sho^v that the promise was made before, by holding over, he had al- ready become liable for the whole year's rent.^* The surety of the lessee sued for the rent may set off moneys paid by him for repairs to the premises, at the instance and request of the '^'Johnson v. Mathues, 4 Del. Co. 226; Lulcens v. Eedley, 1 W. N. C. Rep. 365. 266; Druckenmiller v. Young, 27 Pa. ''^Cochran v. Ward, 8 Del. Co. Rep. 97. 423. '^White v. Campion, 1 W. N. C. ^'Dillon V. Carrol, 2 Luzerne Legal 130. Reg. 80 ; Phillips v. Monges, 4 Whart. "Eoian v. Lawall, 3 Lack. Jur. 38. 74 LANDLORD AND TENANT. lessor. ^^ The term being for a year, the tenant cannot properly infer from the lessor's having, during the year, told him, repairs to the mill being needed, to have them made, and from the lessor's having subsequently paid for them, that he might, dur- ing the second year, have repairs made to the dam at the cost of the landlord. If the lessor induces the tenant to make extraor- dinary repairs vi^hich he is not bound to make, by promising to pay for them, the lessor vsdll be bound. The fact that the lessor paid for repairs though he was not bound to do so, during the term, would not oblige him to pay for repairs made by the ten- ant during a hold-over year; the holding over not having been induced by any promise to continue in possession.^® 88. Lessor's duty to repair. — The landlord does not impliedly covenant that the premises shall continue in the state in which they are, or, if they do not, that he will bring them back to that state by repairs. He is under no implied duty to make repairs,^^ or, if the tenant makes them, to reimburse him.°* He is not bound, e. g., to put on new shutters, the former having rotted off,"'" or to reconstruct an ice-house which has fallen,®'' or to repair a dam which breaks during the term,®^ or, the lease being of a basement in New York city, so connected with a sewer that water occasionally backs up into it, to change the connection so as to prevent this,"^ or to repair the roof of a barn, or a pig- pen.®^ 89. Covenant to repair. — The landlord does not covenant to put the house "in order," by inserting in the lease the phrase ''the party of the second part [the lessee] to do all inside repairs '"Kelly V. Duffy (Pa.) II Atl. 244. "Schleppi v. Gvndele, 14 W. N. C. '^Everhart v. Bauer, 1 Lehigh 3L Valley Law Rep. 157. '^Everhart v. Bauer, 1 Lehigh "Long T. Fitzimmons, 1 Watts & Valley Law Rep. 157. H. 530; Hitner v. Ege, 23 Pa. 305; "'Plummer v. Shuhni/cr, 12 Lane. Schleppi V. Gindele, 14 W. N. C. 31; L. Rev. 217. For damages to the Wien V. Simpson, 2 Phila. 158. tenant's goods, the landlord is not "'Kline v. JacoJis, 68 Pa. 57. liable. '■'Iless V. Weliigarl-ner, 5 Pa. Dist. "Medary v. Gathers, 161 Pa. 87, R. 451. 28 Atl. 1012. THE LESSOR'S COVENANTS. 75 after the house is put in order.""* The lease being silent as to repairs, it is improper to infer that there was a duty to repair sixfSciently to keep the house tenan table from the fact that the lessor has, at the request of the tenant, made some repairs. An agreement of some kind must be shown. The landlord may er- roneously suppose himself bound, or he may do the repairs for the benefit of the property, and that it may not fall into dilapi- dation.'^'' Though the lease is in writing, an oral agreement, made at the time, that the tenant may make the necessary repairs ^nd be credited for the expense of them vipon the rent*® will be enforced if the agreement is omitted by inadvertence from the written lease, and is repeated immediately before the execution -of the lease, as an inducement to the lessee to accept it, and again, after the tenant has taken possession.®'' When repairs are made by the tenant, "with the assent and by the authority of the landlord," he is liable for the cost of them without any •express promise to pay.®** If the ordinary repairs are made by the tenant, the lessor will not be obliged to reimburse him unless they were made at the lessor's request, or in conformity with an agreement''^ If the landlord covenants that "he is to pay all repairs exceeding two dollars," he does not bind himself to make repairs, but only to compensate the tenant for such repairs as "Frey v. Zabinski, 10 Kulp, 36. ment was made is not sufficient Even if it ^^■as a covenant to put "in reason for giving effect to it. Moore •order" it would not follow that it v. Gardiner, 161 Pa. 175, 28 Atl. obliged the lessor to repair the fur- 1018. nace, leaking pipes, bad roof, spigots '^Cornell v. Tanartsdalen, i Pa. without washers, fire-places without 364. What amounts to an assent grates. or authority of the lessor will depend '''Moore v. Weber, 71 Pa, 429, 10 on circumstances, of which the jury Am. Rep. 708. will judge. If the lessor, under a '^Johnson V. Blair, 126 Pa. 426, 17 promise to give the farm to the Atl. 663. No explanation was given lessee (his son-in-law) and wife, en- ■of the omission of the agreement courages him to erect a new building from the writing. and to make repairs, and then he de- "Caulk V. Everly, 6 Whart. 303. vises the farm to another, the law -Cf. Shughart v. Moore, 78 Pa. 469. implies an obligation to pay. The mere fact that the oral a^ree- '"Hitner v. Ege, 23 Pa. 305. 76 LANDLORD AND TENANT. he shall have made.''" The lease stipulating "said Lockhart (lessee) to put mills and race in complete order for riiuning, and keep a correct account of the same, which is to apply towards paying the rent on the second year of the lease, and all after- repairs at the expense of Lockhart," the cost of the repairs, be- tween $2,000 and $4,000, could be set ojff not only against the second year's rent, which was but $1,050, but against any subse- quently accruing rent. The landlord was liable for all.''-' The agreement of the lessor to reimburse the tenant for the cost of the repairs may be conditioned on his sale of the premises with- in one year. "The said lessor," says the lease, "agrees to refund any amount, not exceeding $300, which the said lessee may ex- pend on the premises towards putting it in habitable condition, and for which he shall produce vouchers, in case the property is sold within said period. The lessee agreeing to allow access to the property for the purpose of effecting a sale." The phrase "in case the property" etc. was understood to be connected with the preceding words.''- The lessor may agTee in the lease that tlie tenant may make such repairs as, in his judgTaent, are need- ed, and that he shall be repaid out of the renf* The fact that the written lease says that the inside repairs are to be done by, the tenant, in conjimction with the fact that the landlord made y some outside repairs after the tenant went into possession, would require the submission to the jury of the question whether he did not agree to make outside repairs, e. g., to the roof and spouting.''* '"Lomis V. Ruetter, 9 Watts, 516. '"Johnson v. Blair, 126 Pa. 4-20, 17 The contract really was that the Atl. 663. The tenant, if sued for tenants "are to pay all repairs that the rent, can set off the sums expend- shall not exceed $2 each." The lower ed for repairs. court assumed that this imposed the ^'Russell v. Rush, 2 Pittsb. 134. duty on the lessor of paying for all It ^■^'0uId, however, not be the lessor's repairs above $2, if they were made duty, if he had made such an agree- by the tenant. ment, to so make the roof and spout- ''^Mattocks V. Cullum, 6 Pa. 454. ing that there could be no leakage '"Wright v. Uilne, 9 Pa. Dist. R. during and after an extraordinary 170. storm and freezing. For temporary THE LESSOR'S COVENANTS. 77 90. Destruction by fire. — There may be a provision in the lease with respect to injury or destruction of the building by fire, and defining the rights or duties, upon the happening of a fire, of the landlord or of the tenant. In the absence of such provi- sion, there is no implied condition to the tenant's duty of continu- ing to occupy the premises and of paying rent, that they shall not be destroyed or seriously injured by fire, or that, if they are, the landlord -will restore them. "Equity," said Gibson, Ch. J., ''refuses to relieve against such a covenant [e. g. to pay rent] though the premises be consumed by fire, destroyed by the ele- ments, or encroached on by the sea."^^ Hence, the destruction of a barn on a leased iaria,''^ of a leased store,^' a store house^* or housQ,''' does not excuse the tenant from continuing to pay tJie rent. The value of a tavern depended largely on the neigh- boring ferry bridge over which travelers came to it. The de- struction of the bridge, and consequent serious reduction of the patronage of the tavern, did not excuse from paying the full rent.*" The tenant cannot set off against the rent damages from the loss of nuts from shell-bark trees which have been destroyed by fire occasioned by locomotives on a neighboring railroad.*^ If the lessor has had an insurance on the property, the fact that he has received the money from the insurance company does not relieve the tenant from the rent. "It is im- possible to see," says the court, "what payment of the loss by the insurance company had to do with the payment of the rent by the tenant It was not the rent which was insured, but the and accidental obstructions to the '"Hoeveler v. Fleming, 91 Pa. 322; spouts the lessor would not be re- Magaio v. Lambert, 3 Pa. St. 444; sponsible, but the lessee. Mannerltach v. Keppleman, 2 Woodw. ■"Fisher v. UilUken, 8 Pa. Ill, 49 Dee. 137. Am. Rep. 497; Camp v. Casey, 7 Pa. "Smith v. Ankrim, 13 Serg. & R. Co. Ct. 160. 39. Even had the bridge been a part ^'Maberry v. Dudley, 2 Pennyp. of the demised premises, the legal re- 367. suit of its destruction would have ''Thillips V. Epp, 4 Del. Co. Rep. been the same. 426, 2 Lack. Jur. 41. "-Jenkins v. Stone, 14 Montg. Co. ^'Bussman v. Ganster, 72 Pa. 285. L. Rep. 27. 78 LANDLORD AND TENANT. premises out of "which it issued, and the tenant could not say- that the company had paid it for him."*^ Nor, the insurance company offering to rebuild in lieu of paying the money, is the tenant relieved from the rent because the landlord declines the offer and takes the money, or because he declines the offer of the tenant to rebuild with the money.*^ 91. Destruction by fire; upper story demised. — When the sub- ject of the lease is apartments in the upper story of a build- ing, if there is no covenant by either landlord or tenant to re- build, the lessee is discharged from his covenant to pay rent by the burning of the building which makes the enjoyment of the space demised to him impracticable. Hence, all the rooms on the second story of a stone building being demised, the destruc- tion of the building terminated the accruing of rent. The tenant ceased to be liable for any accruing in the future.^* 92. Fire; insurance by tenant. — If the tenant, agreeably to the lease, maintains insurance on the landlord's interest in the premises, and is bound to pay the insurance money to the land- lord, or, if he shall prefer, to rebuild, the payment of the insur- ance money to the landlord, who does not rebuild, will excuse the tenant, who withdraws from the possession, from further rent. "It is well established," remarks Hare, P. J., "that the destruction of the building by fire does not discharge the tenant. The reason is, that he impliedly assumes the risk ; and moreover, as the land remains, the failure of consideration is only partial. "Magaw v. Lambert, 3 Pa. St. .are removed from the premises the 444. whole rent for the rest of the term "'Bussman v. Oanster, 72 Pa. 285. shall become at once payable was en- "Camp V. Casey, 7 Pa. Co. Ct. 160. forceable although the removal was. The fact that the use of a cistern in made necessary by a fire. A stipu- a cellar, in common with other lation that the rent shall cease if the tenants, was given in the lease, did building be destroyed by fire will not not prevent the application of the exempt the tenant from rent, if the principle. Cf. Phillips v. Epp, 2 building is only injured, though the Lack. Jur. 41, 4 Del. Co. Rep. 426, part of it occupied by the tenant is. where it is held that the stipulation rendered untenantable, in the lease that if the tenant's goods THE LESSOR'S COVENANTS. 7» When, however, it is agreed that the premises shall be insured, and the amount due on the policy employed to rebuild them in the event of loss, or paid to the lessor, at his option, and he chooses the latter alternative, the presumption is strong, if not irresistible, in favor of an agreement to discharge the tenant. The money stands, under these circumstances, in lieu of the house, and the effect of the payment of it to the landlord is to replace him in the possession of a part at least, of that which he granted by the lease. Accordingly, when such a transaction is followed by the withdrawal of the tenant, a jury may, and perhaps ought to, find a surrender by him and an acceptance of it by the landlord."^" 93. Stipulations with respect to fire.— The lease may stipulate that a destruction of the premises by iire shall unconditionally or conditionally relieve the tenant from future rent. It may, e. g.j provide that should a fire occur witlaout the tenant's negli- gence, the tenant may require the lessor to rebuild, and, if when so required, the lessor shall not within throe months commence to rebuild and shall not duly prosecute the rebuilding, the tenant may relinquish the premises and escape liability for the rent. Under such a lease, it would be the duty of the lessor to rebuild in case of fire not caused by the tenant's negligence, should the tenant require, or to forego future rent. That the fire was not caused by the tenant's negligence, he could show by the statements of the lessor to the insurance company, for the purpose of procuring the money on the policy.^® But if the written lease expressly says that the tenant shall continue liable for the rent, notwithstanding any accident making rebuilding necessary, and that he will rebuild at his own expense and without any reduction of the rent, he cannot escape the liability "Boyer v. Dickson, 7 Phila. 191. of the insurance money, would be a A note for the rent of two years partial defense. having been given in advance, the "Philadelphia Trust, S. D. & Ins. occurrence of the fire within the two Go. v. Purves (Pa.) 12 Cent. Rep. years, and the payment to the lessor 659, 13 Atl. 936. 80 LANDLORD AND TENANT. to pay the rent on the allegation that it was agreed between him and the lessor that he should not be liable, imless he accounts for the appearance of the actual stipulation in the lease by fraud, accident, or mistake, and establishes this fraud, accident, or mistake by clear, precise, and indubitable evidence.*'^ 94. Stipulations after the fire. — The lessor, after a fire has oc- curred, may, although he is not bound by the lease to rebuild, and although the tenant is not excused by the lease from paying the rent, obtain control of the property for the purpose of re- building, by agreeing with the tenant that he shall pay no rent for the time he shall be out of possession. If, under such an agreement, the tenant gives up the possession, the lessor can- not compel him to pay rent for the period of his absence from the premises.** If the landlord, after the destruction of one of the two barns on the demised premises, agrees to rebuild it by harvest time, and in fact rebuilds, but not by that time, so that the tenant is obliged to stack a large part of his crops, he will have a right to set off the damages arising (not, apparently, from the nonfulfilment of the contract in time, but) from the occupancy of a portion of the farm during the process of re- building, and from the nonusableness of the burnt barn until it was rebuilt, although the landlord did not promise to reduce the rent.*^ The damages are the difference between the rental "Martin v. Berens, 67 Pa. 459. the rent, but for the landlord's induc- "Be Holmes, 30 Pittsb. L. J. N. S. ing him to take possession by prom- 309. Hence, the lessor, being a ising to rebuild. Being thus induced trustee, cannot be compelled to ac- to waive his right to refrain from count for the rent which he could not taking possession, the tenant was en- tollect from the tenant. titled to a reduction from the rent "Wayne v. Lapp, 180 Pa. 278, 36 on account of the interference with .^tl. 723. TTie fire occurred between his possession caused by the rebuild- the making of the lease, January ing, although the landlord did not 31st, and the commencement of the agree that there should be any re- torm, April 1st. Waddell, P. J., says duction. In Hoeveler v. Fleming, 91 that possibly the fire would have ex- Pa. 322, the lessor rebuilt the house cused the tenant from taking posses- without the consent of the lessee, sion ; but that, taking possession, he This was treated as an eviction, sua- could not claim an abatement from pending the rent. THE LESSOR'S COVENANTS. 81 value of tlie premises in the state in -which they would have been had the fire not occurred, and the state in which they were, during the rebuilding. 95. Landlord's right to make repairs. — The lease may reserve to the landlord the right of "doing any repairing." Under such a reservation, the landlord has a right to enter on the premises for the purpose of tearing away the debris and tearing down the walls of a barn which is destroyed by fire, without the consent of the tenant, although the barn is not rebuilt during his term, and the exercise of this right will not exempt the tenant from rent for the term.^" 96. Landlord's covenant to buy tenant's improvement. — A lease of a tannery for three years gives to the lessee the privilege of building a bark-shed and of obliging the lessor to pay for it at the end of the term, at a price to be fixed by three carpenters. A week or two before the end of the term the tenant may, despite the objection of the landlord, build the shed, though his only object in building it is to compel the lessor to pay the arbiters' price for it, and though his motive is dissatisfaction with the refusal of the lessor to reduce the rent for the last year of the term.®-' 97. Independent agreements.— The lease of a foundry for so much per year may contain the separate stipulation : "It is fur- ther agreed" that the tenant "shall pay 15 cents an hour for the steam furnished to his engine by the lessor, and he shall have the right to use the tools in the pattern shop ; but in considera- tion therefor, the first party hereto shall have the use, without charge, of the power of the engine of the second party when- ever they shall require it in the pattern shop." These words are not an agreement by the lessor to furnish any steam, but of the lessee to pay for it if it should be furnished, and if the latter ''Maberry v. Dudley, 2 Pennyp. "McViclcer v. Dennison, 45 Pa. 367. 390. Land. & Ten. 6. 82 LANDLORD AND TENANT. sliould take any. The tenant is entitled to no damages tor the failure of the lessor to furnish him a sufficient supply.''^ 98. Landlord's covenant to procnre right to a switch. — A's lease to B of a quarry gave B the right to use an existing switch, and also the right to construct another switch from the main track of a certain railroad. It further stipulated that if the charges of the railroad company should exceed 25 cents per car, such excess should stand as a credit upon the royalty. The railroad company refused to permit the second switch except on the con- dition that the lessor should surrender her right to use the first switch at the rate of 25 cents per car. There was no covenant on the lessor's part to procure the use of the second switch for the lessee.®^ 99. What is breach of covenant to repair. — The lessor's cove- nant that he will, during the term, "keep in good repair the roofs upon the buildings hereby demised," is not broken if, living in another town, he authorizes the tenant to have any re- pairs done by a tin-roofer named, whenever they are needed, and the tenant, though former repairs have been made with rea- sonable promptness, has neglected to cause the roofer to make the repairs in question.** 100. Defense of tenant for breach of landlord's covenant. — The tenant, alleging a right to have the premises tenantable, or to answer his purpose, or to have them kept tenantable, or adapt- able to his purposes, may set off the damages which he has sus- tained by the violation of this right, against the claim for rent. This he may do, in an action by the landlord for the rent,** or in replevin by himself, for goods distrained upon by the ''Penn Iron Go. v. Diller, 113 Pa. 271; Walz v. Rhodes, 1 W. N. C. 49; 635, 6 Atl. 272. McCloslcey v. 1Ti7f6on/o, 1 W. X. C. ^'SUUen V. Logan, 21 Pa. Super. 413; StuU v. Thompson, 154 Pa. 43, Ct. 106. 25 Atl. 890; Hollis v. Brown, 159 Pa. "'Forrest v. Buchanan, 203 Pa. 539, 28 Atl. 3li0 ; Rceres v. Alc- 4.54, 53 Atl. 267. Oomcskey, 168 Pa. 571, 32 Atl. 96; '^Schleppi V. Gindele, 14 W. N. C. Moore v. Gardiner, 161 Pa. 175, 28 31; Showalcer v. Boyer, 3 Pa. Co. Ct. Atl. 1018; Rvssell v. Rush, 2 Pittsb. THE LESSOR'S COVENANTS. 83 landlord.®* The surety, sued for the rent, may attempt the same defense,®^ or creditors may defeat, pro tanto, the claim for the rent from the proceeds of an execution.®^ A recognizance for an appeal in a landlord's proceeding to recover the possession, binding the recognizor for the tenant's rent until final judg- ment, in a suit on it, the defendant may show a failure of the landlord to keep his covenant to repair.^® 101. Action for breach.— The tenant, besides setting off dam- ages for the lessor's breach of covenant against the claim for rent, may alternatively recover them in an action. If he has made no covenant, but causes damages by his negligence, e. g., in maintaining the heating plant in improper condition, the action would not be ex contractu, and therefore the claim could not be enforced by a creditor of the tenant, by foreign attach- ment.^'*'* If the lessor warrants the purity of the water on the premises, he will be liable if it is not pure, however honest he was; but he will not be liable in deceit if he believed it to be pure.-*"^ 102. Measure of damages. — In a majority of cases in which damages for breach of the lessor's covenant that the premises are, or, by means of repairs and improvements, shall be put and be preserved in a certain state, are sought, it has been held that the proper measure of damages is the difference between the worth of the premises in the condition in which they are, the covenants being unperformed, and their worth in the condi- tion in which they would have been had the covenants been per- formed.^"^ The lessor having promised to improve the yard 134; Frey v. ZaUnski, 10 Kulp, 36; '"Gray v. Wilson, 4 Watts, 39. Obermyer v. Nichols, 6 Binn. 159, 6 '"Broad v. Winsborough, 1 North- Am. Dec. 439. ampton Co. Rep. 330. '"Hazleit V. Powell, 30 Pa. 293; ^■"Krohn v. Wolf, 7 Del. Co. Rep. Christ V. Diffenbach, 1 Serg. & R. 420. 464, 7 Am. Dec. 624; Block v. Doio- ^"^Harrington v. Hamill, 3 Montg. ling, 7 Pa. Dist. R. 261; Fairman v. Co. L. Rep. 31. Fluck, 5 Watts, 516; Prescott v. '"'Fairman y. Fliick, o Watts, 516; Otterstatter, 85 Pa. 534. Wayne v. Lcpp, ISO Pa. 278, 36 Atl. "'Wheeler v. Graicford, 86 Pa. 327. 723; Warner v. Caulk. 3 Whart. 193; 84 LANDLORD AND TENANT. of a tavern by putting cinders and gravel on it, this rule was held applicable. The profits which the lessee might have made, the losses arising from customers actually going away because of the condition of the yard, furnished no measure.^"^ The lessor agreeing to shift the shop leased so that it should accom- pany the Board- Walk on which it was, in Atlantic City, N. J., should that walk be moved towards the sea, the measure of dam- ages for his failure to do so would be the difference between the value of the shop as it was left behind by the walk, and its value as it would have been had it been brought forward to the shifted walk ; but not the losses to the tenant in his business, during the season.^"* In Prescott v. Otterstatter^"^ the lease of a hotel contained an agreement by the landlord to erect an addi- tional story, to remove the old porches and replace them with halls. The changes promised were very imperfectly made, and in the making of them, avoidable damage was done to the fur- niture and other property of the lessee. The measure of dam- ages approved was that already indicated, — the difference be- tween the value of the hotel as actually changed, and that of the hotel as it ought to have been changed. Evidence that the rental value of the barroom, which was not diminished by tlie imperfect alteration, was a very large percentage of the rental of the whole property, was improperly received, and evidence of Jackson v. Farrell, 6 Pa. Super. Ct. erect a, barn, the trial court said that 31. the lessee's damages for his refusal In an action for breach of the to perform were the injury suffered covenant to repair, there can be no from the want of a barn, the ex- recovery of more than nominal posure of the stock, etc. Shughart damages unless the evidence shows v. Moore, 78 Pa. 469. the damages suffered. The jury can- ^"'Jackson v. Farrell, 6 Pa. Super, not determine the damages from the Ct. 31. The eourt suggests that the character of the building, and the tenant might himself have moved the uses to which it is put, and the de- shop and defalked the cost of the re- scribed effects of the omission to re- moval from the rent, or he might pair. Forrest v. Buchanan, 203 Pa. have surrendered the possession and 454, 53 Atl. 267. thus escaped the duty of paying ^"'Fairnian v. Fluck, 5 Watts, 510. future rent. The lessor having promised to '" 79 Pa. 462; 85 Pa. 534. THE LESSOR'S COVENANTS. 85 what woiild have been the rental value of the rooms was inad- missible, except as a reply to that concerning the value of the barroom. These are "items of detail selected from the body of the property," and the effect of receiving them vs^ould be to afford the jury a means of making a fresh contract between the parties, in lieu of the contract actually made by them. The value of the premises as a unit, in both states, the actual and the promised, should be shovsm. 103. Another measure of damages. — The measure of damages heretofore discussed is not uniformly adhered to. In Penn Iron Co. V. Diller}"^ Green, J., states that "the value of the lease or any part of it, is not the measure of the damages to which the plaintiff is entitled for a breach of a particular cove- nant contained in it. If such a covenant was broken, the actual damage which resulted from the actual breach can be and should be shovra. To ask what was the value of the lease lets in the wildest aaid most speculative conjectures which the friendly zeal of the party's witness may choose to indulge in. If [he adds] there was an injury done, let the witness state what it was and how it was done ; and if he can express the value of that particiilar injury in figures, let him do so."^*"^ If the tenant of a farm is, by the terms of the lease, to keep the fences in repair, the landlord ftirnishing the material, it is the duty of the tenant, should the lessor fail to furnish the material, '"■113 Pa. 635, 6 Atl. 272. in replevin by a tenant of goods dis- "" The breaches oi the lessor's con- trained for rent, the court told the tract alleged were, not furnishing jury that failure of the lessor to steam, and not allowing the tenant make repairs would entitle the the use of the tools in a pattern shop, tenant to damages, or he might havy The lease was of a foundry. The the repairs made and deduct the cost tenant was improperly allowed to from the rent. In Brimner v. Beed^ state what was the value of the use 23 Pa. Super. Ct. 318, it is said that^ of the pattern shop of which he was if the lessor fails, as he agrees, to re- deprived; that is, make a separate pair the fences of the premises, the estimate of the value to him of the lessee may repair them, at the use of different parts of the leased lessor's expense. Cf. Hahn v. Roach. subject. In Bradley v. Citizens' Trust 7 Northampton Co. Rep. 21. d Surety Co. 7 Pa. Super. Ct. 419, 86 LANDLORD AND TENANT. to procure the material himself and then repair the fences. He can recover the cost of the material, if he procures it. Otherwise, he can recover nothing.^"* The difference between the value of the farm without the fences, and its value with the fences, is not an admissible measure,^ ''^ nor the injury to the crops, and the inconvenience of farming, caused by the want of proper fences.-'^" If the lessor promises to repair the porch floor, which is known by the lessee to be insecure, the lessor is not liable in an action of trespass for injuries suffered by the tenant's wife in consequence of the unrepaired state of the floor. The use of the floor with knowledge of its condition would be contributory negligence ; and any action for the nonperformance of the lessor's promise would have to be contractual.-'^-' 104. Duties whose breach is not available in replevin. — In dis- tress proceedings, and in the replevin to recover chattels dis- trained, damages may not be set off for the violation of every duty to the landlord. The lease stipulated that the tenant should make certain bulk-windows and doors, and have the privilege of taking them away, or of leaving them for the lessor at a valuation to be made in a certain mode. ISTo valuation hav- ing been made at the expiration of the lease, the landlord sold the premises with the improvements and distrained for rent in arrear. The value of the tenant's interest in the improvements could not be set off in the replevin brought by him. If the lessor's act was a tort, the remedy would be trespass.-*^^ 105. Breach an obstacle to recovery of any rent. — When the contract is entire, the rent being for the enjoyment of the prem- ^"Wood V. Sharpless, 174 Pa. 589, repair, and deduct the cost from the .34 Atl. 319, 321; Jenkins v. Stone, rent. 14 Montg. Co. Law Rep. 27. "'Peterson v. Haight, 3 Whart. '"'Wood V. Sharpless, 174 Pa. 589, 150. Whether injury from the 34 Atl. 319, 321. negligence -with which improvements '"Jenkins v. Stone, 14 Montg. Co. contracted for in the lease were made Law Rep. 27. could be a ground of set-ofi' in re- '"Hahn v. Roach, 7 Northampton plevin, not decided in Prescott v. Co. Rep. 21. On the omission of the Olicrstaitcr, 79 Pa. 462, landlord to repair, the tenant might TRE LESSOR'S COVENANTS. 87 ises, it may be a question whether the covenant of the lessor is of such importance tliat the breach of it would destroy any right of the lessor to recover rent A lease of the gristmill and the ad- jacent premises required the lessor to build an addition to the dwelling house^ to furnish boards for counters and shelves in the storehouse, to make a husk floor in the mill, and other improve- ments. The court lield, the lease being in writing, that it was for the court, and not the jury, to say whether the covenants to be performed by the lessor were such that, without their per- formance, there was no obligation to pay the rent or any part of it, and that, since the entry of the tenant was to precede the acts to be performed by the landlord, and since the former would en- joy a considerable benefit from the lease despite the nonperform- ance of the lessor's covenants, it was proper to allow only such reduction from the rent as the damages amounted to.-'^^ A lease contained the lessor's promise to make certain alterations ac- cording to plans decided by X, and the lessee undertook to pay a specified monthly rent. The second monthly instalment of rent being unpaid, the landlord distrained for it. In the lessee's replevin, it was held that the lease, being on a single considera- tion for the whole term, although payable in periodic instal- ments, constituted an entire contract, and, therefore, that tlie fail- ure of the lessor to make the j)romised improvements prevented any recovery of rent, as for use and occupation.^^* Courts are disinclined to construe a promise to do certain tilings within a certain time in consideration of the payment of money, as a con- dition precedent, unless compelled to do so in order to carry out the express intention of the parties. JSTo condition is found in the statement of the lessee to the lessor, at the making of the "'Oiermyer v. Nichols, 6 Binn. liver possession of two oi the five 159, 6 Am. Dec. 439. stories oi the building, the tenant, ^^'Block V. Dowling, 7 Pa. Dist. R. though he remains in the occupancy 261 ; citing McGlurg v. Price, 59 Pa. of the rest of the building, will not 420, 98 Am. Dec. 356, where it is be liable for any rent, held that if the lessor refuses to de- 88 LANDLORD AND TENANT. lease, that lie would pay one month's rent then, and no more until repairs were done, and in the reply of the lessor that "everything should be done before any more rent was due," but only a promise to make repairs before the next instalment of rent fell due. The repairs never being made, but the lessee re- maining in possession for more than four years, he could not re- fuse to pay all rent on the allegation that the making of the re- pairs was a condition precedent to the duty of paying rent. For the lessor's failure to make repairs, the remedy was an action for damages, or deduction from the rent.^^^ If the lease is from month to month or quarter to quarter, etc., the continuance in possession by the tenant after the month or quarter in which the lessor has broken his covenant will preclude a defense against the rent for the new months or quarters.-^ ^^ 106. Duty imposed on lessor as trustee.- — A will devising land to a trustee may impose various duties upon him, — e. g.j ''to keep the said houses in repair, and rented; to collect the rents,, to pay taxes and for repairs, and to pay and distribute the net income thereof" between a son and a daughter. The duty thus imposed on the trustee to make repairs is not one towards any lessee, but towards the cestui que trust. The tenant must stand on the terms of his lease. He cannot, the lease not imposing the duty to repair on the lessor, insist that the lessor shall make repairs or suffer an abatement from the rent.^ ^^ 107. Repairs imposed on the tenant. — When repairs or altera- tions are made by the tenant which the landlord might be compelled to make for the welfare of the public, the tenant is- entitled to reimbursement for making them although the lessor has not covenanted to maka these repairs or to reimburse him. The privy of the premises being in a "shocking condition," it ^"Bradley v. Citizens' Trust & ^"'Wheeler v. Crawford, 86 Pa. 327. Surety Co. 7 Pa. Super. Ct. 419. ^"Cochran v. Ward, 8 Del. Co. Rep. 423. THE LESSOR'S COVENANTS. 89 must be cleansed. "It would be unjust to hold that a tenant who might occupy the house but a month or year should be compelled to bear the expense of cleaning the privy well; the expense is one which becomes as necessary to be paid at times as the sub- stantial repairs to a roof or otlier parts of a house. Ordinary repairs must be paid by a tenant unless he covenants otherwise ; but that which is extraordinary otight to be paid by the land- lord, and not the tenant. The jury were informed that the tenant might have complained to the Board of Health, and that body would undoubtedly have removed the nuisance at the cost of the landlord."^^* Under the 4th section of the act of April 11th, 1856, it is made the duty of the building inspectors of the city of Philadelphia, at the request of any two citizens, to ex- amine all walls and their supports, deemed dangerous, and to or- der their removal, if requisite, at the expense of the owner. A fire having destroyed a building and made its walls dangerous, so that their demolition is necessary for the safety of the public, the tenant may tear them down, and comjDel the lessor to reim- burse him.*-*^ "That the premises," says Hare, P. J., "which he [the tenant] holds are destroyed by fire or devastated by a flood, will not, it is true, entitle him to call on the landlord for aid, or even suspend the rent. If he restores the dykes or rebuilds the walls, it must be at his own cost. If, however, under these circumstances, a duty is imposed by the law, which, though pri- marily that of the lessor, is yet obligatory on the tenant, and actually performed by him, the right to indemnity or contribu- tion will be as clear as in the instances already cited ;^^° and ^'Scheerer v. Dickson, 7 Phila. to a loss occasioned by a jettison of 472. Neither ground for the de- the cargo; the landlord compelled to eisions is entirely satisfactory. A refund taxes paid by his tenants ; a reference is made to a custom in the tenant for life or a cotenant entitled county of Philadelphia for the land- to require that the cotenant or re- lord to pay the expense of cleaning mainderman shall bear his due pro- the privy. portion of the charge on the land,- ^^"French v. Richards, 6 Phila. 547. etc. "° A shipowner bound to contribute 90 LANDLORD AND TENANT. such, in effect, is the case now in hand ; because the walls being, according to the evidence, in a condition dangerous to all around, were a nuisance requiring instant measures for its abatement. The obligation to do tliis devolved, in the first instance, upon the tenants, as the persons in possession, and who would have been liable civilly and criminally if injury had ensued." An ordinance of a borough ordering a pavement to be laid at the cost of the occupier, a tenant for a term of less than three years, hav- ing laid it, was entitled to reimbursement by the landlord, by de- duction from the rent."^ 108. Negligence, of tenant ; injury to tenant. — For the negli- gence of one tenant, or of a stranger, whereby damage is caused to another tenant, the landlord is not responsible. A leased a farm for dairy purposes to B, reserving the right to lease for oil, gas, and coal, and providing for paying certain damages to B in case such oil, gas, and coal lease were made. The lease of the oil right, being made, operations under it impregnated a field of 30 acres with salt water, so as to unfit it for pasturage. B was then compelled to keep his cattle in another field. Some one let down the bars separating the two fields, and the cattle entered the 30-acre field, ate the grass and drank the water, and some of them died. The lessor, A, was not liable, in the absence of evidence that he or one acting for him, let do^vn the bars. The risks attending the operations under the oil lease were visi- ble, and known to B. A was under no obligation to pay for the negligence of the oil operator, his employees or strangers. '-- After A had leased a piece of land to B for tlie pasture of cat- tle, he, at the request of a •jtranger, permitted him to bury a dead horse in the field, but took no part in the burial, gave no direc- tions, and did not know that the horse had had any infectious dis- oase. Several of B's cows subsequently died from the anthrax. "'ffiteer v. Ege, 23 Pa. 305. '-'Brimner v. Reed, 23 Pa. Super. €t. 318. THE LESSOR'S COVENANTS. 91 A was not liable to B. His mere permission to tlie stranger to bury the horse, followed by the bnrial, did not make him guilty of trespass. Besides, the death of the cows, A being ignorant of the disease of the horse, was not the natural and probable conse- quence of the act.^^^ 109. Waiver of defects in premises. — The defects may be so waived by the tenant that he cannot take advantage of them, as a defense to the payment of the rent. The heating arrange- ments being unsatisfactory, if the tenant, nevertheless, remains in possession during the cold season, paying the rent, he has no justification for abandoning the premises during the warm sea- son, when the house is no longer uninhabitable ; and he cannot, by abandoning them, escape the duty of paying the rent.-'^* The tenant remaining in possession for five months, paying the monthly rent as it fell due, cannot refuse to pay for the re- mainder of the term, on the gTound that the house was, when leased, in bad order, and that the lessor agreed to put it in or- der, the lessee repairing afterwards. "Defendant, by moving into the premises with the written lease in her hand, and re- maining there during the whole of the time, paying rent as it fell due, cannot, in my opinion," says Lynch, J., "set up the failure of the landlord to put the house in order as a bar to re- covery in this action" for the rent for the rest of the term. '^■' Plaving been tenant for a year, and discovered the defective con- dition of the cellar, the lessee cannot, holding over for the next year, escape paying the rent of that year by leaving before the •close, because of this condition.-^^® Having remained in posses- sion during the continuance of the defect, e. g., an overflowing water-closet, the tenant cannot, after it is corrected, remove, and evade the payment of the subsequently accruing rent.^^^ For ^''Fitzvjater v. Fassett, 199 Pa. ™Hohan v. Lawall, 3 Lack. Jur. 442, 49 Atl. 310. 38. ^'"Moore v. Gardiner, 161 Pa. 175, ^^Hess v. Weingariner, 5 Pa. Dist. 28 Atl. 1018. R. 451. ""/'Vei/ V. Zabi-nski, 10 Kulp, 36. 92 LANDLORD AND TENANT. dampness of the house, contiiniing through a number of years, the tenant cannot escape liability to pay the rent if he continues in possession, making important changes in the building, tearing down partitions. He should act promptly if he intends to re- scind the contract. ^^® 110. Covenant running with the land. — The covenant may run with the land, and cease to be binding on the lessor at his death. A leases a mill and for himself and his heirs, covenants at his own cost to keep the dam, the race, and other reservoirs of water for the supply of the mill, in good repair. He dies and the land passes to his devisees. Three fifths of the land are ac- quired by the lessee. Repairs becoming necessary, he makes them. He cannot maintain an action against the executor of the lessor, because tlie latter must be understood not to have in- tended to bind his executor, but to bind only his heirs or his as- signees ; ajid his devisees are assignees. An action on the cove- nant would lie against the owners of two thirds of the reversion for their proper share of the expenses of the repair.^-* '^Johnson v. Mathues, 4 Del. Co. "'Kershaw v. Supplee, 1 Kawle, Rep. 3€5. 131. CHAPTER VIIL UCSSEE'S COVENANTS AS TO PREMISES. 111. Implied dxity to repair. 112. Express covenants. 113. Mortgage to secure performance of covenants. 114. Covenant to put in machinery and not remove it. 115. Covenant to restore premises to former condition. 116. Covenant to deliver the premises in good condition. 117. Covenant to keep in good, tenantable repair. 118. Covenant concerning fences. 119. Scope of covenant to repair. 120. Covenant to leave improvements. 121. Covenant to make additions. 122. Covenant; performance made illegal. 123. Covenant to use the premises properly. 124. Waste by tenant. 125. Covenant respecting hay, corn, etc. 111. Implied duty to repair.— If nothing is said in the lease concerning repairs, the tenant is bound to keep the premises in repair, to "make fair and tenantable repairs, such as putting in windows or doors that have been broken by him, so as to pre- vent waste and decay of the premises."^ If the grate which covers the opening into a vault or cellar below the sidewalk brealvs, the tenant is bound to repair it.^ If the tenant puts a new trough on the premises in lieu of the former one, it will belong to his landlord, and not to him, and he cannot recover its value from the landlord, who on the expiration of the lease retains it.^ Since it is the tenant's duty to the landlord to make ''■Long V. Fitzimmons, 1 Watts & not the lessor, if the grate was sound S. 530. when the lease was made. 'Bears v. AmUer, 9 Pa. 193. The 'Rawle v. Balfour, 16 W. N. C. tenant is liable to the passenger who 195. is injured by the broken grate, and 93 94 LANDLORD AND TENANT. repairs, he is, of course, entitled to no compensation tor making them;* and this is true though he is a tenant in common with his lessor. By becoming tenant as to the undivided interest of the other, he becomes bound to make the repairs at his own ex- pense. "■ It is the tenant's duty to cleanse the cesspool on prem- ises which he has occupied for a number of years, and to keep in order the drains and spouts.® The tenant is not bound, in the absence of a covenant, to make "substantial and lasting repairs, such as putting on new roofing, or restoring premises that have been burnt down or have become ruinous by any other accident," without fault on his part ;'' or to put the premises in better con- dition thaii when he got them.^ Hence, if, despite the exercise of reasonable care, an explosion of a tank in a soap factory oc- curs, whereby the building is greatly injured, the tenant will not be liable to the landlord to make good the injury, in the ab- sence of an express covenant imposing such liability upon him. The want of reasonable care on the tenant's part must be shown by the landlord in an action of trespass for the injury to the property.® If the tenant chooses to make permanent^" or other repairs without the consent of the landlord, he cannot require reimbursement from the latter by set-off against the rent, or otherwise. 112. Express covenants. — The tenant may, by the covenants of the lease, impose upon himself duties with respect to the prem- ises, which would not, but for these covenants, exist The lessee may covenant to "deliver up the premises in good order *Long V. Fitzimmons, 1 Watts & "Medary v. Gathers, 161 Pa. 87, 28 S. 530; Kline v. Jacobs, 68 Pa. 57. Atl. 1012. 'Laney's Estate, 14 Pa. Co. Ct. 4. "Earle v. Arbogast, 180 Pa. 409, 36 'Johnson v. Mathues, 4 Del. Co. Atl. 923. Kep. 365; cf. Russell v. Rush 2 ^"Kline v. Jacobs, 08 Pa. 57; Long Pittsb. 134. V. Fitzimmons, 1 Watts & S. 530; Hjong V. Fitzimmons, 1 Watts & Cornell v. Vaiiartsdalen, 4 Pa. 364; S. 530; Brolaskey v. Loth, 5 Phila. Hitner v. Ege, 23 Pa. 305. 81 ; Karle V. Arbof/ast, 180 Pa. 409, 30 Atl. 923. LESSEE'S COVENANTS AS TO PREMISES. 65 and repair."^* A sale of the timber on a tract of land was ac- companied with a lease of a portable steam sawmill. When all the timber was manufactured into shingles the lessee cove- nanted "to deliver said sawmill to said Hoy [the lessor] in rea- sonably good condition and repair." This covenant was broken by the nondelivery of the mill in good condition, notwithstand- ing its destruction by fire. "It has always been considered," says Paxson, J., "that where in a lease there is an express and unconditional agreement to repair and keep in repair, the ten- ant is bound to do so though the premises be destroyed by fire or other accident"-^ If the covenant is at the expiration of the lease to surrender the premises in as good order and condi- tion as they were at any time during the term, ordinary decay and inevitable casualty excepted, the tenant assumes no duty to return the property in good condition, if its bad condition is due to a fire which was not caused by his negligence, and which, with proper efforts, could not have been arrested before it destroyed the building.-'^ The lessee's covenant for himself, his executors, administrators, and assigns, to deliver up the premises in good repair, will be subject to the exception (unless such exception is expressly excluded), that the lessee will not be liable for tlie waste and spoliation of a public enemy, or the destruction wrought by an act of God.'^ 113. Mortgage to secure performance of covenants. — The lessee — a corporation — ^may execute a mortgage upon all its property, real and personal, to secure the performance of all the covenants of the lease, viz., to repair ; to supply electric power to '■^Bollis V. Broim., 159 Pa. 539, 28 after the fire, to pay the accruing Atl. 360; Cf. Huston v. Springer, 2 rent. Phillips v. Epp, 2 Lack. Jur. Rawle, 97. 41- "Eoy V. Eolt, 91 Pa. 88, 36 Am. ''Kelly v. Duffy (Pa.) 11 Atl. 244. Rep. 659; Gettysburg Electric R. Go. '^Pollard v. Shaaffer, 1 Dall. 210, V. Electric Light, Beat d Power Co. 1 Am. Dec. 239, 1 L. ed. 104; Roy 200 Pa. 372, 49 Atl. 952. The non- y. Uolt, 91 Pa. 88, 36 Am. Rep. 659. liability to rebuild after a fire does This covenant binds the assignee of not imply a nonliability to continue, the lease. 96 LANDLORD AND TENANT. the lessor, — a railway company; to pay the net receipts of its business to the satisfaction of certain debts of the lessor ; to pay the taxes. For breach of any of these covenants the mortgage, made to a trustee in trust, may be foreclosed in equity.^ ^ 114. Covenant to put in machinery and not remove it. — The lessee of premises — e. g., of a building in which slate is to be milled — may covenant to put in the requisite machinery and not to remove it during the term. The lessee, having put in the machinery, will not be restrained by injunction from removing it during the term, although such removal is a violation of a negative covenant, unless the lessor in his bill avers and proves that the removal would inflict irreparable injury on him; nor even then, unless there is a mutuality of remedy between lessor and lessee. The lease required the lessee to mill all the slate furnished him by the lessor. The lessor was to furnish such slate as a certain quarry would produce, not suitable for roofing- slate, school slate, or blackboards. Because no one was named in the lease who was to decide what slate was thus unsuitable, and because it was silent as to the quantities of slate to be deliv- ered by the lessor, and the times of delivery, the lessor's covenant was said to be too vague. The lessee's covenant concerning the removal of machinery was said to lack mutuality. The court refused to continue a preliminary injunction.-'® 115. Covenant to restore premises to former condition. — The lease may authorize the tenant to make important changes in the buildings, but require him, "at the expiration of said lease, to place the buildings in the same shape and condition as they were" at the commencement of the term, "if required so to do by the lessor." Under this stipulation the tenant could be re- '^'Qettysburg Electric B. Oo. v. curity for the performance of his Electric Light, Heat & Power Co. 200 covenant to restore the premises to Pa. 372, 49 Atl. 952. Cf. Reed v. the condition in which he received Harrison, 196 Pa. 337, 46 Atl. 415, them. where the tenant deposited shares of ^'Bangor Eircclsior Slate Go. v. stock in a railroad company as se- Shimer, 8 Northampton Co. Rep. 409. LESSEE'S COVENANTS AS TO PREMISES. 91 quired, after the expiration of the lease, though not notified be fore, to restore the two buildings by replacing a partition wall between them, which, in part, he had -emoved ; and tlie landlord could refuse to surrender a collateral security for the perform- ance by the tenant of his covenant, until he had restored the par- tition wall.'^ 116. Covenant to deliver the premises in good condition. — The lease often stipiilates that at the end of the term the lessee will deliver the premises to the lessor in as good condition as he re- ceived them, ordinary wear and tear excepted. If the tenant makes changes and repairs for his own accommodation, he is bound by this covenant to put them in good repair at the expira- tion of the lease. All he has to do is to return the building in the condition in which he received iK For breach of this cove- nant, the measure of damages is not "the value of the injury to the reversion," but the reasonable cost of the repairs neces- sary to bring the premises back to the state in which they were when the tenant received them. The landlord may himself make the repairs, and if he does so, and also improves the build- ing beyond its original condition, he will be entitled to recover, not the cost of all the repairs and improvements, but the reason- able cost of such of them as were needed to restore the building to its former state. ■'^ 117. Covenant to keep in good, tenantable repair. — A coto- nant by the lessee of a forge "to keep the said forge in good, ten- antable repair during the term," in the absence of indicia in the lease, or circumstances, of a contrary intention, contemplates only the ordinary repairs which shall become necessary by nat- ural wear and decay. This interpretation is corroborated, when the lease, which is of an undivided half of the premises for two "Reed v. Harrison, 196 Pa. 337, 46 landlord made the repairs during the Atl. 415. term, but with the consent of the ten- "Darlington v. De Wald, 194 Pa. ant, does not prevent his recovering 305, 45 Atl. 57. The fact that the the cost of the repairs Land. & Ten. 7. 98 LANDLORD AND TENANT. years, makes the distinction between the classes of repairs by specifying that considerable new work and repairs must be done to the forge, such as roofing, repairing the forebay and trunks, the hammer and bellows wheels, so far as may be agreed on bj the lessor and his cotenant, not a party to the lease, and by agi-ee- ing to deduct from the rent one half of the cost of these repairs. Hence, apparently, the tenant is not precluded by his covenant concerning "good, tenantable repairs" from compelling the lessor to reimburse him for the cost of rebuilding the forge within the- term.^' 118. Covenant ooncerning fences. — The tenant agreeing "to keep the fences in proper repair, the material for which to be furnished by the lessor," his covenant is not conditional upon the latter's furnishing the material, in the sense that the tenant will have an action against the lessor, who neglects to furnish the material for damages arising from the nonrepair of the fences. The tenant, if he wishes to avoid the damages from nonrepair, should procure the material at the cost of the lessor,. and repair the fences.^" 119. Scope of covenant to repair. — "Repairs do not include new buildings, but they are a restoration, to a sound state, of what had gone into partial decay or dilapidation, or bettering o£ what had been destroyed in part." By "repairs on the farm,"' in a covenant to pay for them, would not be meant improvements of the soil arising from liming and fertilizing. "It would be little less than nonsense t« say that a farm was repaired, \Yhen ^'Huston v. Springer, 2 Rawle, 97. the building inspector to put the But the decision is not distinct as to building into proper condition, the whether the contribution could be landlord may recover from the tenant compelled from the lessor as land- the cost of the repairs and the rental lord or as cotenant, the lessee hav- value of the premises for the time ing) by devise from the lessor's co- during which they are unoccupied tenant, become cotenant with the while the repairs are being made, landlord before the repairs were Loughlin v. Carey, 21 Pa. Super. Ct. made. 477. If in consequence of the tenant's "Wood v. Sharpless, 174 Pa. 588, failure to repair according to cove- 34 Atl. 319, 321. nant the landlord is compelled by LESSEE'S COVENANTS AS TO PREMISES 99 yoTi intended it had been increased in value by an improved cultivation of the soil."^^ "Repair," says Read, J., "means to restore to its former conditionj not to change either the form or the material. If you are to repair a wooden building, you are not to make it brick, stone, or iron, but you are to repair wood with wood." An oil tank with a capacity of 13,000 gallons was built with sides of iron, but with a wooden bottom. A rise in the water of the Ohio river had forced the bottom upwards. In this condition the tank was leased to X for two years in consid- eration of his agreeing to put it "in perfectly good repair," and leaving it in that condition at the expiration of the lease. The lessee caused the bottom to be repaired at an expense of $1,000, but, tlie leaking continuing, he caused a new wooden bottom to be put over the old, at an expense of $2,000. The tank continuing to leak, an action was brought by the lessor, after the expiration of the term, for breach of the lessee's agree- ment. It was held that it was not the duty of the lessee to put an iron bottom on the tank because that would have prevented the leaking. "All that the lessee's agTeement would naturally mean, would be, at the outside, to put a new wooden bottom in, and then it would be as good as it ever was, when originally fur- nished for use by the plaintiffs."^^ 120. Covenant to leave improvements. — A covenant that the '^Cornell v. Vanartsdalen, 4 Pa. would not exceed from $200 to $500, 364. The tenant's covenant "to make was evidence to show that the plain- all necessary improvements and re- tiflf did not think of an iron bottom, pairs" refutes his contention that, which would cost several thousand the building being too weak and dollars, as within the terms of de- rickety to permit of the continuance fendant's promise. The president's of his business in it, he had a right presence while repairs were being to abandon it, and escape the pay- made, and his expression of satisfac- ment of future rent. Huher v. tion with them, were admissible- Baum, 152 Pa. 626, 26 Atl. 101. facts. "To repair means to put the ^Ardesco Oil Co. v. Richardson, 63 premises in their former condition.'" Pa. 162. A statement by the presi- The right to repair includes the dent of the plaintiff company, made right, on the destruction of a barn when defendant was about to make by fire, to rebuild it. Maberry v. the repairs, that the cost of them Dudley, 2 Pennyp. 367. 100 LANDLORD AND TENANT. lessee will leave the premises "in as good condition as the same now is or may be made by improvements, natural wear and decay and casualties by the elements excepted," will require the tenant to let remain, at the expiration of his lease, a new kit- chen costing several hundred dollars, and a house in which to cure tobacco, 62 by 24 feet, resting on stone walls, and costing $1,200, which he has erected, notwithstanding that, having been long in possession, he expected to be allowed to remain there during life, but in this hope was disappointed by the death of the owner of the premises, and notwithstanding that he had in- sured the buildings in his own name, with the knowledge and consent of the lessor. The covenant could be enforced by an in- junction.^'^ 121. Covenant to make additions. — The tenant may covenant to construct a building. The lease, being for one year at a rent of $.500, with the option to extend it to five years upon giving notice to the lessor sixty days before the end of the year, re- quired the construction of a building, and stipulated for a credit of $100 on the first year's rent. The tenant held over for seven months, but did not elect to extend the lease to five years, and the lessor's interest was then sold by the sheriff. Deciding that the construction was intended to be made within the first year, the court held that the lessor could recover the rent that accrued prior to the sheriff's sale, and damages for the nonerection of the building.^'' The lease, being for five years, with the privi- lege of ten yeajs, provided that the lessee should bring the first two stories of the building out to a certain line. ISTo time for doing this being indicated, the tenant would not be in default until the expiration of the five years. The declaration by the tenant of a purpose not to perform the covenant would not en- "Garver v. Gough, 153 Pa. 225, 25 in cage of destruction by fire of the Atl. 1124. The lessor, suggests the buildings, and not be willing that he court, might be willing that the ten- should remove them, ant should get the insurance money ""Pollman v. Morgester, 99 Pa. 611. LESSEE'S COVENANTS AS TO PREMISES. 101 title the landlord to require him to begin the work either five months pr other time shorter than five years; nor would the declared purpose of the tenant not to perform, provoked by the lessor's insisting on his doing things that the contract did not require him to do, shorten the period of performance, or make him liable at once to action.*^ 122. Covenant; performance made illegal. — If the tenant is prevented from performing his contract to erect a frame build- ing by the enactment of an ordinance of the city prohibiting frame buildings in the locality of the premises, the landlord may rescind and recover possession by ejectment before the ex- piration of the term, or he may sustain an action upon the cove- nant for nonperformance. He will be entitled to damages for nonperformance, or for omission to build a brick house in lieu of a frame, if the lessee refuses to surrender the possession. If both ejectment and an action on the covenant are brought at the same time, the court, after execution of the judgment in one will prevent the execution of the judgment in the other.^* 123. Covenant to use the premises properly. — There is an im- plied promise in every lease, arising out of the relation of land- lord and tenant, to use the premises in an ordinary and proper manner.^' This duty may be expressly covenanted for. The lessee of a farm, e. g., may agree to "take all proper care of said premises, the same as a careful and prudent farmer should of his own property, and return the same at the end of said lease in as good condition as the same is received, except natural wear and unavoidable accidents." He may agree to leave as many acres of the farm seeded down at the end of the term as there were at the date of the lease, and to work it as a careful and prudent farmer. These covenants would be broken by per- mitting Canada thistles to grow and go to seed upon the farm, or by destroying the meadow by pasturing sheep upon it, or ''Palethorp v. Bergner, 52 Pa. 149. '''Long v. Fitzimmons, I Watts & "'Rooks V. Beaton, 1 Phila. 106. S. 530. 102 LANDLORD AND TENANT. by not leaving as much ground seeded down as the tenant agreed to leave.^^ The tenant covenants to "cultivate and farm said land in a workmanlike manner. He shall put out all the crops in good season and in proper order, of such kind of grain and in such fields" as the lessor shall designate. In the fall before the commencement of his lease, he, with the permission of the lessor, plows a field and spreads it with lime for corn to be planted in, in the spring, the lessor purchasing the lime. In an action by the tenant against the lessor for compensation for his labor in thus working the field, it was proper to allow the de- fendant to prove that good husbandry and custom made it proper for the tenant to prepare the ground for the spring crop the preceding fall or winter, whenever he could do so ; and that he should spread all the lime or other fertilizers which the land- lord would furnish for that purpose, without any stipulation to that effect in the lease, and without entitling him to charge the landlord therefor.^® 124. Waste by tenant. — The covenant of the tenant not to remove machinery will be enforced by an injunction if irrep- arable injury vdll result to the lessor from the removal.^" The assignee of a lease for a farm tract, the premises being designed for playing golf and other games, would have no right to grant a license to construct a single railroad track across a portion of the land, the making of which would require certain cuttings and fillings which would inconvenience other tenants of the lessor and seriously damage and interfere with the sale of the "McBride v. Daniels, 92 Pa. 332, at the expense of timothy and other The damages could be set off against grasses. But for a, breach of this a claim of the tenant against the covenant no action can be brought landlord. until the close of the term Hoskin- The lessee promised to leave the son v. Bradford, 1 Pittsb. lHa. premises in as good condition as he '"Auglmibaugh, v. Coppenhejfcr, 55 found them. This would include all Pa. 347. the duties of good husbandry, and ^'Bangor Excelsior Slate Co. v. would be broken by putting wheat Shimer, 8 Northampton Co. Eep. and lye in an undue area of the land, 409. LESSEE'S COVENANTS AS TO PREMISES. 103 property. The assignee of the lease would be enjoined from granting the license by injunction.^^ 125. Covenant respecting hay, corn, etc. — The lease may con- tain a stipulation that all the hay, straw, and corn fodder shall be consumed upon the premises, except that the tenant shall have the right to remove as much as he brings upon the prem- ises, and that, for the violation of this agreement, the tenant "shall forfeit and pay the sum of $15 for every ton of hay, straw, or corn fodder so sold or removed, as liquidated damages, fairly ascertained and determined, for breach of the contract in this particular." Notwithstanding this provision, if it appears that the only value to the farm of a ton of good hay is from $2 to $3, the tenant, who in violation of his covenant sells 25 tons of hay, will be liable, not for $15 per ton, but for from $2 to $3.32 '^Christ Church v. Bala Golf Club, $14 to $15 per ton, of straw not 10 Pa. Dist. R. 666. The club had more than $8, and of corn fodder not no authority in its charter to grant more than $3 to $4. These values were the license, or make a sublease for not allowed, but only that of the the purpose. manure which would have been made '-Sharpless v. Murphy, 7 Del. Co. from them had they been consumed Rep. 22. The value of the hay was on the place. CHAPTEE IX. RELATIONS OF LESSEES OF DIFFERENT PARTS OF BUILDINGU 126. Right to stairway. 127. Use of pavement. 128. Negligent use of upper story. 129. Right to use entrance for show-cases. 130. Right to carry on business noxious to tenants of other parts. 126. Right to stairway. — The different stories of a house may be let to different tenants, and the lease to the tenant of each of the upper stories may reserve to the party on the other "the privilege of front and back stairs, each party to take turns in keeping said stairs clean." Under such a lease, in the absence of a custom in the city or neighborhood, the tenant of the second floor has no right to keep the front door leading to the stairway locked during the daytime; the result being that the tenant of the third floor, and the members of his family, would have to unlock it when they wished to enter, and also to descend the two flights of stairs and unlock it in order to admit visitors. As to the front door, hall, and first flight of stairs, the tenants of the second and third stories stand upon an equality, having a common right of way. Each must exercise this right reason- ably; he must refrain from unreasonable or unnecessary ob- struction of their use. The court may defend the right of the tenant of the third floor by enjoining the tenant of the second floor from keeping locked the front door between the hours of half-past six in the morning and half-past eight in the evening.^ 'Kleeman v. Eemmerer, 3 Kulp, with keys to the locks, does not in- 481. The fact that the front door dicate that any tenant is at liberty is supplied with separate bells, com- to keep the door locked whenever he municating with each suite of rooms, chooses, despite the dissent of the and that each tenant is furnished other. As to duty of landlord to re- 104 RELATIONS OF LESSEES OP PARTS OP BUILDING, 105 127. Use of pavement. — When different stories or rooms are let to different tenants, he who rents the first story has no more ownership of the sidewalk than the occupant of the upper stories or rooms. iN'one has more than a right to an uninterrupted passage way in common with the public. The tenant of the first floor may object to obstructions to convenient access to the street door ; but the occupant of the first floor being a merchant tailor, and that of the second, a photographer, the latter may station a show-case by the side of the front door for the exhibition of his pictures, if it does not obstruct the passage in or out of the building, and is not otherwise injurious or inconvenient to anyone.* 128. Negligent use of upper story. — The tenant of an upper story is bound to the use of due care so as to avoid injury to the occupants of the lower story. He is boupd, e. g., to take proper precautions against the water cock being left open over night, with the effect that the water runs on and through the floor, and descends on goods in the lower stories, injuring them. He is liable for injury arising from such an act, whether done by himself, or his servants, or one who visits his premises and makes use of the water cock with his implied or express au- thority.^ 129. Right to use entrance for show-cases. — The lease of the second, third, and fourth stories of a building, together with "the north side of the entrance" for the purpose of exhibiting a show-case, with the appurtenances thereto belonging, being made to A, a lease of the first story of the building was subsequently pair the stairway, vide Leunn v. the door, if it was not an inconven- Pavli, 19 Pa. Super. Ct. 447. ienoe to anyone, but was a conven- ^Cunningham v. Entrekin, 3 Pa. ience to people entering the building, Dist. R. 291. An injunction at the as well as a necessary protection of suit of the tenant of the first floor the defendant's pictures. Cf. Brown was refused. He had once expressed v. Weaver, 17 W. N. C. 230. approval of the presence of the case 'Killion v. Power, 51 Pa. 429, 91 at the door. The tenant of the sec- Am. Dec. 127. oud floor could put an awning over 106 LANDLORD AND TENANT. made to B. This story had bow windows and a large front, on two streets. B placed a wooden sign perpendicular to the wall extending out into the street to a line beyond the show-case, and reaching above the top of it, obstructing the view of the whole of it and making useless one side of it. This was a vio- lation of the right of A, whose continuance might be enjoined. The second lessee took the lease subject to the anterior right of the first lessee. The lessor was precluded from depriving the first lessee of the use of the space described in the lease for show- cases, and from rendering this use of no avail by obstruction of the view of the case, and the second lessee was subject to the same disability.* 130. Eight to carry on business noxious to tenants of other parts. — The tenant of one part of a building, e. g., for the manu- facture of boots and shoes, has a right not to be injured by the carrying on, by the tenant of another part of it, of a noxious business, e. g., the grinding of marble, coal, etc., the dust and eiBuvia created by which pervade the rest of the building. This righ^ will be protected by an injunction.^ ier V. Hersberg, 11 Phila. 200. 'Richardson v. Oberholtzer, 2 W. As to putting up signs, vide Scott v. N. C. 332. Fox Optical Go. 38 Pittsb. L. J. 363 j Hele T. Stewart, 19 W. N. C. 129. CHAPTEK X. KENT. 131. For land and personalty. 132. Repayment, in instalments, of a loan. 133. Assessments on property. 134. Taxes. 135. Tenants' statutory liability for taxes. 136. Eoad taxes. 137. Interest on rent. 138. When rent is payable. 139. Rent contingently payable. 140. Commuting rent; assignment for creditors. 131. Tor land and personalty. — Land and personalty upon it, €. g., cattle and utensils, may be let together for a given rent. ''The ordinary definition of rent as a profit issuing yearly out of lands and tenements corporeal is defective in overlooking some of the causes that belong to the class ; as, where a furnished house or a stocked farm is leased, which are common cases. . . . In such cases the personal property is really a part of the consideration of the rent, and it is only by a fictitious ac- commodation of the case to the defective definition, that it can be said that the rent issues exclusively out of the land.^ Eent can be reserved in a grant of a right of way; or of a right to take water from the lessor's land.^ A granted to a railroad company a perpetual right to take water from a spring by means of a pipe. The pipe lay across the land of B. A subse- 'Mickle V. Miles, 31 Pa. 20; Vet- proceeds of an execution was Con- ner's Appeal, 99 Pa. 52. In the ceded only with respect to so much former of these cases distress for the of the gross rent as represented the entire rent was allowed. In Com. v. realty. Contner, 18 Pa. 439, the right to the 'Williams v. Ladew, 171 Pa. 369, landlord's preference with respect to 33 Atl. 329. 107 108 LANDLORD AND TENANT. quently granted to B the right to attach a pipe on his own land, to the railroad company's pip 3, for a conpensation of $5 a year for each house that he might thus supply with water. This com- pensation, says Gordon, J., is "a profit issuing yearly out of lands; a rent reditus to the landlord for their annual use."^ 132. Repayment, in instalments, of a loan. — In addition to rent proper, as consideration for the use and occupation of the premises, the lease may provide for a loan of money to the lessee, and for the repayment of this loan by instalments, which it terms rent. A lease, e. g., of veins of coal, at a rental of 25 cents per ton for all coal mined except chestnut coal, for which the rent was to be 15 cents per ton, provided for a loan to the lessee of $12,000 to be repaid with interest "by an addi- tional rent" of 10 cents per ton on all coal taken out. This "additional rent," though so called, was not rent but simply a repayment of a loan of money. "True," says Woodward, Ch. J., "it is called rent in the lease, but you do not alter the essential nature of a thing by misnaming it. In Philadelphia it is com- mon for ground-rent landlords to advance improvement funds to their tenants, which are usually secured by mortgage, and re- paid like any other debt. But such payments are never called rent. ISTo two things are more easily distinguished. Repay- ments of borrowed money cannot be that annual profit issuing out of lands and tenements, which rent is, and no false nomen- clature can make them identical."* 133. Assessments on property. — A covenant of the lessee that he will pay all assessments upon the property will oblige him to pay assessments for grading and paving,^ or for paring and curbing^ sti-eets, made by the municipality during the term, and, 'Manderbaoh v. Bethany Orphans' 'Miller v. Lankard, 1 Pittsb. 75. Eome, 109 Pa. 231, 2 Atl. 422. The 'Griffin v. Phamix Pottery Co. 14 grantee of the reversion became en- W. N. C. 266. titled to the rent. 'Miners' Bank v. Heilner, 47 Pa 452. KENT. 109 if the lessor pays them, he may recover them from the lessee. A covenant to pay taxes only will not embrace such assessments. A covenant, e. g., to pay all the taxes that may be levied and assessed npon the premises, except such tax as may be assessed to pay city or county railroad subscriptions, will not impose on the tenant the duty of paying assessments for grading and pav- ing the streets on which the premises abut.'' A lessee for fifteen years of coal, who has covenanted to pay "all and every the United States, state, and local taxes, duties, and imposts on the coal mined, the mining improvements of every kind, and the surface and coal land itself," is not bound to pay assessments for a sewer.* 134. Taxes. — Taxes are included in "all charges and assess- ments whatsoever," and if the lessee covenants to pay the named rent "clear" of such charges and assessments, he must pay the rent and the taxes that are assessed on the premises during his term, and the assignee of the term must pay such as are assessed during his ovwiership of it.® When the lessees undertake to pay all "taxes, charges, and assessments whatsoever" imposed by the United States, the state, the county, township, or school district, "as well on their improvements as on the coal mined" during the term, and they build a coal breaker, and make other improvements which increase the assessable value of the land, they are bound to pay such part of the taxes as represents the increase of value of the premises, caused by their improve- ments.-"' If, before a lease or a renewal of it is accepted by the lessee, a law is passed enacting a new and special tax, the lessee is bound to pay one half of a tax assessed in pursuance of the law during his term, he having covenanted to pay one half the 'Longmore v. Tiernan, 3 Pittsb. 62. Petroleum, Co. v. Stanton Oil Co. 23 'Pettihone v. Smith, 150 Pa. 118, Pa. Co. Ct. 153. 17 L. R. A. 423, 24 Atl. 693. ^"Heckscher v. Sheafer, 17 W. N. 'Sandioith v. De Silver, 1 Browne C. 323, Of. Delaware, L. & W. R. Co. (Pa.) 221. The duty of the lessee v. Sanderson, 109 Pa. 583, 58 Am. to pay the tax passes to the assignee Rep. 743, 1 Atl. 394. of the lease. Oil Creek d C. Branch 110 LANDLORD AND TENANT, taxes assessed or to be assessed;-'-' but a covenant to pay "all ta:xes . . . that may be assessed" did not embrace a bounty tax, such a tax being unknown when the lease was made, being often greater than the rental value of the land, and the benefit of it accruing to the o\^Tier of the land.^^ When the lessee agreed, in addition to the rent, to "pay city and state taxes" assessed during the term, and subsequently, the lessor, a charitable society, with the assent of the lessee to the declared object of "adding the sum paid in taxes to their income for charitable expenditures," obtained an act of assembly exempting its property from taxation, — it was held that the lessee was bound to pay the taxes that would have been assessed, but for the exempting statute, to the lessor.-'^ The lessee covenanting to pay the taxes assessed within his term, he must pay a tax as- sessed within a month of the close of the term, though the tax be for the year beginning with the assessment.-'* 135. Tenants' statutory liability for taxes. — The 6th section of the act of April 3, 1804,-'^ enacts that every tenant in posses- sion of lands shall be liable to pay all the taxes which, during his possession, may become due and payable ; and that, having so paid such taxes or any part of them, he may recover them from the landlord, or defalcate them in the payment of the rent due the landlord, unless the contract between them imposes the duty of payment upon the tenant. If the leasehold itself should be the subject of taxation, the lessee could not, on paying a tax assessed on it, compel the lessor to reimburse him.'^ If the lessor's fee is assessed, and the interest of the lessee in improve- ments put by him on the premises — a state quarry — is separately assessed, and the lessee pays the tax assessed against his interest, "BroiCTi V. Wagner, 1 Pearson "Haynes v. Synnott, 160 Pa. 180, (Pa.) 254. 28 Atl. 832. ^Focht's Estate, 2 Woodw. Dec ■» 1 Pepper & L. 2636, 4 Sm. L. 201. 269. " Cf. Franciscus v. Beigait, 4 ^'German Society \. Philadelphia, Watts, 98. 9 Phjla. 245. RENT. Ill he cannot compel tlie lessor to refund the sum paid.*'' Taxes improperly assessed against the landlord the tenant may not pay, "with hope of obtaining reimbursement.-'® 136. Road taxes.— The 8th section of the act of April 6, 1802,*^ enacts that the tenant or tenants or other persons re- siding on lands owned by persons not residing in the township, his, her, or their goods, shall be liable to be levied on for the payment of road taxes ; and if any tenant or tenants shall be in possession under a leaee for one or more years, when the tax is assessed or levied, and shall pay the tax, they may deduct the tax thus paid out of the rent due, or recover it by action from the lessor. 137. Interest on rent.— Eent payable at a fixed time, if not ■paid at that time, carries interest vmless from the conduct of the landlord it might be inferred that he meant not to insist on interest, or unless he acted in an oppressive manner by de- manding more than was due, the tenant being willing to pay the proper sum, or unless there are other circumstances making the charge of interest improper.-" If the tenant, having a set-off against the rent, tenders the difference between the rent and the set-off to the landlord, which the latter refuses to receive ex- cept as payment on account, the tenant may refuse to pay on these terms ; and if, sued for the rent, he establishes the set-off, he will not be liable for interest.^^ "Flory V. Better, 1 Monaghan Fisher, 4 Whart. 516 ; "Naglee v. (Pa.) 478. Ingersoll, 7 Pa. 185; Chew's Estate, "'Kitchen v. Smith, 101 Pa. 452. 4 Phila. 186; Buchanan v. Mont- "1 Pepper & L. 2636; 3 Sm. L. gomery, 2 "ieates, 72; Society v. 512. Swindell, 2 W. N. C. 560; McQues- ^'Oiermyer v. yichols, 6 Binn. 159, ney v. Hiester, 33 Pa. 435; Re Mak- 6 Am. Dec. 439. Tlie trial court left inson, 8 Phila. 381; Bantleon v. the question to the jury, and, thought Smith, 2 Binn. 146, 4 Am. Dec. 430; Tilghman, Ch. J., "properly." Inter- Dougherty's Estate, 9 Watts & S. est was allowed as a matter of 189, 42 Am. Dec. 326; Ter Hoven v. course in: M'Glure v. M'Clure, 1 Kerns. 2 Pa. St. 96; Pancoast's Ap- Grant Cas. 222; Spacktnan's Appeal, peal, 8 Watts & S. 381. 16 W. N. C. 79; Lane v. Xelson, 167 "Mckols v. Jones, 166 Pa. 599, 3' Pa. 602, 31 Atl. 864. Cf. Buck v. Atl. 329. 112 LANDLORD AND TENANT. 138. When rent is payable.— The lease usually prescribes the time at which rent is to be paid. Though the lease is for one or more years, it may require payments quarterly, monthly, week- ly, or at any other interval. If the lease is for one year^^ or more, and nothing is said as to the time for poying the rent, it is payable at the end of the year, whether it be payable in money,^* or in products of the gTound.^* The rent is payable at any moment after midnight of the last day of the term or sub- division of the term for which the rent is payable. If that day is Sunday, the rent will be payable on Monday foUowing.^^ A demise, e. g., being made for one year, on May 1, 1842, the last quarter's rent is due on May 1, 1843,^^ and can be sued for on that day.^'^ It may be made, by the term of the lease, payable in advance for the year, the quarter, the month, the week; and that the rent is to be paid in advance may appear from the lease, the circumstances, and the testimony, though the lease does not expressly state that it is to be so paid. A lease for four years, the term under which was to commence September 15, was made September 12. The first month's rent was paid when the lease was executed. The second payment of a month's rent was made December 2. The lease provided that the lessee should pay for the first two years a yearly rent of $800, and for the last two a yearly rent of $1,000, "in monthly payments of $66.67 and $83.33 respectively, commencing the first day of Novem- ber." It was concluded that the monthly rent was payable at the beginning of each month.^^ The lease may provide that on ^Menough's Appeal, 5 Watts & S. '"Prentiss v. Kingsley, 10 Pa. 120. 43S; Boyd v. McGombs, i Pa. 146, Cf. Negley v. Morgan, 46 Pa. 2S1. Sharpless's Estate, 8 Lane. Bar, 125. '"Donaldson v. Smith, 1 Aslrni. '^Menough's Appeal, 5 Watts & S. (Pa.) 197. Cf. Du^fy v. Ogden, 64 432. Pa. 240. ^Boyd V. McComhs, 4 Pa. 140, ^EUis v. Rice, 195 Pa. 42, 45 Atl. King v. Bosserman, 13 Pa. Super. Ct. 655. Rent originally payable in ad- 480. vanee may be made payable at the ^Marys v. Anderson, 24 Pa. 272; end of the period. Wilgus v. White- Gregg V. Krels, 5 Pa. Dist. R. 779. head, 89 Pa. 131. RENT. 113 the happening of various events, — e. g., the removal or at- tempted removal of goods from the premises,^^ the lessee's re- moval before the end of the term,^" the lessee's becoming em- barrassed, or making an assig-nment for the benefit of creditors,^^ the lessee's failure to pay, for five days after it becomes due, any monthly instalment,^ ^ — the whole rent shall become payable. Though the lease is made June 27, 1848, for five years from the first day of April, 1848, it may be orally shown that possession Avas taken of the premises on April 1, 1848, and that the rent be- ing payable semiannually in advance one half year's rent was payable on April 1, 1848.^^ 139. Rent contingently payable.— The lessor may suspend the duty of the lessee to pay rent upon the success of the former in defending his title to the land against an adverse claimant.^* The rent becomes due at the intervals specified. jSTothing is due between. A having assigned the lease to B in the midst of a quarter, and B paying the rent from the time of the assignment, A would remain liable for so much of the rent of the quarter as the assignee did not pay, but it would not be correct for the lessor's declaration to describe the rent as due on the day on which the assignment was made."'^ 140. Commuting rent; assignment for creditors. — If^ in order to adapt the premises to th^ special needs of B, to whom a lease is to be made. A, the owner, expends much money, and B agrees, ^"Excelsior Shirt Go. v. Miller, 4 vision by accepting payment of the Laclv. Legal News. 332. overdue instalments. Cf. Merrill v. ■'"Goodioin v. Sharkey, 80 Pa. 149; Trimmer, 2 Pa. Co. Ct. 49. Tanko v. Leizerowitz, 8 Del. Co. Rep. '^'Com. esc rel. Irwin v. Contner, 21 107. 18 Lane. L. Rev. 1; McAnniny Pa. 266. v. Miller, 19 Pa. Super. Ct. 406. ^Sassaman v. Feagly, 4 Watts, '"Flatt V. Johnson, 168 Pa. 47, 47 268. Am. St. Rep. 877, 31 Atl. 935; ef. '^Ghegan y. Young, 23 Pa. 18. Thti Oivens V. Shovlin, 116 Pa. 371, 9 affidavit of defense not denying that Atl. 484. the rent then became due, two of the "'I'eufel V. Rowan, 179 Pa. 408, 36 four judges of the supreme court fav- At). 224; Hallwood Cash Register ored the affirmance of the judgment Co. V. Hefferman, 12 Pa. Dist. R. 515. for the lessor. The landlord does not waive this pro- Land. & Ten. 8. 114 LAMDLOED AND TENANT. in the lease, to pay a rent which in ten years, the term, willrepay nine tenths of the outlay, A may, B assigning subsequently for creditors, claim from the assigned estate the present worth of the instalments of rent which are to accrue under the lease, less the present worth of the rental which, for the remainder of the term^ he will be able to get from another tenant.** "Be Reading Iron Works, 150 Pa. 369, 24 AU. 617. CHAPTER XI. RENT PAYABLE IN KIND. 141. Rent in crops. 142. Ownership of the grain. 143. Landlord's remedies. 144-5. Exceptional right of landlord. 141. Rent in crops. — The rent reserved may be, instead of money, a share of the produce of the land, expressed in some ratio ; e. g., one half or one third^ or two fifths of spring grain and one third of fall grain,* or some definite number of bushels of grain may be reserved, or such a number, as, at a certain price per bushel, v^ill produce a certain sum of money, — e. g., lease of land at 12s. and %d. per acre, payable in wheat at 4s., rye at 3s. and corn at 2s. and &d. per bushel.* The lease being of a grist-mill, the rent reserved may be two thirds,^ or any other fraction, of the tolls ; that is, of the share of the grain taken by the lessee from his customer as compensation for the service of grinding. If the rent reserved is one half of the gTain, the lessor is entitled only to one half of the straw, the other half be- ing the tenant's, of which he may dispose as of any other prop- erty unless the lease requires its use on the premises.* If the lease requires the tenant to cut the grain, thresh it, clean it, and deliver one third of it to the landlord, the other two thirds of the ^Borrell v. Dewart, 37 Pa. 134; *Meason v. Philips, Addison (Pa.) Hoover v. Hoover, 10 Pa. Co. Ct. 563 ; 346. Rank v. Rank, 5 Pa. 211; Lehr v. 'Long v. Fitzimmons, 1 Watts & Taylor, 90 Pa. 381. S. 530; Fry v. Jones, 2 Rawle, 11. 'Price V. Wright, 4 Lane. Bar 32; "Rank v. Rank, 5 Pa. 211. If the Iddings v. Nagle, 2 Watts & S. 22. grain is com, the tenant is entitled Evidence of a custom to the contrary to one half of the fodder. Eauff- will not be heard. man v. Schaeffer, 2 Walk. (Pa.) ^Borie v. Vrissman, 82 Pa. 125. 331. 115 116 LANDLORD AND TEiVTANT. grain, and all the straw, belong to the tenant,'' as it does when the rent reserved is one half or other fraction of the grain "in the bushel."* 142. Ownership of the g'rain.— When the rent reserved in a lease is a share of the grain or other products of the farm, such grain and products, while growing, belong wholly to the tenant. The landlord has "no right whatever to an interest in the grain sold by" the tenant "and growing upon the land."" The ten- ant may sell the whole of it, and a good title will pass to his vendee ; and this vendee, though it be the lessor himself, or the purchaser of his reversion, or the agent of such purchaser, will be compellable to pay the price. ^^ Says Eogers, J. : "Then as to the title of a tenant to the grain in the ground, where by the terms of the lease the landlord is entitled to a share of it, deliver- able in the bushel. The better opinion seems to be that it is the property of the tenant, and until the grain is severed and de- livered to the landlord, he has no interest in the thing itself. If he [the tenant] sells it, it goes to his vendee, and the landlord cannot pursue it in his hands. The only remedy of the landlord is by distress [or action on the promise] as in the case of money rent." ISTor can any part of the crop become the lessor's, until a share is separated for him from the remainder and is appro- priated to him by the tenant. Doubtless this separation and ap- propriation might take place while the crop is still standing in the grounds ; but ordinarily they do not occur until it has been cut down, after maturity. Until this division and appropria- nddings v. 'tiagle, 2 Watts & S. 496, 24 Am. Dec. 339. Hence, a 22. fieri facias levied on the lessor's in- 'Iddings v. Nagle, 2 Watts & S. terest in growing grain on the ten- 22; Burns v. Cooper, 31 Pa. 426; ant's premises passes nothing as Borrell v. Deicart, 37 Pa. 134; against a subsequent purchaser of Hoover v. Hoover, 10 Pa. Co. Ct. the reversion. Long v. Seavers, 103 563; Ream v. Harnish, 45 Pa. 376; Pa. 517. Rinehart v. Olwine, 5 Watts & S. ^'Rinehart v. Olivine, 5 Watts & S. 157. 157; Long v. Seavers, 103 Pa. 517. 'Johnston v. Smith, 3 Penr. & W. RENT PAYABLE IN KIND. 117 tion, the landlord owns no part of tlie crop. A creditor of the lessor who levies on and sells any part of it, and the vendee, will be guilty of trespass.-'^ If the lessee sells all the crop before di- vision the landlord can recover none of it from the vendee, in replevin. ^^ Though a day has been appointed by the teiaant and landlord for the making of the division, e. g., of hay, but, the day arriving, the division is not made, the landlord has no right to take the hay. If he does, and he refuses to give it up, the tenant may retake all of it without being a trespasser. The landlord's only remedy, says Coulter, J., is "by an action on the contract of lease. "■'•* And if the landlord takes any part of the grain without a previous division by the tenant, the latter may recover the full value of all taken. ^^ But, after the tenant di- vides the grain in his barn, designating the landlord's share in (he presence of the landlord's son and agent, and takes his own share away, the property in the other share passes to the land- lord, though he does not take possession of it. If any person, whether the tenant or another, should subsequently take it away without his consent, he can recover it in replevin.*® ''Ream v. Harnish, 45 Pa. 376. crop and for this reason it was mti- Cf. McCormick v. Skiles, 163 Pa. mated that trover by the tenant 590, 30 Atl. 195, where it is held against the landlord for taking all that a cropper who is to receive, as the crop would not lie. Trover was compensation, a share of tobacco unsuccessfully brought by the land- cultivated by him on premises in the lord against the tenant for all the possession of the owner, acquires no straw, in Iddings v. Nagle, 2 Watts property in any part of the tobacco, & S. 22. until a division is made. Johnston "Hank v. Rank, 5 Pa. 211. If v. Smith, 3 Penr. & W. 496, 24 Am. after suit is brought the landlord al- ]Jee. 339. i;et, in Stafford v. Ames, lows the tenant to take the grain, 9 Pa. 343, the owrer having cut the the tenant may recover the value of crop and refused to deliver any part the grain at the time of taking, less of it to the cropper, it was held that the depreciated value of the grain the latter had the right of immediate when it was given back. Kauffman, possession and could maintain trover v. Schaeffer, 2 Walk. (Pa.) 331. Al- against the former. bright, P. J., instructed the jury ^-Price v. Wright, 4 Lane. Bar, 32. that if the landlord had asked for '^Briggs v. Thompson, 9 Pa. 338. a division, and it was improperly re- in Rank v. Rank, 5 Pa. 211, it was fused, he would have a right to take assumed that the landlord and ten- his proper share, ant were tenants in common of the '"Burns v. Cooper, 31 Pa. 426. 118 LANDLORD AND TENANT. 143. Landlord's remedies.— If the tenant fails to deliver to the landlord his share he may distrain for it,^® or bring an action of account-render,^'' or an action of assumpsit on the covenant in the lease.^* The action would be, not replevin, nor trespass, nor trover and conversion, presupposing an ownership of the grain, but assumpsit or some other action founded on the breach of contract. If the tenant has sold the landlord's share, he will be obliged to account for the price, though he may have failed to collect itj on account of the insolvency of the buyer, inasmuch as he has sold it without right. If the tenant of a mill has agreed to deliver to the landlord two thirds of the tolls he re- ceives, and he agrees with some customers to grind for cash in- stead of tolls, he must account for two thirds of this cash. Should he fail to collect the money, because of his negligently spoiling the flour made out of the grain of the customer, he will be bound, nevertheless, to pay two thirds of the contract price of the grinding to the lessor.** If the rent agreed on is so many bushels of wheat, rye, and com at designated prices per bushel, as would produce a given sum of money, this number of bushels must be delivered, notwithstanding the larger price per bushel prevailing when the rent is due ; and in an action of covenant the vahie of these bushels at the time when they should have been delivered must be allowed, with interest from that time.^" If the declaration of the lessor alleges that the rent was $60, there can be no recovery on evidence showing that the rent was a share of crops.^* "Fry V. Jones, 2 Rawle, 11; Rime- ^"Measomr. Philips, Addison (Pa.) hart V. Ohcine, 5 Watts & S. 157. 346. "Long v. Fitzimmons, 1 Watts & "^Conaile v. Van Bousen, 11 Pa. S. 530. Super. Ct. 497. Even if the declara- '^Briggs V. Thompson, 9 Pa. 338. tion alleged that the rent was pay- Formerly covenant, when the lease able in kind, which the tenant had was sealed. Meason v. Philips, Addi- refused to deliver, there could be no son (Pa.) 346. Cf. Lehr v. Taylor, recovery, without proof of the value 90 Pa. 381. of the landlord's share of the crops. "Long v. Fitzimmons, 1 Watts & S. 530. RENT PAYABLE IN KIND. 119 144-5. Exceptional right of landlord. — The lease, and the cus- tom of the county where the land is situated, may make a crop wholly the landlord's. It may, e. g., be a custom that the ten- ant on entering in the spring is to become owner of the away-go- ing crop^ and that when he leaves the premises at the expiration of the term, the fall crop sown by him is to become wholly the landlord's.^- The lease may stipulate that the right of posses- sion of the grain grown, whether while it is in the fields or after it is in the barn, shall be in the lessor until division and delivery by the landlord to the tenant of the share of the latter. Under such a lease the tenant moving off at the end of his term, April 1, and the landlord taking possession of the away-going crop which ripens the following summer, the former could not maintain trover for his share, the possession being in the landlord. The reason of the landlord's refusal to give to the tenant his share of the away-going crop being the tenant's having taken an undue share of the corn crop which, while in possession of the term, he had cut, the value of the landlord's share of the corn thus im- properly kept would be properly deducted, even if trover lay, from the value of the tenant's share of the winter crop.^* ^Loose V. Scharf, 6 Pa. Super. Ct. "Lehr v. Taylor, 90 Pa. 381. 153. CHAPTEE Xn. ACTIONS FOK RENT. 146. Account render. 147. Assumpsit not local actiot' 148. Assumpsit for use and occupation. 149. When action for use and occupation is inapplicable. 150. No agreement to pay rent presumable. 151. When no rent is specified; void lease. 152. Express contract, hut no rent named. 153. No express contract at all. 154. Implied contract. 155. Holding possession despite notice from sheriff's vendee. 156. Landlord's permission. 157. What relations negative a contract. 158. Tenants in common. 159. Tenant at sufferance. 160. Other remedies besides assumpsit. 161. Warrant of attorney. 162. The measure of compensation. 163. Lease by tenants in common. 164. Action by stranger to lease. 165. Agent; principal. 166. Privity with lessor. 167. Declaration. 168. Atfidavit of defense. 169. Proof of execution of lease; oyer. 170. Exemption. 171. Jurisdiction of justice. 172. Limitations. 173. Set-off. 174. Defenses to payment of rent; possession not taken. 175. Want of title." 176. Payment by distress. 177. Appropriation of payments. 178. Presumption of payment. 179. Former recovery. 180. Payment. 181. Nonacceptance of lease. 182. Inability to use premises in covenanted mode. 183. Surrender. 184. Mistake in description of premises. 120 ACTIONS l^OE, KENI. 121 185. Illegality of object of lease. 186. Assignment of lease no defense. 187. Reduction of rent. 188. Subsequent agreement to reduce rent. 189. Reduction of rent, of right. 190. Release. 191. Bankruptcy. 192. Assignment of rent. 146. Account render. — As a general rule, account render will not lie for rent reserved in a lease ; but this must be understood of a certain rent, and not where the amount reserved is uncer- tain, and, conseqiiently, where an account on oath may be neces- sary to ascertain the amount received. The rent for a mill be- ing two thirds of all the tolls received during the term, an action of account render was proper.^ 147. Assumpsit not local action. — The action for rent is not local necassarily. The fact that the land lies, e. g., in New Jersey,^ or in jSTew York,^ or in Massachusetts,* or in Delaware,^ will not make it impossible to sue for rent in Pennsylvania ; and assumpsit® and debt' have been used. It is said in lienwood v. Cheeseman^ that the suit by the lessor himself against the lessee will always be transitory, because it will be upon the contract. But if the lessor assigns the reversion, and the assignee sues in debt at common law, the action, being founded only on privity of estate, is local. If he sues in covenant, by virtue of the statute, 32 Hen. viii. chap. 34, which transfers the privity of contract from the assignor to the assignee, the action will be transitory. The lessee being dead, rent may be claimed in the distribution of his estate.* 'Long v. Fitzimmons, 1 Watts & 'Kline v. Jacohs, 68 Pa. 57. S. 530. "Uenwood v. Cheeseman, 3 Serg. & 'Henwood v. Cheeseman, 3 Serg. & R. 600. R. 500. 'Pratt V. Richards Jewelry Co. 69 'Pratt V. Richards Jewelry Co. 69 Pa. 53. Pa. 53; Philadelphia Fire Extin- 55 Atl. 539. guisher Co. v. Brainerd, 2 W. N. C. '3 Serg. & R. 500. 473. 'Thompson's Estate, 205 Pa. 555, 'Baynes v. Synott, 160 Pa. 180, 28 Atl. 832. 122 LANDLORD AND TENANT. 148. Assumpsit for use and occupation. — It was said by Dun- can, J., in 1823, in M'Gunnagle v. Thorntonj^" that assumpsit, for use and occupation "has lately been frequently used, and is a very convenient action ;" and in that case and several others it was used to compel the payment of rent reserved in a lease for a definite term, specifying the rent.^^ An assignee for the bene- fit of creditors, who paid rent for a quarter following the as- signment, was held in one case to have become by that and other acts a tenant for the remainder of the term, and to be liable in assumpsit for the rent, according to the contract, at the end of the next quarter, though he did not retain possession during that quarter. Holding that his liability arose from privity of con- tract, and not as assignee of the term, the court said that he could not annul the contract for the running year at any time that suited him; he was bound till the end of the year, if the lessor insisted on it ; he, in legal contemplation, used and occupied the premises, though he was not in possession.^^ A tenant for one year, who leaves the premises in the midst of the year, without the acceptance of a surrender by the landlord, is liable in as- sumpsit for use and occupation for the rent for the remainder of the year, less such rent as may be obtained from some other oc- cupant. ^^ B accepted from A a lease of a house for one year from April 1st. There was already a tenant in the house, who agreed with the lessee, before the lease was made, to vacate the premises on May 1st. B, subsequently changing his mind, never occupied the house, and, four months after the lease was made, notified the lessor. He was liable in assumpsit for use and occupation for the rent of the year. Though no actual oc- '"10 Scrg. & R. 251. The declaration should show whether '^ Grant v. QUI, 2 Whart. 42; Mar- the claim is for a definite rent, or ■seilles v. Kerr, 6 Whart. 500; Mail- for a reasonable rent for use and oc- land V. Wilcox, 17 Pa. 231. eupation. Diehl v. Bockius, 1 Pa. '■'Grant v. Gill, 2 Whart. 42. Dist. R. 479. "Marseilles v. Kerr, 6 Whart. 500. ACTIONS FOR KENT. 123 cupatlon of the premises was taken, the tenant could have taken it." 149. When action for use and occupation is inapplicable. — If there has been a contract for a definite rent, or for the ascer- tainment of the rent in a prescribed mode, there can be no recov- ery of "what the occupation of the land is reasonably worth. The recovery must be of the definite rent, or of the rent that shall be ascertained in the prescribed mode. A lease for five years provided for its renewal for another two and a half years, at a rent to be determined by arbiters. These arbiters, or ref- erees, were to be chosen, two by the lessor, and two by the lessee, who were to call in a fifth. The determination of a majority of these arbiters was to decide the rent. The lessee continued in possession, after the expiration of five years, for six weeks, when he called on the lessor to appoint referees. After their appoint- ment and the selection of a fifth by them, the lessor revoked the reference. He could not, it was held, recover for use and occtt- I>ation, until the rent had been fixed by the referees, or until the tenant declined further to proceed for the submission of the question. ^^ If A had leased the land to B by a sealed instru- ment, and B assigned the lease to C, the action against C formerly could not be in assumpsit for use and occupation. The exist- ence of the lease and the assignment excluded the hypothesis of a different tacit or oral contract.-'® "M'Gunnagle v. Thornton, 10 Serg. Jacobs. Cf. Uackey v. Robinson, 12 & R. 251. Pa. 170. ^"Abiot V. Shepherd, 4 Phila. 90. ^'Blume v. M'Clurken, 10 Watts, An express contract to pay a definite 380. If A of the firm of A & B rent or a reasonable rent may be makes a sealed lease in the name of shown under a count for use and oc- both, and, B retiring, a new firm of cupation. Kline v. Jacobs, 68 Pa. A & C is formed, the payment of the 57; Pott V. Lesher, 1 Yeates, 576; rent reserved to this new firm will Kenwood v. Cheeseman, 3 Serg. & E.. not justify the inference of the 500. The terms of the statute of 11 abandonment of the lease and of the Geo. II., chap. 19, are too clear tacit substitution of another. Beic- to admit of controversy on this point, ley v. Tarns, 17 Pa. 485. A person aavs Shaiswood, J., in Kline v. in Dossession of land sells stones 124 LANDLORD AND TENANT. 150. No agreement to pay rent presumable. — The act of April 2, 1872,^' provides that the receiver of taxes of the city of Wilkesbarre may have his office in such place as may be approved by the council. This does not authorize the council to decide not to approve of any places other than the city building. If they notify the receiver that they will not approve of any office except one in the city building, and he thereupon occupies it, a resolution of council, subsequently passed, that he be charged an annual rental of $300, imposes no obligation on him to pay it. There is no express or implied contract on the part of the re- ceiver to pay it.-'^ 151. When no rent is specified; void lease. — The action of as- sumpsit for use and occupation is generally resorted to only when there is a duty upon the occupant to pay for the occupa- tion of the land, but no binding contract defines the amount of the compensation to be paid. There may, e. g., be a lease, but, because of the statute of frauds or other cause, it may be in- valid. If possession is taken under it, compensation for the use may be recovered. If, under a lease for a term lasting more than three years beyond the time of making it, made by an agent whose authority is not in writing, and therefore invalid under the statute, possession is taken and retained fortenmonths, compensation can be recovered by assumpsit, not upon the lease, but upon the implied contract to pay it. And if the contract implied is not one to pay the rent mentioned in the lease, the rent mentioned is at least a guide to the jury in determining the value of the occupation. The defendant, says Trunkey, J., "is liable in assumpsit for the rental value of the premises he occu- pied. The writing was admissible on the question of value, — it from it to X. He can compel X to " P. L. 740. pay the price though he is not the ^'Wilkes-Barre v. Chase, 7 Pa. owner of the premises, for X is not Super. Ct. 343. liable to the owner, either in tres- pass or assumpsit. Rhoades v. Pat- rick, 27 Pa. 323. ACTIONS FOR RENT. 125 >■ was not offered in evidence as the foundation of the action."^* The oral lease being for four years for $400, payabife at the end of the term, assumpsit could be brought for the recovery of the value of an occupation for three years, and the jury could take three fourths of the sum mentioned in the lease as a proper measure of value. ^' 152. Express contract, but no rent named. — There may be a covenant to pay "a reasonable rent'' or compensation veithout de- fining the rent. Assumpsit for use and occupation may be em- ployed to recover it.^-"^ And one tenant in common who makes the express promise to pay a reasonable rent to his cotenant may be compelled to pay it, though without such promise to pay either a definite rent or a reasonable rent, he could not be made to pay at all.^^ One tenant in common may agree with the others to pay as rent an amount to be "hereafter agreed upon, or to be otherwise determined." The parties not subse- quently agreeing, assumpsit may be sustained for use and occu- pation.^* ^'Jennings v. McOoml, 112 Pa. ^Peirce v. Peirce, 199 Pa. 4, 48 Atl. 518, 4 Atl. 812. 689. A testator devised his houses "'Stover V. Cadwallader, 2 Pennyp. to his widow and children, giving the 117. In Dauphin County v. Briden- executor power to rent them. The hart, 16 Pa. 458, it is said that if widow had possession of one of them the sheriff to whom the county is for a series of years. The executor not bound to furnish a house, occu- rendered to her and the other devi- pies one without actual contract be- sees, semi-annually, an account of tween the owner and the county for the rents collected and distributed, it, the county is not liable as for use In these accounts he charged the and occupation. widow with a rent of $300 per an- '^Henicood v. Cheeseman, 3 Serg. num. The reception of these ac- & R. 500; Pott V. Lesher, 1 Yeates, counts by her, without objection 576. within a reasonable time, would ^Kline V. Jacois, 68 Pa. 57. An have been an acquiescence in the ■occupation may be maintained by al- charge of $300, that would have been lowing heavy machinery to remain binding on her. Her objection, re- in a building after it has become the suiting in an agreement that, while property of another. Grove v. Bar- she would pay rent, the amount of elay, 106 Pa. 155. Simply visiting it should be determined in the future, a house to inspect it before making prevented them from becoming stated a, lease is not an occupation of it. accounts. Maitland v. Wilcox, 17 Pa. 231. 126 LANDLORD AND TENANT. 153. No express contract at all. — There may be no express contract, either to pay a determinate rent or to pay rent; yet the facts may warrant the inference of promise to pay a reason- able rent. If they do, the action of assumpsit upon this inferred or implied promise, for the value of the use or occupation, may be sustained. If they do not, the only remedy of the owner is an ejectment of the occupant, and a recovery therein of mesne profits, or, after judgment therein, an action of trespass for mesne profits. In Machey v. Bohinson^* a father, with the con- sent of three adult children, leased for his own benefit the land belonging to them and to four minor children, and died in the midst of the term. The tenant continued in possession, and the children sued in debt for the rent. Holding that the defendant was in no privity of contract with the plaintiffs, that he re- mained in possession after the death of the lessor, — practically a life tenant, — "under circumstances, to say the least, no better than those of tenants holding over without permission, whom the law calls tort feasors," Gibson, Ch. J., decides that neither in debt nor in assumpsit for use and occupation, the use of which latter is permissible "only where the defendant has held by the plaintiff's demise, or at least by his permission, not in- ferred from mere inactivity" in not expelling him, could com- pensation be recovered. "As the defendants have left the prem- ises, the plaintiffs cannot recover in any form of action.""'' In Brolasky v. Ferguson^^ B had had possession of land prior to " 12 Pa. 170. Pa. 335, that the action for use ajid "Mackey v. Robinson, 12 Pa. 170. occupation is founded on the "use of Cf. Pott V. Lesher, 1 Yeates, 576, the premises; . . . that the oc- where the only remedy for the use of cupant may be in fact a trespasser, land by a trespasser is said to be but the owner of the tenement may ejectment and an action for mesne waive the trespass and recover in as- profits. sumpsit, and it does not lie with the ™ 48 Pa. 434. If the defendant tortfeasor to defeat him by inter- entered as a, trespasser, a contract posing his own wrong," — abandons to pay rent cannot be inferred. Hen- the doctrine that the action reposes loood V. Cheeseman, 3 f^erg. & R. on a contract, express or implied, and 500. The remark of Gordon, J., in is inconsistent with the cases cited. National Oil Kef. Go. v. Bush, 88 ACTIONS FOR RENT. 127 April, 1862, and again from July 26, 1862, when he reoccu- pied it under an agreement with A, the owner of an undivided interest in it, to pay $50 per month for it. B was not liable for use and occupation before April, 1862, in the absence of any contract made before that time, or any acknowledgment by B that the relation of landlord and tenant existed between him and A, or any understanding with the owner and without his knowledge. B, claiming land on demise of his mother, takes and retains possession, refusing to pay rent to his father, the tenant by the curtesy. No contract could be inferred, and no action by the father for use and occupation sustained.^'^ If coal underlying land is sold, to be taken out in forty years, and, together with it, a right to use the surface for the purpose of removing this coal, a use of the surface for any other purpose could not be supposed to be permissive, and assumpsit for it would not be a proper remedy.^® A vendee of land takes posses- sion of the land, but the sale is never consummated on account of the inability of the vendor to make a clear title. For the con- tinuance in possession of the vendee for seven years, no com- pensation as for use and occupation can be recovered. The circumstances repel the inference of any contract to pay rent.^* One who occupies under a claim of ownership cannot be held to have impliedly contracted to pay rent.^" 154. Implied contract. — The action for the use and occupa- tion of land is founded upon privity of contract, not privity of estate. The plaintiff must prove a contract to pay either a stipu- lated compensation for the use of the land, or such a sum as the use is reasonably worth. But the proof of this contract may ^Uarlatt v. Marlatt, 4 Pennyp. 91. sit unless the claim is substantial. ^McCloskey v. Miller, 72 Pa. 151. The theory of an implied contract, as ^Bardsley's Appeal, 20 W. N. C. distinguished from a quasi-contract, 90. But, in Grove v. Barclay, 106 seems to be abandoned. Pa. 155, it is said by Gordon, J., "SeivUn v. Brinton, 1 Chester Co. that a claim of right does not de- Rep. 233; Carroll v. Carroll, 2 stroy the right to maintain assump- Chester Co. Rep. 119. 128 LANDLORD AND TENANT. be direct or presumptive. If tlie possession is taken witli the knowledge and the permission of the plaintiff, a promise to pay a reasonable rent is inferred. The contract to pay rent is deduced from the assent of the plaintiff and the action of the defendant under it.^-' If B has been in possession of A's land as a tenant, or otherwise, with his consent, a notice to quit by a certain day, while it tends to show that B's possession con- tinued after that day is in defiance of A, is not conclusive. A may nevertheless consent to that continuance,^^ and if he does, he may recover for the value of the use and occupation, until the consent is withdrawn. 155. Holding possession despite notice from sheriff's vendee. — If after notice to the tenant to vacate the premises in three months, given by the purchaser of the reversion at a sheriff's sale, the tenant retires at the end of the three months, he will be liable for the occupation of the premises during the period f^ and, a fortiori, if, disregarding the notice, he remains in posses- sion beyond the three months, though not liable for the rent specified in the lease he will be compelled to give compensation for the use and occupation of the land.^* 156. Landlord's permission. — If the occupant does not expect and intend to pay rent, and the circumstances indicate to the owner of the premises that be does not, no contract can be in- ferred, either by the owner or by the courts. The contract can- not be deduced from the mere expectation of the owner that '^Brolashy v. Ferguson, 48 Pa. Pa. 335; Seitzinger v. Alspach. 42 434; Bressler's Appeal, 2 York Legal Phila. Leg. Int. 68; cf. Stockton's Record, 57; Seitzinger v. Alspach, Appeal, 64 Pa. 58. 42 Phila. Leg. Int. 68; Kline v. ''Stockton's Appeal. 64 Pa. 58. It Jacobs, 68 Pa. 57; Henwood v. matters not, says Read, J., whether Cheeseman, 3 Serg. & R. 500; Wells the compensation is called mesne V. Hornish, 3 Penr. & W. 30; Pott profits, or damages, or for use and V. Lesher, 1 Yeates, 576; Marlatt v. occupation. Cf. Mozart Bldg. Asso. Marlatt, 4 Pennyp. 91; Bardsley's v. /Viedyen, 12 Phila. 515, 5 W. X. C. Appeal, 20 W. N. C. 90; Orove v. 318. Barclay, 106 Pa. 155. "Hemphill v. Tevis, 4 Watts & & "National Oil Bef. Oo. v. Bush, 88 535. ACTIONS FOR RENT. 129 he will be paid. ITor, even when the occupant manifests that he expects to pay rent, is the simple acquiescence of the owner, the mere refraining from positive dissent, or from active steps to expel the occupant, sufficient to support an inference of a contract. The owner's permission to occupy neither is, nor is to be deduced from, mere inactivity,*' though his silently suffer- ing the possession may, in conjunction with other facts, justify the inference of a contract to pay rent on the occupant's part, and to receive it, on the owner's.*'^ 157. What relations negative a contract. — The relationship of the parties may preclude the inference of a contract to pay for the occupation of the land, when the other circumstances alone would require that inference. The fact, e. g., that the occupant is the only child of the o^vner, his mother, will negative any contract on the part of the child to pay for an occupancy of seventeen years, no rent being shown to have been demanded or promised.^^ The occupancy of his wife's land, for his business, by a husband, in the absence of other indications, will not sup- port the inference that he agreed to pay rent for it. It must be presumed that he was permitted by her to occupy the prem- ises as a means of livelihood for the family, without any inten- tion on the part of the wife ever to claim rent.** There is no prima facie presumption that, when a son-in-law occupies the land of his wife's father, he does so with the assent of the latter, gratuitously. The burden is on the former to show that the use of the land is a gift. The relationship would facilitate, ^^Mackey v. Robinson, 12 Pa. 170. Cf. Albright's Estate, 1 York Legal *" If an agent of a railroad com- Record, 121. 7)any is retained, with the under- ^'Oilman's Estate, 9 Pa. Co. Ct. standing that he is gratuitously to 111. Cf. M'Glinsey's Appeal, 14 furnish a warehouse for goods, he Serg. & R. 64; Bardsley's Estate, 7 cannot recover from the company for W. N. C. 48; Cogley's Estate, 13 its use and occupation. Pennsyl- Phila. 308; Metz's Estate, 1 Legal ■nania R. Go. v. Brisbin, 35 Phila. Record Rep. 201. Leg. Int. 317. '^Thompson's Estate, 1 Kulp, 235. Land. & Ten. 9. 130 LANDLORD AND TENANT. but not dispense with, this proof.^® The relation between niece and nncle is not such as to justify the inference that the occu- Y-iancy by the latter of the house of the former was intended to be gratuitous. Having at his request come to his house, and lived there some years, she keeping house and he (a bachelor) paying all the living expenses, he , at length sold the house to her, saying, "1 will expect a home here as long as I live, and I will pay all expenses, as I have been doing." During the six- teen following years, he continued to occupy the house and to pay the expenses of the family. It was held that he was liable also to pay rent.*** The circumstances may indicate, however, that, while a nephew and family occupy the uncle's house, there is no contract to pay rent. The nephew came, as a single man over twenty-one years of age, to live in the family of his uncle, and continued there for fourteen years, during several of which he was married, having several children. The two families lived as one, the products of the farm being used without divi- sion, and no account being kept, by uncle or nephew, of his con- tributions. The evidence was held insufficient to show that the nephew was under any obligation to pay rent.*-' 158. Tenants in common. — Although when one tenant in com- mon alone occupies the premises, the nonoccupying tenant has been allowed to recover in assumpsit compensation for the use and occupation of his share of the land,*^ without evidence of an express promise to pay rent, it has been held that the occupy- ing tenant cannot be supposed, from the fact alone that he occu- pies, to intend and to promise to pay rent, but that he must expressly promise to pay it, in order to be liable to pay it.** '"Sterreit v. Wright, 27 Pa. 259. ^'' SI pad: man's Appeal. 16 W. N. C. The condition in life of the parties 79. may also render it easier for the son- "Walker v. Marion, 148 Pa. 1, 23 in-law to prove that a gift of the xise Atl. 1002. of the land was intended. A rich ■"lionell v. Borrcll, 33 Pa. 492 ; fatlior-in-law could more easily be M'Clure v. M'Glure, 1 Grant Cas believed to have intended a gift, than 222. a, poor one. "Kline v. Jacobs, 68 Pa. 57. Nor ACTIONS FOR RENT. 131 If, however, lie expressly agrees to pay a "reasonable rent," an action of assumpsit for use and occupation may be sustained on this agreement.** In tbe absence of an express contract the law possibly implies a promise by an occupant of land belonging to several tenants in common, to pay each severally his proper , share of the rental value.*^ 159. Tenant at sufferance.— The occupancy which follows the termination of the lease, and which, at the election of the lessors, may be treated as a trespass, gives rise, until he chooses so to treat it, or the tenant expressly negatives the intention to pay rent, to liability for use and occupation. "At common law," says Mitchell, J., "tenants at sufferance appear not to have been liable for rent, and some expressions to that effect are to be found in our own earlier cases. But in Bush v. National Oil Ref. Co. 5 W. IST. C. 143, it was expressly held that such tenant is liable in assumpsit for use and occupation for the in- terval between the termination of the lease and the election of the lessor to treat him as a trespasser."*® Hence, a lessee of a right to use water for fifteen years, which expired April 15, 1892, but who continued to use it until May, 1893, was liable for the value of the use, in assumpsit for use and occupation. A notice to withdraw from the premises at once*^ or at a desig- nated future time** does not make the future occupation in such sense a trespass as to preclude an action for compensation for such occupation, unless the notice is followed by some act indicating the lessor's purpose to treat the occupant as a tres- passer. 160. Other remedies besides assumpsit. — The owner of land may be a defendant in an action for money. He may set off a could there be a recovery in account "'Williams v. Ladew, 171 Pa. 369, render or by bill in equity. Norris 33 Atl. 329. V. Gould, 15 W. N. C. 187. "Grove v. Barclay, 106 Pa. 155. "Peirce v. Peirce, 199 Pa. 4, 48 ''Bush v. National Oil Ref. Co. 5 Atl. C89. W. N. C. 143; National Oil Ref. Co. "Marys v. Anderson, 24 Pa. 272. v. Bush, 88 Pa. 335. 132 LANDLORD AND TENANT. claim which he has against the plaintiff for the use and occu- pation by the latter of his land;** and the owner's claim can be made in the distribution of the estate of the occupant in the orphans' court.^" When sued by the tenant, the landlord can set off rent due. But if the action is in tort, e. g., for converting the personal property of the lessee on the premises, set-off will not be allowed.'*^ 161. Warrant of attorney. — The lease may authorize the con- fession of a judgment for the rent,^^ and, in addition, the con- fession of a judgment in ejectment.^^ A judgment entered on confession, for the rent, may be set off against a judgment re- covered by the lessee against the lessor."* Where the rent ap- pears on the face of the lease, the prothonotary may enter judgment without appearance of an attorney, though the terms of the warrant are that "any practising attorney of any court of record of Pennsylvania," or the "lessee," may appear and confess judgment. The prothonotary may properly assume that the whole rent is unpaid. The possibility that some of it has been paid does not take from him the power to enter judgment. If the warrant authorizes judgment for rent "due or to become due," judgment can be entered for all the rent that is yet to accrue, as well as that which has accrued, and execution can issue from time to time as the instalments become payable. The judgment will be opened if it is for more rent than remains unpaid.^^ 162. The measure of compensation. — In the action for use and occupation, the sum recoverable represents, not the value "Seitzinger v. Alspach, 42 Phila. '''Yanko v. Leizerowitz, 18 Lane. L. Leg. Int. 68; Bressler's Appeal, 2 Rev. 1. ■^'ork Legal Record, 57. "Yanko v. Leiserowitz, 18 Lane. L. "Bardsley's Appeal, 20 W. N. C. Rev. 1. 90. ''Yanko v. Leizerovntz, 18 Lane. L. '^Lykens Valley Coal Co. v. Dock, Rev. 1. C2 Va. 232. "Fahey v. Howley, 22 Pa. Super. Ct. 472. ACTIONS FOR RENT. 133 of the use of the premises to the defendant, hut the value of it to the owner ; that is, what the owner could have got for it from others had the defendant not been in possession. A having let to B the right to take water from his premises, and B having continued, after the expiration of the lease, to take it, A's com- pensation should he measured, not by the worth of the water to B, not by the sum that B would have had to pay for the same amount of water had he procured it elsewhere, or by the loss he would have suffered had he failed to get a supply, bu1 by what A could reasonably and probably have got for the use of the water from other parties had the defendant given up possession at the end of the lease.^® It is intimated in iTZme v. Jacobs^'' that the defendant, occupying a farm belonging to another, without having expressly agreed to pay any rent, might show, when sued for the use and occupation, the expenses and products of the farm, and expenditures for repairs without which the premises would not have been tenantable and rentable, and that it would be an answer to the plaintiff's claim to show that the occupation had not been beneiicial ; but it was held that, when there was an express agreement to pay a "reasonable rent," the occupant, like an ordinary tenant, could not set up that the premises were untenantable, could not reduce the rent on ac- count of repairs made by him, and that the bad condition of the premises could only be shown as bearing on the question of what would be a reasonable rent. If an executor having charge of the realty of the decedent renders an account to the widow, who is entitled to one third of the rents, and who is in possession of a house, and in this account charges her with $300, the an- nual rent of the house, there having been no agreement between them as to the proper rent; and if she objects to the rent, and '^WilUams V. Ladew, 171 Pa. 369, by showing the plaintiff's interfer- 33 Atl. 329. encea with his possession. Harris " 68 Pa. 57. The occupant may v. Watson. I Phila. Leg. Int. May 8, reduce the amount to be recovered 1844. 134 LANDLOIID AND TENANT. it is then agreed that the rent shall be thereafter agree'd upon or otherwise determined, — the reception by her of semi-annual accounts for five years thereafter, charging her with the same rent, without provoking dissent from her, will not make them accounts stated, and determine the amount of rent for which she shall be liable. Some agreement is necessary, or a jury must determine.^^ 163. Lease by tenants in common. — When a lease is made by several tenants in common, and the lessee promises to pay, not to each his individual part of the rent, but to them all the gross sum, the action must be by all for the whole rent. It cannot be brought by one for his fractional share of the rent.^* But in iSwint V. McCalmont Oil Co.,^" where, a lease having been made by two, the rent had been paid to one, and the other then brought an action against the tenant for his share of it, Will- iams, J., said that while a payment to the other colessor of all the rent, without notice from the plaintiif to pay his share to him, was, as against the plaintiff, a good payment, the plaintiff could notify the tenant thereafter to pay his share to him, and that a payment, in disregard of the notice, to his colessor, would not be valid as against him. 164. Action by stranger to lease. — If a lease provides that, since the title to an undivided half of the land is in dispute, the tenant may retain one half of the rent, after the success of the claimant in ejectment, until it shall be determined to whom the other one half shall be due and payable ; and that, should the tenant be legally required to pay one half of the rent to the claimant for the entire term, he shall be allowed to apply all the rent to the claimant until he has received as much as the lessor; and that, if the dispute between the claimant and the lessor should not be determined by June 1, 1898, the tenant ''Peirce v. Peirce, 199 Pa. 4, 48 " 184 Pa. 202, 63 Am. St Rep, Atl. 689. 791, 38 Atl. 1021. "Marys v. Anderson, 24 Pa. 272. ACTIONS FOR RENT. 135 shall withhold all the rent until the dispute is determined, — the claimant, on succeeding, may maintain an action on this cove- nant, though not a party to it, for the rent retained by the tenant, and also on the contract of X whereby he guaranteed the faith- ful performance of the tenant's duties."^ 165. Agent; principal.— The lease being made by A, agent for X, the action is properly brought by A, agent for X."^ When the lease is in the name of the principal, but is executed by an agent, and the declaration so states, it should further state, under the practice of Luzerne county, the nature of the agency or how it was constituted, in order to entitle the plaintiff to a judgment for want of a sufficient affidavit of defense.®^ 166. Privity with lessor. — There must be privity of contract or estate to support the action of assumpsit (or, formerly, debt) by the plaintiff. If he did not make the lease, and is not privy to the lessor by grant, devise, or inheritance, he cannot sue on it.^* After an assignment by B, the lessee, to X, B, a corpora- tion, was consolidated with corporations C and D, and the debts of B, C, and D were by statute imposed on the consolidated com- pany. As no transfer from X was shown to this company, the company was not liable in an action on the lease by the lessor or his alienee.®^ 167. Declaration. — The court on rule will require a more spe- cific statement, if the one filed does not clearly show whether a determinate rent is claimed, or only compensation for use and occupation.^* 168. AfBdavit of defense. — A written lease is an instrument, "'^Kennedy v. Duggwn, 23 Pa. Cb. the lease, notwithstanding his as- Ct_ 625. signment of it. Why this liability ^'Philadelphia Fire Extinguisher did not devolve on the consolidated Go. V. Brainerd, 2 W. N. C. 473. company does not appear. "^Lane v. Nelson, 2 Pa. Dist. R. 18. "Diehl v. Bockius, 1 Pa. Dist. B. '^Mackey v. Robinson, 12 Pa. 170. 479. Cf. Lomis v. Ruetter, 9 Watts, ^'Acheson v. Kittaning Consolidat- 516, as to filing statement under act rd Natural Oas Co. 8 Pa. Super. Ct. March 21, 1806, § 5, 477. But B continued liable under 136 LANDLORD AND TENANT. in a suit on which judgment can be taken for want of an affi- davit, or of a sufficient affidavit, of defense.*'' If the affidavit admits the rent to be due, but denies the right of the plaintiff, — e. g., claiming the land under a will of the lessor, whose validity is contested, judgment will be entered for the sum admitted to be due, and tlie defendant will be allowed to pay it into court.®* The affidavit is, for the purpose of preventing judgment, as- si.inied to be true, and though it avers that a clause is in the lease which, on the exhibition of what purports to be the lease by the plaintiff, is not found in it, its verity must be assumed. ''^ The- plaintiff's claim being for $117.04, with interest from August 8, 1886, and not specifying the period during which it accrued,, an affidavit alleging that on August 8, 1886, only $83.25 rent for five months remained unpaid, all previous rent having been paid, is sufficient. No greater particularity in it than is ob- served by the plaintiff in his affidavit of claim will be required.^" The affidavit alleged that three months before the close of the term of one year, the lessor leased the premises to the affiant for another year, but six weeks afterwards the lease was revoked,, and he was notified to quit at the end of the current year ; that he did so ; that he had, during his occupancy, spent $7 for win- dows and a door ; that he had been obliged to taie another house which was unsuited for his business; had incurred $6 expense in moving an^ loss of time ; that he had spent $12 for blinds and carpets to make the new place tenantable ; that he had suffered a loss in his cigar trade, and had been specially damaged $50, — an amount exceeding the rent. The affidavit was held to be in- sufficient.^^ The lease granting to the tenant the free use of a road to a point beyond the premises, and of water in lessor's well, an affidavit simply saying that the lessee "had not the free "Frank v. Maguire, 42 Pa. 77 ; '"Cochran v. Emmeretz, 3 Del. Co. ilaull V. Lowery, 1 W. N. C. 169. Rep. 433. '^Dietrich v. Dietrich, 154 Pa. 92, '^ Smith v. Mishler, 7 Lane. L. Rev. 25 At!. 1080. 109. "Enerr v. Bradley, 105 Pa. 190. ACTIONS FOR RENT. 137 use" of the road and water, without saying that this want of use was due to acts for which the lessor was responsible on the cove- nant, is insufficient to prevent judgment.''^^ Under a lease in which the lessor reserved the right to take iron ore from the premises, and also a certain royalty, and stipu- lating for a settlement at the end of every year, the plaintiff filed a statement claiming the amount stated by the lessee's book- keeper to be due. An affidavit that defendant did not think that he owed so much, and that he could not know without con- sulting the bookkeeper, who was sick, was insufficient''^ It need not be said that the facts averred in the affidavit must constitute a valid defense; otherwise, it will be insufficient.''* When the groimds set up in the affidavit of defense do not traverse the ob- ligation declared in the statement, but are in the nature of con- fession and avoidance, in reduction of or set-off to the payment sued for, the averment in the affidavit must be specific as to the amounts claimed in reduction, so that plaintiff may, if he choose, elect to admit them and take judgment for the balance.''® 169. Proof of execution of lease; oyer. — Under a rule of court that the execution of a written instrument need not be proved, unless it has been denied by the affidavit of the defendant, filed before the trial, the execution of a lease need not be proved, in the absence of such affidavit.''^ The defendant might, in cove- nant on a lease, pray oyer of the original lease; and a rule to show cause why the demand for oyer should not be stricken off will be discharged." 170. Exemption. — The tenant may retain $300 worth of prop- erty against an execution for rent, and also against distress. He '''Dewey v. Dupuy, 2 Watts & S. Chambers v. Smith, 183 Pa. 122, 38 553. Atl. 522. '^Evans v. Lanigan, 1 W. N. C. '"^Cosgrave v. Hammill, 173 Pa. 299. 207, 33 Atl. 1045. ".Wa«!Z V. iowery, 1 W. N. C. 169; ^'Ahrns v. Chartiers Valley Gas Evans v. Lanigan, 1 W. N. C. 299; Go. 188 Pa. 249, 41 Atl. 739. Dewey v. Dupuy, 2 Watts & S. 553; "Frick v. Bugle, 1 Pa. Co. Ct. 572. 13S LANDLORD AND TENANT. may waive this privilege in the lease/* or elsewhere; and if he does, his claim for exemption against a fi. fa. issued by the land- lord/^ or against an attachment of a debt due him by a third person/" will be disallowed. A stipulation by the lessee that all personal property on the premises shall be liable to distress and may be destrained and sold for rent, and that the lessee waives all right under the exemption law to exemption of such property from levy and sale, will be understood to waive the ex- emption only with respect to a distress, and not to an execution, or to an attachment execution.*' But the words, "And the lessee hereby expressly waives the benefit of all laws and usages exempting any property from distress or execution for rent, the lessor not waiving any remedies given by existing laws," waive the exemption as respects not only a distress, but also an execu- tion, or an execution attachment.*^ To get advantage of the waiver it is not necessary that the judgment should recite a waiver. A waiver in tlie contract will control the execution, and it may be proved either by the judgment, when the judgment recites it, or by proof aliunde.^^ 171. Jurisdiction of justice. — A justice of the peace may en- tertain a suit for rent, when it does not exceed $300. The 6th section of the act of March 22, 1814,** expressly conferred ju- risdiction in all cases of rent not exceeding $100, and the amount was increased to $300 by the act of May 29, 1879.*^ If the defendant makes oath before the hearing that the title to the ^Mitchell V. Coates, 47 Pa. 202; ^Beatty v. Rankin, 139 Pa. 258, Beatty v. Rankin, 139 Pa. 358, 21 21 Atl. 74. The fact that the judg- Atl. 74; Smith v. Mishler, 7 Lane. L. ment of a justice recites the waiver Rev. 169. is not material. "Smith V. Mishler, 7 Lane. L. Rev. " 1 Pepper & L. Digest, 2550 ; 6 169. Smith's Laws, 182. '^Beatty v. Rankin, 139 Pa. 358, ''P. L. 194; Beatty v. Rankin, 21 Atl. 74; Mitchell v. Coates, 47 139 Pa. 358, 21 Atl. 74; Royer v. Pa. 202. Ake, 3 Penr. & W. 461; Lower v. "Mitchell V. Coates, 47 Pa. 202. Hummel, 21 Pa. 450. '^Beatty v. Bankin, 139 Pa. 258, 21 Atl. 74. ACTIONS FOR RENT. 139 land will come in question, the justice should dismiss the pro- ceedings, according to the 2d section of the act of March 22, 1814;^^ though ordinarily the lessee cannot question the title when sued for the rent.*'^ The tenant is entitled to appeal from the justice's judgment, unless he has waived the right; the de- nial of the appeal to the tenant under the 12th section of the act of March 28, 1804, applying only to proceedings to defalk against rent** The lease, however, may contain a waiver of ''all right to an appeal, writ of error, or certiorari to any judgment, order, or decree that may be given or entered by any court, al- derman, or justice of the peace" against the lessee. When the lease contains this or a similar provision, the justice will not be compelled to allow an appeal,*** and if he does allow it, it will be stricken off.»» 172. Limitations. — The action for rent must be brought with- in the time prescribed by the statute of limitations. All rent becoming payable within six years of the issue of the summons is free from the bar, although the period for possession during which it, or some of it, is the consideration, precedes the com- mencement of the six years. Thus, if rent is payable for a year, at the end of the year, the rent for a year whose termina- tion is not more than six years before the issue of the writ may be recovered.** If for a term of four years the rent was payable, in one sum, at the end of that time, and the end of that time was within six years prior to suit, the rent for the whole term is re- coverable.*^ The statute has no application to any rent falling due imder a seaied lease,"^ but it has been held that, the definite ^Williams v. Smith, 3 Clark "m'Glure v. M'Clure, 1 Grant Cas. ruary 7th f^ or notice April 2d, appraisement April 8th f* notice April 27th, appraisement May Sd.''^ The notice being given January 5th, the appraisement on January 10th was too soon,"" as was one held on December 2d, the notice of the dis- tress having been given ISTovember 27th."'^ The notice being given on Tuesday, July 22d, and the fifth day being Sunday, the appraisement could not be held until Tuesday, July 29th."* If the sixth day after that on which the notice of the distress has been given is Sunday, the appraisement would not be held until the next day. If the notice of distress is actually served on the tenant on February 1st, the appraisement held on Feb- ruary 7th is not too soon, though the notice mistakenly bears date of February 2d."* 286. Effect of premature appraisement and of no appraisement. — If the appraisement is altogether omitted, and the goods are sold by the landlord, he becomes a trespasser ab initio, and a recovery can be had against him in trespass.'^" If an appraise- Hampton, 1 Serg. & R. 411; Dufy v. "Brishen v. Wilson, 60 Pa. 452. Ogde^i, 64 Pa. 240; Ege's Appeal, 2 '^Dacis v. Davis, 128 Pa. 100, 18 Watts, 283; Green's Appeal, 6 Watta Atl. 514. Cf. Re Goswiler, 3 Penr. & S. 327; Marks v. Russell, 40 Pa. & W. 201. 372. "Whitton v. Milligan, 153 Pa. '■'lUd. Wain V. Einng, 7 Phila. 376, 26 Atl. 22. 195. ^'Richards v. McGrath, 100 Pa. ''Whitton V. Milligan, 153 Pa. 376, 389; Kerr v. Sharp, 14 Serg. & E. 26 Atl. 22. 399; Hazlett v. Mangel, 9 Pa. Super. "'Rosenberger v. Hallowell, 35 Pa. Ct. 139; Ohristman v. Geise, 1 369. Chester Co. Rep. 342; Wi/ke v. Wil- "Richards v. McGrath, 100 Pa. son, 173 Pa. 12, 33 Atl. 701. The dis- 389. tress was made on March 17th. The "McLean v. McCaffrey, 3 Pennyp. sale, without appraisement, took 406. Written notice being given place on March 30th. The statute, May 25th, although there had been Geo. II., chap. 19, which mitigates earlier parol notice, the appraise- the liability of a landlord in this re- ment on May 30th was premature, spect, has not been adopted in Penn- Snyder v. Boring, 4 Pa. Super. Ct. sylvania. 196; Blair v. Boring, 200 Pa. 27, 49 Atl. 365. 236 LANDLORD AND TENANT. ment is held a day too soon, and the goods, though advertised to be sold also on a day too soon after the appraisement, are re- plevied before the day set for the sale, the landlord is not a trespasser ah initio, and the tenant cannot recover in the re- plevin.''^ But if the sale is made on such premature appraise- ment, the landlord becomes a trespasser ah initio,''^ and is liable to the owner of the goods for their full value, and the purchaser at the sale acquires no title. "The unlawful act of purchase itself is a conversion."''^ The constable who sells after a prema- ture appraisement, after obtaining a bond of indemnity from the landlord to protect him from harm for levying on goods of a stranger, can maintain no action on this bond after being com- pelled to pay damages to the tenant, the landlord not having advised the premature appraisement.'* 287. Delayed appraisement. — There may be justification for a delay beyond the minimum period prescribed in the act of 1772, in making the appraisement. Thus, the tenant may eloign the goods a day or two after the distress, and they may not be found early enough to appraise them on the sixth day after the distress. An appraisement, under such circumstances, on the eighth day, was apparently approved in Woglam v. Cow- perthwaiteJ^ Though a premature appraisement will not sup- port a sale, it does not discharge the right of the landlord to retain the goods.'" There must be, therefore, a right to hold a second appraisement even beyond the normal time for the first. 288. Who may be appraisers.— The 1st section of the act of March 21, 1772,'^ directs that the person distraining shall "McLeam v. McCaffrey, 3 Pennyp. ''^Brishen v. Wilson, 60 Pa. 452. 406. The distress was on January '"Blair v. Boring, 200 Pa. 27, 49 5th, the appraisement on January Atl. 365. 10th, the sale was advertised to oc- "2 Dall. 68, 1 L. ed. 292. cur on January 16th, the replevin ''"McLean v. McCaffrey, 3 Pennyp. was commenced January 14th. Cf. 406. Smoyer v. Roih (Pa.) 13 Atl. 191. "1 Pepper & L. 2640; 1 Sm. L. '-Snyder v. Boring, 4 Pa. Super. 370. Ct. 196; Davis v. Davis, 128 Pa. 100, 18 Atl. 514. DISTRESS; PROCEDURE. 237 "cause tlie goods and cliattels so distrained to he appraised by two reputable freeholders, who , . . first take the follow- ing oath or alRnnation: I, A. B., will well and truly, accord- ing to the best of my understanding, appraise the goods and chattels of C. D., distrained on for rent by E. E. Which oath or afhrmation such sheriff, under sheriff, or constable [aiding in the distress] are hereby empowered and required to adminis- ter." An appraisement by three persons is irregnalar. The ap- praisers must be freeholders. A tenant from year to year is not such.'* They should not be minors. An appraisement by three who are non-freeholders, and one of whom is a minor, is not such as the law prescribes as a condition precedent to a lawful sale. The sale would be a trespass.''^ The landlord is not converted into a trespasser by the appointment, without his consent or knowledge, of a non-freeholder as appraiser.^" The oath is ad- ministered by a magistrate or justice of the peace, or by the sheriff, under sheriff, or constable. The omission of the ap- praisers to be sworn or affirmed will not make the landlord a trespasser, he having no knowledge of that fact. 289. The appraisers' inventory. — The appraisers may adopt the list of articles, made by the bailiff, and of which a copy is •embraced in the notice of distress, appending to the names of the various articles tlieir valuations ; or they may make another, identical as respects the things contained in it. The oath or affirmation of the appraisers is properly plae«d at the top of the inventory. 290. "Waiver of appraisement. — The person for whose sake the law has required the appraisement may waive it. The tenant, ■e. g., may, before any levy, waive it in his lease, or, informed of a distress actually made, may waive it, effectually.^^ He can- '"Fretton v. Karcher, 77 Pa. 423. "-EolUnd v. Toionsend, 136 Pa. '"Snyder v. Boring, 4 Pa. Super. 392, 20 Atl. 794 ; Briggs v. Large, 30 €t. 196. Cf. Blair v. Boring, 200 Pa. Pa. 287. Cf. Murphy v. Ohase, 103 27, 49 Atl. 365. Pa. 260. ^Fretton v. Karcher, 77 Pa. 423. 238 LANDLORD AND TENANT. not, having done so, maintain that in tlie further retention or the sale of the goods the landlord is a trespasser. But if the goods belong to another than the tenant, and the tenant has no express authority to waive the appraisement for the owner, a waiv'er by him will be void as to the owner, who may treat the landlord as a trespasser. !N^or does the right thus to treat the landlord as a trespasser depend on his having had knowledge Avho the owner was. Even if he is ignorant that anyone else than the tenant is owner, he acts on the tenant's waiver at his own risk. Should someone else be owner, he is, when he sub- sequently sells the goods, as to such person a trespasser.^- But it is held in Smoyer v. Boili^^ that, the object of the appraise- ment being that the owner may know the sum at which he can redeem his goods, if he resorts to replevin, this object is ac- complished, and therefore the replevin is a waiver, by the plain- tiff, of the omission to appraise. An act which might be a waiver by A could not, unless he was authorized to do it, affect his wife. Thus, his being present at the sale and assisting in it by handing out the goods would not be a waiver by her of the omitted appraisement, or an estoppel against setting it up.^* Though in the lease, the tenant, as security for rent, authorizes the landlord, when rent is unpaid, to seize all his property on the premises and sell it on three days' notice, if the landlord chooses to distrain on the property as the tenant's he must ap- praise according to law.*^ 291. Object of the appraisement. — The purpose of the ap- praisement has been variously stated. According to Thompson, ''Harris v. ShoAJO, 17 Pa. Super. Ct. "Smoyer v. Roth (Pa.) 13 Atl. 1; Briggs v. Large, 30 Pa. 287; 191; Jo/i/ison v. Bfacfc, 15 Phila. 252, Johnson v. Black, 15 Phila. 252, 9 9 W. N. C. 438. W. N. C. 438. In Henkels v. Brown, ^'Chr'istman v. Geise, 1 Chester Co. 4 Phila. 299, the court found that, Rep. 342. the tenant claiming furniture under "TVi/fce v. Wilson, 173 Pa. 12, 33 a conditional sale, he was as to cred- Atl. 701. itors, and therefore as to the land- lord, the owner. Hence his waiver of the appraisement was valid. DISTRESS; PROCEDURE. 239 J., it is required "so that excessive distress may not be made."*'' It is elsewhere said tliat its object is to enable the owner to know at what sum he can redeem the goods. ^'^ It accomplishes neither object perfectly. The appraisement may represent the opinions of the appraisers. Their estimate may be above or below the real values, or prices that will be produced at a fair sale.*^ The landlord is not bound to stop the sale when the sum of the ap- praised prices of tlie articles already sold equals the rent and costs, if the sum of the prices actually obtained is less. So, the tenant cannot redeem the goods by tendering the appraised value, since they might, at a sale, bring more. It is only by tendering the rent in arrear, and the costs, tbat he can pre- vent the sale.^° Should it be alleged, however, that the land- lord or ofScer has misconducted the sale so as to sacrifice the property, the appraisement will be some evidence of its value. 292. The sale of the goods. — At common law the landlord had no power to sell the chattels distrained upon ; nor did he ob- tain this power in England until the statute of 2 Wm. & Mary, chap. 5, § 2.^° The provisions of this statute were incorporated into the act of March 21, 1772,*^ the 1st section of which directs, after requiring an appraisement, that the person distraining, with the sheriff or other officer, "shall or may, after six days' public notice, lawfully sell the goods and chattels so distrained, for the best price that can be gotten for the same, for and towards satisfaction of the rent for which the said goods and chattels shall be distrained, and of the charges of such distress, appraisement, and sale, leaving the overplus, if any, in the hands of the said sheriff, under sheriff, or constable, for the owner's use." Prior to this provision, there was no power to sell the distress in Pennsylvania.®^ ''Briggs v. Large, 30 Pa. 287. ''Richards v. MoGrath, 100 Pa. 389. "Smoyer v. Roth (Pa.) 13 Atl. '"Woglam v. Couperthwaite, 2 191; Johnson v. Black, 15 Phila. Dall. 68, 1 L. ed. 292. 252. "1 Pepper & L. Digest, 2640; 1 ^ Cf. Kline v. Lukens, 4 Phila. Smith's Laws, 370. 296. "Davis v. Davis, 123 Pa. 100, 18 240 LANDLORD AND TENANT. 293. Duty to sell. — The person who distrains may not be in- ferred, from the words "shall or may," to have an option to sell or not. He may, of course, relinquish the \eyj ; or he may wait a reasonable time after appraising before selling ; but he cannot indefinitely hold the goods, as he could before the statute, as a means of coercing payment.®^ "The duty," remarks Green, J., ^'to sell the distress, is imperative."^* Of course, he is liberated from, this duty if he relinquishes the distress, or if it is dis- charged by a replevin begun by the tenant. 294. Advertisement of sale.— The act requires that the sale shall be preceded by "six days' public notice." The notice may be given at any time after the appraisement has been made, even on the same day.**^ Thus, the distress having been made and no- tice thereof given on February 1st, and the appraisement having been held on February 7th, the noti^'e of a sale to be had on Feb- ruary 13th was properly given on February 7th.^' The ad- vertisement of the sale may be given the day following that on v^hich the notice of the distress is given, or "at any time after the appraisement."®^ Though the delay in advertising must not be capricious or unreasonable, there are circumstances which will justify it. The advertising is by means of handbills, either on the premises or in the neighborhood.®^ The law does not prescribe the form of the notice, but requires that it be given publicly and for the specified time.®* In Caldcleugh v. Hol- AtL 514; Richards v. McGrath, 100 "Brisbenv. Wilson, 60 Pa. 452. In Pa. 389; Eazlett v. Mangel, 9 Pa. Holland v. Townsend, 136 Pa. 392, Super. Ct. 139. 20 Atl. 794, the distress was levied ''Quinn v. Wallace, 6 Whart. 452. August 10th. On August 16th an "Holland v. Toxonsend, 136 Pa. appraisement was waived. On Au- 392, 20 Atl. 794; Richards v. Mc- gust 18th a sale was advertised for Grath, 100 Pa. 389. August 24th. The delay was caused '^Whitton V. Milligan, 153 Pa. 376, by the request of the tenant. 26 Atl. 22. "'Briggs v. Large, 30 Pa. 287 ; Per- "Whitton y. Milligan, 153 Pa. 376, rin v. Wells, 6 Kulp, 313. 26 Atl. 22. "Perrin v. Wells, 6 Kulp, 313. DISTRESS; PROCEDURE. 241 lingsworth^'^^ a notice was put in a newspaper, and handbills were posted on the premises. 295. length of the notice.— The act of 1772 directs that the sale may take place "after six days' public notice." It has not been understood that six full days must intervene between the close of the day on which the notice is first given and the com- mencement of that on which the sale is to occur. The sale can be advertised to take place, and it may take place, on the sixth day following the close of the day of the giving of the notice. Thus, notice given on February 7th of a sale on February 13th,i''i or on August 18th of a sale on August 24th,"2 was proper. If the sixth day after that on which the notice is made public is Simday, the sale will be on the seventh day.^°^ 296. Effect of omitting to advertise. — The advertising of the sale is a prerequisite to its validity. Omission of it makes the landlord a trespasser if he causes a sale,-'"* and it renders the sale invalid, and the purchaser thereat acquires no title as against the tenant or other owner. The burden, in a replevin by the purchaser to recover the property, is upon him to show that the sale was duly advertised, since the presumption that an officer does his duty is not applicable to the bailiff, though a constable, because he acts as agent of the landlord, and not as an officer.^""' 297. Waiver of advertising or of punctuality in advertising. — The advertisement of the sale is for the benefit of the tenant or owner. It gives him a further notice of the impending loss of his property. It also tends to secure the attendance of bidders, and to increase the price at which the goods will sell. The ten- ant may waive the advertisement altogether, as respects himself, 1"° 8 Watts & S. 302. Kerr v. Sharp, 14 Serg. & R. 399 ; "^WUtton V. Milligan, 153 Pa. 370, Perrin v. Wells, 6 Kulp, 313; Ester- 20 Atl. 22. h/ Mach. Co. v. Spencer, 147 Pa. 466, ^'-Holland v. Townsend, 136 Pa. 23 Atl. 774. 392, 20 Atl. 794. '''^Murphy v. Chase, 103 Pa. 260; ^"'Wailt v. Ewing, 7 Phila. 195. Perrin v. Wells, 6 Kulp, 313. ^'^Briggs v. Large, 30 Pa. 287; Land. & Ten. 16. 242 LANDLORD AND TENANT. though not as respects another person who is owner of the goods.' o" 298. Postponement of sale. — Various causes may prevent a sale on the day first ad\'ertised. The rent, e. g., may on that day be paid by a surety of the tenant/"'^ or by the tenant him- self. Inhere may be no persons present, or, if present, none of them may bid. The sale, under such circumstances, should be adjourned. ■'"^ "The sudden and severe illness of either the ten- ant or the landlord, or the death of either party, or the pendency of negotiations, or the occurrence of fire in the building where the distress is impounded, at the time of the sale, or the nonat- tendance of bidders, or very great inadequacy of bids, — in short," says Green, J., "many quite unforeseen events may read- ily occur which would make an adjournment quite necessary. The act simply requires a notice of at least six days before mak- ing the sale. It is therefore indispensable that a public notice of that length be given, but, beyond that, nothing is required by the act as a prerequisite to a perfect sale. A power of adjourn- ment is incident to a power to sell, unless an adjournment is pro- hibited by express words or necessary implication, but there is nothing of that kind in this act."'"* The sale in this case was adjourned by the bailiff without notice to, or the knowledge of, the tenant, from August 24th to August 31st. This did not make the landlord a trespasser, though no cause for the adjourn- ment was shown by hircu The act of 1772 does not so peremp- torily require a sale on the sixth day from the first appearance of the notice, or on the day named in the first notice, as to throw on the landlord the duty of explaining the postponement in order ^'"Briggs v. Large, 30 Pa. 287. Cf. not go on, but afterwards the con- JVyhe V. Wilson, 173 Pa. 12, 33 Atl. stable readvertised a sale, which was 701. hold. ^'"Gvckert v. Loime, 118 Pa. 289, "^Rickctts v. Unangst, 15 Pa. 90, 12 Atl. 282. The landlord assigned 53 Am. Dec. 572. liis warrant and claim for rent to one ""Holland v. Toionsend, 136 Pa. named by tlie surety. The sale did 392, 20 Atl. 794. DISTRESS; PROCEDURE. 243 to avoid liability as a trespasser.^ ^^ In Perrin v. WeZZs"^ the sale was postponed from August 7th to August 14th, and in Calddeugh v. HoUingswoHh^^^ it was adjourned from June 22d to Jmie 28th. In Bogert v. Battertov}'^^ the landlord received notice from X on the day of sale that the goods did not belong to the tenant, but to him. The constable thereupon adjourned the sale for a week to allow X to replevy the goods. X not re- plevying meantime, the sale was then made. The purchaser thereat acquired a good title. If at the request of the tenant the landlord consents to a postponement of tlie sale for a few days, the landlord probably does not thereby postpone his distress to an intervening execution, or, if he does, he does not lose the landlord's right to take out of the proceeds of an execution sale the rent of one year.^-'* 299. Preventing sale by payment. — The tenant may prevent a sale by tendering the rent due for which the distress has been made, and the costs. If the sale has begun, some things hav- ing been already sold, a tender of the difference between the price at which they have been sold and the rent, and costs, will make the continuance of the sale a trespass. The tender may be made at an adjourned sale, as well as at the original, witli the same effect. Of course the tender would be effectual if made by the agent or attorney of the owner of the goods. "A tenant," says Trunkey, J., "ought to be permitted to pay the money nec- essary to satisfy the warrant, whenever he can, with the same effect as if the money were made by sale of his goods. The chief object of the statute is to enable the landlord to collect his rent, ^"Quinn v. Wallace, 6 Whart. 452. Ct. 383, notice being given at the "' 6 Kulp, 313. The landlord does sale that the goods belonged to u, not become a trespasser by adjourn- stranger, it was held to be the duty ing the sale, though he shows no of the landlord to adjourn the sale, cause for so doing. to give him an opportunity to ro- "= 8 Watts & S. 302. plevy. "' 6 Pa. Super. Ct. 468. In Tin- ^^*KUne v. Lukms, 4 Phila. 296. ware Mfg. Co. v .Duff, 15 Pa. Supsr. 244 LANDLORD AND TENANT. not to sacrifice his tenant's property."^^® The tender may prob- ably be effectively made by the owner of the goods, as well as by the tenant, and also by the surety of the tenant. The ques- tion whether if it is made by a surety and is accepted by the landlord, the sale can proceed for the advantage of the surety, or of another to whom, at his instance, the landlord as- signs his warrant, was decided negatively by Collier, J., in Guckert v. Lowrie,^^^ who held that the continuance of the sale was a trespass. If the assignee of the term in possession of the premises should, as respects his assignor, pay the rent, his tender of it, followed by constant readiness to pay it, will make a dis- tress on the goods of the lessee, his assignor, unlawful. The goods can be replevied.^ ^'^ 300. Who conducts the sale. — The 1st section of the act of March 21, 1772,^^^ directs that the person distraining shall or may, with the sheriff, under sheriff, or constable, cause an ap- praisement, and after such appraisement and six days' public notice shall or may sell tlie goods. "If any other than the sher- iff, under sheriff, or constable," says Kennedy, J., "be made bailiff and distrain the goods of the tenant, such an officer must be called in to the appraisement of the goods and to sujoerintend and conduct the sale of them in all cases, as directed by this act."^^® Lewis, J., remarks "that the constable is not bound to make a distress for rent, and that the law only requires his inter- ference after the distress made, should an appraisement and sale ^^'Richards v. McGrath, 100 Pa. is the duty of one who claims to 389. have tendered the rent, and who has "' 118 Pa. 289, 12 Atl. 282. The begun replevin, to keep up the tender supreme court reversed because it or to bring the money into court, did not appear that the assignee in Gallagher v. Burke, 4 Del. Co. Rep. any way caused the sale to continue. 136. In Com. V. Sheppard, 2 Clark (Pa.) '"1 Pepper & L. Digest, 2640; 1 393, money paid to a constable was Smith's Laws. 370. sued for on his bond. ""Wells v. Hornish, 3 Penr. & W. "'Lt/on V. Eouk, 9 Watts, 193. It 30. DISTRESS; PROCEDUEE. 245 become necessary. "^^'^ In Com. v. Sheppard,^^^ Stroud, J., as- serts that a constable may be compelled to assist in the collection of rent by distress. "Although he is not bound, perhaps, to perform the part of an auctioneer, or act as bailiff generally, yet there is nothing to disable him from so doing, and the practice has long obtained, probably before the passing of this act [of March 21, 1772], of confiding the whole conduct of a distress for rent to this class of officers." At all events, the ofiicer takes charge of and conducts the sale.^^^ 301. Conduct of the sale. — The sale is made in the mode in which sheriffs' or constables' sales are made. Goods must be sold separately or in parcels, not the entire stock in the mass. They may be sold in such lots or parcels as shall be best calcu- lated to bring the highest price. If sold in too large parcels, the injured party may have a remedy, formerly not in trespass, but on the case.-"^^ A sale in the lump, of from 500 to 1,000 extra parts of harvesting machines, having in Philadelphia, the place of sale, no general value, for $65 (the owner estimating them at $1,500), did not make the landlord a trespasser.-!^* 302, The proceeds of sale. — Ordinarily, the landlord is en- titled to so much of the proceeds of sale as is necessary to pay the rent in arrear. They cannot be ordered to be paid into court.!^^ Since labor claims are entitled by the acts of April 9, 1872,12^ and May 12, 1891,12'' ^^ ^ preference to the landlord, the constable who makes the sale must pay them before the land- ^'"McElroy v. Dice, 17 Pa. 163. A ^'Gucliert v. Lowrie, 118 Pa. 289, landlord's warrant is not legal pro- 12 Atl. 252. cess. Until appraisement has been ^^Richards v. MoGrath, 100 Pa. made, the constable is only a bailiff. 389. Com. V. Nichols, 4 Pa. Dist. R. 318; ^"Esterly Mach. Co. v. Spencer, Com. V. Leech, 27 Pittsb. L. J. 233. 147 Pa. 466, 23 Atl. 774. ^^2 Clark (Pa.) 393. Hence, if '^Garrett v. Longnecker, 2 Legal the constable fails to pay over rent Record Rep. 174. paid to him by a tenant, after a dis- '"* P. L. 47. tress, to avoid a sale, he and his "'2 Pepper & L. Digest, 4787; P. sureties are liable on his official L. 54. bond. 246 LANDLORD AND TENANT. lord.'^' The surplus, in the constable's hands, is not subject to the execution attachment of the tenant's creditor.^^^ 303. Eescue of the distress. — The 2d section of the act of lYYS-'^" authorizes the person or persons "grieved" by any "pound-breach or rescous of goods or chattels distrained for rent," in a special action on the case to recover for the wrong sustained, "his, her, or their treble damages and costs of suit against the offender or offenders in such rescous or pound-breach, any or either of them, or against the owner or owners of the goods distrained, in case the same be afterwards found to have come to his or their use or possession." Eescous is defined by Blackstone-'^^ as the taking back by force of goods which have been taken in distress, which from the first taking are considered in the custody of the law. For this rescous, two remedies are mentioned, viz.j the writ of rescous when the goods were going to the pound, and the writ of pound-breach when they were actually impounded at the time of the taking. The statute of 2 "Wm. & Mary, chap. 5, also gave a remedy similar to that subsequently conferred in Pennsylvania by the act of 1772. The action can be on this statute against several, if they co-operate in the removal of the goods, and aa well against those who are not physically present and do not actually participate in the taking, as against those who are present and participate.^^^ Under the statute, treble damages can be recovered ; not treble the unpaid rent, or treble the value of the property eloig-ned. The costs of the dis- tress are not to be trebled; but the costs and expenses caused by the rescous or pound-breach; e. g., the cost of recapture of the goods, and of the taking care of them until they could be ^^Yeager v. Toole, 1 Dauphin Co. '^'Hanbest v. Heerman, 2 Walk. Kep. 120. He will be liable if he does (Pa.) 471. If any rent is due, thu not. f*et that the distress is for too large ^"Comfort V. Taylor, 1 Troubat & an amount will not justify the tenant H. Pr. § 1184, ed. 1848. in taking the goods without replevy- "" 1 Pepper & L. Digest, 2642 ; 1 ing. If he takes them he will be Smith's Laws, 370. liable in treble damages. McElroy "' 3 Com. 146. V. Dice, 17 Pa, 163. DISTRESS; PKOCEDURE. 247 made available for the payment of the rent. Cattle were dis- trained and impounded on the premises, in Delaware county. Three nights afterwards they were taken away secretly, and three days afterwards they were found in Philadelphia, on the premises of X. The landlord reclaimed them and took them back to Leiperville, Delaware county, and there impoimded them. Shortly afterwards the pound was broken and the cattle again taken, and a few days afterwards were found in X's stable. They were retaken and impounded in Chester and sold, bringing $230.50. The officers' charges were $79.31 costs, leav- ing $151.19 as the proceeds. The landlord claimed and was al- lowed as damages three times the value of the property not re- covered, and three times the depreciation and expense of what was recovered ; the expense including the care and feeding of the cattle while in the pound at Leiperville and Chester. If the goods eloigned are equal to the rent, the eloigner is liable, in the first instance, to three times the rent. A part of the distress being recaptured and kept until sale, he cannot have an abate- ment for this, without paying the expense necessary to his en- joyment of it.^^^ If it appears that the defendant, the owner of a piano let to the tenant with an option to buy, and left in the tenant's house after levy, removed it from the house -without knowledge of the distress, he will be liable in trespass only for actual damages; that is, when the value of the piano does not exceed the rent unpaid, and there are no expenses arising from an attempt at recovery of it by the landlord, the value of the piano, and not treble that value.^^* If, after levy and before ap- praisement, the tenant loads the goods on a wagon, and, in spite of the efforts of a constable to prevent him, carries them away, "^McElroy v. Dice, 17 Pa. 163. ing," he was not guilty of rescous ^^^Delp V. Hoffman, 7 Pa. Dist, E. or pound breach, because he did not 2.56. Had the defendant known of take the piano while it was being the distress, Frazer, J., says he would taken to a pound, nor did he break probably have been liable for treble into the pound and take it thence, damages, though, "strictly speak- 248 LANDLORD AND TENANT. he is not guilty of the crime of resisting the execution of legal process. A landlord's warrant is not legal process ;^^^ but it was larceny for the tenant, moving to another house after the dis- tress, and taking the goods with him, to deny access to them to the sheriff when he came to appraise them.^^^ ^^'Com. V. Niehols, 4 Pa. Dist. K. move thero, after levy, from the 318; Com. v. Leech, 27 Pittsb. L. J. house to another in the neighbor- 23.3. hood, with the knowledge of the dis- "'Com: V. Shertzer, 14 Lane. L. trainor. It is at most pound breach. Rev. 70. But it is not larceny for Com. v. Martin, 4 Lack. Jur. 93, 12 the owner of the goods merely to re- Pa. Dist. R. 644. CHAPTER XVII. REMEDIES FOR IMPROPER DISTRESS. 304. Distress for too much rent. 305. Excessive distress. 306. When no rent is in arrear. 307. Action not on 3d section, act of 1772. 308. Tenant's recaption of goods. 309. Irregularity in mode of making distress. 310. ^^lien the goods arc not distrainable. 311. Damages. 312. Set-off by justice. 313. Replevin. 3)4. Replevin; procedure 315. Set-off. 316. Set-off of taxes. 317. Damages. 318. Effect of replevin on lien of distress. 319. Assumpsit. 320. Tenant's remedies adequate. 321. Landlord's remedy against officer. 322. Liability of surety for rent. 304. Distress for too much rent. — There is a distinction be- tween excessive distress and distress for more rent than is due. The former consists in levying on much more goods than it is necessary to sell in order to raise the rent and costs; while the latter consists in demanding too much money as rent that is due, and causing the distress to be made for this money. If, e. g., the rent due is $80, and distress is made for $160,' or, if rent is payable haK-yearly on Oct 1st and April 1st, and the distress ^Spencer v. CUnefelter, 101 Pa. levied on, the averment that no rent 219; Thomas v. Gibbons, 21 Pa. was due, changed the cause of action Super. Ct. 635. An amendment of a from one for an excessive distress to declaration by substituting for its one in vrhich no right of distress for admission that $200 rent is due and any sum existed. Royse v. May, 93 tha.t property worth $2,000 was Pa. 454. 249 250 LANDLORD AND TENANT. issues in January for the half year payable in October, and for the quarter year from October to January,^ the distress is for too much rent, but not excessive. If rent of $20 were distrained on 20 cows, each of which was worth $30, the distress would be excessive.^ The distress is not for too much, if for the rent due, simply because the tenant has disconnected counterclaims which, in an action against him by the landlord, for the rent, he could defalk. The landlord must deduct from the rent, before dis- training, all payments, actual or constructive, on account of it But other claims of the tenant, especially claims for as yet unli- quidated damages,* do not need to be recognized by the landlord and subtracted by him from the rent, before distraining. For distraining for more rent than is due, both the landlord' and the bailifJ,^ whether constable or not, are liable. Nor does this liability depend on the presence of malice or want of probable cause, or of knowledge that the rent claimed is too large.'^ The proper remedy for distress for too much rent, prior to the aboli- tion of the distinction in form of action between trespass and trespass on the case, was trespass on the case,^ founded on the statute of Marlbridge, 52 Hen. III. chap. 4.® Where no cir- cumstances of aggravation are shown, and the distress has been sold, the damages are the fair value of the goods, with the cost of replacing them, and other actual injury. To these 'McElroy v. Dice, 17 Pa. 163. Rent 'McElroy v. Dice, 17 Pa, 103. due, $700; distress for $805. Fern- HIcElroy v. Dice, 17 Pa. 163; wood Masonic Sail Asso. v. Jones, Fernwood Masonic Hall Asso. v. 102 Pa. 307. Jones, 102 Pa. 307. "Rent $200; goods worth $2,000 'Fernwood Masonic Hall Asso. v. distrained on. Royse v. May, 93 Pa. Jones, 102 Pa. 307 ; Spencer v. CUne- 454. Rent, $33.34; goods appraised at fetter, 101 Pa. 219. $223.20. For the distinction vide 'Karns v. MeEinncy. 74 Pa. 387 ; Weher v. Leper, 16 Montg. Co. L. M'Kinney v. Reader, 6 Watts, 34; Rep. 70. Jimison v. Rcifsncidcr, 97 Pa. 130; 'Spencer v. Clinefelter, 101 Pa. Richards v. McQrath, 100 Pa. 389; 219. Thomas v. GibhonSj 21 Pa, Super. Ct. 'McKlroy v. Dice, 17 Pa. 103. Cf. 035. Bair v. Warfcl, 5 Lane. L. Rev. 81. REMEDIES FOR IMPROPER DISTRE&S. 251 sums interest may be added. The value of tlie goods is the value at the time and place at which they were dis- trained; not merely what they are worth for removal, but %\'hat they would have cost to procure others of like qual- ity, and put them in the same place. Compensation must also be allowed for the loss of the use of the goods during the time that must elapse before they can be replaced, and for actual loss, directly and clearly proved, to business.-"' The rent actually due and unpaid at the time of the distress must be deducted from the damages.-'^ The fact that after the distress has been made for more rent than is due, the tenant and landlord make a set- tlement of the account between them, and the former agrees that the sale may proceed for the amount thus ascertained, does not preclude recovery for damages suffered, unless such is the agree- ment, and though a sale may not take place, the tenant may ob- tain damages actually suffered.^^ Nor, for the purpose of miti- gating the damages, must the tenant resort to replevin^ ^ in order tx) prevent the sala Indeed, replevin would not lie if, rent be- ing due, a distress for any amount was lawful.^* 305. Excessive distress. — Besides distraining for too much rent when some is due, the landlord may act improperly in distraining on too many articles for a rent which is due. It would rarely be possible to find chattels whose price at the dis- tress sale would exactly coincide with the rent due and the costs attending the distress. Slight excesses of the values of the things levied on beyond the rent and costs, being unavoidable, are to be condoned.^ ^ Indeed, an excessive distress was, at the ^'Ferntcood Masonic Eall Asw. v. ^'McBlroy v. Dice, 17 Pa. 163. Jones, 102 Pa. 307. No damages can "Ewrns v. McEinney, 74 Pa. 387 ; be recovered by the tenant for the Jimison v. Beifsneider, 97 Pa. 136. seizure and sale of the goods of other In replevin, evidence that the dis- persons, in which he had no interest, tress was for too much was ir- '^Fernwood Masonic Hall Asso. v. relevant. ■Jones, 102 Pa. 307. '° In Spencer v. Clinefelter, 101 Pa. ''McElroy v. Dice, 17 Pa. 163. 219, for rent either of $80 or $160, 252 LANDLORD AND TENANT. early common law, "perfectly allowable, because it was more likely [than a moderate distress] to induce or compel the pay- ment of the rent due.''^® The statute of Marlbridge, 52 Hen. III. chap. 4, enacted however, "that distress shall be reason- able, not too great; and that he who takes great and unreason- able distresses shall be grievously amerced for the excess of such distress." Since this statute the remedy of the person ag- grieved by a distress which is excessive was formerly an action on the case and not trespass. -"^ It is now trespass. For vio- lation of this statute the landlord and bailiff are both liable. In replevin, no regard can be had to the exccssiveness of the distress. The plaintiff cannot recover if any rent was due, what- ever the disparity between the rent and the value of the articles levied upon.-'^ In Jimison v. Reifsneider^^ a distress for $675 rent was levied on goods of the tenant worth $5,000, and on goods of Eeifsneider worth $3,000. Although he requested the landlord to proceed first to sell the tenant's goods, the landlord refused, and thereupon Eeifsneider brought the replevin. Thereupon, relying on the replevin bond, he directed the bailiff to stop proceedings against the tenant's goods, and the latter resumed possession of them. In the replevin judgment was rendered for the bailiff. The tenant's right of action for an excessive distress does not pass, on his becoming insolvent, to his assignee. After an assignment in insolvency he can main- tain the action.^" The fact that the tenant receives the surplus of the money produced by the distress sale, after discharging the rent, or that suit for it is brought to his use, against the pur- distress was made on a house which Duncan. J., in O'Donnel v. Seyhert. 13 the tenant, having put it on the Serg. & R. 54, "has nearly superseded premises, had a right to remove. the common-law action." ^'WKinney v. Reader, 6 Watts, 34. ^Mintison v. Reifsncider, 97 Pa. "W Kinney v. Reader, 6 Watts, 34; 136. O'Donnel v. Seyhert, 13 Serg. & K. "97 Pa. 136. 54; Spencer v. Clinefe.Uer, 101 Pa. '"O'Donnel v. Seybert, 13 Serg. & 219; Thomas v. Gibbons, 21 Pa. ?>. 54. Super. Ct. 635. "The statute," says REMEDIES FOR IMJeROPEK DIKTEESS. 253 chaser at the distress sale, is no waiver of the right to recover damages. Recovery in it would be no bar to the action on the case for excessive distress, "nor," says Duncan, J., "ought it to go in mitigation of damages."^ ^ 306. When no rent is in arrear. — The 3d section of the act of March 21, 1772,^^ provides that "in case any distress and sale" shall be made, "for rent pretended to be in arrear and due, when in truth no rent shall appear to be in arrear or due to the person or persons distraining, or to him or them in whose name or names or right such distress shall be taken, the owner of such goods and chattels distrained and sold as aforesaid, his executors or administrators, shall and may, by action of trespass, or upon the case, to be brought against the person or persons so distraining, any or either of them, his or their executors or administrators, recover double the value of the goods or chattels so distrained and sold, together with full costs of suit." This penalty can be recovered only when there has been a sale;^^ nor then if any rent at all was due, unless, perhaps, the sale was purposely for more than was due.^* It is unnecessary to remark that the action on this statute may be brought in the common pleas. It may not be brought before a justice of the peace.^^ The person who may bring the action is the owner of the property taken, whether it be the tenant or another. The person against whom the action can be bro^^g■ht is not the landlord, as such, or because he has issued a warrant, but the person who does the distraining,- — who levies or directs the levy on the property. It is the person distraining, not the ^O'Donnel v. Seyhert, 13 Serg. & ^\ Pepper & Lewis Digest, 2642; R. 54. In Royse v. May, 93 Pa,. 454, 1 Sm. L. 370. in trespass vi et armis, the declara- '^Bischo-jf v. Loper, 16 Montg. Co. tlon was for an excessive distress, L. Rep. 73; Weber v. Loper, 10 i. B., taking property worth $2,000 Montg. Co. L. Rep. 70. for a rent of $200. It was improper ''Weher v. Loper, 16 Montg. Co. L. to allow an amendment denying the Rep. 70. relation of lessor and lessee, and ''Ihe v. Wesffield, 10 Kulp, 510. that there was any rent for which But see Shetsline v. Keemle, 1 Ashm. distress could be made. (Pa.) 2c9. 254 LANDLORD AND TENANT. person in whose name the distress is made, that is liable.^* In order to recover the double damages, the action must be brought on the statute. The declaration must refer to the stat- ute, and claim expressly such damages. It must conclude, "against the form of the statute. "^^ It is for the jury to find the value of the goods distrained, and to return in their verdict double this sum. If they return the sum, it will be understood, unless the contrary appears in their return, that the sum is twice the value of the goods, and it will be error for the trial court to enter judgment for double the verdict.^* 307. Action not on 3d section, act of 1772. — When distress is made at a time when no rent is due, or after it has been prop- erly tendered,^^ there is a right of action in trespass at common law. That furnished by the act of 1772 has not superseded it.** Hence, though in the trespass brought, there can, for any rea- son, be no recovery of double the value of the goods distrained, there may, nevertheless, be a recovery of compensatory, and, if the facts warrant them, exemplary, damages.*^ If there has been a sale of the goods, their value, at the time and place of the sale, at least, will be recoverable. If there were circum- stances of aggravation for which the landlord was responsible, "^WeUs V. Eornish, 3 Penr. & W. ^Rees v. Emerich, 6 Serg. & R. .30 ; Fretton v. Earcher, 77 Pa. 423. 2S6 ; Fretton v. Karcher, 77 Pa. 423 ; "Royse v. May, 93 Pa. 454; Rees Frandscus v. Reigart, 4 Watts, 98. v. Emerich, 6 Serg. & R. 286; In the first case, double the value of Hughes v. Stevens, 36 Pa. 320; Mor- the goods was $120, but the jury rison v. Gross, 1 Browne (Pa.) 1; found the damages $290, and judg- Thomas v. Gibbons, 21 Pa. Super. Ct. ment for the latter sura was entered. 635 ; Fretton v. Karcher, 77 Pa. 423 ; Cf . also, Thomas v. Gibbons, 21 Pa. Smith V. Meaner, 16 Serg. & R. 375. Super. Ct. 635. In the last case Duncan, J., thought "A judgment in the common-law that a count for trover could not be action is a bar to a recovery on the joined. statute, though the action on the "Campbell v. Finney, 3 Watts, 84. statute was begun at the same time "Rees V. Emerick, 6 Serg. & R. as the action at common law. In- 286. An eviction suspends rent ac- deed, it is said by Duncan, J., that cruing subsequently. By distraining by bringing one action a. party for such rent the landlord becomes a waives the other. Garvin v. Dawson, trespasser. Gunnis v. Kater, 29 13 Serg. & R. 246. PMla, Leg. Int. 230. KEMEDIKS FOS. IMPROPER DISTRESS. 255 still greater damages will be allowed; e. g.j if the appraisers were not qualified; if notice of the distress was not given to the tenant or left on the premises ; if the six days' public notice of sale was not given. But, if the landlord did not direct, or in any way countenance, but was ignorant of, these omissions by the bailiff, damages should not be allowed against him on ac- count of them.®^ If any portion of the money produced at the sale has been paid to the owner of the goods, this will not pre- clude an action of trespass, but will reduce, pro tanto, the dam- ages.^^ The landlord^* and the bailiff^^ are both liable when dis- tress is made when there is no rent in arrear. The bailiff^^ and the landlord have the burden of showing that there was rent in arrear. 308. Tenant's recaption of goods. — If the landlord distrains after his rent has been paid, or after a tender of it has been improperly rejected by him, "the tenant may make rescous of the goods distrained, and may maintain trespass for the injury done him in lawless intrusion into his house, seizing and carry- ing away his goods."^^ But, if any rent is in ai-rear, the tenant, though the amount claimed in the distress is excessive, cannot take the goods back without becoming liable to treble damages.^^ 309. Irregularity in mode of making distress. — If the dis- tress is conducted irregularly or oppressively, though the circum- stances warranted a distress in the proper mode, the party responsible for the irregularity or oppression becomes liable in trespass. The circumstances that warrant a proper distress do not warrant an improper one, and that which was lawful when it began may lose even its past lawfulness and become a tres- 'i-Fretton v. Karcher, 77 Pa. 423. "Wells v. Bomish, 3 Penr. & W. '■'IVeHs V. Bomish, 3 Penr. & W. 30. 30; Ingram v. Bartz, 48 Pa. 380. "TJees v. Emerick, 6 Serg. & R. "^Ingram v. Bartz, 48 Pa. 380; 286. Frrtton v. Karcher, 77 Pa. 423. "McElroy v. Dice, 17 Pa. 163. ^''Bair v. Warfel, 5 Lane. L. Rev. 81. 256 LANDLORD AND TENANT. pass ah initio. When the improper acts are done by the bailiff, he is liable as a trespasser. But the landlord is not liable unless he was present and aiding or countenancing, or unless he has antecedently directed or subsequently approved and ratified the act, or, probably, unless he was negligent in the selection of a bailiff.^* Hence, for an assault*" on the tenant or some third person, committed by the bailiff without the participation of the landlord, or for the bailiff's breaking into the house, in order to make the distress,*-' or for unnecessary injury to the tenant's property,*^ the landlord not counseling or subsequently approv- ing the breaking or the injury, the landlord is not liable. When the landlord participates in the wrong, he is liable in trespass, e. g., for improperly impounding the goods on the premises, or preventing the use by the family of indispensable domestic furniture, such as cooking utensils, chairs;*^ for omitting, be- fore the sale, to appraise** and give the six days' notice of the sale ;*® for appraising too soon ;*^ for appraising by three per- sons who are not freeholders, and one of whom is a minor, and before a written notice of the distress has been given.*" Of course, when, because no rent is due,*^ or for some reason, the goods are not distrainable, the mere distress, however regailar in mode, is a trespass; irregularities in mode would be a basis for increased damages. An agent of the landlord for collect- ing rent, may, on his own judgment, cause a distress to issue. If he does so, he will be liable or exempt under the same cir- "Barrison v. Van Gunten, 15 Pa. *'M'Kinney v. Reader, 6 Watts, 34. Super. Ct. 49L Not decided. "Ellis V. Lamb, 24 Pa. Co. Ct. 150, "Kerr v. Sharp, 14 Serg. & R. 399; 9 Pa. Dist. R. 491. But for a levy Harris v. Shaw, 17 Pa. Super. Ct. 1. on goods of another than the tenant, "Kerr v. Sharp, 14 Serg. & R. 399. oflf the premises, the landlord is "Jirisben v. Wilson, 60 Pa. 452; liable. It does not appear that he Snyder v. Boring, 4 Pa. Super. Ct. directed the levy. 19e. *^Iiiggin v. Becker, 9 Pa. Dist. R. "Snyder v. Boring. 4 Pa. Super. 439. Ct. 196. "Harrison v. Van Gunten, 15 Pa. "Fretton v. Earcher, 77 Pa. 423. Super. Ot. 491. REMEDIES FOK IMPROPER DISTRESS. 257 cumstances under which the landlord would have been. Where he authorizes the breaking into a house, he is liable. He is not the mere channel through which, in ignorance of its con- tents, the order of the landlord is communicated to the bailiff,** but if he does not authorize the wrongful acts of the bailiff, and has not been negligent in the selection of the bailiff, he is not responsible.®" 310. When the goods are not distrainable. — The goods taken in distress may, for some reason, not be distrainable. The landlord may, for a consideration, have agreed that they should not be distrained;®^ or the goods may be the property of another than the tenant, and because of some exemption,®^"^ or because no longer on the premises when taken, may not be .distrainable. If the bailiff and landlord know, before making the levy, that the goods should not be distrained on, they are trespassers ah initio.^* If they learn before the sale that the goods are not distrainable, they will become trespassers if they go on with the sale, unless the owner is, or is made by them, aware of the distress. In that case, he should intercept the distress pro- ceedings by replevin.®® If he does not, the sale may proceed without making the landlord or bailiff a trespasser.®* '"Riggin v. Becker, 9 Pa. Dist. R. 582, 35 Am. St. Rep. 908, 26 Atl. 439. An agent who issues a war- 6G9; Perrin v. Wells, 155 Pa. 299, rant for a distress for too great a 26 Atl. 543. suEi is liable; and also the bailiff. ^"Tinware Mfg. Co. v. Duff, 15 Pa. McMroy v. Dice, 17 Pa. 163. Super. Ct. 383. Nonsuit in trespass ^'Harrison v. Van Gunten, 15 Pa. by the tenant is improper unless it Super. Ct. 491. A, employed by a affirmatively appears that, prior to constable as a canvasser, for busi- the sale, the tenant received notice ness, presented to the landlord's of the distress, and that an ap- agent a blank distress warrant, and praisement was made. Sassnian v. he signed it. A, instead of delivering Brishane, 7 Phila. 159. it to the constable, made the distress '"Lengert Co. v. Bellevue Bldg. S himself. L. Asso. 15 Pa. Super. Ct. 380; '"^Perrvn v. Wells, 155 Pa. 299, 26 Bogert v. Batterton, 6 Pa. Super. Ct. Atl. 543. 468; Esterly Machine Go. v. Spencer, ^""'Bruwn v. Stackhouse, 155 Pa. 147 Pa. 466, 23 Atl. 774; Thomas v. 582, 35 Am. St. Rep. 908, 26 Atl. Baner, 6 Pa. Dist. R. 177; Starr v. 669. Simon, 9 Pa. Co. Ct. 15; Lardiier v. '^Brovm v. Stackhouse, 155 Pa. iifittual L. Ins. Go. 32 W. N. C. 62. Land. & Ten. 17. 258 LANDLORD AND TENANT. 311. Damages. — When, in any case, tlie bailiff or landlord is a trespasser, he will be liable for the actual, and, in proper cases, even for exemplary, damages. The distress proceedings may not advance to a sale, or they may. In the latter case, the least damages would be the value of the goods at the time of the taking, with interest from that time.^'' Of course, if the court allows (as it should not) a deduction from this amount of the rent due, the landlord cannot complain.^* 312. Set-off by justice.— The 20th section of the act of March 20, 1810,°' extends the powers of a justice to "all cases of rent not exceeding $100, so far as to compel the landlord to defalcate or set off the just account of the tenant out of the same." The object of this proceeding is to ascertain, by means of a justice, the amount of set-off which should be allowed by the landlord before proceeding with the distress, and to siibject him to a penalty defined in it if he proceeds for more than the balance of rent after deducting the set-off allowed by the justice. Possibly, before the distress is begun, resort can be had to this procedure by the tenant. In the reported cases he has ap- plied to the justice only after the distress bad been begun. The justice has the jurisdiction only in cases where the rent does not exceed $100,«o or, since the act of July 7, 1879," $300.<'2-* It is the amount of rent claimed, not the size of the amount asked to be set off, that defines the jurisdiction. The matters to be set off may be a book account,®* a claim for labor done '■'•Perrvn. v. Wells, 155 Pa. 299, 26 « P. L. 194. Atl. 543; Esterly Machine Co. v. '-'"Lowenstein v. Hclfrich, 7 Ku\-p, Spencer, 147 Pa. 466, 23 Atl. 774. 533. Under a special act, the re- '^Pfeiffer v. Schubmehl, 7 Del. Co. corder of Bradford City had jurisdic- Rep. 575. tion when the rent did not exceed ='1 Pepper & Lewis Digest, 2549, $400. Fowler v. Eddy, 110 Pa. 117, 2643; 5 Smith's Laws, 161. ] Atl. 789. ''Black V. Coolbaugh, 2 Luzerne "Walsh v. Greenwood, 2 Pa. Dist. Legal Obs. 324. On appeal to the R. 64; Fowler v. Eddy, 110 Pa. 117, common pleas, the justice's record 1 Atl. 789. must show the amount of rent due. The omission will be a fatal error. REMEDIES FOE IMPROPER DISTRESS. 259 for the landlord,*'' a claim for damages from the landlord's breach of a covenant to repair the premises,^* or for damages for disturbance of the tenant's possession by hauling dirt from the premises.*'^ The counterclaim may exceed the rent claimed, but in that case, the justice sets off no more that the amount of the rent claimed.®* The landlord is cited before the justice in the ordinary way, and is permitted to oppose the claim of set-off. The justice properly decides, not the amount of rent which is due the landlord or for which he may distrain, but simply the amount the defalcation of which he ought to per- mit.*® Though sometimes, the amount of the rent claimed being undisputed, the justice finds that a certain amount remains due, or, if the set-off is equal to or greater than the rent claimed, he may find that no rent is due."* But the finding has validity only so far as it expressly or impliedly ascertains, not the rent due, but the amount to be set off. The decision of the justice cannot be appealed from by the tenant,''-^ but his remedy by replevin remains as it was before the act was passed. The land- lord, however, may appeal from the decision to the common pleas. '^ But a certiorari may issue from that court at the in- stance of the tenant to inquire into the jurisdiction of the justice to enter a judgment against him.'^ The justice can enter no judgment against the tenant for the rent due. If he does, and "^Thomas v. Pyle, 2 Pa. Co. Ct. rant had issued for $133.34. In 258. Kessler v. M'Conachy, 1 Rawle, 435, "Hilke T. Eisenbeis, 104 Pa. 514. the justice decided that there was no "Spencer v. Clinefelter, 101 Pa. rent due the landlord, but that he 219. was indebted to the tenant $4.48. '^Thomas v. Pyle, 2 Pa. Co. Ct. ''^Ingersol v. Gibbons, 1 Browne 258. (Pa.) 69. "''Hilke V. Eisenbeis, 104 Pa. 514; "Eillce v. Eisenbeis, 104 Pa. 514; Fowler v. Eddy, 110 Pa. 117, 1 Atl. Thomas v. Pyle, 2 Pa. Co. Ct. 258; 789; Lowenstein v. Eelfrich, 7 Kulp, Ingersol v. Gibbons, 1 Browne (Pa.) 533. fiO; Spencer v. Clinefelter, 101 Pa. ™So, in Spencer v. Clinefelter, 101 219; Allman v. Atwell, 33 Pittsb. L. Pa. 219. In Loioenstein v. Belfrich, J. 258. the justice found the set-off to be ^"Fowler v. Eddy, 110 Pa. 117, 1 $15.80, and that the balance of the Atl. 789. rent was $117.54. The distress war- 260 LANDLORD AND TENANT execution thereon issues, the judgment will be reversed.''* On appeal the common pleas court can do only what the justice could. It can enter no judgment for the tenant, not even for costs.''^ The court on the appeal may find as large a set-o£E as the justice, or a less sum,'^ or no set-off at all. The 20th section of the act of March 20, 1810, directs that the landlord, after the decision of the justice, "may waive further proceed- ings before the justice," — i. e., may refrain from appealing to the common pleas,^^ — "and pursue the method of distress in the usual manner for the balance so settled." If, not appealing, he nevertheless proceeds for the rent, unreduced by the set-off, and sells goods so as to produce more money than the reduced rent, and detains the surplus in his hands, he will, if convicted thereof in any court of record, "forfeit to the tenant four times the amount of the sum detained," — that is, four times the set-off ascertained by the justice. Thus, the set-off ascertained being $15.80, the sum forfeited would be $63.20.^^ The suit is prop- erly brought by the tenant in the common pleas ; and the de- cision of the justice, as to the set-off, cannot be reinvestigated, but is conclusive.''^ As the justice may set off an unliquidated ''^Fowler v. Eddy, 110 Pa. 117, 1 '•'Loioenstein v. Helfrich, 7 Kulp, Atl. 789. Cf. Sheed v. Wartman, 4 533. In Eessler v. M'Conachy, 1 Yeates. 237 ; Miller v. Peters, 1 Kawle, 435, after the distress the Lack. Jur. 23; Weyandt v. Diehl, 4 owner of an article levied on (not the C. P. Rep. 74. tenant) began replevin. He had a '''^Thomas v. Pyle, 2 Pa. Co. Ct. 258. right to use the decision of the jus- Each party must pay the costs in- tice that the set-off was greater than curred by him. The coats on appeal the rent as prima facie evidence on should be paid by the landlord. In the issue of no rent in arrear. If, order to appeal, he has paid the costs appealing, the landlord, nevertheless, before the justice. Should he be re- proceeds with the distress for his paid them by the tenant? original claim, the tenant cannot ^Spencer v. Olinefelter, 101 Pa. have his liability to the penalty pre- 219. scribed by the act of March 20th, " Such is the explanation of the 1810, adjudicated in the proceeding phrase. Hilke v. Eisenbeis, 104 Pa. on appeal. Allman v. Atwell, 33 514. Cf. Mutter v. Shackmav, 28 Pittsb. L. J. 258. Pittsb. L. J. 51. ^'Lowenstei/n v. Helfrich, 7 Kulp, 533. REMEDIES FOR IMPROPER DISTRESS. 261 claim for damages, or matters wholly disconnected with the lease, his decision is not decisive that when the distress warrant issued and was levied, the rent claimed was more than due. If the set-off was in fact of unliquidated damages, from the land- lord's trespassing on the possession of the tenant, the landlord was not bound to have foreseen what they would be adjudged to be, and to have deducted them from the rent.^" Unless the tenant has had the set-off ascertained by the justice, he cannot avail himself of it in replevin.^^ 313. Replevin.— The 1st section of the act of March 21st, 1772,^^ authorizes a sale of goods distrained, when the tenant or owner shall not, within five days after notice of the distress, replevy them with sufficient surety, to be given to the sheriff. The 2d section of the act of April 3d, 1779,®^ which declares irregular, erroneous, and void, all writs of replevin issued for any owner of goods levied or taken in execution or by distress or otherwise, by any sheriff, constable, or other officer, does not repeal, pro taiito, the act of 1772,^* nor refer to replevins in case of distress for rent, but only in case of distress for taxes.*^ In all cases in which the owner of the goods distrained^'' or the tenant, when he is not the owner,*' thinks that they should not ^Spencer v. CUnefelter, 101 Pa. Bair v. Warfel, 5 Lane. L. Rev. 81. 219. Though the lease contains a. waiver ^Walsh V. Greenwood, 2 Pa. Dist. of the right to replevy goods dis- E. 64. trained for rent in arrear, this vsall "\ Pepper Lewis Digest, 2640; I not preclude a replevin when the Smith's Laws, 370. tenant alleges that no rent was in "2 Pepper & Lewis Digest, 4109; arrear. Repp v. Sousman, 9 Kulp, 1 Smith's Laws, 470. 180. "Bonsall v. Gomly, 44 Pa. 442; "Power v. Howard, 22 W. N. C. Starr v. Simon, 9 Pa. Co. Ct. 15; 475; Scott v. McEwen, 2 Phila. 176; Thomas v. Baner, 6 Pa. Dist. R. Sommer Piano Co. v. Wood, 8 Kulp, 177; Lardner v. Mutual L. Ins. Co. 494; Nass v. Winpenny, 9 W. N. C> 32 W. N. C. 62; Quinn v. Wallace, 6 542; Biegenwald v. Winpenny, 9 W. Whart. 452. N. C. 542; Page v. Middleton, 118. "° Though the constahle who made Pa. 546, 12 Atl. 415 ; Clothier v. the distress claims to have done so Braithwaite, 22 Pa. Super. Ct. 521. ns constable, the goods can be taken '''Sleeper v. Parrish, 7 Phila. 247. from him by means of replevin. 262 LANDLORD AND TENANT. have been distrained, because there was no rent due^^ or the goods were not the tenant's, were not on the demised premises, or for some other reason were exempt from distress, replevin may be resorted to during the proceedings in distress. It can be begun not merely during five days following notice of the distress, but at any time before sale.*" We have elsewhere seen, indeed, the circumstances in which the tenant or owner must resort to replevin, and cannot wait until sale, and then begin the action of trespass or case. In these cases, the owner or tenant cannot wait until sale, and then bring replevin against the purchaser, on the theory that no title has passed to him.*" If, after a claim of $300 exemption, the bailiff selects ap- praisers, who appraise articles selected by the tenant, and the bailiff withdraws from the possession of them, and subse- quently the landlord, the goods being still on the premises, di- rects the bailiff to disregard the claim for exemption, the tenant cannot, by replevin, prevent the sale of them. The remedy is by tresfiass against the bailiff or landlord.*-^ 314. Replevin; procedure. — The action of replevin may be brought against the landlord alone or the bailiff alone,"^ or against both together.*^ The landlord, when defendant, makes an avowry** and the bailiff makes cognizance. Both may avow ■* In Wallace t. Harmstad, 44 Pa. '^Bonsall v. Gomly, 44 Pa. 442. 492, the alteration of the deed re- '^-Jones v. Qiindrim, 3 Watts & S. serving the rent was alleged to de- 531; IT'orren v. Forney, 13 Serg, & stroy the right to rent. No rent R. 52. due. Diller v. Roberts, 13 Serg. & "'Fry v. Jones, 2 Rawle, 11; Kosi R. 60, 15 Am. Dec. 578. No certain v. Tlieis, 20 W. N. C. 545, 10 Cent, rent reserved. Grier v. Cowan, Ad- Rep. 845, \i Atl. 262; Detuiler v. dison (Pa.) 347. Cox, 75 Pa. 200; Latimer v. Groet- "•Soiiimer Piano Co. v. Wood, 8 t^iiigcr, 139 Pa. 207, 21 Atl. 22; Kulp, 494; 8larr v. Simon, 9 Pa. Bcijcr v. Fenstermacher, 2 Whart. Co. Ct. 15 ; Brishen v. Wilson, 60 95. Pa. 452; Eslerly Machine Co. v. '^Qiiinn v. Wallace, 6 Whart. 452; Kpenrnr, 147 Pa. 466, 23 Atl. 774; Chicago sistcnt with a dis- v. Brorvne, 10 Pa. Dist. R. 355. tress. If he relies on his right to "'Wells v. Hornish, 3 Penr. & W. distrain, as a, defense, he must sur- 30; Hessel v, Johnson, 129 Pa. 173, render the possession to the sheriff. 5 L. R. A. 851, 15 Am. St. Rep. 710, If he keeps them, under a claim- 18 Atl. 754. property bond, and he fails to show "P. L. 88; Samson v. Leoij, 12 his ownership, judgment will go Pa. Dist. R. 600. against him. He cannot assert a "Warner v. Caulk, 3 Whart. 193; right to distrain. Fleming v. Heit- Beyer v. Fenstermacher, 2 Whart. shn, 7 Northampton Co. Rep. 96, 16 95. Lane. L. Rev. 365. The plea to the *7ios* v. Theis, 20 W. N. C. 545, avowry should not contain a demur- 10 Cent. Rep. 845, 12 Atl. 262. rer. The plea riens in arrere ad- 2G4 LANDLORD AND TENANT. sliall be a payment on account of tlie rent/"" — damages to which the tenant is entitled on account of a breach of the landlord's covenant to make repairs and improvements upon the demised premises may be deducted from the rent.^"^ 316. Set-off of taxes.— The 6th section of the act of April 3d, 1804,^''2 enacts that every tenant "shall be liable to pay all the taxes" which, during his occupancy, became due and payable; and it shall be lawful for him, "by action of debt or otherwise,, to recover said taxes from his landlord, or, at his election, to de- falcate the amount thereof in the pajTuent of the rent due to such landlord, unless such defalcation or recovery would impair any contract or agreement between them previously made." In case of ground rent, the taxes on the land are the proper burden of the ground tenant. If he pays them he pays only what he should, and he cannot set them off in replevin founded on a dis- tress for the rent.-'"^ 317. Damages. — As the property is delivered by the sheriff to the tenant or owner of the goods, if he succeeds in the replevin,, he should recover, as damages, a compensation for the taking and detention of the goods,'"* and for any circumstances of ^'"Beyer v. Fenstermacher, 2 Whart. covenajit to erect sufficient stabling- 95. upon the premises. Gray v. Wilson, ^"^Fairman v. Fluck, 5 Watts, 516; 4 Watts, 39. Warner v. Caulk, 3 Whart. 193. In Golwell v. Peden, 3 Watts, 327. The lease was for one year. The dis- the tenant, denying that the land- tress was for the third quarter's lord had a right to distrain, because rent. The damages to be deducted he had failed to make repairs, and ■would be one fourth of the difference had caused a nuisance, paid the rent, between the value of the premises after a distress warrant had been is- had the repairs been made, and the sued. He could not recover it back value of them in their actual state, in an action. He should have re- Breaches of promise of the land- sorted to replevin, or to trespass, lord, -without consideration, to make "^ 1 Pepper & Lewis Digest, 2G3B ;. repairs, could furnish no ground for 4 Smith's Laws, 201. reduction of the rent. Phillips v. ^'^Francisciis v. Rmgart, 4 Watts, Moiiges, 4 Whart. 226. 98. In distribution of the piMjeeds of ^'"Fraticiscus v. Rrigarl, 4 W.Ttts. a slierifl's sale, there would be a re- 08. If the defendant in replevin duction from the landlord's claim, claims the property only in virtue of because of his nonfulfilling of his a distress, he must not claim prop- REMEDIES FOR IMPROPER DISTRESS. 2G5 harclsliip or oppression. If the landlord distrains on goods after removal from the premises, supposing them to be the tenant's, when they are a stranger's, and that they have been fraudulently removed, when they have not been, he should not be compelled to pay as damages more than what would compensate for the taking and detention.-"''' If, the property being delivered to the plain- tiff by the sheriff, the defendant nevertheless succeeds in the replevin, and the jury finds the amount of rent in arrear, for which the distress was properly made, and the value of the goods distrained upon,^"® the landlord will be entitled to recover so much as the goods would have brought at the sale, less the ex- penses of sale avoided by the intervention of the replevin, and less the amount of the proceeds of the sale that would have exceeded the rent, and that he would have been obliged to return to the tenant. 318. Effect of replevin on lien of distress, — The delivery by the sheriff of the goods to the plaintiff in replevin discharges them from the lien of the distress. They may, therefore, be again distrained by another landlord for other rent; and, after this distress, they cannot be returned to the defendant in the replevin, on a writ de retorno liabendo}'^'' So they may be levied upon in execution.^"* And if they are levied on in execution, the landlord cannot claim from the proceeds of sale in execution, erty and give a claim-property bond, the rent in arrear, with a proper al- but must allow the sheriff to deliver lowance for the cost of taking the the goods to the plaintiff. Other- goods in distress. wise judgment must go for the ^'"Franciscus v. Reigart, 4 Watts, plaintiff, without finding any rent 98. The landlord claimed the costs due the defendant. Baird v. Porter, of the distress and the watchman's 67 Pa. 105; Cassidy v. Elias, 90 Pa. fees and double costs, in Underhill 434; Fleming v. Heitshu, 8 Pa. Dist. v. Wynkoop, 1.5 Pa. Super. Ct. 230. R. 715. ^"Woglam v.Cowperthvxiite, 2 Dal). '"'Scott V. McEiven, 2 Phila. 176. 68, I L. ed. 292. The court told the jury in U'Geary ''"Frey v. Leeper, 2 Dall. 131, 1 L. V. Raymond, 17 Pa. Super. Ct. 308, ed. 319; Bair v. Warfel, 5 Lane. L. that the defendant was entitled to Rev. 81. 268 LANDLORD AND TENANT. any of the rent for which he previously distrained, in preference to the execution-creditor.^"* 319. Assumpsit. — For the improper taking of goods in dis- tress, because they were exempt, being a stranger's, because they were no longer upon the demised premises, the owner cannot maintain assumpsit after the sale of the goods.^'" Nor, paying the rent after the distress warrant issues, can he recover back what he pays by assumpsit, on the ground that, by reason of the landlord's having failed to make repairs, as he had covenanted to do, and of his maintaining a nuisance on or near the premises, the rent was equitably not due.^^^ 320. Tenant's remedies adequate.— The remedies of the ten- ant, in replevin or trespass, are generally deemed adequate. Hence, an injunction has been refused to the assignee of the lease, to prevent the taking of his goods in distress for the rent owed by the lessee prior to the assignment. ■'■'^ After a sheriff's sale on a mortgage, the mortgagor remaining in possession, the purchaser at the sale issued a distress warrant for rent alleged to be due by the former mortgagor, as tenant in possession. An injunction against proseciiting the distress was refused.-'-^^ 321. Landlord's remedy against officer. — If, after a constable, dieting as bailiff in distress, has caused an inventory to be taken, he receives the rent from the tenant, and fails to pay it over, or, receiving only a part of the rent from the tenant, neglects fur- ther to prosecute the distress, he and his sureties are liable upon his official bond. Though it is not entirely clear that he is bound, on the requisition of a landlord, to perform all the duties incident to distress, he may become bailiff, and he must, if called on, aid and assist in making the appraisement and sale. He is entitled to specific fees for whatever he performs. Whatever he ^'"Oray v. Wilson, 4 Watts, 39. ""School Fund v. Heermans, 2 Law ""Waifih V. The Bourse, 15 Pn. Times N. S. 137. Super. Ct. 219. ^"^yilliams v. Flood, 1 W. N. C. "'Cohcell V. Pedeii., 3 Watts, 327. 199. HEMEDIES FOR IMPROPER DISTRESS. 267 doea,he does officially,and not as a mere agent of the landlord.^** In Baer v. KvhV^'' a constable made a levy under a landlord's warrant; left the goods on the premises where found, went away and secured appraisers ; on his return with them, was locked out, and could not then or subsequently gain admission to the prem- ises where the goods were. A rule for judgment for want of a sufficient affidavit of defense in an action on the official bond was discharged, the affidavit alleging that the goods had been dis- trained off the demised premises, having been removed there- from fifty-two days before, with the landlord's consent; that they belonged to the tenant's wife, and could not properly be levied off the demised premises, and that the bond tendered to the constable by the landlord was not in proper form, and did not protect him. The measure of damages would not be the rent due, unless the goods distrainable, or distrained, were sufficiently valuable to pay it. 322. Liability of surety for rent. — The replevin by the ten- ant of the goods distrained will not make the suit against the surety for the rent unsuccessful, the replevin remaining undeter- mined at the trial of the action.^'-^ The clandestine removal of the goods, while under distress, by some person unknown to the constable or landlord, and without negligence on his part., will not be a defense for the surety to the extent of the value of the goods eloigned.-'^'' If the distress is released, however, on the tenant's promise to pay the rent as soon as able, the surety will be discharged of liability for so much of the rent a* would have been paid had the goods b^en sold in the distress proceeding, and the proceeds applied to it.''^* "■'Com. V. Sheppard, 2 Clark (Pa.) '^^Myers V. Bulseman, 3 W. N. C. 393. 487. "" 8 Pa. Diat. R. 389. '^McNamee v. Cresson, 3 W. N. C. "'King v. Slaokmore, 72 Pa. 347, 450. 13 Am. Rep. 684. CHAPTEE XVIII. LANDLORD'S PREFERENCE WITH RESPECT TO EXECUTION SALES. 323. The statutory provision. 324. "Money due for rent;" apportionment. 32.5. Rent payable in advance; apportionment. 326. No rent after levy. 327. Successive executions. 328. Rent payable absolutely in advance. 329. Rent payable contingently in advance. 330. Rent; taxes; water rent. 331. Kind of rent. 332. Amount of rent. 333. Deductions from rent. 334. Extinction of rent. 33.5. Rent for what year. 336. Locality of the goods. 337. Locality; removal after levy. 338. Goods must be liable to distress. 339. Goods of a wife, subtenant, etc. 340. Landlord claims the goods. 341. Goods exempt. 342. Landlord's loss of reversion. 343. Close of the term. 344. Taken by virtiie of an execution. 345. The demise. 346. Use and occupation. .347. A cropper. 348. Sublessee. 349. Interval between lease and commencement of term. 350. Change of landlord. 351. Notice of claim. 352. Notice; when it must be given. 353. Staying the writ. 354. Landlord's, claim postponed to that of laborer's. 355. Bankruptcy. 356. Costs. 357. Liability of sheriff, constable. 358. Landlord's preference in assignments. 359. Landlord's preference when lessee dies. 268 LANDLORD'S PREFERENCE, EXECUTION SALES. 269 323. The statutory provision.— The 83d section of the act of June 16, 1836/ enacts that "the goods and chattels being in or upon any messuage, lands, or tenements which are or shall be demised for life or years, or otherwise, taken by virtue of an exe- cution, and liable to the distress of the landlord, shall be liable for the payment of any sums of money due for rent at the time of taking such goods in execution: Provided, That such rent shall not exceed one year's rent." 324. "Money due for rent;" apportionment. — By "money due" is not meant money by the terms of the lease, now payable, for which a distress or an action could at once be levied or brought Rent is conceived as accruing from day to day; and at the end of each day the rent apportioned to it is "due," though not yet payable. If rent is payable by the year, the quarter, the month, the week, and a levy in execution should be made upon the tenant's goods on the premises at a point of time within such year, quarter, etc., a fraction of the year's, quarter's, month's, or week's rent would be claimable from the proceeds, equal to the ratio between the part of such period already i-un, and the whole period. If, e. g., the lease being payable annually, the levy is made on the 300th day of the year, 300/365 of the rent would be claimable by the landlord.^ Examples follow: term ' 1 Pepper & Lewis Digest, 2643 ; 'Cfreider's Appeal, 5 Pa. 422 ; P. L. 755. The 3d section of the Weltner's Appeal, 63 Pa. 302; Shaw act of March 30th, 1859, applicable v. Oakley, 7 Phila. 89; West v. Sink, to Schuylkill county, restricts the 2 Yeates, 274; Anderson's Appeal, landlord's preference to the rent for 3 Pa. St. 218; Case v. Dams, 15 Pa. •one mom;h and of any fraction of a 80 ; Colli-ns' Appeal, 35 Pa. 83 ; month accruing immediately before Oram's Estate, 5 Kulp, 423; West v. the levy in execution, or the land- Zint, cited in 5 Binn. 506 ; Lichten- lord's warrant. This act is consti- thaler v. Thompson, I'd Serg. & R. tutional, whether applied to leases 157, 15 Am. Dec. 581 ; Thropp's Ap- made before or after its passage. It peal, 70 Pa. 395 ; Timmes v. Metz, does not impair the contract of 156 Pa. 384, 27 Atl. 248; Green- lease, but only the lien and remedy wood's Appeal, 79 Pa. 294; Parker's for the recovery of the rent. Farm- Appeal, 5 Pa. 390; Ege v. Ege, 5 ers' Bank's Appeal, 1 Walk. (Pa.) Watts, 134. The right to apportion -33. rent to the levy has been questioned 270 LANDLORD AND TENANT. begins Oct. 10, 1842; levy, Dec. 6, 1842; the rent, $200 quar- terly. The landlord was entitled to $123.69 f term began April 1st, 1867; rent payable quarterly; levy May 27th, 1867; land- lord entitled to $70.82 ■* term for five years began September 1st, 1811; rent payable quarterly; levy, July 25th, 1812; frac- tion of the rent for the current quarter, equal to that which rep- resents the ratio of the part of the quarter run, to the whole, was payable.^ 325. Rent payable in advance; apportionment. — Rent payable at the beginning of a period is, of course, not merely due, but payable, at the time of any levy within that period ; but no ap- portionment will be made of the rent to fall due at the com- mencement of a period to begin after the levy. Thus, rent was- payable quarterly, in advance, on July 1st, October 1st, Janu- ary 1st. A levy was made September 15th, when the rent due July 1st had not yet been paid. This quarter's rent could be taken from the proceeds of the execution, but not five sixths or any other portion of the succeeding quarter's.® Again; term began April 1st, rent payable quarterly in advance was $62.50; levy in execution June 9th. The quarter's rent due April 1st had been paid. The court below allowed to the landlord $48.08. This was error, "for," said Lowrie, J., "it was not due, and there had been no enjoyment on which to found the allowance. To allow it would be to apportion the rent neither by the con- tract, nor by the time of enjoyment."^ When rent for a year was payable in one instalment, in the midst of the year, and a levy occurred before the arrival of the day of payment, it was held that so much of the year's rent should be paid to the land- lord from the execution proceeds as represented the ratio of the time elapsed to the whole period between the inception of the in Prentiss v. Kingsley, 10 Pa. 120; 'Wickey v. Eyster, 58 Pa. 501. Furdy's Appeal, 23 Pa. 97 ; Baiik of ''Binns v. Hudson, 5 Binn. 505. Pennsylvania v. Wise, 3 Watts, 394. 'Morris v. Billings, 1 Phila. 464. 'morgan v. Moody, 6 Watts & S. ''Purdy's Appeal, 23 Pa. 97; Com, 333. V. Contner, 18 Pa. 439, LANDLORD'S PREFERENCE, EXECUTION SALES. 271 term and the contract day of payment. The term began April 1st; the rent for the year was to be paid September 1st; the levy was made August 1st. Four fifths of the time between April 1st and September 1st had then elapsed. It was held that four fifths of the rent, having been earned, should be taken by the landlord.* 326. No rent after levy. — The apportionment of rent is made,, not to the day of issue of the writ of execution, but to the day of levy thereunder. A considerable period may elapse between the levy and the sale; but no part of the rent accruing in that in- terval can be taken by the landlord.* In Minnig v. Sterrett, the interval was seven months.^" And payment of the rent be- t\veen levy and sale cannot be effected indirectly by allowing the landlord to apply the rent accruing during that time in reduction of set-oils offered by the defendant against the rent accrued at the levy.-'-^ If the sheriff, after levy, removes the goods to another building leased to the defendant, the owner of the building cannot claim from the proceeds of sale of the goods, the compensation for the use and occupation of the building- by the sheriff, between the removal and the sale.^^ If, after levy, there is a sheriff's interpleader, and he withdraws from the possession, but, subsequently, the claimant suffering a non- suit, the sheriff resumes possession of the goods, and they are finally sold on a vend, ex., the landlord cannot claim rent down to the resumption of possession, but only down to the original levy.^^ 327. SuccessiTe executions. — If there are several executions. issued and levied successively, upon all of which the sale of 'Anderson's Appeal, 3 Pa. St. 218. "^Case v. Davis, 15 Pa. 80. The court below allowed only four ^Megarge v. Tanner, 1 Clark twelfths. The premises were the (Pa.) 331. The landlord must look Bedford Mineral Springs. to the sheriff for compensation. 'Wager v. Duke, 1 Clark (Pa.) ^'Horan v. Barrett, 3 Luzerne Le- 316. gal Obs. 96, 5 Leg. & Ins. Rep. 27. " 7 Pa. Co. Ct. 73, 272 LANDLORD AND TENANT. the tenant's goods is made, tlie landlord's rent, as against the execution on which occurred the first levy, will be apportioned to that levy; as against the execution on which the second levy was made, will be apportioned to the making of the second levy.^* There were six executions which were levied, respec- tively, on the 20th, 22d, 23d, 24th, and 25th of November, and on the 14th of December. Sale was made on all the writs. The writ on which levy was made November 23d exhausted the fund. Kent could be taken from the proceeds, apportioned to No- vember 23d.^^ If there are two successive executions, and, for any cause, the earlier is postponed in the distribution to the later, the rent will be apportioned to the day of the second levy. A fi. fa. was levied March Yth, but the defendant was al- lowed to continue his business, buying and selling as before, until June 2d, when a second execution was levied. The lien of the first was lost as to this. Successive sales took place on these writs. The rent apportioned to June 2d was paid from the proceeds, and the balance to the execution levied on that day.^" 328. Rent payable absolutely in advance, — Rent payable in advance, the time of payment named in the lease having arrived before the levy, is entitled to be paid from the proceeds of the execution sale. Thus, term begins April 1st, annual rent $700, of which half is to be paid in advance ; levy May 24th. The landlord had a right to $350 from the proceeds.^'^ Rent pay- able in advance for the quarter beginning July 1st was still unpaid when the levy was made September 15th. It was paid in full from the proceeds.^^ Lease for five years, beginning- April 1st, 1848 ; rent payable semiannually in advance. When the levy was made, June 14th, 1849, only one half-year's instal- "Minnig v. Sterrett, 7 Pa. Co. Ct. "Earfs Appeal, 13 Pa. 483. 73; Worley v. Meelcley, 1 Phila. 398. ''Collins' Appeal 35 Pa. 83. '"Learning's Appeal, 5 W. N. C. '^Morris v. Billings, 1 Phila. 464. 221; Todd v. Ashton, 4 W. N. C, 347. LANDLORD'S PREFERENCE, EXECUTION SALES. 273 ment had been paid. The landlord was entitled to the two semi- annual instalments payable in advance on October 1st, 18-1-8, and on April 1st, 18-49.^^ The rent payable in advance is pay- able on the first day of the period to which it is applicable. The lease beginning April 8th, 1851, the rent being payable semiannually in advance, the seventh instalment was due April 8th, 1854.^0 If a lease begins April 1st, 184-1, and a levj is made on the lessee's goods on the premises before that date, he being in under a prior lease, the rent payable in advance nnder the second lease cannot be taken from the proceeds.^ -"^ 329. Rent payable contingently in advance. — The lease may require the payment of the rent in instalments, but may stipu- late that, on the happening of a certain event, — e. g., the tenant becoming embarrassed, or making an assignment, or being sold out by the sheriff, or attempting to remove, or manifestly in- tending to remove, the goods, at any time during the continu- ance of the lease,^^ — the whole rent for the term, not yet paid, shall become due and payable. Such a stipulation is valid. Hence, a fi. fa. issuing against the tenant, the entire rent, he having become embarrassed before the attaching of the lien of the execution, would become payable from the proceeds of the execution sale.^* But the event which renders all the rent due must happen before the levy. Hence, under a lease making all the rent due on a removal of the goods, or an attempt to remove them from, the premises, if the removal is not attempted until after the levy, though on the same day, the rent, whose payment is thus accelerated, is not payable from the goods ^"Gom. ex rel. Iric-in T. Contner, 21 lo-i^nng year, no rent to accrue under Pa. 266. this second lease will be payable ^'Moss's Appeal, 35 Pa. 163. from the proceeds. Martin's Appeal, ''Martin's Appeal, 5 Watts & S. 5 \\'atts & S. 220. 220. Of. Diller v. Roberts, 13 Serg. ''Excelsior Hhirt Co. v. Miller, i & R. CO, 15 Am. Dec. 578. If the Lack. Legal News, 332. levy is made during the term ending 'Tlatt v. Johnsons, 108 Pa. 47, 47 April 1st, but after a lease has been Am. St. Rep. 877, 31 Atl. 935. made to the same person for the fol- Land. & Ten. 18. 274 LANDLORD AND TENANT. sold.^* The lease declaring that on failure to pay any monthly instalment within five days after it becomes due, all the rent for the term shall become immediately due, this provision is not waived by the lessor's accepting payment for a month's rent "when it is more than five days overdue. On any later month's rent becoming overdue for more than five days, the landlord may treat all the rent as due, and claim it from the proceeds of an execution.^^ 330. Rent; taxes; water rent. — The rent may be sjo reserved as to cover the taxes ; and when this has been done the landlord "will have a right to take not merely the rent strictly so called^ but also the taxes, from the proceeds of an execution sale of the tenant's goods. But, the lease stipulating for an annual rent of $1,300, payable quarterly, withotit any deduction on account of taxes, which the lessee covenanted to pay, together with the taxes on a lot not included in the demise, Tilghman, Ch. J., re- marked : "The rent might have been reserved in such a manner as to cover the taxes, but it has not been done so in this lease. The rent reserved is $1,200, payable quarterly, without any de- duction on account of taxes, and the tenant covenants to pay all taxes, so that the taxes are no part of the rent reserved."^^ A covenant by the lessee to pay water rent does not make it rent. On his neglect to pay it, and the landlord's paying it, the latter ^'Lowry v. Evans, 2 Lack. Jut. 43. "Binns v. Hudson, 5 Binn. 505. "Tetifel V. Rowan, 179 Pa. 408, 36 The taxes had, apparently, been pairf Atl. 224; Rowan v. Rowan, 179 Pa. by nobody. In Case v. Davis, 16 Pa. 411, 36 Atl. 1130. In Merrill v. 80, the tenant was to pay all taxes Trimmer, 2 Pa. Co. Ct. 49, Church, assessed on the premises during the P. J., held that the stipulation, that term. He failed to do so. Had the on default in paying punctually any landlord paid the tax before the month's rent all the rent shoxild be- levy, he could have set off the tax come due, would not be enforced; thus paid by him against a eounter- and that, if it should be, the lessor's claim by which the tenant sought to accepting overdue rent once or twice, reduce the rent due. Not having and failing to warn against subse- done so before the levy, he could quent defaults, would prevent insist- make no use of it. Ct. Wickershant, ing on it. v. Stetson, 34 Phila. Leg. Int. 248. LANDLOKD'S PREFERENCE, EXECUTION SALES. 275 cannot demand the water rent from the proceeds of an execution sale.^^ 331. Kind of rent. — Besides money rent of a determinate amount, the rent may take tlie form of a royalty; e. g., a roy- alty on iron ore,^^ or on coal,^^ or on all limestone quarried and lime hurned.^" If the rent is reserved in shares of crops or other commodities, it does not seem convenient to give effect to any landlord's preference over an execution creditor, with re- spect to money proceeds of a sale. 332. Amount of rent.— The goods of the tenant, taken in exe- cution, are, by the 83'd section of the act of June 16th, 1836, made "liable for the payment of any sums of money due for rent, at the time of taking such goods in execution : Provided, That such rent shall not exceed one year's rent."^-*- There is no limit to the sums. "Any sums due," if for not more than one year, must be paid to the landlord. The rent must remain, "due." If it has been paid, it cannot be paid again.^^ But the landlord's accepting the note of a third person as conditional payment of, or as collateral security for, the rent, is not equiva- lent to the payment. The note would need to be itself paid. Should the note not be paid, the landlord may insist on being paid from the proceeds of sale of the tenant's goods.^* But when the landlord accepts, for rent due, a draft at four months,, drawn by the tenant or a third person, for the rent and the in- terest for the period of the draft, gives a receipt for the rent, and his books show the rent paid, the failure of the drawee or drawer to pay the draft will not revive the rent, so as to qualify '^Leim/n v. Acheson, 30 Pittsb. L. " Payments can, of course, be J. N. S. 215. shown in the distribution proceed- '■'Gambria Iron Go's Appeal, 114 ing.5. Case v. Davis, 15 Pa. 80. Pa. 66. ^^Kreiter v. Hammer, 1 Pearson -'Oram's Estate, 5 Kulp, 423. (Pa.) 559; Snyder v. Kunklema/n, 3 ''Kendig v. Kendig, 3 Pittsb. 287. Penr. & W. 487 ; Eendig v. Kendig, ='Not rent for two years, fitark 2 Pearson (Pa.) 89, 3 Pittsb. 287. V. Bight, 3 Pa. Super. Ct. 516; Lei- dich's Estate, 161 Pa. 451, 29 Atl. 89, 90'. 276 LANDLORD AND TENANT. the landlord to claim it as such.^* If, after a levy in execution on goods of the tenant, the landlord takes, without authority, some of them, as a means of paying the rent due him, he cannot claim his rent from the proceeds of the sale of the rest of the goods.^^ If, after a distress, the tenant replevies the goods, the landlord cannot claim for that portion of the rent for which he properly distrained, and Vi'hich the goods distrained would have been able to satisfy. So much he can recover in the re- plevin. But for any other portion of the rent, and for any rent accruing after the distress, he would have a right to claim from the proceeds of a later execution sale.^^ 333. Deductions from rent. — In the proceedings for distribut- ing the proceeds of an execution sale, the tenant or the execution creditor may reduce the amount of rent claimed by showing de- falcations of various sorts. Thus, if the lease has required the landlord to build a stable, and he has neglected to do so, the ten- ant has the right to an abatement from the rent, and, therefore, so has the execution creditor.^^ The landlord may have agreed that the tenant might put in a heater, etc., and deduct the cost from the rent. The cost of such a heater, put in by the tenant, will be deducted from the rent;^* and counterclaims, not con- nected with the lease or the premises demised, — e. g., a book account existing before the levy, — may be set off.^^ In Case v. Davis, the tenant's set-off was itself reduced by claims of the landlord against him, having no connection with the lease, or with the tenant's counterclaim. If the landlord has a claim against the tenant, arising from his breach of his covenant in the lease, and the claim was complete before the levy, it can be "Camhrla Tron Co.'s Appeal. 114 "Gray v, Tl'i7son, 4 Watts, 39; Pa. 6ii. Obtaining u. judgment for I'lott v. Johnson, 168 Pa. 47, 47 Am. the rrnt does not destroy the land- •>(, Reii. 877, 31 Atl. 935. lord's right to proceeds. Weltner's ^Wilkinson v. Knglcr, 153 Pa. 238, Appeal, li3 Pa. 302. 25 Atl. 1133. ■■•/l/(()7 Ill's Appeal, 5 'Watts & S. ''(irai/ v. ^Vilson, 4 Watts, 39; 220. Case v. Davis, 15 Pa, 80. "Gray v. Wilson, i Watts, 39. LANDLORD'S PREFERENCE, EXECUTION SALES. 277 employed to reduce tlie tenant's set-off. If the landlord's right of action on account of it did not arise until after the levy, it cannot be so used. Thus, the tenant covenanting to pay the taxes, his mere omission to pay was held not to give rise to a counterclaim by the landlord ; but only the landlord's payment. If the landlord did not pay the taxes until after the levy, he could make no use of the taxes as an abatement from the ten- ant's defalcation.*'' The execution creditor cannot require the landlord to distrain on the goods of others than the tenant on the premises, in order to diminish the amount the landlord other- wise will demand, to his detriment, from the proceeds of the sheriff's sale.** 334. Extinction of rent. — The landlord's release of the ten- ant from the rent will, of course, extinguish his claim to subse- quent payment from the proceeds of the sale of the tenant's goods.*^ A final eviction by the landlord will extingTiish any liability for rent not already payable at the time of the eviction ; or already payable, but in advance, for a period within which the eviction subsequently happens ; but it will not destroy the right to rent already mature. On a fi. fa. levied on the goods of a ten- ant, they were sold, and immediately thereafter the landlord went into full possession of the preinises. He had already been paid the rent in advance, from the proceeds of the sale. Had the eviction occurred after the rent became payable in advance, but before it was actually paid, the landlord could not have claimed it from the proceeds.*'^ The acceptance of a surrender of the term by the landlord will extinguish the claim for rent which was then accruing, but not yet due. Eent for the year "Case V. Davis, 15 Pa. 80. vent a claim for the residue from "■Timmes v. Metz, 156 Pa. 384, 27 the proceeds of an execution. Krei- Atl. 248. *^'' V. Hammer, 1 Pearson (Pa.) "Thropp's Appeal, 70 Pa. 395. The 559. lease was also surrendered. "Com. ex rel. Irwin v. Contner, 21 The fact that a distress has real- Pa, 266. ized a, part of the rent does not pre- 278 LANDLORD AND TENANT. between April 1st, 1845, and April 1st, 1846, was payable on the last day of the year. On January Sthi, 1846, an oral surrender of the term, which was to end March 31st, 1846, was accepted by the landlord. On the next day, an execution against the ten- ant was levied on his goods. The landlord had no right to have the rent apportioned to the levy, and receive it from the proceeds. The surrender drowned the term, and the result of this drowning and extinction is, that rent reserved and issuing out of the lesser estate, and not due at the time of the surrender, is also ex- tinguished.** A purchase of the leasehold, even after the levy, by the landlord, will extinguish rent then accruing, and not yet due, and prevent the allowance of an apportioned part of it to the landlord.*^ 335. Rent for what year.— In LicUentlialer v. Thompson/'^ Gibson, J., held that only the rent of the year within which the levy was made, or, it being made after the expiration of the term, of the last year of the term, could be taken from the proceeds of an execution sale. In that case, a term for one year began on April 1st, 1818. A second lease to the same tenant, but with X as his surety, was made for the year commencing on April 1st, 1819. A levy was made in March, 1820. The rent of both years being unpaid, the proceeds of the execution sale, it was held, must be applied to the rent of the second year. The ques- tion has since been determined differently, and, there being two successive leases to the same tenant, the landlord may claim the rent due on the first,*^ or he may claim a part of the rent due on "Oreider's Appeal, 5 Pa. 422. vise, in the midst of the term. At "■Sliaw V. Oakley, 7 Phila. 89. its expiration he relets the premises * 13 Serg. & R. 157, 15 Am. Dec. to the same tenant. He may apply 581. the money made by an execution lev- "Parker's Appeal, 5 Pa. 390; ied during the second term, to the Richie v. MoGauley, 4 Pa. 471; Piatt rent due on the first term, though, V. Johnson, 168 Pa. 47, 47 Am. St. in so doing, the proceeds of the exe- Rep. 877, 31 Atl. 935. cution are exhausted. Leivis's Ap- A succeeds to the reversion, by de- peal, 66 Pa. 312. LANDLOED'S PREFERENCE, EXECUTION SALES. 279 the current term, and a part of that due on the preceding.** "It is well settled," says Williams, J., "tliat the landlord is not con- fined, in his claim for rent out o£ the proceeds of the sale of the tenant's goods, to the rent for the last year, or for the year im- mediately preceding the sale, so that no more than one year's rent be demanded and received."*^ Three successive guardians of the same minor made three successive leases to the same ten- ant. During the running of the last, the guardian who made it was superseded by another. A levy was then made on the ten- ant's goods. It was held that the proceeds could be applied to the portion of the current year's rent that was apportioned to the levy; and that the residue of one year's rent could be applied either to the first or to the second year, according to the rights inter se of the guardians. '° If, successive leases being made, the rent under the earlier can be claimed, a fortiori can rent for an earlier year under the same lease be claimed. The entire rent for the year ending July 1st may be taken from the proceeds of an execution levied in the following December.^' 336. Locality of the goods.— The 83d section of the act of June 16, 1836,^^ declares that "the goods or chattels being in or upon any messuage, lands, or tenements which are or shall be demised for life or years, or otherwise, taken by virtue of an execution," shall be liable for the payment of rent. The goods, therefore, must be on the demised premises when they are taken in execution. A, by separate leases, having rented to B t-ivo ad- joining houses, m and n, B, for his own convenience, tore down the partition wall, so as to make one large pool room. A pool table belonging to B, and standing in that part of the room which was in house m, was seized in execution. The rent due for m, but not that due for n, could be paid from the proceeds.^* ^Ege V. Ege, 5 Watts, 134. "Baum v. Broivn, 11 W. N. C. "Weltner's Appeal, 63 Pa. 302. 202; Nailor v. Shelly, 1 Chester Co. '"Weliner's Appeal, 63 Pa. 302. Rep. 408. '•'^Richie v. McCauley, 4 Pii. 471. "--l Pepper & Lewis Digest, 2643; P. L. 755. 280 LANDLORD AND TENANT. The lessor first rented lime kilns and quarries, covering about 3 acres, and, a year later, leased to the same tenant the remainder of the farm^ which was not separated from the tract first leased hy fence or otherwise. From the time of the later lease, the ten- ant operated the quarries and kilns together with the farm, using on both the same horses and carts. The proceeds of the tenant's property found anywhere on these premises were pay- able indiscriminately to the rents falling due under both leases.^* Though the goods are removed clandestinely or fraud- ulently^^ or honestly, but, the lease providing that they shall, on removal^ continue liable for distress,^^ so that the landlord may by distress pursue them, he will not be preferred to the exe- cution creditor if, he not distraining, the goods are levied on in execution. If, under an execution, a constable takes chattels from the demised premises to another place, and there sells enough of them to satisfy the execution, leaving the residue there, this residue, if there levied on under a second execution, is not subject to the landlord's claim for rent.^^ The landlord cannot take advantage of an unlawful detention of the goods on the premises. If, e. g., he distrains on them when he has no such right, in order to hold them until a creditor may levy upon them there, and the levy is thereupon made on them there, he will have no right to payment of the rent from the proceeds.^® 337. locality ; removal after levy. — The landlord's right does "Hartranft's Appeal, 17 W. N. C. In Wilbur v. Hankins, 3 Lack. Le- 420. gal News, 49, most of the fund foi- '^Urant's Appeal, 44 Pa. 477. distribution arose from the sale of ''"yailor V. Shelly, 1 Cliestcr Co. the tenant's goods not on the de- Rep. 408. raised premises when levied upon. "Allen V. Leitns, 1 Ashm. (Pa.) The fund raised from the sale of the 184. goods on the premises was applied If A, renting two stores, I and m, to the execution creditor and wage his goods are levied on in I and re- claimants. It was held that the moved by the sheriff to m, and there landlord could be subrogated to their kept until sold, the rent for m can- right, so as to be entitled to pay- not be claimed from the proceeds, ment from the product of the goods Megarge v. Tanner, 1 Clark (Pa.) not on the premises. 331. "Burchard v. Bees, 1 Whart. 377. LANDLORD'S PREFERENCE, EXECUTION SALES. 281 not depend on the continuance of the goods on the demised premises after the levy. The sheriff or constable may remove them. "This removal," said Rogers, J., "has never been sup- posed to affect the right of the landlord to the rent."-''' "In Pennsylvania, under our statute, the sheriff is not estopped from removing the goods, and he is protected, provided he pays over iio the landlord one year's rent, or the landlord neglects to give notice of his claim in proper time,"*" and, if the goods are at- tached on the premises, under the 27th section of the act of July ]2th, 184:2,^^ and then removed, and, after judgment obtained^ are sold, the landlord may claim the rent form the proceds.*^ 338. Goods must be liable to distress. — The goods, vphose proceeds may be demanded by a landlord for the rent, under the 83rd, section of the act of June 16, 1836, are described as goods which "shall be liable to the distress of the landlord." This liability to distress is the precondition to the landlord's claim upon them.'''' This liability must exist when the levy is made under the execution. Though it existed when the fi. fa. issued, the landlord's right will vanish if, before the levy, the right of distress is lost. Thus, the death of the tenant before the levy will make it impossible for the landlord then to distrain. For that reason he loses his privilege of taking from the proceeds.'^'' "Morgan v. Moody, 6 Watts & S. premises. They could no longer he 333. liable, it was said by Briggs, J., to '"Ege V. Ege, 5 Watts, 134. Goods the claim of the landlord for rent, taken by the sheriff from a store in " 2 Pepper & Lewis, Digest, 2577 ; Allegheny City to Pittsburg, and P. L. 33t). there sold, were subject to the lien '"Morgan v. Moody, 6 Watts & S. for the rent of the Allegheny City 333. store. "Grant's Appeal, 44 Pa. 477; Ege McCombs's Appeal, 43 Pa. 435. v. Ege, 5 Watts, 134; Rowland v. After a levy on two safes, a stranger Goldsmith, 2 Grant, Cas. 378 ; claiming them and the execution Lewis's Appeal, &G Pa. 312; Merrill creditor, at the request of the sher- v. Trimmer, 2 Pa. Co. Ct. 49 ; Nailor iff, were ordered to interplead. The v. Skelly, 1 Chester Co. Rep. 408. claimant gave a forthcoming bond, "Hoskins v. Houston, 2 Clark and removed the goods from the (Pa.) 489. The landlord's loss of 282 LANDLORD AND TENANT. Tor rent due by a partnership, the landlord cannot take from the proceeds of the sale of the interest of one partner."^ The leasehold is not a source of pajTiient of the preferred rent; but frame®® or brick®'' buildings put on the premises by the tenant, under an agreement that he may remove them, are chattels which may be distrained. 339. Goods of a wife, subtenant, etc. — It is not necessary that the defendant in the execution should be the debtor of the landlord. It is enough that his goods are on the premises and are liable to distress. Hence, on an execution against a married woman, whose goods are on premises demised to the husband, his landlord may claim the rent from the proceeds of the sale.®* "As to John Reber, the landlord," says the court, "all property on the premises, whether of the husband or of the wife, became liable to his distress for the rent His right to distrain does not flow from her covenant, or his relation as tenant, but from the common law, as an incident to the lease to the husband,- — a right to distrain for his rent all property found upon the leased prem- ises, not within the well-kno"svn exceptions on account of trade, etc. It is this right which the legislature intended to protect when it gave to a landlord his preference in payment out of the proceeds of sale of the goods found on the premises, and liable for the rent." The lessor may take from the proceeds of the sale of the property of a subtenant in an execution against him, he being under no personal duty to the lessor to pay rent, the ar- rears due from the lessee, who is landlord of the subtenant.®' the reversion before the levy has the If goods of a stranger are on the same result. premises the execution creditor can- "Rundal v. Stedge, 2 Pa. Co. Ct. not compel the landlord to distrain 608. on them, in exonemtion of the fund "Thropp's Appeal, 70 Pa. 395. to be produced by the sale of the de- "Starh V. Eight, 3 Pa. Super. Ct. fendant's ovi-n goods. Timmes v. 516. Mete, 156 Pa. 384, 27 Atl. 248. "TrimUe's Appeal, 5 W. N. C. 396. "McGombs's Appeal, 43 Pa. 435. The court treats the lease aa made to the husband. LANDLORD'S PREFERENCE, EXECUTION SALES. 283 A leased a store to B for one year from April 1st, 1860, with the privilege of renewing the lease for two years longer. B sublet a store-room to C, whom A refused to recognize as tenant, look- ing to B and his sureties for the rent. On an execution against C, his goods in the store-room were levied on and sold. A was allowed one year's rent from the proceeds, although C had fully paid the rent to B which he had agreed to pay. 340. Landlord claims the goods. — The landlord cannot dis- train on his own goods. If, under a fi. fa. against the tenant, goods are levied on, and the landlord, claiming them as his, noti- ces the sheriff, who thereupon demands a bond of indemnity from the execution creditor, and the landlord institutes trespass against the sheriff, he cannot, subsequently, claim the proceeds ■of the sale of the goods.'"' "It is out of all conscience," says Gordon, J., "that creditors should be thus driven to the trouble and expense of disproving title in the claimants, and when this has been successfully accomplished, that those same claimants should be permitted to pocket the fund by the interposition of the very title by which they were defeated. "''■' 341. Goods exempt. — If goods exempt from sale are set apart imder an execution to the debtor, and are subsequently levied on under another executioUj as to which also the debtor has an ex- ■emption, there can be no sale, and the landlord's claim of the proceeds would be inept and resultless; so, though the things may be liable to sale on any particular execution, if they are ■exempt from distress, their proceeds cannot be diverted from the execution plaintiff by the landlord. ^^ If goods are taken under an execution as to which there is no exemption, because of the fact that the act conferring exemption is not applicable to it (e. g., the debt came into existence before the passage of the ■exemption act of April 9th, 1849),'''^ and the exemption is op- '"Vetter's Appeal, 99 Pa. 52; Ed- "Morgan v. Moody, 6 Watts & S. wards's Appeal, 105 Pa. 103; Bush's 333. A ppeal, 65 Pa. 363. '" 1 Pepper & Lewis Digest, 1920 ; '^Edwards's Appeal, 105 Pa. 103. P. L. 533. 2S4 LANDLORD AND TENANT. erative as to the rent, e. g., it has arisen since the going into op- eration of that act, the rent cannot be taken from the pro- ceeds.''* The waiver of the exemption in favor of the execution creditor, ipso facto waives it in favor of the landlord,'* even if, before the execution issued, a distress by the landlord had aborted by the tenant's claim of the exemption.''^ The fact that the landlord has a waiver from the tenant of his exemption will not forfeit his right to claim from the proceeds of an execution, as to which there is no waiver.'''' The $300 worth of property being set apart to the defendant, his sale of it to the landlord at the appraisement, in satisfaction pro tarda of the rent, if bona fide, would condone the failure of the landlord to prosecute a distress. 342. Landlord's loss of reversion. — The right of a landlord to distrain depends upon his retention, to the time of distress, of his title or interest If he shall have aliened it, or it shall have been sold from him by a judicial sale when the levy is made, he, not then having the power to distrain, will not have the privilege of claiming his rent from the proceeds of the execution sale.''^ In Lichtenthaler v. Thompson,''^ where there was a guardian of a minor, who leased the land of the latter for a year, and, the mi- nority terminating, the former ward renewed the lease for the following year, and during the latter year an execution sale of the tenant's goods took place, Gibson, J., assuming the guardian to have had the reversion, and to have lost it to the ward, held,, "Rowland v. Goldsmith, 2 Grant, ''''Kline v. Lukens, 4 Phila. 296. Cas. 378; Hampton v. Henderson, i '"Hoskins v. Houston, 2 Clark Clark (Pa.) 438. (Pa.) 489; Lichtenthaler v. Thomp- ">Gollins's Appeal, 35 Pa. 83. son, 13 Serg. & R. 157, 15 Am. Dec, "FricJc V. McClain, 9 W. N. C. 32, 581. 12 Lane. Bar, 78. In a distress the " 13 Serg. & R. 157, 15 Am. Dec. tenant claimed the exemption, and .581. There was a surety in the see- the goods being appraised at less end lease who was interested in the than $300, the landlord abandoned appropriation of the proceeds of sale the proceeding. Subsequently a to the payment of the second year's, creditor issued an execution, as to rent. whose claim there was a waiver. The landlord took the rent. LANDLORD'S PREFERENCE, EXECUTION SALES. 285 for this reason^ that the rent for the former year could not be taken from the ijroceeds. "But what is decisive in this case is, that Kline [the guardian], the landlord for the preceding year, had lost the right to distrain. His title as landlord did not con- tinue to the time of the levy; and consequently his lien, which was originally intended to guard his right of distress whilst he cJaose, within a limited time, to suspend the exercise of it, was gone." A different view was taken in Weltner's Appeal.^" A had been guardian of X, and as such, had leased X's farm for a number of years to Z. On Jime 6, 1865, A was discharged from the trust, and B was appointed in his stead. On September 6th, 1566, Z gave a judgment note to A for rent in arrear during A's guardianship. On this note judgment was entered January 7th, 1567. On June 16th, 1868, B was superseded in the guardian- ship by C. Under A's judgment a levy was made on Z's chat- tels, September 1st, 1868, and a sale was had. It was held that the case must be considered as if the lessor had been the ward. There could have been, on September 1st, 1868, a distress for the rent of any one or of all of the years of guardianship, so that the question of distribution v.'as one of equity.^^ 343. Close of the term. — The goods of the tenant remaining on the premises after the expiration of the term may be dis- trained for rent of the term ; and hence this rent can be claimed from the proceeds of the judicial sale of the goods. The term may have normally expired, or it may have come to an end by a breach of a condition subsequent. ^^ 344. Taken by virtue of an execution. — The goods, the pro- ceeds of which are made applicable to rent due by the 83rd sec- '" 63 Pa. 302. what remained of one year's rent to " The rent of the portion of the the rent of the second guardianship, last year preceding the levy was so as to deprive the first guardian of paid; as the money was made on an the value of the security which he execution for the rent arising under had taken the pains to procure, the first guardianship, there was no "Moss's Appeal, 35 Pa. 162. equitable reason for appropriating 286 LANDLORD AND TENANT. tion of the act of June 16th, 1836, are goods "taken by virtue of nn execution." An attachment under the act of July 12th, 1842, entitled "An Act to Abolish Imprisonment for Debt and to Pun- ish Fraudulent Debtors," is such an execution, when it is fol- lowed by judgment and execution.^* An execution issued to a constable by a justice of the peace,** as well as one issued to the sheriff or coroner by the common pleas or other court of record, is intended by the act. The judgment and the execution may be for a portion of the rent This will not preclude a claim for another portion of the rent, if the claimant is not the execution plaintiff.*^ A receiver of a partnership business makes a sale of goods on the premises. The landlord is not entitled to his rent from the proceeds.®^ 345. The demise.— The goods and chattels on any lands "de- mised for life or years or otherwise" are, by the 83rd section of the act of June 16, 1836, subjected to the rent A grant of land in fee, subject to a perpetual ground rent, is not such a demise. Goods of A on premises held by him in fee subject to two ground rents, one of $185 per year, payable half-yearly to B, and an- ctlier of $259 per year, payable half-yearly to C, were levied on in execution. Though B and C had the right to distrain on the goods, and to re-enter for arrears, they could not take their rents from the proceeds of the execution sale. But the ground tenant making a demise would be the landlord entitled to the prefer- ence.*' A demise for any number of years, e. g., of mining land for 99 years, is within the act.** The demise may be oral*'' or "Morgan v. Moody, 6 Watts & S. should have a lien on the proceeds? 333. As to foreign attachment, vide Lane v. Washington Hotel Co. 19ft Pierce v. Scott, 4 Watts & S. 344. Pa. 230, 42 Atl. 687 ; Cooper v. Eose "AlUn V. Lewis, 1 Ashm. (Pa.) Valley Milh, 174 Pa. 302, 34 Atl. 184; Seitzinger v. Steinberger, 12 559. Pa. 379; Lichtenttialer v. Thompson, "Pattison v. M'Gregor, 9 Watts & 13 Serg. & R. 157, 15 Am. Deo. 581. S. 180; Starh v. Higit, 3 Pa. Super. ^•-'V.-eUner's Appeal, 63 Pa. 302. Ct. 516. "Singerly v. Fox, 75 Pa. 112. '^Moss's Appeal, 35 Pa. 162. Pint, why not, on the grovmd that, ""Greenivood's Appeal, 79 Pa. 294;. tlie landlord's right to distrain hav- Collins's Appeal, 35 Pa. 83. ing been displaced by the law, he LANDLORD'S PREFERENCE, EXECUTION SALES. 287 in -writing. The lease may be oral for a considerable time, and when reduced to writing may be antedated to the time when orally made. The right to distrain or otherwise collect rent for the period prior to the execution of the writing will depend on the establishment of the prior parol lease.''" The lease being drawn up in writing, and orally assented to, and possession of the premises being immediately taken by the tenant, the rent from the beginning can be collected, although the tenant de- clined to sign it until a short time before the levy in execution against him.®^ 346. Use and occupation. — Mere occupation of land, with an expectation on the occupant's part and also on the part of the owner, that the former will pay a reasonable compensation for it, does not create a demise giving rise to a right to distrain for the compensation or to claim it from the proceeds of a judicial sale of the occuijant's chattels.®" 347. A cropper. — A cropper is hired to work the land for a share of the produce. He is only a hireling. The possession of the land remains in the owner. Hence, the remedy of distress and of claim against the proceeds of an execution sale of the cropper's chattels is not applicable.®^ When possession of tlie land is given by the owner to another, for a certain time, and he agTces to give to the owner, in consideration of its use, a certain part of its product, he is a tenant.®* 348. Sublessee. — If the lessee assign over to another his whole term, reserving a rent, without a special clause of distress, he cannot distrain for the rent, nor claim proceeds of an execution "Com. eos rel. IrvAn v. Contner, 21 property of X, and detained them Pa. 206, 18 Pa. 439. until the sale of the goods. '^Greenwood's Appeal, 79 Pa. 294. '^Steel v. Frick, 56 Pa. 172; Frif '''Greenwood's Appeal, 79 Pa. 294; v. Jones, 2 Rawle, 11; Adams v. llc- Gom. ex rel. Irwin v. Contner, 21 Pa. Kesson, 53 Pa. 81, 91 Am. Dec. JS3. 266. Of. Case v. Dams, 15 Pa. 80. "^Steel v. Frick, 56 Pa. 172; Rine- Cf. Megarge v. Tanner, 1 Clark hart v. Oliciiie, 5 Watts & 8. 157; (Pa.) b31, where, on making a levy. Fry v. Jones, 2 Rawle, 11. Cf. the sheriff removed the goods to the Broion v. Jaqueite, 8 W. N. C. 475. 288 LANDLORD AND TENANT. sale of the assignee's goods.®^ If the lessee sub-lets, i. e., reserves to himself a reversion and rent, the right of distress is incident. Hence, when A leased July 28th, 1831, iron works to B for iive years from jSTovember 1st, 1831, and B on August 27th, 1831, rented them for one year to C, and this sublease was renewed from year to year, and on March 23rd, 1835, during the fourth year of the sublease, C's personal property was sold in execution, B was entitled to a landlord's priority in the distribution of the 23roceeds.** 349. Interval between lease and commencement of term. — The demise does not begin, so as to give rise to rent for which dis- tress can be made, with the mere making of the lease. That may precede by weeks, months, or years the commencement of the term. A sheriff's sale of the goods of the tenant on the premises before the inception of the term would not make pay- able from its proceeds any rent on account of the lease. So, being in under one lease, a second lease may be made to the tenant some time before the close of the first lease. If a sheriff's levy were made between the making of the second lease and the commencement of the term created by it, no rent arising from that term would be payable from the proceeds of the sale.^'' 350. Change of landlord. — The reversion may be sold, or pass by inheritance or devise. The alienee, heir, or devisee will then become landlord as to all rent falling due subsequently, and have the landlord's right with respect to tlie proceeds of an ex- ecution. A lessor dying in September, his devisee could claim for the quarter's rent becoming due on September 30th, and for the following rent."* A, having leased the land for ten years from April 1st, 1844, at an annual rent, payable at the end of the year, conveys it to B January 2, 1845, reserving to himself "Ege V. Ege, 5 Watts, 134; Mc- '"Martin's Appeal, 5 Watts & S. J(?e V. Ege, 5 Watts, 134. Eog- ed the rent. Minnig v. Stcrrett, 7 ers, J., thought the notice in time, if Pa. Co. Ct. 73. given before the money was paid over. LANDLORD'S PREFERliJNCE, EXECUTION SALES. 291 sale and the landlord gives him notice before the return day."'' A notice after the sale, if the landlord had no knowledge of the proceeding before, and if the officer has not paid over the pro- ceeds nor returned the writ, will not be too late. The constable, if he ignores the notice, will be liable. -"^^ A notice after a stay of execution, and the subsequent sale by the debtor of his goods, is too late;^^^ as is one after a sale in execution to the plain- tiff in the writ, and after a settlement with the sheriff, by the purchaser, by an exchange of receipts, though the landlord had no knowledge of the execution. ■'•'® In Mitchell v. Steic- art/^'' a levy was made May 27th, 1819. The defendant in- duced the sheriff to relinquish possession by giving a bond con- ditioned to produce the goods, or to discharge the debt. On iSTo- \ ember 1st, 1819, defendant paid $100 to the sheriff, and de- li;"ered goods which the sheriff subsequently sold for enough to pay the debt. On February 7th, 1820, the proceeds of that sale undergoing distribution, the coxirt ordered the landlord to be paid. Ifo notice prior to this day had been given of the land- lord's claim. It was too late, the writ having been returned, said Gibson, J. 353. Staying the -writ. — The 85th section of the act of June 16th, 1836,*^* directs that whenever goods liable to the payment of rent shall be seized in execution, the proceedings thereupon shall not be stayed by the plaintiff therein without the consent, in writing, of the person entitled to the rent, first obtained. The officer who has charge of the writ, sheriff or constable, will be liable to the landlord on his official bond or recognizance if he permits the writ to be stayed in violation of this command of the statute,^ *^ or possibly may, on a riile. granted on the landlord's "'Fisher v. Allen, 2 Phila. 115. '" 13 Serg. & R. 295. ^"A.llen V. Leims, 1 Ashm. (Pa.) "'1 Pepper & Lewis Digest, 2644; 184. P. L. 755. "^Work's Appeal, 92 Pa. 258. "'Borlin v. Com. 110 Pa. 454, 1 ^"Schuyler v. Philadelphia Coach Atl. 404. Co. 29 W. N. C. 343. 292 LANDLORD AND TENANT. petition, he directed by the court having control of the execu- tion, to pay him the rent.^^" The fi. fa. being returned "unsold for want of buyers," a vend. ex. subsequently issued. The de- fendant paid a portion of the debt to the plaintiff in the writ, and, at his direction, the sheriff, having notice of the landlord's claim, then returned it "stayed by order of the plaintiff." The sheriff and his sureties were responsible upon his recogniz- ance.*^^ Before the levy was made, the defendant in the ex- ecution had advertised a vendue of his property. After the levy, the creditor and he agTeed that this vendue might proceed, and the sheriff was notified not to advertise the sale. The sheriff took no further action on the writ. The vendue was held a week after the levy. Three days after the vendue, which was five days after the return day of the writ, the landlord notified the sheriff of his claim to rent, and, upon his rule, the court directed the sheriff to pay the rent. Though the writ had been practically stayed by the plaintiff in it, without the consent of the landlord, it was held by the supreme court that the landlord had unduly postponed the giving of the notice, and the order of the court be- low was reversed. Had that notice been given before the vendue, the sheriff might have resumed possession of the goods. But, when it came to him, it was too late for him to retake the goods.-*^^ If the landlord proves his whole claim for rent before the referee in bankruptcy proceedings, begim by the tenant, he thereby relinquishes his right to take the rent from the proceeds of an execution. After such relinquishment the execution cred- itor may satisfy the judgment. The landlord, subsequently amending his claim for rent before the referee, so as to claim only the excess beyond what he was entitled to from the pro- ceeds of the execution, cannot have the satisfaction of the judg- ment stricken off, in order that he may be subrogated to it, to "••Work's Appeal, 92 Pa. 258. ^"Work's Appeal, 92 Pa. 258. "'Borlin v. Com. 110 Pa. 454, 1 Atl. 404. LANDLORD'S PREFERENCE, EXECUTION SALES. 293 tlie extent of the unpaid rent, even for the purpose of reaching the property set apart to the tenant under the exemption law.-*^* 354. landlord's claim postponed to that of laborer. — The act of May 12th, 1891,'^* protects the wages of laborers of various classes, for any period not exceeding six months, and for any amount not exceeding $200 ; declaring that the visages "shall be preferred and first paid out of the proceeds of the sale" of the real and personal property of the employer, by execution or othervpise, on account of the death or insolvency of such person. Similar acts-had preceded it. The phrase "shall be preferred and first paid," in the act of April 9th, 1872, it was held, conferred on the laborer a right to be paid in advance, not simply of the execution creditor, but of the landlord.-'^^ The same interpre- tation was put on it, in the act of June 13th, 1883.^^® Under the act of Congress of July 20th, 1868, taxes on distilled liquors were declared to be "a first lien on the spirits distilled, the dis- tillery used for distilling the same, the stills, vessels, fixtures, and tools therein," as well as on the ground on which the dis- tillery was situated. The taxes must be paid in preference to the landlord, or to the execution creditor whose writ has pro- duced the sale.-'^^ 355. Bankruptcy. — When, by proceedings in bankruptcy, be- gun between the issue of an execution against the bankrupt and ^Turrell v. Ball, 26 Pa. Co. Ct. Nogle v. Cumberland Ore Bank Co. 1 36. The lease contained no waiver Chester Co. Rep. 491; Woodmansie of the exemption. The judgment v. Boyer, 1 Lehigh Valley L. R. 106; creditor may waive the waiver of O'Brien v. Hamilton, 12 Phila. 387. the exemption, without the consent Contra, Maloy's Estate, 1 Del. Co. of the landlord. Rep. 331. The principle of Wood's '"2 Pepper & Lewis Digest, 4788; Appeal, 30 Pa. 274, arising under P. L. 54. the act of April 2d, 1849, and deoid- "^Riddleshurg Coal & I. Co.'s Ap- ing that miners got by It no prefer- peal, 114 Pa. 58, 6 Atl. 381; Hunt- ence over landlords, is not applica- ingdon & B. T. R. Co.'s Appeal, 114 ble to the later acts. Pa. 66; Ellemoold Coal Co.'s Assign- ''° P. L. 116; Timmes v. Metz, 156 ment, 9 Lane. Bar, 144; T^oll v. Pa. 384, 27 Atl. 248. Kline, I Del. Co. Rep. 101; Periepi ^'Wungan's Appeal, 68 Pa. 204. V. Frankenfield, 2 Del. Co. Rep. 112; 294 LANDLORD AND TENANT. the levy thereunder on the chattels of the tenant on the demised premises, the title passes to the assignee or trxistee in bank- ruptcy, but subject to the lien of the execution, it will also pass subject to the landlord's prior right to payment from the pro- ceeds of a sale.-'^* In Evans r. Lincoln Co}^^ the trustee in bankruptcy of the tenant sold goods to the landlord, agreeing that the rent for which the latter had a preference might be set off against the price. The landlord having got possession of the premises during the term, and relet them, could claim only the difference between the rent reserved on the original lease, and that obtained under the new lease. 356. Costs.— The 84th section of the act of June 16th, 1836,-'^*' provides that if the proceeds of a sale in execution are insufficient to pay the landlord, together with the costs of ex- ecution, only so much of the costs shall be paid as the landlord would have been liable to had he sold under a distress. When the landlord claims from its proceeds he adopts the execution as the equivalent of a distress ; hence, the sheriff is entitled to his costs in full. The costs referred to in the act are the costs mentioned in the execution. The sheriff's costs are never so mentioned.-*^^ 357. liability of sheriff, constable. — The officer (and his of- ficial sureties) who conducts the execution will be responsible to the landlord if he fails to perform his duty toward him. If, e. g., the sheriff refrains from sale on a stay of the ^v^it to which the landlord, who has given due notice of his claim, does not con- sent, he and his sureties will be liable on his recognizance.^*^ He '"Barnes's Appeal, 76 Pa. 50. Cf. In a suit by the execution creditor, Longstreth v. Pennock, 9 Phila. 394. upon the recognizance, the plaintiff "° 204 Pa. 448, 54 Atl. 321. cannot recover more than the '*■ 1 Pepper & Lewia Digest, 1956 ; amount of his debt, less the land- P. L. 755. lord's rent, if the goods levied on '"Hennis v. Streeper, 1 Miles could not have yielded more. Com. (Pa. 269. ea rel. Irwin v. Oontner, 21 Pa. 266. ""Borlin v. Com. 110 Pa. 454, 1 Atl. 404. LANDLORD'S PREFERENCE, EXECUTION SALES. 295 ■will be liable for paying the product of the execution sale over to the creditor too soon after the sale, and too long before the return day of the writ, although the landlord, not having learned of the execution, has given no notice to him.'*^ A constable who removes the goods after levy, and sells enough of them to pay the debt only, and then, for the first time, receives a notice from the landlord, should either return the goods to the prem- ises, in order that the landlord may there distrain upon them, >or he should make a further sale for the landlord's benefit. If he does neither he will be liable.^'* If notice of the landlord's claim comes only after the sale of all the goods and the money has been paid over, actually or virtually, the sheriff will be liable for nothing. -"^^ If the sheriff pays the proceeds to the landlord, when he should not, he will be liable to the execution creditor.''^* 358. landlord's preference in assignments. — The 1st section of the act of May 26th, 1891,^^^ enacts that when any tenant makes an assignment for the benefit of creditors, of goods on the de- mised premises which are liable to distress for rent, the landlord shall receive, from the proceeds of the sale of such goods by the assignee, rent due him at the making of the assignment, not exceeding one year's. If these proceeds are not sufficient to pay the landlord and the costs of the assignment, so much of the oosta^^* shall be deducted as the landlord would be liable to pay "'Fisher v. Allen, 2 Phila. 115. premises, ceased to be subject to dis- "* Allen V. Lewis, 1 Ashm. (Pa.) tress, and the landlord had no right 184. The jurisdiction of a justice in to payment from the proceeds of their such cases is denied in Seitzinger v. subsequent sale. Morris v. Parker, Steinberger, 12 Pa. 379. 1 Ashm. (Pa.) 187; Re Ellenwold ' '^Schuyler v. Philadelphia Coach Goal Co. 7 Luzerne Leg. Reg. 19, 9 Co. 29 W. N. C. 343. Lane. Bar, 144. "'Bvxchard v. Bees, 1 Whart. 377. The assignee might, by contract, '" 1 Pepper & Lewis Digest, 202 ; bind the goods for the rent for which P. L. 122. This act was not retro- the landlord could have distrained. spective. Re Glazier, 33 W. N. C. Osborne's Estate, 5 Whart. 267 ; Ma- 310. loy's Estate, 1 Del. Co. Rep. 331. Formerly, the assigned goods, so "' This rule was applied in Lane soon as they were removed from the v. Washington Hotel Co. 190 Pa. 296 LANDLORD AND TENANT. in case of a sale under distress, and the residue shall be paid to him. The 31st section of the act of June 4th, 1901,^^® enacts that "any lien or claim for wages, for the rent of mechanics or materialmen, or othenvise, which, by virtue of any act of as- sembly, would be preferred in case of an execution, shall retain its preference in case of an assignment, and to the same extent." If goods of another are on the demised premises when the as- signment is made, — e. g., a cider press, lent to the tenant with a provision for its sale to him, — and such goods are sold by the assignee, the landlord, as against its owner, will be entitled to its proceeds for rent in arrear.-'*" 359. Landlord's preference when lessee dies. — The 21st sec- tion of the act of February 24th, 1834,"^ directs that all debts owing by any person at his death shall be paid by his executors or administrators in the following order: "(1) Funeral ex- penses, medicine furnished and medical attendance given during the last illness of the deceased, and servants' wages, not exceeding one year; (2) rents, not exceeding one year; (3) all other debts, without regard to their quality, except debts due to the state; (4) debts due to the state." The preference thus given is not conditioned on the presence of distrainable goods on the prem- ises at the time of the lessee's death. Payment mil be allowed, though, at his death, he had no goods on the premises.**^ Rent which, at the lessee's death, has become overdue, and so much of rent accruing but not yet due as represents the ratio between the portion of the rent period within which the death occurred, that 230, 42 Atl. &97, where a receiver ""1 Pepper & Lewis Digest, 1432; took charge of a leased hotel and fi- P. L. 70. nally sold the goods in it. The land- "'Dawson's Estate, 4 Lane. L. Rev. lord had a right to the proceeds less 343, 3.5 Pittsb. L. J. 63. JBell, P. J., so much costs as, under the rule, expressed the opinion in Re Ralston, should be deducted. No deduction 2 Clark (Pa.) 224, that the prefer- was made for receiver's commissions, ence was in aid and lieu of the dis- counsel fees, etc. tress and for rent for which the les- "• P. L. 404. sor might distrain at the death of '"Barnhart's Estate, 13 York Le- the tenant, gal Record, 129. LANDLORD'S PREFERENCE. EXECUTION SALES. 297 preceded the death, and the portion following, are entitled to the preference."^ Eent, e. g., being payable quarterly, and the tenant dying one month after the commencement of one quarter, the lessor was entitled to receive, under the statutory preference, one third of the quarter's rent.^** The rent being payable yearly, at the end of the year, and the year ending April 1st, 1842, if the tenant died Oct 6th, 1841, rent for six months and six days was payable to the landlord before general creditors were paid.-**^ So much of the rent becoming payable by the terms of the contract, after the tenant's death, as accrues likewise after his death, is entitled to no preference, though, like other debts, it is entitled to a ratable payment, if the estate is insolvent.-'*® As the rent allowed a preference does not ex- ceed one year's, when a year's rent due before the tenant's death is claimed, interest on it will not be preferred.**'' It would have to share ratably with other debts. The agreement be- tween lessor and lessee stipulating that the rent shall be $3,000, with the addition of taxes upon the additional valuation which may be assessed upon this property for the year, above the assessment of 1887, this tax is a part of the rent, and, with the rent proper, may be paid from an insolvent tenant's estate, in preference to other creditors,-'*^ and under an agreement that the tenant should pay for any gas used on the premises and all water rents, which made the water rents a part of the rent, they were entitled to preferential payment. ""^^ Several cotenants of "'Jaguette's Estate, 1 Chester Co. "'Morgan's Estate, 11 Pa. Co. Ct. Rep. 197. 536. "'Kemp's Estate, 34 Pittsb. L. J. A widow to whom dower has been 82; Walker's Estate, 9 Pa. Co. Ct. awarded may distrain for the an- 515. nual interest on the sum set apart "^ In Be M'Kim's Estate, 2 Clark as rent. She is entitled to a prefer- (Pa. ) 224, so the auditor decided, ence only for one year's interest, and no exception was taken by cred- Turner v. Sauser, 1 Watts, 420. itors. Bell, P. J., doubted. ""Scott's Estate, 35 Pittsb. L. J. "'Rainow's Estate, 4 Kulp, 153. 443. But a lien for the water rents "''Vandegriff's Estate, 3 Pa. Dist. that the tenant had neglected to pay, R. 421. being filed, and an execution issued. 298 LAXULOllD AND TENANT. coal land agree that B, one of them, "may have the privilege of taking coal," he paying to the owners their proportions of the sum of 25 cents per cubic yard of coal taken out, as rent. On B's death, insolvent, the cotenants were entitled to be paid in full the rent that had become payable before.*^" The rent pre- ferred is not more than one year's, but it does not need to be the rent of the last year of the tenancy or of any particular year.-*^^ tlie costs which the landlord had to ^"Greenough's Appeal, 9 Pa. 18. pay, in order to prevent a sale of the "^Morgan's Estate, 11 Pa. Co. Ct. premises, would not be entitled to 536. the preference. CHAPTER XIX. TENANCY AT WILL AND FROM YEAR TO YEAE. 360. Tenancy at -will. 361. Will of tenant. 362. Unenforceable contract. 363. Lease from year to year. 364. Expiration of term. 365. Statute of frauds. 366. Sheriff's sale of reversion. 367. Notice to quit. 368. Notice by tenant. 369. Contractual duty to give notice, 370. Revocation of notice. 371. Death of lessee. 372. Lease from quarter to quarter. 373. Lease from month to month. 374. Notice to remove. 375. Necessity of notice to terminate tenancy. 376. Contractual necessity to give notice. 377. Notice by tenant. 360. Tenancy at will. — The lease may be terminabl© at any time at the will of the lessor, the parties so contracting. It may be made terminable after giving a certain notice, the lessor being able to give this notice at any time. The lessee agreeing to re- move and give peaceable possession to the lessor within fifteen days after receiving notice so to do, at the expiration of that time after the notice, the lessor may begin ejectment and re- cover the land.^ The lease may be made terminable upon three months' notice, in case of a sale of the reversion. The mere fact of sale and of knowledge of it by the tenant would not end his term. If in the fall he surrenders the term, on receiving knowl- ^MattJiews v. Rising, 31 Pittsb. L. remained unpaid the lessor might re- J. N. S. 163. The lease also con- enter on fifteen days' notice, tained the covenant that if the rent 299 300 LANDLORD AND TENANT. edge of the sale, without notice from the landlord to give up in three months, he does not lose the right to the way-going crop then in the ground.^ A lease of a house in a cemetery, by a cemetery company, provided for a six months' notice to quit when the company should have occasion for part of the house. The lessor., had no right to terminate the term by a six months' notice, until the house was needed for some proper purpose con- nected with its business. Possession could not be recovered from the tenant without proof of such need.^ 361. Will of tenant. — The lease may be terminable by the tenant on notice, e. g., on one month's notice. The lease being of the privilege of occupying the Academy of Music upon cer- tain nights, the lessee may show a custom under which lessees for such purposes may give a month's notice of the desire to cancel the lease, and a notice given in conformity with the cus- tom will terminate his liabilities as respects future rent.* 362. Unenforceable contract.— A contract which leaves some of its terms — e. g., the rent to be paid — to be settled later is, until such settlement, unenforceable. But if possession of the prem- ises is taken under it the lessee becomes a tenant at will, who if allowed to remain for a year and longer by the lessor mil be- come a tenant from year to year, exactly as if the contract, though complete in all its terms, had been for more than three years, and in parol.° 363. Lease from year to year. — A lease may be from year to year, though the rent is payable at the end of shorter intermedi- ate periods, e. g., quarters,® or months.^ If no time is men- 'Comfort V. Duncan, 1 Miles premises by the tenant, or 50 bricks (Pa.) 229. out of every 1,000 made, as the par- 'M'oodland Cemetery Co. v. Gar- ties should subsequently determine. ville, 9 Phila. Leg. Int. 98. "Lloyd v. Cozens, 2 Ashm. (Pa.) 'American Academy of Music v. 131; Lesley v. Randolph, 4 Rawle, Bert, 8 Pa. Co. Ct. 223. 123. A lease "by the year" is a 'Walter v. Transue, 22 Pa. Super, lease for one year only. Pleasants Ct. 017. The rent was to be 25 v, Claghorn. 2 Miles (Pa.) 302. cents per 1,000 bricks made on the ^Goldsmith v. Smith, 4 Phila. 31; TENANCY AT WILL AND FROM YEAR TO YEAR. 301 tioned as the limit of the term, but the letting is stated to be at an annual rent, e. g., of $800,* or at an annual rent of, e.g'.,$300, payable in monthly instalments,'' the lease will be from year to year. Indeed, in Brown v. Butler}'^ Sharswood, J., says of a lease at "$12.50 per month, without specifying any time," that it was from year to year. A contract by which B is put in pos- session of a house, makes repairs, and has the right to remain until, at the rate of $60 per year, the rent reimburses him for the repairs, — makes him, after he has been in possession for several years, a tenant from year to year, entitled to notice to quit, if it does not (as it does), make him a tenant for a term to be defined by the expenditures in the improvements.^^ There can be no doubt when the lease expressly states that it is from year to year. In Woelpper v. Philadelphia/^ the city, under an ordinance providing for a lease of market stalls to the high- est bidders, the successful bidders becoming tenants from year to year at a fixed rent, leased stalls to X, who, as highest bidder, paid $2,240 for the lease. When, twenty years afterwards, the city tore down the market house, he was not entitled to be reim- bursed this money. "He paid his money voluntarily for the privilege of becoming a tenant, and he enjoyed all the advant- ages of his position from 1S35 to the time of the removal of the sheds." A lease of an iron-furnace to continue as long as the lessor receives a revenue of not less than $1,000 a year royalty on account of iron made, and to be voidable at the option of the lessor, if the tenant should fail to pay $1,000 per year, was Brown v. Butler, 4 Phila. 71; Hey v. "4 Phila. 71. McGrath, 81* Pa. 310; Milling v. '■^Thomas v. Wright, 9 Serg. & R. Becker, 96 Pa. 182; Arrott Steam 87. Power Mills Co. v. Way Mfg. Co. 143 " 38 Pa. 203. Of. Boggs v. Black, Pa. 435, 22 Atl. 699. 1 Binn. 333. Of. Moore v. Miller, S 'Lesley v. Randolph, 4 Rawle, 123. Pa. 272, wliere the lease was to dig 'Hey V. McGrath, 81* Pa. 310; ore, but whether it was at will or Jones V. Kroll, 116 Pa. 8S, 8 Atl. from year to year was referred to 857. the jury. 302 LANDLORD AND TENANT. more than a lease at will. It created at least a tenancy from year to year.^^ 364. Expiration of term.— If, after the expiration of a defi- nite term, the tenant continues in possession, he may be treated as a trespasser,^* or as a tenant at will. And if he is treated as a tenant at mil, he becomes, ipso facto, a tenant from year to year, and is entitled to notice to quit, notwithstanding the deatli of the lessor during the hold-over year.''" 365. Statute of frauds. — A parol lease for more than three years,-** or for three years which are to begin at a time future to the making of the lease,* ^ or a written lease made by an agent of the owner, whose authority is not in \mting,-'* will constitute the lessee a mere tenant at will, who can be ejected at any time. But one of the incidents of an estate at wiU is its convertibility, upon the annual payment and acceptance of the rent, into a tenancy from year to year. A parol demise for more than three years is changed into a tenancy from year to year, if the lessor allows the tenant to remain in possession a year, and receives the prescribed rent from him for the year,^* or otherwise mani- "ifec/c V. Borda, 18 W. N. C. 212. 129, 27 Am. Dec. 338; Dvmii v. The lessor could recover damages for Kothermel, 112 Pa. 272, 3 Atl. 800; the breach of the covenant to give Jennings v. MoComb, 112 Pa. 518, 4 up possession of the premises "in as Atl. 812. good condition as when put in blast, '"Dumn v. Rothermel, 112 Pa. 272, wear and tear excepted." 3 Atl. 800; Walter v. Transue, 22 "He may be ejected. Overdeer v. Pa, Super. Ct. 617; M'Dowell v. Levns, 1 Watts & 8. 90, 37 Am. Dec. Simpson, 3 Watts, 129, 27 Am. Dec. 440; Adams v. Adams, 7 Phila. 100. 338; Plwcnixville v. Walters, 184 Pa. ^'Boniest v. Grayson, 200 Pa. 59, 615, 39 Atl. 490; MuUcr's JJstate, 16 11 Pa. Dist. R. 497, 55 Atl. 786. Phila. 321. In Clark v. Smith, 25 '"M'Dowell V. Simpson, 3 Watts, Pa. 137, a parol gift of land to X, 129, 27 Am. Dec. 338; Dumn v. followed by his possession for three Rothermel, 112 Pa. 272, 3 Atl. 800; years, was said to make him a ten- Jones v. PetermM,n, 3 Serg. & R. 543, ant from year t» year so that the do- 8 Am. Dec. 672; Loran's Estate, 10 nor, not having the possession, conld Pa. Co. Ct. 554. not maintain trespass q. o. f. In ^''Whiting v. Pittsburgh Opera Heartsog v. Borgel, 7 Pa. Super. Ct. House Go. 88 Pa. 100; Jennings v. 267, a parol donee, it was hel^ could McGomh, 112 Pa. 518, 4 Atl. 812. be ejected at any time by the donor "il'Dourell v. Simpson, 3 Watts, or his devisee. TENANCY AT WILL AND FROM YEAR TO YEAR. 303 fests the intention to treat the tenant as one from year to year. Hence, the tenant under a parol lease for ten years may vacate the premises, without responsibility for after-accruing rent, at the end of the first or any later year.^" 366. Sheriff's sale of reversion. — "When the reversion is sold, in execution, pending the lease, on a lien which antedated it, the purchaser may recognize the lessee as a tenant or may require the possession to be given up to him, under §§ 105,^' 111,-- and 119^^ of the act of June 16, 1836. The lessee becomes a tenant at will.'^* A tenant of the purchaser from a vendee of land, the purchase being subsequent to a judgment against the vendee, has no right to the possession as against the purchaser at the s-heriff's sale imder the judgment. The latter may enter the premises and set the goods of the tenant out upon the liighway, without being liable to an action of trespass.^^ 367. Notice to quit. — When the lessee is one from year to year or has become such by holding over beyond the term, he has a right to continue in possession until he receives a notice to quit The notice must designate the proper time to quit, viz., the close of the year. A notice, e. g.^, in the first month of the year, to leave in three months, would be ineffectual.^" The notice must be unconditionally to quit. A notice not sufBeiently unequivocal to show the landlord's intention that the premises shall be vacated,^'^ e. g.^ to leave or pay an increased rent,^® or "Loran's Estate, 10 Pa. Co. Ct. 66, 70 Am. Dee. 154. Cf. Hemphill 554. A ratification after the death v. Tevin, 4 Watts & S. 535 ; Wilson of the tenant, by the lessor, will not v. Huhbell, 1 Pennyp. 413. make the lease valid for the entire "Kellam v. Janson, 17 Pa. 467. term. A "Brown v. Tanhorn, 1 Binn. 334, "1 Pepper & Lewis Digest, 1987; note; Fahnesiock v. Faustenauer, 5 P. L. 755. Serg. & R. 174; Dellone v. Oerber, 3 " 1 Pepper & Lewis Digest, 1990 ; York Legal Record, 23. P. L. 755. ^Dellone v. Gerber, 3 York Legal '"l Pepper & Lewis Digest. 1993; Record, 23. P. L. 755. '^ Gf. O'Neill v. Cahill, 2 Brewst. "Duff V. Wilaon, 69 Pa. 316; Ad- (Pa.) 357; Pittfield v. Eidng, 6 (ims V. McKesson, 53 Pa. 81, 91 Am. Phila. 455. Dec. 1«3; Biitinger v. Baker, 29 Pa. 304 LANDLORD AND TENANT. to leave or pay an increased rent, or purchase the premises,*' may be ignored by the tenant. The notice to quit must precede by three months the close of the year.^' Where the year began April 1 and closed at midnight of March 31 of the following year, it was held that notice given on January 1 was one day too late,*-* though where the term began January 15, a notice on October 15 of the intention to vacate the premises was assumed to be a three months' notice.^* But while it must be at least three months long, it may be longer. Thus a notice January 25 to vacate the premises at the end of the year, viz., June 1, was valid.^^ It matters not how the lease from year to year arose. If it was an oral lease for more than three years and ha,s be- come a lease from year to year, the notice must be given to ter- minate the tenant's right to tiie possession.^* 368. Notice by tenant. — Whether a tenant from year to year must give notice, preceding by three months the close of the current year, in order to escape liability for the rent of the fol- lowing year, if the landlord chooses to hold him liable, is not ''Byrne v. Funk, 13 W. N. C. 503. a, three months' notice. The lease Cf. Oakford v. Nirdlinger, 1&6 Pa. ending January 1, a notice on Sep- 162, 46 Atl. 374. tember 29 was early enough. Fitz- "Loffan V. H err on, 8 Serg. & R. patrick v. Childs, 2 Brewst. (Pa.) 459; Pickering v. O'Brien, 23 Pa. 365. Super. Ct. 125; Lesley v. Randolph, '^Parsons v. Roumfort, 2 Pearson 4 Kavvle, 123; Bedford v. M'Elher- (Pa.) 81. ran, 2 Serg. & E. 49 ; Brown v. Van- '^'Binsicanger v. Dearden, 132 Pa. horn, 1 Binn. 334, note; Dunn v. 22!), 19 Atl.' 32. Rothermel, 112 Pa. 272, 3 Atl. 800; ''Lloyd v. Coxens, 2 Ashm. (Pa.) Rich V. Keyser, 54 Pa. 86; Dellone 131. A tenant from year to year, V. Gerter, 3 York Legal Record, 23 ; whose term ended on March 29, was Lloyd V. Cozens, 2 Ashm. (Pa.) 131; notified in February, 1800, to leave Uey V. Mcdrath, 81* Pa. 310; on March 29, 1801. The tenant be- Thomas v. Wright, 9 Serg. & R. 87 ; came a trespasser after the latter Fahnestock v. Faustenaner, 5 Serg. date, by remaining in possession. &■ R. 174. A notice on September Hoggs v. Black, 1 Binn. 333. Lease 20, 1882, was not in time if the year expiring March 31, 1901, notice to closed on December 4, but was in quit December 28, 1900, is valid, lime if the year closed on December Broun v. Montgomery, 21 Pa. Super. 22. Dumn v. Rothermel, 112 Pa. Ct. 262. 272, 3 Atl. 800. The term beginning '^M'ttUer v. Transue, 22 Pa. Super, .lanuary 15, notice on October 15 by Ct. 017. the tenant was tacitly assumed to be TENANCY AT WILL AND FROM' YEAH TO YEAR. 305 entirely clea.r. It was declared in 1879, by Trunkey, J., to be "not wholly free from doubt. ""^ In Brown v. Brighily,^^ it was decided by Arnold, J., that the tenant may leave at the end of the year, without giving any notice. A judgment of the dis- trict court of Philadelphia that a tenant from quarter to quar- ter was not required to give notice of an intention to vacate the premises was affirmed by an equally divided court in 1848, in Cook V. Neilsonj^'^ and that a tenant from month to month is not required to give notice to the landlord was assumed in Hollis v. Burns.^^ 369. Contractual duty to give notice. — The lease may re- quire from a tenant from year to year notice of his intention to quit. It may prescribe a period and also a mode. . It may, e. g., require a written notice.''^ But if a verbal notice is received without objection by the lessor or his agent, a written notice will be considered to be waived. The tenant dying, an otfer by liis executor, in the midst of the year, to surrender possession, though not accepted, is equivalent to notice that the premises will be given up at the end of the year.*" 370. Eevocation of notice. — After a notice to quit, the lessor may agree with the tenant that the latter shall continue for an- other year. Whether because the notice would then be re- voked,*-* or on account of the new contract, the tenant would have a right to continue in possession for another year. It would be necessary to distinguish, however, between a willingness on ^''Wilgus V. Whitehead, 89 Pa. " 10 Pa. 41. Cf. Goldsmith v. 131. In Loran's Estate, 10 Pa. Co. Smith, 4 Phila. 33. Ct. 554, 20 Phila. 174, 29 W. N. C. ^ 100 Pa. 206, 45 Am. Rep. 379. 115, it seems assumed that notice is ^Smith v. Snyder, 168 Pa. 541, 32 necessary". Knowledge of the ten- Atl. 64. ant's death, and tender of the key to "'Loran's Estate, 10 Pa. Co. Ct. the landlord by the administrator, 554, 20 Phila. 174, 29 W. N. C. 115. are said to be equivalent to notice. " Cf. Supplee v. Timothy, 124 Pa. '» 14 W. N. C. 497, 17 Phila. 252. 375, 16 Atl. 864. Of. Lesley v. Randolph, 4 Rawlp, 123; Lane v. Nelson, 167 Pa. 602, 31 Atl. 864. Land. & Ten. 20. 306 LANDLORD AND TENANT. the lessor's part, after giving the notice, to treat and actually- treating with the tenant on the one hand, and coming to an agreement on the other. The former, not resulting in an agree- ment, would not prolong the tenant's right of possession.*^ 371. Death of lessee. — On the death of a tenant from year to year, possibly the lease will come to an end at the termination of the current year without affirmative action by his administrator,, such as retention of possession. The continuance in possession for four years of two sisters, who had resided with him, vsdll not be deemed a renewal from year to year of his tenancy, but the- creation of a new lease between the lessor and them.*' Un- doubtedly if the administrator gives notice to the landlord that he will surrender at the end of the current year, and he accord- ingly withdraws from all possession, there will be no liability for rent for any subsequent year.** 372. lease from quarter to quarter. — A tenancy from quarter to quarter may be explicitly created by the use of the phrase- It is impliedly created when, no term being defined, the rent reserved is so much per quarter. A note dated September 24, 1844, addressed by the owner to X, running thus : "Sir. The rent of the house you occupy will be $250 per quarter, commenc- ing on the 10th of December next," — was followed by X's con- tinued possession until June 10. A tenancy from quarter to quarter, and not from year to year, was created.*^ The tenant cannot be compelled to leave at the end of any quarter, unless he has received a quarter's notice to quit, but he may leave at the end of any quarter without giving notice to the lessor of his intention to do so.*® "Brown v. Montgomery, 21 Pa. "Loran's Estate, 10 Pa. Co. Ct. Super. Ct. 262. 554. '^Colhoun's Estate, 8 Pa. Co. Ct. «(,oofc v. Neilson, 10 Pa. 41; Man- 550. The court, however, admits ,„ , „ ri r> ^in ^ , on ,, , , . i ij '61/ V. Dupuy, 2 Whart. 162. that a term from year to year would " '^ •" continue in the original lessee and ^°°*= ^- ^'eiZson, 10 Pa. 41. No- bis administrator until it was ended tice was given four days before Oie by surrender or assignment. An end of the quarter. The lessee was implied surrender is assumed. not liable for the next quarter's TENANCY AT WILL AND FROM YEAR TO YEAR, 307 373. Lease from month to month. — The letting may be ex- plicitly from month to month.*'' A letting "for $50 per month," nothing being said about a year, or any other duration of the let- ting, is a letting from month to month,*^ as is an agreement be- tween A and B that B shall occupy A's land, and pay a rent of $25 at the end of each month, no period of occupancy being otherwise indicated."" The only evidence as to the term being that the tenant of a house has paid $27.50 per month for eight months, the inference that the lease was for a year, or from year to year, or other than from month to month, is not warranted.^** The lease, though prescribing a monthly rental, may require the tenant to leave at any time on five days' notice. It could not then constitute a tenancy from month to month,*^ and a lease of a room "by the month at $10 a month, payable in advance, to be given over to the same [the lessor] April 1, 1886," creates a term ending April 1st, 1886, and not from month to month.^^ 374. Notice to remove. — The tenant under a lease from month to month is not required to vacate at the end of a month unless he has received a month's notice from the landlord that he must then remove, unless the contract provides otherwise. The contract may explicitly require the month's notice from the rent. Cf. Lane v. Nelson, 167 Pa. ble for the rent of the whole term. 602, 31 Atl. 8«4. If the tenant for a term (which is to "Williams v. McAnany, 1 Pa. Dist. run from year to year, until he gives R. 128; Schuliz v. Burloch, 6 Pa. three months' notice, before the end Super. Ct. 673; Qomlt v. TJeal, 6 of any year, of his intention then to Phila. 61; Veditz v. Levy, 18 Phila. leave), gives the notice but subse- 328. quently states to the lessor that he ^Mollis v. Burns, 100 Pa. 206, 45 will be willing to stay on from Ara. Rep. 379; Jones v. Kroll, 116 month to month, who, being a trus- Pa. 85, 8 Atl. 857. tee, says he will consult the cestui "Wall V. Ullnian, 2 Chester Co. que trust and will let the tenant Rep. 178. know in time, and, without hearing, '"3ess's Estate, 2 Woodw. Dec. 339. the tenant stays on, he will not be- Cf. Brown v. Butler, 4 Phila. 71. come a tenant from month to month, "S. g.. Stout Goal Co. v. O'Donell, but will be liable to the landlord 4 Kulp, 495. for the rent of another year. Hmilh '■Diehl v. Lee (Pa.) 8 Cent. Rep v. Snyder, 168 Pa. 541, 32 Atl. 64. 867, 9 Atl. 805. The tenant was lia- 308 ;■ LANDLORD AND TENANT, . lessor,^^ or it may reqiiire thirty days' -written notice^* or notice of any other duration. If the lease requires the lessor to give notice of his intention to terminate the tenancy, a notice simply requiring the .tenant to remove from the premises "which you now hold as tenant under me, at the end of your current term, to wit, the third day of July, 1865," is insufficient, since,not de- claring the intention to terminate the tenancy, it assumes that the term will end on the day mentioned, independently of the notice of such intention.^^ The term beginning ISTovember 26, 1886, a notice served on November 26, 1891, is in,suificient to entitle the lessor to the possession on December 26. A judgment in ejectment having been entered on December 28, on warrant of attorney, the rule to open it was made absolute.^® The, lessee may remove at the end of any month, although he has given no previous notice of his intention,''^ unless he stipulates, as he may, to give thirty days' notice,^® one month's notice,?^ or notice of any other duration. 375. Necessity of notice to terminate tenancy.^"\Vhen the lease is to determine at a certain time, there is no occasion for notice from the lessor to the lessee that he must surrender the possession, because the time of termination is as well kno^vn to the tenant as to the landlord, and if the tenant wishes to renew the lease, it is his business to apply to the landlotd'for a renewal. If no such application is made, the landlord has a right to take for granted that the lease is to expire at the appointed time.*** Hence, if the lease is for less than one year, viz., until April 1st, 1816,''-' or for one year,''^ or other longer tijcae,"" the landlord ^•YedUz V. Levy, 18 Phila. 328. '"Logan v. Herron, 8 Serg. & R. "Gault V. Neal, 6 Phila. 61. 459; Lesley v. Randolph, 4 Rawle, '''flaiilt V. Neal, 6 Phila. 61. 123; Bedford v. M'Elherron, 2 Serg. ""WiUiams V. McAnany, 1 Pa. Dist. & R. 49. E. 128. '"/■;™h« v. Hastings, 9 Pa. 273. "flollis V. Bums, 100 Pa. 206, 45 The notice was given on April 1, Am. Rep. 379; Lane v. Nelson, 167 184li. It was, however, the tenant's Pa. ()()2, 31 Atl. 864. tluty to leave without notice. "Gatilt V. Neal, 6 Phila. 61. "-Logan v. Herron, 8 Serg. & R. '"Williams v. MoAnany, 1 Pa. 459; Orcideer v. Lewis, 1 Watts & S. Dist. R. 128. no, 37 Am. Dec. 440 ; Rich v. Keyser, TENANCY ATWIEL AND PROM YEAll TO YEAR. 309 may reenter wifliout being a trespasser,®* or may recover the possession by means of ejectment^^ or the landlord's statutory remedy.^® If the lessee is allowed to rernain in possession after the term of a, series of years, e. g., seventeen, under such cir- cumstances as justify the inference that it is "with the consent" of the lessor, he becomes a tenant from year to year, and as such entitled to three months' notice;®' but if the lease contains a pro- vision that the lessor may "enter and repossess the premises at the end of the period, of at any time thereafter," and that the lessee shall "deliver up the possession at the expiration of the term without further notice," the landlord does not, by allowing the lessee to' remain in possession nine years after the close of the term, lose the right to dispossess him at any time without notice.®* 376. Contractual necessity to give notice. — The lease, while specifying a term, may likewise stipulate for the lessee's right to continue beyOnd the tenn, unless he receives notice from the landlord that the latter will require the possession at the end of the term. But a clause in the lease for three years, providing that if the tenant continue on the premises beyond that time the contract shall continue in full force for another year, and so from year to year, does not entitle the tenant to remain beyond the three years, unless he receives three months' notice to quit before their expiration f^ and a requirement of notice to quit for 54 Pa. 86; MeCanna v. Joh-nston, 19 ^McCanna v. Johnston, 19 Pa. 434. Pa. 434r. In a lease for three years the lessee '^Bedford v. M'Elherron, 2 Serg. & covenants to give up possession at R. 49; MacGregor v. Bawle, 57 Pa. the end of the term. It was agreed 184; Williams v. Ladew, 171 Pa. (.j^j^^ jf j,g gj^^^j^ continue in posses- 369, 33 Atl. 329. gjon ■ j^fjg^ ^^^ termination of the "Overdeer v. Lewis, 1 Watts & b. ^^^^^^^^^ ..^he contract should con- 90 37 Am. Dec. 440 ^.^^^ .^ ^^^^^ ^^^ ^^^^^^^ , ■'^McCanna v.. Johnston, 19 Pa. rru j. i • ui- j j. i i. j., ,„',,„ D 7., c7 -D„ ^°^ tenant is obliged to leave at the 434; MacOregor v. Rawle, 57 Pa. t i., , .,, , ,, ,„, end of the term without three '"Logan v. Herron^ 8 Serg. .Sf R.. ™°°*>^^' "°"ce, and can be ejected by ^gn the action of ejectment. MacGregor "Bedford v. M'Elherron, 2 Serg. & ^- l^o-Me, 57 Pa. 184. E. 49, "MacGregor v. Rawle, 57 Pa. 184; SIO LANDLORD AND TENANT. breach of condition, before the normal expiration of the term, is not to be understood as requiring a notice to quit at the ex- piration of the termJ* The lease being for eight months, to continue for a year, and so on from year to year, unless either party gives notice to the other before the end of the term that the lease is to terminate, the vendee of the reversion may, before the end of the eight months, give the notice to quit; nor will it be ineffectual, the tenant having attorned to him, because it states that the lease was made by the vendeeJ^ 377. Notice by tenant. — When the lease is for one year or other definite period, the tenant, in the absence of a stipulation that unless he gives notice before the end of that period of the intention to leave, he shall be regarded as a tenant for a longer period, need give no notice of the intention to quit at the end of the term. By simply retiring from the possession, he escapes all liability as tenant, for the rent^^ or otherwise. But the lease may require a notice from the tenant, in order to determine it, at the end of the first year or other period. The lease, e. g., may be for eight months, and may provide that at the expiration of that time it will be continued for another year, and so from year to year, unless either party shall, before the end of the term, give legal notice to the other that the lease is to termi- nate.'* The lease, being for a term of one year, added that "from and after the expiration of the term hereby created this lease shall be deemed to be renewed and in force for another year, and so on from year to year, unless either party shall have Wilcox V. Montour Iron d Steel Co. notice and intention to end the ten- 147 Pa. 540, 23 Atl. 840. ancy, and the lessor waits four '"Gill V. Ogborn, 1 W. N. C. 28. days, in order to inquire into his ^'^Fitspatrick v. Childs, 2 Brewst. rights, before tendering back to the (Pa.) 365. Xhe landlord does not tenant the money. lose the right to end the tenant's "Dauphin County y. Bridenhart, term by his notice, by the reception 16 Pa. 458. of rent for the first month of the ''^Fitzpatrioh Y. Childs, 2 BrewsU next year, if the rent is received by (Pa.) 3(>5. his agent in ignorance of the leasor'a XENANCY AT WILL AND FROM YEAR TO YEAR. 311 given to the other notice of its intention to determine said ten- ancy sixty days prior to the expiration of any current year." Sixty days' notice from the tenant, prior to the end of the first jear, was necessary in order to relieve him from liability for the rent of the whole of the next year.^* The lease being for one year, "with the privilege of four additional years," contained the provision that either party might determine it "at the end of said term" by giving three months' notice, but, in default of ■such notice, it should continue upon the same terms and condi- tions for a fiirther period of one year, and so on from year to year, until the three months' notice was given before the end of the current year. The tenant could not, by retiring at the end of the first year without the notice, escape from liability for the Tent of the next year.^^ But if, the lease being for one year, it provides that if three months' notice of the intention to quit be not given before the close of the first year, "this agreement shall be considered as renewed for the succeeding term of one year," it does not require notice from the tenant before the close of the second year, and he may therefore retire, without notice, at the end of the second year, and escape liability for rent for any succeeding time.^* The lease, being for one year, provided that if the lessee should hold over after the year, with the lessor's iconsent, it should be deemed a "renewal of this lease, and all terms, conditions, covenants, and provisos herein contained, for the term of another year, and so on if the possession is still con- "Wilcox V. Montour Iron & Steel ^'Gardiner v. Bair, 10 Pa. Super. =08. 147 Pa. 540, 23 Atl. 840. Pay- Ct. 74. ing one month's rent of the next '"Stiles v. Himmelwright , 16 Pa. year might be shown not to have been Super. Ct. 649. In McGwrroll v. intended by the tenant to recognize Clements, 2 W. N. C. 305, the lease his duty to pay rent for the whole was for one year, and, in default of year, but that duty did not depend notice, was to be considered as re- •on his recognition. It arose from newed for the succeeding term. The his not having given the notice. Cf. obligation of the tenant to pay the Lane v. Nelson, 167 Pa. 602, 31 Atl. rent for the succeeding term was 864; Uegargee v. Longaker, 10 Pa. treated as turning on his having been Super. Ct. 491. in possession after it commenced. 312 LANDLORD AND TENANT. tinued with like consent, after the expiration of this additional year, from year to year, unless either party shall give three months' previous notice to the other of an intention to determine the tenancy at the end of any year. Provided also that, if the lessors in their option so elect, the failure of the lessee to give said notice of its desire to determine said tenancy shall be deemed and taken to be such renewal." The three months' no- tice under these terms was not required prior to the end of the third year. The lessee on vacating the premises at the end of the second year without notice ceased to be liable for subse- quently accruing rent.'''^ The lease for nine months stipulated that if the lessee continued on the premises after the expiration of that time, the lease should continue for a further period of one year, and so on from year to year, until terminated by a thirty days' notice from either party, prior to the expiration of the current year. The lessee having held over after the end of the nine mionths was liable for a year's rent. The court in- structed the jury that if the tenant held over after the first hold- over year he was liable, and if he did not he was not liable, for the rent of the second and later years ; submitting also the ques- tion whether, early in the first hold-over year, the tenant informed the lessor that he was going to vacate the premises if a certain obstruction was not removed ; whether, the obstruction not being removed, he did remove.'* If on the last day for giving the no- tice the tenant makes two attempts in business hours to ser\'e no- tice on the lessor at his place of business, butfindsthe door locked, and two days later he mails the notice to the lessor, who the next day receives it, and subsequently admitting the receipt of the notice, uses lan^age which causes the tenant to believe that he has accepted the notice as valid ; and if later the rent is paid ^Ashhurst v. Eastern Pennsylva- "Oakford v. Nirdlinger, 196 Pa. nia Phonograph Co. 166 Pa. 357, 31 162, 46 Atl. 374. Atl. 116. TENANCY AT WILL AND FROM YEAR TO YEAR. 313 in full to the agent of the lessor, who receives it unconditionally and also the keys of the premises, — the notice may be consid- ered as sufficient, or its insufficiency as waived.'* '"Jiinsivanger v. Dearden, .132. Pa. 229, 19 Atl. 32. Cf. Binswagner v. Deardon, 9 Pa. Co. .GL Q53.,„ . , - , CHAPTER XX. TERMINATION OF THE LESSEE'S INTEREST BY SURRENDER. 378. Surrender of terra; consideration. 379. Verbal surrender valid. 380. Surrender by new lease. 381. Form of surrender. 382. Consent of both parties necessary. 383. Consent not manifested by acts on premises. 384. Rijjht to surrender secured by lease. 385. Lease by partnership; change of partners. 386. Consent not otherwise manifested. 387. Destruction of premises by fire. 388. Evidence of landlord's acceptance. 389. Surrender to an agent. 390. Effect of surrender. 391. Termination of lease by lessee's death, 392. Termination by merger. 393. When merger dees not occur. 394. Termination by ejectment. 378. Surrender of term; consideration. — Like those springing •from any other contract, tti8 rights and liabilities growing oiit of a lease may be terminated by a later agreement between the parties for such termination. If, at the time of the agreement, the lessee has liabilities to perform, e. g., the payment of rent, the release from these liabilities will be a sufficient consideration for his relinquishment of his right to possession, use, and en- joyment of the premises. The opportunity to resiuue posses- sion and control will be for the landlord a sufficient considera- tion for his giving up his rights under the covenants of the tenant^ A yielding up by the lessor of a part of the rent al- ready due would be a consideration for the tenant's surrender.^ 'Kiestcr v. MiUer, 25 Pa. 481. 'Thropp's Appeal, 70 Pa. 395. 314 TERMINATION OF LESSEE'S INTEREST BY SURRENDER. 315 The lease itself may confer the riglit to surrender, at any time, upon the tenant.' The con.sideration which supports the lease would then support that particular provision of it, but if the lease itself does not confer this right, it can be acquired by the tenant for the future only by a contract supported by a fresh consideration.* 379. Verbal surrender valid. — The agreement to surrender may be in writing. When the lease is for a term not exceeding three years, it can always be orally surrendered. ** "What is want- ing to the rescission of an executory contract," says Gibson, Ch. J., "is the assent of the parties ; and it may be signified by their words or their acts. The rescission of a lease by express words is called a surrender in fact; and when by acts so irreconcilable to the continuance of the tenure as to imply the same thing, it is called a surrender in law. An implication of surrender is not precluded by the statute of frauds, which concerns a surrender by express words, and of a lease, too, which could not have been validly constituted otherwise than by writing. I take it, there- fore, a lease for less than three years, whether written or not, may be surrendered or transferred by an oral expression of as- sent. The case of an implied surrender, however, as I have al- ready intimated, was never imagined to be within the statute."" A verbal surrender of a term which is of more than three years' length, whether at the surrender it has more than three years to run' or less,* is also valid, where the possession is given 'Hoolcs V. Forst, 165 Pa. 238, 30 ''Auer v. Penn, 92 Pa. 444. In Atl. 846. Ijobach v. Breisch, 8 Northamptoa *MannerbaGh v. Keppleman, 2 Co. Rep. 193, on a lease for ten Woodw. Dec. 137. years, an assignment for five years 'Greider's Appeal, 5 Pa. 422; with the privilege of five additional Frank v. Maguire, 42 Pa. 77; Kies- years was written, but, though the ter v. Miller, 25 Pa. 481 ; M'Kirmey lessee agreed to it, he did not sign -V. Reader, 7 Watts, 123; Magaw v. it. He obtained the written consent TMinbert, 3 Pa. St. 444. of the lessor to it, and the assignee 'M'Kintien v. Reader, 7 Watts, accepted the lease in writing. It 123. The desertion of the premises was held that this assignment for by tlie venant he considers an ini- five years, at least, was, though oral, iilied surrender, valid for three years, and that the 3-16 LANDLORD AND TENANT. up by the tenant," or where exclusive possession has never been taken by him.^" The surrender may be of the lease as to the en- tire premises' or as to a part only."ii A sealed lease can be sur- rendered orally.*^ ■ 380. Surrender by new lease.— The execution of a hew lease to the tenant for the same premises for a term coinciding in part with that of the earlier lease,^^ or of a contract of sale of the pir^mises taking effect during the term, would be a rescission of thfe former lease and a surrender by the tenant of the former term.- Thus, the' landlord may sell the reversion to X. X, some years before the expiration of the lease, may enter into articles of agreement with the tenant^ according to which the tenant is to pay him the same rent as heretofore, until a certain day, which is earlier' thaii the termination of the lease, when X will make a deed to him. This is in substance a surrender of the lease, and X must therefore be considered as having gained pos- session under the deed from the lessor. ■** The burden is on the party who alleges the new lease to prove it. If the landlord, in the exercise of a power in the first lease to terminate the pos- session of the tenant, gives a three months' notice to quit, the tenant asserting that this lease has been displaced by another, under which he has a right to continue in possession, must prove lease was surrenderee!, and a new end at the close of the second year. lease with the assignee substituted, Reber v. Gilson, 1 Pa. St. 54. at least for the three years. ^"Cochran v. Shenango Xatural 'Pratt V. Richards Jewelry Co. 09 Gas Co. 23 Pittsb. L. J. N. S. 82. Pa. 53. "Tate v. Reynolds, 8 Watts & S. 'Auer V. Penn, 922 Pa. 444: Roll- 91. bock V. McCargo, 6 Pa. Super. Ct. ^'Kiester v. Miller, 25 Pa. 481. 134; Pratt v. Richards Jewelry Co. ''If, the landlord alleging a for- 69 Pa. 53; West v. ConneU. 6 feiture of the old lease, the tenant Mpntg. Co. L. Rep. 196; Morgan v. accepts a new lease, he virtually l/uzerne Lodge, 5 Kulp, 512. Lease surrenders the former. Carnegie for five years. During the second Xatural Gas Co. v. Philadelphia Co. year the surety died. The lessor, 158 Pa. 317, 27 Atl. 951. icBsoo. and administrator of the sini>- "Denison v. Wertx, 7 Serg. & R. ty may agree that the lease shall 372. TERMINATION OF LESSEE'S , INTEREST BY SURRENDER. 317 the second lease.' ^ Judgment being entered for rent in arrear, under a warrant of attorney contained in the lease, the court discharged a rule to open it on the ground that the, landlord had agreed to accept a surrender of the term, for the reason tliat the court was not convinced that such an agi'eement had been inade.^" Possibly the new lease, in order to work a surrender of the old term, would need to be itself valid. A lease from month to month was alleged by the tenant to have been superseded by a new lease by the secretary of the lessor, a corporation, for a term lasting until the city of Philadelphia should take the ground for a street, — an occurrence not expected for ten or twenty years. Judgment in ejectment having been entered on a warrant contained in the original lease, the court properly dis- charged the rule to open it, because the power of the secretary to make a lease for the corporation was not apparent, and be- cause the alleged new lease, being in parol, "was void under the statute of frauds."^ ^ An agreement in the midst of the term, for the payment of increased rent for the future, is not a sur- render of the existing term, and the beginning of a new term.^^ 381. Form of surrender. — "To constitute an .express sur- render, no set form of words is necessary, nor is it required there should be a formal redelivery or cancelation of the deed or other instrument which created the estate to be surrendered. All that is requisite is the agreeinent and assent of the proper parties manifesting such an intent, followed by a yielding up of the possession to him who hath the greater estate ; for a surrender "Gibson V. Vetter, 162 Pa. 2S, 29 "Ellis v. Ambler, 11 Pa. Super. Atl. 292. A judgment in ejectment Ct. 406. Of course the authority of having been entered on the i-iarrant the secretary to terminate tlie first of attorney, on a rule to open it the lease was not shown. Tlie agent who oath of the tenant and his wife, con- makes the new lease, must .have au- tradicted bj' tnat of the landlord, thority. Philadelphia v. Elvins, 1 was deemed insufficient to prove the W. N. C. 2. new lease. '"Taylor v. Winters, 6 Phila. 126. ^"Philadelphia v. Weaver, 155 Pa. 74, 25 Atl. 876. 318 LANDLORD AND TENANT. is nothing more than a delivery up of lands, tenements, or here- ditaments, and the estate a man hath therein, unto him who hath the greater or equal estate in immediate reversion or remain- der."i9 382. Consent of both parties necessary. — The surrender is a contractual act. It occurs only with the consent of the tenant, and, no less, of the landlord. In most cases involving the ques- tion whether there has been a surrender, it is the tenant who al- leges that it has been made. He relies on the fact that he has quitted the premises, and that he has done so with the intention to give up all right to them and to disengage himself from all liabilities springing from his contract of lease.^" But it is uni- formly held that to his acts and intention there must respond the assent of the landlord^ to convert them into a surrender. The landlord must agree that from henceforth the tenant shall cease to be such, both as to his obligations and his rights.^-' When there is evidence of the verbal expression by the landlord of this consent; the case can present no difficulty except that arising from the relative credibility of witnesses, or from the uncertainty of the meaning of the expression. Disputes most frequently arise when the landlord's intention is to be inferred from what he does, or from what he refrains from saying or doing. The key of the premises belongs to the landlord. The tenant, vacating the premises, may send or carry the key to the landlord or his agent and proffer it to him. If he refuses to ac- cept it, his assent to a surrender could scarcely be suspected.^* "Cfreider's Appeal, 5 Pa. 422. nograph Co. 166 Pa. 357, 31 Atl. "These are not enough to make a 116; Upper v. Bouvi, G. & Go. 6 Pa. surrender. Teller v. Boyle, 132 Pa. Super. Ct. 482; Gardiner v. Bair, 10 56, 18 Atl. 1069; Ogden v. Offerman, Pa. Super. Ct. 78. 2 Miles (Pa.) 40. "Kiester v. Miller, 25 Pa. 481; ^Kiester v. Miller, 25 Pa. 481 ; Aner v. Pe)in., 99 Pa. 370, 44 Am. Lane v. Nelson, 167 Pa. 602, 31 Atl. Rep. 114; Marseilles v. Kerr, 6 864; Marseilles v. Kerr, 6 Whart. Whart. 500; Gardiner v. Bair, 10 500; Tellei- v. Boyle, 132 Pa. 56, 18 Pa. Super. Ct. 78; Dillon v. Carrol, Atl. 1061); Ashhurst v. ilastern Pho- 2 Luzerne Legal Reg. 89; Hess v. TERMINATION OF LESSEE'S INTEREST BY SURRENDER. SIO' But perhaps the tenant leaves it on the landlord's table, or else- where in his office or house, and there is no expressed refusal on the landlord's part Or perhaps, though the landlord does re- fuse, the key is nevertheless left with him, and he does not send it back. In the latter case, the omission to return could scarcelj be interpreted as an acquiescence in the escape of the tenant from the engagements of the lease.^' Though the landlord does receive the key, if he indicates to the tenant his intention to hold him liable for rent for the remainder of the term, the receiving of the key will not signify an acceptance of a surrender ;^* nor is his mere silence when he receives the key equivalent to an ac- quiescence in the extinction of the lease.^^ Keceiving the keys and taking possession of the premises "exclusively" of the ten- ant would imply acceptance f^ and if, hearing that the tenant, B, is going to leave, A, the landlord, visits B, and inquires, and, informed that B is going to leave, asks for the keys, and if B, not then having them, promises to send them, and he subsequently sends them, and they are received, and the premises are rented to another person, acceptance of the surrender is a necessary in- ference.^^ In March, B, the tenant, calls on A, the landlord, and informs the latter that he intends to vacate the premises in May. A's reply is that he thinks he has a tenant and that there will be no difficulty in obtaining a tenant. He soon after places a sign "to let" on the house, and instructs B to let people know Weingartner, 5 Pa. Dist. R. 451; ner, 5 Pa. Diat. R. 451; Beeves \. Jenkins v. Stone, 14 Montg. Co. L. McGomeskey, 168 Pa. 571, 32 Atl. Rep. 27. 96. ^Harvey v. Gunzberg, 148 Pa. 294, ^Gardiner v. Bair, 10 Pa. Super. 23 Atl. 1005; Eess v. Weingartner, Ct. 74; Milling v. Becker, 96 Pa. 5 Pa. Dist. R. 451; Carsmi v. Shiffer, 182; Pier v. Carr, 69 Pa. 326; Car- 1 Lack. Legal News, 399; Snyder v. son v. Shiffer, 1 Lack. Legal News,. Middleton, 4 Phila. 343; Auer v. 399. Penn, 9y Pa. 370; Diehl v. Lee, 9 Al- '^Frank v. Maguire, 42 Pa. 77. len, 865. '^Reaney v. Fannessy, 14 W. N. C. ^'Auer V. Penn, 99 Pa. 370, 44 Am. 91. The affidavit oi defense alleging Rep. 114; Lane v. 'Nelson, 167 Pa. these facts was sufficient. 602, 31 Atl. 864; Hess v. Weingart- 320 t,ANDLORD AND TENANT. that it is to let and that the rent will be $50 per month, $5 more than under the existing lease. On April 29, B pays A the rent to May 1, having, as he informed A, already left the house. He also hands the key to A, who takes it without saying a word. These facts justify B in believing that A has accepted his sur- render.^^ The tenant tenders the key for the purpose of sur- rendering the house. The landlord takes it, but returns it, in order that the tenant may make some repairs. When the re- pairs are completed, the key is returned. From this the jury :iiay properly infer an acceptance of the surrender. If the tenant to the knowledge of the landlord gives up the control of the house to the latter, in order that the latter may discharge him from the contract, the landlord cannot accept it for a dif- ferent purpose. He must accept it as the tenant offers it or not at all.2» *' 383. Consent not manifested by acts on premises. — Besides acts or omissions with respect to the key there inay be acts done with respect to the leased premises, — acts indicating a resump- tion of control, inconsistent with the continuance of rights in "Weight man v. Earley, 20 W. N. the agent that he had removed, paid C. 470. In Suplee v. Earley, 3 W. the rent to the time of the removal, N. C. 240, the affidavit was held and left the key with the agent, who sufEeient which said that B had immediately took possession of the rented the premises as a boarding- premises, put a bill for rent up, and house; that on a day named he "sur- at length rented it. An affidavit so rendered" it to A, the landlord, "s^'iio averring was sufficient. Bradley v. took possession and conducted there- Broun, 6 W. N. C. 282. So was one in a boarding-house; that the taking alleging that B, the tenant, com- possession was without qualification, plained to A, the landlord, that the and with no notice of any claim to roof was leaky; that A said, "Why hold B liable for rent. An affidavit don't you move?" — that shortly was sufficient which alleged an ar- afterwards B paid the rent falling rangement by which A, the landlord, due the next day and told A he w;is accepted a note and a sura of money about to move; that A said, "All in full for rent due to January 13, right;" that A subsequently asked 1874, received the keys and took pos- for and got the key, and put up a no- sossion. Kelly v. Donahue, 1 W. N. tice "To let." Sharpless v. }Yeigle, C. 299. Tenant gave written notice 7 W. N. C. 376. to landlord that he was going to va- ^Dos i^antos v. Hollinshead, 4 cate the premises. He sent word to Phila. 57, TERMINATION OF LESSEE'S INTEREST BY SURRENDER. 321 the tenant. Sometimes the landlord forms the purpose to let the premises to another, and expresses this purpose by putting a bill "to let" upon the house, or by otherwise advertising it as to let. This act is ambigTious. The landlord may, believing the ten- ant's expression of intention not longer to occupy the premises, seek a new tenant in order to diminish the rent for which the tenant will be liable, and not for the purpose of excluding him, and a new tenant may be actually put into possession. "The landlord," says Paxson, J.,"may accept the keys, take possession, put a bill on the house for rent, and at the same time apprise his tenant that he still holds him liable for the rent. All this, as was said by Mr. Justice Rogers in Marseilles v. Kerr, 6 Whart. 500, is for the benefit of the tenant, and is not intended, nor can it have the effect, to put an end to the contract and dis- charge him from rent."^" If the landlord may put another ten- ant in possession without discharging the old tenant, he may take possession himself, and keep it so long as no demand by the tenant to be allowed to re-enter is made. The withdrawal by the tenant, and the succeeding occupancy by the landlord, for nearly a year, according to his convenience or wants, would not therefore be inconsistent with a nonacceptance of the sur- render.''^ After the withdrawal by the tenant from the prem- "Auer V. Penn, 99 Pa. 370, 44 Am. He is certainly not bound to arrange Rep. 114; Breuclcmann v. Twibill, to relet in anticipation of the 89 Pa. 58 ; Pier v. Carr, 69 Pa. 326 ; tenant's removal. Upper v. Bouvc, Ker V. Bunt, 1 W. N. C. 115; Lane G. & Co. 6 Pa. Super. Ct. 452; Reeves V. Tslelson, 167 Pa. 602, 31 Atl. 864; v. McComeskey, 16« Pa. 571, 32 Atl. Snyder v. Middleton, 4 Phila. 343. 96. If the tenant tells the land- The landlord is not bound to find a lord that his lease is at an end, and new tenant in order to relieve the that the latter may let the premises tenant. If he finds a new tenant to another, and the latter acquiesces and obtains rent from him, the rent and lets to another, the tenant's for which the original tenant is rights terminate. There has been liable is pro tanto diminished. Auer a, surrender and an acceptance. Com. V. Penn, 99 Pa. 370, 44 Am. Rep. v. Comcay, 1 Brewst. (Pa.) 509. 114; Upper V. BouvS, C. & Co. 6 Pa, "^Ogden v. Offerman, 2 Miles (Pa.) Super. Ct. 452. He may refuse to 40; Philadelphia Fire Extinguisher rerent though an opportunity offers. Co. v. Brainerd, 2 W. N. 0. 473. Land. & Ten. 21. S22 LANDLORD AND TENANT. ises and the acceptance of the key by the landlord's agent, the putting up of a sign "For sale" and offering immediate posses- sion are not decisive that the surrender has been accepted.^^ The landlord may make repairs, after the tenant's departure,, e. g., he may repair the floor of a bar room over a space of 5 or 6 feet square f^ he may build a new bath room, and a new porch and put in a new range, and otherwise repair generally,^* — - without intending to accept or justifying the tenant in infer- ring that he has accepted the surrender, or that he precludes the tenant from resuming the possession. 384. Right to surrender secured by lease. — The lease may stipulate that the lessee "shall have the right at any time to sur- render up this lease and be released from all moneys d*ie and conditions unfulfilled; then and from that time this lease and agreement shall be null, void, and no longer binding on either party, and the payments which shall have been made shall be held by the party of the first part as the full stipulated damages for the nonfulfilment of the foregoing contract." Under such a lease, a surrender pending an action for rent or royalties, or '■Reeves v. McComeskey, 168 Pa. and asked where to leave the key; 571, 32 Atl. 96. An affidavit saying that, some days later, the landlord that the tenant delivered up quiet designated his agent as tlie proper possession to the landlord, who ac- person to receive it, and that after- cepted the same, is sufficient. Wistar wards the landlord entered and made v. Campbell, 10 Phila. 359. So is the repairs. Gamble v. O'Mara, 15 one saying that the tenant "sur- Phila, 180. The landlord's assenting rendered possession" to the agent of to an assignment of the lease, and the landlord, who accepted the pos- receiving rent from the assignee are session. De Morat v. Falkenhagen, not a surrender of the premises by 148 Pa. 393, 23 Atl. 1125. the lessee, and do not discharge liim "'Pier V. Carr, 69 Pa. 326; Milling from the duty to pay tlie rent suhse- V. Becker, 96 Pa. 182. quently accruing. (Jhcgan v. Toung,. "Breuckmann v. Ticibill, 89 Pa. 23 Pa. 18. Taking a note from the 58. Making extensive repairs and sheriff's vendee of the leasehold, for alterations is not conclusive of ac- rent falling due after the sale, the ceptanee of surrender, when coupled note being received .as payment, if with the facts that before the end of paid, does not discharge the original the term, the tenant told the land- lessee upon the covenant. Kerper v. lord that he would leave the house on Booth, 10 VV. N. C. 79. a certain day, that he paid the rent. TERMINATION OF LESSEE'S INTEREST BY SURRENDER. 323 for moneys agreed to be paid montlily until operations should begin on the premises, will not be effectual to bar a recovery in that action. To prevent such recovery, the surrender should have been made before suit v^as brought. Nor will the fact that the lessee had assigned the lease, and did not secure a reas- signment of it until after the suit was brought, exempt him from this consequence.^^ A lease being for one year, at a monthly rental of $33, and which is to continue from year to year until three months' notice is given by the lessor or lessee, cannot be terminated within the first year by the tenant, because of the phrase added to the statement of the monthly rental, "to be paid monthly in advance on the 9th day of each month, so long as he shall occupy the said house and lot of ground."^® 385. lease by partnership ; change of partners. — A lease by B, of the firm of A & B, signed and sealed by B alone, but profess- ing to be made with the authority of A, will not be considered as surrendered, and a new oral lease substituted, because A ceases to be a mranber of the firm through a sale of his interest to C, and C unites with B in carrying on the same business, and rent is subsequently paid by the tenant to the firm of B & C. No action on covenants similar to those of the original lease can be brought against B and C on the theory that a parol lease with similar terms has been made by B and C. "The mere receipt of the back rent by the assigTiee [C] of a lessor [AJ is not sufficient to raise the presumption that the assignee made a parol contract, binding himself to fulfil all the covenants contained in the lease, and making him responsible in assumpsit for a future breach of such covenants."^^ 386. Consent not otherwise manifested. — If the tenant takes into a portion of the premises a subtenant or assignee, the fact ^Douthett V. Oibson, 11 Pa. Super, while moat of the lease was printed. Ct. 543. It refers to the possible extension of '"Line V. kelson, 167 Pa. 602, 31 the term from year to year. -Atl. 864. This phrase w.is written, ^^Bewley v. Tarns, 17 Pa. 485. 324 LANDLORD AND TENANT. that after the tenant retires from them within the term the land- lord distrains several times for the rent due from him, upon goods of the subtenant or assignee, is entirely consistent with the nonacceptance of the surrender of the tenant, the landlord never demanding the rent from the subtenant or assignee, and, in his warrant of distress, always naming the tenant as liis debtor.** The tenant left the premises because of the adultery of the land- lord with his wife. The wife remained until the close of the term, the landlord proposing to her that, if she remained, she should pay no rent. The adulterous intercourse continued. These facts do not necessarily imply an acceptance of the ten- ant's surrender.** If, the tenant going out, X enters, whether as his assignee, sublessee, or otherwise, the receipt of the rent due on the lease from X does not imply an acceptance of a surrender by the tenant. The surrender would terminate the lease and the right to rent under it.*" The same result would follow if the tenant, never entering under his lease, assigned it and the as- signee entered.*^ 387. Destruction of premises by fire. — When the lease re- quires the tenant to keep insurance on the property, and in case of fire to rebuild, or pay the money obtained on the policy to the landlord, if he prefers, if, the fire occurring, the money is paid to the landlord, but he does not rebuild, and the tenant abandons the possession, the jury may, and perhaps ought to, find an acceptance of a surrender, since the landlord has the use of the money which represents the premises.*^ 388. Evidence of landlord's acceptance. — The burden of proof of a su.rrender is on the party who alleges it. In an action for the rent, the tenant defending on the ground that before the "Manley v. Dupuy, 2 Whart. 162. not the same as the surrender of the '"B V. H . 3 W. N. C. term. The tenant may resume pos- 132. session. Withdrawal is therefore "Frank v. Maguire, 42 Pa. 77. not proof of surrender. Goldsmith v. '^Deioey v. Dupuy, 2 Watts & S. Smith, 4 Phila. 31. .i53. The giving up of possession is "Boyer v. Dickson, 7 Phila. 190. TERMINATION OP LESSEE'S INTEREST BY SURRENDER. 325 rent accrued for whicli the suit was brought he had surrendered, it would be for him to prove the surrender and the acceptance of it.*^ On the other hand, in an ejectment by the landlord against the tenant, presupposing a surrender of the lease, the former could not recover without proving it.** It is not neces- sary that the evidence to support it should be clear, precise, and indubitable. A preponderance is enough.*^ Declarations of the party can be used to prove against him the fact of a sur- render; but the facts that the landlord tells X that his tenant has given up the premises, and that he offers to rent them to X, are not conclusive that he has accepted the surrender. They do not operate as an estoppel, but may be satisfactorily ex- plained.** 389. Surrender to an agent. — An acceptance by an agent of the landlord, having authority to accept the tenant's surrender, will bind the landlord.*^ In Weightman v. Harley*^ Arnold, J., remarks that "the powers of a real-estate agent are different *'Auer V. Peivn, 99 Pa. 370, 44 Am. Reeves v. McComeskey, 168 Pa. 571, Rep. 114; Lane v. kelson, 167 Pa. 32 Atl. 96. 602, 31 Atl. 864; RoKbock v. Mo- '''Weightman v. Earley, 20 W. N. Cargo, 6 Pa. Super. Ct. 134. Vide C. 470; Bradley v. Broirni, 6 W. N. Pratt V. Richards Jewelry Co. 69 Pa. C. 282; Auer v. Penn, 99 Pa. 370, 44 53, where the sufficiency of evidence Am. Rep. 114; Reeves v. McComes- of a surrender is considered. key, 168 Pa. 571, 32 Atl. 96; De "Hooks V. Forst, 165 Pa. 238, 30 Mora.t v. Falkenhagen, 148 Pa. 393, Atl. 846. 23 Atl. 1126; Rohbock v. McCargo, '^Rohiock V. McCargo, 6 Pa. Super. 6 Pa. Super. Ct. 134. Ct. 134. Cf. Hooks V. Forst, 1&5 Pa. * 20 W. N. C. 470. An affidavit of 238, 30 Atl. 846. defense averring surrender to an "Kiester v. Miller, 25 Pa. 481 ; agent, but not stating the authority Milling v. Becker, 96 Pa. 182. of this agent, was held sufficient. In Declarations of a landlord made be- De Marat v. Falkenhagen, 148 Pa. fore the tenant moved out, and in 393, 23 Atl. 1125, the affidavit does pursuance of which he moved out, not seem to have set out the au- were submitted to the jury, in thority of the agent, but the court Morgan v. Luzerne Lodge, 5 Kulp, holds it sufficient, saying: "But here 512. An offer by the tenant to prove the acceptance by an agent for the that he was told, previously to his landlord is averred, and we cannot vacating the property, that the lessor question the legal effect without de- would take the property and that he nying his authority, which we might leave, was too vague, because certainly cannot do in the face of the it did not indicate who told him. affidavit." 326 LANDLORD AND TENANT. from those of an insurance agent, broker, factor, attorney, or special agent with limited powers. . , . Agents for manag- ing real estate, like stewards in England, are considered as hav- ing full control of the property for leasing, receiving rents, and accepting surrenders. . . . Landed proprietors, great and small, do not permit tenants to trouble them about such matters. When a landlord places his property in the hands of an agent, the custom is for the tenant to deal with the agent, and not with the landlord; otherwise conflicting acts may be done, tending to confusion and litigation." It cannot be assumed that the solicitor of a corporation, the landlord, has authority to accept for it a surrender from its tenant.** In Murphy v. Losclv'" the authority of the agent was properly submitted to the jury, with the instruction that if they found that he was agent only to collect the rent, no act of his, in accepting a sur- render of a lease, would bind the landlord undess it had been ratified by the latter. 390. Effect of surrender.— The accepted surrender of a lease prevents the accruing of new rights under the lease from the time of the surrender. ISTo rent can subsequently accrue." -"^ It also destroys the right to rent which has been accruing but has not yet become due ; the right to distrain for such rent ; and the right to claim such rent for one year from the proceeds of an execution which was levied after the surrender. °^ Thus the surrender occurring on January 8, and the levy in execution on January 9, the rent for the year, payable on April 1, could not be apportioned to the date of the levy, and paid from the proceeds of the execution sale. The tenant's surety in the lease becomes "Jamestown B, of the right of X to mesne profits for the period following the inception of the ejectment, the rent for which was sued for by A. Hence A could not recover the rent.®^ In McCleary v. Allen^'' how- ever, where the lease was for three years from April 1st, 1823, and an ejectment by a stranger was brought to May term, 1824, against both lessor and lessee, resulting in a judgment for the plaintiff, and an expulsion of both defendants by the habere facias possessionem, these facts were held to constitute no de- '"SchuylMll £ D. Improv. d R. Go. ^ 11 Serg. & R. 419. V. Schmoele, 57 Pa. 271. ™ Nor was the result different "Ghamhers v. Smith, 183 Pa. 122, when the tenant bought the title of 38 Atl. 522. Not decided whether X, to avoid being ejected, the word "grant" implies a covenant " 2 Penr. & W. 144. for quiet enjoyment. 356 LANDLORD AND TENANT. I'ense in an action for the rent brought after the close of the term. Shippen, J., saying: "As the eviction by Flock was not until after the lease, upon which suit is brought, had expired, and McCleary, the tenant, enjoyed all the benefits of the lease, the evidence offered, if true, would not be either a legal or an equitable defense against the payment of the rent." 421. Eviction by stranger under paramount title. — An eviction of the tenant in virtue of a title superior to that of the lessor destroys the duty to pay rent for the period during which the exclusion lasts. If the eviction is from a fractional interest, e. g., from three undivided tenths of the land,®* there will be a release from any duty of paying more than seven tenths of the rent. If the eviction occurs after the commencement of the month, quarter, or year for which, according to the lease, the rent is payable, the duty of paying a part of the rent, apportioned to the time of possession, will remain on the lessee. If, e. g., eight days elapse since the last pay day before the tenant is put out of possession, he will be liable for the rent of these eight days.®® The eviction may be by one having a title adverse to that of the lessor,-""* or by one who, under a lien created by the lessor, becomes the owner of his interest by means of a sheriff's sale thereon, during the term.-"'-' The eviction may occur by peaceable entry of the owner,-'"^ or by means of the action of ejectment. The mere recovery of the judgment may not be an eviction, but if a habere facias possessionem issues, the tenant, though he may be,-"*^ need not be, actually expelled from the possession. He may attorn to the successful plaintiff, and by that '^Garrison v. Moore, 1 Phila. 282. 350 ; Hemphill v. EckfeUt, 5 Whart. "'Ross V. Dysaii, 33 Pa. 452. 274; Duff v. Wilson, 69 Pa. 316, 72 "°ln ilaule v. Ashniead, 20 Pa. Pa. 442. 482, the widow of X leased his land, Tlie mere existence of a, lien is not which wus afterwards sold by order an eviction, nor a defense to suit for of the orphans' court for the payment rent. Coj)e v. Williams, 15 Phila. of debts. The purchaser expelled the 187. tenant. ^'-Kellam v. Janson, 17 Pa. 467. "^ilulseman v. Gri/fiihs, 10 Phila. "'Duff v. Wilson, 69 Pa. 316. EVICTION. 857 act become his, and cease to be the lessor's tenant.^"* Or he may contract to purchase the land from the plaintiff, and continue to hold the possession as the plaintiff's vendee, instead of as the lessor's tenant.^"^ If, after possession is thus retained by the tenant, the habere facias possessionem is set aside, the tenant is remitted, ipso facto, without any writ of restitution, to his former relation to his landlord, and the lease from the plaintiff in the ejectment falls j^"^ but if the judgment is reversed on ap- peal, and a writ of restitution issues, and is executed to the satisfaction of the plaintiff, without actual expulsion of the former tenant, who has attorned to the plaintiff in the ejectment, the tenant, having attorned to the plaintiff, cannot be considered as otherwise than evicted, during the interval from the execution of the hahere facias, to the execution of the writ of restitution, and he will not be liable for rent during this interval. The right of the lessor to recover mesne profits from the former lessee does not pre^-vUt the exemption of the tenant from liability for the rent. The lessor "cannot compel the tenant to pay him rent for the time his own covenant was in a state of breach."^"'' 422. Effect of tenant's guaranty against lien. — The principle that the tenant is excused from rent accruing after an eviction ■is not rendered inapplicable by the fact that the lessor had pur- chased the land from X, taking from X a guaranty against ^"Uulseman v. Cfrifjiths, 10 Phila. ""Ross v. Dysart, 33 Pa. 452; 350; Coughanour v. Bloodgood, 27 Hulseman v. Griffiths, 10 Phila. 350. Pa. 285. Cf. Wray v. Lemon, 81* '^"Coughanour v. Bloodgood, 27 Pa. Pa. 273, where a lessee assigned 285. the lease, and covenanted to indemni- '^"Ross v. Dysart, 33 Pa. 452. The fy the assignee for any loss. One of former lessee bouglit the premises the two lessors, a married woman, from the successful plaintiff and re- brought ejectment against the as- mained in possession during the two signee, because she had not acknowl- years and eight months of the term, edged the lease. A habere facias and after. He was liable, therefore, issued, and in order to avoid expul- for mesne profits. But he was lield sion, the assignee accepted a new not liable in an action on the lease lease, and agreed to pay higher rent, for the rent. After this the original lease was totally gone, with all its incidents and benefits. 358 LANDLORD AND TENANT. the enforcement of a mortgage on the premises, and had then leased the land to X, who, in breach of his guaranty, allowed a sheriff's sale upon the judgment on the mortgage. His liability as guarantor cannot be confused with that as lessee. Hence, both he and his surety will be discharged from liability for the rent, despite the fact that his delinquency caused the eviction.^"* But if, A and B being tenants in common of land, A lets his half to B, for whom becomes surety, and B mortgages his interest in the land to C, and if C buys an outstanding mortgage on both the interests, under which he causes a sheriff's sale to another, as trustee for him, who takes possession under a habere facias 'possessionem, C, when sued as surety for the rent, cannot set up the sheriff's sale and the action of the sheriff on the habere, as an eviction. As cotenant with A, C was under a duty to protect the property from sale under the co m m on lien, and having bought it in, he held it for the benefit of both, and had no right to dispossess A or his tenant B, before giving A an oppor- tunity to reimburse him for the purchase money.^"* 423. Tenant takes the risk of the title. — The tenant may be aware of the defect of the lessor's title and agree to take on himself the risk of it. If he does, the loss of possession in con- sequence of the defect will be no defense to the demand for rent or royalty. But if he covenants to pay at least $10,000 every three years, whether the coal mined will or will not be sufficient, at the rate of 50 cents per ton, to yield that simi, — unless it shall be impossible to obtain enough coal to yield it, it is permissible for him to show that, after the loss of the posses- sion of a part of the land by an eviction, on the part that re- mains there is not sufficient coal to furnish, at the rate of 50 cents per ton, so much as $10,000."* »°»Z)Mff V. Wilson, 69 Pa. 316. '^'Kemlle Coal & I. Co. v. Scott, ^'"Du-jf V. Wilson, 72 Pa. 442. But 90 Pa. 332 ; Kemble Coal d I. Co. v. if C's conduct was fraudulent, he Scott, 15 W. N. C. 220. would not be entitled to reimburse- ment. EVICTION. 359 424. Tenant waives the eviction.— The tenant may seek and obtain compensation from the owner of the conflicting title, derived from the lessor prior to the making of the lease, and if he does so, he will not be allowed to use the interference with his possession as a defense to the lessor's action for rent. Before making a lease of a farm to B, the lessor has leased the same tract to A for "oil and gas purposes." If A pays $1,000 to B on account of damages for past interferences with B's possession, and agrees to pay B for future interferences, and thereupon B gives A full right of entry in and upon the premises, defining what his rights shall be, and remains in possession, he cannot defend against the landlord's claim for rent by alleging the acts of A as an eviction.-' ■'■^ 425. Actions by tenant for disturbance. — The tenant may maintain an action (viz.j assumpsit) on the covenant, express-'-'^ or implied,^ ^^ for quiet enjoyment, and, if the lease has been assigned, the assignee, in the name of the assignor-' ■'^ or in his o-wn, may institute it, or, being sued for the rent, the tenant may set off the damages arising from the breach of the covenant,-''^ or, a distress being made for the rent, the tenant, alleging dam- ages which he has a right to set off, may, in his replevin, show such damages. For invasion of his right by trespassing on the premises, and wholly or partially excluding the tenant, the ac- "^Horberg v. May, 153 Pa. 216, 25 proven as they would be under the Atl. 750. lease as alleged, and the case is tried If, after an eviction from a part on the merits, the difference bet-ween of the premises, the tenant continues the allegata and probata -will be no to pay the rent, and holds over, he ground for reversal; the testimony will be liable for the rent accruing having been admitted without ob- while he holds over, despite the evic- jection, and no motion having been tion. Ward's Estate, 22 Pa. Co. Ct. made to strike it out. Walter v. 284. Transue, 22 Pa. Super. Ct. 617. ''"Lanigan v. Kille, 97 Pa. 120, 39 ^^"Maule v. Ashmead, 20 Pa. 482 ; Am. Eep. 797 ; Frost v. Earnest, 4 Steel v. Frich, 56 Pa. 172. Whart. 86; Walter v. Transue, 22 '^*Maule v Ashmead, 20 Pa. 482. Pa. Super Ct. 617. ^^"Hemphill v. Eckfeldt, 5 Whart. If the rights of the tenant are 274; Uarrett v. Cummins, 2 Phila, precisely the same under the lease as 207 ; Beineman v. Blair, 96 Pa. 155. 360 LANDLORD AND TENANT. tion of trespass -will lie;"^ and if the goods of the tenant are sold under an improper distress by the landlord, compensation for the injury to the tenant as such, and also as owner of these goods, can be recovered in the same action.^ ^'^ 426. Damages; total eviction.— When the tenant is evicted from all the premises, whether by the landlord^ ^* or by one having a superior title,^^^ for whose act the landlord is liable on his covenant for quiet enjoyment, he is entitled to recover damages from the landlord. When the eviction is by the land- lord himself, the damages will be measured by the market value of the lease. "^^^ If improvements have been made by the tenant which enhance the market value of the lease, he is, of course, entitled to this enhanced value. What the lease, e. g., would be worth, in view of the plowing and sowing of crops shortly be- fore the eviction, will be allowed the tenant.^ ^^ It would be im- proper to allow to the tenant the cost of the improvements, or the value of the improvements remaining on the premises at the date of the eviction. What he is entitled to is the value of the lease for the remainder of the term, in the actual state of the premises, with its improvements.-'^^ In Seyfert v. Bean^^^ the landlord evicted the tenant from a dwelling house in which the latter conducted a boarding school. He also caused a dis- "' Cf. Clark v. Lindsay, 7 Pa. '^'Lanigan v. Eille, 97 Pa. 120, 39 Super. Ct. 43; Dunn v. llellon, 147 Am. Rep. 797; Mauley. Ashmead, 20 Pa. 11, 30 Am. St. Rep. 706, 23 Atl. Pa. 482. 210; Hitchcock v. Bacon, 118 Pa. ^"Lonff v. Wood, 22 Pittsb. L. J. 272, \2 Atl. 352; Gallagher V. Burke, 93. Coal lease. Cf. Burgwin v, 13 Pa. Super. Ct. 244; Garrett v. Bishop. 91 Pa. 336. Cummins, 2 Phila. 207 ; Moore v. ^"O'^eai v. Sneeringer, 12 York Weher, 71 Pa. 429, 10 Am. Rep. 708; Lejjal Record, 141. Dosch V. Diem, 176 Pa. 603, 35 Atl. ^"Walters v. Transue, 6 North- 207; Seyfert v. Bean, 83 Pa. 450; ampton Co. Rep. 406. Cf. ilaiile v. Bou-man v. Bradley, 151 Pa. 351, 17 Ashmead, 20 Pa. 482, where it is re- L. R. A. 213, 24 Atl. 1062. marked that the produce of the farm ^'"Seyfert v. Bean, 83 Pa. 450. for the remainder of the ten" would "'Long V, Wood, 22 Pittsb. L. J. have been worth much more- than in 93; 0'\eal v. Sneeringer, 12 York the earlier portion of the term, be- Legal Record, 141; Walters v. Tran- cause of the tenant's improvements. sue, 6 Northampton Co. Rep. 406. '"83 Pa. 450. EVICTION. 3G1 tress to he levied on her goods, for rent, having no right to dis- train. In trespass on the case by the tenant, she v?as, without error, permitted to shovs^ the number of pupils in the school, the number of teachers employed, the amount of money ex- pended by her in advertising the school, and the price paid by her for the goods which had been sold in distress. Mercur, J., observed that the price of the goods was some evidence of their value, that the number of teachers and pupils indicated the facilities for instruction and the extent of the school's patron- age ; that many of the articles had a value when used in con- nection with the school, much greater than after they were re- moved therefrom, and that the deprivation of the house and of the goods destroyed the business, so that the tenant lost all profit on the investment made, the good will, and the entire capital. 427. Damages; total eviction by stranger. — When the eviction takes place by a stranger, a different rule obtains from that which applies when it takes place by the landlord's own act.-'^* The measure of damages is generally the consideration paid in advance, or a proportional part of it, and such mesne profits as a tenant has paid or is liable for to the OAvner of the paramount title. If the lessor has been guilty of fraud or bad faith, he will be liable for the loss of the bargain. The loss to him of the improvements put on the premises by the tenant, whether at his own option, or, if they are not to become the property of the lessor, under a stipulation in the lease, requiring him to make them, though, by reason of their annexation to the freehold, they pass with it to the successful adverse claimant of the land, — ■ is no ground for compensation from the lessor. Hence, it is proper for the trial court, in the lessee's action on the covenant for quiet enjoyment, alleging an eviction by one having a title superior to the lessor's, to exclude evidence of the value of the improvemients. ISTor is it admissible to show that, in an action ''*Lanigan v. Kille, 97 Pa. 120, 39 Am. Rep. 797. 362 LANDLORD AND TENANT. by the true owner against the lessor, for mesne profits, the latter reduced the verdict that would have been recovered against him by setting off the value of these improvements. The fact that the lessor has made this use of it does not entitle the tenant to recover it.-*^^ 428. Damages; partial eviction. — For a partial eviction of the tenant by the landlord, the measure of damages is the differ- ence between the value to the tenant of the possession of the whole for the period of the exclusion, and that of the possession of the part which he has been allowed to retain. In Gallagher V. Burke^^^ the tenants having been excluded from one room, the trial court, with the approval of the appellate court, in- structed the jury that, on considering the value of the premises to the tenant at the time of the eviction, they were "to take into consideration the nature, the amount, and the profits of the plaintiffs' existing grocery business as viewed at that time, and the necessities of the plaintiffs in that business for the addi- tional room in which to conduct it, as also their inconveniences and injuries to their business in not having the use of the whole building." 429. Exemplary damages. — In the absence of wantonness or malice, the damages recoverable from the lessor for his eviction of the tenant should be compensatory only ■,^^'' but for wanton or malicious eviction, in addition to compensatory damages, vindic- tive or exemplary damages may be allowed.^ ^* ^"'Lanigan v. Kille, 97 Pa. 120, 39 Fell, J., that the proper measure of Am. Rep. 797. damages w^as the difference between '^ 13 Pa. Super. Ct. 244. In Irmn the rental value of the whole tract, V. Isolde, 176 Pa. 594, 35 L. R. A. and that of the part retained; not 415, 35 Atl. 217, a person without the rental value of the parts taken, right, but thinking that he had and not the value of the crops raised right, dispossessed the tenant of two on the part taken, fields, parts of a large tract. One of ™ The same rule applies in an these fields had been planted in corn action against a stranger for an by the tenant; the other had been oviction without right. Iruin v. ploughed and manured. The evictor Nolde, 176 Pa. 594, 35 L. R. A. 415, planted the latter field, and, when 35 Atl. 217. the crops of both fields matured, ap- ^Oallagher v. Burke, 13 Pa. propriated them. It was said by Super. Ct. 244. EVICTION. 363 430. Function of jury. — The definition of an eviction is to he given to the jury by the court, v?hich also declares the legal consequences of an eviction; but, as in other cases, whether the facts have occurred which constitute an eviction is for the jury to decide,^^* when there is sufficient evidence.^^" If there is not sufficient evidence, if, e. g., a fire having destroyed a por- tion of the building and the division fence, the lessor enters in order to replace the division fence, but there is no evidence that he intends to take exclusive possession and control of the property, it would be error to allow the jury to find an intention to take such exclusive possession and control, and there- fore an eviction.-' ^■' '^'Bennet v. Bittle, 4 Rawle, 339; '"Walters v. Transue, 6 North- Burgioin v. Bishop, 91 Pa. 336; Oal- ampton Co. Rep. 406. lagher v. Burke, 13 Pa. Super. Ct. '"^Mannerbach v. Keppleman, 2 244; Ewvng v. Gottman, 9 Pa. Super. Woodw. Dec. 137. Ct. 444; Pier v. Carr, 69 Pa. 326. CHAPTER XXII. ASSIGNMENT OF TERM. 431. Transmission at lessee's death. 432. Sheriff's sale of term. 433. Lessee's assignment for benefit of creditors. 434. Assignment with intention of lessee. 435. Conditional assignment. 430. Consideration for the assignment. 437. Contract to assign conditioned. 438. Assignment of leasehold in part of premises. 439. Covenants against assignment. 440. Enforcing the covenants. 441. Conditions against assignment. 442. Waiver of stipuhation against assigning. 443. Lessee continues liable after assignment. 444. Liability of assignee for rent. 445. Covenants running with land; general principle. 440. Particular covenants failing on the assignee. 447. Action on the covenant. 448. When the assignment is complete. 449. Assignee's covenant runs with the lease. 450. Liability of assignee ceases. 451. When the assignee ceases to be owner. 452. Insolvency of the second assignee. 453. Assignee primarily liable as respects lessee. 454. Covenants brol'Cen before assignment. 455. Sublease by assignee. 456. Eights of assignee. 457. Assignment subject to lessor's rights. 45S. Recording lease. 431. Transmission at lessee's death. — The interest of the les- see in the premises may be transferred from him to another. By his death it passes to his executor or administrator, who may maintain the proper action to recover the possession under the lease or damages for the dispossession/ and who will be liable ^Keating v. Condon, 68 Pa. 75; Kunkle v. Philadelphia Rifle Clui, 10 Phila. 52. 304 ASSIGNMENT OF TERM. 365 for the value of what remains of the term, to creditors of the deceased lessee or his next of kin.^ And the right of renewal of the lease is also an asset, for which the administrator must account.^ 432. Sheriff's sale of term.— The interest of a tenant in a lease, of whatever duration, is a chattel interest. A judgment against him is not a lien upon it,* but it may be sold in execu- tion; and being a chattel, and not real estate,^ it may be sold on a iieri facias, without inquisition and condemnation,® and by a constable on a judgment of a justice of the peace.'' An undivided half of the leasehold may be assigned, and then the other half may be sold by the sheriff to the assignee.^ A hus- band's interest as lessee may be seized on a warrant for desert- ing his wife, under the act of June 13, 1836.® The purchaser at sheriff's sale, of the leasehold, becomes an assignee with all the rights and liabilities of an assignee in any other mode.-"' 433. Lessee's assignment for benefit of creditors. — The lessee may make an assignment of all his property for the benefit of his creditors. Such an assignment will pass to the assignee his leasehold inter est, ■'^-' but the assignee may refuse to accept the leasehold, if he deems it of no value above the rent to be paid. 'Wiley's Appeal, 8 Watts & S. 244 ; 'Dalzell v. Lynch, 4 Watts & S. 'Walker's Estate, 6 Pa. Co. Ct. 515; 255; Williams v. Dovming, 18 Pa. Rainow's Estate, 4 Kulp, 153; 60; Kile v. Oielner, 114 Pa. 381, 7 Buck's Estate, 185 Pa. 51, 64 Am. Atl. 154; McDermott v. Grippen, 5 St. Rep. 616, 39 Atl. 821; Emeret's Law Times N. S. 109; Wetherill v. Estate, 2 Pars. Sel. Eq. Cas. 195; Ourry, 2 Phila. 98; Goss v. Wood- Eow's Estate, 3 Pa. Dist. R. 316. land Fire Brick Go. 4 Pa. Super. Gt. Though only a month remains. Gop- 167. pel's Estate, 4 Phila. 378. ''Lereiv v. Rinehart, 3 Pa. Co. Ct. 'Emeret's Estate, 2 Pars. Sel. Eq. 50; Bism,arck Bldg. d L. Asso. v. Cas. 195; Fow's Estate, 3 Pa. Dist. Bolster, 92 Pa. 123. K. 316; cf. Johnson's Appeal, 115 Pa. 'Guldin v. Butz, 2 Woodw. Dec. 129, 2 Am. St. Rep. 539, 8 Atl. 36. 74. 'Krause's Appeal, 2 Whart. 398. 'Sterling v. Gom. 2 Grant, Cas. ^Brown v. Beecher, 120 Pa. 590, 15 162. Atl. 608; Duke v. Hague, 107 Pa. 57; ^"Simons v. Van Ingen, 86 Pa. 330. Titusville Iron Novelty Works' Ap- ^^Goodwin v. Sharkey, 80 Pa. 149; peal, 77 Pa. 103. Weiler v. Kershner, 109 Pa. 219. 300 LANDLORD AND TENANT. He may thus escape liability as assignee in an action for the rent by the lessor against him,^^ and protect the estate in his hands from liability for rent becoming due after the assign- ment,^^ since, without some action of the assignee constituting an acceptance, rent falling due after the assignment is not en- titled to payment from the assigned estate.-** The assignee's permitting some assigned goods to remain on the demised prem- ises eleven days after the assignment is not an acceptance of the lease, which would make the estate liable for more than compen- sation for the occupancy for eleven days;^^ and the fact that the assignee continued for two months to carry on, in the leased stores, the assignee's business of selling retail furniture, during which time he made purchases of such articles as were necessary in order advantageously to dispose of the stock on hand, he then making a sale and vacating the premises, cannot be construed into an acceptance of the lease. "The nature and purpose of this possession," says McCoUum, J., "were known to the lessor; and it negatived, rather than warranted, an inference of an intention to charge the estate with the rent which he [the lessor] now seeks to recover from the fund appropriated by the assign- ment to the claims of the then existing creditors of the as- signor. "■'^ If the assignee both enters on the premises to wind up the assignor's business, and pays one instalment of the rent when it becomes due according to the terms of the lease, and re- ceives a receipt to him as "assignee of X," the tenant, he be- comes tenant to the lessor, and is personally liable for the future instalments of the rent of the term. The lease of a store being '^'Pratt V. Levari, 1 Miles (Pa.) ^'Morris v. Parker, 1 Ashin. (Pa.) 358. Cf. Grant v. Gill, 2 Whart. 42. 187. "fie Snyder, 8 Phila. 302, 1 Legal ^'Wcmmann's Estate, 104 Pa. 405, Gaz. 302; Weinmann's Estate, 104 30 Atl. 389. The assignee paid the Pa. 405, 30 Atl. 389. rent for the two months preceding "Bosler v. Kuhn, 8 Watts & S. his sale. The lessor could recover 183; Sweatman's Appeal, 150 Pa. no more. 309, 24 Atl. 017 ; Weinmann's Es- tate, 104 Pa. 405, 30 Atl. 389. ASSIGNMENT OF TERM. 367 for one year, from January 1, 1830, the lessee held over beyond January 1, 1832, making an assignment on March 17, 1832. The assignees conducted the store until June 30, when they closed the store, and on July 3 sent the key to the lessor, who re- fused to receive it. The assignees had previously paid the rent for the quarter ending June 30. "This," said Sergeant, J., "showed an occupation by them under the assignment and made them tenants for the year. The defendants could not afterwards terminate the lease when they pleased; it could not be appor- tioned at their will. . . . They were bound till the end of the year if the plaintiff insisted on it, and in legal contemplation they used and occupied the premises from the 1st of July to the 1st of October, even though they did not choose to keep pos- session all the time."" 434. Assignment with intention of lessee. — Whether the lease is oral or written, the lessee may assign the term, and the effect is the same in the former as in the latter case, when the statute of frauds does not invalidate the lease.-'* The assignment may be in writing and under seal,-'® in writing without seal, or in parol. If the lease was not for longer than three years, the parol as- signment of it would be unquestionably valid. The 1st section of the act of March 21, 1772,^° enacts that "no leases, estates, or interests, either of freehold or terms of years, or any uncer- tain interest of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, shall, at any time after the said April 10, 1772, be assigned, granted, or surrendered, unless it be by deed or note in writing signed by the party so assigning, granting, or surrendering the same, or their agents thereto law- fully authorized by writing or by act and operation of law." This statute requires an assignment of a lease to be in writing, "Grant v. Oill, 2 Whart. 42. =» 1 Pepper & Lewis Digest, 2191 ; "TAoyd V. Cozens, 2 Ashm. (Pa.) 1 Smith's Laws, 389. 13L '^'Hvnkson v. Wagner, 3 Pa. Co. Ct. 297. 368 LANDLORD AND TENANT. irrespective of the diiration of the term.^^ But if the assign- ment has been fully executed by the assignee's payment of the consideration, by the delivery to him by the assignor and by his retention of the possession for a long time, e. g., two years, the lessor, who has recognized its validity, cannot set up the statute as against the assignor or his surety.^^ A term for three years from October 1, 186-i, Avith the privilege of renewing the lease for two years longer, was orally assigned in 1865. It was held that if the lessors had consented to this assignment and ac- quiesced in it and accepted the assignees as their tenants under the lease, the assignees acquired the rights of the lessee, and, inter alia, that of renewing the lease.^^ An assignment may be validly made in advance of the time when, in pursuance of its terms, the assignee will have the rights and liabilities of the lessee. A lease, e. g., being for five years from April 1, 1848, the lessee sold, September 9, 1848, all his right under the lease for and diiring the period of four years from April 1, 1849.^* Such assignment is valid as against a sheriff's vendee at a sale in March, 1849. One of two lessees may assign his interest in the term to the other^^ or to a third person. '^Wiley's Estate, 6 W. N. C. 208. three years, if with the lessor's con- --'Wiley's Estate, 6 W. N. C. 208. sent, and with delivery of possession The lease had more than three years to the assignee, is good for three to run when the assignment was years at least. In Spencer v. Dar- made. The lessor, who had recog- lington, 74 Pa. 286, the lease having nized its validity, could not dispute more than three years to run, the it, and hold the assignor or his court refrained from saying whether surety liable for the rent falling due a parol assignment of it would be after the assignment, the assignor valid, because it did not appear that having been, himself, not the lessee an assignment nad been made, but an assignee. "Williams v. Doicning, 18 Pa. 60. "Barclay v. Steamship Co. 6 The fact that the assignor retained Phila. 558. A written assignment possession of a part of the premises followed the oral assignment two did not impair the assignee's right, years afterward. The lessor had re- as against a subsequent purchaser at ceived twenty-one monthly payments sheriff's sale of the lessee's interest, of rent from the assignee. In Benz Cf. Pciinsi/lvaiiia v. Kirkpatrick, V. Iianr/an, 5 Northampton Co. Rep. Addison (Pa.) 193; Huntingdon v. 139, it is said that a parol assign- Longacre, 1 W. N. C. 120. ment of a lease rmming longer than '^Uouty v. Bird, 60 Pa. 48. The ASSIGNMENT OF TEEM. 369 435. Conditional assignment.— The leasehold may be assigned as collateral security for a debt. The assignment will be valid though written and absolute in form, the defeasance being in parol; the act of June 8, 1881,^" not applying to parol de- feasances of transfers of chattel interests in land. When one partner assigns his interest in the firm's assets as security for an obligation, and in doing so does not comply with the act of May 13, 1876,^^ respecting mortgages of leaseholds in collieries, mining lands, etc., he does not deprive himself of his partner's equity that the leasehold shall be applied to the payment of partnership debts as against the assignee of the other partner for the debt of the latter.^^ The lease may be assigned to B on B's undertaking to pay certain notes as they fall due, and all ground rents and taxes, and to keep up insurances, and on the stipulation that "in case any of the foregoing obligations remain unpaid" for longer than thirty days "after maturity," the amounts previously paid are to be forfeited and the lessee may enter and resume possession of the premises. The word "obli- gations" will be understood to refer to the notes, and the lessee cannot resume possession of the premises and annul the interest of his assignee simply because he fails to pay the ground rents, taxes, and insurance.^^ 436. Consideration for the assignment. — The consideration for the assignment is sometimes, when the lease is supposed to have a value, a sum of money and the assumption of the duty of pay- ing the rent to the landlord.^" The assignee may agree to pay a rent to the assignor, expecting the latter to pay the rent re- served in the lease to the lessor f'^ and, if the lease is worth more former colessees may form a part- '^Broi/m v. Beecher, 120 Pa. 590, nership and, as such, operate the 15 Atl. 608. A mortgage of the leasehold, without again becoming lease is an assignment; Becker v. colessees. Werner, 98 Pa. 555. "1 Pepper & Lewis Digest, 1613; '"McGinnis v. Thompson, 29 Pittsb. P. L. 84. L. J. 336. "1 Pepper & Lewis Digest, 1612j "Williams v. Downing, 18 Pa. 60. P. L. 160. ^'Eeukauff v. Aronson, 13 Phila. Land. & Ten. 24, 370 LANDLORD AND TENANT. than the original rent, the rent thus reserved by the lessee may exceed that which he is bound by the terms of the lease to pay the lessor. The lease, e. g., reserving an annual rent of $300, the lessee may, when assig-ning to X, reserve a rent of $450, and X in turn may assign to Y, reserving a rent of $500. Y may then assign to Z, reserving no rent at all.^^ The lessee having made improvements which he has the right to remove may as- sign the lease and them for the estimated value of the improve- ments only.^^ If the lessee agrees with the assignee, who con- tracts to pay rent for the remainder of the term, that, at the end of the term, he will take out a new lease in the names of both, and, in violation of the agTeement, he takes out the new lease in his own name, he cannot recover from the assignee the rent stipulated for in the agreement for the two months during which the latter holds over, though he may recover, possibly, for use and occupation.'''^ The lessee who reserves rent from the as- signee cannot distrain for it, unless he expressly stipulates for the power to distrain.^^ 437, Contract to assign conditioned. — The contract to assign the lease in consideration of the payment of $100 at the time, and certain other moneys subsequently, stipulated that the as- signee should not underlet to any one in the insurance business, and that the assignee, in the event of his intention to remove, 87 ; Hinkson v. Wagner, 3 Pa. Co. from the washing of the ore. If the Ct. 297. The assignor may compel assignee allows the lease to be for- the payment of the rent from the as- feited and so disables himself from signee. performing his covenants, the as- "Adams v. Beach, 1 Phila. 99. signer may sue him from time to "lipencer v. Darlington, 74 Pa. time for the royalties reserved, or, 280. Cf. Barclay v. Steamship Go. H treating the contract as "rescinded," Phila. 558. may claim damages in one action for "Hinkson v. Wagner, 3 Pa. Co. Ct. the entire breach. Keck v. Bieber, 297. The lessee may assign the lease, 148 Pa. 645, 33 Am. St. Rep. 846, 24 reserving a royalty for iron ore Atl. 170. mined. The assignee may covenant "^Ege v. Ege, 5 Watts, 134. The to indemnify the lessee against a power was stipulated for in Reulcauff claim of » prior assignee, and of v. Aronson, 13 Phila. 87. third persons, for damages 9,rising ASSIGNMENT OF TERM. 371 should give the assignor notice of this intention, in order that he, the assignor, might have an opportunity to become again pos- sessed of the premises. Before the time for the delivery of the possession, the assignee assigned his interest to a liquor dealer. The assignor might refuse to deliver the possession to the liquor dealer, and if he did so, the assignee could not recover back the $100 paid when the agreement to assign "was made, and addi- tional damages.^® 438. Assignment of leasehold in part of premises. — The lessee may assigTi his rights under the lease, in the whole of the prem- ises, or in a part of them only. He may, e. g., assign, one part to X, and retain the rest, or he may subsequently assign the rest toY." 439. Covenants against assignment. — The lessee may cove- nant in the lea^e that he will not assign, or that he will not assign without the written consent of the lessor. The covenant is not, ipso facto, a condition; and a breach of it, while exposing the lessee, who, despite it, assigns, to damages, will not make void or, at the will of the lessor, even voidable, the assignment.^*' At all events, if the lessor chooses to recognize the assignment by enforcing the liabilities arising therefrom under the lease, the assignee cannot, by alleging that the assignment was in violation of a covenant, escape these liabilities.^® And, after the lessor has repeatedly received rent from the assignee, and thus ac- cepted him as his tenant, he cannot refuse to permit the assignee to exercise the rights conferred by the lease ou the lessee; and, inter alia, that of renewing the lease.*" ^Huntingdon v. Longacre, 1 W. N. "Oil Greek £ C. Branch Petroleum C. 120. Co. V. Stanton Oil Co. 23 Pa. Co. Ct. ''Weidner v. Foster, 2 Penr. & W. 153; Brolaskey v. Hood, 6 Phila. 23. 193. "Brolaskey v. Hood, 6 Phila. 193. *°Barclay v. Steamship Go. 6 Phila. The covenant against subletting or 558. against using the property otherwise than as a sewing machine store can be enforced against the assignee. 372 LANDLORD AND TENANT. 440. Enforcing the covenants. — For a violation of the cove- nant against assigning, the proper remedy is an action for dam- ages against the lessee. The lessor does not forfeit the right thus to recover damages, by causing X, the assignee, to assign the premises to his, the lessor's, agent, in order that he may re- cover the possession before the expiration of the term, and so prevent the injury to the premises which the use of them by X would have produced.*^ Possibly, an assignment being contem- plated, a court of equity would enjoin the lessee against making it. At all events, the lease containing a covenant not to assign, or to use the premises otherwise than in a certain way, if the assignment is in fact made, the court may enjoin both the lessee and the assignee against the forbidden mode of using the prem- ises.*^ 441. Conditions against assignment. — To covenant against as- signment is not the same thing as to make the refraining from assignment a condition on whose breach the lease becomes void, or voidable by the lessor.*^ The lease may provide that if the lessees transfer it without the written assent of the lessors they shall forfeit it and the improvements,** or that, on the "trans- ferring without the written sanction of said lessors, said lessee and his assigns shall forfeit said lease and improvements."*^ If in violation of such provisions an assignment is made, it is in the power of the lessor to avoid it.*® The assignment is as respects the landlord a nullity, and cannot be set up against a title to improvements on the premises acquired under a land- lord's distress sale ; or against the title acquired by the forfeiture of the lease for another ground, e. g., the nonpa_\Tnent of rent.*^ "Hazlehurst v. Kendrick, 6 Serg, "Becl^cr v. Werner, 98 Pa. 555. & R. 440. "Spencer v. Darlington, 74 Pa. '^Brolaskey v. Hood, 6 Phila. 193. 286. "Barclay v. Steamship Go. 6 "Becker v. ^^'erner, 98 Pa. 555. Phila. 5.58. "!^. C. 507. ''Long V. Wood, 22 Pittsb. L. J. '*Shermer v. Paciello, 161 Pa. 69, 93. 28 Atl. 99.i. ''Kister v. Remsen, 1 W. N. C. 507. '-^Long v. Wood, 22 Pittsb. L. J. -'Long V. Wood, 22 Pittsb. L. J. 93. 93. 392 LANDLORD AND TENANT. out at any moment, the sublessee, not having known of the pro- hibition in the lease against subletting, may leave the premises and escape liability virithin the month, whose rent he has paid, to his immediate landlord (the lessee) for future rent^* The sublessee who is in possession of the premises will be as liable to third persons for negligence on the premises, although the sublease violated a condition in the lease, as if the sublease were permitted by the lease. The horse and cart of one using a wharf (the subject of the lease) having been lost in the river for want of a proper cap-log, the sublessee then in possession, though in violation of a condition against subletting, would be liable to their owner, if the imperfection of the cap-log began during his occupancy.^'' A condition against subletting is not broken because the tenant consents to proceedings on the part of X to procure a right of way over the premises.^^ 464. Sublessee's duty to pay rent, — The sublessee is under the same duty to pay to his landlord, the lessee, the rent resented in the lease to him, that any lessee is under towards his lessor. His goods can be distrained for it.^* If the lessee should sur- render the lease to the primary lessor, tbis lessor could distrain for the sublessee's rent, but not for the lessee's rent,*" and if the lessor should, after accepting the surrender, make a new lease to X, X, and not the landlord, would be entitled to re- ceive the after-accruing rent, and could distrain for it.*^ The primary lessor may distrain for the rent due him, on the goods ^Kisier v. Remsen, 1 W. N. C. at a rental of $900, and the lessor 507. remits to A a portion of the rent, "Towt V. Philadelphia, 173 Pa. and B takes sole possession under a 314, 33 Atl. 1034. later agreement to pay A $500, B ^hong V. Wood, 22 Pittsb. L. J. cannot claim any reduction from the 93. $500 because A was not obliged to ^Ege V. Ege, 5 Watts, 134 ; Man- pay as much rent as it was originally uel V. Reath, 5 Phila. 11. expected that he would pay. Van- ^Hessel v. Johnson, 129 Pa. 173, sant v. Fishel, 1 York Legal Record, 3 L. R. A. 851, 15 Am. St. Rep. 716, 101. 18 Atl. 754. If A and B agree to "ffesseZ v. Johnson, 129 Pa. 173, occupy a room together, paying the 5 L. R. A. 851, 15 Am. St. Rep. 710, rent equally, and A procures a lease 18 Atl. 754. SUBLEASES. 393 of the subtenant found on the premises f^ and as he is neither a debtor nor a tenant to the lessor, he is not entitled to the $300 exemption.^^ If the lessee, after subletting, assigns the lease, the sublessee ni\ist pay the subsequently accruing rent to the assignee.^'* 465. Surrender by lessee. — A sublease which violates no con- dition in tlie lease^^ is not defeasible by the primary lessee's sur- render of the lease to the lessor.''* The sublessee, after such sur- render, is not liable to have his goods distrained on for any rent accruing under a new lease made by the lessor, nor, of course, for rent accruing under tlie extinguished lease. A, having a lease from year to year beginning September 1, 1858, let a part of the premises April 1, 1859, to B, wthout any specification as to time. On September 15, 1859, witliout previous notice to quit, A surrendered the premises to the lessor. B, being put out of possession by the lessor's agent, could recover in trespass against '"Hessel v. Johnson, 129 Pa. 173, insurance on the premises, all arrear- 5 L. R. A. 851, 15 Am. St. Rep. 716, ages of taxes as well as all taxes to 18 Atl. 754; Rosenherger v. Hallo- be assessed on the premises during^ well, 35 Pa. 369; Collins v. Whilldin, the term, all rents due under the 3 Phila. 102. original lease and such as should be- ^Rosenberger v. JJallovcell, 35 Pa. come due. He agreed to pay all 369. The sublessee is not liable to labor claims, and to keep the prem- the original lessor for rent (James ises insured. The interest already V. Kurtz, 23 Pa. Super. Ct. 304), due on the mortgage, and other sums after he vacates the premises, adds already due when tne sublease was Gamphell's Estate, 21 Pa. Super. Ct. made, it was the duty of the sub- 424. But he is not personally liable lessee to pay at once or in a reason- ever. The subtenant may bind him- able time. If he did not, a suit Pelf to perform towards the original could be brought against him before lessor the duties of the lessee, and the end of the term, by the lessee, be- may make his performance a, condi- fore he had paid the mortgagee, or tion of the sublease. Goddard's Ap- had been sued by the latter. peal, 1 Walk. (Pa.) 97. "'To violate a covenant is not ^'Morgan v. Negley, 3 Pittsb. 33. enough to deprive the sublessee of In Ardesco Oil Co. v. North Ameri- the immunity. Brown v. Butler, 4 can Oil d Min. Co. 66 Pa. 375, the Phila. 71. lessee of a, coal tract mortgaged the '"Ucssel v. Johnson, 129 Pa. 173, premises and then sublet them. The 5 L. R. A. 851, 15 Am. St. Rep. 716, 'sublessee agreed to pay all interest 18 Atl. 754, 142 Pa. 8, 11 L. R. A. due and to become due on the niort- 855, 21 Atl. 794. Broiim v. Bullet. age, all sums advanced by M for 4 Phila. 71. 304 LANDLORD AND TENANT. him. Sharswood, P. J., held that A could not waive his right to a three months' notice to quit, to the detriment of his sub- lessee. After accepting the surrender, the landlord could have given B notice to quit in April (the commencement of the sub- lease), or, being ignorant of the term of the sublease, and not having accepted the sublessee as his immediate tenant, he could have served the sublessee with notice in the name of A to quit September 1, 1860." 466. Sublessee's powers. — The sublessee may acquire the re\'er- sion from the primary lessor, and, as successor to the lessor, may terminate the original term, which is from year to year, by giv- ing the proper notice to quit, and may recover possession by eject- ment.^^ The sublessee has no right to procure from the primary lessor a new lease for a period of time embraced within the term of the lessee, and such new lease mil be invalid. Even if the original lease might have been forfeited for breach of condition in it, the new lease, making no reference to the right to forfeit and recognizing the possibility that the claimants under the for- mer lease have a right to the premises, will not be deemed an exercise of the right to forfeit, and will be void with respect to the claimants under tlie original lease.^* The sublessee, like the lessee, may, in the absence of a condition against assigning, as- sign the sublease. The assig-nee becomes liable to pay the same royalties which fall due after his purchase as the assignor would have been bound to pay.''" 467. Lessee's covenants do not bind the sublessee. — The lessee's covenants run with the leasehold, but the leasehold is not con- ceived to run when a sublease, and not an assignment, is made ; and the sublessee is under no duty to perform the covenant of his immediate lessor.*^ He is not boimd, e. g., to pay rent to ''Brown v. Butler, 4 Phila. 71. 602, 41 Atl. 748, 1119; Adams v. "Hey V. McOrath, 81* Pa. 310. Beach. 1 Phila. 09. "Stone V. Marshall Oil Co. 188 Pa. "Oil Creek d- C. Branch Petroleum 602, 41 Atl. 748, 1119. Co. v. Stanton Oil Go. 23 Pa, Co. Ct. "Stone V. Marshall Oil Co. 188 Pa. 153. SUBLEASES. 395 the lessor,** but the lessee may require the sublessee to covenant to perform the covenants of the former.*^ However, since the goods of the sublessee may be distrained by the primary lessor for rent due him from his lessee, if any rent is due him, the sub- lessee may pay it out of the rent owed by him to his immediate landlord. IsTor must he wait, before doing this, until his goods are taken in distress. Hence, if, a distress being made, though invalid, the sublessee pays the rent, he will not be compelled to pay it again to his immediate lessor (the lessee) or to the at- taching creditor of the latter. "It appears, then, to be unim- portant," says Sharswood, P. J., "whether the particxilar distress upon which the subtenant made his payment was or was not rightful, either as to its manner or objects ; there was a right to distrain on the subtenant's goods on the premises, whether there were any there or not ; he could not bring any there without their being immediately subject to be seized and detained and his en- joyment thus interfered vidth; he was, moreover, liable to be ejected on ten days' notice from the original lessor."** 468. Subtenant liable to eviction. — The lessee cannot deprive the lessor of the right to recover possession for which he stipu- lates in the lease, by making a sublease. If., e. g., the lease au- thorizes the lessor to eject the tenant for nonpayment of rent, on ten days' notice, the subtenant will be liable to ejection, on ten days' notice, for the nonpayment of the lessee's rent,*^ and if for nonpai^Tuent of rent a judgment is entered on the warrant of at- torney in the lease, and a habere facias possessionem issued, the writ will not be set aside on the application of a subtenant, al- though he has tendered the rent since the writ issued, and re- mains ready to pay it He has "no standing in court."** "Roseriberger v. Ealloicell, 35 Pa. Hence the subtenant may pay the 369. rent and obtain a, credit on account ^Rosenherger v. Ballowell, 35 Pa. of his own rent to his immediate les- 369. sor. "Collins V. Whilldin, 3 Phila. 102. ''Kennedy v. Canavan, 2 W. N. C. "Collins V. Whilldin, 3 Phila. 102. 226. 396 LANDLORD AND TENANT. 469. Eminent domain. — A sublessee has a riglit to compensa- tion for the taking of the property under the power of eminent domain. If the whole premises are taken, the value of so much of the term created by the sublease as has yet to run will be the measure of damages. If the sublease prohibited the underten- ant from occupying, or permitting to be ocupied. the premises "otherwise than as lodge rooms for Hall Association 0. U. F.," the damages will be tlie value of the term for this use, and for this use only. The fact that tlie original lease stipulates that should a railroad, of whose construction there was rumor, be lo- cated over the jiremises, the lease should end immediately and the lessees .should vacate -within a reasonable time, but tliat noth- ing therein contained should prevent the lessor or lessee from recovering damages for the taking by the railroad, will not pre- vent the sublessee's obtaining damages, the sublessee having no actual notice of its existence, and the clause in the lease pre- serving the rights of both parties to it to obtain damages.*^ "Boteler v. Philadelphia & B. Term. K. Co. 164 Pa. 397, 30 AtL 303. OHAPTEK XXIV. CONDITIONS SUBSEQUENT. 470. Denial of title. 471. Failure of consideration by operation of law. 472. Covenant not condition. 473. Kinds of conditions. 474. Payment of rent a condition. 475. Eight of forfeiture lost. 470. Waiver of forfeiture. 477. Waiver, continued. 478. Enforcement against assignee of term. 479. Apportionment of condition. 480. Nonpayment of rent. 481. Days of grace. 482. Modes of enforcing forfeiture; re-entry. 483. Re-entry unnecessary. 484. Re-entry vi^hen lease becomes null and void. 485. When landlord reserves power to terminate. 486. Ejectment; equity. 487. Respite of forfeiture. 488. Prohibiting the forfeiture. 489. Demand conditions forfeiture for nonpayment of rent. 490. Demand unnecessary. 491. Ejectment on warrant of attorney. 492. \^Tio may act under the warrant. 493. Against whom judgment can be entered under the warrant. 494. What period of time covered by warrant. 495. Filing of warrant with prothonotary. 496. Filing an averment of breach. 497. Description of the premises. 498. Signing by attorney. 499. Forms of warrant. 500. Judgment for land and for rent. 501. Striking off and opening judgment. 502. Rule to strike off. 503. Who may ask for the rule. -504. Setting aside habere facias possessionem. 505. Appeal. 506. Lessee takes advantage of condition. ■507. Right of lessee after forfeiture. 397 398 LANDLORD AND TENANT. 470. Denial of title. — There are some implied conditions to the continuance of the rights of a lessee under the lease. One of these is that the lessee shall not deny the title of the lessor. If he altorns to some other person, or, when the rent is demanded, says that he is no longer tenant, the lecsor may treat him as ten- ant, or as a trespasser.' A lease expiring October 10, 1886, the landlord on December 15, 1885, gave the tenant notice to quit at the expiration of the lease. The tenant, when he received the notice, said: "It doesn't make any difference to me, I am not here imder him. I am here under another man." After this denial of the title, the landlord could, at his option, treat the lease as ended, and on January 15, 1886, institute an action of ejectment.^ But when there is no denial of the title of the original lessor, but only of the devolution of his title by inheri- tance, devise, or grant upon X, who now claims to be landlord, such denial would not, should X be entitled, forfeit the lessee's interest.^ The lessee's making a contract to convey the premises in fee, or an actual conveyance of it by deed, is not such a denial of the lessor's title as forfeits the lease. It is only a feoffment by the lessee that produces that result. Hence, the contract by the assignee of a term of 999 years, to convey tlie land in fee, did not entitle the lessor, or his grantee of the reversion, to re- cover the land in ejectment before the expiration of the term.* A conveyance in fee by a lessee, by a deed of bargain and sale, acknowledged and recorded, does not forfeit the lease.^ 471. Failure of consideration by operation of law. — If the per- formance by the tenant of one of the considerations for the lease 'Cf. IfewmMn v. Butter, 8 Watts, 'Griffin v. Fellows, 81* Pa. 114. 51. The relation of landlord and When tenant for life suflfered a tenant had not been discovered when common recovery, he forfeited the the denial of the title of the former life estate, and destroyed contingent occurred. It did not work a forfeit- remainders; Lyle v. Richards, 9 ure. Hill V. Hill, 43 Pa. 528. Serg. & R. 322. -Willard V. Earley, 22 W. N. C. 'U'Kee v. Pfout, 3 Dall. 486, 1 L. 122. ed. 690; Dunwoodie v. Beed, 3 Serg. 'Newman v. Rutter, 8 Watts, 51. & R. 435. CONDITIONS SUBSEQUENT. 399 is rendered impossible by a change in the law, the lease, at the instance of either party, will be declared rescinded "if things remain in such a position that the parties can be placed in their original situation." Hence, the lessee in a lease for eight years covenanting to erect a frame dwelling on the lot, which is to re- main after the term has expired, if before the time limited for its erection an ordinance of the city where the premises are is passed, prohibiting the erection of wooden buildings, the lessor will be permitted to recover the possession by ejectment, within the eight years.® 472. Covenant not condition. — Covenants are not the same as conditions.'^ The remedy for breach of a covenant is an action for money compensation. A condition is a stipulation making the continuance of the estate of the lessee dependent on the hap- pening or nonhappening of a certain event. The lease may make the covenants conditions by providing that, for a breach of any of them, the estate of the lessee shall determine either absolutely, or upon tlie lessor's doing something to manifest his intention to resume control of the premises, and to treat the term as having come to an end.® The lessor may make any condi- tions that he chooses, if they be not illegal, unreasonable, or re- pugnant to the grant itself.^ Conditions in a sublease-"' are as valid and enforceable by the lessee as those in the lease are valid and enforceable by the lessor. 473. Kinds of conditions. — A frequent condition is that the lessee punctually pay the rent^^ Sometimes payment of the 'Rooks V. Seaton, 1 Phila. 106. the covenants. Quinn v. McCarty, 'Marshall v. Forest Oil Co. 198 Pa. 81 Pa. 475. 83, 47 Atl. 927; Ereutz v. Mc- 'Neuyman v. Butter, 8 Watts, 51. Knight, 53 Pa. 319. See this case for implied conditions. 'Hand v. Suravitz, 148 Pa. 202, 23 '"Goddard's Appeal, 1 Walk. (Pa.) Atl. 1117; Becker v. Werner, 98 97. Pa. 555. The lease authorized a ^Bausman v. Kreidrr, 18 Lane. L. three months' notice to give up the Rev. 103; White v. Alurray, 7 Phila. premises at the end of each year, for 302. a breach during the year of any >f 400 LANDLORD AND TENANT. -water rent or of the gas bills^* ^j. gf ^j^g taxes" by the tenant is made a condition. The stipulation that he shall pay his "own gas and water bills" means that he shall pay them to the company which supplies the gas or water. A prohibition against sublet- ting" or assigning the lease may be enforced by making the as- signment a ground of forfeiture" (and making a mortgage of it on which a sale ultimately takes place, is such an assign- ment)'* as may one against selling anything other than corsets on the premises,*'' or vising them for certain'* immoral or other purposes,'^ or one against the tenant's taking off the hay, straw, ■etc.^° The continuance of the tenant's right may be conditioned on his building a house within a specified time,^' or on his mak- ing repairs or refraining from committing waste. ^^ In Muller V. Bohringer^^ a covenant was made to sell on the premises— f- lager-beer saloon — no beer except that furnished by the lessor. The court suggested that such a condition was in restraint of trade, and was without mutuality, because the lessor had not bound himself to furnish beer. The lease may provide that should the lessee become objectionable to the lessor for any cause, the lessee shall give up possession on twenty days' notiee.^^ 'The lease may provide that, on failure of the lessee to comply with all the terms of the lease, the lease shall terminate on thirty -days' notice in writing to the lessee, who agrees to surrender pos- session. One of these terms may be the payment of rent when "HMid V. Suravitz, 148 Pa. 202, 23 "Hughes v. Moody, 10 Pa. Co. CT. Atl. 1117. 305. "Becker v. Werner, 98 Pa. 555. ^'Dikeman v. Butterfield, 135 Pa. "Swartz's Appeal, 119 Pa. 208, 13 236, 19 Atl. 938. Atl. 69; Zeirjler v. Lichten, 205 Pa. "Quinn v. McCarty, 81 Pa. 475. 104, 54 Atl 489; Shermer V. Paciello, '''Sewman v. Rutter, 8 Watts, 51. 161 Pa. 69, 28 Atl. 995. "Swartz's Appeal, 119 Pa. 208, 13 "Grossman's Appeal, 102 Pa. 137; Atl. 69; Scherr v. Seymojir, 2 W. N. Becker v. Werner, 98 Pa. 555; A'o- C. 534. iional Pub. Asso. v. Shupe d- X. -' 3 Pa. Co. Ct. 144. Furniture Go. 18 W. N. C. 379. 'Wdam v. Clark, 2 W. N. C. 429. "'Becker v. Werner, 98 Pa. 5,)5. "Inman v. Vandervoode, 1 W. N. •C. 40. CONDITIONS SUBSEQUENT. 401 due, the constmction of a new railroad by the lessee, a railroad company, and payment of a share of the earnings to the lessor, in addition to the rent.^' The lease, e. g., of a stone quarry, may condition itself on the lessee's keeping the boilers in repair, keeping a sufficient strip of dirt cleaned on top of the quarry, may provide for the decision of an expert when complaint by the lessor is made of the failure, in these respects, of the lessee, and make the refusal to comply with his decision within ten days after written notice of it, a gi'ound of forfeiture. Whether there could or could not be a forfeiture until the decision of an arbitrator was procured, there could not be until specific notice of tlie lessee's breach had been given to him, and the lapse of ten days without remedying the defects.^" The agreement being that the lease shall become void imless, prior to June 1, 1893, the lessee obtains a license to sell liquor, the condition is fulfilled if he obtains the license within that time. The lease will continue valid despite a subsequent revocation of the license.^" The lease providing that it shall become void if the tenant ceases for twelve months to mine iron ore, such cessation will terminate the lease, at tlae will of the lessor. The lessee's entry from time to time in order to clean and grease the engine erected by him on the premises is not a continuance of mining operations that will pre- vent the forfeiture.^^ The abstaining from operation of a coal mine for one year may be declared to be "an abandonment of the lease."^* Failure to work a quarry for the space of three successive months may be a gTOund of forfeiture.^" ^Pittsburg, J. E. & E. R. Co. v. term was held not to be within tho Altoona d B. C. K. Co. 196 Pa. 4.52, wope of the provision. 46 Atl. 431 ; Pittshurg, J. E. & E. R. '"Miller v. Chester Slate Go. 12!) Go. V. Altoona & B. C. R. Co. 203 Pa. Pa. 81, 18 Atl. .505. It is for the 108 52 Atl. 13. court to interpret a written lease. ''East Consholiocken Quarry Co. v. If the quarry becomes filled with Boyd, 18 Montg. Co. L. Rep. 58. snow, ice, water, making the removal '''Fell V. Betz, 5 Pa. Dist. R. 310. of rock impossible, the quarry is "Davis V. Moss, 38 Pa. 346. "worked" by the removal of tlie wa- "Mayers v. Tiley, 32 Pa. 267 The ter, ice, etc. nonoperation the first year of the Land, & Ten. 26, 402; LANDLORD AND TENANT. ; 474. Jayment of rent a con''-"Moii.— The lease, e. g., of coal land, may make the payment of the royalties^^ or of rent^^ a, condition. The payment may be required punctually upon the day named, even though it be in advanee.^^ Sometimes the provision is that, for nonpayment vsdthin five or some other num- ber of daj's after the rent becomes payable, the lease may be ter- minated.^* Sometimes the nonpayment of rent for a period, e, g., sixty days, is made to authorize a distress, and it is pro- vided that if there are not sufficient goods on the premises to satisfy the rent by distress, the landlord may rej)ossess himself of the premises.^^ Under such a stipulation,- it is necessary that a distress should be made, and should prove ineffectual because of insufficiency of goods. Sometimes the lease may au- thorize, after a three^° or five^'^ or other number of days' default, a notice to the tenant that on a day to be fixed therein or on a day at a prescribed distance from the giving of the notice, the lease shall terminate. Or it may make the simple default, without respect to the period over which it has lasted, a forfeiture, e. g., failure to perform any of the covenants. Under such a lease, one of whose covenants is that the tenant shall pay his own gas and water bills, the tenant's failure to pay the water bill to the company forfeited the lease, at the option of the lessor.^* '■'^Kreutz v. McKnight, 53 Pa. 319; ment of rent when the lease so pro- Verdolit'e Co. v. Richards, 7 North- vides is indisputable. Reams y. ampton Co. Rep. 113; Walnut Run Fye, 24 Pa. Co. Cc. 671. Goal Co.' y. Knight, 201 Pa. 23, 50 ''Evans v. Fries, 9 W. N. C. 462; Atl. 288. Pennsylvania Co. for Ins. on Lives & '■'Hand v. Suravitz, 148 Pa. 202, 23 G. A. v. Shanahan, 10 Pa. Super. Ct. AtJ. 11.17; Becker v. Werner, 98 Pa. 267; Ellis v. Ambler, 11 Pa, Super. 555. ■ Ct. 406. ''Murphy v. Marshell, 179 Pa. 516, "Xewman v. Rutter, 8 Watts, 51. 36 Atl. 294. "Ellis v. Amhler, 11 Pa. Super. Ct. The landlord's recovery of the pos- 406. session during the period covered by '''Pennsylvania Co. for Ins. on the rent in advance may not entitle Lives 55; P. L. 187. firrear and unpaid; that there are STATUTORY FORFEIT UEE FOE NONPAYMENT OP RENT. 441 eight days thereafter, to answer the said complaint. If the summons is in the ordinary form when a debt is to be recovered, it is no notice to the tenant that a dispossession proceeding is in contemplation, and if the tenant does not appear, the judgment of dispossession ultimately entered will be void.*^ The sum- mons should be served on the lessee, or upon the person in pos- session who has acquired his right by sublease or by assignment. In Hartnack v. James/^ the lessee's interest being sold by the sheriff, and the sheriff's vendee transferring his interest to X, the summons was served both on the lessee, "and personally, on the premises," on X. The service, if on the lessee personally, need not be made on the premises.*^ A copy of tlie -^mt must be delivered to the lessee, or, when personal service is not made, to some member of his family. A nonpersonal service made by "delivering a true copy on the premises, in the presence of Ma- linda Nash, an adult neighbor," is not sufficient.** The defend- ant in the writ being one person, the constable's return, "Served the within by reading the same to them," would leave too uncer- tain the inference that the defendant was intended.** The con- stable's return must show that a valid service has been made by him; otherwise, in the absence of an appearance by the defend- ant, the judgment rendered by the justice for the lessor will be voidable on certiorari. 522. The hearing and judgment.— On the day appointed in the summons served on the lessee "or on some other day then to be appoiated" by the justice, he is directed by the act to "proceed to hear the case," and he is to ascertain whether the complaint is "in all particulars just and true." If the complaint is found to be thus just and true, then the justice "shall enter judgment "Gassel v. Seiberi, 1 Dauphin Co. '^Reid v. Christy, 2 Phila. 144. Rep. 16. The tenant can attack it "McCarthy v. Sykes, 7 Pa. Dist. collaterally by suing in trespass the R. 243. landlord and the justice for evicting "Mogg v. Stone, i Del. Co. Rep. him under the judgment. 170. "8 Phila. 317. 442 LANDLORD AND TENANT. against such lessee that the premises shall be delivered up to the lessor." He is also required to ascertain and detennine, on due and legal proof, the rent actually due and in arrear, and the costs •of the proceeding, and to indorse this rent and these costs on the writ which he may issue at the request of the lessor for the de- livery of the possession. If the justice finds the complaint vexa- tious and unfounded, he dismisses it with costs, to be paid by the lessor. 523. Finding the rent due. — The object of ascertaining the Tent due and of indorsing it upon the writ of possession is, "that the tenant may, if he sees fit, supersede the writ by paying to the constable, for the use of the lessor, the amount of the rent, to- gBther with the costs of the proceeding."*^ The rent thus to be as- certained is the rent which was due when the notice was sent to the tenant, and not that in addition which subsequently accrues. Thus, the notice specifying $6.00 as in arrear, a finding by the justice of $12.00, the additional six being the rent of another month fallen due since the notice, would vitiate the proceed- ings.** The notice specifying as rent due, the rent due on Jan- uary 1st, 1860, the ascertainment of rent due to February 1st, 1860, is erroneous.*'^ The object of the statement of the rent ia to enable the tenant to retain the possession, on paying it,** and he has a right to retain the possession on paying the rent of de- fault as to which he was notified in the notice, and default as to which was alleged against him in the complaint. No judgment, however, is entered for the rent due,** and therefore no execution can issue for the collection of it.^° A judgment for $146.67, the rent claimed, "or the possession of the house and premises," was *^Trimiath v. Patterson, 76 Pa. "Hazen v. Oulbertson, 10 Watts, 277 ; McCarthy v. Sykes, 7 Pa. Dist. 393. R. 243. "Castle v. Weber, 2 Pearson (Pa.) "McCarthy v. Sykes, 7 Pa. Dist. 79; Rubicum v. Williams, 1 Ashm. R. 243. (Pa.) 230. Cf. PhUadelphia & R. R. "Stoever v. Miller, 4 Phila. 149. Go. v. Thornton, 3 PhiJa. 257. '^Hazen v. Oulbertson, 10 Watts, .193. STATUTORY FORFEITUKE FOR NONPAYMENT OF RENT. 443 held to be erroneous because there can be no judgment for rent ; because if there could, a judgment for more than $100 exceeded the justice's jurisdiction; and because a judgment in the alter- native is not certain, and is not sanctioned by the act of 1830.^* However, if a judgment for the delivery of the possession of the premises to the lessor, and also for the payment of the rent to him, be entered, the latter will be treated probably as surplusage on certiorari,^* but an execution issued on it for the rent would be reversed. "^^ 524. The execution.— The justice must, after judgment, "at the request of the lessor, issue a writ of possession directed to the said constable, commanding him forthwith to deliver actual pos- session of the premises to the lessor, and also to levy the costs on the defendant in the same manner that costs are now by law levied and collected on other writs of execution." The rent found due is to be indorsed on this writ of possession. If it is not, the writ, doubtless, and all proceedings upon it, will be set aside on certiorari.^* 525. When execution may issue.— "ISTo writ of possession shall be issued . . . for five days after the rendition of judg- ment, and if, within the said five days, the tenant shall give good, sufficient, and absolute security, by recognizance, for all costs that may have and may accrue, in case the judgment shall be affirmed, and also for all rent that has accrued or may accrue up to the time of final judgment, then the tenant shall be enti- tled to an appeal to the next court of common pleas, which ap- peal shall be then tried in tie same manner that other suits are tried ; and Provided further. That nothing herein contained shall prevent the issuing of a certiorari, with the usual form and ''^Evans v. Radford, 2 Phila. 370. '''Castle v. Weier, 2 Pearson (Pa.) The judgment was set aside on certi 79. orari. ^Trimlath v. Patterson, 76 Pa. '^Castle y. Weher, 2 Pearson (Pa.) 277; McCarthy v. Sykes, 7 Pa. Dist. 79; Hazen v. Culbertson, 10 Watts, R. 243. See form of writ in Trini- 393. bath v. Patterson, 78 Pa. 277. 444 ■ LANDLORD AND TENANT. effect'"'' It is "flagrant error" to issue the writ of possession on the day on which,^" or before the lapse of five days after the day on which, the judgment has been entered. The writ of posses- sion, if issued, is superseded if, at any time before it is actually executed, the tenant pays to the constable the rent found by the justice to have been actually due and in arrear, and the costs.^' It cannot issue if, within the five days following the entry of the judgment, the tenant gives the recognizance for an appeal, and appeals.''* A court of equity will not arrest the execution of the writ by injunction when the tenant, denying that he was tenant of the plaintiff, but asserting that he was tenant of a third per- son, X, made no effort in the proceedings before the justice, or by appeal, to maintain his alleged rights, and when he does not in his bill show how X claims.'® A certiorari is not a super- sedeas. The proviso that nothing in the act of 1830 should pre- vent the issue of certiorari "with the usual form and effect" does not make it such.®" 526. Certiorari, — The provision for appeal in the act of 1830 expressly saves the right to issue a certiorari, and this writ has frequently been employed by the court of common pleas to re- view the regularity of the proceedings before the justice. Either party, doubtless, may sue out the writ, though the landlord sel- dom has occasion to do so. Either party, his agent or attorney, may obtain it. When the judgment is in favor of the lessor, as it almost invariably is, it is not the tenant alone who can obtain the writ A claimant of the reversion by a sheriff's sale of the plaintiff's title since the making of the lease, who alleges that the "Act April 3rd, 1830, 1 Pepper & The court says also that the tenant, Lewis Digest, 2657; P. L. 187, § 1. not having paid rent admitted by '^Trimhath v. Patterson, 76 Pa. him to be due to X, had not done 277. equity. Paying the plaintiff after '•''Htoever v. Miller, 4 Phila. 149; judgment would have been paying TIarfnack v. James, 8 Phila. 317. under compulsion. '-^Ruhi(~iim V. Williams, 1 Ashm. "Duddy v. Hill, 3 Leg. & Ins. Rep. (P;i.) 280. 59. '-'Haitnuok v. James, 8 Phila. 317. STATUTORY FORFEITURE FOR NONPAYMENT OF RENT. 445 tenant has attorned to him, having obtained the judgment of the justice, the lessor, denying that his title passed by the sheriff sale, may procure the writ."'^ The 21st section of the act of March 20th, 1810,^^ concerning the jurisdiction of the justices, which requires an oath and recognizance in order to obtain a certiorari, does not apply to a certiorari of the proceedings under the act of 1830,®^ though the affidavit is not infrequent.®* It may issue beyond twenty days after the jiidgment if no juris- diction of the person of the tenant was obtained because of de- fective service of the summons and of his nonappearance.®' 527. Certiorari; the record. — The facts necessary to justify a judgment of dispossession against the defendant must have been found to exist by the justice, and that he has thus found them must appear in his record. If the complaint is a part of the record, and if it avers all the necessary facts, as it must, a gen- eral averment by the justice, in the language of the act of 1830, that the complaint is found by him "in all particulars just and true," will make unnecessary the statement by the justice of the particular facts; e. g., that the tenant was in possession under the plaintiff ; that rent was in arrear ; that there were not suffi- cient unprivileged goods on the premises to satisfy the rent.®® If there is no such general averment in the record of the justice, specific averments by him that he has found the facts, severally, which must exist to justify the expulsion of the tenant, are necessary. They must state what the demise was, so that it may appear that it was for years or at will;®'' that the plaintiff or '^Tyrell Bldg. d L. Asso. v. Tyrell Bldg. d L. Asso. v. Daughen, Danghen, 7 W. N. C. 244. The court 7 W. N. C. 244. refused to quash the certiorari at °''Mogg v. Stone, 4 Del. Co. R«p. the instance of the plaintiff. 170. "1 Pepper & Lewis Digest, 2612; "Maxicell v. Perkins, 93 Pa. 255; 5 Smith's Laws, 161. Reid v. Christy, 2 Phila. 144; Thorn- ^'Ruhicum v. Williams, 1 Ashm. as v. Flamer, 1 Phila. 518; MoKeon (Pa.) 230. Cf. Allen v. Ash, 6 v. King, 9 Pa. 213. Phila. 312. "Trimbath v. Patterson, 76 Pa. "^Thomas v. Flamer, 1 Phila. 518; 277; McDermott v. Mcllivain, 75 Pa. 446 LANDLORD AND TENANT. one under whom he claims made the lease ;®^ that there were not on the premises sufEcient goods liable to distress to satisfy the rent f^ that the fifteen or thirty days' notice was given f what the rent is which is reserved in the lease, and what rent is in arrearJ^ If the complaint alleges the rent to be monthly, $45.84, and that the rent due July 1st, $45.84, is in arrear, and the justice mistakenly states that the complaint alleges an annual rent of $540.00, but the justice finds all the averments of the complaint to be true, and also ascertains that the rent due by the tenant is $45.84, there is, in the discrepancy between the complaint and the justice's statement about it, no cause for re- versal on certiorari.''* 528. Errors affirmatively shown by the record. — Eor errors ex- plicitly appearing in the record, the common pleas will reverse on certiorari ; e. g., when an inadequate service of the summons, is manifested by the constable's retum,^^ or it appears that the complaint was made less than the prescribed time after the ser- vice of the notice to quit,''* or the record shows that the only witness who proved the amount of rent due the plaintiff was as the law then was, incompetent; viz., the plaintiff himself;''® or the record shows that the defendant offered to prove that the les- sor claimed under a life tenant, that the life tenant was dead, and that the tenant had attorned to the grantee of the remain- 341 ; Leiniach v. Kaufman, 2 Walk. ^Tyrell Bldg. )ONPAYMENT OF RENT. 447" derman, paying him the rent, and that the justice refused to hear this evidence.'^* Though the record shows that the tenant ob- jected to the jurisdiction of the justice, and filed an affidavit that the title to the land would come in question, and that he did not hold by lease or otherwise under the plaintiff, but claimed him- self to own the land, this was no cause for reversal, because, though a disputed ownership might preclude the jurisdiction of the justices, the affidavit of the defendant was not the way to prove that the ownership would be disputed.^'' In the absence of fraud, evidence not in the record will not be considered in order to impeach it;^* not even evidence of a prior proceeding before another justice for the same defaults, in which the justice had entered judgment for the defendant.^* The sufficiency of the evidence to support the justice's findings of facts will be pre- sumed.^" In case of a certiorari to the judgment of a magis- trate, the statute requires him to certify the whole proceeding had before him, by sending the original precepts as well as a copy of the judgment and execution, if any. The Icssur's com- plaint is, therefore, made a part of the rec^/rd.*' 529. Review of decision of common pleas. — The judgment of the common pleas in reversing or affirming the justice might be "Allen V. Ash, 6 Phila. 312. It ■"Maxvell v. Perkins, n.3 Pa. 25.5. was not necessary to file an affidavit '"Castle v. Weber, 2 Pearson (Pa.) of the tenant with the justice, aver- 79. The earlier record ought to have ring that the title of the lessor was been offered in evidence in the second' in question. proceeding before the justice. ''Essler v. Johnson. 25 Pa. 350. '"Reid v. Christy, 2 Phila. 144; Unless the fact that the ownership Hcott v. Lohyer, 3 Luzerne Legal would be disputed appeared affirma- Obs. 393. tively by the plaintiff's shoAving. it No bill of exceptions to evidence had to be proved by the defendant, can be taken before the justice so as like any other fact in the cause, to secure a review of the evidence, or The affidavit of a third person that the admission of the witnesses, he claims the reversion, filed with McKeon v. King, 9 Pa. 213. the justice, does not oust his juris- '^Maxtccll v. Perkins, 93 Pa. 255. diction. If he refuses to proceed, See Marsteller v. Marsteller, 132 Pa. the common pleas will remit the rec- 517, 19 Am. St. Rep. 604, 19 Atl- ord to him, for further action. Daly 344, for a form of record. V. Barrett, 4 Phila. 350. 448 LANDLORD AND TENANT. reviewed formerly by writ of error; now by appeal, in the appel- late courts. The common pleas affirming, its judgment may be reversed^^ or affirmed;*^ and its judgment reversing may be reversed^* or affirmed. 530. Execution from the common pleas. — On affirming the judgment of the justice, the court of common pleas issues, as the writ of execution, a habere facias possessionem, the judg- ment becoming a judgment of that court,^^ and this writ cannot be superseded by the payment of the rent foimd due by the jus- tice, and of the costs.^* So, after a judgment for the plaintiff on an appeal to the common pleas, that court issues the habere facias possessionem f but if on that appeal there is a reference to arbitrators, whose judgment, instead of being that the land- lord recover the land, is simply "We do award in favor of plain- tiff the sum of $450.00," and the award becomes a judgment by reason of the omission to appeal from it, the habere facias pos- sessionem cannot issue on it. If it is issued, it will, on a rule, be quashed.** 531. Appeal to the common pleas. — No execution is to issue after the giving of judgment by the justice, for five days. With- in that time*^ the tenant may appeal to the court of common "Leinbach v. Kaufman, 2 Walk, right to the $300.00 exemption in (Pa.) 515; Trimbath v. Patterson, proceedings under the act of 1830. 76 Pa. 277; McDermott v. Mcllwain, Williams v. Sheridan, 7 Luzerne Le- 75 Pa. 341. gal Reg. 14. If the judgment is re- "Essler v. Johnson, 25 Pa. 350; versed on certiorari, even for a mere McKeon v. King, 9 Pa. 213. irregularity, the landlord will be lia- "Maxiu-ell v. Perkins, 93 Pa. 255. Me in trespass if, before the rever- "Essler v. Johnson, 25 Pa. 350; sal, he has evicted the tenant by a Trimbath v. Patterson, 76 Pa. 277. writ of possession, the constable set- "Diincan v. Brady, 1 W. N. C. 314. ting the tenant's goods out into the A rule to set aside the Iiabere facias road. Mickey v. ConJey, 18 Montg. possessionem on which were indorsed Co. L. Rep. 1'24. the rent found due by the justice, '" If the justice misleads the de- and the costs, was, on the tender of fendant by telling him that he can these amounts, discharged. appeal in ten days, and on the sev- " Philadelphia & R. B. Co. v. enth day after the entry of the judg- Thornton, 3 Phila. 257. ment the tenant applies to offer se- "Philadelphia & R. B. Go. v. curity for tlie appeal, which the jus- Thornton, 3 Phila. 257. There is no tice refuses, because it is too late. STATUTORY FORFEITURE FOR NONX^AVMENT OF RENT. 449 pleas on giving a recognizance. If the appeal is taken one day too late it will be dismissed by the common pleas/"' nor does the fact that the defendant did not appear before the justice de- prive him of the right to appeal.''^ The tenant, after the judgment of the justice, may give up the possession without losing the right to appeal within the five days.^^ 532. The recognizance. — In order to take the appeal, the de- fendant must "give good, sufficient, and absolute security by recognizance for all costs that may have accrued, or may accrue in case the judg-ment shall be affirmed, and also for all rent that lias accrued or may accrue up to the time of final judgment." The dismissal of the appeal because it was taken one day too late is a final judgment, and the surety in the recognizance be- comes liable f^ but a judgment by confession for the rent and ■costs, and not for the premises, is not the judgment stipulated for in the recognizance,®* while a judgment both for the rent and also for the land, will be sufficient to give an action on the recognizance, and will be conclusive as to the rent which may be recovered upon it.^^ The recognizance may be given by a .surety alone,®** or, more regularly, by the tenant and a surety.®^ Nor is it necessary that any penal sum should be named in it. A recognizance in these words : 'T become bail absolute in this ■case, conditioned for the payment of all costs that have accrued, and all the costs that may accrue in case that the said judgment be affirmed : and also for all rent that has accrued, and may ac- crue up to the time of final judg-ment. Signed, A. A. Hardy," — - the court, ou rule to show cause why 'Wlair's Estate, 12 Phila. 2. ,an appeal nunc pro tunc should not "Hazen v. Culbertson, 10 Watts, ue allowed, will order the justice to 393. allow the appeal. Kelly v. Gilmorc, "Backett v. Carnell, 106 Pa. -201. 1 W. N. C. 73. Cf. Eagen v. Wil- That the name of the plaintiff has, kins, 7 W. >f. C. 486. during the appeal, been changed by "Wair'.s Estate, 12 Phila. 2. amendment, does not discharge the '^Eagen v. Wilkins, 7 W. N. C. recognizors. 486. "Hacketl \. Carnell, 108 Pa. 2!)1 ; "Stewart v. Hasson, 4 Legal Gaz. Hardy v. ^Vu^ts, 22 Pa. 33. .85. '"Hazen v. Gulhertson. 10 Watts, Land. & Ten. 29. 450 LANDLORD AND TENANT. is sufficient. "* The surety to whom a claim against the landlord, belonging to the tenant, has been assigned by the latter, may set it off when sued on the recognizance, notvathstanding the deci- sion in favor of the landlord by the magistrate; and on appeal, despite the effort to use the set-off. Such decision is not an ad- judication as to the amount of rent owed by the tenant, nor con- sequently that there is no set-off. It ascertains simply that some rent, not how much rent, is in arrear in excess of the set-off.^® 533. The statement or declaration. — The plaintiff may make the transcript of the justice answer for a declaration^"" unless a rule of court requires a declaration or statement to be filed, and even when the transcript may be used as a substitute for a dec- laration, in most courts the plaintiff, if he chooses, may file a statement. If the plaintiff files a statement he must incorpor- ate into it all the facts whose existence is necessary for a recov- ery. He cannot aver some of these, and for the rest resort to the transcript. At all events, if he files a statement and there is a demurrer to it, and it is in fact inadequate, judgment cannot be entered upon the demurrer, for the plaintiff, however adequate the transcript would be, standing alone as the declaration.-'''^ 534. The pleading. — The declaration or the transcript must show all the essential facts: The demise,' the reservation of rent, the tenant's failure to pay it, the insufficiency of the goods on the premises, not exempt from distress, to satisfy the debt, the service of the proper notice to quit, and the tenant's failure to pay the rent in arrear or to remove from the premises before the inception of the proceedings. A declaration alleging simply the tenancy, the rent reserved, the rent in arrear, and the ten- ant's failure to pay after demand, is demurrable. ^"^ If judg- 393; WcMir.hael v. McFalls, 23 Pa. ^"^Palethorp v. Schmidt, 12 Pa. Su- Super. Ct. 256. per. Ct. 214. Possibly, says Rice, P. "Bardij v. Watis. 22 Pa. 33. J., the plaintiff could amend the "McMichael v. McFalls, 23 Pa. .statement or mthdraw it, and de- Super, f ;t. 256. mand a plea to the transcript. ^'^Mohan v. Butler, 112 Pa. 590, 4 ^'^Palethorp v. Schmidt, 12 Pa. Atl. 47. Super. Ct. 214; MoMichael v. Me- STATUTORY FOKFEITUEE FOR NONPAYJIENT OF RENT. 451 ment has been entered in the common pleas in favor of the plain- tiff, on a defective statement, the court may open it and give him leave to withdraw it and treat the transcript as a state- ment.*"* The tenant may plead non demisit (the plaintiff has not demised the premises to him) ; that there was no rent in arrear, that there were sufficient goods on the premises, and that no notice to quit had been served on him.-'"* The proceeding before the justice having been prosecuted by Joseph Hackett and Mary Jane Hackett, in right of the latter, the court may, on the appeal, allow an amendment eliminating the name of Mary Jane Hackett, and such amendment will not discharge the surety in the recognizance on which the appeal in the name of Joseph Hackett and Mary Jane Hackett was allowed.*"^ 535. Facts to be proven. — The appeal is not simply to try a collateral fact, as under the act of March 21st, 1772, but to try all the facts necessary to a recovery before the justice; viz., those which must be averred in the transcript or declaration; and all the facts which would defeat a recovery before him ;*''® e. g., that the plaintiff holds tlie relation of lessor, or of successor to the re- version towards the defendant ;-'°'' that the notice to quit had been given, embracing a demand for the rent claimed, and specifying for what part of the term the rent was claimed ;*°* that there were not sufficient goods on the premises not exempt from distress to pay the rent;*"* that the notice to quit was served not merely on Falls, 17 Lane. L. Rev. 279, 7 North- ^•"Glarh v. Everly, 8 Watts & S. ampton Co. Rep. 66. 226; Palethorp v. Schmidt, 12 Pa. '•^McMichael v. McFalls, 17 Lane. Super. Ct. 214. L. Rev. 279, 7 Northampton Co. Rep. ""Clark v. Everly, 8 Watts & S. 66. The 5th seetion, act May 21st. 226. 1806, 4 Smith's Laws, 326, respect- ^<»Clark v. Everly, 8 Watts & S. ing statements, and the 3rd section, 226. act May 25th, 1897, P. L. 271, con- ""Clark v. Everly, 8 Watts & S. cerning statements in assumpsit and 226; Bergman v. Roberts, 61 Pa. trespass, do not apply to proceedings 497. Whether it is necessary to by landlords against tenants. show that every part of the house ^"Bergman v. Roberts. 61 Pa. 497. was examined, see this case. "^Hackett v. Carnell. 106 Pa. 291. 452 LANDLOHD AND TENANT. the lessee, but upon any subtenant or assignee who is in posses- sion of the premises.^'** Unless these facts are admitted by the pleading, they must be proven. The plea of non demisit makes it necessary for the plaintiff to prove that he is landlord. If he does not undertake to do this otherwise than by showing pay- ments of rent to him by the wife of the defendant while ho was in the army, the court must allow the defendant to show that he entered as tenant of another person, S ; that his wife had no authority from him to pay rent to the plaintiff; that he repu- diated her act, informing the plaintiff or his agent that she had no authority, and that she had been deceived into making the payments. It may also be shown that the payments of the wife were not made to the plaintiff, but to B, whose agency for the plaintiff has not been established."^ 536. Defensive facts ; lapse of landlord's title. — The right of the plaintiff depends on his being, at the commencement of the proceeding, the landlord of the defendant. He might once have been ; he might have let the premises to the defendant, who took and retained possession in virtue of the lease, and yet, he would have no right to recover the possession if he had ceased to be the owner of the reversion. The tenant may, therefore, show that the reversion has passed from the plaintiff to a third person by a sheriff's sale on a judgment against him, or on a lien existing on the land when he became the owner.^^^ Thp tenant, e. g.. may show that the lease being made September 6th, 18S3, a sheriff's sale of the premises took place on September 23rd, 1882, ""O/ftrfc V. Everly, S Watts & S. the trial the defendant offered to 22fi. Service of notice signed "W. prove by X that X had appeared be- J. B., agent for C. R. R.," was proved fore the justice, exhibited a sheriff's in Berfjman v. Roberts, 61 Pa. 497. deed to him for the premises, and ^"Bergman v. Roberts, 61 Pa. 497. been sworn as to his ownership. X '"Heritage v. Wilfong, 58 Pa. 137 ; had at his own instance thus inter- Smilh v. Crosland, 106 Pa. 413; Con- vened. Evidence of these facts was Ira, Tennery v. Schoch, 1 Phila. 428. properly excluded at the trial on the In Stewart v. Hasson, 4 Legal Gaz. appeal. It was not proof that the 85, after judgment by the justice title would come in question, against the tenant, he appealed. At STATUTORY FORFEITURE FOR NONPAYMENT OF RENT. 453 on two executions which were liens on the premises (a leasehold) when the plaintiff became the owner of them. The landlord's title having been devested, Green, J., remarks: "This being so, the ease is brought Avitliin the line of decisions which hold that the tenant, in a proceeding by his landlord to recover possession, may show in defense that the title of the plaintiff has come to an end by expiration, by his own act, or been de- vested by act of the law." 537. Defensive facts, generally.— "\^^lile the lapse of the title of the lessor since the making of the lease may be shown by the tenant to defeat the recovery, such fact being ^dthin the com- petence of the justice to decide, if, before the institution of the proceedings before him, the tenant ( alleging bona fide that since the making of the lease, and the taking of possession under it, the lessor has conveyed to him, or has contracted to sell to him) has ceased to recognize the lessor as landlord and to pay rent to him, the development of that fact ousts the jurisdiction of the justice, and also of the common pleas, on the appeal. Pending the lease the lessor orally contracts to sell the land to the lessee. From the time of the agreement, through several years, the tenant con- tinues in possession, treating the lease as at an end, and making- many payments, intended by him to be on account of the pur- chase money, but not on account of rent. Whether the facts would or would not be suiEcient to justify a chancellor in award- ing specific performance, the relation of landlord and tenant is at an end so far, at least, that the former landlord must resort to ejectment rather than to the remedy furnished by the act of 1830.^^* Indeed, Clark, J., says that if it appeared from the "Wo7ia« V. Butler, 112 Pa. 590, duration was concerned, was only an 4 Atl. 47. Judgment for defendant estate at will; but, having acquired non obstante veredicto. "By the such an estate, it is evident that the agreement of sale the tenancy came mere disavowal of the vendor cannot to an end," said the court below, have the eflfeet of altering the nature "and the tenant acquired a different of the estate, and of changing it into estate. This estate, so far as its a tenancy under the original lease." 454 LANDLORD AND TENANT, evidence that this claim of the defendant was bona fide and that the payment of the rent was resisted on that ground, the juris- diction of the magistrate and of the court of common pleas on appeal was at an end. In Clark v. Everly/^* M had made a lease to E in 1826. M died in 1828, leaving a daughter, vnfe of C. The daughter died in 1832, leaving issue, C becoming tenant by the curtesy. JSTo rent was demanded by C until October 21st, 1841, when a notice to quit was served on E, the alleged tenant. E, after the death of M, alleged that M had devised the premises to him ; that C destroyed this will. The existence of this will was the subject of a suit pending in 1841, when the notice to quit was served. It was held that the fact that the tenant had claimed the land adversely to the plaintiff before the commence- ment of the proceedings might be set up as an insuperable obstacle to the jurisdiction of the justice, and of the common pleas, on appeal. "Where the fact of assertion is sustained by evidence, it is fatal to the proceeding, without regard to the validity of the title. "^^^ A denial by the tenant that he has ever been the tenant of the plaintiff, and an assertion by him that he has been the tenant of another rival claimant of the land, though =" 8 Watts & S. 226. The defend- tuted proceedings under the act of ant can deny before the justice that 1830 to dispossess him. The justice there ever was a, tenancy, and may giving judgment against the tenant, show that the contract was one of who appealed, he alleged that he was sale, and not of lease. Hence, he in under a contract with A, and that does not need to resort to a bill in the lease had never been made, and equity to restrain the alleged land- gave evidence to support that alle- lord from proceeding against him gation. The court below instructed lipfore the justice. Vanarsdalen v. the jury that if the defendant Whiiaker, 2 Legal Chronicle, 190. had title, or there was evidence "° In Essler v. Johnson, 25 Pa. 350, of a claim of title, the justice it is said that the mere affidavit of could not proceed; but that there the tenant that he claimed title did was merely the assertion of the ten- not oust the jurisdiction. Cf. Berg- ant here that he owned the land; no man v. Roberts, 61 Pa. 497. In evidence of a sale by the heirs or Marsteller v. Marsteller, 132 Pa. 517, executor to him, nor of a sale by A 19 Am. St. Rep. 604, 19 Atl. 344, one in her lifetime. Hence the jury heir of A was in possession. A's were told they must disregard his executor alleged that he was in title, under a lease from him, and insti- STATUTORY FORFEITURE FOR NONPAYMENT OF RENT. 455 the denial and assertion preceded the notice to quit, will, if made out, prevent judgment for the plaintiif, but they do not arrest the inquiry by the jiistice, or the common pleas on ap- peal."® The principle is general that on the appeal no defenses are allowable that would not have been allowable before the justice. The scope of his jurisdiction is the scope of that of the court of common pleas, on appeal. ''^^ 538. Former recovery. — On the appeal, as well as before the justice, it is competent to show, as a bar to the proceeding, that in a former proceeding before another justice, by the same plain- tiff, alleging the same demise and default in payment of rent, the justice's judgment for the defendant remained unreversed. The justice in the former proceeding having found that there was no demise, that the relation of landlord and tenant did not exist, and having therefore dismissed the complaint, his judg- ment "is final and conclusive on both parties until legally set aside or reversed. "^^* 539. Set-off. — Before the justice, and also on the appeal, the defendant may show that his rent has been paid, and also that he has a set-off to it. He may show, e. g., that the plaintiff cove- nanted in the lease that the premises should be in good repair and that the stable accommodation should be such as to enable the tenant conveniently to carry on the hotel business, and stable the horses of his customers ; that this covenant has not been kept, and that in consequence the defendant has suffered damages exceeding the rent.^^* "'Bergman v. Roherts, 61 Pa. 497. v. Everly, 8 Walts &, S. 226; Ten- , In Mohan v. Butler, 112 Pa. 590, 4 nery v. Schoch, 1 Phila. 428; Mars- Atl. 47, Clark, J., states that the teller v. Marsteller, 132 Pa. 517, 19 ' principle which excludes the juris- Am. St. Rep. 604, 19 Atl. 344. diction of the justice where a ques- "'Marsteller v. Marsteller, 132 Pa. tion of title arises between the plain- 517, 19 Am. St. Rep. 604, 19 Atl. 344. tiff and defendant is peculiar to the On certiorari a former recovery act of April 3rd, 1830. It does not not offered in evidence before the apply to the act of Decembr^r 14th, justice cannot be considered. Castle 1863. or to that of March 21st, 1772. v. Weber, 2 Pearson (Pa.) 79. "''Bergman v. Roberts, 61 Pa. 497 ; ""Broad v. Wirtsboroiigh. 1 North- Essler v. Johnson, 25 Pa. 350; Clark ampton Co. Rep. 330. lliough the 456 LANDLORD AND TENANT. 540. Trial, verdict, and judgment.— The case, on appeal, can be referred to arbitrators, whose award, unappealed from, will become the judgment of the court.^^* The defendant may waive a trial by confessing jndgment.^^^ A verdict generally "for the plaintiff" is not erroneous. It is not necessary that the jury find the amount of rent in arrear/^^ and the judgment should be for the land, and not for the rent. If it is for the rent, and not for the land, and is unappealed from, it will not support an execution for the delivery of possession of the land,^^^ nor, if the confession of a judgment for rent and costs is accepted by the plaintiff, the tenant retaining the premises, can any ac- tion on the recognizance for appeal be sustained for the rent,-'^* If the judgment entered after the trial is for the plaintiff for possession of the demised premises, and also for $200.00 rent in arrear, and is not appealed from, it becomes conclusive; and both parts of it may be carried into execution by appropriate writs. In an action on the recognizance, the judgment for the rent due will be conclusive as to the amount of rent due, upon the surety.-*^^ set-off was not attempted in the pro- ''^Hazen v. Culbertson, 10 Watts, eeeding before the justice, the surety 393. in the recognizance for appeal was "'Bergman v. Roberts, 61 Pa. 497. allowed to avail himself of it when ^Philadelphia & R. R. Co. v. sued thereon. Cf. Hackett v. Car- Thornton, 3 Phila. 257. nell, 106 Pa. 291. ^"Hazen v. Culbertson, 10 Watts, "-'Philadelphia & R. R. Co. v. 393. Thornton, 3 Phila. 257. The parties "'Hackett y. Garnell, 106 Pa. 291. may agree to a case stated. O'Neill V. Cahill, 2 Brewst. (Pa.) 357. CHAPTEE XXVI. REPETITION AND PROTRACTION OP TERM. 541. Commencement of term. 542. When the term ends. 543. End of term, continued. 544. Provision for renewal. 545. Mode of expressing right to renew. 546. Right to renew implied. 547. Frequency of renewal ; length of renewed term. 548. Frequency of renewal, continued. 549. Indefiniteness of protraction of right of possession. 550. Renewal conditioned on notice. 551. Oral notice and statute of frauds. 552. Renewal conditioned on lessee's notice. 553. Renewal conditioned on fixing the rent. 554. Renewal conditioned on prepayment of rent. 555. Notice by tenant of nonrenewal. 556. Lessee's option to remain, unless notified by lessor. 557. Second leases. onS. Second lease made during a, hold-over period. 559. Agreement for renewal. .5'60. Tenant's right to renew not expressly conditioned. 661. Tenant's right to renew with consent of lessor. 562. Lease to continue until notice from tenant. 563. Holding over after definite tenn. 564. Repetition of same terms and conditions. 565. Express provision that same terms shall continue. 566. The laadlord's option. 567. Landlord's option, continued. 563. Option as to use and occupation. 569. Holding over makes a new contract. 570. What constitutes a holding over. 541. Commencement of term. — The term may commence si- multaneously witli the execution of the lease. There may be an interval more or less considerable between the making of the lease and the inception of the term. A lease for eighteen years of coal land, to run from the commencement of the taking of 457 458 LANDLORD AND TENANT. coal from it, is not void because no year is specified for the com- mencement of the taking of coal. The coal must begin to be taken within a reasonable time, and the court will not say, as matter of law, that the delay of three and one half years is un- reasonable. The jury miist decide, in view of the circumstances, the price of coal, the nearness of a railroad, the obstacles pre- sented by the lessor.-' There may be an oral agreement for a lease, and possession taken under it, and the lease may be sub- sequently executed and bear the date of its execution.^ 542. When, the term ends. — When a lease entitles the lessee to take immediate possession,* or when, made in advance of the intended term, it designates the day on which the term is to begin, if it is for a year or any multiple of a year, it closes on the midnight of the day before that day of the following year or multiple of year which corresponds in month and number with the day on which the lease was made, or the term began. Thus, a lease being made on February 24, 1848, "from the 1st day of April next ensuing the date hereof, for and during the term of one year, thence next ensuing," the term begins on April 1. The tenant has a right on that day to take posses- sion, and the term ends at midnight on March 31st, 1849. "The 1st day of April, 1849," says Knox, J., "was the commence- ment of another year, and on the morning of that day, at any moment after 12 o'clock of the preceding night, the rent was due and j)ayable, for the term had then expired."* An oil lease made on June 12, 1890, authorized the tenant to hold the prem- 'Grots V. Lehigh & W. B. Coal Co. 'Marys v. Anderson, 24 Pa. 272. ] Kulp, 5.3. Hence, one who, during the term, 'Com. ex rel. Irwin, v. Contner, 21 bought the land at an adminis- Pa. 266. trator's sale, the condition of sale •The term begins on the day on being that the deed should be de- which the lease is made unless the livered April 1, 1849, was not en- lease or agreements and imderstand- titled, as successor to the reversion, ings shown by circumstances indi- to any of the rent. Cf. Duffy v. cate a later date for the commence- Ogden, 64 Pa. 240. ment. Donaldson v. Smith, 1 Ashm. (Pa.) 197. REPETITION AND PROTRACTION OF TERM. 450 ise3 during the full term of twenty-one years "next ensuing the day and year above written, and so long thereafter as oil or gas shall continue to he found thereon, in paying quantities." It also empowered the lessee to declare the lease niiU and void, and to he immediately released from any responsibilities, if he should find that it would not pay him "to continue this lease." On June 12, 1891, the lessee gave notice to the landlord that ho elected to terminate the lease. As he had entered on the second year, it was held that he could not avoid paying the rent for thai: year. A present interest in the land commenced from the day of the date. "In such a case the day of the date is included."'' A lease made November 4, 1886, for three years from that date, ended at the last moment of November 3, 1889.^ A lease of a field "for the raising of two successive crops" covers the inter- val between the first and second crops, and during this interval the tenant may put his cattle into the field to eat the damaged portion of the first crop still thero.'' 543. End of term, continued. — A lease between Fraley and Crlassey, wherein the form.er says that he "doth lease unto the said Jane Glassey, her lieirs and assigns, a strip of ground whereon is erected a brick dwelling house . . . for the term of five years, . . . for the yearly rent of three dollars," is not a grant in fee, subject to a rent, but for the period of five years, notwithstanding the use of the words "her heirs and as- signs."* A had a log house, and, within 20 feet from it, a frame building, making use of both, but for the most part occupying, 'Nesiit V. Godfrey, 155 Pa. 251, 25 stating in the notice that the term Atl. 621. closed on that day, in an action by 'Cairns v. Llewellyn, 2 Pa. Super, the tenant against the purchaser for Ct. 599. disturbing his possession, the pur- Urivin V. Mattox, 138 Pa. 466, 21 chaser is precluded from asserting Atl. 209. that the lease ended a year before the If, during the occupancy of the time indicated in the notice. Biggs tenant, the lessor sells the laud to v. Brown, '^ Serg. & R. 14. X, and in order to be able to deliver 'Berridge v. Glassey, 112 Pa. 442, the possession the lessor notifies the 56 Am. Rep. 322, 3 Atl. 583. itenant to leave on a certain day. 400 LANDLORD AND TENANT. for sleeping and eating, the log house. B, desiring to procure the vacation of the road on ^^■hich the houses stood, induced him to petition the court of quarter sessions to vacate it, by agreeing, under seal, to lease to A "the right of way across the land, . . . the said right of way to be occupied by said" A "and all others for the uses and purposes of a public highway, to travel upon at all times, without let or hindrance from the said'' B "so long as the said" A "shall reside in his now dwelling- house, and no longer." Years after making the agreement A used the frame building more, and the log house less, than pre- viously, but the two continued to be used in the household's economy. The supreme court found that he had not so ceased to "reside in his now dwelling house" as the agreement contem- plated.^ A railroad company, desiring to enlarge its depot, leased a strip of land from A at the annual rental of $12 "so long as the same shall be used for railroad purposes." After a use of it for the railroad for thirty years the company conveyed all their interest in the buildings and land to an individual, P, who used it as a private siding. The lessor could recover possession in ejectment against P, since the strip was no longer used "for railroad purposes" in the sense in which these words must be understood.^" 544. Provision for renewal. — The lease, while naming a ter- mination of the term, may also provide for the prolongation of the term. While a covenant for a term might be void for in- definiteness, the expression "the lease [which was for seven years] to be renewable at the pleasure of the lessees," it was held, "implies not only the right of renewal, but also upon the terms and for the time specified in tlie instrument, at the will and pleasure of the lessee, for at least another term." It was therefore not too vague to be enforc«d.^^ A similar result was 'Webster v. Ross, 42 Pa. 418. '^Creighton v. McKee, 7 Phila, 324. "liugel V. Painter, 166 Pa. 592, 31 Atl'. 338. REPETITION AND PROTRACTION OF TERM. 461 reached when the words of a lease for three years were "the said lessees shall have the privilege and option of renting the said premises for a further term of three years from the expira- tion of this lease." If, said Wickham, J., this phrase stood alone it would be void for indefiniteness ; "but taken in connec- tion with the context and the situation, circumstances, and evi- dent intention of the parties, it must be regarded as a covenant to renew, — that is, to give another lease containing the same terms and stipulations as the original lease, except the renewal agreement."-'^ 545. Mode of expressing right to renew. — Various words are employed to express the right given to the tenant to remain on the premises beyond the term. Sometimes "renew" or "re- newal" is used. "Eerent," "rent again," "privilege of another term," "refusal of the premises," and like expressions, without more, are sufficient, provided that the length of the new term is speciiied.^^ Sometimes words implying that a new lease is to be made are employed ; e. g., the option of "renting for a further term,"-** "with leave of renewal for five years,"-'^ "the privi- lege of four years' additional lease,"^'^ "this lease (for seven years) to be renewable," etc.-''' It does not seem, however, to be understood that the right of the tenant to hold over depends on his obtaining a second lease, and that for the refusal, on his application, of the lessor to make such lease, his only remedy could be an action for damages. The court would treat the case as if the lease had been made, and would protect the tenant in the possession without it, should the lessor endeavor to eject him.^* On the other hand, if the lessee simply remains in pos- "Cairns v. Llewellyn, 2 Pa. Super. "Pittsburc/h £ A. Drove Yard Go.'s Ct. 599. Cf. Betz v. Delbert, 16 W. Appeal, 123' Pa. 2.50, 16 Atl. 625. N. C. 360. ^"Harding v. Seeley, 148 Pa. 20, 23 ^^Cairns v. Llewellvn, 2 Pa. Super. Atl. 1118. Ct. 599. "Greighlon v. McKee, 7 Phila. 324. ^'Cairns v. Llewellyn, 2 Pa. Super. ^"Piilshurc/h d A. Drove Yard Oo.'f! Ct. 599, Appeal, 123 Pa. 250, 16 AtL 625. 462 LANDLORD AND TENANT. session, after the expiration of the lease, he will be considered as having elected to take the renewal lease, and will be liable to the landlord for rent, etc., as he would be had the second lease been in fact executed and accepted by the tenant.'* The word "lease" is said by a sort of metonymy to mean the "term" or ■'estate" created by a lease, and may be understood as equiva- lent to "term," unless the parties show that it is used in its strict sense.-" 546. The right to renew implied. — The right of the tenant to repeat the term may be simply implied ; as, e. g., when the lease is for six months, at the end of which period the lessee covenants to give up the possession ; but it is added, "the rent for the fol- lowing six months is to be paid in advance, on or before" the last day of the first six months, "and in default of such payment the lessor may take possession thereof and let the same to any other tenant. "21 547. Frequency of renewal; length of renewed term. — The lease, in giving the right to renew the lease, or to renew the term, may indicate the length of the additional term. Thus a lease for one year with "the privilege of four years' additional lease^^ from the first day of January, 1888," gives a privilege to hold The court refused jurisdiction in for the lessor's refusal to re-lease is equity to compel the making of a re- adverted to. newal lease. In Juergen v. Alleglieny '" Harding v. Seeley, 148 Pa. 20, County, 204 Pa. 501, 54 Atl. 281, the 23 Atl. 1118. lease was for five years, at the rental '"Harding v. Seeley, 148 Pa. 20. 23 of $3,000 per annum, with "the Atl. 1118. The word "lease" in the privilege of re-leasing at an in- phrase "with the privilege of a four creased annual rental." The tenant years' additional lease" vras found having been evicted by proceedings equivalent to "term." under the act of March 21, 1772, "Com. v. M'Neile, 8 Phlla. 438. brought trespass for damages, al- ^A lease for five years "with the leging that the actual agreement was privilege of having said lease re- that the renewal should be for ten newed for the term of five years from years at .'53,500 annual rent. The and after the 1st day of January, justice's adjudication was conclusive 1887," contemplates one second term that there had been no "re-leasing." of five years. McBrier v. Marsliall, That the action was not for damages 126 Pa. 300. 17 Atl. 647. KEPETITION AND PROTRACTION OF TERM. 463 over for one terra, wliicli is of four years' duration, and not to hold over for one year, and if the tenant choose, no longer ; or, if the tenant choose, to remain for a second year and no longer, un- less he desires to remain longer, or, if he choose, for a third year, etc.^^ . The additional term is often of the same length as the primary term, e. g., three years,^* five years.^^ Sometimes more than one renewal is intended, but the number is defined. A lease to B for the term of one year, vsdth the privilege of three years from tlie 1st day of April, 1S85, was interpreted to be a lease for one year, vdth the privilege of holding over during a second, and, at the option of B, during a third. It contemplated two holdings over, each of a year, at the option of the tenant.^® A lease of premises from the 1st day of December, 1878, at the rent of $600 per annum, payable monthly, contained the stipulation that if the tenant "should continue on the above-described prem- ises after the termination of the above contract, then he shall have the privilege of staying there for another five years at the above-fixed rent per annum." Prior to the last stipulation was a sentence to the effect that if the tenant should continue on the premises the contract was to continue in full force for another year, and so on from year to year, until legal notice should be given for a removal. The lease was interpreted to mean that '"Harding v. Seeley, 148 Pa. 20, 23 "Cairns v. Llewellyn, 2 Pa. Super. Atl. 1118. The lease contained a Ct. 59D. provision that if the tenant con- '^Pittsburgh & A. Drove Yard Co.'s tinned on the premises after the Appeal, 123 Pf.. 250, 16 Atl. 625.: termination of the above contract, McBrier v. Marsliall, 120 Pa. 390, ]7 the contract should continue in full Atl. 647; McClelland v. Rush, 150 force for another year, and so on Pa. 57, 24 Atl. 354. from year to year until legal notice "CHllion v. Finley, 22 W. N. C. for a removal might be given. This 124. Hence, having held over tlip provision was held to apply only second year, tha tenant was not when the second term of four years bound to pay rent for the third year had ended. In Burgwdn v. Bishop, if he chose to vacate the premises, 91 Pa. 33G, the lease was for two giving three months' notice at the years and three months, with the end of the second. Cf. Lipper v. privilege of three additional years, Bovve, C. & Co. 6 Pa. Super. Ct. 452. 464 LANDLORD AND TENANT. the tenant might remain from year to year, for five years after llie first year, and no longer.^^ 548. Frequency of renewal, continued. — A lease for one year at a certain rental, with the words, "with privilege of rerenting and remaining on said premises at same rental and conditions for any number of years that second party may desire," does not give the privilege of two or more elections to continue in posses- sion for terms indicated, but of one option only to continue in possession for any period that the tenant may indicate. If he once elects for one or more years, he has no further elections. He might once elect for one, or ten, or one hundred, or one thous- and years, or possibly forever, but he cannot repeat the election. The Avord "rerent," it was said, implied that the tenant must in- dicate by some more expressive act than simply remaining in pos- session that his will was to remain, and for what period it was hi* will to remain. Having once made this indication, his right in the premises ended with the expiration of the period indicated. Hence, the tenant, three months after the expiration of the sec- ond year since the making of the lease, having notified the land- lord "I intend to remain in possession of the premises . . . during the year beginning April 1st, 1899, at same rental and conditions contained in the original lease," he could not again elect to remain after March 31st, 1900.^^ 549. Indefiniteness of protraction of right of possession. — A lease may be made for twenty years,^® or for a lumdred yeai-s,^" cr any other definite period, and it may provide that the lessee may hold the premises after the definite term, as long as he and his heirs and assigns shall think proper, they paying the rent,^' "./ones V. KroU, 116 Pa. 85, 8 Atl. '"Myers v. Kingston Goal Co. 121) 857. Pa. 582, 17 Atl. 891. "fiirigert v. T/artzell, 20 Pa. Super. "Lewis v. Efflnger, 30 Pa. 281, 32 Ct. 56. Nothing is said of the ef- Pa. 367. feet of simply holding over during ''^I.evis v. Effmger, 30 Pa. 281, 32 the year following the first term of Pa. 367. one year. REPETITION AND PROTRACTION OF TERM. 465 or "for such other and longer times as the parties of the second part and their legal representatives shall continue to pay the rent"^^ Such a lease is valid not only for the definite term, but for the additional term, -whose limit, if it ever has any, is to be fixed by the mil of the tenant, expressed merely by his ceasing to pay the rent. A lease for seven years, concluding with the words, "This lease to be renewable at the pleasure of the lessees," it was held that the lease was renewable "for at least another term."*^ 550. Renewal conditioned on notice. — The lease may confer the privilege of renewal or of continuing in possession for a pre- scribed time beyond the term, upon giving previous notice to the landlord of the intention to claim it. Giving the notice in such a case is requisite.^* The burden is upon the tenant if he claims any rights upon the renewal clause, to prove the giving of the notice. Apparently the notice must be actual. Leaving a writ- ten notice at the dwelling of the lessor, with an adult member of his family, is useful only as it tends to prove that he obtained actual notice of the lessee's intention to remain on the premises.*^ The lease may require the notice to be in writing, at least three months before the expiration of the primary term. The require- ment that it be written may be waived, and it is waived, if, be- fore the beginning of the three months, oral notice is given to the lessor, and, upon receiving it, he expressly assents to the re- newal, making no objection to the notice ; a fortiori if he states that the lessee need do nothing further to secure the renewal.*® 551. Oral notice and statute of frauds. — When the lease pro- vides for an additional term upon notice, and the notice is given, the right of the lessee is derived from the lease. The lease '''Myers v. Kingston Coal Go. 126 "Burgwin v. Bishop, 91 Pa. 336. Pa. 582, 17 Atl. 891. Cf. Pollman v. Uorgester, 99 Pa. 611. "Creighton v. McKee, 7 Phila. 324. "McClelland v. Rush, 150 Pa. 57, "If the notice is not given, the 24 Atl. 354. Cf. PiUsburgh & A. lease is not extended. Pollman v. Drove Yard Go's Appeal, 123 Pa. Morgester, 99 Pa. 611. 250, 16 Atl. 625. Land. & Ten. 30. 466 LANDLORD AND TENANT. creates and defines the second term as well as the fi.rst It sub- jects the second to a condition to be performed after the making of the lease, but none the less is the second its creature. Hence,, the statute of frauds has no application to the notice. Though only an oral notice is required by the lease,^'' or if, written notice being required, the landlord is, by facts which are orally proved, estopped from insisting on more than oral notice, the notice is valid, and the new term conditioned by it, so far as the statute of frauds is concerned, indefeasible.^* 552. Renewal conditioned on lessee's notice. — The lease, e. g., for five years, may stipulate for an extension at an increased rental, the lessee's acceptance of the extension to be manifested by his giving written notice thereof to the lessor nine months (or some other time) before the end of the term. If it also pro- vides that, should the extension not be accepted, the lessee shall pay an additional rent, the mere continuance in possession, vnth- out the notice, by the tenant, who does not tender the additional rent, will make him liable for rent as if he had accepted the ex- tension. The continuance of the possession may be by sublessees or assignees of the tenant, or by persons whom he has allowed to take possession.^^ 553. Renewal conditioned on fixing the rent. — The lease being for a term, e. g., of seven months,*" or of five years, *^ may give to the lessee the right to continue the existing lease from year to year,*^ or for two and one half years,** or other period, at a rental to be fixed prior to the close of the term, and not at the '''Cairns v. Llewellyn, 2 Pa. Super, year to year. MuUer's Estate, 16 Ct. 599. Phila. 321. "McClelland v. Rush, 150 Pa. 57, "Thompson's Estate, 205 Pa. 555, 24 Atl. 354. The lease being for 55 Atl. 539. three years, with right to renew for "Arnsthal v. Patterson, 3 Pennyp. two years more, a parol assignment 25. of the lease before the expiration of "A66oi v. Shepherd, 4 Phila. 90. the three years does not pass the '^Arnsthal v. Patterson, 3 Pennyp. right of renewal to the assignee. If 25. he is recognized as tenant by the "Abbot v. Shepherd, 4 Phila. 90. landlord, he becomes a tenant from REPETITION AND PROTRACTION OF TERM. 467 rent payable during the term, but at a rent to be fixed by ap- praisers, to be selected, some by the lessor and some by the lessee. Under such a provision, it is not enough for the tenant to notify the landlord prior to the close of the term, that he intends to continue the occupancy of the premises for the additional term, unless the tenant's duty of causing the appointment of appraisers is waived by the landlord.*'' The requirement may be waived; e. g., by the landlord's refusal, on the request of the lessee, to give him a copy of the lease in order that he may know how to proceed in order to have the appraisement made,*^ or by his uniting with the tenant, who has remained in possession after the close of the term, in the selection of appraisers. After each jDarty has, six weeks after the end of the term, the lessee holding over, united with the other in the selection of appraisers, who have chosen a fifth, the lessor cannot effectively withdraw his participation in the appraisement. If he revokes the reference, and the appraisers thereupon refuse to proceed, he cannot main- tain an action for the use and occupation of the premises. He must cause the appraisers to proceed, and rely on their award as the measure of the compensation he is entitled to for the con- tinued occupancy of the premises.*® 554. Renewal conditioned on prepayment of rent. — The lease may be for a certain time, e. g., six months, with a provision that the rent of the foUomng six months shall be paid in ad- vance, on or before the end of the first six months, and that, in default of such payment, the lessor may take possession. If the landlord, before the expiration of the first period, informs the tenant that he will not be allowed to remain beyond its close, he excuses the tenant from tendering the rent in advance. The lat- ter may continue in and defend his possession though he does " Arnsthal v. Patterson, 3 Pennyp. "Abbot v. Shepherd. 4 Pliila. 90. 25. '^Arnstltil V. Patterson, 3 Pennyp. 25. 408 LANDLORD AND TENANT. not malce tlie tender till the first or later day of the second period, and when it is made, it is rejected by the lessor.*^ 555. Notice by tenant of nonrenewal. — The lease for a term of five years, giving a "privilege of having said lease renewed for the term of five years," but prescribing no condition to the exer- cise of this privilege, it may be exercised simply by holding over. If the tenant gives notice to the lessor, the lessor may doubtless insist that the tenant shall withdraw from the premises in ac- cordance with it; but if he does not, and the lessee remains in possession after the term has closed, for however short a period, he becomes bound, at the option of the landlord, for the rent of the whole secondary term. If, e. g., the lease being for five years, with the privilege of renewal for a second five years, the lessee, before the close of the first term, notifies the lessor that he will not remain, if in fact he does remain for one year, he cannot escape from the duty of paying rent for the remaining four years by withdrawing at the end of that year.** 556. Lessee's option to remain, unless notified by lessor. — Not only may the lease give to the tenant the right, despite the chang- ing will of the lessor, to remain beyond the term, either uncon- ditionally or in compliance with certain defined conditions ; it may also give him the right to remain unless the landlord does some act, — ^usually, a notification, a certain period in advance, to withdraw at the end of the term. The lease, after creating a definite term, may provide, e. g., that either party hereto may determine this lease at the end of said term by giving the other notice thereof in writing at least three months prior thereto; but, in default of such notice, this lease shall continue upon the same terms and conditions as are herein contained, for a further period of one year, and so on from year to year unless, or until, terminated by either party thereto giving to the other three "Com. V. M'Neile, 8 Phila. 438. year with the permission of the "ifcBrier v. Marshall, 126 Pa. lessor is not equivalent to making a 390, 17 Atl. 647. To remain one new lease for one year. REPETITION AND PROTRACTION OF TERM. 409 months' notice in writing for removal previous to the expiration of tie then current term.''® Such language is so explicit that controversy as to its significance is scarcely to be expected. If the lease is for the term of one year, ■with privilege of two addi- tional years, and provides that at the expiration of said term tlie lessee shall deliver up the premises ; and further, that either party may determine the lease by giving the other notice three months prior to the end of the term, but, in default of such notice, the lease shall continue from year to year unless and until three months' notice is given,- — the term does not expire at tlie end of the first year unless the tenant withdraws from the pos- session. If he holds over, the term continues two years more. The provision for three months' notice has no application until after the expiration of the third year. Hence, when the lessee held over beyond the first year, he could not, by giving notico three months before the end of the second year, of his intention to leave, and by leaving, discharge himself from liability for the rent of the third year.^* 557. Second leases. — It is elsewhere seen that a term may bp surrendered by the making of a new lease covering a portion of it and extending beyond its termination. When such a lease is made, the lessee acquires a right under it to continue in posses- sion of the premises beyond the termination of the original term. A lease being made for three years, with the privilege of renew- ing it for a period of years, it may be shown that, prior to the expiration of the three years, a fire occurred on the premises, when it was agreed that thereafter the tenant should occupy the premises without paying any rent, if he would repair the brew- house on them, and that later it was agreed that he shoiild pay the taxes and the ground rent and nothing more."^ The lease *Cf. Megargee T. Longaker, 10 Pa. "Betz v. Deliert, 16 W. N. C. 360. Super. Ct. 491. The agreement was found in fact not "'Lipper v. Bouvi, C. d Co. 6 Pa. to have been made. Super. Ct. 452. 470 LANDLORD AND TENANT. requiring three months' notice before the end of the year of the lessee's intention to retire, after the notice is given, the parties may, before tiie year expires, agree that the tenant may continue in possession as tenant from month to month. Under such an agTeement, the lessee could, after the original lease had expired, leave at the end of a month w^ithout liability for rent for the future."- A lease for years being about to end, the parties may agree that the tenant shall remain in possession with leave to retire at any time, paying rent for so long a time only as he shall occupy the premises. The tenant might, under such an agreement, hold over from April 5th to Septemljer 4th, paying the rent for this period."^ 558. Second lease made during a hold-over period. — The lease for a term of years expiring, and the tenant holding over from year to year, a change may be made in the terms of the lease, or a new lease may be made. Thus, a lease for five years being made to B and C, which expired August 1st, 1881, they hold over for a series of years, and in October, 1885, with the con- sent of A, the lessor, the property is divided by B and C be- tween them, each taking one half, and A agrees to receive one half the former rent, for the whole of which they had been jointly liable, from each. Says Mitchell, J. : "The term under the lease had admittedly expired, but appellant had continued in possession, and the presumption, therefore, was that he was a tenant from year to year under all the terms of the lease that were applicable. But it was entirely competent for the parties to make a different agreement at any time, and, of course, for either to prove such new agreement by any proper evidence." '•'-Smith V. Snyder, 16S Pa. 541, 32 The lessee remained over, hearing Atl. 04. Before the end of the year, nothing further from the agent. He the lessee told the landlord's agent had no right to infer from the that he would be willing to remain circumstance tliat he had the lessor's as tenant from month to month, consent to his proposal. The agent said he would communi- '''Harvcii v. Gvnzbcrg, 14S Pa. 294, cate with the lessor, and let the 23 Atl. 1005. The agreement was lessee know the deuision in time, not in fact made. REPETITION AND PROTRACTION OF TERM. 471 Even if the agreement whereby each former colessee was re- leased from liability for more than half the rent would not bo binding on the lessor without some new consideration so far as the year in the midst of which it was made was concerned, it would be valid for the following years. The continuance of the tenant in possession, paying the ag-reed rent, would be sufficient consideration.'^'' A lease for ten years being about to expire, the tenant applies for a renewal. Xone being made before the end of the term, the lessee nevertheless holds over, and a montli or two after the close of the term an offer of a new lease with a new period of commencement is made, providing for vacating the premises at any time on a year's notice. If made, such an agTcement would regulate the right of the tenant to continue in possession.^' 559. Agreement for renewal.— Thongh the original lease con- tains no provision for its continuance, the lessor and lessee may, during the term, agree for a repetition of it on the same conditions ; anid the breach of the new agreement by the eviction of the tenant at the close of the original lease will give him a right to recover damages ;"* or the agTcement for rene'wal may be set up to defeat the proceedings of the lessor to oiist the ten- ant at the expiration of the original term.^^ The original lease having, by a posterior agTeement, been renewed once, may be re- newed for a second time. If it is, the tenant cannot be dis- "Walker v. Githens, 156 Pa. 178, When sued for arrears of rent in the 27 Atl. 36. Even if the agreement lirst lease, the tenant can set off was not binding, nevertlieless, being these damages. understood by the parties to be bind- '''O'Neal v. Sneeringer, 12 York ing, it constitutes the agreement on Legal Record, 141. In order to show which the succeeding years were the agreement for renewal, it may entered upon. The subsequent pay- be sliown that about the time of i\vi ment by B of one half the rent, and alleged renewal, the lessor ordered receipt of it by A, would be evidence the tenant to sow clover seed on an- of the understanding. other tract let to the latter by the '^Phainixville v. Walters, 147 Pa. former at the same time as the farm 501, 23 Atl. 776, 184 Pa. 615, 39 Atl. in question, and farmed in connection 490. therewith. ■''Kelley v. Bogue, 1 Phila. 91. 472 LANDLORD AND TENANT. possessed vmtil the expiration of the period of the second re- newal. And, the original term being for a year, the renewal of it miglit be oral ; or, the first renewal being written, the second might be oral. The burden of proving the agreement is upon the tenant ;"'" and if, in proceedings to eject him, he succeeds in de- feating the landlord by setting up a second lease for the year following the original term, he will be estopped from denying the making of the lease in a replevin by him for goods distrained on by the landlord, for rent of the second term.^* 560. Tenant's right to renew not expressly conditioned. — If the lease gives to the tenant a right to renew it for a definite time, but prescribes no conditions, the only kind of notice of the intention to exercise this right which the tenant needs to give to the landlord is by simply remaining in possession at the end of the first term; and when he thus remains in possession he must be understood to avow to the landlord that he has elected to exercise the contractual privilege for an additional term. He becomes bound to pay the rent for the whole of this term. The lease being for one year ending January 1st, 1888, "with the privilege of four years' additional lease" at the same rental, the tenant remained on the premises until sometime before Jan- uary 1st, 1890. He was liable for the rent of the subsequent years imtil January 1st, 1892. •"• And it matters not with what intention the tenant holds over, nor even that he has notified the landlord that he ■will not avail himself of the right to an- other term."^ A lease for eight months provided that "a lawful continuance of the tenancy beyond said term shall be deemed a "Lutz V. Waimm-ight, 193 Pa. 541, session. Sizer v. Russett, 11 Pa. 44 Atl. 565; Kelly v. Lochr, 1 Super. Ct. 108. Brewst. (Pa.) 303. ''Bostetter v. Eykas, 3 Brewst. The landlord's accepting two (Pa.) 162. months' rent, supposing it to be of "^Harding v. Seeley, 148 Pa. 20, 23 the first year, when in fact the rent Atl. 1118; Upper v. Bourc. C. landlord's notice three months before Brier V. Marshall, 126 Pa. 390, 17 the end of the first year would end Atl. 647. the lease. Cf. McBrier v. MarsluiU, "•l^otter V. Boioer, 2 W. N. C. 120 Pa. 390, 17 Atl. 047. EEPETITION AND PROTRACTION OF TERM. 475 of the year by giving the other notice thereof at least thirty days prior tliereto, the landlord gave him three months' notice to leave at tlie end of the eleventh year. After giving this notice the landlord may revoke it, and no consideration for the revoca- tion is necessary if the tenant, in pursuance of it, remains on the premises. "The notice being withdrawn, both parties were remitted again," says Mitchell, J., "to the lease, whose mutual cc^venants were sufficient consideration." The tenant could not he ejected during the year to whose beginning the notice to quit had reference.^^ The notice to quit, however, is not revoked simply because the tenant holds over and the landlord refrains from expelling him for more than an entire year. He can bo ejected at any time.''' The acceptance of rent after the period at which, according to the notice, the tenant must vacate the premises, does not, ipso facto, prove, while it is evidence of, a withdrawal of the notice. It may have occurred under a mis- take.'^* 563. Holding over after definite term. — If the lease is for a definite term, the tenant is bound to leave the premises at the expiration of that term, without notice from the lessor. If, how- ever, he remains, and the definite terra is a year or more, he may be treated as a tenant from year to year by the landlord, and at his option will be liable as such. Thus, the lease being for one ^-Supplee V. Timothy, 124 Pa. 375, cupy four rooms under an agreement 23 W. N. C. 386, 16 Atl. 864. The that B is to pay for board, and not previous request of the tenant for for the rooms, at length gives notice leave to continue in possession, and to B to give up the rooms, wliich, the withdrawal of the notice, made however, B does not do, but con- a contract. The landlord's state- tinues for eighteen months to occupy ment to the tenant that the tenant them as before, receiving and pay- might remain, followed by the ten- ing for his board as before, B will ant's promise to remain, would make be regarded as occupying the rooms a contract. under the former terms. He can- '"'Boggs v. Black, 1 Binn. 333. not be compelled to pay for the use "Fiispalricic v. Childs, 2 Brewst. of them. Shoemaker v. Beaver, 42 (Pa.) 365. If A, allowing B to oc- Phila. Leg. Int. 511. 476 LANDLORD AND TENANT. year,'" two years/" three years,^'' for five years,'^' for ten years,'^ for fif 1«en years,*" if the tenant does not give u^d the possession before or at the expiration of the period, the landlord caj3, if he chooses, treat hini as a tenant, holding him responsible for the rent of a full year. If the lease was for a month, the tenant, on holding over, may be treated as a tenant from month to month ; but, even if he holds over for more than twelve months, he cannot be treated as a tenant from year to year, and, as such, bound to pay rent for a whole year, if he has been in possession for any month of it.*-* If the tenant remains in pos- session after the expiration of the first year subsequent to the lease, he is considered as still a tenant from year to year ; e. g., if he remains into the 2Sth year after the close of the contract term, he is liable for the rent for the whole of that year.®^ 564. Repetition of same terms and conditions. — Though, as we have seen, one who holds over after a lease for more than a year cannot be treated, when the lease does not make provision for holding over, as continuing tenant for more than one year, and so on, from year to year, the stipulation as to rent, the periods of payment, the covenants, so far as they are reasonably applicable to the holding over, are understood to attend the possession after the expiration of the lease, if the landlord chooses to recognize '"■Eollis V. Burns, 100 Pa. 206, 45 23 Atl. 1005; Walker Y. Githens, 156 Am. Rep. 379; Diller v. Boierts, 13 Pa. 178, 27 Atl. 36. Serg. & R. 60, 15 Am.. Dec. 578; ''Phosnixville v. Walters, 147 Pa. Phillips T. Monges, 4 Whart. 226; 501, 23 Atl. 776. Hemphill v. Flyrni, 2 Pa. St. 144; ^Williams v. Ladew, 171 Pa. 369, Hufjhs V. Lillibridge, 8 Pa. Dist. R. 33 Atl. 329. 358; Dauphin County v. Bridenhart, "Bollis v. Burns, 100 Pa. 206, 45 16 Pa. 458. Am. Rep. 379. '"Muller'a Estate, 16 Phila. 321. The tenant under a lease for six "Banders v. Fletcher, 11 Serg. & months, rent payable monthly, held R. 419; Wagle v. Bartley (Pa.) over one month. The landlord was 9 Cent. Rep. 551, 11 Atl. 223. The held entitled to recover rent only for tenant remained in possession for the one month. Harris -i. Watson, thirty-oue years, and was liable for 1 phila. Leg. Int. May 8, 1844. lent, though it exceeded the amount "Wagle v. Bartley (Pa.) 9 Cent. of a penalty in the lease. Rep. 551, 11 Atl. 223. "•Harvey v. Gunzherg, 148 Pa. 294, REPETITION AND PROTRACTION OF TERM. 477 tlie lessee as still his tenant. "When a landlord suffers his ten- ant," says Eogers, J., "to remain in possession after the expira- tion of the tenancy, and receives rent from him, a new tenancy from year to year is established. And if no new agreement be entered into, the law will presume, in the silence of the parties, that the tenant holds the premises, subject to all such covenants contained in the original lease as apply to his present situa- tion."** If the rent was, by the original contract, payable monthly, it continues to be payable monthly.^* And the same rent continues to be payable.*' But a warrant of attorney to confess judgment in ejectment, for default in paying rent, unless the lease stipulated that it should apply to holding over, is not available after the expiration of the term.** The stipulations in the lease may be of such a nature as indicates that they were intended to apply only during the term. When such is the case, there can be no inference, when a tenant holds over, that he believes the landlord will expect him to observe these stipulations, and he cannot be compelled to ob- serve them. A lease of a tavern was made for one year at a rent of £47, payable in advance. The tenant held over, and at the end of a month, distress was made on his goods for £47 rent in advance for the hold-over year. The court held that the law did not imply an agreement by the tenant to pay £47 for the sec- ond or later years should he hold over, because the lease con- tained several collateral matters to be done by each party, which could be performed in Lhe first year only. The tenant, e. g., was to finish a certain room, and was to be repaid by the landlord, "^PWZiips V. l/onj/es, 4 Whart. 226 ; 9 Cent. Rep. S51, 11 Atl. 223, tlip Hemphill v. Flynn, 2 Pa. St. 144; lease contained a penalty of $200.00 Diller v. Roberts, 13 Serg. & R. 60, to secure the payment of the rent. 1.5 Am. Dec. 578; Graham v. Demp- The penalty was tacitly assumed to sey, 169 Pa. 460, 32 Atl. 408. apply to the rent of the last of a "Laguerenne v. Dougherty, 35 Pa. series of twenty-eight years after the 45; Carter v. Collar, 1 Phila. 339. expiration of the original term. '^Bedford v. M'Elherron, 2 Serg. & ^'Huglis v. Lillibridge, 8 Pa. Dist. R. 48. In Wagle v. Bartley (Pa.) R. 358, 478 LANDLORD AND TENANT. within the year, the money advanced by him. The landlord was to have a right to keep a horse in the stable for four months of the term ; he was to have the roof of the stable repaired within the first two months. "As some of the things which were to be done the first year could not be done the second year," says Tilghman, Ch. J., "1 do not see on what ground the l^w would imply a contract tha.t the same money [as rent] should be paid the second year and on the first day of the year."*^ A repeti- tion of an agreement in the lease by the lessee, to erect a build- ing during the t«rm, for which he is to have credit of $100.00 on the rent, will not be implied when he holds over, not having erected it The agreement is applicable only to the original term.** If the lessor is owner for life, and he dies during the term, it comes to an end; but the remainderman may consent to the continuance of the tenant in possession for the rest of the term. If he does so, he tacitly consents to the stipulation in the lease that the tenant may remove or sell the building which he has erected. He does not consent, however, to be bound by agreements which are collateral and subsequent to the lease, of v/hich he had no knowledge. If, e. g., the agreement that the tenant might remove the building was made after the lease, the remainderman, having no knowledge of it, does not, by assent- ing to the continuance in possession of the lessee, also consent to the removal of the building.*^ But a lease for one year, con- taining the lessee's covenant to deliver up possession at the ex- piration of the lease, without further notice, and agreeing that the lessor may re-enter and repossess himself of the premises at the end of the term, or at any time thereafter, the lessor may "Diller v. Roberts, 13 Serg. & R. action for the breach of the contract 60, 15 Am. Dec. 578. to erect the building did not pass to "Pollman v. Morgester, 99 Pa. 611. the purchaser, but remained in the The reversion having been sold dur- original lessor, ing the hold-over year, the right of "White v. Arndt, 1 Whart. 91. REPETITION ANU PROTRACTION OF TERM. 47» recover possession in the midst of the eleventh year after the ex- piration of the term, without notice.''*'' 565. Express provision that same terms shall continue. — ^The lease may stipulate that if the tenant remains in possession after the term has expired, the amount of rent, terms of payment, and other covenants shall be continued. This would continue a pro- . . . ^ . vision in the lease that all repairs are to be made by the tenant. Hence, if the tenant held over, he would be liable for the rent,. and could not have it reduced by reason of the lessor's omitting to make needed repairs.^^ 566. The landlord's option. — The landlord must do something indicative of an intention to recognize the hold-over tenant as still a tenant. The tenant does not avoid becoming a trespasser except by an implied or express contract, wherein a different status is imputed to him. The ordinary way in which the land- lord shows his acceptance of the tenant as such for another period is his acceptance of rent for a period of possession that is later than the expiration of the term. If the tenant fiays rent for a part of the®^ hold-over year, the act is evidence of an affirmance by him of the lease for the entire year, and accept- ance by the landlord of this rent would be evidence of a con- cession by him of the lessee's right to remain for the year. Hav- ing held over, the tenant, paying rent for a part of the year, which is received by the landlord, acquires a right to remain for the rest of the year,®^ and falls under a duty to pay the rent for the remainder of the year."* In Bedford v. M' Elherron^'' the lease was for four years, at an annual rent of a turkey, and the tenant was each year to clear four acres of ground, pay all ""McGanna v. Johnston, 19 Pa. 434. "Fahnestock v. Favstenauer, .5 "Pa ^^Thropp's Appeal, 70 Pa. 395. "Toumsend v. VnierUll, 6 Pa. Co. ^'Lemar v. Miles, 4 Watts, 330; Ct. 544. Heffner v. Leivis, 73 Pa. 302 ; Hey v. '"Gam.pbell v. O'Neill, 64 Pa. 290. Bnmer, 61 Pa. 87; Wich v. Bredm, But, if the articles were not so con- 189 Pa. 83, 42 Atl. 17. nected with the realty as to be a part ^*Furhush v. Chappell, 105 Pa. of it, they would not be bound by the 187; Ovliek v. Heermans, 6 Luzerne mortgage, and the sale to the tenant Legal Reg. 227. MO\ild convey an indefeasible title. '"Toiimseiid v. Underliill, G Pa, Co. CL 544, FIXTURES. 497 The levy and sale in execution may, at the same time, be on and of the leasehold and the fixtures''^ as well as on and of the fix- tures alone. A lessor's option to purchase them at the end of the term does not preclude a sheriff's sale of them during the term.'''' 586. When removal must be made. — The tenant has a right to sever the fixtures so long as he is in possession, in pursuance of the terms of the lease, but, generally, not afterwards. He must remove them during the term. Allowed to remain beyond the term, they are deemed given to the lessor.'^ "Certainly a tenant," says Strong, J., "can make accessions to the freehold of his landlord. He does when he makes additions not for the purpose of trade. Fixtures for such purposes the law permits him to take away, if he exercises his right during the term. If he does not, he waives his right to remove at all, and dedicates them as permanent accessions to the freehold. Were it not so, the rights of a tenant upon a property leased would continue longer than the term to which they were limited by the contract which created it. Yet the tenant is but a purchaser of the enjoy- ment for a defined period, the rent being but a mode of paying the purchase money." ^* If the tenant for a definite term holds over, and the lessor, not treating him as a trespasser, as he might, recognizes him as still a tenant, his right to remove the fixtures continues until the close of the hold-over period;'" but if the lessor dissents from the holding over, the right of removal of '"Seitzinger v. Marsden, 2 Pennyp. 265; Davis v. Moss, 38 Pa. 346; 463; Kile v. Giebner, 114 Pa. 381, 7 Overton v. Williston, 31 Pa. 155; Atl. 154; CJmrch v. Griffith, 9 Pa. Straight v. Uahoney, 16 Pa. Super. 117, 49 Am. Dec. 548. Ct. 155; Alhert v. Uhrich, 180 Pa. '"Seitzinger v. Marsden, 2 Pennyp. 283, 36 Atl. 745 ; Schock v. Vogle, 18 463. Lane. h. Rev. 257. "White V. Arndt, 1 Whart. 91; '^Overton v. Williston, 31 Pa 155. Justice V. Nesguehoning Valley R. "Davis v. Moss, 38 Pa. 346; Dar- Go. 87 Pa. 28; Heff-ner v. Leicis, 73 rah v. Baird, 101 Pa. 265. Pa. 302; Darrah v. Baird, 101 Pa. Land. & Ten. 32, 498 LANDLORD AND TENANT. the fixtures is lost.*" JSTegotiations begun during the term for a new lease, resulting in an agreement, two days before the close of the term, that the lessee should continue to operate the col- lieries during the next month, until a new arrangement should be made, the lessee, two weeks afterwards, the parties hav- ing failed to make a new arrangement, announced to the lessor that he would surrender at the end of the month, and would remove the improvements if the lessor did not exercise his option to take them at an appraisement. He was entitled to a reasonable time to remove the engine, building, pumps, and rail- road which he had put upon the premises.*^ 587. Life-tenant lessor.— If, the lessor being a life tenant, the term is cut short by his death before its close, the tenant loses the right to remove fixtures on the premises at the lessor's death, even though the lessor had agreed that the lessee might remove them at or after the expiration of the term, unless he, the lessor,. bought them, since this agreement is not binding on the remain- derman.^^ "If the tenant for life, or the person with whom he contracts," says Eogers, J., "wishes to avoid the consequences, the improvements must be removed during the continuance of the first estate, or the assent of the remainderman or reversioner must be obtained." The fact that the remainderman consented to the continuance in possession of the lessee, receiving rent from him, biit without knowledge of the agreement of the lessor with the lessee, could not preclude his denying the lessee's right of removal of the fixtures. "Taylor v. Maule, 2 Walk. (Pa.) lost by reason of its owner's being a 539. Dictum of Stroud, J. In tenant and having allowed it to re- Charlotte Furnace Go. v. Stouffer, main on the premises, at the expira- 127 Pa. 336, 17 Atl. 994, Green, J., tion of the term, the burden is upon remarks that the necessity of re- him to show the lease and the expira- moving fixtures before the end of the tion of the term. term is subject to an exception in '^East Sugar-Loaf Goal Go. v. Wil- favor of trade fixtures. If the bur, 5 Pa. Dist. R. 202. principle is invoked by any one that '"White v. Arndt, 1 Whax-t. 91. the ownership of a thing has been FIXTURES. 499 688. lease ending at no certain time. — If the lease is to end at no certain time, if, e. g.j being an oil leas© for ten years, it is provided that, if oil is found in paying quantities, the term shall last until it shall cease to be found in such quantities, and, the condition being realized, the tenant continues in possession beyond the ten years, but on the exhaustion of the oil, suspends operations, and the lessor terminates the lease and re-enters, a reasonable time after this termination must be allowed to the lessee for the removal of the fixtures.*^ Should the lessor bring an ejectment because of the cessation of the production of oil in paying quantities, and recover a judgment, it vs^ould not be too late for the lessee to take avcay his personalty, and should the lessor refuse to allow him, he would be liable in trespass for the conversion.** 589. Forfeiture. — The lease may be subject to forfeiture. Being for ninety-nine years, it may provide that if mining oper- ations should cease for one year, it shall become void. After the cessation of the operation for one year, the fixtures were allowed to remain on the premises three years longer. They could not then be taken by the tenant, nor levied on and sold by the sheriff under executions against him.*^ The lessee be- comes a bankrupt, and in a contest between the assignee and the landlord, who takes possession under a provision of the lease that on thirty days' notice, for failure to pay rent, he may re- possess himself of the premises, the court decides that the posses- sion be given up to the landlord, the right of the fixtures to be determined subsequently. From the time of the decision, if not before, the landlord has legal possession of the premises, and the right of the lessee or one claiming under him, to take the fixtures, is lost.*^ The lease may stipulate that the fixtures ''Gassell v. Grothers, 193 Pa. 359, "■Davis v. Moss, 38 Pa. 346. 44 Atl. 446. '^Darrah v. Jiaird, 101 Pa. 26.'!. '"Saitler v. Opperman, 14 Pa. The fact that the right of property Super. Ct. 32. in the fixtures was to be determineil 500 LANDLORD AND TENANT. may be removed after a forfeiture, within thirty days of notice thereof, and such a stipulation will regulate the right of re- moval.^''^ An agreement which was virtually a sale of coal in place in consideration of the payment of royalties, gave to the lessee the right to abandon the mining at any time and to remove his buildings and fixtures. It was subsequently modified by a provision that it should remain in force until all the merchant- able coal had been mined and removed, and by a provision that on a failure to pay any of the semiannual royalties for six months, the lease should become null and void at the election of the lessor. For a failure for six months to pay a royalty, the lease was declared forfeited. A bill in equity was filed by the lessor to prevent the removal of the fixtures. It was held that the original lease preserved the personalty character of the fix- tures, not only when the lessee abandoned the work, but also when, under the later agreement, the lessor declared the "lease and contract" null and void. "By that contract "[the original lease], says Dean, J., "the mining fixtures and machinery were the personal property of the lessee, and so continued ; destroying, forfeiting, or making void his contract affected not that which was excluded from the operation of it; the intention of both in the beginning to distinguish it as personalty from realty could not be defeated by the act of one of them." ^* The coal lease providing that on a sale of the term in execution, the lease should be forfeited, and also providing that the fixtures put on the premises by the tenant should, at the lessor's option, become his on his paying the value, as ascertained by appraisers, the onl;y effect of a sheriff's sale of the lease and the fixtures, as the prop- erty of the lessee, would be to make the former forfeitable. If, the lease not being forfeited by the lessor, on account of the sher- iff's sale, the purchasers at that sale of the lease and fixtures later did not affect the unconditional "Watts v. Lehman, 107 Pa. 108. character of the surrender of the "Wick v. Bredin, 189 Pa. 83, 42 premiaea. Atl. 17. FIXTURES. 501 take possession of tlie premises, and after some weeks, give notice to the lessor that they desire an appraisement of the fixtures, and the lessor refuses to recognize their right, and, a few days afterwards, serves notice on them and the lessee that he forfeits the lea,se for nonpayment of rent, for suspension of work at the colliery, and for taking up some of the fixtures, and if there- upon the lessor takes possession of the premises and the fixtures, he win be liable for a conversion of the latter.^^ 590. Remedies of the lessee.— If the lessee is prevented from removing tbe fixtures at a time Avhen, under the law and his contract, he has a right to remove them, he may maintain trover** for them, although they remain fixed to the land, which was in the possession of the lessor before the attempt to remove the fixtures.*^ If the lessor takes possession of the fixtures, and agrees to be accountable for them, assumpsit can be sustained to recover their value.*^ Trespass was employed in Straight v. Mahoney.^^ In replevin to recover goods distrained on for rent, whether they be the tenant's** or a stranger's,*^ the plaintiff can- not set off the value of the fixtures improperly appropriated by the landlord, or show in defense an agreement of the landlord that the cost of a building erected on the premises by the tenant, and at his expense, should be applied to the payment of the rent, and that if thus applied, no rent would be due.*® The tenant, whose right of possession of the premises has ended, cannot "Seitzinger v. Marsden, 2 Pennyp. have been a tenant, and to have lost 463. the right to it because he had permit- ■" In 1884. ted it to remain after the expiration "^Watis V. Lehman, 107 Pa. 106. of the term. His relation aa tenant Tacitly disparaging a portion of the was not shown in the evidence, opinion in Darrah v. Baird, 101 Pa. "'16 Pa. Super. Ct. 155. Cf. 265, and in Overton v. WilUston, 31 Albert v. Vhrich, 180 Pa. 283, 36 Atl. Pa. 155. Cf. Campbell v. O'Neill, 64 745. Pa. 290. "Peterson v. Haight, 3 Whart. 150. "Seitzinger v. Marsden, 2 Pennyp. Cf. White v. Arndt, 1 Whart. 91. 463. In Charlotte Furnace Co. v. "Collender Co. v. Speer, 29 Pittsb. Stoufer, 127 Pa. 336, 17 Atl. 994, L. J. 125. replevin for an inclined plane was "Collender Co. v. Speer, 29 Pittsb. allowed to one who was alleged to L. J. 125. 502 LANDLORD AND TENANT. maintain ejectment for them, even though the lessor, on taking possession, intended to deprive, and continues to intend to de- prive, the lessor of the fixtures, and though the lessee's object in bringing the ejectment is to regain possession long enough only to secure and remove the fixtures.^'' 591. Remediesof lessor.— For fixtures which, at the making of the lease, are already the lessor's or which, by the terms of the lease, if erected by the lessee, are to be the property of the lessor, and which, during the term, the lessee removes and sells, the lessor may maintain trover. Previous demand for the article is not necessary, if the vendee knew, before the purchase, the facts on which the lessor's right rests. The right to the use of the fixtures during the rest of the term is lost to the tenant by his unlawful act.** If the fixture is a tramroad, and the lessee continues to use it after his right to be on the premises has ended, trespass q. c. f. will lie.*® An estrepement^"" or an in- junction^*^ may be employed by the landlord, to prevent the removal of a boiler from a brewery^"^ or various fixtures from a hotel. ■'"^ If a covenant obliges the tenant to leave the fixtures, for the removal of them in violation of it, an action on it wiU lie,^"* and a case stated may be resorted to, to obtain the judg- ment of the court upon the rights of the lessor and lessee.-'"^ '"Cassell V. Grothers, 193 Pa. 359, ^'^Agnew v. Whitney, 10 Phila. 77. 44 Atl. 446. ^'^-Agneio v. Whitney, 10 Phila. 77. "Morgan v. Negley, 3 Pittsb. 33. ^"^Kenney's Appeal, 22 W. N. C. 89, But in Townsend v. Vnderhill, 6 Pa. 12 Atl. 589. Co. Ct. 544, it was held that when Trespass on the case was employed the lessor had no right to the fixtures by the lessor for injury to his free- until the expiration of the lease, he hold by removing the fixtures, in could maintain no action until then. Seeger v. Pettit, 77 Pa. 437, IS Am. Apparently, he would have had no Rep. 452. action even then. ^'^Whitney v. Shippen, 89 Pa. 22. ''iSilliman v. Whitmer, 11 Pa. ^''Harris v. Kelley (Pa.) 12 Cent. Super. Ct. 243. Cf. Townsend v. Rep. 394, 13 AtL 523; Jermyn v. Vnderhill, 6 Pa. Co. Ct. 544, where Dickson, 3 Luzerne Legal Reg. 100. trespass q. c. f. was brought for the In Farmaki-s v. Boyle, 8 Pa. Dist. removal of a range. R. G96, A leased to B the pavement ""Cook V. Folsom, 2 Lane. L. Rev. for a fruit stand. With A's consent, 185; Folsom v. Cook, 115 Pa. 539, three or four months later, B erected 9 Atl. 93. a galvanized awning, supported by FIXTURES. 503 592. Manure. — Whether manure made upon the demised premises belongs to the tenant or to the landlord is occasionally a matter of dispute. The principle recognized is, that when the land has been let for agricultural purposes, the manure made on it during the term is the tenant's in the sense that he may use it for the ends of good husbandry upon the premises, but in no other. All manure made on the land, and remaining on it at the close of the term, is to be deemed a part of the land, and belongs to him to whom the land belongs, in reversion or re- mainder. Nor is this principle to be accepted only where, on an investigation in the particular case, it appears to be the cus- tom in this state to respect it. It is established by the coiirt as a matter of law; but a stipulation in the lease, regulating the re- spective rights of landlord and tenant, will be respected.^"® 593. land let for agriculture. — "The doctrine," says Lewis, J., "that the manure goes with the land is, of course, confined to farms which are let for agricultural purposes."^"^ Though the land is used in a subordinate degree to support dairy cows,^"* nay, though it is used solely as a grazing farm,'"^ it is to be deemed devoted, in the sense of the principle in question, to agricultural purposes. The farm being let as a "milk farm," that is, to raise therefrom food for cows, in order that the ten- ant might sell the milk produced by them, Thompson, P. J., re- marked i^^" "That a grazing farm is not in use strictly for agricultural purposes, I should not like to be the first to de- pofsts, and a framework covering the ^"Waln v. O'Connor, 1 Phila. 353. whole width of the pavement. Sub- In Binehart v. Ohcine, 6 Watts & S. sequently A tore off the top of the 157, the court abstained from decid- awning. His tearing down the posts ing whether "wlien a farm is taken and frame was enjoined. by a tenant for agricultural pur- '"^Barrington v. Justice, 2 Clark poses, the manure made upon it be- (Pa.) 501. longs to the farm, and not to the '"LetCTs V. Jones, 17 Pa. 262, 55 tenant." A compromise between Am. Dec. 550; Barrington V. Justice, landlord and tenant, regarding it, 2 Clark (Pa.) 501. was binding. "'LeiCTS V. Jones, 17 Pa. 262, 55 "» In 1852; Wain v. O'Connor, 1 Am. Dec. 550. Phila. 353. 604 LANDLORD AND TENANT. terminc. I can see no difference, in an agricultural sense, be- tween the cultivation of grass or turnips as food for cattle, and of wheat, rye or any other grain, for human consumption. . . Every farm which is let for the purpose of obtaining the product of the soil by tillage is let for 'agricultural purposes' whether those products are consumed upon it or disposed of in any other manner." A tract containing zinc ore was let for his life to X "for agricultural or farming use, and none other ;" but the lessor reserved the right to mine upon it, under the limit that the mining should be so conducted as to cause as little injury as possible to X, in his farming operations. The premises were within the rule, with respect to manure formed on them.^-'-' 594. Manure; kind of term. — Ordinarily, the term in respect to which the rule under consideration is invoked and applied, is a tenancy at will, for years,^-'^ or from year to year; but the rule applies as well to a grant for the life of the tenant.^ '^ 595. Source and place of manure.— It is not necessary that all the manure made on the premises should be made by the cattle or horses, out of grass, hay, fodder produced on the premises. In a case in which the tenant kept a dairy farm, and bought con- siderable quantities of hay, brewhouse grain, and other articles as food for his cattle, Thompson, Ch. J., concluded that all the manure made on the farm belonged to it; being influenced by reflection on the difliculty of separating the part of the manure attributable to the cattle food procured beyond the farm, from the other part, on the fact that the manure is a part of the soil, no more separable from it than a fixture, and on the detriment to the farm, as property, and to the agricultural interests of the community considered in their generality, which would be oc- casioned by the abstraction, by each tenant, of the manure made "'Pearson v. Friedensville Zinc Go. "'Pearson v. Friedensville Zinc Oo. 1 Pa. Co. Ct. 660. 1 Pa. Co. Ct. 660. "' For one year, Barrington T. JiU- ticc, 2 Clark (Pa.) 501. FIXTURES. 505 on tie land during his term. "There are few farmers at the present day who do not expend their money in purchasing manure to improve their crops; and where is the difference whether the manure itself is purchased, or the food from which it is made? It should equally belong to the soil.'"' ^ In Lewis V. J ones j'^" the tenant kept dairy cows, and eight or nine horses. He purchased "some" grain, and "some" hay, but how much was not shown. The court refused to sanction the principle that the tenant owned so much of the manure as exceeded that amount which was produced from the produce of the farm it- self, because the jury had no test, in the evidence, for determin- ing what this excess was ; because, by his own act, the tenant had confused his manure with that of the landlord. The tenant, re- marked Lewis, J., cannot justify taking away any part of the manure, by showing that he has occasionally employed his teams in business not connected with the cultivation of the soil, and that he has supplied them in part with hay and grain purchased elsewhere, so long as the manure thus made is commingled with that made from the produce of the farm. The manure which is scattered over the farm would rather easily be conceded to be intermingled with the soil, and to be irremovable by the ten- ant, but it has likewise been held that manure in heaps, in the barnyard, or other depository, is no less exempt from a tenant's right to take it away. "True it is," said Parsons, J., in tlie leading case in Pennsylvania,^'* "often large heaps are col- lected in tlie farmyard, yet the quantity in which it is collected cannot in any way change its character, or the species of prop- "'Waln V. O'Connor, 1 Phila. 353. fense to the lessor's action on iiiis "° 17 Pa. 262, 55 Am. Dec. 550. covenant, to the effect that six tons ""Barrington v. Justice, 2 Clark of hay were found on the farm when (Pa.) 501. Cf. Pearson v. Friedens- possession was taken, and that six ville Zino Co. 1 Pa. Co. Ct. 660. tons, either as hay or manure, were The lessee covenanting to leave, at left on the farm, not distinguishing the end of the term, as much hay as how much of each, will not prevent he flnda on the premises when he judgment. Harnish v. Musser, 19 takes possession, an affidavit of de- Lane. L. Rev. 283. 508 LANDLORD AND TENANT. erty by -whicli it must be known on legal principles. If we once admit the principle that a tenant can remove that which is collected in a large quantity in a yard, what is there to prevent' him from going over the farm, and gathering all which is de- posited in less quantities by accident in the pastures, or by de- sigTi for future use, on any part of the premises, even when in a state of decomposition, and about to be commingled with the soil? What would prevent the tenant from scraping the de- posits around every stackyard, or gleaning all which had been formed in a sheepfold during the year, just as his lease was about to terminate V Tlie manure, he argues, though in the yard, is connected and identified with the earth ; it can be taken oft with no more propriety than could rails from tiie fences. The maintenance of the fertility of the farm, the interests of agriculture, require that the manure, even in heaps, shall be irremovable by the tenant at the close of the term. 596. Remedies as respects manure. — The 1st section of the act of March 29th, 1822,^^'' authorizes a landlord who has let his land for years, or at will, at any time during the continuance or after the expiration of the term, and due notice to the tenant to leave the premises, to apply by petition and affidavit to the common pleas for a writ of estrepement against the commission of waste of the freehold; and the tenant's removal, at the end of the term, of the manure made during it, on the premises, may, as such waste, be prevented by this writ^^^ The land- lord may also maintain trespass for the conversion,*^® or his right may be adjudicated upon a case stated.*^** '" 2 Pepper & Lewis Digest, 4806 ; "'Lewis v. Jones, 17 Pa. 262, 55 7 Sm. L. 520. Am. Deo. 550. "'Barrington v. Justice, 2 Clark ^Pearson v. Friedensville Zinc Co. (Pa.) 501; Wain v. O'Connor, I 1 Pa. Co. Ct. 660. Phila, 353. CHAPTER XXVIII. THE WAY-GOING CROP AKD EMBLEMENTS. 597. The way-going crop. 598. Kind of lease. ,"599. The kind of crop. 600. Straw included. 601. Who entitled. 602. Effect of sheriff's sale of the reversion. 603. Inconsistent with right to crop. 604. Remedies for denial of tenant's right. 605. Origin of tenant's right. 606. Emblements. 607. The nature of the lease. 608. Lease terminable by act of party. 609. Nature of the crops. 610. Crop in the ground at commencement of term. 611. Hay and fodder on the premises. 612. Timber. 613. Hay, straw, fodder. 597. The way-going crop.— Additional to the right serared by the common law with respect to emblements, there prevails in Pennsylvania what is Iolowti as the right to way-going crops. The tenant, after the close of the term, continues to own the crop then in the groimd, unripe and uncut, and may assert this ownership in appropriate ways. 598. Kind of lease. — The law of emblements is applicable only in cases of teniires of uncertain duration, whose time of termination can therefore not be foreseen when a crop is sown. The law of way-going crops operates in regard to tenancies of a different class : to leases for a term of years, or from year to year. It has been applied when the lease was for one,^ for two,^ for HIiller \. Clement, 40 Pa. -^^4. Bittinger v. Baker, 29 Pa. 66, 70 Am. The lease may expressly give the Dec. 154. tenant the way-going crop. Yeager 'Forsythe v. Price, 8 Watts, 282, V. Cassidy, 12" Pa. Super. Ct. 232; 507 508 LANDLORD AND TENANT. five,^ or other period,* and also from year to year.' The lease may originally be for a definite term, and, ty the tenant's hold- ing over, become a lease from year to year.^ The leases in re- spect to which the right has been recognized have probably all begun in the spring time; generally on April 1st'' 599. The kind of crop.— The only crops the right to which under the denomination of "way-going" has been recognized are such as axe sown in tlie fall or winter preceding the expiration of the term; e. g., rye,^ wheat." Hare, P. J., in Hunter v. Jones,^" and Tilgbman, Ch. J., in StuUz v. Dickey, ^'^ speak of the crop as "winter grain." In Biggs v. Brown}'" though termed generally, "corn," "grain," it had been sown in 1810, and had ripened in 1811. In Demi v. Bossier}^ Huston, J., remarks that the "way-going crop" "heretofore has been con- lined to grain sown in the autumn, to be reaped the next har- vest." In that case, the tenant for one year received notice December 28th to leave on the 1st of April following. He sowed oats in March following the notice. Holding that he had no right to this crop, on its maturing, after the expiration of tlie lease, Huston, J., suggested that, were his right recog- nized, "the tenant who rents a farm for the ensuing year will not know whether he can put in a spring crop until he knows 34 Am. Dec. 466; Shaio v. Bowman, 'Stultz v. Dickey, 5 Binn. 285, 6 91 Pa. 414. Am. Dec. 411; Forsythe v. Price, 8 'Stultz V. Dickey, 5 Binn. 285, 6 Watts 282, 34 Am. Dec. 465; Bunt Am. Dec. 411. v. Scott, 3 Pa. Co. Ct. 411; Bit- 'Bittinger v. Baker, 29 Pa. 66, 70 tinger v. Baker, 29 Pa. 66, 70 Am. Am. Dec. 154. Dec. 154; Shaio v. Bowman, 91 Pa. 'Biggs v. Brown, 2 Serg. & R. 14. 414; McKay v. Pearson, 6 Pa. Super. 'Glarh v. Earvey, 54 Pa. 142 ; Bor- Ct. 529 ; Wamgli v. Waugh, 84 Pa. rell V. Dewart, 37 Pa. 134; Whorley 350, 24 Am. Rep. 191; Whorley v. V. Karper, 20 Pa. Super. Ct. 347. Karper, 20 Pa. Super. Ct. 347. 'Demi V. Bossier, 1 Penr. & W. ^'7 Phila. 233. 224; Stiiltz V. Dickey, 5 Binn. 285, "5 Binn. 285, 6 Am. Dec. 411. 287, 6 Am. Dec. 411. "2 Serg. & R. 14. 'Clark V. Harvey, 54 Pa. 142 ; Mo- "1 Penr. & W. 224. Keehy v. Webster, 170 Pa. 624, 32 Atl. 1096; Stultz v. Dickey, 5 Binn. 285, 6 Am. Dec 411. WAY-GOING CROP AND EMBLEMENTS. 609 whether the month of March will be clement or inclement, or whether the previous tenant was regardful of the rights and in- terests of others, and the general laws and usages of the coun- try."^* The tenant has the right to sow fall crops, and to reap them, despite the warning of the landlord not to sow them.^' 600. Straw included. — The straw of the wheat or rye is a constituent part of the way-going crop, and as such the tenant has a right to it, despite the termination of the lease prior to the maturation of the crop. Why should landlords, asks Ken- nedy, J., receive the rents from the tenants "and make profit beside out of the product of their labor by taking from them the straw, and selling it? Distributive justice in such case would seem to give the straw as well as the grain to the tenant, as part of the way-going crop, to be taken and disposed of by him as he pleases, seeing it is the product of his own labor ; from the land of his lessor, to be sure, but, then, he has paid the lessor a full compensation for the use of the land.'"® If the lease requires the tenant to deliver one half of the grain to the landlord, he is to deliver one half of the grain and the straw, and retain the other half.-''^ If the tenant is to deliver one third of the wheat "in the bushel," the tenant has a right to all the straw; if the former is to deliver to the latter one third of the wheat in the "sheaf," the landlord is to have one third of the straw also.-** A lease giving one half of the crops to the tenant, but stipulating that he is to take away no manure, hay, or straw, he is not entitled to any straw.^* " Huston, J., also observes that, if With the close of the term, the re- the tenant can sow the land "with lation of landlord and tenant ends, oats, flax or other grain, in March, notwithstanding the tenant's right to before his lease expires, which is al- the still growing, way-going crop. •ways about the first of April, he in Shaw v. Bowman, 91 Pa. 414. fact gets the benefit of the farm for "Rank v. Bank, 5 Pa. 211. two years, although he pays the rent ^'Iddings v. Nagle, 2 Watts & S. of but one." 22. ^'■Stultz V. Dickey, 5 Binn. 285, 6 ^'Bunt v. Scott, 3 Pa. Co. Ct. 411. Am. Dec. 411. "Craig v. Dale, 1 Watta & S. 509. 37 Am. Dec. 477. 510 LANDLORD AND TENANT. 601. Who entitled. — The tenant has the right to sow the fall crops and to reap them despite the intervening termination of the lease. His assignee of the lease has the right,^" as also has the subtenant. Indeed, if there is a sublease, and the sublessee puts in the crop, he alone has the right to take it ; not the lessee ; and he alone can maintain the action for the denial of the right by anybody."^ The tenant may sell the crop, or, he dying, it may pass to his administrator. The vendee or administrator will then have, and be able to enforce, the right ;^^ and if the lessor is aware of the sale, he cannot destroy the vendee's right by accepting a surrender of the term prior to its expiration.^^ The crop may be sold as personalty, as in execution, or in dis- tress for taxes, and the purchaser, though he be the tenant, the former owner, himself may buy it in.^* After the expiration of the lease the way-going crop may be sold for taxes due by the tenant The landlord could not recover in replevin, from the purchaser.^^ 602. Effect of sheriff's sale of the reversion. — A sale in execu- tion, after making the lease, of the lessor's reversion, does not impair the lessee's right, but simply substitutes the sheriff's vendee, as landlord. Though the lien on which the sale after- wards takes place exists before the lease is made, if the crop is sown before the issue of the execution and sheriff's sale, the ten- ant's right to the way-going crop is not destroyed by a sheriff's sale before or after the termination of the lease. Thus, after a judgment recovered against X, he made, in the spring, a lease of the land. In the foUomng fall the tenant put rye into the "Stultz V. Dickey, 5 Binn. 285, 6 the premises till ripe. After the Am Dec. 411; Miller v. Clement, 40 end of the term, and after a sale of Pa. 484. it by the tenant, who planted it, it "Stultz V. Dickey, 5 Binn. 285, 6 cannot be taken in distress for his Am. Dec. 411; Biggs v. Brown, 2 rent. Wardlaw v. Sharpless, 13 Serg. & R. 14. Lane. Bar, 124, 1 Del. Co. Rep. 155. '^Shaw V. Bowman, 91 Pa. 414. 'miller v. Clement, 40 Pa. 484. "/Stew V. Bowman, 91 Pa. 414. ''Hazlett v. McOutcheon, 158 Pa. The crop may, of course, remain on 539, 27 Atl. 1088. WAY-GOING CROP AND EMBLEMENTS. 511 ground. A sheriff's sale followed, but before the close of the term. The purchaser gave notice to the tenant to give up posses- sion, and he did so, at the expiration of the term. He was enti- tled to the way-going crop.^® The lease was made April 1, 1851, of land on which was already a lien. A crop was sown in the fall. Later, a fi. fa. issued, and a sheriff's sale of the land took place April 13th, 1852. The fall crop belonged to the tenant." A bought at an administrator's sale, what had been X's land, but did not complete the payment of the purchase money, nor re- ceive a deed. Taking possession, however, he mortgaged the land. Subsequently to the mortgage, he leased it. After the expiration of this lease, and while the fall crops were still in the gTound, occurred a sheriff's sale upon the judgment on the mortgage. The grantee of the purchaser, in taking the way- going crop, was a trespasser.^® It has been held, however, that if a levy in execution preceded the making of the lease, and a sheriff's sale took place after the planting of a crop, e. g., com, the purchaser became the owner of the crop.^® The effect of the sheriff's sale on the right to the crop is the same whether the lease is oral or written.^" '"McKeeiy v. Webster, 170 Pa. Rev. 371. But in Teager v. Cassidy, 624, 32 Atl. 1096. 16 Lane. L. Rev. 305, when a lease ^Bittinger v. Baker, 29 Pa. 66, for a money rent ran from April 1st, 70 Am. Dec. 154. In Adams v. Mc- 1896, to April 1st, 1897, and the Kesson, 53 Pa. 81, 91 Am. Dec. 183, lease stipulated that the fall crops Strong, J., remarked that it made no should be the tenant's, it was held difference at what time, prior to the that though the fall crops were sown sheriff's sale, the lea.se was made or after a sheriff's sale of the reversion, the grain sown. The tenant's right the tenant had a right to the crops, to the crop would not be affected, as against the transferee of the sher- The contract was made after a vend, iff's vendee. ex. had issued. "Adams v. McKesson, 53 Pa. 81, '"Miller v. Clement, 40 Pa. 484. 91 Am. Dec. 183. In Eewitt v. Mc- The sale was made to B, to whom, Ilvain, 10 Pa. Co. Ct. 562, McClean, having been a creditor of the de- J., held that, the judgment on which cedent, X, C, the administrator, had the sherift''s sale occurred being prior confessed a judgment. B subse- to the lease, and notice to quit in quently conveyed to C. This did not three months being given to the affect the principle. tenant by the purchaser after he ob- "Mcllvaine v. Bonders, 15 Lane. L. tained the sheriff's deed, the tenant 512 LANDLORD AND TENANT. 603. Inconsistent with right to crop. — The custom as to the tenant's right to the way-going crop is reported by Yeates, J.,^* to have been proven by witnesses in such terms as to make the right depend on the fact that there was no fall crop in the ground at the commencement of the lease, which became the tenant's. "Several witnesses, including two of the jurors," he remarks, "were examined," i. e., in an earlier case,^^ as to the custom of the coimtry, that tenants for years who did not re- ceive crops at the commencement of their leases were entitled to take off the crops which had been sown during the con- tinuance of their leases." That this is a correct condition to the right is intimated by Pettit, J., in Comfort v. Duncan.'^' In Loose v. Scharfp* a custom in Berks county is recognized as valid, that the incoming tenant has the benefit of the winter crop in the ground at the commencement of his term, and that he must leave his last winter crop in the ground for the benefit of his landlord. A sheriff's sale of the lessor's title occurring after the expiration of the term, but while the winter crops are in the gTound, the tenant did not estop himself from claiming Ihe crops, as against the sheriff's purchaser, by giving notice that he had put in the crop, and that he had also bought it at a sale of it, under distress for taxes. The notice did not mislead. No notice, indeed, was needed to save the tenant's crop. The pur- chaser was bound to know it was there and to respect it. The notice was no disavowal of the late tenancy.^** The instrument which creates the tenant's estate may virtually stipulate that crops in the gi'ound at its close shall belong to another. Effect will be given to the stipulation.^** had no right, during these three "6 Pa. Super. Ct. 153. months, to cut and make hay. Tlie "iMiller v. Clement, 40 Pa. 484 purchaser at the sheriff's sale was The crops could be levied on as per- allowed to recover it in replevin. sonalty, and be sold for taxes, and ^Stultz V. Dickey, 5 Binn. 285, 6 the tenant, already the owner, could Am. Dec. 411. buy them in. '"Diffedorffer v. Jones, 5 Binn. 289, ''IWaugh v. Waugh, 84 Pa. 350, fi Am. Dec. 413. 24 Am. Rep. 191. "1 Miles (Pa.) 229. WAY-GOING CROP AND EMBLEMENTS. 513 604. Remedies for denial of tenant's right. — The tenant has, as incident to his ownership of the crop, the right to its being permitted to grow in the fields until it matures ; to its being ex- empt from injury occasioned by the wilfulness or the negligence of the succeeding occupant of the premises, or of another, and the right of access to it, probably to cultivate it ; certainly, when it is ripe, to reap it and take it away. The tenant has a pos- sessory right to so much of the land as is covered by the crop. If the landlord, after the expiration of the lease, wilfully or negligently allows his horses to get into the tenant's way-going wheat, he is liable in trespass q. c. f.,^^ and the succeeding ten- ant, who harrows down the winter grain planted by his predeces- sor, and plants corn for himself, will be similarly liable.^® If the landlord enters the field, and takes the crop, he is also a breaker of the close.^''^ Formerly the action of trover and con- version lay,^^ now trespass lies,'''^ for depriving the tenant of his crop, considered as personalty. If, when the crop is ripe, the former tenant goes to the land with a man and machinery for the purpose of cutting it, and the present occupant of the premises positively denies access to him,*" or, the crop being cut and put in the landlord's barn, if the landlord locks his barn, and forbids the tenant to take it,*^ a conversion is committed. The fact that, nine days later, the succeeding tenant changes his mind and advises his predecessor that he may cut the crop, does not expunge the previous conversion. The owner is not "Forsythe v. Price, 8 Watts, 282, '''McKay v. Pearson, 6 Pa. Super. 34 Am. Deo. 465. Ct. .529. "Glark v. Harvey, 54 Pa. 142. The The tenant took the straw of the landlord wag held jointly liable. crop, when, in the opinion of the The tenant may be held solely landlord, he should not; the landlord liable. McKay v. Pearson, 6 Pa. brought trover. Craig v. Dale, 1 Super. Ct. 529. Watts & S. 509, 37 Am. Deo. 477; '■''Stultz v. Dickey, 5 Binn. 289, 6 Iddings v. I[agle, 2 Watts & S. 22. Am. Dec. 411; Biggs v. Brown, 2 "McKay v. Pearson, 6 Pa. Super. Serg. & R. 14. Ct. 529. ^Shaw V. Boioman, 91 Pa. 414; '^Ranh v. Bank, 5 Pa. 211 Demi v. Bossier, 1 Penr. & W. 224. Land. & Ten. 33. 514 LANDLORD AND TENANT. bound to accept tlie permission. If he does, and the crop has been damaged by the delay, he will be entitled to recover the difference between what would have been the value of the crop if cut when application to cut it was denied, and its lesser value, cut now.^- Besides tlie remedies mentioned, the tenant may re- plevy the crop, in the hands of the landlord or succeeding ten- ant, or the purchaser of the reversion at a judicial sale,*^ or, as the tenant has tlie right to the possession of the field so far as is necessary to enable him to harvest the crop and remove it, he can maintain trespass against one who enters, cuts, and takes away the crop.** 605. Origin of tenant's right.— In the earliest cases, the right of the tenant, when not expressed in the lease, was held to bo founded on a custom which, as a fact, had to be proved by wit- nesses. In StuUz V. Dichey,*^ in 1812, "many witnesses" swore to such a custom, as existing in the year 1804, and reference is there made to a case** arising in 1780, in which the custom was proved by several witnesses. "When the custom of a country,'" said Tilghman, Ch. J.,*^ "or of a particular place, is estab- lished, it may enter into the body of a contract without being inserted. ... In the nature of the thing, it is reasonable ''McKay v. Pearson, 6 Pa. Super, the lease forbidding the tenant's tak- Ct. 529. The refusal to allow the ing away the straw, the landlord tenant to take the crop is none the could obtain an injunction to pre- less a, conversion because the refuser vent its removal. In an action of gains nothing by it. trespass by the tenant, it is no de- '^Whorley v. Karper, 20 Pa. Super, fense that he was guilty of bad hus- Ct. 347; Yeager v. Oassidy, 16 Lane, bandry in planting the crop. He may L. Rev. 305, affirmed in 12 Pa. Super, be compelled to pay damages for bad Ct. 232, 13 York Legal Record, 141. husbandry, but does not forfeit the The landlord may replevy straw, crop. Clark v. Harvey, 54 Pa. 142. taken by the tenant in contravention "Dutton v. Wetmore, 10 Pa. Super, of the stipulation of the lease {Hunt Ct. 530. V. 8cott, 3 Pa. Co. Ct. 411) ; and the «5 Binn. 2S5, 6 Am. Dee. 411. purchaser of the reversion at a sher- "Diffedorffer v. Jones, 5 Binn. 289, iff's sale may bring replevin for the 6 Am. Dee. 413. crop. Mcllvaine v. Souders, 15 Lane. "Stidtz v. Dickey, 5 Binn. 285, 6 L. Rev. 371. Futhey, J., said, in Am. Dec. 411. Hunt V. 8cott, 3 Pa. Co. Ct. 411, that, WAY-GOING CROP AND EMBLEMENTS. 515 tliat wliere a lease commences in the spring of one year, and ends in the spring of another, the tenant should have the crop of winter grain sown by him the autumn before the lease ex- pired; otherwise he pays for the land one whole year without having the benefit of a winter crop. If the parties intend other- wise, it is easy to control the custom by an express provision in the lease." In the later cases, tlie courts recog-nized the tenant's right without any proof of a custom,"*" saying that it was a part of the common law of the state ;'*^ and, the trial judge having mentioned the right as being according to the custom of Penn- sylvania, Kennedy, J., remarked, "according to the custom thereof, or law thereof, tliey ought rather to have said,"^° and denied the right of a landlord to show a custom that though to the tenant belonged the way-going crop, the straw of it was ex- cepted, and belonged to the landlord. The lease may, it is scarcely necessary to state, expressly confer upon the tenant the privilege of taking the way-going crop,®-' and it may likewise deny that right ^^ A let land to B at $400 per year, ending April 1st, 1893. On December 16th, 1892, a lease for the next year was made at a rent of $-400, providing that B should have Y'hat crops the farm might produce, and "is to get all of the crops now sown and growing, but is to put out another crop of wheat in the fall of 1893 at his own cost, to equal the crop now sown." B continued from year to year in possession until April 1st, 1900. He was entitled to the way-going crop, the evidence not clearly showing a contrary intention of the parties.^^ 606. Emblements. — To the way-going crop the tenant for a ^Forsythe v. Price, 8 Watts, 282, Yeager v. Cassidy, 16 Lane. L. Eev. 34 Am. Dec. 465; Biggs v. Brown, 2 30.5; McKay v. Pearson, 6 Pa. Super. Serg. & R. 14. Ct. 529. *'8}iaw V. Boicman, 91 Pa. 414; ''^StuUz v. Dickey, 5 BiHn. 285, 6 McKay v. Pearson, 6 Pa. Super. Ct. Am. Dec. 411; Clark v. Harvey, 54 529. Pa. 142; Whorley v. Karper, 20 Pa. '"'Craig v. Dale, 1 Watts & S. 509, Super. Ct. 347. 37 Am. Dec. 477. "Whorley v. Karper, 20 Pa. Super. V. Clement, 40 Pa. 484; Ct. 347. 516 LANDLORD AND TENANT. definite term had no right, by the English common law, "Por the tenant knew," says Blackstone,'* "the expiration of his term, and therefore it was his own folly to sow what he could never reap the profits of." But, "If a tenant for his own life sows the lands and dies before harvest, his executors shall have the emblements or profits of the crop, for the estate was deter- mined by the act of God, and it is a maxim in the law that, Actus Dei nemini facit injuriam."^^ "Where the lease for years depends upon an uncertainty, as upon the death of a lessor, being himself only tenant for life, or being a husband seised in right of his wife; or, if the term of years be determinable upon a life or lives, — in all these cases, the estate for years not being certainly to expire at a time foreknown, but merely by the act of God, the tenant or his executors shall have the emblements in the same manner that a tenant for life or his executors shall be entitled thereto. "^^ 607. The nature of the lease.— The lease may be made to run until the death of the teiiant or of some other person, or imtil the lessor's will determines it. It may be made to last until the occurrence of some other event, equally uncertain. It may be for a definite time, but, because of the defeasibleness of the lessor's interest at any time, be liable to termination before the expiration of that time. It may be subject to conditions sub- sequent. It may be stated generally, that if a lease, the time of whose termination cannot be foreseen when a crop is put into the ground, comes to an end before the crop matures, the tenant, his assignee, or his executor, or administrator, will be entitled to the crop at its maturity, and, incidentally, to its being per- mitted to grow in the soil until it becomes ripe. Thus, a life tenant's executor will own the crop planted by him before his death, but still in the gromid when he dies. So, if tlie life ten- ant lets the land to another for a definite term of years, he can "2 Bl. Com. 145. "•2 Bl. Com. 145. "2 Bl. Com. 122. WAY-GOING CROP AND EMBLEMENTS. 517 safely plant, not only the crop which will mature within that term, but that also which, planted in the fall, will not ripen until after its end. To whatever crops his lessor's executors would have been entitled, the tenant will be entitled.^'' If the landlord's interest is sold in execution, after crops of the tenant have been sown, whether the execution has been issued before the sowing of the crop'"'' or not, the tenant may, nevertheless, take the crop, though his lease has determined by the will of the sheriff's vendee. The tenant at will owns crops sown before the lessor's will to terminate the tenure was made knoAvn.'^ If the lease for five years provides for its earlier termination in case of sale of the reversion and three months' notice to quit, and in the fall of the third year the reversion is sold and the tenant surrenders, whether with or without notice, at a time when there is a crop in the ground, the tenant will own this crop, though but little of it had been sown when he became aware of the sale. Knowledge of the sale is not equivalent to the notice.^" 608. Lease terminable by act of party. — The lease may be ter- minable by the act of the tenant. It may last until marriage, and he may marry.*-' It may be subject to a condition sub- sequent ; the tenant may violate the condition, and the landlord may re-enter, or, under a warrant in the lease, obtain a judgment in ejectment, and recover possession by a habere facias posses- sionem:^^ The lease may be surrendered by the tenant, or he may forfeit it.®^ In all such cases, the loss of the estate in the land involves the loss of the ownership of the crops. Distinction ■ must be made between the emblements of a life tenant, and the rent, though payable in kind, to the life tenant. His share, as "TSeiff v. Reiff, 64 Pa. 134. Of. "Bittinger v. Baker, 29 Pa. 66, 70 Borie v. Crissman, 82 Pa. 125. Am. Dec. 154; Waugh v. Waugh, 84 '•'Adams v. McKesson, 53 Pa. 81, Pa. 350, 24 Am. Rep. 191. 91 Am. Dec. 183. "^Hunter v. Jones, 7 Phila. 233. "Bittinger v. Baker, 29 Pa. 66, 70 ''Waugh v. Waugh, 84 Pa. 350, 24 Am. Dec. 154. Am. Eep. 191. '"Comfort V. Dunoan, 1 Miles (Pa.) 229. 518 LANDLORD AND TENANT. landlord, of the crops is rent, and on his death, as rent, passes, if it be not then due, to the reversioner or remainderman, as well as to the life tenant's executor or administrator, subject to ap' portionment.^^i 609. Nature of the crops.— "The vegetable chattels called em- blements," says Read, J., "are the com and other growth of the earth which are produced annually; not spontaneously, but by labor and industry, and thence are called, fructus industriales." In this class, Chapman, J., admitted that corn, wheat, rye, oats, buckwheat, potatoes, hemp, Hungarian grass, flax, and millet belong. He denied, however, that clover, timothy, and meadow grass are of it. The former are annual products ; when they are cut the root dies. But clover does not mature until the second sunnner, timothy not until the third. The meadow grass is per- ennial. The suggestion that the representative of the life tenant, or a tenant under him might, two or three years after the end of the term by the life tenant's death, enter and cut these grasses, or turn cattle into the fields where they are grown, in order to graze upon them, would seem abhorrent. "But it would be arbi- trary to say that these grasses could be taken the first year after the close of the term, but not in later years." If the tenant is entitled to the first yield of grass, why not to the second, third, and fourth, or until the root is exhausted ?" A life tenant hav- ing made three leases of the land to A for three successive years, the last of which ended on April 1st, 1869, died June 15th, 1868. There was then standing uncut on the premises mixed timothy and clover grass, timothy, and grass part meadow and part timothy. It was held that the life tenant's executor, had she been in possession of the land at her death, would not have been entitled to these grasses as emblements ; and therefore that her tenant was not entitled to them. They were properly cut and hauled away by the remainderman.^* Manure made by "JCf. Borie v. Grissman, 82 Pa. "Reiff v. Reiff, 64 Pa. 134. "The 125; Wa/Ufih V. Watigh, 84 Pa. 350, growing crop of grass, even if growu 24 Am. Rep. 191. WAY-GOING CROP AND EMBLEMENTS. 519 cattle that have been fed on the premises with the grain and straw raised on them is not an emblement.^^ 610. Crop in the ground at commencement of term. — Crops in the ground when the lease is made do not become the property of the lessee unless the lease so stipulates. Nor is it usual for the lease so to stipulate. The lease made in November may, how- ever, provide that the tenant shall have one half of all the farm may produce from its date to the expiration of the term, and this would probably entitle the lessee to one half of the crop of wheat in the ground when the lease was made, and belonging to the lessor. It would, however, give no right to any portion of it if the landlord had previously sold it to another, who did not estop himself from asserting his ownership. If the prior pur- chaser of the crop knows of the making of the lease, and of its containing a sale of half of the crop to the lessee, and is present at the negotiation, it will be his duty to give notice to the lessee of his title ; but knowledge simply that a lease was being made would impose on him no duty to suspect that it would undertake to sell a portion of his crop to the lessee. The owner of the crop could maintain trespass against the lessee and any other, though an attorney at law, who, having a joint interest in it, counselled him to take and appropriate it.®® 611. Hay and fodder on the premises. — Hay and fodder on the premises at the time the lessee enters into possession do not be- come his unless the lease so stipulates. Perhaps a custom that they should, at his option, become his, provided that he compen- sated the lessor on removing from the premises, either in money from seed, and though ready to be "Pearson v. Friedensville Zinc Go. cut for hay," says Read, J., "cannot 1 Pa. Co. Ct. 660. Emblements are be taken as emblements; because, as here stated to be "products of the it is said, the improvement is not earth that grow yearly and are raised distinguishable from what is natural by annual expense and labor." product, although it may be increased "'Dution v. Wetmore, 10 Pa. Super, by cultivation." Ct. 530 Corn and potatoes are emblements. Hunter v. Jones, 7 Phila. 233. 520 LANDLORD AND TENANT. or in an equivalent amount of hay and fodder, would be valid, and if proven would be assumed to enter into the contract be- tween the parties. But a custom that they should become the lessee's absolutely would be "so wholly unreasonable that it could not be set up as a defense." It would be "a custom that the tenant may use the property of his landlord without making compensation. The tenant might, with equal propriety, have set up a custom that his landlord should pay his debts or give him his share of the crops." Hence, if, in the absence of any agreement, the tenant feeds to his cattle hay and cornstalks which were on the land when he entered, he vnll be compelled to pay their value in an appropriate action.®^ 612. Timber. — The right of the lessee with respect to timber growing on the premises may be regulated by the lease. The lease, e. g., may give to the tenant the privilege of "selling posts and rails from fallen or burnt timber, the removal of which may benefit the growing timber." This would give the right, when an extensive fire swept over the land, — a furnace property, — killing a large number of trees, to make posts and rails from these trees, and to sell them. If, by arrangement with the lessor, he sells this ruined timber, the lessee will be entitled to what he would have made, had he exercised his privilege of convert- ing it into posts and rails.^^ 613. Hay, straw, fodder. — The lessee's covenant may limit his right with respect to the crops raised by him. He may stipulate, e. g., that he will "not remove any hay ... or anything that can be converted into manure,"®^ or that all hay, straw, and corn fodder which may be raised from the premises are "to be consumed thereon" except an amount equal to what the tenant buys or brings upon the premises and uses there,'^° or that he will "Aneioalt v. Hummel, 109 Pa. 271. "Donnon v. Moore, 1 Chester Co. The custom was insufSoiently proved, Rep. 65. also. '"Sharpless v. Murphy, 7 Del. Co. "Stevens's Estate, 11 Lane. L. Rev. Rep. 22. 137. WAY-GOING CEOP AND EMBLEMENTS. 521 not sell any straw, hay, or fodder, but feed the same in the barn- yard, nor keep on the place more than fifteen cattle or four horses, he having the privilege of feeding a sufficient quantity of hay in the barn when the lease is made, to keep the stock until grass grows in the pasture, on condition that he leave an equal amount of hay in quantity and quality when he vacates the premises.''^ If, being notified by the lessor to quit, on account of nonpayment of the rent, the tenant vacates the prem- ises and takes off a quantity of the hay and corn fodder, in violation of his covenant, the lessor may recover it in replevin,''- or he may recover damages in assumpsit for the breach of the lessee's covenant. The measure of damages would, according to Waddell, J., be the value of the hay at the time of its removal. If, e. g., despite the lessee's covenant not to sell any hay, but to feed it in the barnyard, he removes some at the end of his term, the sum recoverable from him would not be the value of the manure, merely, that would have been made from the hay if fed on the farm, but the market value of the hay itself. ^^ On the other hand, Clayton, P. J., held, under a lease forbidding the sale or removal of any hay, straw, or corn fodder, that for a breach of this covenant, the lessee would have to pay the land- lord the value of manure only which the hay removed would have made, — that is, instead of $14 or $15 per ton, the value of the hay, $2 or $3 per ton of hay, the value of the manure that would have been made from it.^* "I'oMrejr V. Waiters, 5 Pa. Co. Ct. .$15 for every ton of hay, straw, or 127. corn-fodder, as liquidated damages. "Dojimora v. Moore, 1 Chester Co. This was held to be a penalty, and E,ep. 65. not enforceable. There was no diffi- '"Young v. Waiters, 5 Pa. Co. Ct. culty in ascertaining the actual dam- 127. ages. In Plumstead v. Conway, 2 '"Sharpless v. Murphy, 7 Del. Co. Del. Co. Rep. 43, the lessor, A, orally Rep. 22. The lease stipulated that promised the tenant, B, that all the for the violation of his agreement, straw and hay not consumed by the the tenant should forfeit and pay outgoing tenant should be left for B's 522 LANDLORD AND TENANT. use; the former to be converted Into manure and used on the farm, the latter to be fed on the farm, and B to pay for it at $10 per ton. A, for $46, allowed the outgoing tenant to sell all the hay and straw. B pur- chased 10 tons at $20 per ton. B's damages must be not less than $46. and as much more as the jury should find B had actually lost; but the measure of this damage was not the difference between $10 and $20 per ton, since B was not to get for $10 an absolute property in the hay, and since the outgoing tenant's leaving any was contingent. He might have fed it all to his stock. CHAPTEE XXIX. TRANSFER OF REVERSION DURING THE TERM. 614. Lease no obstacle. 615. Effect of transfer on rent. 616. Action for rent by assignee. 617. Transfer by death. 618. Transfer by death of life owner. 619. Transfer by sheriff's sale. 620. Election of sheriff's vendee to disaffirm. 621. Rent paid in advance. 622. Rent assigned before sheriff's sale. 623. Sheriff's sale of the landlord's share. 624. Attaching the rent. 62.5. Money-rent; effect of sheriff's sale on right to crop. 626. Other judicial sales. 627. No apportionment of rent between lessor and grantee. 628. When the alienee's title begins. 629. When rent matures. 630. Rent in kind, when payable. 631. Conveying part of reversion. 632. Effect of alienation of part on right of possession. 614. lease no obstacle. — The existence of a lease is no legal obstacle to the transfer by the lessor, pending it, of the reversion. The grantee will acquire^ the reversion, subject to the existing lease, if the lease is on record, or there is possession of the prem- ises under it. The lessee may assert all the rights conferred on him, or insist on the performance by the grantee of all the grant- or's covenants that run with the land. If, e. g., the lease gives the lessee the option to buy the premises in fee, and possession is held under it when the lessor grants the reversion, the lessee or his assignee may enforce his equity against the lessor's alienee.-' ^Kerr v. Day, 14 Pa. 112, 53 Am. Deo. 526. After A and B, tenants in 523 524 LANDLORD AND TENANT. 615. Eifect of transfer on rent. — When the landlord conveys his reversion during the term of a lease, the grantee acquires the land, subject, usually, to the lease ; but vs^hile he has no right as grantee to rent which has already become payable, though in fact not paid,^ he becomes entitled to all the rent which, by the terms of the lease, becomes payable after his ownership begins. If the rent, e. g.j is payable monthly, to the grantee becomes pay- able the first rent falling due after his acquisition, and all sub- sequent instalments.^ If the rent is payable quarterly, or semi- annually, or annually, to him becomes payable the first quar- ter's or half year's or year's rent falling due after he be- comes owner. If quarterly rent is payable in advance, and being due, an instalment for the next three months is paid on April 1st, one who obtains a conveyance of the reversion on the following May 1st will be entitled to no rent for the quarter ending June 30th. He will not be allowed to withhold from the purchase money two thirds of the rent paid to his grantor on April 1st.* 616. Action for rent by assignee. — "Whether, at common law, the alienee of the reversion could maintain, in his own name, an action on the covenant in the lease for rent, or not, this right was secured by the statute, 32 Hen. VIII., chap. 34, which is in force in Pennsylvania. Under this statute the assignee of the reversion may, for rent becoming due after his acquisition, bring covenant against the lessee upon such express covenants as run with the estate in the land demised, and the covenant for common, have made a lease to C, assign his right to the already due with option to purchase, B transfers rent, to the grantee, who then, as his interest in the land to A. A sub- assignee, may recover such rent, sequently transfers the reversion to 'Seiohold v. Comfort, 2 Clark X. C transfers his lessee's interests (Pa.) 331; No. 2 Assist. 222. 6f)l; Doyle v. Longstreth, 6 Pa. '"Doyle y. Longstreth, 6 Fa.. Su^r. Super. Ct. 475. Cf. Martin's Appeal, Ct. 475. TRANSFER OF REVERSION DURING TERM. 541 now by him to have been the proper abatement for the years 1888, 1889, 1890.SO 632. Effect of alienation of part on right of possession. — The alienation by the lessor of an undivided part of the land does not prevent his recovery of the entire possession at the end of the lease, unless the tenant has attorned to the grantee, or has accepted a new lease from the grantee, or unless the grantee defends the action for the lessee. And if A, owning one undi- vided seventh, but as agent for the owner of the other six sev- enths, makes a lease in which, not designating any princi- pals, he styles himself "Andrew M. Martin, agent," and he sub- sequently conveys his own undivided seventh, he may, as if he had been sole owner, recover the whole possession at the end of the lease, when, had he been sole owner, he might recover it.*^ A contract to convey a physical portion of the premises will not deprive the lessor of the right to insist on a condition for forfeit- ing the lessee's interest, if the tenant has never taken posses- sion.®^ If four coteuants make a lease for twenty years of oil land, upon the share of one of whom there is a lien, the lease is not valid as against the purchaser under this lien of the one fourth. But, if this purchaser makes, with the owner of the other three shares, an amicable partition, under which a physi- cal part of the premises is allotted to him in severalty, the parti- tion is not valid as against the lessee, unless he was a party to it. He has a right, notwithstanding it, to the possession of three undivided fourths.®^ '"Doyle V. Longstreth, 6 Pa. Super. ^Bolt y. Martin, 51 Pa. 499. Ct. 475. But the mere fact that an "Carnegie Natural Gas Go. v. Phil- abatement of $50 only was made adelphia Co. 158 Pa. 317, 27 Atl. for three years, and acquiesced in by 951. the tenants, does not preclude them ''Duke v. Hague, 107 Pa. 57. from asserting for the future years that the abatement should be larger. CHAPTEE XXX. RECOVERY OF POSSESSION AT END OF TERM. ACT OF MARCH 21st, 1772 633. Recovery of possession without legal process. 634. Recovery by ejectment. 635. Act 21st March, 1772. 636. The justices. 637. The complaint. 638. Preliminary proof. 639. The warrant; return day. 640. Warrant; service. 641. The jurors. 642. Jurors; by whom selected. 643. Failure of the summoned to appear and serve. 644. Second jury. 645. Continuance of proceedings. 646. Finality of proceedings. 647. Conditions under which proceedings are permissible. 648. Lease from mortgagee to mortgagor. 649. Kind of premises. 650. Duration of the lease. 651. The term must have ended. 652. The plaintiff. 653. The defendant. 654. Kind of rent. 655. Peaceable possession, 656. Notice to quit. 657. Waiver of notice. 658. Length of notice. 659. Notice, when term is for a definite time. 660. Notice; tenancy from year to year. 661. How soon proceedings may begiiu 662. Certiorari. 663. Review on certiorari. 664. The record. 665. Form of the inquisition. 666. Evidence extraneous to record. 667. Damages. 668. Costa. 542 RECOVERY OF POSSESSION AT END OF TERM. 64? 669. The judgment. 670. Warrant to deliver possession. 671. Review in appellate court. 672. Arresting the proceedings before the justices. 673. How this arrest is effected. 674. Cause for arresting. 675. Cause, continued. 676. Expiration of lessor's title. 677. Proceedings after affidavit and recognizance. 633. Recovery of possession without legal process. — It is the duty of the tenant to give up the possession, at the end of the term, whether he expressly covenants to do so or not. He does not need to seek the lessor, and notify him that he intends to, or is going to, leave the premises, or that he is leaving or has left them, but he must withdraw his property and all obstructions to the assumption of control by the landlord.^ The landlord would have a right to enter and remove the tenant's goods at the end of the lease, and if, in doing so, he set them on other premises belonging to himself, because they would there be less inconveni- ent to him, he would not be liable as for a conversion of them.^ The landlord may forcibly dispossess the tenant as soon as the lease expires if he refuses to leave. This he may do, by night or day, but he must use no more force than is necessary, and do no wanton damage. The tenant is bound to remove his property on request, without regard to his convenience, and to find a place for it as he may. If, on his failure to do so, the landlord removes the goods, he will not be liable in trespass, except for the consequence of excessive force or wanton injury.^ Finding the door locked, the lessor may enter through a window and then open the door and put the goods out.^ ^Cairns v. Llewellyn, 2 Pa. Super. 'Overdeer v. Lciois, 1 Watts & S. Ct. .599. 90, 37 Am. Dec. 440. 'WheelocJc v. Fuellhart, 158 Pa. 'Kellam v. Janson, 17 Pa. 467. Cf. 359, 27 Atl. 997. The tenant could Leidy v. Proctor, 97 Pa. 490; Frick take the goods from the place where v. Fisous, 164 Pa. 623, 30 Atl. 515. the lessor put them, without becom- ing a trespasser. 544 LANDLORD AND TENANT. G34. Recovery by ejectment.— At the expiration of the period during which, according to the terms of the lease, the tenant has a right to the possession, the lessor may resort to the action of ejectment.'' If the tenant's right is not terminable except by notice, the proper notice must, of course, have been given before resort can be successfully had to the ejectment,* but if it does terminate without notice, the notice does not need to have been given, in order to maintain ejectment.'' During the term the lessor cannot recover the possession by ejectment, unless there has been a forfeiture.^ 635. Act 21st March, 1772.— The 12th section of the act of March 21st, 1772,® furnishes a remedy to the landlord for the relatively prompt recovery of the possession after the expiration of the term of the lease. He may complain before two justices, who, with the aid of a jury of twelve men, ascertain the truth of his statements, and if they find them sufficient, award a writ by means of which he is put into possession of the premises. ISTor is this remedy superseded by that of the act of December 14th, 1863.1° 636. The justices.— It shall be lawful, says the act, for the lessor to complain "to any two justices of the city, town, or county where the demised premises are situate." The city re- corder and an alderman of the city of Chester are justices in the sense of this act, since, by virtue of their offices, they are justices of the peace.-'-' The 12th section of the act of February ^Evans v. Bastings, 9 Pa. 273; in such cases. Stroup v. M'Glure, 4 Bedford v. M'Elherron, 2 Serg. & E. Yeates 523. For the object of this 48; Alden v. Lee, 1 Yeates, 160. act, vide De Coursey v. Guarantee 'Evans v. Hastings, 9 Pa. 273; Trust d 8. D. Co. 81 Fn. 217 ; Logan Lnr/a-n v. Quigley (Pa.) 10 Cent. Rep. v. Uerron, 8 Serg. & R. 459. 403, 11 Atl. 92. The lessor may pursue ejectment, ^ 31 cGanna V. Johnston, IQ Fa. iSi; if he prefers. Newell v. Gibhs, 1 MacGregor v. Rawle, 57 Pa. 184. Watts & S. 496. 'Penn v. Divellin, 2 Yeates, 309; ^"Duff v. Fitzwater, 54 Pa. 224; Bartley v. Phillips, 165 Pa. 325, 30 Buchanan v. Baxter, 67 Pa. 348. Atl. 842. ^^WUmington S. 8. Go. v. Eaas, ' 1 Pepper & L. Digest, 2645; 1 Sm. 151 Pa. 113, 25 Atl. 85. But in Com. L. 370. The justices are never sworn RECOVERY OF POSSESSION AT END OF TERM. 545 5th, 1875,*^ enacts that the jurisdiction of each magistrate in the city of Philadelphia shall extend throughout the city and county, and "where, by law, two aldermen are now required to hear and determine any matter brought before them, the same jurisdiction shall be exercised by one magistrate." This act does not violate that provision of the Constitution which declarer that the jurisdiction of magistrates in Philadelphia shall not exceed $100, since it is not the justice of the peace or magistrate, but it is the jurors, who, under the act of March 21st, 177:!, ascertain the damages recoverable by the landlord ; nor in othcv respects does the act of 1875 conflict with the Constitr.tioii. Hence, one magistrate in Philadelphia may entertain the land- lord's complaint, and restore to him possession, under the act of 1772.1=' 637. The complaint. — The lessor may "complain" to the jus- tices of the refusal of the tenant to surrender the possession at the expiration of the lease, and upon due proof made before the said justices, that the lessor had been quietly and peaceably pos- sessed of the lands or tenements demanded, that he demised the same, under certain rents, to the tenant now in possession or to some person under whom the tenant is now in possession, and that the term is fully ended, they are required to issue a warrant to the sheriff of the county. The complaint doubtless should be in writing, and should be supported by an affidavit.^* If it is signed "Nelson Gavit, per A. F. Blair, agent," and below the signature is the jurat "Sworn before us, this sixth day of V. Bemcorth, 145 Pa. 172, 22 Atl. "2 Pepper & Lewis Digest, 2854; 820, the act of March 24th, 1877, P. P. L. 50. L. 47, which avithorizes cities of not "Gallagher v. Maclean, 193 Pa. less tlian 8,000, nor more than 20,- 583, 45 Atl. 76, Affirming 7 Pa. 000, population to elect a, city re- Super. Ct. 408. corder, was, in quo warranto pro- "Gavit v. Rail, 75 Pa. 363 ; Gun- ceedings, held unconstitutional. AI- nivriham v. Gardner, 4 Watts & S. dermen in Philadelphia, prior to the 120. A form is found in Gavit v. present Constitution, acted as jus- Hall, 75 Pa. 363. tices. Gavit v. Ball, 75 Pa. 363. Land. & Ten. 35. 546 LANDLORD AND TENANT. August, A. D. 1872," signed by the two justices, it sufficiently appears that the affidavit was made by the person who signed the complaint; viz., by Blair, as agent for Gavit "I see not," said Mercur, J., "how that fact could have been averred in more- unequivocal language."^^ The complaint should aver the facti which, by the terms of the statute, confer the jurisdiction on tho- justices to award restitution of the premises. 638. Preliminary proof.— It is not the duty of the justices, on the mere exhibition of a complaint of due form and conteii!. to issue the warrant. They are to issue the warrant "upon due- proof made before" them, that, at the making of the lease, the lessor was quietly and peaceably possessed of the land; that he demised it, on certain rent, to the present occupant, or to one- under whom the present occupant claims, and that the term is fully ended. The proof might be made by the landlord's affida- vit, even when the general law disqualified him as a witness in his own behalf; at least, that it had been so mrde was no rea- son for reversing the decision of the justices on certiorari.^" "It was not material," said Huston, J., "on what testimony the precept issued. . . . The inquest and justices, so far a& the latter are concerned, are to decide on evidence given before- them, and on nothing but what is proved before them, . . . for myself I would say, showing the [written] lease, if there is- one, or swearing to a parol demise by the landlord, if the lease- was by parol, would be due proof, as the plaintiff's oath of debt will hold a defendant to bail." The proof might be made by the affidavit of the agent-''^ of the landlord, or, sinoe the removal of disqualifications on the ground of interest, by the landlord him- self, or by his successor in the ownership of the reversion. 639. The warrant ; return day. — On the making of proof of the truth of the complaint, it is the duty of the justices. "Oavit V. Hall, 75 Pa. 363. "Oavit v. Ball, 75 Pa. 363. "Cunningham v. Gardner, 4 Watts & S. 120. ' KECOVERY OF POSSESSION AT END OF TERM. 547 "forthwith to issue tlieir warrant, in nature of a summons, di- rected to the sheriff of the county, tliereby commanding the sheriff to summon twelve substantial freeholders to appear be- fore the said justices within four days next after issuing the said summons^ and also to summon the lessee or tenant." The warrant is to be made returnable Avithin four days. But though a longer time for its return is prescribed in it, the pro- ceedings will probably not, on that account, be vitiated ; certain- ly not, if the defendant appears and makes a defense. Thus, the warrant issuing October 15th, and made returnable October 20th,-'* or issuing June Ttli, returnable June 13th,^® or issuing September 30th, returnable October 6th, ^° the irregularity was cured by the defendant's appearance. The act allows to the justices a discretion as to the time for the return of the warrant, provided that it do not exceed four days. The error, if thei'e be any, 'of allowing too short a time for the return, is condoned by the defendant's appearance and defense on the merits; e. g., when the summons issued April 3rd, and was returnable April oth,^^ or issued August 28th, and was returnable August 31st.^^ If it ajjpeared that witnesses material to the tenant could not be procured on the return day, the justices would be able to adjourn the hearing. 640. Warrant; service. — The justices, by their warrant, sum- mons, or precept, direct the sheriff to summon not only the twelve jurors, but also the lessee, or tenant, or other person claiming or coming into possession under the said lessee or ten- ant, at the same time (that is, at the time at which the jurors are to appear) to appear before them. It is the object of the law that the service shall be made in such a manner that the person in ^'Stroup V. U'Olure, 4 Yeates, 523. '^Eower v. Erider, 16 Serg. & R. ^'Blashford v. Duncan, 2 Serg. & 43. R. 480. ^'Horner v. Wetherill, 19 W. N. C. '■"Gallagher v. Maclean, 7 Pa. 197. Super. Ct. 408, Affirmed in 193 Pa. 583, 45 Atl. 76. 548 LANDLORD AND TEISANT. actual possession of the premises shall have notice of the sum- mons. Service on the demised premises upon the person in pos- session seems to be contemplated. The premises being a theatre, not the tenant, Fox, but his agent, Gilmore, occupied it. The sheriff returned that he summoned Fox "by leaving a true and attested copy of the within writ on the premises within de- scribed, with William J. Gilmore, his agent, and making known to him tlie contents thereof." The service was sufficient, and Fox was bound by the decision of the justices, though he did not appear before them.^^ A frequent return of service is served by leaving a true and attested copy of the writ at the dwelling house of which the demised premises consist, with an adult mem- ber of the tenant's familj-.^* 641. The jurors. — The persons to be summoned as jurors arc described in the act as "twelve substantial freeholders." It i^ for the sheriff to ascertain whether the men whom he selects are freeholders or not. He should, in his return, state whether they are freeholders. If he does not so state, if, e. g., he states, "T have summoned twelve good and laAvful men of my bailiwick," it will be assumed, on certiorari, that they were freeholders, if the "record of the magistrate" avers that they were. It will be presumed that the omission in the sheriff's return was corrected by sufficient evidence dehors, to justify the averment of rec- ord.^^ Indeed, it is held, on writ of error to the affirmance by the common pleas, on certiorari, of the judgment of the justices, that, as no bill of exception lies in the proceeding before the jus- tices, the appellate court cannot know whether all the jurors were freeholders.^" The sheriff should, possibly, name in his return -■'Watts V, Fox, 64 Pa. 336. sheriff had not returned the jurors '"Mullin's Appeal (Pa.) 2 Cent, to be freeholders, and though his de- Rep. 843, 5 Atl. 738. mand that the jurors be sworn as ''Miillin's Appeal (Pa.) 2 Cent, to their competency was disallowed Rep. 843, 5 Atl. 738. This was so by the justices. though the tenant objected, at the -'McMillau v. Graham. 4 Pa. 140. Iiearin" before the justices, that the In the common pleas on the cer- jaECOVERY OF POSSESSION AT END OF TERM. 549 the jurors selected by him. If he does not, but contents him- self with saying that he has summoned "twelve substantial free- holders," and the inquisition, which is a part of the record, names twelve jurors, on certiorari it will be assumed that they are the persons whom the sheriff selected and meant by his re- turn. If the defendant at the trial was not satisfied of their identity, he should have challenged the array, or have made some objection before the jury was SM'om. "The maxim, 'Cmnia prcesumuniur rite esse acta,' applies with full force to these of- ficial acts. "2' 642. Jurors; by whom selected. — The selection of jurors is a judicial act, and it is the duty of the sheriff not simply to sura men, but to select, the twelve freeholders. Although the sum- moning might, after selection, be done by deputy, the selection itself cannot be done by deputy,^* not even by the sworn per- manent deputy sheriff.^® Hence, the return to the writ being made by the deputy sheriff, "so answers Charles P. Maguire, deputy sheriff; Peter Lyle, sheriff," — the court of common pleas, on certiorari, reversed the judgment of the justices, Alli- son, J., remarking: "The return to the whole proceeding is that the deputy performed the entire duty, which the supreme court say can only be performed by the sheriff himself, and the sheriff has appended his name to the return below that of Maguire, as if by way of indorsement of what the deputy had done. If a deputy cannot aid the sheriff to the extent of selecting and mak- ing out a list of names for his principal, from which the sheriff tiorari, depositions showed that one gen v. Allegheny County, 204 Pa. of the jurors was not a freeholder. .501, 54 Atl. 281. Yet, in Bhoads v. Wesner, 1 Woodw. "Ayres v. Novmger, 8 Pa. 412. Dec. 79, on certiorari, the judgment "Pennsylvania R. Co. v. Heister, 8 was reversed because several jurors Pa. 445. In Ayres v. Novinger, 8 were not landowners. Pa. 412, the same judge had ex- ^''Gavit V. Hall, 75 Pa. 363. How pressed the opinion that the swoni trustworthy the jurors are may be deputy sheriff could select tlit jii seen in DeCoursey v. Guarantee rors. Tru,st & 8. D. Co. 81 Pa. 217; Juer- 550 LANDLORD AND TENANT. may summon the requisite number of freeholders, much less can he alone select, summon, and make return, or join with the sher- iff in the performance of that duty."^" But, the record not shoAving a selection or summoning of jurors by an improper person, the court of common pleas on certiorari cannot, in the absence of an allegation of fraud, hear depositions for the pur- pose of discovering the agency therein of an improper person. It was erroneous, e. g., for the court to hear evidence that the sher- iff deputized X, selected as one of the jurors, to select three others.^^ Besides the rule excluding evidence extraneous to the record, on certiorari, the principle of waiver precludes taking advantage of irregularity in the selection of jurors. The tenant having been personally served, and having attended at the hear- ing, and gone on to trial on the merits, wAH be held to have waived all errors and irregularities in the selection and summon- ing of jurors.^^ 643. Failure of the summoned to appear and serve. — If any of the jurors fail to attend at the place and time indicated in the summons, or if, after being sworn, they fail to appear at the hearing, their places can be supplied without a new warrant, possibly, by a selection by the sheriff of substitutes. In one • case, after being sworn, two failed to appear. Two others were selected by the sheriff, and sworn.^^ In another, the jurors being ^UcMullen v. Orr, 8 Phila. 342. 843, 5 Atl. 738, one of the jurors who '^Wistar v. Ollis, 77 Pa. 291. In had been summoned not appearing, Ayres v. Novinger, 8 Pa. 412, the the deputy sheriff asked a bystander record showed that one juror was to serve. The tenant then and there deputed to select the rest, and a dep- objected to this juror, but, on certio- osition showed that this was a spe- rari, the judgment was affirmed, be- cial deputation at the request of the cause of the inadmissibility of parol landlord's attorney. It was held er- e\«idence, possibly. It does not ap- ror for the common pleas on certi- pear whether the record showed tha orari not to have reversed. This was facts. a "clear case of fraud on the part of '-"White v. Arthurs, 24 Pa. 96. But the landlord," says Mercur, J., in subsequently the whole jury was dis- Wistar V. Ollis, 77 Pa. 291. charged, and a new jury summoned. "Wistar v. Ollis, 77 Pa. 291. In Cf. Pennell v. Percival, 13 Pa. 197. MiilUn's Appeal (Pa.) 2 Cent. Rep. RECOVERY OF POSSESSION AT END OF TERM. 551 «alled, at the meeting on the return day one of them did not answer and the deputy sheriff selected a bystander in his ,«tead.^* The irregularity of the proceeding could not be set up, on a certiorari. 644. Second jury. — For various causes, a new jury may be- ■come necessary. It will be regTilar, after the jury are sworn, if one or more absent themselves at any stage of the proceedings, and refuse to go further, to discharge all the jurors, and sum- ^mon a new jury.*^ If, after hearing the evidence, one of the jurors refuses to sign the inquisition, they may be discharged, and, without a new complaint, a new venire may issue, and an- other jury be convened.^'' A formal discharge of the jurors seems to be unnecessary. After a jury had heard the evidence and had begun their deliberations they adjourned, to meet at the same place five days later. Two days after the adjournment, one of the justices discharged them and entered in his docket the fact that "not agreeing," they had been discharged. He com- municated this discharge to but four of them. On the day to which they had adjourned, eight of the jurors met to make up the verdict, when the justice told them that he had discharged them. Two days before this, that is, the day following that on which the justice entered in his docket his discharge of the ju- rors, a new precept issued to the sheriff, without any new com- plaint, and the new jury met and decided in favor of the plain- tiff. Says Lewis, J. : "And where the two justices unite in is- suing a new precept for another jury, and the new jury is sworn, and the parties appear, and the cause is finally tried before the last jury, this is an effectual discharge of the jurors previously sworn in the case."^'^ 645. Continuance of proceedings. — For various causes, the "MulUn's Appeal (Pa.) 2 Cent. ^'Cunningham v. Gardner, 4 Wattf? Rep. 843, 5 Atl. 738. & S. 120; White v. Arthurs, 24 Pa. ''White V. Arthurs, 24 Pa. 96; 96. Pennell v. Perdval, 13 Pa. 197. "White v. Arthurs, 24 Pa. 96. 552 LANDLORD AND TENANT. justices may continue the hearing. The fact that the tenant ii? not represented by counsel will not make it error to deny such continuance,^^ but the sickness of the attorney on whom the ten- ant has been depending is a cause for which the justices should continue. "When, by no fault of their own, parties are found to be unrepresented, a due regard for the rights of suitors would require that an honest application for continuance for this rea- son should be respected." ISTor is it right to condition the con- tinuance on the tenant's prepaying costs. By so doing the jurj' and justices would exact pay for their own services before the termination of the cause.^^ The absence of a juror, or of one of the justices, would justify and require a continuance.*" Time enough for the procurement of distant witnesses should be al- lowed, on the application of the party, supported by his affida- vit If it is not, on certiorari proof of the refusal may be made by affidavit, and the court may reverse.** 646. Finality of proceedings. — If the inquisition finds in fa- vor of the tenant, no judgment is given for him,*^ and the deci- sion is no bar to a subsequent proceeding at any time by the land- lord for the recovery of the premises,*^ nor indeed is it evidence in favor of the tenant.** Landlords, says Rogers, J., "may re- new the complaint before other justices, until a more subservient jury can be empaneled."*** As the tenant can make no use of the decision in his favor, in any subsequent litigation between "Boyer v. Striclcler, 1 Docket, 35. 446, the justices gave what reads like ^'McMullen v. Orr, 8 Phila. 342. a judgment. On proof hy affidavit of the refusal of "Neumoyer v. Andreas, 57 Pa. a continuance except on such eondi- 446; White v. Arthurs, 24 Pa. 96; tion, the court of common pleas will, Galhraith v. Black, 4 Serg. & K. 207; on certiorari, reverse the judgment Ayres v. Novinger, 8 Pa. 412. against the tenant. "Neumoyer v. Andreas, 57 Pa. '"McMullen v. Orr, 8 Phila. 342. 446 ; Oalbraith v. Black, 4 Serg. & R. "Stewart v. Martin, 1 Yeates, 49. 212. "Oalbraith v. Black, 4 Serg. & R. "nAyres v. Novinger, 8 Pa. 412. 207; White v. Arthurs, 24 Pa. 96. But see Marstcller v. Marsteller, 132 The justices, in the latter case, did Pa. 517, 19 Am. St. Rep. 604, 19 Atl. not sign the report for the defendant. 344. But in Neumoyer v. Andreas, 57 Pa. EECOVERY OF POSSESSION AT END OF TERM. 55a; the landlord and himself, involving the same questions, the de- cision in favor of the landlord, while evidence in subsequent liti- gation of the facts in favor of the landlord, is not a bar to a subsequent denial of them by the tenant.*^ In the trial in the common pleas, after the transfer of the cause from the justices, under the 13th section of the act of March 21, 1772, evidence- that there had been a previous proceeding before justices, iu which the decision had been for the tenant, is not admissible.*" The decision of the justices and jurors that the term had fulh ended is conclusive, so that, after the sheriff has put the tenant out of possession, he cannot maintain trespass against the land- lord for an eviction, on the ground that the lease, as actually made, provided for a renewal of the term, which provision, omit- ted by mistake from the written lease, the jurors refused or failed to recognize.*'^ 647. Conditions under which proceedings are permissible. — "Where any person or persons in this province," says the 12th section of the act of March 21, 1772,** "having leased or demised any lands or tenements to any person or persons for a term of one or more years or at will, paying certain rents," shall be de- sirous of repossessing himself of his estate, shall the remedy fur- nished be available. There must, then, be a lease or demise. And the demise must be of the ordinary sort. The act must be- restrained to tenancies whose termination is independent of a contingency. If the tenant has, by the terms of the contract, a right to acquire the land, and whether he has acquired it in- volves the adjustment of a complicated account and a considera- "Galhraith v. Black, 4 Serg. & R. under the lease, in consequence of a 212. fraudulent conspiracy of the land- '■'Neumoyer v. Andreas, 57 Pa. 446. lord, the preliminary injunction "Juergen v. Allegheny County, against proceeding under the act of 204 Pa. 501, 54 At). 281. 1772, to eject the tenant, was con- Tlie tenant averring in a bill in tinued until final hearing. Denny v, equity that he failed to notify the Kress, 2 Blair, 345. landlord of his election to hold over, "1 Pepper & L. Digest, 2015, 554 LANDLORD AND TENANT. tion of the whole law of tender as equivalent to actual perform- ance, the case does not fall under the jurisdiction of the jus- tices." 648. lease from mortgagee to mortgagor. — A, having an equi- table interest in land, conditioned to become perfect on his main- taining for life a certain person, and paying to another $60 per year, during the life of the payee, transferred the land to B, as a security for B's undertaking for the performance of these du- ties by A, and B, as mortgagee in possession, leased the land to A for t\yo years, A to deliver to B one half of the hay, to pay the taxes, to. make two fences, to save the grass. The right of B was to determine at any time on A's repaying him whatever he might have paid out on account of A's liability, and if, at the end of the two years, A repaid B in full, B was to reconvey the prem- ises. The relation between A and B was not such that B could, on A's failure to surrender the possession, after the two years, fesort to the proceeding furnished by the act of 1772, to regain possession. 649. Kind of premises. — Any sort of premises may be the sub- ject of the lease: a theatre,'''' ore land,®^ a store and dwelling house,^- a house. ^'^ 650. Duration of the lease. — The duration of the lease is de- scribed by the words "for a term of one or more years, or at will." These words include a term for less than one year, e. g., for the period between August 10, 1803, and April 1, 1804,^* for twelve days."'' A lease for one year^^ is within the very '^Steel V. Thompson, 3 Penr & W. "White v. Arthurs, 24 Pa. 96. 34. The case was "appealed" to the "Shaffer v. Sutton, 5 Binn. 229. common pleas, and there it was de- ''^Scott v. Fuller, 3 Penr. &, W. 55. oided that A had entitled himself to The application of the remedy was a reconveyance. denied, because the proper rent had '''Watts V. Fox, 64 Pa. 336. not been reserved. "Veumoyer v. Andreas, 57 Pa. "Gavit v. Ball, 75 Pa. 363; TT"ii- 446. mington 8. S. Co. v. Haas, 131 Pa. '•-'Neu:eU v. Gihhs, 1 Watts & S. 113,' 25 Atl. 85; White v. Arthurs, 496; Buchanan v. Baxter, 67 Pa. 24 Pa. 96; Logan v. Jlerron, 8 Serg. 348. & R. 459. RECOVERY OF POSSESSION AT END OF TERM. 555 words of the act ; as is one for a longer period.'^^ A lease "at will" is within the act. A strict tenancy at will is rare. It exists in a majority of cases "only nominally, and is, in fact, a tenancy from year to year;"'* and tenancies from year to year are within the remedy of the act of 1772.^* Though it is said by Gibson, J., that tlie term must be one "whose termination is independent of a contingency," the act of 1772 was tacitly as- sumed, in Lloyd v. Cozens,^^ to be applicable to a lease from year to year which was subject to become null and void if any quarter's rent should remain due for ten days. While, in Wil- mington S. S. Co. V. Haas,'^^ the court, finding, on consulting the lease, which was not set out in the record, that, though for one year, it was liable, by its terms, to be terminated at anj time, on three months' notice, if the property should be sold, or if it, along with adjacent property of the landlord, should be leased, reversed the judgment of the justices. The supreme court reversed the reversal because the lease was not a part of the record, and because the abstract from the lease, given in the inquisition, did not "indicate that it in any manner depended on a contingency." Indeed, it is difiicult to see why the jurors might not as readily ascertain whether tnis contingent event had happened, as the lapse of the term, the giving of three months' notice, etc. The lease may be oraP" as well as written, and the term, though the lease be oral, may exceed three years.** '■''Brown v. Vanhorn, 1 Binn. 334, Gee v. Fessler, 1 Pa. St. 126, the de- note; yeumoyer v. Andreas, 57 Pa. mise was at will, authorizing the 446; Wtstar v. OlUs, 77 Pa. 291; tenant to make improvements, and Juerr/en v. Allegheny County, 204 remain in possession until he was re- Pa. 501, 54 Atl. 281. imbursed for his outlay. The pro- '''Logan v. Herron, 8 Serg. & R. eeedings were set aside because no 473; Glarh v. Smith, 25 Pa. 137. rent was reserved. "Fahnestock v. Faustenauer, 5 "''Broiim v. Vanhorn, 1 Binn. 334, Serg. & R. 174; Brown v. Vanhorn, note; Logan v. Herron, 8 Serg. & R. 1 Binn. 334, note; Logan v. Herron, 459. 8 Serg. & R. 473. "'Seunwyer v. Andreas, 57 Pa. '"2 Ashm. (Pa.) 131. 446. " 151 Pa. 113, 25 Atl. 85. In Mo- 656 LANDLORD AND TENANT. 651. The term must have ended.— If the lease gives the ten- ant the "privilege of re-leasing" sufficiently definite to be en-, foroeable, the les.see may probably avail himself of it, for the purpose of preventing eviction, until the end of the additional term.®* 652. The plaintiff. — "Any person or persons in this province," having demised lands, or "his or their heirs or assigns," are those to whom the remedy of the act of 1772 is furnished. The lessor may be a natural person, or a corporation: e. g., a church,*"^ a steamship company,®* or a county.*^ The lessor may himself be a tenant for years, and may have sublet the prem- ises.®''' Since the making of the lease, the reversion may have passed to another than the lessor, by grant,®* devise,®" inher- itance. ''® The grantee may be for life ; e. g.j A, leasing land to C for a year, at about the same time leases it to B for B's life,, subject to the lease to G. B may, at tlie expiration of the lease, institute tlie proceedings for recovery of possession;''^ as may executors appointed by the lessor, with power to sell and convey and dispose of the premises,''^ or, they being superseded, the ad- ministrator de bonis non^^ and the gtiardian of a minor heir of the deceased lessor.''* The conveyance of the reversion may "Juergen v. Allegheny County, "aSeicell v. Gibbs, 1 Watts & S- 204 Pa. 501, 54 Atl. 281. Not de- 496. cided whether, before the justice, the '^Deboxear v. Butler, 2 Grant, Cas. tenant could show that, by mistake, 417 ; Thamm v. Hamburg, 7 Phila. the written lease represented the 266. privilege of re-leasing to be "at an "MuUin's Appeal (Pa.) 2 Cent_ increased annual rent," not specify- Rep. 843, 5 Atl. 738 ; Watts v. Fox, ing the rent, whereas the terms, in- 64 Pa. 336; May v. Kendall, 8 Phila. eluding the rent, of the renewal, were 244. agreed upon. The decision of the '"Cunningham v. Gardner, 4 Watts justice in favor of the landlord was & S. 120. conclusive that there was no right of "White \. Arthurs, 24 Pa. 96. renewal. ''Watts v. Fox, 64 Pa. 336. '^Tfohly V. Germain Reformed Soc. ^^llullin's Appeal (Pa.) 2 Cent 2 Pa. St'. 293. Rep. 843, .5 Atl. 738. ''"Wilmington S. 8. Co. v. Haas, '^'Cunningham v. Gardner, 4 Watts. 151 Pa. 113, 25 Atl. 85. & S. 120. ^''-/uergen v. Allegheny Country, 204 Pa. 501, 54 Atl. 281. RECOVERY OF POSSESSION AT END OF TERM. 557 not take place until after the giving of the notice to quit, and the grantee may avail himself of tlie notice.'^'' A part of the prem- ises may be conveyed, since the making of the lease; e. g., the front of a lot to a depth, from the building line, of 11 feet The grantee of that part may begin the proceedings under the act of 1772 to recover the possession of it ;^^ but a landlord could not recover a part of the premises and compel the tenant to remain liable, as such, for rent for the residue. A remainderman to a life tenant is not an "assign" of the life tenant. Hence, if a life tenant leases the land for three years, with the privilege of remaining two years longer, and dies pending the term, the re- mainderman cannot proceed under the act of 1772. '''' 653. The defendant.— The 12th section of the act of March 21, 1772, on the complaint of the lessor, heir, or assign, that he has demised his land "to the then tenant in possession or some person or persons under whom such tenant claims or came into possession," directs the justices to issue a warrant to the slieriff, liommanding him, inter alia, to summon "tlie lessee, or tenant, or other person claiming or coming into possession under the said lessee or tenant," to appear before the justices. The as- signee of the lease may, therefore, be made defendant, and this is so, though the tenant, after making the assignment, surrenders the lease to the lessor.'^* It is unnecessary to say that, there be- ing two''® or more tenants, or assignees of the term, they all may be made defendants. 654. Kind of rent. — In order to qualify the lessor to resort to the remedy under consideration, the demise must have been to some person or persons, "paying certain rents." In his com- plaint to the justices, he must aver that he demised the premises 'VSiroMp V. M'Clure, 4 Yeates, 523; ^'Lloyd v. Cozens, 2 Ashm. (Pa.) .DeCourseif v. Guarantee Trust & 8. 131. .V. Co. 81 Pa. 217. "Wilmington S. S. Go. v. Haas, '"BeCoursey v. Guarantee Trust & 151 Pa. 113, 25 Atl. 85; Gallagher v. -8. D. Go. 81 Pa. 217. Maclean, 7 Pa. Super. Ct. 408; New- ^''May V. Kendall, 8 Phila. 244. ell v. Gihhs, 1 Watts & S. 496. 558 LANDLORD AND TENANT. "under certain rents," and the justices, before they may award the restoration of the possession of the premises to the complain- ant, must find, inter alia, that he demised them to the person in possession, or one under whom he claims, "at certain yearly or other rent." Some rent must be reserved. If none is, the jus- tices have no jurisdiction f but it need not be considerable. The reservation of $1 per year would be enough.^^ The rent must also be certain. It may be certain, though not reserved in words which define its quantity and quality; as, e. g., when it is sus- ceptible of certainty from extrinsic matters, so as to enable the landlord to recover it.''^ Thus, when the tenant was, as rent, to pay the taxes of the last preceding year, and to daub and chink the house, whose dimensions were certain, "There was," said Tilghman, Ch. J., "certainty in the rent; the taxes could be ex- actly ascertained [by a reference to the books of assessment] and the work to be done on the house was accurately described."^ Rent reserved in kind, e. g., one third of the grain, bay, etc., though its amount cannot be foreseen, would be esteemed certain, because a criterion by which- it can be ascertained is furnished. A royalty, e. g., 25 cents per ton of iron ore, would doubtless be "certain."*''' The demise, on the other hand, being for the term of twelve days, "under the rent of taking care of the grain of Ful- ler [the lessor], on the place, and keeping out the cattle," the rent was regarded as too uncertain to sustain a resort to the remedy of the act of 1772. "What grain and what cattle?" asks Gibson, Ch. J. "The gi-ain on the farm, doubtless. But that leaves the kind uncertain, — whether wheat, rye, biickwheat and oats, or pulse, barley, millet, spelt and Indian corn ; whether growing in the fields, or put up in shocks, or stowed away in barns, or de- posited in garners, and whether it were to be protected from cattle "Blashford v, Duncan, 2 Serg. & "Scott v. Fuller, 3 Penr. & W. 55. R. 480; DeCoursey v. Guarantee '"Shaffer v. Sutton, 5 Binn. 228. Tnixt d 8. D. Go. 81 Pa. 217; McGee "Seumoyer v. Andreas, 57 Pa. 446. V. Fcssler, 1 Pa. St. 126. "Blashford v. DuncoM, 2 Serg. & P., 480. RECOVERY OF POSSESSION AT END OF TERM. 559 only, or from vermin. The enclosures or places, too, out of which the cattle were to be kept, are altogether uncertain, — whether the stables, the meadows, the fields lying fallow or with grain in them, or the open grounds. ... It seems, there- fore, there was no reservation of anything that could be recovered by action, or enforced by a distress ; and that the landlord was not entitled to the summary remedy provided by the legisla- ture. "^° The tenant holding in consideration of his ser\'ices to the lessor, a church, as organist, foresinger, and sexton, this rent was too uncertain, because it could not be reduced to certainty by reference to a subject in existence at the time of the contract. The services were contingent, their quantity being ascertainable only "after actual performance."*'" In McGee v. Fessler,^'' A authorized B to build, at his own expense, a house of such ma- terial and dimensions as he pleased, on A's land, and after the house was finished, they were to determine how long B should re- main in possession, as compensation for his outlays. There was no agreement as to the yearly value of the land. "The rent," said Rogers, J., "if rent it may be called, was altogether uncer- tain ; nor was there anything by which it could be rendered cer- tain, except by the intervention of a jury. It would seem, there- fore, to be a case in which the legislature did not intend to give a siunmary jurisdiction." 655. Peaceable possession. — One of the averments of the com- plaint to be preferred to the justices is that "the said lessor or lessors had been quietly and peaceably possessed of the lands or tenements" demanded, and one of the facts to be found by the jus- tices before requiring the tenant to restore the premises to the "Scott V. Fuller, 3 Penr. & W. 55. *' 1 Pa. St. 126. In Boggs v. In Steel v. Thompson, 3 Penr. & W. Black, 1 Binn. 333, the tenant was 34, the tenant was to give one half to cut off the timber so as to clear of the hay raised on the place, to pay the land, put up fences, and pay the all the taxes, to make two fences, taxes. No discussion of the ques- No remarks on the nature of the rent tion. are made. '"Hohly V. German Reformed Soc, 2 Pa. St. 293. '560 LANDLORD AND TENANT. lessor is "that the lessor or lessors had been, possessed of the lands •or tenements in question, that he or they had demised the same." Peaceable possession by the landlord at the time of his making the lease seems, therefore, to be a prerequisite. Hence, when B \vas the owner, under articles of sale from A, and likewise in pos- session when he accepted a lease from X, whom he regarded as mortgagee of the land, to secure X from liabilities assumed for him, and X later obtained the legal title, at a sheriff's sale on the judgment, X was "destitute of that quiet and peaceable posses- sion which the law requires, at the date of the lease."** 656. Notice to quit. — When any person or persons, having leased land, "shall demand and require his or their lessee or ten- ant to remove from and leave the same, if the lessee or tenant shall refuse to comply therewith, in three months after such re- quest to him made,"** the proceedings to recover the possession may be commenced. The justices are to award restoration of possession to the landlord when, inter alia, they find "that de- mand had been made of the lessee or other person in possession as aforesaid, to leave the premises three months before such ap- plication to the said justices." The notice must be given by the landlord or his successor in the ownership of the reversion. It may, of course, be given by his agent, biit a notice in the agent's own name, and not indicating for whom, and that he is giving it with the authority of the principal, will be insufficient.®" The reversion having passed to two executors, a notice signed with the names of both, but by one of tlieni, will be sufficient."' When the notice comes from the assignee of the reversion, the tenant, if not already informed, should be advised of the fact "Hteel V. Thompson, 3 Penr. & W. The agent who sigiia the notice to ."4. It was said also that X was quit, being a justice, cannot act as "without even the color or pretense one of the two justices in the pro- of right" to the land. ceedings for recovery of the posses- '" Section 12, act March 21st, 1772. sion. Wislar v. Conroy, 1 Troubat "•Donaldson v. Likens, 7 Phila. & H. Pr. § 201. 1869. ■2o7. "Watts V. Fox, 64 Pa. 336. RECOVERY OF POSSESSION AT END OF TERM. 561 that he is the owner of the reversion. If, the lease having been made by Ely, the notice to quit from Donaldson does not state why he gives the notice, the tenant, not shown to have known of a transfer of the reversion to Donaldson, may safely ignore the notice ;^^ but when the record of the justices' proceedings avers that "Thamm, assignee, gave the notice to quit," the no- tice itself not being embodied in the record, "the legal inference is that he gave the notice as assignee ;" that is, apparently, that he professed in the notice to be assignee, and as such he gave the notice.®^ The notice need not be written.®* It should be absolute; not propose the alternative of paying an increased rent or quitting.®' The notice is given to the person in posses- sion, when it is the purpose of the plaintiff to dispossess ; hence, to the assignee of the term."" It must be to quit the whole premises. Neitlier the lessor nor his grantee of a portion of the premises can, by giving notice to quit this portion, entitle him- self to the possession of this portion.®^ 657. Waiver of notice. — The right of the tenant to insist on the notice, as a precondition to his being expelled on a judgment of the justices, he may waive, and he does this if, in the lease for a year, he covenants at the end of the term to give up quiet and peaceable possession "without further notice."®* But, in Gault '^Donaldson, v. Likens, 7 Phila. "Thamm v. Hamhurg, 7 Pliila. 257. The decision of the justices be- 266. ing for the plaintiff, and the defend- "OWeill v. Cahill, 2 Brewst. (Pa.) ant not having appeared before them, 357. it was reversed on certiorari. '"Lloyd v. Cozens, 2 Ashm. (Pa.) ''Thamm v. Hamburg, 7 Phila. 131. 266. If evidence dehors the record "DeCoursey v. Guarantee Trust d could be heard, then it appeared that 8. D. Co. 81 Pa. 217. though the written notice did not in- '"Hutchinson v. Potter, 11 Pa. 472. form the tenant that Thamm was The notice to quit, though given but the assignee of the lessor, he had in- six days before the commencement of dependent knowledge of that fact, the proceedings, would have been If. on certiorari, the record is con- sufficient. But, as the record showed elusive, there was no error. If evi- neither the three months' notice, nor dence dehors is admissible, there was the fact of waiver, the judgment was aiso no error. reversed. Land. & Ten. 36. 562 LANDLORD AND TENANT. V. Neal,^^ Allison, J., refused to find in the stipulation of a lease from month to month, that it was to continue until one party should give notice to the other, thirty days before the end of any month, of his intention to terminate the lease, an inten- tion to waive the three months' notice, as a prerequisite to a jus- tices' judgment of ouster. 658. Length of notice.— The notice must precede, by three months, the inception of the proceedings before the justices, whatever the length of the term; whether it be for a definite time, or strictly at will, or from year to year, or even from quarter to quarter, or month to month. ^°'' Thus, the monthly term beginning September 21, 1885, a notice given on October 6, 1885, to quit on November 21st was not sufficient to support pro- ceedings begun November 25th. ^°^ 659. Notice, when term is for a definite time. — When the lease is for one year, or two years, or any definite time, notice is un- necessary in order to terminate the lessee's estate in the land, unless the lease requires the notice. In such cases, therefore, the function of the notice to quit is not to end the lease, but simply to bestow upon the lessor, after three months, the right to the summary procedure for the recovery of the possession. The landlord may give notice three months before the lapse of the term, and so entitle himself instantly upon its expiration to this remedy.-"'^ He may give notice more than three months before the close of the term, and entitle himself to the proceed- ings immediately upon its close. Thus, the term ending May 31st, a notice given the preceding January 25th would entitle the lessor to proceed on June Ist.-'"* The landlord may be more ••ePhila. 61. The same view was "«1F?ii*e v. Ariftwrs, 24 Pa. 96 ; Lo- taken by Gordon, J., in Veditz v. gan v. Herron, 8 Serg. & R. 450. Levy, 18 Phila. 328. '"^Lloyd v. Cozens, 2 Ashm. (Pa.) '"•Veditz V. Levy, 18 Phila. 328; 131. Gmdt V. tieal, 6 Phila. 61. Cf. Lease ending July 31st, 1872, no- Lentz V. Schaffer, 3 Hazard Penn. tice was given April 16th, 1872, Reg. 410. Gai-it v. Ball, 75 Pa. 363. '"M'edite V. Levy, 18 Phila. 328. RECOVERY OF POSSESSION AT END OF TERM. 563 forbearing or less provident, and defer giving the notice until the term has fully expired. The term ending, e. g., on March 31st, the notice may be given on that day;^"* or, the term end- ing March 31st, the notice may not be given until April 14th.^°* 660. Notice; tenancy from year to year. — When the tenancy is from year to year, a three months' notice to quit at the end of the year is necessary in order to conclude it. The notice which effects this object may also serve the other purpose of enabling the lessor to resort to a proceeding before the justices. The precedence of the notice by three months, to the inception of the proceedings, will not be sufficient, unless it also precedes by the same interval the end of the year, for the tenant will have a right to hold over for another year.^°® The year, e. g., ending April 9, 1814, notice on April 22d to quit in three months will be ineffectual.-"'^ The tenancy from year to year commencing on March 29, 1782, in February, 1800, notice was given to the tenant that he must surrender possession on March 29, 1801. This would probably have been sufficient. But the landlord refrained from disturbing the tenant's posses- sion, and he gave him notice again on January 25, 1802. Appli- cation to the justices was made April 26, 1802. The notice was sufficient to support a recovery. ■'"^ 661. How soon proceedings may begin. — The proceedings be- fore the justices cannot begin until the expiration both of the term and of three months from the giving of the notice. But they can begin immediately thereafter. The lease from year to year being made June 1, 1827, on January 25, 1830, notice was given to quit at the end of the year. Proceedings could properly commence on June 1, 1830, before the justices. ^"^ They could, ^'"Watts V. Fox, 64 Pa. 336. "^Boggs v. Black, 1 Binn. 333. '"Logan v. Herron. 8 Serg. & R. '"Lloyd v. Cozens. 2 Ashm. (Pi.) 459; Rich v. Keyser, 54 Pa. 86. 131; Donaldson v. Smith, 1 Aslim. ""Broio-n v. Yanhorn, 1 Binn. 334, (Pa.) 197. note. The notice ending July 14th, the "^Fahnestock v. Faustenauer, 5 proceedings began July 15th. Lo- Serg. & R. 174. gan v. Herron, 8 Serg. & R. 459. 564 LANDLORD AND TENANT. of course, begin at any later time. The lease, e. g., expiring March 31st, the proceedings began April Sd."" The year ending March 31st, and notice being given the preceding January 1st, proceedings began October 15th." ^ 662. Certiorari.— "The act of 1772 makes no mention of a certiorari. Such writ is not allowed by its terms. Yet it has been repeatedly held that the common-law writ of certiorari might issue under that act.""^ Indeed, the cases are numerous in which the common pleas has issued this writ.'^^ The writ may issue without an afEdavit of the person seeking it, that he does not seek it for the purpose of delay, the 21st section of the act of March 20, 1810,^^* not being applicable to the common- law certiorari. ■^■' ^ The writ of certiorari is not a supersedeas, and, pending it, the writ for the delivery of possession to the lessor may be carried into execution by the sheriff."^ If the court of common pleas reverses the judgment of the justices, and, the premises having been delivered to the landlord, award-^ a writ of restitution, a writ of error from the supreme court to the judgment of the com.mon pleas, it was held in an early case,-'-'' would not supersede this writ of restitution, so as to prevent the restoration of the possession to the tenant. But since the passage of the act of June 16, 1836, it has been held that a writ of error from the supreme court is a supersedeas. The common pleas having affirmed the judgment of the justices, a habere facias possessionem was sued out by the landlord, and the next day a writ of error was issued. This writ was a super- ^"'WUte V. Arthurs, 24 Pa. 96. "'1 Pepper & L. Digest, 2612; 5 '"Stroup V. M'Clure, i Yeates, 523. Smith's Laws, 161. ^"DeCoursey v. Guarcmtee Trust & ^"Veditz v. Levy, 18 Phila. 328. S. D. Co. 81 Pa. 217. No bond for the costs is necessary. "'Orubb V. Fox, 6 Binn. 460 ; ^"GruU r. Fox, 6 Binn. 400 ; Slew- Blashford v. Duncan, 2 Serg. & R. art v. Martin, 1 Yeates, 49 ; De 480. Gourncij v. Guarantee Trust d 8. D. The 1.3th section of the act of 1772 Co. SI Pa. 217. does not prevent the use of a eertio- '"Orubb v. Fox, 6 Binn. 460. rari. MrClure v. White, Addi-~ou (Pa.) 192. EliXIOVERY OF POSSESSION AT END OF TEilM. 685 sodeas of the execution, and the sheriff properly refused to exe- cute the hahere}^^ 663. Review on certiorari.— So far as the existence of the facts is concerned, which, under the law, are necessary to sup- port the judgment of the justices, the record of the finding of the inquisition is the sole evidence in the common pleas. What it fails to show that the inquest have found must be assumed to be nonexistent. ^Vhat it shows that they have found must be taken to be facts. It is repeatedly said that the certiorari brings up the record only.^'^ The inquisition must, therefore, contain a finding that the three months' notice was given or had been waived. ^^" The court of common pleas will not hear evi- dence or even inspect the lease, the inquisition omitting the averment that the notice was given or had been waived, and not quoting the lease. It must appear in the record that the term was fully ended.^^-' It is not enough that the court might infer that it had, from the date of the notice and that of the entry of the complaint, as mentioned in the record.^"^ The court cannot know that the lease is terminable on a contingency, if the inquisi- tion does not say that it is, and does not quote it. The court cannot read a lease, or any part of it, which has not been made a portion of the record. ^^* It must apjjear in the record that the lease was for a certain rent, and possibly, what the rent was must be stated. Otherwise the judgment will not be sustained.^^* The averment in the inquisition that the demise was "for one year and from year to year at the rent of $200 for the first year" ""Wright v. Clendenning, 6 Phila. ""Hutchinson v. Potter, 11 Pa. .S29. The court dischargerl a rule to 472; Veditz v. Levy, 18 Phila. 328. compel the sheriff to proceed. '"FahnestocJc v. Faustenauer, 5- ^"Wilmington 8. 8. Co. v. Ha^, Serg. & R. 174; Blashford v. Dun- 151 Pa. 113, 25 Atl. 85; Gallagher v. can, 2 Serg. & R. 480. Maclean, 7 Pa. Super. Ct. 408, Af- "'Hohly v. German Reformed 8oc. firmed in 193 Pa. 583, 45 Atl. 76; 2 Pa. St. 293; May v. Kendall, 8 Buchanan v. Baxter, 67 Pa. 348; Phila. 244. Cummings v. Young, 6 Montg. Co. L. "'Wilmington 8. 8. Go. v. Haas.. Rep. 161; Boyer v. Striokler, 1 Dock- 151 Pa. 113, 25 Atl. 85. et, 35. '"McGce v. Fessler, 1 Pa. St. 120. 566 LANDLORD AND TENANT. was deemed susceptible of the interpretation, with reasonable confidence that it corresponded with the thought of the inquest, — that the rent for all the years succeeding the first was the same as for the first.^^^ The record of the justices is said, in Wilming- ton 8. 8. Co. V. Haas/^^ to consist of the complaint, the warrant to the sheriff, his return thereto, the inquisition, the judgment, the writ of restitution, etc. The evidence on which the jurors found the facts forms no part of the record, and cannot be con- sidered on certiorari. 664. The record.— The 12th section of the act of 1772 directs that if certain facts shall appear to the justices and freeholders, ■"it shall and may be lawful for the said two justices to make a record of such finding by them, the said justices and freehold- ers." It is usual to frame an "inquisition," viz., a finding of the facts by the justices and jurors, and also for the justices to make a "record" which, Iwsides embodying the inquisition,-'^'' may find all or some of the same facts, or additional facts, or facts inconsistent with those in the inquisition. When the inqxiisition and the record are inconsistent, the truth of the in- quisition is assumed by the common pleas and the supreme court on certiorari. Thus, the inquisition saying that no rent was reserved by the lease, its averment will be accepted as true despite the averment in the "record" that rent of $1 per year vs^as reserved.^^* When the inquisition omits a material aver- ment, e. g., that the term is fully ended, the nonexistence of the omitted fact will be assumed, despite the assertion in the ''record" that the justices and freeholders find that fact.^^^ '^^McMillan v. Graham, 4 Pa. 140. '"Blashford v. Duncan, 2 Serg. & '" 151 Pa. 113, 25 Atl. 85. R. 480. In McMillan v. Graham, 4 ^' In Blashford v. Duncan, 2 Serg. Pa. 140, the court found no sulistan- & R. 480, the judges leave it doubt- tial discrepancy with respect to rent, ful whether the justices are bound to between the inquisition and the "rec- annex the inquisition to their "rec- ord." ord," but it is said by Gibson, J., ^"May v. Kendall, 8 Phila. 244. that if they did not the court would compel tlieni to send it up by a cer- tiorari. EECOVERY OF POSSESSION AT END OF TERM. 667 Sometimes the inquisition is followed immediately by the judg- ment of the justices, without any averment of facts.* ^^ 665. Form of the inquisition.— In Fahnestock v. Fausten- eauer^^^ the inquisition instead of reciting the facts found, stated that the freeholders say "that the facts stated in the within venire facias [the warrant to the sheriff] are true." Tilghman, Ch. J., said he had never known an inquisition of that kind, "and it would be difficult to support it, even if reference were made with greater precision" than was observed in that. The necessary facts should be clearly and positively found.* ^^"^ Some so-called inquisitions embrace not simply the facts found and the damages assessed, but, in addition, the judgment of the justices,*^* and occasionally, after an inquisition of which tlio judgment is a part, there follow a statement of the complaint, the warrant, the return, the swearing of the freeholders, the names of witnesses, the offers of evidence, the inquisition re- peated, the repetition of the assessment of damages, and the repe- tition of the judgment of the justices.*^^ The lease may be made, but need not be, a part of the record. *^^ The inquisition stating it was taken "tliis day of May," the date recited "°Fahnestock v. Faustenauer, 5 July 27th, 1814) the same, to the. iSerg. & R. 174; Stroup v. M'Glure, 4 damage of the lessor. It does not Yeates, 523. state whether he had held over any "^ 5 Serg. & R. 174. One objec- of the intervening years with the tion was, that the inquest might consent of the landlord or as a tres- liave meant that they found that the passer for the whole time, preliminary proof had been made be- "^ ™ In Buchanan v. Baxter, 67 Pa. ■fore the justices before the issue of 348, is a form said to be long fol- the warrant to the sheriff; rather lowed. Vide Gavit v. Hall, 75 Pa. than that they found the facts whicli 303. were the subject of this preliminary '-'"Buchanan v. Baxter, 67 Pa. 348 ; truth. Another was that the inqui- Gavit v. Bull, 75 Pa. 363. sition did not say whether it found ^'-Oavit v. Hall, 75 Pa. 363. For all the averments in the venire fa- some reason, the court said that the cias to be true, or some only, and if record was correct in form, some it did not distinguish those '^'Wilmington 8. 8. Go. v. Haas, found from those not found. The 151 Pa. 113, 25 Atl. 85; Stroup v. venire facias reciting a lease made M'Glure, 4 Yeates, 523. The jus- April 10th, 1810, for one year, states tices may incorporate the lease in that the tenant still holds (viz., the record, or give its substance. 568 LANDLORD AND TENANT. in the record may supply the omission of the number of the clay.136 'pj^g warrant of the justices to the sheriff is tested August 12th. It is no reversible error that the "record" states that it was tested September 12th.^="' The complaint, inquisi- tion, warrant, and record stating that the lease was dated Au- gust 1, 1871, the lease, bearing date August 1, 1873, cannot be used to impeach the finding."" 666. Evidence extraneous to record. — As a rule, evidence of facts not exhibited in the record cannot be taken for use in the court of common pleas, on the hearing of exceptions to the judg- ment of the justices, on the certiorari. The court should not allow depositions to be taken, and, with papers and documents, filed."" "There is no warrant," says Sterrett, J., "for any such practice. It is dangerous, and should be discouraged."^*^ But when there is an averment of fraud, partiality, or oppres- sion, which, if established, would justify the reversal of the judgment, its truth may be shoA\Ti by depositions or other evi- denced*^ It may, e. g., be showm that sufficient time was not allowed to the tenant to produce his witnesses;'*^ or that, his counsel falling sick, a continuance was refused except on the con- dition that he prepay costs ;*** or, possibly, that the jurors sum- moned were not freeholders, — if, the tenant duly excepting on this ground, the justices and inquest nevertheless proceed to hear ^'"Cunningham v. Owrdner, 4 Watts the only witness to prove the de- & S. 120. mand of possession. The judgment ""GoCTi V. Hall, 75 Pa. 363. was affirmed. No discussion of the ""(rOCT* V. Sail, 75 Pa. 363. .idmissibility of the deposition. '"In Stroup V. M'Clure, 4 Yeates, '''Wista; v. Ollis, 77 Pa. 291. In 523, the common pleas refused to Buchanan v. Baxter, 67 Pa. 348, grant a rule on the justices to re- Thompson, Ch. J., says that the corn- turn the lease and a deed by which mon pleas may hear affidavits, but it the lessor's interest had been con- would be unsafe practice, us a rule, veyed to the plaintiff. Even if that court should hear affi- '" Wilmington 8. 8. Go. v. Eaas, davits, they could not be considered 151 Pa. 113, 25 Atl. 85. In McMil- in the supreme court. Ian V. Graham, 4 Pa. 140, a deposi- '"Stetoart v. Martin, 1 Yeates, 49. tion showed that the plaintiff was "*McMullen v. Orr, 8 Phila. 342. RECOVERY OF POSSESSION AT END OF TERM. 660 and determine the cause ;^*^ or it may be shown that one of the justices was the agent of the plaintiff in delivering his notice to the tenant to quit^*® 667. Damages.— "The said freeholders," says the act of 1772, "shall assess such damages as they think right against the tenant or other person in possession as aforesaid, for the unjust deten- tion of the demised premises." The decision of these damages is, by the letter of the act, with the "freeholders." The deci- sions indicate no rule by which the damages shall be ascertained. Varying according to the value of the premises, and the lengtli of the detention, and, possibly, the presence or absence of waste, the following sums have been awarded : $100 ;i*^ $3 ;'" $500 ;^** $21.33;"° $50 ;i" $100;is2 $120 ;"3 $360.15* In Watts y. Fox^°^ the rent reserved was $3,000 per annum, and the tenant was, in addition, to pay all taxes, assessments, water rents, and gas charg-es. The inquest awarded $916.66 damages, $600 for taxes, $101.09 for gas consumed, $26.35 for water rent, making in all $1,644.10. One of the exceptions to the judgment was that the damages were excessive and given for other objects than the unjust detention of the premises. The common pleas reversed because no proper service of the summons had been made on the defendant, who had not appeared before the justices. The su- preme court reversed this reversal except with respect to the dam- ages, finding substance in the exception to the damages. 668. Costs. — For the damages "and reasonable costs," says the act of 1772, "judgment shall be entered." These costs are taxed "' Cf. Rhoads v. Wesner, 1 Woodw. "°Fahnestock v. Faustenauer, 5 Dee. 79, with Wistar v. OlUs, 77 Pa. Serg. & R. 174. 291. "'Maj/ V. Kendall, 8 Phila. 244. "•Wistar v. Gonroy, 1 Troubat & ^"'Gavit v. Hall, 75 Pa. 363. H. Pr. § 201. 1869. ^'^Gallagher v. Maclean, 7 Pa. Su- "'Buchanan v. Baxter, 67 Pa. 348. per. Ct. 408. ^"Stroup V. M'Clure, 4 Yeatcs, '"Wistar v. OlUs, 77 Pa. 291. 523. «» 64 Pa. 336. "'Wilmington B. 8. Go. T. Eaat, 151 Pa. 113, 25 Atl. 85. 570 LANDLORD AND TENANT. by the justices. On the same complaint, two or more juries may be summoned and they may have .several meetings before the final •decision in favor of the landlord is reached. This complaint may have been preceded by one which ended in a decision for the ten- ant. Whether, in the last proceeding, the costs of all the proceed- ings may be imposed on the tenant, is not clear. In a case in which they were thus imposed on him, the supreme court re- marked, being unable to say what items of costs had been charged : "But, as the complainant was not in fault, and the defendant has been found guilty of unjustly withholding the possession, we sec no reason why he should not be charged with all the costs of the proceedings necessary to regain it."-'^" If no agreement is reached by the jury, each party must pay his own costs. The landlord, having improvidently paid the tenant's costs to the jus- tice, may withdraw them without becoming liable to the tenant.-' °^ Costs of $65,"« of $20.72,'-5» of $45,"" are specimens of as- sessments under this head. 669. The judgment. — The finding of facts is to be made by the justices and freeholders.-'^'^ The damages are to be assessed by the freeholders. Of the finding of the facts a record is to be made by the justices. For the damages and costs, judgment is to be en- tered by the justices. Upon the entering of this judgment, i. e., for damages and costs, the justices are required to issue their war- rant, commanding the sheriff forthwith to deliver to the lessor, his heir or assign, full possession of the demised premises, and to levy the costs and damages of the goods and chattels of the de- fendant A form of judgment that has been approved is : ^''White V. Arthurs, 24 Pa. 96. ^"'Gallagher v. Maclean. 7 Pa. Su- ^"RluMid V. Cain, 2 Chester Co. per. Ct. 408. Rep. 496. "'Htroup v. M'Glure, 4 Yeatps, 523. The costs are not payable till the '^"Buchanan v. Baxter, 67 Pa. 34S. conclusion of the proceedings and '" To an exception that both the prepayment cannot be exacted as a justices and jurors acted as triers, condition of continuance of the hear- the court said nothing, in ilcUlllan jng. ilcMullen v. Orr, 8 Phila. 342. v. (Iraham, 4 Pa. 140. RECOVERY OF POSSESSION AT END OF TERM. 671 "Therefore, it is considered and adjudged by us, the said alder- men [or justices], that the said Nelson Gavit shall and do re- cover and have of the said Mary Hall as well, the said sum of $100 for his damages aforesaid, as $45 for his reasonable costs, by him expended in and about this suit in this behalf, concerning vjrhich the premises aforesaid we do make this our record." This was preceded by what was termed the inquisition, which con- cluded Avith the words : "Whereupon, it is considered by the said aldermen that restitution of the said demised premises be made to the said Nelson Gavit, and that he recover of the said Mary Hall $100 damages aforesaid, together with the costs of suit, amounting to $4:5."^'^^ "That form," said Thompson, Ch. J.,i«« ^'has been in use for more than a third of a century, and is copied from Graydon, which is much older. Hundreds of records have been made in accordance therewith, and, so far as I know, it has never been condemned by any court." In the form just quoted, the restitution of the premises is not awarded in the "record" but in the "inquisition." In McMillan v. Graham}^* the excep- tion was that the inquest had assessed damages, but had not ad- judicated on the right of the landlord to have the premises. The -court said that "the place to award a writ of possession is in the record, not in the inquisition." 670. Warrant to deliver possession. — The justices, on giving judgment, are required by the act of 1772 to issue their war- rant to the sheriff, commanding him forthwith to deliver posses- sion of the premises to the landlord. This writ, known often as the writ of restitution,^ ^^ may issue on the same day on which the judgment is entered.'^^*'® If on certiorari the common pleas should reverse the judgment, after possession has been given to ^'■"Gavit V. Hall, 75 Pa. 363; Bu- '"■■■Wilmington 8. S. Co. v. Haas, ■chanan v. Baxter, 67 Pa. 348. 151 Pa. 113, 25 Atl. 85. ^''Buchanan v. Baxirr, 67 Pa. 348. "'DeCoursey v. Guarantee Trust & "'4 Pa. 140. The same thing was .S'. D. Co. 81 Pa. 217. done in Wilniinfiton S. S. Co. v. Haas, 151 pa. 113, 25 Atl. 85. 572 LANDLORD AND TENANT. the landlord, it may not, as of course, award a writ that it he re- delivered to the tenant, likewise called, sometimes, a writ of res- titution, and sometimes of re-restitution, but may wait until that writ is moved for by the tenant.'"^ It will, ordinarily, then award it;*** but the reversal of the judgment does not always make it proper to award a re-restitution to the tenant,**" as when.^ since the judgment, the landlord has acquired the right to the poseession, or where the reversal is for a fact which, since the judgment, has ceased to exist."" If the common pleas affirm^ the judgment of the justices, and the siipreme court reverses, it may award the re-restitution of the premises to the tenant*^* and also of the damages paid.*''^ For reasons that would properly move the common pleas, while i-e versing, to refuse a re-restitu- tion to the tenant, the supreme court may refuse such re-restitu- tion.-"* If the common pleas has, in reversing, awarded re-re— titution to the tenant, the supreme court, in reversing the re- versal, may award a writ for the redelivery of the possession to the landlord."* 671. Review in appellate court. — The right to procure a re- view in the supreme court by writ of error, of the adjudication of the court of common pleas upon the certiorari, was early re^"- ognized.*'^ That court may affirm or reverse a reversal or an affirmance of the common pleas, or it may reverse so much of the judgment of the common pleas as reverses the award of posses- ^"Freytag v. Anderson, 1 Ashm. "'Hohly v. German Reformed Soe. (Pa.) 98. 2 Pa. St. 293. The rent was uneer- ^"McOee v. Fessler, 1 Pa. St. 126. tain, and the inquisition did not find ^"Fitzalden v. Lee, 2 Dall. 205, 1 the lease ended, but the tenant had, L. ed. 350. The court said the party plainly, no right to retain posses- was in possession under the agree- sion. Cf. also Hutchinson v. Potter, ment of the other party, and it 11 Pa. 472. would be fraudulent for the latter to "*Boggs v. Black, 1 Binn. 333. overthrow his agreement. ^'"Clarke v. Patterson, 6 Binn. ^'"UcOee V. Fessler, 1 Pa. St. 126. 128; Boggs v. BUck, 1 Binn. 333; "^Ayres v. Novinger, 8 Pa. 412; Clark v. Yeat, 4 Binn. 185; Wil- Stetcart v. Martin, 1 Yeates, 49. mington S. S. Oo. v. Haas, 151 Pa. "'Btewa/rt v. Uartm, 1 Yeates, 49. 113, 25 Atl. 85. RECOVERY OF POSSESSION AT END OF TERM. 573 sion to the landlord, while affirming so much of that judgment SLS reverses the award of damages to him.^^* 672. Arresting the proceedings before the justices.. — The 13th section of the act of March 21, 1772,^" provides for the arrest of the proceedings before the justice, when the right to the land is claimed by some person other than the lessor, in consequence of some title accrued or happening since the commencement of the lease. On the proper presentation of this fact to the justices, they are directed to forbear to give judgment 673. How this arrest is effected.— The justices are directed to forbear to give judgment, if the tenant shall allege that the land is claimed by another than the landlord, "and if thereupon the person so claiming shall forthwith, or upon a summons, im- mediately to be issued by the said justices, returnable in six days next follov.-ing, before them appear, and on oath or af- firmation, to be by the said justices administered, declare that he verily believes that he is entitled to the premises in dispute, and shall, with one or more sufficient sureties, become bound by recognizance in the sum of one hundred pounds to the lessor or lessors, his or their heirs or assigns, to prosecute his claim at the next court of common pleas" of the county where the land lies. The notice by the tenant of the claims of another may be given at any time; at the return day,^^^ at a later hearing before the justices and jurors, -"^^ or even after hearing, but before the judg- ment As the justices are directed, on the making of the alle- gation, etc., to "forbear to give the said judgment," it is likely that the interposition of the title of the third person must be ^''Watts V. Fox, 64 Pa. 336. made before the justices February '" 1 Pepper & L. Digest, 2648 ; 1 23d, 1 864. The defendant filed an af- ;Sm. L. 370. fidavit at the hearing on June 8th, ™Steel V. Thompson, 3 Penr. & W. 1864. In Newell v. Gibbs, 1 Watts •34. & S. 496, it seems implied that judg- ^'"'N eumoyer v. Andreas, 57 Pa. ment had been rendered by the jus- 446 ; Hoffman v. Hoeckly, 7 Phila. tices before the tenant made his al- 567 ; Gunninffham v. Gardner, 4 legation of claim of a third person. Watts & S. 120. The complaint was 574 LANDLORD AND TENANT. made before judgment is given. It is the tenant who makes the allegation that tlie title is in another. His wife, it not ap- pearing that she interposes with his authority, cannot make it.^^" After the "allegation" of the tenant, the claimant of the title, after notice, must make the affidavit and give the recog- nizance. ^^^ If the tenant is also the claimant of the title, he, of course, makes the allegation and the affidavit, and enters into the recognizance.^*^ Otherwise, he cannot make the affidavit or enter into the recognizance. "If this were allowed," says Hus- ton, J., "there would be found many a tenant who would swear, and could give security, too, and the object of the law would be defeated ; the tenant would hold until the cause might be reached in the course of the court some years after. ... I will not say that a tenant who has purchased from his lessor, or to whom the title has descended or been devised, can be turned out under this law, but only in such case can a tenant withdraw the cause."-'^'' The tenant's wife, as claimant of the land, may, of course, make the affidavit and enter into the recognizance.-'^* The making of the affidavit in the proper form, alleging the proper facts, and by the proper person, ipso facto suspends the right of the justices to proceed. They cannot decide on the cred- ibility of the affiant, or the truth of the affidavit, even when the affidavit is contradicted by a previous affidavit of the same party.^®' 674. Cause for arresting. — The existence of a claim to the land in some other person than the lessor, in virtue of a title acquired since the commencement of a lease, by descent, by "°Hof[man Y. Hoeclcly, 7 Phila, "'Neumoyer v. Andreas, 57 Pa. 267. 446; Steel v. Thompson, 3 Penr. & "^Heritage v. Wilfong, 58 Pa. 137. W. 34; Debozear v. Butler, 2 Grant. If he refuses, the jurisdiction of the Cas. 417. Justices is not superseded. Cunning- ^^"Cunidngham v. Gardner, 4 ham \. Gardner, 4 Watts & S. 120. Watts & S.' 120. It is no* necessary to summon him "*Alexander v. Jones, 13 Lane if he is present at the hearing. Bar, 43. Ibid. ^"^McMullen v. Orr, 8 Phila. 342. JiECOVERY OF POSSESSION AT END OF TERM. 575. deed, or under the last will of the lessor, may be averred.-'** The deed, will, etc., must be that of the lessor, or of one claiming by deed, will, etc., e::ecut€d by him since the making of the demise. The fact that the claimant claims by a deed made since the lease,, from X, who is not the lessor, it not appearing in the affidavit how X became entitled, will not supersede the jurisdiction of the justices.-''^' If the claimant asserts, not a deed from the lessor, but a contract in v;riting for a conveyance, he must show such an equitable right to a conveyance "as would sustain a bill for a specific performance in a court of chancery."^^* An affidavit that, since the making of the lease, the landlord has, by a writ- ing, sold the premises to the deponent, with an "understanding" that the deed should be made "upon a performance of certain matters," and that the deponent has "kept his agreement," and "offered to complete the transaction," but that the lessor has fraudulently refused to execute the deed, and has conveyed the premises to another, on a pretended consideration, with the pur- pose of defrauding the deponent, is insufficient, inasmuch as it does not set forth the terms of the contract, and the manner in which the affiant has perfonned it, or that there was a considera- tion, or whether the writing was of such a character as to satis- fy the statute of frauds.-'^* In Neumoyer v. Andreas,^^" the tenant alleged that after the lease for ten years of iron ore land, on which the proceedings were beg\in, had been made, the lessor contracted with the lessee that if the latter would sink a well, plank it, put in an iron pump, put up an engine to pump out the water, he should be entitled to dig out all the ore that could be found on the premises, paying 25 cents per ton, so dug, to the '"If the claimant's affidavit does "'Debozear v. Butler, 2 Grant Cas. not allege that he claims in virtue of 417. a title happening since the com- ^"Dehozear v. Butler, 2 Grant Cas. mencement of the lease, it is insuffi- 417. cient. Hoffman v. Hoeckly, 7 Phila. '" 57 Pa. 446. 267. "''Cummings v. Young, 6 Montg. Co. L. Rep. 161. 576 LANDLORD AND TENANT. lessor, and that, in pursuance of the contract, he remained in pcissession of the premises, did the acts stipulated for, paying the royalty of 25 cents per ton. This did not show such a title as ousted the jurisdiction of the justices. If the contract was a title to the ore in place, it was no reason why the landlord should not recover the possession of the surface, and the use of the timber, all the other minerals than iron ore, etc. Besides, it was in parol, there was no possession taken in pursuance of it, and for the labor and materials expended in the improvements, compensation could easily be made. If the contract was a mere license to dig ore, — and this view the court approves, — it con- ferred no right to the possession of the land, but a mere right to enter and dig for ore, with such a qualified possession as would enable the defendants to dig and take away the ore. It was no barrier, therefore, to the landlord's recovery of the posses- sion.^^-' 675. Cause, continued. — The allegation of the tenant, not that there has been an agreement, later than the lease, which en- titles him to the continued possession, but that the lease itself is different from that described by the plaintiff, and that, as it actually is, it entitles to a continuance of the possession, is not a cause for ousting the jurisdiction of the justices. The land- lord, e. g., averred that the lease was for three years, at an an- nual rental of $12. The tenant deposed that the lease was for his natural life; that he was to erect buildings, clear and im- prove the premises, and, at the expiration of the first three years, was to pay $12 annually during his life; that he has put up huildings, cleared and improved the land, and paid all rent fall- ing due since the expiration of the three years. This case, said "" The tenant may show, in a pro- lease to Y, and induced him to at- ceeding by Y against him, that since torn to Y. This fact, properly the lease was made, the lessor trans- averred, would oust the jurisdiction ferred the reversion to X, but subse- of the justices. Goldsmith v. Smith, ^uently, in fraud of X, assigned the 3 Phila. 360. RECOVERY OF POSSESSION AT END OF TERM. 677 Huston, J., "presents a simple question of fact." The twelve jurors summoned to attend the justices could as well determine it as any twelve summoned for a session of the court of common pleas.*®^ The allegation of the tenant that, under his lease, he still had a right to the possession, — e. g., the lease, as alleged by the landlord, being for two years, the tenant avers that, it gives him the privilege of three additional years, — does not oust the jurisdiction of the justices.^** 676. Expiration of lessor's title. — The lessor may own the land for life, or for a period of years, there being a reversioner or remainderman. The tenant may, if the title of the rever- sioner is sold since the lease was made, set up the title of the grantee of it, and the expiration of the estate of his lessor, as a ■cause for terminating the proceedings before the justices. In Newell V. Gibbs, ^** E. G., on September 10th, 1832, executed a lease to X, to last until May 1st, 1836. On February 15th^ 1837, the sheriff conveyed the fee belonging to E. G. to W. G. X had made a sublease of the premises to Y, whose terms do not appear in the report, and, some time after the sheriff's convey- ance to W. G., began proceedings before two justices to recover the possession. His tenants, by suggesting these facts, on the ..affidavit of W. G. superseded the jurisdiction of the justices. "Although," says Rogers, J., "it must be confessed the words ""Cunningham v. Gardner, 4 Watts J., remarked that however coni?onant •& S. 120. The court also calls at- with the spirit of the provision in tention to the fact that the deriva- the act of 1772 for superseding the tion of title from the lessor must jurisdiction of justices, "it was cer- have been since the date of the lease, tainly not warranU by the letter," to oust the justices' jurisdiction, but he declined to say that the sua- Yet in Steel v. Thompson, 3 Penr. & pending of the jurisdiction ought not W. 34, where the defendant alleged to have been sustained, that the lease was made to him by '■""DcCoursey v. Guarantee Trust & his mortgagee, and that, since the 8. D. Go. 81 Pa. 217. making of the lease, he had, by "" 1 Watts & S. 496. Cf. DeCour- tender of the debt, determined the sey v. Guarantee Trust & S. D. Co. lessor's (mortgagee's) right to the 81 Pa. 217. possession of tlie land, Gibson, Ch. Land. & Ten. 37. 578 LANDLORD AND TENANT. of the act do not embrace the case in terms, yet it comes within the equity of the statute." 677. Proceedings after affidavit and recognizance. — The exhi- bition of a title superseding that of the lessor, and derived from him by will, deed, or descent, subsequently to the making of the lease, and the filing of the affidavit and recognizance, make it tlie duty of the justices to forbear to give judgment. The claim is prosecuted to the next term of the quarter sessions. Though this process of transferring the litigation to the latter court is- sometimes called an appeal to it,^®' it is not in fact an appeal.-'** It simply suspends the proceedings before the justices, and, if the adverse claim is not prosecuted according to the tnie intent and meaning of the recognizance, the jurisdiction is resumed by the justices, and they then "proceed to give judgment" and cause the lands and tenements to be delivered to the lessor.' ^^ The single question before the common pleas is the devolution of the title of the lessor. Says Agnew, J. : "As remarked by Gibson,. Ch. J., in Steel v. Thompson, 3 Penr. & W. 37, this is a sus- pension of the proceedings before the justices and freeholders,, in order to have the judgment of the court of common pleas on the question whether the landlord has not parted with his re- versionary right since the demise. It is evident, therefore, that when the case came into the common pleas, it was not to try the questions committed by the act to the decision of the justices and f j'eeholders, but that of title to the reversion acquired after the demise."^** In the common pleas, the burden of showing the '■"Netcell V. CHbbs, 1 Watts & S. will be discharged. Alexander v. 496; Ayres v. Novinger, 8 Pa. 412; Jones, 13 Lane. Bar, 33. Aeumoyer v. Andreas, 57 Pa. 446. '"Keumoyer v. Andreas, 57 Pa. If, the claimant's attorney request- 44C. ing the prothonotary to enter his '"' Sect. 13, act March 21st, 1772. appearance, the latter fails to do so "^Xeiimoyer v. Andreas, 57 Pa. till judgment for want of an appear- 44G. ance is entered for the plaintiff, and The transfer is for the trial of a. execution issued and possession de- "collateral fact." Clark v. Everly, livered, the rule to open the judg- 8 Watts & S. 226. nient and set aside the execution RECOVERY OP POSSESSION AT END OF TERM. 679 devolution of title is upon the tenant,^'"' but facts pertaining .to the investigation of the justices are not examinable in the com- mon pleas ; e. g., a former decision in favor of the tenant by Jus- tices and freeholders; an alleged agreement between the land- lord and tenant for the prolongation of the term, and an accept- ance by the landlord, since the alleged close of the term, as al- leged by him, of rent from the defendant.^'"' If the common pleas is of opinion that the case should not have been withdrawn from the justices, because of the defectiveness of the affidavit^"^ or of the recognizance, it quashes the "appeal" or transfer from the justices, and the ease remains for decision by the justices. If, passing the preliminary matters affecting the right to trans- fer, it decides that there has been a derivation of title since the lease was made, it enters judgment for the plaintiff or defend- ant^"^ and if for the plaintiff, it awards possession of the prem- ises ;^°^ for, says Kogers, J.,^°* all the facts justifying a recovery by the plaintiff are "either found by the jury [in the common pleas], or are admitted by the tenant when he alleges the title to be in some third person." Should the common pleas find that there had been no loss of title by the lessor, it would therefore have all the facts, either proved or admitted, on which the jus- ""Newell V. Oibbs, 1 Watts & S. alleging that the right was disputed 500; Neumoyer v. Andreas, 57 Pa. in virtue of a title accruing since the 440. corainencement of the lease. -"°Neumoyer v. Andreas, 57 Pa. -"'Steel v. Thompson, 3 Penr. & W. 446. Yet, in Steel v. Thompson, 3 34. (Judgment for defendant.) It Penr. & W. 34, the court heard evi- was suggested that there might have dence as to the nature of the con- been a motion to remit the proceed- tract alleged to be a lease, on which ings to the justices, had the court the proceeding was founded, and as found that the title was derived to payment by the tenant of the debt from the lessor since the lease was as security for which he had, by way made. of mortgage, conferred title on the ''"Alexander v. Jones, 13 Lane, lessor, and accepted the lease from Bar, 43. Judgment for want of an him. appearance of the claimant was en- "'"■Ayres v. Novinger, 8 Pa. 412. tered for the plaintiff. The affidavit alleged simply that the '"Newell v. Gills, 1 Watts & S. affiant verily believed that he was 496. entitled to the premises, instead of 580 LANDLORD AND TENANT. tices could act Remission of the cause would involve delay and expense for nothing. If the justices retain jurisdiction when they should desist from exercising it, on the presentation of the proper affidavit and recognizance, the remedy is a certiorari.^'^' ■'^McMullen v. Orr, 8 Phila. 342; DeGoursey v. Guarantee Trust & 8. D. Co. 81 Pa. 217; Dehozear v. But- ler, 2 Grant Gas. 417; Cummings v. Young, ti Montg. Co. L. Rep. 161 ; Ho If man v. Hoeckly, 7 Phila. 267. The decision of the common pleas, on th« ao-called "appeal" to it, is re- viewable in the appellate court. Steel V. Thompson, 3 Penr. & W. 34; Neumoyer v. Andreas, 57 Pa. 446; Newell V. Gihbs, 1 Watts & S. 496; The common pleas may award a new trial for improper exclusion of evi- dence. Ooldsmith v. Smith, 3 Phila. 360. CHAPTEE XXXI. RECOVERY OF POSSESSION. ACT OF DECEMBER 14, 1863. 678. The act of December 14, 1863. 679. The lease or demise. 680. The term. 681. Rent reserved. 6S2. Who may institute the propeedings. 683. Successors to lessor. 684. The defendant. 085. When the proceedings may begin. 686. Three months' notice. 687. Notice precedes the expiration of the term. 688. How compute the months. 689. Notice longer than necessary. fiflO. Notice necessary under whatever kind of lease. 691. Who gives the notice. 692. Notice to whom. 693. Form of the notice. 694. Service of notice. G95. Waiver of notice. 696. The complaint. 697. Before whom complaint made. 698. The summons. 699. Service of the summons. 700. What must be proved before the justice. 701. Defenses allowable. 702. The judgment. 703. Damages. 704. Judgment for damages. 705. Delivery of possession to lessor. 678. The act of December 14, 1863.— The act of December 14, 1863/ furnislies a mode by which at the expiration of the term the landlord may regain the possession. He applies to a justice of the peace, alleging certain facts. Thereupon the tenant is ' 1 Pepper & L. Digest, 2650. 581 582 LANDLORD AND TENANT. summoned to appear at a place and time indicated. The jiistice hears the evidence and determines whether the necessary facts exist. If he finds that they do, he eiiters judgment against the tenant both for the premises and for damages. A writ for the recovery of possession and for the damages and costs may issue. This act is additional to, and not a substitute for, the act of March 21, 1772,^ under which therefore, if he chooses, the landlord may still proceed. The act of 1863 is not unconsti- tutional in not providing a jury to sit with the justice. It allows an appeal; and it is immaterial from the constitutional stand- point that the appeal is not made a supersedeas, since it pro- vides for the restoration of possession, and for the payment of damages for the dispossession, should the judgment on the ap- peal be for the defendant.^ Since all proper defenses are avail- able in the proceeding under the act of 1863, equity will not re- strain the landlord from resorting to it.^ 679. The lease or demise. — The remedy is furnished where any person or persons in this state, having leased or demised any lands or tenements to any person or persons for a term of one or more years or at will, shall be desirous, upon the determina- tion of said lease, to have again and repossess such demised premises. The lease may be oraP or written. A paper executed and sealed by the tenant alone, under which he entered upon the premises and has enjoyed them, paying the rent stipulated therein, being assented to by the owner of the land, is to be treated as a lease.® A written agreement to rent, signed by the owner, if assented to by X, who is in possession under a former 'Rich V. Eeyser, 54 Pa. 86; Duff to subsequent recovery of damages V. Fitzicater, 54 Pa. 224. for wrongful ejection, see LimJiert v. 'ffaines v. Levin, 51 Pa. 412. The Jones, 136 Pa. 31, 19 Atl. 956. wisdom of the act is vaguely ques- 'Koontz v. Hammond, 62 Pa. 177. tioned, in Brown's Appeal, 68 Pa. "Kaier v. Leahy, 15 Pa. Co. Ct. 155. 243. Cf. Duffee v. Mansfield, 141 ■'Pittshiirgh d A. Drove Yard Oo.'s Pa. 507, 21 Atl. 675. Appeal, 123 Pa. 250, 16 Atl. 625. As RECOVEKY OF POSSESSION. 583 lease, becomes a lease, on which the statutory proceedings may he begun J 680. The term. — The lease is for a term of one or more years or at will. A lease for two months and a half,* it was tacitly assumed, is included in this description, as, it is needless to state, is one for a year* or longer term. The lease may likewise be at will, e. g., the tenant stipulating to leave the premises on ■five days'^" or ten days' notice. ^^ It may be from year to year.'^ It may have been a lease for years, but become one from year to year by reason of the tenant's holding over with the consent of the landlord.^^ The lease may be subject to conditions on breach of which the landlord may at once determine the lease, by instituting the proceeding before the justice ;^* or he may de- termine the lease at the end of any year, on a previous three months' notice.-'^ An alienation by the lessor and the tenant's attornment to the grantee do not make a new lease between the alienee and lessee and a new termination of the term,^^ but there may be an agreement between the grantee and the tenant ^Bergner v. Palethorp, 2 W. N. C. "Killen v. Haddock, 4 Kulp, 408. 297. ^^Mill Creek Coal Co. v. Androkus, 'Wilke V. Campiell, 5 Pa. Super. 2 Pa. Dist. R. 764. Ct. 618. The lessee had agreed to ^^Tilford v. Fleming, 64 Pa. 300; leave on thirty days' notice. In Glenn v. Thompson, 75 Pa. 389. If Spidle V. Hess, 20 Lane. L. Rev. 385, the owner agrees with X that X it was denied that a lease from shall work for him on his farm, and month to month was within the act shall live in a house on the farm so of December 14, 1863. Though the long as he works it, and shall remove lease was for one month from March as soon as he ceases to work, the 10, 1902, and contained an accept- owner cannot eject him when he ance of notice to quit on the 10th ceases to work, by the machinery of day of each succeeding month with- the act of 1863. Deisinger v. Shaud, out further notice, proceedings could 12 Pa. Dist. R. 698. be had under the act of 1863. Gov- '^Sterling v. Richardson, 24 Phila. yngham v. Everett, 11 Kulp, 179. A Leg. Int. 140. A lease for one year lease for one month is not within with the privilege of five years more the act of 1863. Vogel v. Trumberg, is within the act. Jones v. Kroll, 26 Pa. Co. Ct. 464, 12 Pa. Dist. R. 116 Pa. 85, 8 Atl. 857. 106. "Arnsthal v. Patterson, 3 Pennyp. 'Haines v. Levin, 51 Pa. 412; Rich 25. T. Eeyser, 54 Pa. 86; Koontz v. ^'Quinn v. McCariy, 81 Pa. 475. Hammond, 62 Pa. 177. "Tilford v. Fleming, 64 Pa. 300. 584 LANDLORD AND TENANT. ■whereby the former lease is displaced by a new one, having the date of the alienation for its commencement." 681. Eent reserved.— The 1st section of the act of March 6, 1872,-'* enacts that it shall not be lawful to prosecute pinjceed- ings under the act of December 14, 1863, "unless such proceed- ings 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 act of 1863 had not required that a rent should be reserved in the lease.^® The lease being "during the will and pleasure" of the lessor, and without rent, the jus- tice has no jurisdiction;^" nor has he, if the lease is "at the yearly rent of the interest and taxes accruing thereon," because the rent is not certain. The interest is on what sum? and at what rate ? "Is it interest," asks Sterrett, J., "on the value of the demised premises, or on the amount paid therefor by the landlord, or on the encumbrances that were then or might there- after be charged on the property ; or is it interest on debts owing by the landlord, or interest on something else ? While the con- tract relation of landlord and tenant is perhaps set forth with sufficient certainty, the quantum of rent reserved is conspicu- ously indefinite and uncertain. As to that there is not the slightest approach to precision or certainty; nor is there any- thing on the record that would even assist a jury if the question was before them, in endeavoring to ascertain the amount of rent reserved. Such certainty, or rather uncertainty as this, was never contemplated by the framers of the statute. "^^ The rent must be so distinctly reserved that the intervention of a jury is not necessary to render it certain.^* "Rothermel T. Dumn, 119 Pa. 632, ^'Graver v. Fehr, 89 Pa. 460. 13 Atl. 509. "Davis v. Davis, 115 Pa. 261, 7 "1 Pepper & L. Digest, 2654; P. Atl. 746. L. 22. '' The record must show a rent re- "Koontz V. Eammond, 62 Pa. 177. served. Weber v. Porr, 1 Legal Ree- RECOVERY OF POSSESSION. 585 682. Who may institute the proceedings. — Any person or per- sons having leased or demised lands, "it shall be lawful for such lessor, his agent or attorney, to complain," says the act of 1863. The lessor is usually an OAvner of the land in fee ; but he may own it for life only.^^ He may be a lessee for a term of years and make a sublease; or he may even be a sublessee and may make a sublease. The lessee for eighty-two years, e. g., made a sublease to B and C for twenty-two years, who sublet to X one room of the building from April 1, 1880, to April 1, 1881. On June 30, B sold his interest to E, who also obtained the own- ership of one half of the leasehold. Subsequently C acquired the other half of the leasehold; so that C and R owned each an undivided half of the lease and of the sublease. R served a notice to quit on X, on December 31, 1880, but C renewed what had been the sublease to X for another year. Since the subsub- lease to X had been made by B and C, R, who owned only the share of B, could not, without the co-operation of C, terminate the lease.^* There may be two or more lessors, who may begin the proceedings.^' The lease being made by "William G. Bed- ford, Agent," he as "agent" may complain to the justice. It is not necessary that the owner of the premises should. It will not be assumed that there is an owner different from William G. Bedford; but if it were assumed, the defendant would be estopped from setting up his title for the purpose of preventing a recovery of the possession by Bedford, from whom he obtained it.^* Apparently, even when the lease was not made by A as ord Rep. 131; Hiester v. Brown, 11 The lease being by A. G. Stone Lane. Bar, 159; Reynolds v. Bobin- "agent of the estate of Daniel son, 3 C. P. Rep. 20. Stone," A. G. Stone can institute the '■''Koontz V. Hammond, 62 Pa. 177; proceedings whether he was or not Bergner v. Palethorp, 2 W. N. C. the agent of the heirs of Daniel 297. Stone; and whether he could be tlie "Wenger v. Raymond, 104 Pa. 33. agent of an "estate" or not. Stone '"Cf. Wenger v. Raymond, 104 Pa. v. Wimmill, 24 Phila. Leg. Int. 212, 33. 6 Phila. 311. "Bedford V, Kelly, 61 Pa. 491. eSG LANDLORD AND TENANT. agent -for B, but by B himself, A, the agent, may, styling him- self such, begin the proceedings before the justice,^^ and even on the appeal the name of the owner may, by amendment, be sub- stituted for that of the agent.^* 683. Successors to lessor. — The use of the words "lessor, his agent, or attorney," in the act of 1863, induced some courts to think that the grantee of the reversion could not begin the pro- ceedings-;^^ but in Glenn v. Thompson^" Sharswood, J., held that the lessor's heir, and his grantee, — the purchaser at a sher- iff's sale of his interest, — could resort to the remedy. The act of February 20, 1867,3i directs that the act of 1863 shall be so ■"construed as to apply to cases in which the owner or owners of the demised premises have acquired title thereto by descent or purchase from the original lessor or lessors." One who receives a conveyance from the lessor pending the lease may therefore apply to the justice for the recovery of possession at the end of the term and without any attornment to him by the tenant.^^ The devisee of the lessor, and his executors when the control of the land is given to them, may employ the remedy of the act of 1863,33 b^^t in Holder v. Hill,^*^ the complaint in 1868 by the administrator d. h. n. of George Focht, whose will was proved in 1829, alleging that the demise was made by Abraham Focht, was not adequate to support the judgment of the justice, because nothing in the record showed the connection between George '^Heritage v. Wilfong, 58 Pa. 137; "1 Pepper & L. Digest, 2653; P. L, Supplee V. Timothy, 23 VV. X. C. 30. 386; McGregor v. Haines, 6 Phila. "'Keating v. Condon, 68 ?a. 75; 62; Sterling v. Richardson, 24 Phila. Dumn v. Rothermel, 112 Pa. 272, 3 Leg. Int. 140; McClelland v. Patter- Atl. 800; Tilford v. Fleming, 04 Pa. son (Pa.) 5 Cent. Rep. 734, 10 Atl. 300; Mortimer v. O'Beagan, 10 475. Phila. 500, 1 Legal Chronicle, 129; ^■'Lufs V. Wainioright, 193 Pa. 541, Rmvan. v. Gates, 9 Pa. Dist. R. 564. 44 Atl. 565. ^'' Cf. Broum's Appeal, 66 Pa. 155. ''Gooh V. McDevitt, 6 Phila. 131; "' 1 VVoodw. Dec. 451. It would Dubasse v. Martin, 24 Phila. Leg. be singular, says the court, if after Int. 92; Dickensheets v. Hotchkiss, 6 the lapse of forty years, the adminis- Phila. 150. trator d. b. u. still had anything to "" 75 Pa. 389. do with the land. RECOVERY OF POSSESSION. 587 rocht or his administrator and Abraham Focht. If a lease is made by A as trustee, A may, especially if he does not name the cestui que trust, begin the proceedings.^® A receiver of the lessor probably cannot institute the proceedings, without leave of the court, or without attornment of the tenant to him.^® Pos- sibly if there are two lessors, or two grantees of the lessor, either can begin the procedure^'' unless one of them dissents from the proceedings and desires the tenant to continue in possession.^^ Natural persons or corporations — ^both nonmunicipal and mu- nicipal, e. g.j boroughs,^ ^^may commence the proceedings. 684. The defendant. — The person against whom the proceed- ings are had is styled in the act of 1863 the "lessee or tenant." The tenant may be a married woman, and she may therefore, •despite coverture, be defendant.*" A sublessee was the defend- ant at the suit of the lessor, in Chambers v. Shivery;*^ and both the tenant and subtenant were defendants, in McClelland v. Pat- terson.*^ 685. When the proceedings may begin. — The proceedings may begin at any interval of time, however long or short, after the close of the term. The term closing on April 1, proceedings were begun July 26 ;** the term closing March 31 at midnight, the complaint was made April 2 following ;** the term closing De- cember 1, the proceedings commenced December 2.*' 686. Three months' notice.— The act of December 14, 1863,*" gives to any person who has demised land, for years or at will, ^Synder v. Carfrey, 54 Pa. 90. '"{Pa.) 5 Cent. Rep. 734, 10 Atl. "Chase v. Ooodale, 2 Law Times 475. N. S. 107. "Wenger v. Raymond, 104 Pa. 33. "Phelps V. Cornog (Pa.) 2 Cent. ^'^Svpplee v. Timothy, 23 W. N. G. Rep. 844, 4 Atl. 922. 386. ^Wenger v. Raymond, 104 Pa. 33. '^Garter v. Uess, 3 W. N. C. 325. '"Phoenixville v. Walters, 147 Pa. Term ending May 23, the complaint 501, 23 Atl. 776. was made May 28. Sterling v. Rich- *°Weher v. Porr, 1 Leg. Rec. Rep. ardson, 24 Phila. Leg. Int. 140. 131. Cf. Trimile's Appeal, 5 W. N. "1 Pepper & L. Digest, 2650; P. C. 396. L. of 1864, 1125. " 6 Pa. Dist. R. 101. 688 LANDLORD AND TENANT. who desires, at the determination of the lease, to have the prem- ises again, having given three months' notice of such intention to his lessee or tenant, the right to complain to a justice, who on proof, inter alia, of the fact that the term is fully ended, and that three months' previous notice has been given of the lessoi-'s desire to repossess the premises, may enter judgment for the les- sor and restore to him the possession. 687. Notice precedes the expiration of the term. — The notice, and three months following it, must precede the expiration of the terra. If the notice itself is not given until the lease has ex- pired, if e. g., the lease for one year ends on March 5, 1866, and the notice to quit is not given until March 8, 1866, no re- covery of possession, imder the act of 1863, can ever be ef- fected.^^ A notice given before, but not three months before, the expiration of the term, would be ineffectual. Proceedings could not be begun on it after the lapse of tliree months from the giving of the notice.** 688. How compute the months. — The months are calendar months. If the term for a year begins March 25, 1868, it closes at midnight on March 24, 1869. Notice to quit given on Decem- ber 25, 1868, is a three months' notice.*® "The proof to be made by the landlord, inter alia, is," says Agnew, J., " 'that the term for which the premises were demised is fully ended, and that three months' previous notice had been given.' Previous to what? The act answers — previous to the determination of the lease. But when does the lease f villy end and determine ? Certainly not until the last moment of the last day of the term, which, in this case, was the 24th day of March. The landlord's right of re-entry did not begin therefore lantil the first moment of the 25th day of March had arrived. This corresponds with tlie general custom and understanding. Leases beginning on the "Rich V. Keijser, 54 Pa. 80. "Duffy v. Ogden, 64 Pa. 240. '"Speigle v. McFarland, 25 Phila. Log. Int. 165. RECOVERY OF POSSESSION. 589 lat day of April expire on the 31st day of March in the follow- ing year; the old tenant giving up and the new tenant coming in on the 1st day of April, without a gap in the possession. It is obvious, therefore, that the 2-l:th day of ilarch counted a whole day when its last moment had arrived. Counting the 25th day of December on which the notice was given, and the 24th day of March when the lease had expired, the three months were fully ended and expired before the landlord's right of re-entry had accrued. The only defect of time which could be alleged is on the 25th of December, the day on which notice was given. But that is also to be regarded as a whole day, for the law takes no account of fractions of a day in the computation of time. Service on that day was one day's notice, and therefore the three months' notice previous to the termination of the lease was com- plete and fully ended. The next day, JMarch 25th, was the be- ginning of a new period." K^otice April 1st to quit on July 1st, the day following the close of the term, is in time.'" There can be no question, therefore, that a notice served on February 12th, the term expiring on May 12th,'^ or a notice served December 31st, the lease expiring the following March 31st,^^ is early enough. 689. Notice longer than necessary. — It is not necessary that the notice should precede, by exactly three months, the termina- tion of the lease. It may precede such termination by any greater interval and be effectual. The lease ending February 24, 1867, notice given on ISTovember 20, 1866 f^ or the lease ending December 22d, notice given September 20th;'''' or the lease ending Jime 23 d, notice given the preceding December "Currier v. Greie, 142 Pa. 48, 21 Koontz v. Hammond, 62 Pa. 177; Atl. 755. Contra, Parsons v. Bourn- Quinn v. McGarty, 81 Pa. 475. fort, 2 Pearson (Pa.) 81. ^^Stone v. Wimmell, 24 Phila, Leg. "McGowen v. Bennett, 1 Brewst. Int. 212. (Pa.) 397. '*Dumn v. Rothermel, 112 Pa. 272, '^Wenger v. Raymond, 104 Pa. 33; 3 Atl. 800; 119 Pa. 632, 13 Atl. 592. 690 LANDLORD AND TENANT. Sdf^ or the lease ending February 15, 1867, notice given Octo- ber 22, 1866 f^ or the lease ending March 19, 1893, notice given on November 15, 1892,^^ were early enough. In Snyder v. Carfrey,^^ the demise was for one year from May 15, 1865. The notice was given on January 10, 1866. "Here," says Woodward, Ch. J., holding the notice sufficient, "was more than three months' notice to quit at the end of the term, a date that was as well known to the tenant as to the landlord." A lease was for five years with the proviso that the tenant should leave at any time, on receiving one year's notice. A notice given July 29, 1887, to leave on August 1, 1888, was sufficient, both to end the term and also to authorize the proceedings under the act of 1863.5' 690. Notice necessary under whatever kind of lease. — Though the notice is unnecessary, to end the term, as, e. g., when the term is for one year*"* or other definite period, it is necessary to authorize the institution of proceeding's before the justice, under the act of 1863. When the lease is at will or from year to year, notice is necessary in order to end the lease, as well as in order to validate proceedings before the justice ;®''^ and though, because the tenancy is from month to month, or because the lease stipu- lates for it^^ a shorter notice than of three months is sufficient to terminate the lease, the three months' notice will be necessary to qualify the lessor to recover the possession by the statutory proceeding. 691. Who gives the notice. — The notice to quit must emanate '^Tilford V. Fleming, 64 Pa. 300. leaf v. Ealeracker, 1 Woodw. Dec ^Kraft V. Wolf, 6 Phila. 310, 24 436; Chambers v. Shivery, 6 Pa. Phila. Leg. Int. 212. Dist. R. 101; Wilke v. Campbell, 5 "Jalaps V. Young, 3 Pa. Super. Ct. Pa. Super. Ct. 618. 422. "Dumn v. Rothermel, 112 Pa. 272, ".54 Pa. 90. Lease ends May 23, 3 Atl. 800, 119 Pa. 632, 13 Atl. 509; notice given January 2. sterling v. Phoenixinlle v. Walters, 147 Pa 501, Richardson, 24 Phila. Leg. Int. 140. 23 Atl. 776. "'Phoenixrille v. Walters, 147 Pa. "-Killeen v. Haddock, 4 Kulp. 408. 501, 23 Atl. 77(i, 184 Pa. 616. The lease prescribed a five days' no- "Rivlt V. Keyser, 54 Pa. 86; Green- tice. RECOVERY OF POSSESSION. 591 from one having authority to demand the possession. A notice signed by the lessor and also by his grantee would sustain a pro- ceeding by the latter to recover the possession."^ A notice by the lessee to his subtenant cannot, it seems, be taken advantage of by the lessor, in a proceeding to dispossess the subtenant.*'* The lease being made April 1, 1872, the lessor. A, conveyed the reversion to B, September 2-i, 1872. A notice to quit served De- cember 31, 1872, by A, stating that he desired to repossess him- self of the premises on April 1, 1873, was sufficient to support proceedings by B for the recovery of the possession. "If," said Sharswood, J., "as the inquisition expressly finds, the notice was given with the desire of delivering the fiossession to the alienee, and the proceeding [before the justice] is in the name and for the benefit of the alienee, the lessor was no such stranger. Every presumption is in favor of the regularity of the proceeding ; and, applying this principle, we agree mth the court below that the record sufficiently shows that tlie lessor still retained an interest in the property after the date of her deed of conveyance, to en- title her to give the necessary notice to quit""^ 692. Notice to whom. — If there are joint lessees, a sendee of the notice directed to both or one of them is a good notice. The lease being to James Glenn and Charles A. Glenn (who is a son of James), a notice directed to James Glenn & Son was good. A "verbal mistake in the recital of names of the lessees was im- material."*® 693. Form of the notice. — A mistake in the date assigned in the notice for the expiration of the lease will be unimportant if "Jalass V. Young, 3 Pa. Super. Ct. were begun. P demanded possessioa 422. July 8, 1895. The lessor, not shown "Cham'bers v. Shivery, 6 Pa. Dist. to have given three months' notice to R. 101. The lease was to P for one quit, could not avail himself of PV year from April 1, 1895. P sublet notice. to S for the month of April. 1895, °=Glctin v. Thompson, 75 Pa. 389. but continued in possession until "Glenn v. Thompson, 75 Pa. 389. April 30, 1896, when the proceedings 592 LANDLORD AlsD TENANT. it must appear to the tenant that it is a mistake. A notice dated December 30, 1880, and sensed the next day, stated that the lease would expire on March 31, "1880," instead of 1881. The mistake was manifest and innocuous. "It was explicit and clear, however, in this, that possession was demanded at the ex- piration of the lease.""^ A notice reciting a demise from the lessor of described premises "for a certain term which will ter- minate and expire on the 19th day of April, 1893," and ex- pressing the desire of the notifier to have again and repossess the premises, and requiring the lessee "to leave the same upon the expiration of the hereinbefore-mentioned term," is not void be- cause the lease really expired March 19th, instead of April 19th. "The misstatement as to the end of the tenn," remarks Smith J., "could not mislead the tenant, who, of course, knew when the current year expired.""^ It is not necessary that the notice should state that possession is required at the expiration of the term. It is enough if it requires the tenant to "remove from and leave the premises."** The notice may be given by an agent. It may, e. g., be signed "B. M. Miller for E. A. Miller."'" 694. Service of notice. — The written notice may be dated one day and served on a later day. It is effective, of course, only upon its actual service.^'' The notice may be served personally, or on some adult person on the premises. If the tenant takes himself and all his family from the premises on the last hours of the period in which notice must be given, in order to make service impossible, the slipping of a notice under the front door ef the house, or of a shop, forming, with the house, the prem- ises, will, if the next day the lessor verbally informs the tenant "Wenger v. Raymond, 104 Pa. 33. )ease, and that mentioned in the no- "Jalass V. young, 3 Pa. Super. Gt. tiee, ii'de Kaier v. Leahy, 15 Pa. Co. 422. See Dumn v. Rothermel. 112 Ct. 243. Pa. 272, 3 Atl. 800, for a form of no- 'Hllenn v. Thompson, 75 Pa. 389. tiee. '^Wenger v. Raymond, 104 Pn. 33; "l^tonr V. Wimmill, 24 Phila. Leg. nvnin v. Rothermel, 112 Pa. 272, 3 Int. 212. As to a discrepancy be- Atl. 800. iwcen the end of tlie term in the RECOVERY OF POSSESSION. 693 of this act,''^ or the tenant the next day finds the noticej be a good service. 695. Waiver of notice. — There may be an explicit waiver in the lease of the notice required by the act of 1863, and when there is, the notice will be unnecessary. The words: "The notice to quit required by an act of assembly previous to pro- ceedings to recover possession of the demised premises, and the benefits of the laws granting stay of execution . . . are hereby waived by the said party of the second part," — dispense with notice, as a preliminary to the commencement of proceed- ings under the act,'^ as do the words, "And the lessee hereby waives the notice to quit required by the act of assembly.'"* A provision in the lease for a shorter than three months' notice, in order to end the term, cannot be understood to intend to sub- stitute this notice for that which is prescribed in the act of assembly. Tlius, the lease being at will, the tenant engaging to leave at five days' notice ;^^ or the lease being for a definite term, with a proviso to quit the possession upon thirty days' notice after a sale of the reversion,''* — the stipulation concerning notice will be understood to refer solely to the termination of the tenant's right of possession, and not to the condition for instituting the statutory proceedings to recover the premises. But if the lease is for a definite term, e. g., two and a half months, and it contains a stipulation to surrender possession on thirty days' notice, it is inferred that the purpose of the stipulation is to substitute the thirty days for the period mentioned in the '•'Currier v. Grehe, 142 Pa. 48, 21 N. S. 103. In Mill Creek Coal Co. Atl. 755. V. Androkus, 2 Pa. Dist. R. 764, the '"Sizer v. Rvssett, 11 Pa. Super, court thought that a provision in a Ct. 108; Wilke v. Campbell, 5 Pa. lease at will, for the surrender of the Super. Ct. 618. possession on ten days' notice, was a '^Kaier v. Leahy, 15 Pa. Co. Ct. waiver of the three months' notice. 243. But the waiver was not explicitly '"Killeen v. Haddock, 4 Kulp, 408. found by the justice, as it should '"Lapsley v. Fifth Avenue Nat. have been in order to dispense with Bank; 30 Pittsb. L. J. N. S. 271. Cf. tlie statutory notice. Matthews v. Rising, 31 Pittsb. L. J. Land. & Ten. 38. 694 LANDLORD AND TENANT. acts of assembly. "A waiver," says the court, "arises by neces- sary implication, when the lease contains a stipulation for a notice to quit, which could have been introduced for no other purpose but as a substitute for the statutory provision. This is- such a case. The notice stipulated for was not intended as a condition precedent to the termination of the tenancy, as possi- bly it might be construed if the tenancy were at will. It was m.anifestly intended to take the place of the statutory notice to remove, and the record shows with sufficient clearness that it wa& given in accordance with the terms of the agreement. "'''' 696. The Domplaint.— It shall be lawful, says the act of 1863,. for the lessor, his agent, or attorney to complain of the refusal of the tenant to leave and surrender up the premises at the ex- piration of the term, to any justice of the peace in the city,, borough, or county wherein, the demised premises lie. The com- plaint should, when presented to the justice, be in writing or at least reduced to writing, and sworn to or affirmed before he takes action on it.'* This complaint is the foundation of the action.''^ It must, according to some cases, set forth all the facts necessary to give jurisdiction to the justice,*'' though there is an occasional intimation that the findings of the justice of facts not stated in the complaint might cure the error of the omission.*^ Possibly .an amended complaint may be filed after the issue of the summons and in the presence of the parties at the hearing. If such amended complaint professes to be com- plete, it cannot be supplemented by the averments of the original complaint*^ The complaint, it may probably be said, must state "WiWce V. Campbell, 5 Pa. Super. ''McDermott v. Mcllxoain, 75 Pa. Ct. 619. 341; Leinbach v. Kaufman, 2 Walk. "In McGinnis v. Vernon, 67 Pa. (Pa.) 515; Rowan v. Gates, 9 Pa. 149, no complaint in writing as the Dist. P. 564; Spotts v. Farllng, 2 ground of the summons was filed. Pearson (Pa.) 295. '"Roican v. Gates, 9 Pa. Dist. P. '^McDennott v. Mcllwain, 75 Pa. 564; Wenger v. Raymond, 104 Pa. 341. 33; Leinbach v. Kaufman, 2 Walk. ""Spotts v. Farling, 2 Pearsoa (Pa.) 515. (Pii.) 295. RECOVER!^ or POSSESSION. 595 that the lessor was quietly and peaceably possessed of the prem- ises when he made the lease f^ that he demised the same to the tenant in possession or to some other person under whom such person claims;** that a rent certain was reserved;*® that the term is fully ended ;*'' that three months' notice to quit the pos- session, prior to the ending of the term, was given ;®^ that the defendant nevertheless retains and refuses to give up the posses- sion.** It must state whether the lease is for years or at will. To describe it in the alternative as "for a year or at will," is at least an irregularity, though, possibly, it would not, alone, de- stroy the jurisdiction of the justice.*^ The premises which are the subject of the lease and of the action must be adequately de- scribed. The complaint describing them by adjoiners and add- ing the words "containing acres, more or less," was mildly censured by Thompson, Ch. J., who remarked: "The premises are not suiEciently described. There are boundaries given of the land, but the acres are in blank, with the addition of 'more or less.' By right, the number of acres should have been set out if in the case."^° Describing the premises merely by the town- ship in which they lie is insufficient;®-' but describing them as "situated on the north side of Third street, at the northeast cor- ner of Elm and Third streets, in the borough of South Bethle- hem, Pa.," is enough.*^ A complaint alleging that the lessor "^ttowan V. Gates, 9 Pa. Dist. R. "Givens v. Miller, 62 Pa. 133. 564; 8potts V. Farling, 2 Pearson Thompson, Ch. J., said: "If every- (Pa.) 295; Steigelman v. Klugh, 9 thing else had been right, we might Lane. L. Rev. 321. not be disposed to disturb the judg- "Rowan v. Gates, 9 Pa. Bist. R. ment." 564; Steigelman v. Klugh, 9 Lane. "Givens v. Miller, 62 Pa. 133. L. Rev. 321. That setting out the number of ''Steigelman v. Klugh, 9 Lane. L. acres is unnecessary is intimated in Rev. 321. Spotts v. Farling, 2 Pearson (Pa.) '"Rowan v. Gates, 9 Pa. Dist. R. 295; Quigney v. Quigney, 1 North- 564; Steigelman v. Klugh, 9 Lane, ampton Co. Rep. 20. L. Rev. 321. "Spotts v. Furlong, 2 Pearson "Vouan V. Gates, 9 Pa. Dist. R. (Pa.) 295; Steigelman v. Klugh, 9 504; Steigelman v. Klugh, 9 Lane. L. Lane. L. Rev. 321. Riv, 32]. "'Quigney v. Quigney, 1 Northamp- "Steigelman v. Klugh, 9 Lane. L. ton Co. Rep. 20. Rev. 321. 596 LANDLORD AND TENANT. was in quiet possession, and that he demised the same, may give a copy of the lease, to indicate the nature of it, and its period of ending. If in addition it avers a notice to quit of the necessary period, giving a copy of it, and of the return of its service, and alleges that the tenant refuses to deliver up the premises, it is sufficient.®^ The complaint must be filed vs^ith the magistrate in order to give him jurisdiction.®* 697. Before whom complaint made. — The justice before whom the complaint is made alone has jurisdiction to proceed upon it to an investigation and judgment. It was thought in Rowan v. Gaies^^ that a complaint could not be made before a justice unless it was first presented to him and was sworn to before him ; and that, if a complaint was sworn to before one justice without intending that the proceeding should be begun before him, it could not be carried before another justice with a view to be- ginning proceedings before the latter. This view is not accepted in Chambers v. Shivery ^^ where it is held that the lessor may swear to his complaint before any oliicer empowered to admin- ister oaths, e. g., before a notary public, and may then carry it thus authenticated to a justice, who may act upon it without re- quiring a fresh oath. 698. The summons. — On the presentation of a complaint con- taining the proper averments, it becomes the duty of the justice "to siimmon the defendant to appear at a day fixed, as in other civil actions," giving the defendant notice of the time and place of hearing. The return day must not be more than eight nor less than five days after the date of the summons.®^ It is error °^Kaier v. Leahy, 15 Pa. Co. Ct. field v. Behm, 6 Pliila. 135, judj^raent 243. was rendered on an unsworn com- "Long V. Swavely, 1 Just. 75. plaint, December 23, 1865. The com- "° 9 Pa. Dist. R. 564. The com- plaint was sworn to March 8, 1866. plaint should be written and sworn On certiorari, several exceptions be- to; as in Speigle v. McFarland, 25 ing alleged, the judgment was re- Phila. Leg. Int. 165; Dumn v. Bother- versed. inel, 112 Pa. 272, 3 Atl. 800; Wct?,- "Act March 10, 1810, § 2, 1 Pep- i:cr V. Raymond, 104 Pa. 33. per & L. Digest, 2555; 5 Smith's "e Pa. Dist. R. 101. In Brad- Laws, 161 RECOVERY OF POSSESSION. 597 to make a writ issued August 28 returnahle August 31."* But one served four days before the time of hearing was held proper though there was no appearance."" The summons should always contain a brief statement of the grounds of its issuance/*"* and if it is misleading in this respect, if, e. g., the writ commands the constable to summon the defendant to appear and answer the plaintiff "of a plea of debt or demand not exceeding $100," the proceedings founded on it will be invalid, unless the defend- ant waives the error by appearing. ■"'■' It should designate the time and place of the hearing.^"^ Errors of form and contents of summons are waived by the defendant, if he appears.^"* But if the error is one concerning the nature of the proceeding, — if, e. g., the summons has notified him of an action for a debt not exceeding $100, and not of a proceeding designed to dispossess him,— the defendant does not waive the error by coming to the justice's ofiice at the time of hearing, if he does not remain to hear the testimony. "He appeared," says Thompson, Ch. J., "to meet a claim of debt, as commanded by the summons. This surely would not fix him as appearing in another cause in which he was not summoned."^"* 699. Service of the summons. — A service "personally on the defendant at his dwelling-house, by leaving a copy of the original summons and making knoA^-n the contents thereof," is said to be a sufficient service of any snmnions, and consequently of the "Horner v. Wetherell, 19 W. N. C. and appear on the 3d day of Febru- 197. ary. 18S.';, between the hours of 11:30 "''Phelps V. Cornog (Pa.) 2 Cent, and 12 o'clock in the noon, before the Rep. 844, 4 Atl. 922. A summons magistrate, at his court, 146 S. Sixth isued June 2 to appear on June 8, street, in Philadelphia. The descrip- and served on June 2, was good, tion of the time was held sufficiently Snyder v. Garfrey, 54 Pa. 90. intelligible. ^"McGinnis v. Vernon, 67 Pa. 149; "'.V/JO^is v. Farling, 2 Pearson Kaier v. Leahy, 15 Pa. Co. Ct. 243. (Pa.) 29.5; Kaier v. Leahy, 15 Pa. "•^Gwens v. Miller, 62 Pa. 133. Co. Ct. 243; Quigney v. Quigney, 1 ""Phelps V. Cornog (Pa.) 2 Cent. Northampton Co. Rep. 20. Rep. 844, 4 Atl. 922. The sum- ^"Givens v. Miller, 62 Pa. 133. mons required the defendant to be 608 LANDLORD AND TENANT. summons in this proceeding before the justice/"'' though it is elsewhere held that unless the original summons is shown to have been produced it is not enough to leave a correct copy on the premises, viz., the leased dwelling-house, with the defendant personally.-"'^ It is not enough to prove, by the constable's return or otherwise, that the writ was "served personally by leaving a copy with defendant at his residence and informing him of the contents thereof;" for it would not appear of what the copy left was a copy.'"'^ A statement by the justice in his record that A. B. V., constable, returned on oath a service, giving what purports to be the language of the constable's return, is sufficient evidence on certiorari of the making of the service by A. B. V. and that A. B. V. was a proper constable.-"*^ 700. What must be proved before the justice. — All the facts whose existence is by the act of 1863 made the condition upon which the lessor may recover in the proceeding furnished by it must be established before the justice, and found by him. The defendant may of course furnish evidence of their nonexistence, in rebuttal of that tendered by the plaintiff. 701. Defenses allowable. — The tenant cannot deny the exist- ence of a right in the lessor to the land at the time of making the lease. He cannot, e. g., show that prior to the alleged leasing he had acquired an interest in the premises, which entitled him to possess them independently and in defiance of the terms of the lease. The taking of the lease estops him from alleging this title, until the possession is surrendered.^"^ He may, however, show the devolution of that right on another, since the lease was made, by the death of the lessor, by his conveyance, by a sheriff's '^"Snyder v. Garfrey, 54 Pa. 90. house with an adult member of the "'Shourds v. Way, 8 Phila. 301. family" was not condemned. ^"'Berrill v. Flynn, 8 Phila. 239. ^"Phelps v. Cornog (Pa.) 2 Cent. In Phelps V. Cornog (Pa.) 2 Cent. Rep. 844, 4 Atl. 922. Rep. 844, 4 Atl. 922, a return "served '■'"'Koontz v. Hammond, 62 Pa. 177. on defendant by leaving a copy of the Cf. Fisher v. McCauley, 2 Dauphin within original at the dwelling- Co. Rep. ISO. KECOVERY OF POSSESSION. 590 sale of his title, etc."" This he does not do by asserting and proving that since the lease was made there has been a sheriff's sale of the premises to S, without also asserting and proving that the sale was of the interest of the lessor. Without proof that the interest sold was the lessor's, the justice properly gives judg- ment for the plaintiff, no other defense appearing."^ The tenant may show that he was induced by fraud or misrepresen- tation to accept the demise, and so avoid the estoppel against as- serting a title superior to the landlord's."^ The defendant may ishow that, although wife of X, to whom a lease had been made, she had be-en in earlier possession of the premises under another than her husband's lessor, and had never known of the lease to Mm, nor recognized it.^-'^ He may show a new lease prolonging the period of his possession,^ ^* or, in short, may make any de- fense that would be available in an action of ejectment,"'' in addition to such as consists in the absence of any of tlie facts postulated by the act of 1863, as the basis of a recovery by the plaintiff. 702. The judgment.— If, after hearing, "it shall appear right and proper to the said justice, he shall enter judgment against i;he said tenant, that he forthwith give up the possession of the ""Heritage v. Wilfong, 58 Pa. 137; justice. Strohm v. Carrol, 11 Lane. Koontz V. Hammond, 62 Pa. 177. Bar, 62. The wife of the defendant If, between the notice to quit and the cannot prevent his dispossession, by «nd of the term, a new arrangement asserting an interest in the land as as made between the lessor and lessee, cotenant or otherwise. She must extending his right of possession, the resort to ejectment. Heister v. proceeding to eject him will fail. Brown, 11 Lane. Bar, 159. ■Gonley v. Hielcey, 1 Just. 4. "-Kooiitz v. Hammond, 02 Pa. 177; '^'Heritage v. Wilfong, 58 Pa. 137. Louensfein v. Keller, 3 Kulp, 361. The purchaser at the sheriff's sale "^Diefenderfer v. Caffrey (Pa.) 9 Hied an affidavit that she had pur- Atl. 182. chased; and the defendant pleaded "'fSvpplee v. Timothy, 23 W. N. C. to the jurisdiction, the fact of the 386; McClelland v. Patterson (Pa.) •sheriff's sale. An assertion by the 5 Cent. Rep. 734, 10 Atl. 475; Kelly -defendant that he had an agreement v. Loehr, 1 Brewst. (Pa.) 303. with the plaintiff for the purchase ^"^Liiringood v. Moyer, 2 \\'oodw. ■of the premises, with which agree- Dec. 65; Lowenstein v. KcUer. 3 ment he had failed to comply, does Kulp, 361, ■oot oust the jurisdiction of the 600 LANDLORD AND TENANT. said promises to the said lessor, and the said justice shall also give jiidgment in favor of the lessor and against the lessee or tenant, for such damages as, in his opinion, the said lessor may have sustained, and for all the costs of the proceeding." If the justice finds that the landlord has extended the terui'^* or that the lease has not terminated, by breach of conditions"'' or any other fact inconsistent -with the right to recover the possession,. he dismisses the complaint. Such judgment is no bar to a later action of ejectment by the lessor."^ The judgment for the plaintiif unreversed is conclusive of the right of the plaintiff to recover the possession by means of the appropriate writ, and he cannot be made liable in trespass for the proper execution of the writ of possession or for anj^ imjiroper conduct of the con- stable in executing this writ, which he does not direct or coun- tenance.'^® A judgment in favor of the "agent" of an estate will be valid, the words following his name being mere descrip- tion and immaterial ;^^" and a judgTaent for possession in favor of the lessor's agent, and for damages in favor of the lessor, is regular. ■'^■^ 703. Damages. — The damages for which judgment is to be given are such as, in the justice's "opinion," the lessor has sus- tained.'^" The opinion is to be formed upon evidence. If the lessee remains in possession after the expiration of the lease, the proof of this fact and of the rent which he had agreed to pay will assist in forming this "opinion." The plaintiff, besides, may give evidence of his damages.' ^^ The damages are not ^^"McLaughlin v. McGee, 79 Pa, ™Stone v. Wimmill, 6 Phila. 311, 217. The dismissal is said to be "no 24 Pbila. Leg. Int. 212. judgment." ^'Sterling v. Richardson, 24 Phila. ^"Arnsthal v. Patterson, 3 Pennyp. Leg. Int. 140. 25. The justice is said to have '^"Damages, of course," says Ag- entered judgment for the defendant, new, J., "from all legitimate souvrcs. ' and it was reversed on certiorari. Baines v. Levin, SI Pa. 412. '"McLaughlin v. McOee, 79 Pa. '^McGregor v. Haines. 6 Phila. 82. 217. The act is not unconstitutional, as ^''McClelland v. Patterson (Pa.) allowing the justice to give judgment 5 Cent. Hop. 734, 10 Atl. 475. for damages on an opinion not RECOVERY OF POSSESSION. 601 rent, but are like the damages which a plaintiff recovers in eject- ment or in an action of trespass for mesne profits. They arise out of a WTongful act, not out of a contract. They are not nec- essarily gauged by the rental mentioned in the expired lease. ^^* In rare cases no damages are given.^-^ Where they have been allowed, they have varied, according to the value of the premises, the length of the tenant's detention of them beyond the close of the term, etc. Specimens are $5 ;i2« $6;i27 $50;i28 $60;>2» $75.75 ;"o $140.80 ;i3i and $2,442.1^2 704. Judgment for damages.— The act of 1863 directs the jus- tice, in the proper case, to enter a judgment for the damages in favor of the lessor and against the lessee or tenant. Allison, P. J., in DickensJieets v. Hotclikiss,^^^ refused on certiorari to treat what the record called an "assessment" of $75.75 as damages against the defendant, as a "judgment," saying it was not a judgment, but a mere assessment of damages. But, after "as- sessing" the damages, the justice may enter a formal judgment for the amount, and his record then is unassailable.^^* If the re-cord of the justice states that he "doth assess the sum of — — - dollars for the damage," etc., and then adds a formal judgment for $5 as damages, omission of the amount in the assessment is unimportant.^^^ The record stating, after alleging that dam- founded on evidence. The lease ^"Bedford v. Kelly, 61 Pa. 401. showing the rental value and the ^"Diekensheets v. Hotchldss, 3 evidence the length of the holding Phila. 150. over, from these elements the justice "'Currier v. G-rebe, 142 Pa. 48, 21 "could readily determine the dam- Atl. 755. ages." Kaier v. Leahy, 15 Pa. Co. '"'Bergner v. Palethorp, -2 W. N. C. Ct. 243. 297. The court will conelusivoly "'Smith V. Carter, 17 Phila. 344. presume, on certiorari, the justice Hence, the defendant has no claim having allowed damages, that the of exemption from le\'y and sale in plaintiff claimed damages. Bnljord execution, with respect to them. v. Kelly, lil Pa. 491. '■^Garter v. Hess, 3 W. N. C. 325. '=» 6 Phila. \M. "^"Phelps V. Cornog (Pa.) 2 Cent. '"Schulte v. McCormick. Phila. Rep. 844, 4 Atl. 922. 313; Bedford v. Kelly, CI Pa. 491. ™Quinn v. McCarty, 81 Pa. 475. ^"Thclps v. Cornog (Pa.) 2 Cent. ^^Dunmire v. Price, 12 W. N. C. Rep. 844, 4 Atl. 922. 179. 602 LANDLORD AND TENANT. ages have been assessed at $60 : "Therefore it is considered and adjudged by the said alderman that the said William G. Bed- ford shall and do recover and have of the said premises, as well the said sum of $60 for his damages aforesaid, as also the sum of $8.10 for his reasonable costs by him expended," etc., it was held, apparently, on certiorari, that the word "premises" was a clerical error for the word "defendant," and that the judg- ment was therefore valid. ■'^'' 705. Delivery of possession to lessor. — After the entry of judg- ment for the plaintiff, the act of 1863 directs that the justice ^'shall forthwith issue his warrant to any constable in the coun- ty, commanding him immediately to deliver to the lessor, his agent, or attorney, full possession of the said demised premises, and to levy the damages and costs, awarded and taxed by the said justice, of the goods and chattels of the lessee or tenant, or other person in possession, any law, custom, or usage to the contrary notwithstanding." The writ of possession issues as soon as the plaintiff desires it, — on the very day on which the judgment is rendered,'^' or later ;*^* and if it should be quashed, an alias writ may issue ;^^'* but in Philadelphia, in consequence of the act of March 24, 1865,^*" allowing a certioTari within ten days and making it a supersedeas if the proper recognizance is given, a -writ of possession should not issue until the ten days expire, nor ^"'Bedford v. Kelly, 61 Pa. 431. the common pleas under § 10 of the See Bedford v. Kelly, 01 Pa. 491, act of March 20, 1810, 1 Pepper & h. and Phelps v. Coi~nog (Pa.) 2 Cent. Digest, 2585; 5 Smith's Laws, 161. Rep. 844, 4Atl.922, for forms of judg- Kerv v. Goyle, 12 Phila. 227. ment. That the judgment has been "^Quinn v. McCarty, 81 Pa. 475; publicly given is to be presumed from jMc'linnis v. Vcnicm, 67 Pa. 149; "the public character of the officer. An Graver v. Fehr, 89 Pa. 460. See alderman pronounces his judgments form, in McGinnis v. Vernon, 67 Pa. in his office and they are public. He 149. need not proclaim them upon the '^'^ McClelland \. Patterson (I'a.) housetop, or advertise them in the 5 Cent. Rep. 7.'U, 10 Atl. 475. papers. Snyder v. Carfrey, 54 Pa. "'Graver v. Fehr, 89 Pa. 460. '90. Judgment in landlord and tenant '"1 Pepper & L. Digest, 26.')11 ; P, proceedings cannot be certified into L. 750. RECOVERY OF POSSESSION. 603 after, if the proper recognizance is given, until the final disposi- tion of the case. If the writ of possession issues and is executed Tjefore the expiration of the ten days, the court will award a writ of restitution, on rule.^*^ The plaintiff is not liable in trespass for tke eviction under the -writ of the tenant, his wife and chil- dren, nor for any improper acts of the constable and his assist- ants in effecting tkeir removal from the premises, which he doea not sanction.^ ^^ "^Connelly v. Arundel, 6 Phila. ^"McClelland v. Patterson (Pa.) 38. Cf. Gonley v. Hiclcey, 1 Just. 4. 5 Cent. Rep. 734, 10 Atl. 475. CHAPTEE XXXII. ACT DEC. 14, 1863. REVIEW ON CERTIORARI AND APPEAL. 706. Remedies for error of juf?tice. 707. Review in appellate courts. 708. Certiorari. 709. Certiorari in Philadelphia. 710. What the record must show. 711. Peaceable and quiet possession. 712. The term. 713. Notice. 714. Tenant still in possession. 715. Rent reserved. 716. The lessor. 717. The evidence. 718. Record shows absence of evidence. 719. Substantial conformity wth statute suflBcirait. 720. Review of decision on certiorari. 721. Execution from the common pleas. 722. Restoring the tenant to the possession. 723. Liability of landlord in damages. 724. Appeal. 725. Time and mode of appealing. 726. The recognizance. 727. The affidavit. 728. Procedure. 729. Procedure; amendment. 730. Nonsuit. 731. The trial. 732. The trial; proving tenancy. 733. The trial; proving end of term. 734. The trial; tenant's defenses. 735. Tenant's defenses, continued. 730. Prohibited defenses. 737. Appeal not a supersedeas. 738. Damages of tenant. 739. Damages of landlord. 740. Judgment of restitution. 706. Remedies for error of justice. — The law has conferred 604 REVIEW ON CERTIORARI AND APPEAL. 005 on the landlord the right to proceed in the mode defined by the act of 1863, and has furnished the tenant two means of redress, shonld error be committed by the justice,- — appeal and certiorari. All available defenses can be made before the justice, or before the common pleas. Hence, equity should not enjoin the prose- cution by the plaintiffs of the claim before the justice. "The court," said Thompson, Ch. J., in a case in which the court be- low had issued a perpetual injunction against the prosecution of the case before the justice, "had no jurisdiction in equity of the proceedings. They were not contrary to law, and if they had been, an injunction was not a correctional process. That was to he done by the process provided in the act, viz., by appeal or certiorari. These were the legal matters \^sic^ provided in the act, and a court of equity could not supplement them. Courts may restrain acts contrary to law, but not where they are accord- ing to positive law. That would be to put the courts above the legislature. Where a positive statutory remedy exists and may be pursued, equity cannot interfere on the ground of irreparable mischief."* ^Notwithstanding a reversal of the judgment on •certiorari, the tenant cannot maintain an action of trespass for the eviction under the judgment. The reversal of the judgment because of irregularity in making up the record does not make the landlord a trespasser in evicting the tenant by means of a writ of possession.^ '^Brown's Appeal, 66 Pa. 155 ; 107, Handley, P. J., continued a pre- -Reynolds v. Davis, 1 Kulp, 342. A liminary injunction to prevent the motion for a preliminary injunction plaintiff in the proceeding, who had was refused in Krueger v. Rut- obtained judgment, from issuing ledge, 2 Kulp, 371. In Lowenstein execution, on the ground that he hart V. Keller, 3 Kulp, 361, the court, begun the proceeding aa receiver of while refusing to enjoin from pro- the lessor bank, without right to do ceeding before the justice, allowed so, having no authority from the the injunction to stand so far as court, and no attornment from the preventing the issue of a writ of tenant. execution on the judgment was con- 'Leese v. Borne, 30 Pittsb. L. J. earned, until further order. In N. S. 316. ■Chase v. Ooodale, 2 Law Times N. S. 606 LANDLORD AND TENANT. 707. Eeview in appellate courts. — The judgment on the ap- peal can be reviewed in the superior and the supreme courts, as judgments in other cases.''' Should tlie defendant appeal to the supreme court, and suffer a non pros., with an order that the pen- alties under the act of May 25th, 1874, relating to appeals for delay, sheuld be enforced against him, the plaintiff may not have a writ of inquiry to assess damages for the unlawful reten- tion of the premises by the tenant since the judgment of the jus- tice, which assessed damages, under 16 and 17 Car. II. chap. 8; §§ 3 and 4 Roberts' Dig. *51. The writ of inquiry, on rule, will be set aside.* 708. Certiorari.— The act of December 14th, 1863,^ enacts, as a third proviso, "that the tenant may have a writ of certiorari to remove the proceedings of the justice, as in other cases." But, the justice dismissing the proceedings, the landlord may likewise sue out a certiorari.® The 21st section of the act of March 20th, 1810,'' providing that the certiorari must be sued out in twenty days from the rendition of the judgment, does not apply to the summary process for obtaining possession of leased property under the landlord and tenant acts,* nor, if it did, would the limitation be applicable, if, on the face of the record, the justice's want of jurisdiction is apparent. The certiorari does not supersede the execution of the justice's judgment,® and even after it has been issued, the justice may award a writ of possession.^" 709. Certiorari in Philadelphia. — The act of March 24th, 'Phoenixville v. Walters, 147 Pa. 'Arnsthal v. Patterson, 3 Pennyp. 501, 23 Atl. 776; Bergner v. Pale- 25. thorp, 2 W. N. C. 297. '1 Pepper & L. Digest, 2612; 6 'O'Kie V. Depuy, 3 Pa. Co. Ct. 140. Smith's Laws, 161. • 1 Pepper & L. Digest 2050. Sect. 'Oramer v. Fehr, 89 Pa. 461; RuU- 8 of art. V. of the Constitution pre- cum v. Williams, 1 Ashm. (Pa.) 230. ceding that of 1874 did not make an "Graver v. Fehr, 89 Pa. 460. allowance of writs of certiorari by ^'UcGinnis v. Vernon, 07 Pa. 149. the judges of the common pleas necessary. McGinids v. Vernon, 67 Pa. 149. REVIEW ON CERTIORARI AND APPEAL. 607 1865,^^ applicable to Philadelphia, and to the acts of April 3d, 1830, and of December 14th, 1863,^2 declares that the certiorari shall be a supersedeas until ils final determination; "provided that the said certiorari shall be issued within ten days" from the date of the judgment rendered in said proceedings, and upon oath of the party applying for the same, to be administered by the prothonotary of the court of common pleas, that it is not for the purpose of delay, but that the proceedings proposed to be removed are, to the best of his knowledge and belief, unjust and illegal, and will oblige him to pay more money than is justly due ; a copy of which affidavit shall be filed in the prothonotary's office. And provided, further, that the party applying for the same shall g-ive security for the payment of all costs that have accrued or may acciaie, and of the rent which has already or may becx)mo due, up to the time of the final determination of said certiorari, > in the event of the same being determined against him." If the recognizance, upon which the certiorari issues, is for the payment of debt, interest, and costs, and not in the form prescribed, the certiorari will^ on motion, be quashed.^* 'No amount of bail needs to be fixed in the recognizance, and no al- locatur is necessary.^'' The "final determination" of the cer- tiorari is the determination which ends the controversy between the landlord and the tenant. If, the common pleas affirming the judgment, there is an appeal to the supreme court, there is no "final determination" until its decision. If it affirms the judgments of the justice and of the common pleas, the surety '^ 1 Pepper & L. Digest, 2659, P. " The writ may issue after the ten L. 750. days, when the party applies within ^'Hutchinson v. Vanscriver, 6 twenty days after he learns of the Phila. 39; DeCoursey v. Guarantee entry of the justices' judgment. Trust & 8. D. Co. 81 Pa. 217. But Ga,mpbell v. Perm, C. P. Phila. not to the act of March 21st, 1772. "Hutchinson v. Vanscriver, d DeCoursey v. Guarantee Trust d S. Phila. 39. D. Co. 81 Pa. 217. Or to the act of ^'Hutchinson v. Vanscriver, 6 June 16th, 1836. Jackson v. Glea- Phila. 39. son, 6 Phila. 307. 608 LANDLORD AND TENANT. ill the recognizance on which the certiorari issued will be liable for all rents and costs, down to the restoration of possession to the landlord. On paying the rent and costs accruing after the appeal to the supreme court, he would be entitled to subrogation to the recogliizance for the appeal.^'' 710. What the record must show. — The judgment of the jus- tice can be supported only by the existence of the facts which the act of 1863 requires in order to justify the dispossession of the tenant. The finding of these facts must be averred in the record.^' There is no other evidence of them of which the com- m^on pleas, on certiorari, can take notice. These facts need not be severally and articulately stated by the justice as found by him. If they are contained in the complaint, and he avers in the record, generally, that he has found that the complaint is, in all respects, just and true, tliey are sufficiently found to sup- port the judgTTient,^^ though Thompson, Ch. J., has expressed the opinion that it would be better for the justice to set them out distinctly as found by him.*^ Of course, if the complaint does not aver all necessary facts, a general reference to it by the justice will be insufficient; e. g., if the complaint does not aver that a three months' notice was given ;^* or if the complaint describes the premises by adjoiners "containing acres, more or less," and no other description is contained in the rec- ord.^ ^ There must be a description of the premises sufficient to "Glapp V. Senneff, 7 Phila. 214. Livingood v. Moyer, 2 Woodw. Dec. "Givens v. Miller, 62 Pa. 133; 65; Xander v. Weiss, 28 Pa. Co. Ct. Rmcan v. Gates, 9 Pa. Dist. R. 564 ; 80, 12 Pa. Dist. R. 724. Wilke V. Campbell, 5 Pa. Super. Ct. ^"McGinnis v. Vernon, 67 Pa. 149. 1)18. "Mill Greek Goal Go. v. Androkm, ^'Speigle v. McFarland, 25 Phila. 2 Pa. Dist. R. 764. Leg. Int. 165; Killeen v. Haddock, 4 -'Givens v. Miller. 62 Pa. 133. But Kulp, 408; Givens v. Miller, 62 Pa. the court is not quite sure that set- 133; Mill Creek Goal Co. v. An- ting out the number of acres is neces- drokus, 2 Pa. Dist. R. 764; Wilke v. sary. Pearson, J., in Spotts v. Campbell, 5 Pa. Super. Ct. 618; Mc- Farling, 2 Pearson (Pa.) 21),"), thinks G-rath v. Donally, 6 Phila. 43; it unnecessary. Cf. Quigney v. ('oimclly V. Arundel, 6 Phila. 49; Quigney, 1 Northampton Co. Rep. 20. Mrdinnis v. Yernort, 67 Pa. 149; REVIEW ON CERTIORARI AND APPEAL. COS wuide the constable to tliera.^^ A description "certain premises with the appurtenances, situate on the north side of Third street, at the northeast corner of Elm and Third streets, in the borough of South Bethlehem, Pa.," is sufficients^ If the record simply states that the justice has examined witnesses and heard allega- tions and proofs, but finds no facts, it is inadequate.^* The court will not infer the facts from the recital in the complaint, or in the precept of the justice.^'"' The act of December 14, ISG-'!, need not be recited in the record.^'' 711. Peaceable and quiet possession. — That the lessor was, •when he made the lease, quietly and peaceably possessed of the land, must be found by the justice, and the record miist show that he has found it, either by reference to the complaint or otherwise ;-^ and it is said in Spotts v. Farling,^^ that if the .alleged landlord was a mortgagee out of possession, who induced the mortgagor, already in possession, to take a lease, it could not truthfully be alleged that the lessor was in quiet possession. The ■complaint alleging that the lessor was in "peaceable" possession, the record finding the complaint in all particulars just and true, sufficientlj' finds a peaceable and quiet possession. ^^ 712. The term. — The term must be defined positively as one ior years, or at will. To state it as a term either for years or at •will would be inadequate.^" The record should describe the term, so that it may appear that it was ended when the proceed- ^^Xcmder v. Weiss, 28 Pa. Co. Ct. ^Hteigelman v. Klugh, 9 Ivanc. L. SO, 12 Pa,. Dist. R. 724; Livingood v. Rev. 321; Xander v. Weiss, 28 Pa. Moyer, 2 Woodw. Dec. 65. Co. Ct. 80, 12 Pa. Dist. R. 724; Rok- "Quigney v. Quigney, 1 North- an v. dates, 9 Pa. Dist. R. .'564; .ampton Co. Rep. 20. Cf. Flanigen v. Cr-cenieaf v. ffaberacker, 1 Wood-w. Philadelphia., 51 Pa. 491. Dee. 4.36; Spidle v. Hess. 20 Lane. L. ^'McGrath v. Donally, 6 Phila. 43 ; Kev. 385 ; Weber v. Forr, 1 Leg. Rec. Slcelton V. Mason, 23 Phila. Leg. Int. Rep. 131. 126; Bradfield v. Rehm, 6 Phila. 135. -"2 Pearson (Pa.) 29.5. Cf. Fisher ^Miller v. Frees, 1 Wood-w'. Dec. v. ilcCiiuley, 2 Dauphin Co. Eop. ISO. 409. -'Quigney v. Quigney, 1 Northamp- '■^Sterling v. Richardson, 24 Phila. ton Co. Rep. 20. Leg. Int. 140. "Givens v. Miller, 62 Pa. 133. Land. & Ten. 39. 610 LANDLORD AND TENANT. ings began. ^* The time when the lease began ^^ and when it ex- pired should also be stated.^^ The justice may find that the ternx was not fully ended, and dismiss the complaint.^* 713. Notice. — It is not enough to state that there was a three months' notice without saying that it was three months before the expiration of the term,^' nor even that it was three months- before the expiration of the lease, unless it is also stated when the lease expired f^ but when the time of expiration of the lease- is stated, it is enough to say that the lessor demanded possession three months or more than three months before, without giving the date of the service of the notice.^^ The complaint saying simply that notice to quit was given, but not showing whether three months intervened between the giving of the notice and the close of the term, so as to leave it doubtful whether a portion- of the three months followed the expiration of the term, a gen- eral finding that the complaint is just and true will be inade- quate.^* If no three months' notice is averred, but reliance is put on a waiver of it by the tenant, the justice must find th& waiver to have been made.** The fact that the lease contains a waiver is of no avail unless the lease is made a part of the record.*" Stating that ten days' notice was served according "^Horner v. Wetherell, 19 W. N. C. R. 101 ; Rowan v. Oates, 9 Pa. Dist. 197 ; McOinnis v. Vernon, 67 Pa. 149 ; E. 564 ; Weber v. Porr, 1 Leg. Rec- Xander v. Weiss. 28 Pa. Co. Ct. 80, Rep. 131. 12 Pa. Dist. R. 724; Spidle \. Hess, "Homer v. Wetherell, 19 W. N. C. 20 Lane. L. Rev. 385. In Kraft v. 197 ; Xander v. Weiss, 28 Pa. Co. Ct. Wolf, 6 Phila. 310, 24 Phila. Leg. 80, 12 Pa. Dist. R. 724; Spidle v. Int. 212, it is said that the date of Hess, 20 Lane. L. Rev. 385. the demise or of the expiration of "Bedford v. Kelly, 61 Pa. 491; the term need not be stated in the Kraft v. Wolf, 6 Phila. 310, 24 Phila. record, and that it is enough to find Lt<: Int. 212. that the term is ended, and that it ^"Speigle v. McFarland, 25 Phila. was for one year or other time. Leg. Int. 165; Cf. UcGinnis v. Ver- "Rowan v. Gates, 9 Pa. Dist. R. non, 67 Pa. 149. 564. ^'Kaicr v. Leahy, 15 Pa. Co. Ct. "Horner v. Wetherell, 19 W. N. 243. C. 197. '"Killeen v. Haddock, 4 Kulp, 408; ^Arnsthal v. Patterson, 3 Pennyp. Mill Creek Goal Go. v. Androfcjts, 2- 25. Pa. Dist. R. 764. "Chambers v. Shivery, 6 Pa. Dist, REVIEW. ON CERTIORARI AND APPEAL. 6U to the tenor of the lease, if the lease is not given, does not justify the inference by the common pleas on certiorari, that the three months' notice was waived,*^ but, M'hen the lease as found by the justice is for a definite time, and it contains a provision that the tenant shall leave at the expiration of thirty days, the thirty days' notice will be understood to be a substitute for the three months' notice.*^ The notice need not be attached to, or copied into, the record.*' 714. Tenant still in possession.— The record must contain the finding that the tenant, at the date of the judgment, still occu- pies the premises.'*'* This it does if it states that the tenant is still possessed of the premises, and that he has hitherto refused, and still does refuse, to comply vpith the demand that he remove from and leave the same.*' 715. Rent reserved. — The record must show a finding by the justice that the lease reserved a certain rent.*® It is not enough that, being in writing, it in fact does reserve such a rent.*'' The record showing the finding that the rent is "the interest and taxes accruing thereon," is inadequate, because what interest, and on what, is meant does not appear.** The record must show that demand was made for the rent, the terms of the lease, the amount of rent reserved, the amount in arrears.*' 716. The lessor. — The record m^ist contain a finding of who made the lease. This it will suificiently do if it states a finding '^Mill Creek. Goal Co. v. Androkus, the end of the three montha or not, 2 Pa. Dist. R. 764. so far as reversing on certiorari for "Wilke V. Campbell, 5 Pa. Super, defect of the record is concerned. Ct. 618. '-Weber v. Porr, 1 Leg. Rec. Rep. "Stone V. Wimmill, 24 Phila. Leg. 131. Int. 212. "Graver v. Fehr, 89 Pa. 460; "Horner v. Wetherell, 19 W. N. C. Blester v. Broivn, 11 Lane. Bar. 159; 197. Reynolds "v. Robinson, 3 C. P. Rep. "Bedford v. Kelly, 61 Pa. 491; 20. Kaier v. Leahy, 15 Pa. Co. Ct. 243. "Davis v. Davis, 115 Pa. 261, 7 Cf. Deisinger v. Shaud, 20 Lane. L. Atl. 746. EeT. 257, where it is said to be im- "Long v. Swavely, 1 Just. 75. The material whether the defendant costs, as indorsed on the writ of pos- moved away from the premises at session, must appear. C12 LANDLORD AND TENANT. that the plaintiff demised the premises to the defendant.^" The making of the lease to the defendant or one under whom he claims must be found. ^^ 717. The evidence. — When the necessary facts are found by the justice, the common pleas, on certiorari, -will conclusively as- sume, unless the record shows there was no evidence to support any of them, that they were found on sufficient evidence ; or rather, it is not the function of the certiorari to effect a recon- sideration by the appellate court, upon the merits.^^ The justice finding damages, the court will presume that a claim of dam- ages was made before him.'^ The finding that the tenure was fully ended will be assumed to rest on sufficient evidence that there had been no agreement to prolong the term."* The finding' that there was no forfeiture of the lease will be conclusive against the landlord whose proceeding predicates such forfeiture, notwithstanding that no evidence is exhibited in the record.^'' And the omission of the justice to find a second lease, under which the tenant would be entitled to a continuance of the pos- session of the premises, cannot be shown to be erroneous.'^® It is not necessary that the evidence heard by the justice should be incorporated into his record,^'' and if it is not, the common pleas cannot know what it was. Even the lease, or other documents used before the justice, cannot be considered by the court, un- less they have been made a part of the record,'^* and the fact that '"Stone V. Wimmill, 24 Phila. Leg. hearing the proofs and allegatipns" Int. 212. of the plaintiff, he finds certain facts, "'TFeber v. Porr, 1 Leg. Rec. Rep. it will not be necessary in any other 131. way to aver that due proof was '-Bedford v. Kelly, 61 Pa. 491 ; made after notice to the tenant of €reenleaf v. Haberacifer, 1 Woodw. the time and place of hearing. Di'C. 436; Sterling v. Richardson, L!4 I'helps v. Cornog (Pa.) 2 Cent. Rep. Phihi. Leg. Int. 140; Livingood v. S44, 4 Atl. 022. Uoycr. 2 Woodw. Dee. (io. '"ll'iV/.-e v. Campbell, 5 Pa. Super. ''Brrlfnrd v. Kelly, 61 Pa. 491. Ct. 618. '■'Ilcdford v. Ki'Uy, 61 Pa. 491. "Arnsthal V. Patterson, 3 Pennyp. '"Arnstlial v. Patterson, 3 Pennyp. 2.3. 25. ''Killeen v. Haddock, 4 Kulp, 408, If the justice states that, "after 3 Montg. Co. L. Rep. 176; Mill Creek REVIEW ON CERTIORARI AND APPEAL, . 013 the record states that they were offered in evidence does not make them a part of it, but when the lease is set out by the justice as a part of his findings, the court, on certiorari, may take notice of its provisions.'^' The lease, thus set out, j^roviding that the ten- ant might continue in possession from year to year for five years, on his taking steps to have appraisers appointed, at the end of each year, to fix the fair rent for the coming year, if the justice finds that the lease was continued, and gives the facts from which he infers that it was continued, viz., a mere notice by the tenant to the landlord that he would continue in possession, but no at- tempt to cause an appraisement, and no excuse for omitting to cause it, the court of common pleas will reverse."" 718. Record shows absence of evidence. — The justice need give no evidence. He may, however, give it. If, giving some, he states that it is all that was received by him, and it does not furnish any support for some of the essential facts found by him, the judgment will be reversed.®^ "When the record states that the plaintiff produced his lease, his deed, and the notice to quit, but does not state that any of them were offered or ad- mitted in evidence, and adds that the constable was sworn and proved the service of the summons and notice, the court may properly infer that no other evidence than that specified was heard or received, and will reverse the judgment for the plain- tiff.*'^ The omission to set out the evidence is not error,*^^ and though an exception alleges error in receiving testimony of an incompetent witness, the court will not inquire into the truth of the exception"* nor will the court, on an exception to the justice's Coal Co. V. Androkus, 2 Pa. Dist. R. If the documents submitted would 764. support the finding, the hearing of 'Urnsthal v. Patterson, 3 Pennyp. further evidence would be unneces- 2") sary. Snyder v. Carfrey, 54 Pa. 00. ^_"Arnsthal v. Patterson, 3 Pennyp. ,;,^^^^^^^ ^_ j^^,,^^ ^1 p„ ^pj ^"'^^Bradfield v. Reh,n, 6 Phila. 135. "^^ierling v. Richardson, 24 Phila. There was no finding of facts in this Leg. Int. 140. For errors ni the ad- case. mission or rejection of evidence, the ""-Connelly v. Arundel, 6 Phila. 49. remedy is appeal, and not certiorari. 014 LANDLOHD AND TENANT. return of his record, alleging diminution of record because it omits the testimony, require him to return the testimony.^'' Probably parol evidence would be received, on certiorari, that the justice refused to hear evidence, or that he did anything else that indicated partiality or corruption."^ 719. Substantial conformity with statute sufficient. — Substan- tial conformity with the statute, in the proceedings before the justice, is all that is requisite. The act of 1863 was designed to give landlords a more convenient remedy to dispossess tenants than they had under the old act of 1772. Proceedings under these statutes, though summary, are not to be criticised with the extreme strictness that is applied to summary convictions under penal statutes, for the relation of landlord and tenant rests in contract, and involves mere rights of property; and the rem- edies are purely civil, and not in the slighteot degree penal. Very few aldermen and justicee of the peace can make up rec- ords upon penal statutes which can withstand the criticisms of a certiorari, but in committing the rights of landlords and tenants to the unaided judgment of such a magistracy, the legislature meant that superior courts should exact no unattainable precision of procedure, but only such substantial compliance with the letter and spirit of the statute as would generally be within the competence of the magistrates.®'^ If the justice's record seems incomplete, the party suing out the certiorari may, by affidavit or otherwise, suggest the diminution, and ask for an order of the court to the justice, to certify the whole record, and this order may be enforced by attachment. If the exceptant fails to do Qvigney v. Quigney, 1 Northampton "Snyder v. Carfrey, 54 Pa. 90 Co. Rep. 20. Kaier v. Leahy, 15 Pa. Co. Ct. 243 "Hiester v. Brown, 11 Lane. Bar, Buchanan v. Baxter, 67 Pa. 348 159. Phelps V. Cornog (Pa.) 2 Cent. Eep. "Wilke V. Gamplell, 5 Pa. Super. 844, 4 Atl. 922; Strolwn v. Carrol, 11 Ct. 618. Cf. Fisher v. Wi/ce, 60 Pa. Lane. Bar, 62. 107. REVIEW ON CERTIORARI AND APPEAL. 615 "this, an exception that the record is incomplete will not be con- sidered.®^ 720. Review of decision on certiorari. — Appeal from the de- ■cision of the common pleas upon the certiorari can be had in the superior and supreme courts. The common pleas affirming the justice, the appellate court may affirm®^ or reverse;'^" and the ■common pleas reversing the justice, the appellate court may affirm, or it may reverse^' the reversal. 721. Execution from the common pleas. — If the tenant re- mains in possession of the premises until the decision of the com- mon pleas on the appeal, that court may, after affirming the judgment of the justice in favor of the plaintiff, award a writ of possession.'^ Prior to the act of May 10, 1897,'^ it was held that bail having been given, a writ of error being filed in the prothonotary's office two days after the issue of a writ of posses- sion, it suspended the writ, and the court discharged a rule on the sheriff to show cause why he should not proceed to execute the habere facias and fi.. fa. '^^ and a writ of possession awarded ■on rule to show cause, by the common pleas after a writ of error had been sued out and a recognizance had been given, to secure a supersedeas, under the act of June 16, 1836, was, on certiorari from the supreme court, quashed by that court. '^^ 722. Restoring the tenant to the possession. — If the common pleas reverses the judgment of the justice, under which the ten- ant has been dispossessed, it is within its sound discretion whether to order a restitution of the possession to him. For '^Hiester v. Brown, 11 Lane. Bar, ^Hwines v. Levin, 51 Pa. 412. 159. " P. L. 67. See § 10. "Tilford V. Fleming, 64 Pa. 300; ^*Cornog v. Phelps, 16 W. N. C. Haines v. Levin, 51 Pa. 412. 115. '"Givens v. Miller, 62 Pa. 133; ^'Haines \. Levin, 51 Pa. 412. The Horner v. Wetherell, 19 W. N. C. recognizance was not in proper form, 197; Speigle v. McFarland, 25 Phila. but had been required by the land- Xeg. Int. 165. lord. Cf. Connelly v. Arundel, G "^Bedford v. Kelly, 61 Pa. 491; Phila. 59; McDonald v. Gifford, G •Bnyder v. Carfrey, 54 Pa. 90; Herit- Phila. 315. uge V. Wilfong, 58 Pa. 137. 616 LANDLORD AND TENANT. reasons satisfactory to it, it may refuse to award this restora- tion ;'^ e. g., when the tenant has vacated tlie premises without waiting to be put out by execution, or when the term has ended, so that the landlord would have a common-law right to re-enter,, and is now rightfully in possession.'''^ 723. Liability of landlord in damages. — If the justice's judg- ment in favor of the landlord is reversed on certiorari, even for mere irregularities, the landlord will be liable in damages, if he has evicted the tenant by means of the writ of possession ; e. g., by the constable setting the tenant's goods into the street He will not be liable, if the tenant peaceably retires, without compulsion.''® 724. Appeal. — The 1st section of the act of December 14,^ 1863,''* directs that "the defendant may, at any time within ten days after the rendition of judgment, appeal to the court of common pleas, in the manner provided in the first section of an act relative to landlords and tenants, approved April 3,. 1830." It also enacts "that such appeal shall not be a super- sedeas to the warrant of possession aforesaid, but shall be tried in the same manner as actions of ejectment, and if the jury shall find in favor of the tenant, they shall also assess the damages which he shall have sustained by reason of his removal from the premises, and, for the amount foimd by the jury, judgment shall be rendered in his favor, Avith costs of suit, and that he recover possession of the premises, and he shall have the necessary writ or writs of execution to enforce said judgment." 725. Time and mode of appealing. — The appeal may be taken "at any time within ten days" after the judgment of the justice is rendered. The judgment being rendered ^November 20th, an appeal taken November STth,*" or the judgment being ren- "Leffmgu-ell v. Wilkes-Barre, 4 ™ 1 Pepper & L. Digest, 2650, P. L Kulp, 494. of 1864, 1125. '''killeen v. Haddock, 4 Kulp, 408. '"Tripp v. Barnes, 1 Law Time* "'Hic/iei/ \. Conley, 18 Montg. Co. 73. L. Rep. 124. REVIEW ON CERTIORARI AND APPEAL. 617 dered December 8tli, an appeal taken December 18th,*^ or judg- ment being entered November 3rcl, an appeal taken JSrovember llth,*^ are early enongb. The appeal is taken when the recog- nizance is given. The filing of the transcript in the common pleas is not a part of the act of appealing. "The appeal itself is taken," says Metzge.r, P. J.,"*^ "as soon as the recognizance is. given, and the filing of the transcript is only necessary to make the appeal effectual." Hence, the recognizance being given within the ten days, the transcript may be filed on the llth,^* the 26th, ^^ or other later day, if on or before the first day of the term of common pleas succeeding the expiration of ten days after the rendition of the judgment. 726. Tlie recognizance.— The act of April 3, 1830,8^ which, mutatis mutandis, is adopted in this respect by the act of 1863, requires, for the appeal, that the tenant "shall give good, suffi- cient, and absolute security, by recognizance, for all costs that may have and may accnie, in case the judg-ment shall be af- firmed, and also for all rent that has accrued or may accrue up to the time of final judgment." The act of 1830 provides for the dispossession of the tenant during the term, and therefore rent is running upon tJ:ie l(;ase after the institution of the pro- ceeding. To require a recogTiizance to secure the payment of this rent, as a condition for apj^ealin;^, is quite reasonable. The act of 1863, however, is applicable only when the lease has end- ed, and when the lessor is treating the former tenant as a tres- passer. Rent is no longer running. Hence, it has been held*'^ that the word "damages" should be substituted for the word "rent" in the recognizance for appeal, under the act of 1868. ''Carter v. Eess, 3 \\\ N. C. 3ii5. "WiUard v. Martin, 23 Pa. Co. Ct. ''^Willard v. Martin, 23 Pa. Co. Ct. 285. 285. ^Tripp v. Barnes, 1 Law Times, 73. "Willard v. Martin, 23 Pa. Co. Ct. '" 1 Pepper & L. Digest, 2657. 285. The eontention was rejected "Tripp v. Barnes, 1 Law Times, that the appeal must be talven in five 73 ; Ward, Recorder. Leave was giv- days and the transcript filed within en to amend the recognizance, ten days. o]8 LANDLORD AND TENANT. In Koenig v. Bauer, ^^ however, the recognizance given was for "damages and costs" until final judgment. On the lessor's mov- ing to strike off the appeal because of this form, alleged to be a defect, the tenant asked and obtained leave to file a recognizance to secure payment of "rent" instead of damages. If the recog- nizance is defective, the court will not unconditionally quash the appeal. The lessor should obtain a rule on the tenant to per- fect it, and the appeal should not be dismissed, except as a pen- alty of his neglect or refusal to perfect it. "The right of appeal and of trial by jury," says Agnew, J., "is too precious to be frus- trated by the ignorance, incompetency, or malice of inferior magistrates and oiRcers."^" 727. The affidavit.— The act of March 27, ISeS,"" requires, in all cases of appeals from the judgments of aldermen in the city of Philadelphia, that the defendant or some person acting in his behalf, having knowledge of the facts in the case, shall file with the alderman an aiRdavit, setting forth that the appeal taken is not for the purpose of delay, but that, if the proceed- ings appealed from are not removed, he or the defendant will be required to pay more money, or receive less, than is justly due, which affidavit shall be attached to the transcript by the alder- man, to be filed in the court to which the appeal is taken. If such affidavit is not made, the court to which the appeal is taken will, on motion, strike it off."' A similar statute operates in Lan- caster®^ and other counties. An afildavit to the effect that the " 57 Pa. 168. The allowance of ant appealed his surety became, by an amendment is approved, but noth- the terms of the recognizance, liable ing is said as to the propriety of the "for all rent that has accrued or form of the recognizance. The may accrue up to the time of final recognizance in Carter v. Hess, 3 W. judgment." N. C. 325, was conditioned for pay- "" 1 Pepper & L. Digest, 2610, P. L. ment of rent and costs to final judg- 794. ment. "'Carter v. Eess, 3 W. N". C. 325. '"Koenig v. Bauer, 57 Pa. 168; •= The act of March 2d, 1868, P. L. Shenk v. Shaeffer, 8 Lane. L. Rev. 256; Shenk v. Shaefjcr, 8 T-anc. L, 49. In Diinmire v. Price, 12 W. N. Rev. 49. C. 179, it is said that when the ten- REVIEW OlSr CERTIORARI AND APPEAL. 619 appeal is not for the purpose of delay, but because the defendant firmly believes injustice has been done him, sufficiently con- forms to it to support the appeal. 728. Procedure. — The appeal is to be "tried in the same man- ner as actions of ejectment." In the absence of a rule of court reg-ulating the practice, the plaintiff may treat the transcript as a declaration,"^ and may require the defendant to plead to it*^ The plaintiff may, if he chooses, also file a declaration.®^ To a rule to plead after the filing of the transcript, the defendant de- murred on the ground that the transcript was defective in not setting out the term of the demise. The court gave leave to the plaintiff to file a declaration.®® The plea of "not guilty"®^ may be accompanied by a special plea, denying the justice's juris- diction®* or setting up an agreement, subsequent to the notice to quit, that the tenant might remain on the premises.®® A case stated may be filed.^®® 729. Procedure; amendment. — The court may allow an amendment of the name of the plaintiff. The proceedings be- fore the justice having been in the name of "J. H. Thompson, Agent," the name of his principal, Anton Lutz, may be substi- tuted in the common pleas. ^®^ But, two executors, A and B, having made the lease, and A only having given the notice to quit, and begun, in his own name, individually, proceedings be- fore the justice, after the appeal, the court refused to allow, at the instance of A, an amendment substituting the names of A and B as executors, because the tenant was now an actor, seek- "Wenger v. Raymond, 104 Pa. 33; Rothermel v. Dumn, 119 Pa. 632, 13 Gihlons v. McGuigan, 6 Phila. 108. Atl. 509. °*(Hbbons v. McGuigan, 6 Phila. "'Koontz v. Hammond, 62 Pa. 177. 108. "Supplee v. Timothy, 23 W. N. C. ''(Hbbons v. McGuigan, 6 Phila. 386. 108; Eoenig v. Bauer, 57 Pa. 168; ^°°Dunmire v. Price, 12 W. N. C. Koontz V. Hammond, 62 Pa. 177. 179. '"Steinmetz v. Hamilton, 1 W. N. '■"^Lutz v. Wainwright, 193 Pa. C. 286. 541, 44 Atl. 565. "Koontz V. Hammond, 62 Pa. 177; 620 LANDLORD AND TENANT. mg damages for his dispossession, and as he could hfive no remedy against the executors as such, the amendment would de- prive him of redress from A as an individual.'"^ 730. Nonsuit. — For insufficient evidence to support the plain- tiff's cause, the court may entti a compulsory nonsuit;-'*'* but, after all the evidence on both sides is in, and the court has charged the jury, the plaintiff is not entitled to a voluntary non- suit. The defendant then has a right to the verdict, in order "both to be restored to possession and to recover his damages for removal.'"** 731. The trial. — All the facts necessary, under the act of 1863, to recover the possession in the proceeding before the jus- tice, must be established by the plaintiff in the appeal,'"^ and the jury are "to decide the case precisely as if no prior decision in favor of the plaintiff had taken place.'"*"' Evidence to es- tablish these necessary facts may be introduced by either party, which was not used before the justice. E. g., whether the orig- inal lease was in evidence before the justice or not, it can be offered by the tenant, when his object is to show that under it he was entitled to the possession beyond the time at which the proceedings began.'"" The plaintiff must show, as one of the facts which condition his right to proceed before the justice, that he was in quiet and peaceable possession of the premises when the lease was made, but the acceptance of the lease by the defendant is prima facie evidence of that possession, and until it is rebutted, no more is necessary.'"'* The giving of three months' notice to quit, before the close of the term, is one of the facts to be proved by the plaintiff.'"® Indeed, this may be the ""Hay V. Parks, 7 Northampton ^"Koenig v. Bauer, 57 Pa. 168. Co. Rep. 391. ^'"Keating v. Condon. OS Pa. 75. ^"Jalass V. Young, 3 Pa. Super. Ct. ^Fisher \. McCaulcy, 2 Dauphini 422 Co. Rep. 180. ^"Koenig v. Bauer, 57 Pa. 168. ""Koenig v, Bauer. 57 Pa. 168. "''Lutz V. Wainwrighi, 193 Pa. 541, The frecjuency with which a witness. a Atl. 505. to this or otlier facts may be re- EEVIEW ON CERTIORARI AND APPEAL. 621 only subject of controversy between the parties.**'* If the notice to quit required the defendant to quit on a certain day, and the sufliciency of it depends on whether the tenant is holding over under a former lease, and is therefore a tenant from year to year, or whether he has accepted a new lease which provides for a different time of ending, the jury must determine whether the new lease, offered by the lessor, was in fact accepted by the lessee.*** Whether the notice was sufficient may depend on the term having begiui on December 4th rather than December 22d, the notice having been given on September 20th. The jury must determine, aided by the evidence.**^ If the waiver of the notice is relied upon, it will need to be proven.*** 732. The trial; proving tenancy. — One of the facts postulated by the act of 1863 is that the plaintiff, or one under whom he claims, shall have made a lease to the defendant or one under whom he has the possession. This tenancy must be proven. It is not enough to show that the plaintiff owns and has a right to the immediate possession of the land, and could recover, were the action an ejectment.**^ The lease must have been made by the plaintiff, or a predecessor in the ownership. If it is clear that it was not, it would be error to submit the qxiestion to the jury. If the evidence, e. g., shows clearly, and without contra- diction, that the lease was made by two owners, A and B, and one of them. A, sells his interest to X, who gives the notice to the tenant to vacate, while B renews the lease to the tenant, C, it is error to allow the jury to find that the lease was made by B, for himself alone and in his own name.*** called is for the trial court to de- '^'Rothermel v. Dumn, 119 Pa. 632, termine. 13 Atl. 509. ^^"Currier v. Grebe, 142 Pa. 48, 21 ""Sizer v. Bussett, 11 Pa. Super. Atl. 7.55. Ct. 108. ^"Phrcnixville v. Walters, 147 Pa. If the notice were not shown, the 501, 23 Atl. 776. It would be error court might nonsuit. Jaloss v. for the court to decide, the evidence Young, 3 Pa. Super. Ct. 422. justifying either conclusion by the '■"Koonts; v. Hammond, 62 Pa. 177. jury. ''^Wenger v. Raymond, 104 Pa. Z2. 622 LANDLORD AND TENANT. 733. The trial; proving end of term. — The close of the term (nust be made to appear by the evidence. It might close by a sur- render and the accejDtance of a new lease with an earlier ending. The burden would be on the plaintiff to prove the surrender and making of the new lease.-'-"' The lessee, in a lease for five years, dying at the end of one year and a half after the making of the lease, his widow, not yet become the administratrix (but subse- quently becoming such), could not validly agree to a surrender of the lease, and accept a new one less beneficial to the lessee, and therefore could defend, the proceedings having begun be- fore the termination of the original lease, on the ground that that lease continued. ■^■^'^ The lease for one year may stipulate that the "lawful continuance of the tenancy shall be deemed a re- newal thereof" for the further term of one year. If the tenant shows that he continued in possession beyond the year, and that the lessor received from him money equal to the rent for the first two months following the close of the year, the lessor may show that he demanded this money as due, and mistakenly believing it due, for the last two months of the term ; and that on discover- ing that he had already been paid for these months, he tendered back the money. These facts would not create the right of the tenant to a renewal of the lease. •'^^ The lease, e. g., for five years, may provide for its own premature termination, for breach of a covenant not to remove hay from the premises, or hot to do or to do other things. If proceedings to recover posses- sion are begun before the normal ending of the term, the burden is on the lessor to show the breach of the covenants. Of course the tenant has a right to furnish counter-evidence.^^^ This case implies that if t-wo ten- ^"Keating v. Condon, 68 Pa. 75. ants in common lease the land, one '"(Si^er v. Russett, 11 Pa. Super, of them, against the dissent of the Ct. 108. other, cannot require the lessee to "'Quinn v. McCarty, 81 Pa. 475. vacate, and sustain the proceedings The tenant cannot deny the title before the justice. of the lessor at the time of accepting '^'Keating v. Condon, 68 Pa. 75. the lease. He cannot, e. if., proy« REVIEW ON CERTIORARI AND APPEAL. 623 734. The trial; tenant's defenses.— Whatever would properly prevent a dispossession, under the conditions of the act of 1863, can be proved by the tenant, and he can, of course, furnish evi- dence to rebut or contradict that by which the plaintiff has un- dertaken to prove the facts which must be established to justify his recovery of the possession. The defendant, sued as an indi- vidual, may show that he is in possession as an administrator, for the purpose of avoiding the effect of any alleged rescission of the lease made by him after the death of the lessee, and be- fore he became administrator, and for this purpose he may put in evidence the letters of administration.^^" He may prove the loss of the plaintiff's title by its o'wti expiration, or by a sheriff's sale of it,-'^-' or by a sale of it by himself.^ ^^ He may show that he was induced to accept the lease by a fraud on him or a misrep- resentation as to facts on which his right to the land prior to the lease depends. '^^ He may prove that, being a tenant in pos- session under X, he was induced by Y, the plaintiff, ignoring his duty towards X, to accept a lease from him, Y.-'^* He may show, though the original lease had expired, an oral a^eement that he might continue in possession another year, and that this year had not expired when the proceedings began. ^^^ He may show that there was an earlier lease than that alleged by the plaintiff, and that he is holding over under it, for the purpose that he was the owner, and mort- Hoclcenbury v. Snyder, 2 Watts & S. gaged it simply to the lessor, and ac- 249 ; Brown v. Dysinger, 1 Rawle, eepted a lease from the mortgagee. 408 ; Boyer v. Smith, 5 Watts, 55. Fisher v. UcCauley, 2 Dauphin Co. "'Lowenstein v. Keller, 3 Kulp, Rep. 180. 301. ^""Keating v. Condon, 68 Pa. 75. '"'Z/«te v. Wainun-ight, 193 Pa. ^'^Heritage v. Wilfong, 58 Pa. 137. 541, 44 Atl. 565. The burden is "'Koontz V. Hammond, 62 Pa. upon him. 177; Quinn v. McCarty, 81 Pa. 475. After the notice to quit, the ten- Tenant may show that before the ant may show that it was with- end of the term he acquired the drawn, and that a new lease was rights of a vendee. Krueger v. Rut- made by the parties. An abortive ledge, 2 Kulp, 371. negotiation for a new lease would ^Koontz V. Hammond, 62 Pa. 177. be insufficient. Broim ' v. Mont- Ci. Baskin v. Scechrist, 6 Pa. 154; gomery, 21 Pa. Super. Ct. 262. cm LANDLORD AND TENANT. of estaUishing that the notice to quit did not precede, hj three months, the close of the hold-over period,' ^^ or for the purpose of proving that his right to the possession had not expired.-'^^ The plaintiff may, in turn, contend that the earlier lease, being in parol and for ten years, became, after one year's possession of the premises by the tenant, and his paying one year's rent, a •tenancy from year to year merely; and he may offer evidence that, on a sale of the reversion, there was an agreement for a change of the beginning of the year, and that the year, accord- ing to this agreement, had come to an end after a three months' notice to quit.'^^ 735. Tenant's defenses, continued. — The tenant on the appeal has all the defenses that would have availed him had the action loeen ejectment,'^" and those additional ones peculiar to the jus- tice's proceeding. He may show a former adjudication.'"" In .Diefenderfer v. Cajfrey}^'^ the proceedings were against the ..admijiistratrix of Caffrey. She, Jiis widow, set up a right to the possession in herself, alleging that her stepson had a contract for the purchase of the premises from X before the plaintiff bought them from X ; that she had gone into possession, under the step- son, as his tenant; that, though her husband had, Avhile they ■were both in possession, accepted a lease from the plaintiff, she had had no knowledge of this lease, and had never recognized the plaintiff as landlord. The court instruct-ed the jury that if the stepson claimed the land bona fide, though his title was in fact not good, and if the defendant went into and continued in the possession under the stepson, in good faith, she was not, as administratrix, the tenant of the plaintiff, but, in her own '"Bergner v. Palethorp, 2 W. N. C. ""Qninn v. McCarty, 81 Pa. 475. 207. ^"Lowenstein v. Keller, 3 Kulp, ^'''Dumn V. Rotherm.el, 112 Pa. 272. 361. 3 At.l. 800, 11!) Pa. 632, 13 Atl. .505). "' (Pa.) 9 Atl. 182. AfHrnied by ^^iJumii V. Rothermel, 112 Pa. an equally divided supreme court. 272, 3 Atl. 800, 119 Pa. 632, 13 Atl. 500. Cf. Jo.ies V. Kroll, 116 Pa. 85, S Atl. 857. REVIEW ON CEKTIOKARI AND APPEAL. 625 right, was the tenant of the stepson. The tenant may show that the notice to quit the possession was withdrawn; that, e. g., after the notice, the landlord assented to his continuing in pos- session for another year.^^^ 736. Prohibited defenses.— The acceptance of a lease so far admits the then present right of the lessor to the possession, and to a restoration of the possession, at the expiration of the lease, as to preclude the tenant's justifying the refusal to give up the possession by a denial of that right. Though the tenant has, when he accepts the lease, a better right to the land than the lessor, he cannot set it up.^^^ He cannot show, e. g., that he was the owner of the land, and that he conveyed it by way of mort- gage to the lessor, in order to preclude the recovery of the pos- session by the lessor.-'^* 737. Appeal not a supersedeas. — The appeal, the act of 1863 expressly declares, "shall not be a supersedeas to the warrant of possession" issued by the justice after rendering judgment.-'^" The possession may be delivered to the lessor before the appeal is taken,^^" or it may be delivered pending the appeal. The pro- vision for an appeal presupposes the possibility that the justice mistakenly awarded the land to the lessor, and put him in pos- session. Hence it provides, not merely for the restoration of the possession at the conclusion of the proceedings on the appeal, but also for an indemnification in money. 738. Damages of tenant.— "If the jury shall find in favor of iJee V. Timothy, 23 W. N. C. ^^Eoontz v. Hammond, 62 Pa. 177 ; 386. The fact that the tenant agreed Heritage v. Wilfong, 58 Pa. 137. to remain would be a consideration. "*Fis}ier v. McCauley, 2 Dauphin But without such agreement there Co. Rep. 180. would be a suiKcient consideration. "^Koontz y. Hammond, 52 Pa., m ; The evidence of the agreement of the Willard v. Martin, 23 Pa. Co. Ct. landlord to a continuance of the pos- 285; Keating v. Condon, 68 Pa. 75; session must be clear and convincing, The contrary was assumed in O'Kie and satisfy the jury, not merely that v. Depuy, 3 Pa. Co. Ct. 140. the tenant understood it so, but that '"Qwinn v. McCarty, 81 Pa. 475. the landlord fully assented. Kelly V. Loehr, 1 Brewst. (Pa.) 303. Land. & Ten. 40. 626 LANDLORD AND TENANT. the tenant, they shall also assess the damages which he shall have sustained by reason of his removal from the premises ; and for the amount found by the jury, judgment shall be rendered in his favor, with costs of suit, and that he recover possession of the premises; and he shall have the necessary writ or writs of execution to enforce said judgment." If the decision on the appeal is in favor of the plaintiff, there will, of course, be no damages for the defendant.-'^'' The defendant's damages must be those which he has sustained by reason of his removal. If, the premises being a tavern, he has, by being dispossessed, been deprived of the use of the license to sell liquors, which he has procured, the cost of the license should be allowed him, as also the value of the good will, whose use has been made impossible, and the expense occasioned by the removal.^^^ If the lease pro- vides for the making of improvements by the lessee at his ex- pense, and that they are not to be removed at the expiration of the term, not their cost, but the value of that part of the term of which the tenant has been improperly deprived, as enhanced by them, would be the proper measure of damages. ■'^^ In Quinn v. McCarty^'^" the defendant was allowed to show that he had spent $600 in improvements, of the enjoyment of which he had been deprived by his dispossession under the justice's judgment, as well as that the farm was worth $200 per year when he was put off, aside from what the hotel was paying; that the hotel "'Z/« When the complaint has stated the facts with particiilarity, if the aJdermen find its statements correct, they sufficiently express this finding in their record by saying that they "find the above complaint is in all respects just and true ;"^^ but that expression will be inadequate, when the complaint does not recite all the necessary facts or does not recite them with sufficient particu- larity.^® The record must be selfconsistent with respect to essentials. The precept of the aldermen recited that the prem- ises were rented to Vanfleet, reserving rent, but not saying who rented them and to whom the rent was payable; the transcript affirmed that Hagaman was the lessor, while the writ of posses- sion alleged that Mund (who claimed as vendee of Allen) rented the premises to Vanfleet. Said Allison, J. : "The variance be- tween the different portions of the record is so material as of it- self to render it impossible to sustain these proceedings."^^ Not the tenant only, but a subtenant who would be injured by the execution of the judgment, may sue out a certiorari.^^ The omission of the record to find any necessary fact, — e. g.j Saying "that, after hearing, etc., they her promising that she would devise •do adjudge that the premises shall the premises to him ; that she had not be delivercfd up to Gilbert Alberson, done so; that he accepted the lease the lessor or landlord fortnwith," is for three years from her seven years insufficient. Black v. Alberson, 1 after the purchase, under a threat Ashm. (Pa.) 127. that, if he did not, his goods would ^Caldioell v. Koehler, 1 Phila. 375. be seized by the sheriff and his busi- Finletter, J., remarks, in Erety v. ness broken up; that he had paid the WiWbank, 8 Phila. 300, that in pro- rent regularly until the last quarter, ceedings before aldermen "it must when he removed from the premises, appear [on certiorari] that the judg- and that he had begun an ejectment, ment is founded upon properly re- was dismissed. Beith v. Reith, 13 ceived testimony or evidence, that is, W. N. C. 435. that witnesses were sworn and gave ™lJher v. Hickson, 6 Phila. 132; evidence on behalf of either party, Erety v. Wiltbank, 8 Phila. 300. or that written testimony was duly "Mund v. Vanfleet, 2 Phila. 41. offered and read." An exception to Whether the writ of possession could the judgment of the magistrate, to be resorted to, to supplement defects the effect that that officer refused to in the findings of record, not decid- allow him to prove that he had ed, in Black v. Alberson, 1 Ashm. bought the premises with his own (Pa.) 127. money, but caused the deed to be ^Grider v. Mclntyre, 6 Phila. 112. made to the lessor, his mother, on 636 LANDLORD AND TENANT. the removal of the tenant,^^ the lease being for a term of years ;^'' who was the lessor ;^^ that notice to give security was given by the lessor or his alienee or agent,^^ — will cause a re- versal on certiorari. 749. The writ of possession.— The act of 1825 directs that after entering judgment the aldermen "shall, at the request of the said lessor or landlord, issue to the constable a writ of pos- session commanding him forthwith to deliver possession. The writ may issue on the day on which judgment is entered, or the next^^ or any later day. It may be made returnable immedi- ately, or in four^* or other number of days. Should the judg- ment of the justices be reversed on certiorari after the writ of possession has been executed it is in the sound discretion of the court whether to award restitution of the tenant;?' and it will allow the landlord to lay before it any circumstances that should prevent the award of restitution.*'^ ^'■'Freytag v. Anderson, 1 Rawle, son, 1 Rawle, 73; Ward v. Wandell, 73; Black v. Alberson, 1 Ashm. 10 Pa. 98. (Pa.) 127. ^Freytag v. Anderson, 1 Rawie, "•Mund V. Vanfieet, 2 Phila. 41; 73. (j'eisenberger v. Cerf, 1 Phila. 17. ^Freytag v. Anderson, 1 Rawle, '^Mund V. Vanfieet, 2 Phila. 41. 73. "'Powell V. Campbell, 2 Phila. 42. '''Freytag v. Anderson, 1 Ashm. Prom the judgment of the court of (Pa.) 98. common pleas on the certiorari there ""Black v. Alberson, 1 Ashm. (Pa.) may be an appeal to the superior or 127. supreme court. Freytag v. Ander- CHAPTEK XXXIV. PROCEEDINGS IN PHILADELPHIA ON LOST LEASE. 750. Act of February 28, 18G5. 751. Conditions under which the remedy exists. 752. Conditipns; demand of information from tenant, 753. Proceedings before justice. 750. Act of February 28, 1865.— The act of February 28, 1865/ furnishes a method by which, when the lease is lost, and the time of its ending is not known to the landlord, he may compel the tenant to disclose the time of its ending or suffer an eviction within a specified time. 751. Conditions under which the remedy exists. — The prem- ises, the subject of the letting, must be in the city of Philadel- phia. There must be a "lease or verbal letting of property for a term of years or from year to year." When all that appears is that, when the plaintiff became the owner, the defendant was "and is yet tenant of said premises," the alderman has no jxiris- diction. Such fact neither is nor implies a lease or verbal let- ting. One in possession is a tenant, whether he holds as owner, or intruder, or under a lease. "The act applies only to a ten- ancy created by a lease which fixes a term and a rent. And to give it any broader application would make it equivalent to eject- ment for the recovery of land, however in the possession of an- other."^ The present landlord must have lost the lease, or evi- dence of the beginning and conclusion of the term, and must be unable to produce proof thereof. One who has purchased the re- ' I Pepper & L. Digest, 2654; P. L. HIcMuUin v. McCreary, 54 Pa. 253. 230. 637 638 LANDLORD AND TENANT. version from the lessor/ as well as the lessor, when he retains the reversion, may institute the proceedings. The first year, if the lease is from year to year, or the term, if the lease is for years, must be ended;* although, as Finletter, J., remarks, in considering the exception on certiorari that the alderman's rec- ord did not find that the term had ended : "And when it is con- sidered that the whole proceeding and the act itself is founded upon the fact that all knowledge of the commencement and end- ing of the term is lost, it is scarcely to be expected that any statement of the commencement, duration, or ending of the term should appear. Indeed, if it did, it would vitiate the whole proceedings, because it would contradict the initial fact [the loss of the evidence of the ending of the term] without which the jurisdiction would not attach."^ 752. Conditions; demand of information from tenant, — When the preceding conditions exist, "it shall be lawful, at any time after the first year or after the term of years, as the case may be, for the landlord [whether the lessor or his successor], desiring to recover possession of the demised premises, to give notice in vsTiting to the tenant that he has lost such lease, or is unable to make such proof, and requiring the tenant, within thirty days from the time of service of such notice, to furnish him in writ- ing with the date at which his term of tenancy commenced, and such notice, if supported by alfidavit, shall be evidence of what it sets forth." The landlord's notice does not need to be sup- ported by an afiidavit.' On receiving the notice the tenant may comply with or disregard it. If he "shall furnish, in writing, the date as required, such writing shall be evidence of the facts contained in it;" and the landlord, assuming the term to end when the tenant says it does, may doubtless recover possession, 'Dubasse v. Martin, 24 Phila. Leg. 'Gifford v. McDonald, 24 Phila. Int. 92; McMullin v. McCreary, 54 Leg. Int. 92. Pa. 230. *McMuUin v. McCreary, 54 Pa. 230. 'Mooney v. Rogers, 8 Phila. 297. PROCEEDINGS, PHILADELPHIA, ON LOST LEASE. 63D under the act of 1772, or of 1863, or by the action of eject- ment. "If the tenant shall fail or refuse within thirty days to comply with the said requirement, the landlord may, at the ex- piration of that period, give to the tenant three months' notice to quit tlie premises occupied by him, and shall proceed there- after in the same manner as is now provided in cases of the u^ual notice to quit at the end of the term." Though the tenant fails to give the information, if, within the thirty days of the notice, he shall make affidavit "that he is unable to comply with the requirement of the landlord, stating the causes of such in- ability," the landlord must give six months' notice to the tenant to remove, "upon which he shall proceed as provided in the cases of the three months' notice as aforesaid." 753. Proceedings before justice. — If the tenant fails to give the information required, the proceeding before an alderman, in the mode indicated by the act of December 14, 1863, is re- sorted to.'' His jurisdiction is not ousted by the filing of an affidavit of the tenant that he claims the land by virtue of a pur- chase of it from X, who owned it before it came into his posses- sion, and before the plaintiff ever claimed to OAvn it. The tenant cannot defeat a recovery by alleging a title rival of that of the plaintiff, whether that title be in a stranger or in himself.^ The justice's record must show all the facts which must exist in order to justify his proceeding under the act of February 28, 1863, e. g.j, the fact of a lease or letting to the defendant, by the plain- tiff or one from whom he has acquired the reversion, and if it does not, his judgment will be reversed on certiorari." Wubasse v. Martin, 24 Phila. Leg. 230. Cf. Mooney v. Rogers, 8 Phila. Int. 92. 297, where the record was found to Hlooney v. Rogers, 8 Phila. 297. be "singularly perfect." 'McMuUin v. McCreary, 54 Pa, CHAPTEE XXXV. ESTOPPEL AGAINST DENYING LESSOR'S TITLE. 754. The estoppel. 755. Scope of the ordinary estoppel. 756. Proceedings for rent. 757. Kind of lease. 758. No estoppel against denying the lease. 759. No relation of tenure. 760. Duration of the estoppel. 761. Eviction vinder superior title. 762. To what the estoppel applies. 763. Misrepresentation or fraud. 764. Violence. 765. Fraud on the commonwealth. 766. Lessee already owner when he accepts lease. 767. Jjcssee owner and already in possession. 768. Who may avail himself of the estoppel. 769. To what the estoppel does not relate. 770. Tenant may show transfer of lessor's title. 771. Extinction of lessor's interest. 772. Loss of agency. 773. Denial that claimant is transferee of lessor. 774. Declarations of tenant. 775. Who are estopped. 776. Others affected by estoppel. 777. When successor to tenant not estopped. 778. When there is no estoppel. 779. When tenant renounces and afterwards resumes possession. 754. The estoppel. — Within certain restrictions, there arises an estoppel against denying the lessor's ownership of the land, by accepting the lease from him and taking possession in pur- suance of it. But there is no general estoppel against denying that OAvnership. Accepting a lease is a species of admission of the lessor's rights to the land, and as an admission can be proved in all cases in which an admission by the lessee would be perti- nent as evidence. But, as an admission to anyone that he has 640 ESTOPPEL AGAINST DENYING LESSOR'S TITLE. 641 a right does not preclude the subsequent denial by the admitting party of that right and the exhibition of evidence to support that denial, so the tenant is not precluded to deny the right of the lessor, because he lias in a way admitted it by accepting the lease. He may prove that, despite his admission, the right was not in the lessor, if the object of the proof is not to prevent the lessor's recovery of the possession at the close of the term, or of rent which accrues during the term. When the former tenant has lost the possession, he may sustain an ejectment to recover the land even when the grounds on which recovery is sought imply the nonexistence of a right in the lessor to the land at the time when the lease from him was accepted by the lessee. Hence if B, being the owner, accepts a lease from A, and after the death of B all his interests in the land are sold for the payment of his debts, one of which is a lien attaching to the land prior to the lease, the purchaser out of possession may recover in eject- ment by showing the defects of the title of the former lessor, who is now in possession.-' 755. Scope of the ordinary estoppel. — The ordinary estoppel of the tenant results simply in an incapacity to defeat the recov- ery of the possession of the premises, by opposing to the actions of the lessor begun for that purpose, the defects of his title. In possessory actions of the lessor, whether ejectment,^ or proceed- ings under the various landlord and tenant acts^ or under the act of June IG, 1836, for the recovery of possession by a pur- chaser at a sheriff's sale, the lessee cannot attack the title of the ^Kennedy v. Whalen, 5 Kulp, 35; Female Seminary, 22 W. N. C. 65; Anderson v. Brinser, 129 Pa. 376, 6 Eister v. Paul, 54 Pa. 196; Kline v. L. R. A. 205, 11 Atl. 809, 18 Atl. Johnston, 24 Pa. 72; Wolf v. God- 520; Brown v. Dy singer, 1 Rawle, dard, 9 Watts, 544. 408; Eockenhury v. Snyder, 2 Watts "Mohan v. Butler, 112 Pa. 590, 4 & S. 240. Atl. 47; Heritage v. Wilfong, 58 Pa. "Boyer V. Smith, 5 Watts, 55; Oal- 137; Koonts v. Hammond, 62 Pa. loway V. Ogle, 2 Bi...i. 468; Jones v. 177; Seicell v. Gilhs, ] Watts & S. Tatham, 20 Pa. 398; L.gan v. Quig- 496; Goldsmith v. Smith, 3 Phila. ley (Pa.) 10 Cent. Rep. 403, 11 Atl. 360. S2; Lebanon School Dist. v. Lebanon Land. & Ten. 41. 642 LANDLORD AND TENANT. lessor.* If, under a warrant of attorney in the lease, the lessor causes judgment in ejectment to be entered, the tenant cannot, as cause for opening it or setting it aside, set up a title in a stranger, nor may the stranger himself intervene in order to procure it to be set aside.^ After the lessor has recovered the possession, the tenant, if he has a title superior to that of the lessor, may enforce it by himself becoming plaintiff. The object of the estoppel is simply, so far as possessory procedure is con- cerned, to compel the tenant to yield the possession, and to incur the inconveniences of a plaintiff. 756. Proceedings for rent.— By accepting a lease and the pos- session of the premises in pursuance of it, the tenant precludes himself from, effectively refusing to pay the rent on account of the defects of the title of the lessor. He may be compelled to pay the rent, despite such defects, if any, and therefore proof of such defects is irrelevant and inadmissible, in actions of as- sumpsit for the rent,* or for use and occupation, no rent having been specified by the parties.'' If, after iiccepting a lease from A, the tenant accepts another for the same time from B, ho is bound to pay rent to both. He must pay B, and, whei. sued for the rent by B, cannot show that A's title is the better.^ The lessor may waive the right to insist on the estoppel, and, the rent being overdue, may agree that if the lessor "holds the land by law" against a rival the rent shall be paid; otherwise not. On this contract the lessor may recover, on showing that all risk of the tenant's having to pay mesne profits to the rival has 'Wilson V. Huiiell, 1 Pennyp. 413. woman, to make the lease, cannot be 'Nehr v. Krewsberg, 187 Pa. 53, questioned by the tenant who has en- 40 Atl. 810. joyed the possession and is sued for 'Long V. Fitsimmons, 1 Watts & S. the rent. Swing v. Cottman, 9 Pa. 530; School District v. Long (Pa.) Super. Ct. 444. 9 Cent. Rep. 350, 10 Atl. 769; Swing 'Qleim v. Rise, 6 Watts, 44; Stohe& V. Cottman, 9 Pa. Super. Ct. 444; v. McKibbin, 13 Pa. 267; Bauders v. Wagle v. Bartley (Pa.) 9 Cent. Rep. Fletcher, 11 Serg. & R. 419. 551, 11 Atl. 223; Ward v. Philadcl- ^Hamilton v. Pittock, 158 Pa. 457, pu'a, 4 Cent. Rep. 062, 6 Atl. 263. 27 Atl. 1079. The power of the lessor, a married ESTOPPEL AGAINST DENYING LESSOR'S TITLE. 643 passed, by the lapse of more than six years since the close of the tenant's possession and of more than twenty-one years since the lessor's adverse possession began.* The omission of the tenant to take possession when he might have taken it and the lessor vt^as ready to deliver it does not exempt him from the estoppel against denying the title of the lessor when sued for the rent.^° 757. Kind of lease. — The lease, out of the acceptance of which the estoppel of the lessee springs, may be oraP-* as well as writ- ten.^^ An agreement to make a lease was followed by the writ- ing of it. The writing shown to X, the person expected to be- come lessee, was assented to by him, and he in consequence took possession of the land, but the writing was never signed by anybody. The estoppel of a tenant, however, affected X.-"* 758. No estoppel against denying the lease. — The estoppel arises 'Sassaman v. Feagly, 4 Watts, 268. erations within the first six months, ^Eowwrd V. Murphy, 23 Pa. 173. and taken gas or oil, equity would In Kurikle v. People's Natural Gas probably have decreed that the wife Co. 165 Pa. 133, 33 L. R. A. 847, 30 join in the lease before payment of Atl. 719, the lessee of a gas and oil royalty or rent, and that if the les- traet covenanted to commence opera- see had been deterred from taking tions within six months, and com- possession by fear of the wife's ad- plete one well, or to pay to the les- verse claim, or if he had been in- sor $500 and a rental of $130 until duoed to accept the lease by fraud or its completion. The lessee took pos- trick of the lessor, he would not be session and retained it for one year compelled to pay the rent. In and nine months, but did not com- Rhoades v. Patrick, 27 Pa. 323, it mence the well nor pay anything. On was held that if A, in possession, sold the lessor's demanding $630 shortly stones from the land to B, B must after the close of the first six pay the price, because he could not months, it was disclosed to the lessee be compelled to pay it again to the that the wife of the lessor, who had true owner. The owner could not not united in the lease, had an inter- maintain trespass, because he was est in the premises. The lessor offered not in possession; nor could he main- to procure the execution of the lease tain assumpsit. by his wife, but the lessee declined "Long v. Fitzimmons, 1 Watts & S. except on conditions he had no right 530; Wilhelm v. Shoop, 6 Pa. 21; to insist on. As the lessee had had Moderwell v. Mullison, 21 Pa. 257. the possession for the six months, ^Swint v. McCalmont Oil Go. 184 and as the wife concurred in the con- Pa. 202, 63 Am. St. Rep. 791, 38 tract, the former could not defeat a Atl. 1021; Moderwell v. Mullison, 21 recovery of the $630 by showing the Pa. 257; Wagle v. Bartley (Pa.) 9, title of the wife. It is suggested Cent. Rep. 551, 11 Atl. 223. that if the lessee had commenced op- "Jones v. Tatham, 20 Pa. 398. 644 LANDLORD AND TENANT. out of the relation of landlord and tenant; aad in an eject- ment by A against B, for the land, or in assumpsit by A against B, for the rent, or in assumpsit by B against A, for improperly distraining on B's goods and compelling him to pay rent, when B was not a tenant of A,^* the existence of the tenancy will not be assumed simply because A avers it. His averment must be allowed to be contradicted. It would be a petitio principii for the court to fail to submit to the jury the alleged tenant's dis- proof of the tenancy.-'^ The acceptance of a lease from the al- leged lessor must be clearly shown.^® The tenant can deny his acceptance of A's lease, and his entry upon the land under it, and offer proof that he entered under a lease from B.-'^ Against A, who claims to be lessor of X, X may show that he accepted no lease from A, but that he accepted one from A and B, a part- nership ; the land being partnership land.-"^* B may show that he had a contract with X to buy the land from X, and that as vendee he took and retained possession until, X conveying to Y, he ac- cepted a lease from Y, and that the purpose of this arrangement was to secure Y's consent to his continuance in possession with- out otherwise paying the unpaid purchase money than by per- iodical instalments, like rent.-"^^ The widow of A, and also his administratrix, who is in possession of land of which A had taken a lease, may show that she was not in possession as his widow or administratrix but that she had entered into possession prior to the making of this lease, under another lease from an- other person, and that she had continued in possession ever since, ^^Modericell v. MulUson, 21 Pa. "Anderson v. Brinser, 129 Pa. 376, 2,57; Emery v. Harrison, 13 Pa. 317. 20 W. N. C. 505, 6 L. R. A. 205, 11 "Moderwell v. Mullison, 21 Pa. Atl. 809, 18 Atl. 520. But the ques- 257 ; Emery v. Harrison, 13 Pa. 317. tion here was whether the contract ^'Jieigart v. Ehler, 1 Whart. 18. had been given up, and the relation "lleigart v. Ehler, 1 Whart. 18 ; of lessor and lessee substituted. Cf. Long V. Fitzimmons, 1 Watts &, S. Berridge v. Glassey, 20 W. N. 0. 50. 530. "MoJericeH v. Mullison, 21 Fa, 257. ESTOPPEL AGAINST DENYING LEFSOK'S TITLE. 645 under this earlier lease. ^^ B was already in possession of land, when A obtained an agreement from him that he would occupy it until April 1, 1816, and then give peaceable possession of it to A. Subsequently A asked B when he intended to leave the place, and B replied that, if he would give him nine or ten days, he would be ready to leave. Gibson, J., professed to be unable to "discover in this agreement a single feature of a lease," re- marking that "it contains neither words of demise, nor reserva- tion of rent, nor any other part of a regular lease. These ingred- ients, no doubt, are not essential, it being sufficient if it appear to have been the intention of the lessor to dispossess himself of the premises, and of the lessee to enter pursuant to the agree- ment. In our case, however, the agreement was nothing more than that a person already in possession under a claim of title should abandon the premises at a day certain. For a breach of this an action would lie, but it created nothing like tenure ; nor could it operate as an estoppel."^^ 759. No relation of tenure. — If A is in possession of land as a tenant of X, and on the death of X there is a disptite as to who is the succeeding owner, A does not become a tenant of B, one of the rival claimants, by admitting, when called on by B to pay the rent, that B is entitled to it, and by A's promising to continue on the premises at tlae old rent, if the promise is re- tracted before a bargain is struck on account of a disagreement, and subsequently no rent is paid to B.^^ If the lease is made in the name of Boileau & Sankey, who sign it, adding to their names the words "agents" but not indicating any one whom '"Diefenderfer v. Caffrey (Pa.) 9 der the canal, B, when sued for roy- Atl. 182. alty on the coal taken as well from '"■Miller v. M'Brier, 14 Serg. & R. under the canal as from the land of 382. A owns land which is intersect- A is not estopped from denying the ed by a canal the fee of which be- title of A to the coal under the canal, longs to the state. If A makes a Wyoming Goal & Transp. Co. v. lease to B of coal in his land, but Price, 81 Pa. 156. the lease does not define the premises ^Stokes v. McKibhin, 13 Pa. 207. leased so as to embrace what lies un- 646 LANDLORD AND TENANT. they represent, no tenure arises between their principal and the lessee that will sustain a distress by the principal for the rent. The tenant "leased the house of Boileau & Sankey. They let the premises to her. By the terms of the lease the relation of landlord and tenant was exclusively between them. In the body of the lease Boileau & Sankey are described as the sole lessors. It is true, at the foot they sign it as 'agents.' Agents for whom ? The lease is silent As is clearly shown in Holt v. Martin, 51 Pa. 499, in regard to a lease executed in a similar manner, the defendant did not thereby become the tenant of an unknown landlord."^^ But the lease being orally made in his own name by A, of land which belongs to and is tised by a firm composed of A and B, the lease is to be considered as the lease of the firm, and not of A, and the lessee may safely recognize the firm as his lessors. Having paid the rent to it, A w juld have no right to compel the lessee by distress to pay it again to him, and if A does compel him to pay it again, he may recover it back from A.^* If on a part of land belonging to A and B as tenants in common, C, a daughter of B, and her husband, son of A, reside, and, after the death of B, of whom the daughter is heir, A brings an ejectment against her, alleging a partition by which the land occupied by her was allotted in severalty to him, C ^vill not be estopped from denying the validity of the partition by which what had been her undivided half had been transferred to A. She will not be deemed to have gone into possession as tenant of A, of more than A's undivided half ; but will be regarded as hav- ing been tenant of her father, B, as respects B's undivided half.^^ If a lease is signed by A and his son, of land which belongs to A, the tenant may resist paying rent to the son, and may show that the son signed the lease as a subscribing witness, or in order "Seyfert v. Bean, 83 Pa. 450. Cf. "Moderiocll v. MiilUson, 21 Pa. Bandcl v. Erickson, 3 Pa. Sup"r. Ct. 257. 389; Barrett v. Bemelmans, 163 Pa. ^'Feather v. Strohoecker, 3 Penr. 122, 29 Atl. 756. & W. 505, 24 Am. Dec. 342. ESTOPPEL AGAINST DENYING LESSOR'S TITLE. 647 to attest that his father was not being imposed upon, or for some purpose other than to become landlord towards the ten- ant.2« 760. Duration of the estoppel.— The tenant during the term is estopped from denying the rights of the landlord to the rent, on account of a defect of title to tlie land, and, within the orig- inal term, should the lessee's right to continue in possession be forfeited or otherwise terminated, he cannot resist the lessor's recovery of the possession by setting up any defects of title. But this inability to exhibit any defects of the lessor's title con- tinues after the original term. The tenant may hold over, how- ever long, and with or without the consent of the lessor. Until he gives up the possession he cannot challenge the title of the lessor. Thus, a lease for three years being made in 1854, but the possession of the lessee continuing until 1885, his disability to take advantage of any defects of the lessor's title, in the ac- tion of the latter to obtain the possession^'' or to compel payment of rent, continued.^* If in 1829 at the instance of A, claiming land under a former survey, B entered to clear and cultivate it and to pay the taxes on it for the use of it, B could not, having continued in possession until 1846, successfully resist an eject- ment then brought by A, by showing that the survey under which A claimed, made in 1775, had not been returned to the land office when B took possession or since.^® Under a lease for five years made in 1870, the lessee continued in possession until 1886, when an ejectment was brought against him by the lessor. He could not be heard to deny the lessor's title.^° 761. Eviction under superior title. — The lessee cannot procure "Swint V. McCalmont Oil Co. 184 by the statute of limitations. Crail Pa. 202, 63 Am. St. Rep. 791, 38 Atl. v. Crail, 6 Pa. 480. 1021. ^Banders v. Fletcher, 11 Serg. & R. "Wagle v. Bartley (Pa.) 9 Cent. 419. Rep. 551, 11 Atl. 223. The posses- "Wilhelm v. Shoop, 6 Pa. 21. sion of the tenant however long con- '"Lebanon School Dist. v. Lebanon tinned will not make a title for him Female Seminary, 22 W. N. C. 65. 648 LANDLORD AND TENANT. a reduction of the rent by showing that the lessor's title to a portion of the premises is bad, if the lessee agreed to take the risk of the title. After an eviction from a part of the premises, by the owTier of the superior title, the lessee may have a pro- portional reduction of the rent or royalty. If he is by the lease to pay royalty upon so many tons of ore, whether mined or not, he can show that the loss of the possession of a part of the prem- ises has reduced the amount of ore accessible to him, and obtain a corresponding reduction of the rent.^^ If a successful eject- ment is brought against the tenant, by one claiming a superior title to that of the landlord, the tenant, being liable for the mesne profits, is discharged from rent for his occupancy since the commencement of the ejectment.^^ 762. To what the estoppel applies. — The estoppel is provision- al and is against the denial of the right of the lessor to the land, in an action or proceeding by him either to obtain the possession or the rent. The tenant cannot assert the badness of the title of the lessor, by showing that someone else had a good title at the time when the lease was made,'^ if the lessor was then in actual possession and delivered it to the lessee.^* The tenant has no right voluntarily to attorn to the claimant of a rival title to tliat which the lessor had when he made the lease; and if he does he cannot resist the claim of his landlord by means of the title of the person to whom he has attorned.^^ The tenant, accepting a lease from his lessor's rival, cannot defend against his primary lessor by means of the rival's title.^" B accepts a lease from the ''Kemile Coal & I. Co. v. Scott, 15 533; Cooper v. Smith, 8 Watts, 536; W. N. C. 220; KemUe Coal & I. Co. Evivg v. Cott.man, 9 Pa. Super. Ct, V. Scott, 90 Pa. 332. 444; MHllard v. Barley. 22 W. N. C. ^'Banders v. Fletcher, 11 Serg. & 122. R. 419. But the court intimates "Eniitg v. Cottman, 9 Pa. Super, that, if the claim for rent had been Ct. 444. for the time covered by the written '^Mohan v. Butler, 112 Pa. 590, 4 and sealed lease, and not for a hold- Atl. 47. over period, the tenant would be "Wolf v. Goddard, 9 Watts, 544; liable on his express covenant. Boyer v. Sniifh, 5 ^Yatts, 55; Jones "Long V. Fitzsimmmis, I Watts 4 S. v. Tatham, 20 Pa. 398; cf. Bestwick ESTOPPEL AGAINST DENYING LESSOR'S TITLE. 64^ agent of seven persons. lie subsequently takes a lease from six of these persons, who claim that they own the whole land. B cannot resist the recovery of possession of one undivided seventh by the seventh principal to his lease.^'' To accept a lease from a rival is to acquire in part his ownership. As the tenant cannot acquire the ownership of the rival of his le.ssor for a period of years, and avail himself of it until he gives up the possession, so he cannot, acquiring during the term the entire interest of the rival, defend under it the action of his lessor for rent or for pos- session.^* The tenant cannot defeat the landlord's recovery of possession in ejectment, because the latter does not show that the title has ever passed from the commonwealth or because he him- self shows that it has not.''^ 763. Misrepresentation or fraud. — B, who is already in pos- session of land when he accepts a lease from A, under the influ- ence of A's representations that he is the owner, which repre- sentations are untrue, is not estopped from defeating A's action for rent*" by showing that he is not the owner. "The distinc- tion," says Pluston, J., "is between a case where a lessor was in possession and a lessee obtained possession under him, and a case where the person in possession did not obtain it from him who, under some false pretence, obtained the position of a lessor. In the first case the lessee cannot object to the title of him who put him into possession; in the latter, he will be admitted to prove V. Ormsty Goal Co. 129 Pa. 592, 18 lease by A after he has assigned the Atl. 538. land for the benefit of creditors and '''Thompson v. Graham, 9 Phila. 53. the assignees have sold the land to '^Galloway v. Ogle, 2 Binn. 468; X, the lessee will not be liable on Russell V. Titus, 3 Grant Gas. 295; showing that A asserted that he was Eister v. Paul, 54 Pa. 196; Pruiz- the owner and had a. right to make man v. Ferree, 10 Watts, 143; Wil- the lease. So if the lessor exiiibits son V. Huhbell, 1 Pennyp. 413; Wolf to X a forged conveyance to him as V. Goddard, 9 Watts, 544. proof of his title, X, who already in "Kline v. Johnston, 24 Pa. 72; possession accepts the lease, will not Thompson v. Graham, 9 Phila. 53 ; be estopped. Miller v. M' Brier, 14 Prutzman v. Ferree, 10 Watts, 143. Serg. & R. 382. *'Gleim v. Rise, 6 Watts, 44. On a 650 LANDLORD AND TENANT. the imposition ; if he does prove it, he is not bound to give np possession nor is he liable for use and occupation." If, after A has sold the land to X, he induces E, who has been his tenant, to attorn to C, he commits fraud which will authorize B to deny C's right to recover the possession from him.*^ A, having no good title, induces B, who is in possession, to accept a lease, by representing that he has a good title and will make a lease on favorable terms, but that if B will not accept he will turn B off by process of law. B is not estopped from showing, in A's eject- ment, that A's title is bad, whether A knew that his represen- tations were untrue or not.*^ 764. Violence. — The tenant or one claiming under him may show in Y's ejectment that the tenant was in possession under a lease from X, when Y, with two companions armed with guns, visited him and threatened to turn him off unless he took a lease from Y, and that he thereupon did so. The tenant or his suc- cessor in the possession would not be estopped from denying Y's title." 765. Fraud on the commonwealth. — It is said that the lessee can escape the estoppel of the lease by showing that it was made in fraud of the commonwealth.*'' If B, already in possession, is induced to accept a lease from A, by A's exhibiting to him a patent to himself from the state which recites a conveyance from the warrantee to him, and this conveyance is a forgery, B can defend the ejectment of A by showing this fact.*^ 766. Lessee already owner when he accepts lease. — If the les- see has not been in possession of the premises, but obtains posses- sion from the lessor, and in consequence of the lease, the mere fact that the lessee already owned the land, and that the lessor '^Goldsmith v. Smith, 3 Pliila. 360. "Hamilton v. Uarsden, 6 Binn. 45; "Ba-ikin v. Seechrist, 6 Pa. 154. A Rankin v. Tenbrook, 5 Watts, 386, claimed by a sheriff's sale but it did "Boyer v. SImith. 5 Watts, 55. not appear that a deed had ever been "Miller v. M'Brier, 14 Serg. & R. made to him. 382. ESTOPPEL AGAINST DENYING LESSOR'S TITLE. 651 did not own it, will not authorize the lessee to refuse to sur- render possession. He cannot defeat the lessor's ejectment by showing his own superior title.*^ "Justice," says Black, Ch. J., "requires that the parties should assume their original position before any dispute about the title can be tolerated;" and the tenant, if sued for the rent, cannot defend by showing that he was already the owner of the land when the lease was made.*'^ If the tenant was induced by the lessor to accept the lease by fraud or misrepresentation, he would probably escape the es- toppel ordinarily arising from the acceptance of a lease.*® But the fraud that will effect this result is a fraud on the lessee him- self, or on the commonwealth, not a fraud on another. The tenant, e. g., is not permitted to show that on the death of X, an owner of land, two brothers of X took out letters of administra- tion on his estate, and combined with their father fraudulently to dispossess the widow and children, and, in pursuance of this scheme, got the father to make the lease. The father, as lessor, can recover from the tenant, despite his want of title.*^ If B, having a lien on A's land, takes a lease of it, he cannot during the term cause a sheriff's sale of it and become the purchaser, except subject to the right of A to compel a reconveyance on a tender of the purchase money.®" 767. Lessee owner and already in possession. — One already the owner by a legal or an equitable title, and already in possession, may nevertheless accept a lease of the premises from another. "Thayer v. Society of United "Boyer v. Smith, 5 Watts, 55; Brethren, 20 Pa. 60; Kennedy v. Rankin v. Tenbrook, 5 Watts, 386; Whalen, 5 Kulp, 35; Oleim v. Rise, Cramer v. Carlisle Bank, 2 Grant 6 Watts, 44. A parol vendee of land Gas. 267; Koontz v. Hammond, 62 lost the right of setting up his title Pa. 177; Wagle v. Hartley (Pa.) 9 by subsequently accepting a lease Cent. Rep. 551, II Atl. 223; Ward v. from the vendor. Turner v. Rey- Philadelphia (Pa.) 4 Cent. Rep. 662, nolds, 23 Pa. 199. 6 Atl. 263. "Wagle v. Bartley (Pa.) 9 Cent. "Boyer v. Smith, 5 Watts, 55. Rep. 551, II Atl. 223; Ward v. Phila- '^UattheujS's Appeal, 104 Pa. 444. delphia (Pa.) 4 Cent. Rep. 662, 6 Atl. 263. 652 LANDLORD AND TENANT. If he docs so, lie cannot refuse to surrender possession to the lessor, unless he was induced to accept the lease through fraud, misrepresentation,^^ or force.^^ It is said, also, that accepting the lease in mistake will prevent the estoppel, but that the mere fact that the tenant has a better title than his landlord does not of itself raise the presumption that the lease was a fraud or was accepted by mistake.®^ But if a person in possession and hav- ing a good title accepts a lease in consequence of fraud or mis- representation of the lessor,^* or on account of a mutual mistake of the facts by both parties, he is not estopped from alleging his title as a defense against the lessor's action to recover posses- sion.'^ If A is in possession of land so long as to have made a title by limitation, there is a probability, if he accepts from X, who has no title, not even that against which the adverse pos- session has prevailed, a lease of the land, there was some mis- representation of fact or law, or both, and it will require little ^^f^cliool District v. Long (Pa.) 9 B's buildings encroached some inches Cent. Rep. 350, 10 AtL 769; Thayer- on A's land, and B not wishing to V. fioriety of United Brethren, 20 Pa. tear down the buildings agreed in 60; Lebanon School Dist. v. Lebanon writing to pay A a yearly rental of Female Seminary, 22 W. N. C. 65; $2. A new survey showed that B's Kenned/i v. Whalen, 5 Kulp, 35. If buildings did not encroach on A's A accepts a lease of land from B, lie land, but were wholly within B's cannot refuse to pay the rent under boundaries. When sued by A in it, although he already had a lease ejectment, B could defend by show- for the same land from X, and X was ing this fact. In Brown v. Dysin- the owner, and B not. Hamilton v. ger, 1 Rawle, 408, at a, sheriff's sale PUiock, 158 Pa. 457, 27 Atl. 1079. A bought land under an agreement "''Hamilton V. .l/orsfJera, 6 Binn. 45 ; with B to buy it for him, which Rankin v. Tcnhrooh, 5 Watts, 386. made A a trustee for B, who wa= ''"Thayer v. Society of United poor and ill of consumption. Instead Brethren, 20 Pa. 60; School District of recognizing his trusteeship A V. Long (Pa.) 9 Cent. Rep. 350, 10 threatened to put B off of the prem- Atl. 760; Lehanon School Dist. v. ises (he had been on before the sale) Lehanon Female Seminary, 22 W. N. unless B accepted a lease from him. C. 65 ; Hamilton v. Pittock, 158 Pa. B accepted the lease. This, it was 457, 27 Atl. 1079. held, did not constitute an abandon- '-^Berridge v. Gla-ssey, 20 W. N. C. ment of his equity. But B had given 50; Broun v. Dysinger, 1 Rawle, 408. up the possession and his heir was "Berridge v. (Ilassey, 20 W. N. C. endeavoring by ejectment to recover 50. A and B owned adjoining lands, it. The result of a survey showed that ESTOPPEL AGAINST DENYING LESSOR'S TITLE. 653 proof of fraud or threats or undue influence or of A's imbe- cility to exonerate him from the effect of accepting a lease; indeed, Huston, J., remarks, if one whose right to land had be- come perfect under the statute of limitations "was induced to take a lease from, and become a tenant to, those who had no title [they had never had a good title] this must have occurred from misrepresentation, fraud, or mistake ; and slight evidence of imbecility, or weakness, or of poverty, worked on hj threats, would be sufRcient to avoid it."'"'' After B had been in posses- sion for fourteen years claiming adversely to everybody, A, asserting that he was owner, induced B to accept a lease for the land. B continued in possession for thirty years longer, paying no rent. This lease did not preclude B, when sued in ejectment at the end of the forty-four years' possession, from showing that A had in fact no title, and that A had induced him by trick or artifice, by fraud practised on him under the garb of friend- ship, to accept the lease. ^' 768. Who may avail himself of the estoppel. — The lessor him- self may insist on the estoppel arising from the acceptance of a lease from him. So may his executor, when, the land being de- vised to him, he sues for the rent, or to recover the possession f^ "Bochenbury v. Snyder, 2 Watts & topped from setting up hig title in S. 240. In Reith v. Reith, 13 W. N. A's ejectment, because the lease was C. 435, the tenant asserted that the obtained unfairly. A had stated landlord had a life estate, and was falsely that he had a right to posses- to devise the land to him; and that sion, when he would not have it un- having made a devise she, the lessor, til he obtained the sheriff's deed, had subsequently destroyed the will. Even had he received the deed, he This was no defense to the lessor's re- could not remove B in less than covery of possession under the land- three months after receiving it. lord and tenant acts. When B proposed to consult his couu- "Evans v. Bidwell, 76 Pa. 497. B's sel, before accepting the lease, A re- land was sold to A by the sheriff on fused him time. B was artfully in- a levari facias sur mortgage. Four veigled and hurried into the accept- months before the deed was delivered ance of the lease. Ball v. Benner, I A induced B to accept a lease, Penr. & W. 402, 21 Am. Dec. 394. which covered not only the land sold, "Boyer v. Smith, 3 Watts, 449, 5 ■faut an additional piece, to which A Watts, 55. had no right at all. B was not es- 654 LANDLORD AND TENANT. or the heir f^ or his grantee f or the sheriff's vendee of his re- version.*'^ It has been said that the lessee from the agent of X is estopped from denying X's title when X brings an ejectment to recover the possession;''^ but it has been held that the lessee can successfully resist a distress for rent, authorized by the prin- cipal of the lessor, who, though calling himself "agent" in the lease, has not therein named any principal, and for injury caused by such distress may recover damages.^^ The agent of the owner of land having made the lease in his own name, mention- ing no principal, the tenant cannot deny his title to the land or his right to recover the possession.®* A mere intruder on X's land may make a lease and deliver possession to the lessee. The latter cannot by voluntarily attorning to X deprive the lessor of the right to claim the tenant's possession as his ovsm, and to maintain that it is as adverse as his own would have been.®^ But if an intruder does not make a lease to X, but a contract to sell the land to him, and X, as vendee, enters and makes im- provements, X cannot effectively orally surrender the contract so as to become a lessee. Hence if, after such abortive oral sur- render, X continues in possession and admits the owner, the owner's entry upon the land will prevent the completion of the intruder's title under the statute of limitations, by the possession of the ovmer.®^ A, who with a view to its pre-emption puts X in possession in order to begin and continue the settlement, has a right to consider Y, to whom X delivers the possession and who continues it, in possession under himself. A, and A can claim the title as made by the settlement, as against Y.®^ 769. To what the estoppel does not relate. — The estoppel is a '^Cooper V. Smith, 8 Watts, 536. "Ranlcin v. Tenhrook, 5 Watts, "Weaver v. Craighead, 104 Pa. 386; Cravener v. Bowser, 4 Pa. 259, 288. 56 Pa. 132. ''^Wilson V. Euibell, 1 Pennyp. 413. "Cravener v. Bowser, 4 Pa. 259, 56 "Thompson v. Graham, 9 Phila. 53. Pa. 132. "Seyfert v. Bean, 83 Pa. 450. '''Cooper v. Smith, 8 Watts, 536. "Holt V. Martin, 51 Pa. 499. ESTOPPEL AGAINST DENYING LESSOR'S TITLE. 655 prohibition against denying that the landlord had a title at the time of making the lease. This title may have since passed from him, and with it the rights of a landlord. The tenant may accordingly show, when sued by the lessor for the possession or for the rent, that before the action was brought in the former case, or before the rent accrued in the latter, the reversion had, since the making of the lease, passed from the plaintiff. Tie may show, e. g., that it has passed to himself, by a contract of sale"* or by a parol sale, if the facts exist which, under the stat- ute of frauds, make such a sale valid,^^ or by an estoppel. He may show that his lessor claimed through her husband ; that the latter, becoming insolvent, made an assignment for the benefit of creditors; that his assignees undertook to sell the premises in the lessee's possession ; that the widow advised him to buy them and agreed to the sale, and that he bought them. This would terminate the lessor's rights.'^" The lessee may set up in the lessor's action, a sheriff's sale during the term of the title of the latter, and its purchase by himself.^^ The tenant of a devisee may purchase at a sheriff's sale on a judgment against the de- visor, and thus defeat the lessor's recovery.'^ The tenant of two cotenants (who is daughter of one of them, B), the land occu- pied by whom has, by partition, been allotted to one of them. A, may, on A's attempt to recover possession in ejectment, defeat his recovery as to one undivided half by showing that the parti- tion has become void, and her title as heir of B has revested.''* 770. Tenant may show transfer of lessor's title. — The tenant may defeat a recovery of the possession by the lessor by proving that he has, by a legal or an equitable transfer,^* conveyed the "Mohan V. Butler, 112 Pa. 590, 4 "Hill v. Miller, 5 Serg. & R. 355. Atl. 47. ^Elliott V. Smith, 23 Pa. 131. '^Aurand v. Wilt, 9 Pa. 54. The ''^Elliott v. Ackla, 9 Pa. 42. lessee may show that since the lease ^'Feather v. Strohoecker, 3 Penr. was made he has bought the land at & W. 505, 24 Am. Dec. 342. a sale under a lien that preceded the ^'Bparks v. Walton, 4 Phila. 72. lease. Kennedy v. Whalen, 5 Kulp, 35. -656 LANDLORD AND TENANT. reversion to another since making the lease/^ or that a sherifE's sale of the reversion has occurred f^ and it is imniateriai that the lien on which the sheriff's sale took place existed prior to the acquisition by the lessor of the titled'' After the lessor has conveyed the reversion to X, the tenant may attorn to X. If the lessor in fraud of X induces the tenant to attorn to Y, the tenant may, nevertheless, deny Y's title, in a proceeding by T to eject him.'^^ If A, who is cotenant with six others, makes a lease in his own name styling himself as "agent," A's proceed- ing to recover possession of the whole premises cannot be de- feated by the lessee, by showing that A had conveyed his own in- terest in the land, and that the other cotenants had revoked his agency and notified the tenant that they desired him to continue in possession. With respect to A's conveyance of his seventh, the court remarks that no attornment or acceptance of a new lease by the tenant to or from A's grantee had been shown, nor that the tenant was defending the possession for the grantee. A's "very purpose," says Agnew, J., "in proceeding upon the covenant [to surrender possession] in the lease may have been to comply with his sale to Harper, and invest him with the pos- session by determining the lease." As respects the supersed- ure of A's authority as agent, the court notes that the relation ■of landlord and tenant was between A and the tenant, and not between A's principals and the tenant, and a supersedure of authority as agent would not affect the relation, and that the covenant in the lease to surrender possession was indivisible. The conclusion is that to allow the defense would be to allow a denial of the lessor's title at the time of the creation of the lease.'' ^ 771. Extinction of lessor's interest. — The lessor's interest '"■Koontz V. Hammond, 62 Pa. 177. ^Goldnmifh v. Smith, 3 Phila. 360. ''Smith V. Crosland, 106 Pa. 413; '"Eolt v. Marthi, 51 Pa. 499. Ci. Heritafie v. Wilfong, .58 Pa. 137. Bedford v. Kelly, 61 Pa. 491. "Smith V. Crosland, 106 Pa. 413. ESTOPPEL AGAINST DENYING LESSOR'S TITLE. 657 may expire rather than be transferred, and the tenant may re- sist a recovery of rent accruing subsequently, or of the posses- sion, by showing this expiration.®" The tenant, e. g., may prove that the lessor claimed under a life tenant, and that the life tenant having died prior to the bringing of the ejectment, the reversioner has the right to the possession.*^ The lessor being tenant pur autre vie, the tenant may resist his ejectment by showing the death of the cestui que vie?^ If a lessee sublets and the lease expires, the sublessee is under no duty to surrender the possession to the lessee. A leases to B, e. g., and B sublets to C. A sheriff's sale of A's interest is made. Prior to this sale, the term having ended, A gave notice to B to quit and the sheriff's vendee repeated the notice. As B's estate was thus at an end, he could not recover possession from 0. A devise of a mill being made to trustees in order that they may let the prem- ises until the rents shall have yielded $2,000, and thereafter to X, the lessee of the trustees may probably show, when sued for the rent, that the $2,000 have been obtained since the making of the lease and that X therefore has become entitled to the rent, provided that he has been required to attorn and has attorned to X, or has accepted a lease from X. Unless he proves such attornment or acceptance of a lease, he cannot defeat the recov- ery of the rent by the trustees, simply by producing receipts fox rent purporting to be X's. Such receipts might have been ante- dated, and not actually made until after the commencement of the action. They ought to be proved, since they are used to affect another than X.*^ If an estate is given to a trustee for the sole and separate use of a married woman for life, and if she survives her husband in trust to convey to her and her heirs, '"Thompson v. ClarTc, 7 Pa. 62. "NeicUn v. Palmer, 11 Serg. & R. '^Eeckart v. M'Kee, 5 Watts, 385. 98. On a, retrial the actual payment ''Newell Y. Gihhs, 1 Watts & S. of the money would be better evi- 498; Young v. Algeo, 3 Watts, 223. dence than the receipts. [Citing England ex dem. Syburii v. Slude, 4 T. R. 682.] Land. & Ten. 42. 658 LANDLORD AND TENANT. and during lieT life she and her husband convey the premises, and she survives her husband, her grantee gets a fee.^* Hence a lease being made by him, he continues the owner, notwith- standing the married woman's death. He may therefore re- cover the possession at the end of his lease.*^ If A, recovering judgment in ejectment against B, issues a habere facias posses- sionem, under the pressure of which C, a tenant of B, accepts a lease from A, the subsequent setting aside of the habere facias dissolves the relation of landlord and tenant between A and C, by destroying A's right of possession, and restores the former relation between B and C or, at least, makes it impossible for C to accept a new lease from B, so that his possession shall be B's and not A's.*® 772. loss of agency.— Despite the authority of Eolt v. Mar- tin, 51 Pa. 499, if a lease is made by A, styling himself as "agent" but not naming his principal, the lessee may show who the principal was ; that he has died, devising the land to X ; and that he has paid the rent to X ; and thus justify a replevin of the goods seized in distress by A.*^ Six cotenants of land authorized A, one of their number, as agent to make leases and collect the rents. A made a lease, calling himself agent but not naming the principals. Subsequently B, one of the prin- cipals, notified the tenant to pay one sixth of the rent to him, and also notified A that his agency for B was revoked. ISTotwith- standing this the tenant continued to pay all the rent to A. The tenant could be compelled to pay one sixth of it again to B.*^ The following propositions were affirmed by Williams, J. : "(1) Mrs. Bennett had a right to revoke the agency of Barrett " Why a conveyance by a married the award of a writ of restitution, woman, whose estate was clogged "Bandel v. Enckson, 3 Pa. Super, with a sole and separate use was Ct. 389. valid, does not appear. "Barrett v. Bemelmans, 163 Pa. "'Thompson v. Graham, 9 Phila. 53. 122, 29 Atl. 756, 155 Pa. 204, 26 Atl. "'Goufihanour v. Bloodgood, 27 Pa. 307. 285. This effect is wrought without ESTOPPEL AGAINST DENYING LESSOR'S TITLE. 659 whenever she pleased; (2) Barrett acquired, under the terms of his agency, no interest in the rent due to his principals other than that necessarily acquired by one authorized to collect money for another, and he had no right to object to the revoca- tion of his authority at the will of his principals ; (3) when this revocation was duly made and notice thereof given to the tenant, the tenant was bound to take notice of the fact. No equitable or other right existed in the tenant to object to the revocation except as to acts done or rent paid before the notice was re- ceived." 773. Denial that claimant is transferee of lessor. — The tenant is not estopped from denying that the claimant of rent or of the possession is the heir, devisee, or alienee of the lessor. He may show that another is transferee from the lessor, and justify his refusal to pay rent or to give up the possession to the claimant f^ or that another is an earlier grantee and hence clothed with a better right."" He may show that a partition under which the claimant claims to own the premises in severalty was void, so that no title to an undivided half, additional to that which the claimant already had, passed to him.''-^ 774. Declarations of tenant. — As a tenant cannot while in possession effectively deny the landlord's title, he cannot by declarations while in possession give to another the means of denying that title. His assertions which are restrictive of the area of the land of which he is in possession as tenant cannot be taken advantage of by one who adversely claims a portion of the land which, according to the landlord's contention, had been em- braced within that which he demised to the tenant. "No land- lord would be safe," says Thompson, J., "if his tenant might affect his title by declarations about his boundaries.'"-'^ "It "Newman v. Rutter, 8 Watts, 51. '-Eakman v. Sheaffer, 48 Pa. 17C; " Of. Goldsmith v. Smith, 3 Phila. Sheaffer v. Eakman, 56 Pa. 144. 360. '^Feather v. Strohoecher, 3 Penr. & W. 505, 24 Am. Dee. 342. 660 LANDLORD AND TENANT. would certainly be very extraordinary," remarks Strong, J., "if a tenant put into possession of land and owing fealty to his landlord, bound to protect his landlord's possession, could be allowed to confess away that landlord's title. Had he [the ten- ant] siTrrendered the possession to Shaffer [the adverse claimant of a portion of the demised premises] Shaffer could have gained nothing by it. How then can he profit by such a declaration, which is much less than a surrender ?"^* 775. Who are estopped. — Besides the tenant, any who acquire the possession from him are estopped from asserting a title su- perior to the lessor's as a ground for refusing to give up the pos- session, or to be responsible for rent, for use and occupation, or for profits. Thus if the tenant dying, his heir,^* his widow,^^ his devisee, continues in possession, his successor is estopped pre- cisely as he was. If the tenant is induced to accept a later lease from a hostile claimant, in an ejectment against the tenant by the original landlord, the second lessor, defending the action, has no better position than the tenant himself.^^ Though the ad- verse claimant brings ejectment against the tenant and induces him to confess judgment, to be put oif by a habere facias pos- sessionem, and then to accept a lease, the lessee does not escape the estoppel, nor the adverse claimant. The lessee should call on his landlord to defend him. If, thus called on, the landlord refuses to make him safe by defending the action, he may prob- ably make terms with the adversary.®^ The lessee's assignee of the leasehold is under the assignor's disability®^ whether the as- signment is voluntary or effected by a judicial sale.^® If the "Sheaffer v. Eakmcm, 56 Pa. 144. "Stewart v. Roderick, 4 Watts & S. ■■"Galloway v. Ogle, 2 Binn. 468. 18S, 39 Am. Dee. 71. Cf. Dikeman v. "''Bannon v. Brandon, 34 Pa. 263, Parrish, 6 Pa. 210, 47 Am. I?ec. 455 j 75 Am. Dec. 655, 38 Pa. 63; Diefen- Sheaffer v. Eakman, 56 Pa. 144. derfer v. Caffrey (Pa.) 9 Atl. 182. '^Hamilton v. Pittock, 158 Pa. 457, '"Jones V. Tatham, .20 Pa. 398; 27 Atl. 1079; Thompson v. Graham, Wolf V. Ooddard, 9 Watts, 544; 9 Phila. 53. Dikeman v. Parrish, 6 Pa. 210, 47 °' Cf. Kennedy v. Whalen, 5 Kulp, Am. Dec. 455. 35. ESTOPPEL AGAINST DENYING LESSOR'S TITLE. 661 tenant, obtaining an adverse title during the term, conveys it to X and puts X in possession, X must surrender the possession before taking advantage of his title ;i*"' but if X simply abor- tively bargains vfith the tenant for the tenant's adverse title, ne-\'er in fact acquiring it, X, who subsequently and without col- lusion with the tenant, obtains the possession, may defend it by means of any title stiperior to the lessor's."^ If A, intend- ing to claim land by settlement, puts X in possession in order to maintain the settlement, and Y, intending to deny A's right and make a settlement for himself, bribes X to give to him the possession, Y is precluded, as X would be, from denying the in- cipient possessory right of A and from denying that his own possession inures to the benefit of A.-"*^ All persons, who, how- ever numerous, succeed to the possession by derivation from the tenant, are affected by his incapacity to challenge the lessor's title.^"^ If the tenant dies, leaving his widow on the premises, and she remarries and the second husband comes to reside on the premises, his possession is not to be deemed adverse so as, under the statute of limitations, to destroy the lessor's title, until he disowns privity between himself and the lessor by some un- equivocal act.^"* If after A contracts to sell land to B, B leases it to C, and if subsequently, the contract not being fulfilled, A re- sumes his former right, in an ejectment by A against C the latter is probably precluded from proving a defect in A's title.''"^ A municipal corporation, e. g., a school district, is affected, like any other tenant, by the estoppel.^"® 776. Others affected by estoppel. — If, after A has made a lease '^Frutzman v. Ferree, 10 Watts, ^'"Galloway y. Ogle, 2 Binn. 468; 143; Thompson v. Clark, 7 Pa. 62. Tilghman, Ch. J., refrains from a de- ^'^Prutsmwn v. Ferree, 10 Watts, cision; Yeates, J., thinks the tenant 143. estopped. ^Cooper V. Smith, 8 Watts, 536. ^"Lelanon School Dist. v. Lebanon ^•^Thompson v. Clark, 7 Pa. 62; Female Seminary, 22 W. N. C. 65; Dikeman v. Parrish, 6 Pa. 210, 47 School District v. Long (Pa.) D Am. Dec. 455. Cent. Rep. 350, 10 Atl. 769. '^Brandon v. Bannon, 38 Pa. 63. 662 LANDLORD AND TENANT. to B of a certain tract, B assigns the lease to C, tut subsequent- ly surrenders the lease to A, who has no notice of the assign- ment »ind has never given possession to B, and B accepts a new lease for the same tract except 5 acres, and as agent of C, his as- signee of the first lease, B enters on the land outside of the 5 acres (A supposing, however, that he was entering as lessee under the second lease) C is estopped, by taking possession through B, from denying A's right to make the second lease, under which A delivered the possession to B, the agent of C, and from asserting, therefore, that the first lease was still operative, al- though C had no notice of the surrender of the first lease, and on entering into possession by B, his agent, supposed that he was entering into possession as assignee of the first lease, not in pur- suance of the second lease.^"'' A cxintracts to sell land to B, but remains in possession as B's tenant at a monthly rental which was to be credited on the purchase money. A, while in posses- sion, conveys the land to C. B's right to recover in ejectment against A does not depend on B's having tendered the purchase money to A, for to allow A to retain possession and allege the nonpayment of the money, would be to allow him to question his lessor's title. C's being affected with the same incapacity would depend on his having had knowledge of the prior sale and lease.^"* 777. When successor to tenant not estopped. — If the tenant acquires a title hostile to that of his landlord, and while in pos- session conveys the land to one who has no knowledge of the mode in which the tenant's possession began, the grantee will be justified in presuming that that possession began in virtue of the ^'"Carnegie 'Natural Gas Co. v. asking it C was denying the right of Philadelphia Co. 158 Pa. 317, 27 Atl. the landlord, A, to make the second 951. An injunction at C's instance lease under which he had in fact, to restrain operations on the 5 acres, though not knowingly, taken posses- by a lessee of that part, under a lease sion of the rest of the tract, made subsequently lo the surrender ^"Weaver v. Craighead, 104 Pa. of the lease to B, was denied. In 288. ESTOPPEL AGAINST DENYING LESSOR'S TITLE. 6G3 title which the tenant now has, and he will not be affected by the tenant's estoppel. He may defend the possession, when sued by the lessor, by setting up the hostile title. "^ A demised land to B in 1822. C obtained the possession from B. There had been a tax sale of the land in 1816, the title under which was conveyed to C in 1819. C conveyed the land, as owner, in 1841 to D. In an ejectment by A's alienee, against the alienee of D, the defendant could set up not only the tax sale, but if that was void, any title superior to A's, if D purchased from C without any knowledge or means of acquiring knowledge of the tenancy [of B], and for a valuable consideration.^^" The tenant dying leading his widow on the premises, she may defend against the lessor by showing that she had taken possession under a lease to herself from another owner, and that she had uninterruptedly continued in possession under the lease, and had neither by pay- ing rent nor otherwise recognized the lease made to her hus- band.^^^ Though A and his son are in possession of B's land and after A's death the son continues in possession, declarations of A that he is in possession as tenant of B will not estop the son from denying that his father or himself was tenant of B, from claiming upon his naked possession, and denying the title of B."2 778. When there is no estoppel. — If the plaintiff in ejectment does not repose solely on the fact that the defendant is his ten- ant, but also exhibits his title, the defendant may deny both the tenancy and also the goodness of the title, and the court must allow him to support his denial by appropriate evidence.^^^ But after the evidence is before the jury, the court may and should tell them that if they find that the tenancy exists, they need not ""Thompson v. Olark, 7 Pa. 62; '"Diefenderfer v. Caffrey (Pa.) 9 Weaver v. Craighead, 104 Pa. 288; Atl. 182. Dikeman v. Parrish, 6 Pa. 210, 47 ^'^^Emery v. Harrison, 13 Pa. 317, Am. Dec. 455. ^^'Miller v. M'Brier, 14 Serg. & R. "■^"Thompson v. Clark, 7 Pa. 62. 382. 664 LANDLORD AND TENANT. consider the goodness of the plaintiff's title. If at the trial of the lessor's ejectment the parties agree that the title to the lot shall be investigated, evidence of the tenant's superior title will be admissible.^** A lessor who claimed under a Connecticut title when he made the lease was denied the benefit of the prin- ciple of estoppel, and the lessee was permitted to show that he so claimed and that a Pennsylvania title obtained by him since making the lease was invalid.-'-'^ 779. When tenant renounces and afterwards resumes possession. — A tenant may give up the possession to the landlord and notify him of the act, and if, after clearly sufficient time has elapsed for the landlord to resume, he does not resume possession, the former tenant, or an adverse claimant to whom he attorns, may re-enter under another title or without title, and they will not be subject to the estoppel which precludes a tenant, or one who in- duces him to attorn, from preventing the lessor's recovery in ejectment except by means of proof of a good title. ■'■'® Giving notice to the landlord that the tenant intends to give up the pos- session will be useless, if it is not followed by an actual with- drawal from possession. -"^^^ The tenant's removal might pre- cede his notice to the lessor, but the removal must be complete and suiSciently long before the resumption of possession by the tenant, or by a hostile claimant, to allow the lessor to regain the possession. The lease terminating on March 31, 1825, A, the tenant, on that day moved his goods from the house, depositing some in a near neighbor's house and some on the roadside, 4 or 5 perches from the house, and immediately in front of the neighboring house. Here they were on the morning of the next day. In the evening of March 31 the tenant went to the lessor's, '^'Philadelphia W.Schuylkill Bridge, ^''Graham v. Moore, 4 Serg. &, E. 4 Birni. 283. 467. The tenant simply moved the ^"•Satterlee v. Matthewson, 13 Serg. fence so as to throw the house out 6 K. 133. of the inclosure, but he continued to '"Wolf V. Ooddard, 9 Watts, 544; dwell in the house, which was on tJie Oraham v. Moore, 4 Serg. & R. 467. demised land. ESTOPPEL AGAINST DENYING LESSOK'S TITLE. 665 5 miles distant, and notified him that he had vacated the house. He was back to the neighborhood of the house about 8 o'elocic on the morning of April 1, and remarked to X that he had no place to go to. X, who claimed adversely, immediately said that he would lease the land to -him, and the goods and family of the tenant were at once carried back to the house. The court, in- ferring that the tenant did not expect to part with the possession, and that there had been an imderstanding between him and X, looking to the putting of X into possession, that there was no intention to give the lessor time, and that, in fact, sufficient time was not given to him to arrive and take possession before the tenant should reoccupy the house under X, — decided that the tenant, on a subsequent ejectment by his landlord, remained estopped from disputing the title of the latter. "It is not only evident," says Kennedy, J., "from the testimony of the defend- ant himself, that no reasonable time was allowed for such pur- pose, but that he had resolved with himself not to allow it, lest Boyer should improve it by taking the possession. In short, it is plain from his own showing, that he had determined to pre- vent Boyer from retaking it, by seizing it himself and withhold- ing it from Boyer."^^^ '■^Boyer v. Smith, 3 Watts, 449. Of. Bannon v. Brandon, 34 Pa. 263, 75' Am. Dec. 655, 38 Pa. 63. CHAPTEE XXXVL LANDLORD'S AND TENANT'S LIABILITY AS TO OTHERS. 780. Sidewalks. 781. Area-ways. 782. Injury to adjacent property. 783. Len^h of landlord's ownership; trustee. 784. Liability of landlord, continued. 785. Liability of lessee to third persons. 780. Lessor's liability to third persons for condition of premises. 780. Sidewalks. — It is the duty of the tenant, or othei persons in possession of premises facing upon the street, towards persona using the street, to keep the sidewalks in safe condition. If the cover in the sidewalk to a cellar vault falls out of repair, the tenant will be liable to a passenger for an injury arising from its nonrepair,^ and if the cellar extends under the pavement, the excavation must be covered by planks or other material, so as to avoid the falling in of pedestrians, or of a horse and wagon, in case, from fright or other cause, the horse should run from the cartway to the sidewalk.^ When the different rooms of a building are let to different tenants none of them have exclusive control of the hallways and of the pavement. The landlord will have general control of them, and not they, but he, will, as being in possession, be responsible for the condition of the pavement.^ If the sidewalk is in good repair when the lessee takes pos- session, he only, and not the lessor, it is held, will be liable to a passer who is injured by a defect consisting of the loosening of bricks and the digging by children, which arises during his pns- ^Bears v. Amller, 9 Pa. 193. 'Brown v. "Weaver, 17 W. N. C. ^Grier v. Sampson, 27 Pa. 183. 230. 663 LANDLORD'S AND TENANT'S LIABILITY AS TO OTHERS. 667 session;* although in Mintzer v. GreenougW the supreme court approved the refusal of the trial judge to say: "An owner out of possession, whose house is in the actual occupation of a ten- ant, is not required to keep a constant supervision of such house and of the highway in front of it ; and if a defect occurs in the sidewalk during such occupation by a tenant, by reason of which a person walking on the street is injured, the landlord is not liable to the person injured, unless knowledge or notice of such defect is traced to him." In an action to recover for personal injuries sustained by a fall upon the ice on the landlord's sidewalk, he will not be heard to allege that his tenant, and not he, is liable for the condition of the sidewalk, •where the evidence shows that the landlord constructed the pipe which carried the water off the pavement, and the use of the pipe by the tenant was in conformity with the defendant's inten- tion when he leased the premises.® So the owner of the leased premises, though not in possession, will be liable for injuries resulting from a cellar door, the hinges of which were broken off, and a board removed, and which was so unsafe as to cause a policeman to notify the tenant of it, who in turn notified the agents of the landlord and the landlord himself as to its condi- tion. '^ 781. Area-ways. — Probably it is the duty of the tenant of property in front of which there is an area-way, to put guard rails about it, or to cover it with a hurdle or other device, so as to avoid injury to foot-passengers. But whether he is liable or not, the lessor will be liable if the area-way at the time of letting of the premises is without guard rail, loose slat door, hurdle, *Early v. Ashworth, 17 Phila. 248. 2 feet long by more than ly^ feet ' 192 Pa. 137, 43 Atl. 465. When wide, and nearly 1 foot deep. the house was let, there were some "Brown v. White, 202 Pa. 297, 58 loose bricks in the pavement. Tlie L. R. A. 321, 51 Atl. 962, 206 Pa. tenant's sweeping and cleaning had 106, 55 Atl. 848. •enlarged the hole, which at the time ''Carson v. Uaclcin, 23 Pa. Supci . of the accident to the pedestrian was Ct. 50. 668 LANDLORD AND TENANT. etc., and continues in the same condition when an injury occurs to a pedestrian,^ and tliough there was a strong movable cover for the area-way which tlie tenant had neglected to pull over it at night, it would still be a question for the jury whether it was not negligence on the lessor's part not to place a permanent guard around it. If the furnishing of a movable cover, instead of such permanent guard, was negligence, the lessor would be liable despite the fact that the negligence of the tenant in not placing the cover over the area was the immediate cause of the accident.^ The lessee's covenant to repair would not apply to the furnishing of a guard rail, hurdle, etc., nor confine to him the liability for injury to others.-"' 782. Injury to adjacent property. — For nuisances to adjacent property arising during the tenant's possession, he is respon- sible ; and the nuisances may arise from the use of the premises in a mode contemplated by the lessor. If, e. g.j a cess pool is so defectively made, or is so near to the boundary line, that by its continued use by the tenant, its contents invade the cellar of a neighboring house, he will be liable for the nuisance. He is bound to desist from such a use of the premises as will constitute a nuisance. ■'■'^ A privy well is built so close to the cellar wall of a neighbor that, when its contents reach the level of the cellar floor, they percolate through the cellar wall into it. The tenant would be liable for such use of it as would produce this result-'^ But on the other hand, the landlord will be liable for a nuisance arising during the tenancy, and by the tenant's use of the prem- ises, "if the premises are so constructed or in such a condition [when the lease is made] that the continuance of their use by the "Reading v. Reiner, 167 Pa. 41, 31 vania Co. for Insurance, 141 Pa. 566, Atl. .357. ' 21 Atl. 635. "Simons v. Thompson, 2 W. N. C. ^^Knatiss v. Brua, 107 Pa. 85. 209. "/''OM) V. Roberts, 108 Pa. 489; ^"Reading v. Reiner, 167 Pa. 41, 31 Wunder v. McLean, 134 Pa. 334, 19 Atl. 357 ; Simons v. Thompson, 2 W. Am. St. Rep. 702, 19 Atl. 749. N. C. 209. Cf. Eisenbrey v. Pennsyl- LANDLORD'S AND TENANT'S LIABILITY AS TO OTHERS. 669 tonant must result in a nuisance to a third person, and a nui- sance does so result." If, e. g., a privy and sewer connection are in so defective a state when the lease is made, that the use of the former causes a nuisance to the occupant of the adjacent house, the landlord will be liable.-'^ If, however, the cesspool is prop- erly built, and in good condition when the lease is made, the lessor is not liable for a leakage from it into the neighboring cellar during the term, arising from the want of repairs. The tenant would be liable.^* 783. Length of landlord's ownership; trustee. — If A becomes owner of the premises during a term, so that he has no right to enter for the purpose of making changes, he will not be liable to third persons for injuries springing from the actual state of the premises, e. g., from an area-way, so long as the tenant's right interferes with his resumption of possession or control.^^ An executor who is required by the will to allow X to occupy the premises until a sale, and who has no power with respect to them except to sell them, is not responsible as a landlord for an accident occasioned by the manner in which X uses the prem- ises, e. g., by the sudden opening outwardly, upon the sidewalk, of a gate in front of the door steps, whereby a passer-by is injured.^® A trustee, having the legal title and power to man- age the land, will be liable for injuries caused by it, as any other proprietor.-'^ 784. liability of landlord, continued. — If the property is in a safe condition when the lease is made, and the tenant takes pos- session, the lessor is under no liability to one who is injured by the condition into which it is permitted to fall by the tenant. "Knavss v. Brua, 107 Pa. 85; Fow 230. Cf. Palmare v. Morris, 182 Pa. V. Roberts, 108 Pa. 489. Cf. Palmare 82, 61 Am. St. Rep. 693, 37 Atl. 995. v. Morris, 182 Pa. 82, 61 Am. St. ^"FAsenbrey v. Peniisylvania Go. for Rep. 693, 37 Atl. 995. Insurance, 141 Pa. 566, 21 Atl. 635. "Wunder v. McLean, 134 Pa. 334, "Mintzer v. Greenough, 192 Pa. 19 Am. St. Rep. 702, 19 Atl. 749. 137, 43 Atl. 465. ^'■Braii-n v. Weaver, 17 W. N. 0. 670 LANDLORD AND TENANT. A wharf having, when leased, a cap-log or other appliance to prevent horses and carts from falling into the dock, if, owing to the removing or covering up of this log while the tenant is in possession, a horse slips over into the river, the landlord is not liable. If the lessee sublets while the wharf is in proper condi- tion, he will not be liable for an accident arising from the removal or covering up of the cap-log during the sublessee's occu- pancy.-'* A hole 6 feet deep being dug 58 feet from the steps at the rear of the dwelling by the lessor, at the request of the lessee, he is not liable to the parent of a child less than three years old, who, while visiting the lessee, falls into the hole, which has been uncovered for a month, and drovsms.-'^ But if the lessor allows the wall of a privy which is on an alley to which the occupants of the houses on both sides of the alley and others have proper access in order to reach a factory, to become dangerous before making the lease, and during the term it falls into the alley injuring a son of the tenant of one of the other houses while walking there at the time, he will be liable.^" 785. Liability of lessee to third persons. — A paper ware-house which, prior to the lease, had been used as such for twenty years, collapsed during the term, and a laborer in the tenant's employ was killed. The lessee would not be answerable in the absence of any reason on his part to suspect the soundness of the build- ing, and of any proof of overloading.^^ AVhere a third party is injured, the action is to be brought against the one committing the tort, and the fact that there was an agreement to indemnify is immaterial. So, where an employee was injured on a date prior to that of the execution of a lease by his employer, the ^'Towt V. Philadelphia, 173 Pa. "•Schilling v. Alernethy, 112 Pa. 314. 33 Atl. 1034. 437, 56 Am. Rep. 320, 3 Atl. 792. '■'Moore v. Logan Iron & Steel Co, -^McKenna v. Martin cC- Wni. E. (Pa.) 4 Cent. Rep. 505, 7 Atl. 19S. tiixon Paper Go. 176 Pa. 306, 35 Atl. The hole was known to all the ten- 131. ant's family and to the person having charge of the child, and the lot was inclosed by a fence. LANDLORD'S AND TENANT'S LIABILITY AS TO OTHERS. 671 employer is liable, though it had been agreed that the lease should be effective as of a date prior to the accident.^* If the public have access to an alley, whether for business, curiosity, or pleasure, and the presence of children may be readily antici- pated as probable, a tenant of property will be liable for injury to young children by the fall upon them of a heavy platform fastened at its under edge by hinges to the wall of a building along the alley, and which being slightly tilted against the wall is not held fast to it by any other force than its own weight.^* So the lessee is liable to the occupant of a floor below by water escaping from a spigot, which he had failed to turn off, or which one, using it by his permission, had failed to close. ^* 786. Lessor's liability to third persons for condition of prem- ises. — Although the lessor does not generally tacitly covenant that the premises are tenantable and fit for the uses to which with his knowledge, the tenant is going to apply them, neverthe- less, the ovmer who superintends the erection of the building, deciding on the plan, selecting the materials, but who causes it to be built loosely, carelessly, unskilfully, and negligently, and with insufficient and improper materials, and lets it to a tenant who has indicated the uses to which it is to be put, will be liable to a person who, being on the building as a workman, is injured by its coUapse,^^ or to the owner of goods which are also injured by the same cause.^® A built on his ground a building, expect- ing the collector of the port of Philadelphia to take a lease of ''Wieder v. Bethlehem Steel Co. Feehan v. Dobson, 10 Pa. Super. Ct. 205 Pa. 186, 54 Atl. 778. 6. '-'Hydraulic Worlis Go. v. Orr, 83 "EilHon v. Power, 51 Pa. 429, 91 Pa. 332. Of. Schilling v. Abernethy, Am. Dec. 127. 112 Pa. 437, 56 Am. Rep. 320, 3 Atl. ^Godley v. Hagerty, 20 Pa. 387, 59 792, which approves, and Gramlich Am. Dec. 731. The action was tres- V. Wurst, 86 Pa. 74, 27 Am. Rep. pass on the case. Cf. Curiin v. Som- 684; Gillespie v. McGowan, 100 Pa_ erset, 140 Pa. 70, 12 L. R. A. 322, 23 1414, 45 Am. Rep. 365; Rodgers v. Am. St. Rep. 220, 21 Atl. 244. Lees, 140 Pa. 475, 12 L. R. A. 216, ^Carson v. Godlejf, 26 Pa. Ill, 67 23 Am. St Rep. 250, 21 Atl. 399; Am. Dec. 404. 672 LANDLORD AND TENANT. it as a public storehouse, and attempting to construct it so as to meet the requirements of such a storehouse. Not being an archi- tect or builder, he nevertheless superintended the construction of the building, formed the plans, and gave the directions. After it was finished, the expected lease was made to the collector. A laborer employed in the building was injured by its collapse under the weight of the articles stored in it. The fall of the building being due to its having been built of insufficient ma- terial, and in a careless and unskilful manner, the owner was liable to the laborer, because he knew that the building would be used for heavy storage and he took no stipulations against such use. It would follow that if the injury had been to the tenant himself, or to his property, the lessor would be liable to him. A lessor, in the absence of a covenant to repair, is not responsible to his tenant or to a lodger with his tenant, for the falling down of the ceiling of a room and the infliction of personal injuries thereby,^''' nor for the breaking through of a well floor.^^ The front steps extending before the doors of two contiguous houses, occupied respectively by A and B, tenants of X, their common owner, X is not liable to A for injuries from falling on that portion of the steps in front of B's house, when leaving it at the close of a visit, A knowing of the condition of the steps before using them.^^ '''Tennery v. Drinlchouso, 2 W. N. negligence in using the floor after C. 210. knowledge of its dangerous state. ''Lutz v. Haley, 10 Montg. Co. L. "Sheridan v. Krupp, 141 Pa. 564, Rep. 18. There was contributory 21 Atl. 670. OHAPTEE XXXVII. MINES AND MINERAL LEASES. 787. Mines and minerala. 78S. Options to lease. 789. Contracts to lease. 790. Execution of lease. 791. Successive conveyances. 792. Fraud. 793. Construction of lease. 794. Certainty. 795. Option to purchase. 796. Assignments and subleases. 797. Interest conveyed. o. Sale. 6. Licenses and incorporeal hereditaments. 798. Interest of lessee. 799. Right to work open mines. 800. Right to open new mines. 801. Eight of lessor to mine. 802. Interest of the lessee when severed. 803. Right to surface. 804. Subterranean rights. 805. Lessee's rights when mineral removed. 806. Lessee's right to refuse. 807. Duty of the lessee to furnish surface support. 808. Release of right. 809. Remedy for failure to furnish support. 810. Duty of lessee to adjacent owners. 787. Mines and minerals. — By the term "mine" is generally meant a worked vein, or a tunnel made for the purpose of secur- ing underlying minerals.-' The term "mineral" embraces everything not of the mere sur- face, which is used for agricultural purposes; the granite of '■Westmoreland Goal Go.'s Appeal, 85 Pa. 344. 673 Lahd. & Ten. 43. 674 LANDLORD AND TENANT. the mountain, as well as metallic ores and fossils, ere compre- hended within it.^ It includes not only metallic substances, but coal,^ soapstone,* clay,^ salt,^ limestone,'' sand,^ and oil and gas.' Leases for the production of oil and gas will be considered sep- arately. 788. Options to lease. — Where an option to lease has been given, in case certain things are done, but the lease has never been asked for or accepted, though the conditions entitling the grantee to it have been complied with, no liability thereunder attaches. So, where the agreement provided that, upon the com- pletion by the defendant of a certain railroad within a certain time, the plaintiff would lease to the defendant certain iron ore interests at certain royalties, a mere option was given, and no rent could be claimed under it, the defendant not having mined any ore, or called for or accepted a lease, although the railroad was completed within the time fixed.^" 789. Contracts to lease. — Where the lessee receives in settle- ment of disputes a new lease, which he agrees to accept and op- erate, provided the lessor secxires possession of the land, upon tender thereafter to him he becomes liable for a failure to take the lease if the tender be made in a reasonable time. But where it is offered after the lapse of a reasonable period (in this case four years), during which time the property has deteriorated, he is not liable for his refusal to accept.^ ^ Though it is a gen- eral rule of law that, in all contracts where the time within which an act is to be performed is not named in the contract, the time does not begin to run until the party for whose benefit 'Griffin v. Fellows, 81* Pa. 114, ''Clement v. Youngman, 40 Pa. 341. 124. 'Com. V. Hippie, 7 Pa. Dist. R. 399. 'Caldwell v. Fulton, 31 Pa. 475, 72 "Gill v. Weston, 110 Pa. 312, 1 Atl. Am. Dec. 760. 921. 'Verdolite Co. v. Richards, 7 ^'Proctor v. Benson, 149 Pa. 254, Northampton Co. Rep. 113. 24 Atl. 279. 'Sheets v. Allen, 89 Pa. 47. "Kille v. Reading Iron Works, 141 'Kier v. Peterson, 41 Pa. 357. Pa 440, 21 Atl. 600. MINES AND MINERAL LEASES. 675 the contract is to be performed has notified the other to perform it within a fixed time, yet, where the tender of performance by one party is necessary to fijs the liability, and no time is fixed by the contract, the tender must be made within a reasonable time.-*^ So, a lessor who has contracted to lease, but fails to comply with his agreement after work has been done by the lessee is liable in damages to the value of the work done.^'' Where a bill is filed to compel the specific performance of a con- tract to lease the defendant will not, in aid thereof, be restrained from boring, where the right is not clear, and it does not appear that plaintiff has been prevented from doing so.^* 790. Execution of lease. — Whatever words are sufficient to show the intent of the parties to be that the one should devest himself of the property and the other come into it for a de- terminate time, whether they run in the form of a license, cove- nant, or agreement, will, in construction of law, amount to a lease as effectually as if the most proper and technical words were made use of for that purpose.-*^ In estimating the lan- guage which constitutes a lease, the form of words used is of no consequence ; it is not necessary that the term "lease" should be used. Whatever is equivalent will be equally available, if the words assume the form of a license, covenant, or agreement, and the other requisites of a lease are present.^ ^ Being a lease, the privilege may be granted by parol, provided the term is not longer than tliree years.^^ So, the entry may be by virtue of a parol license, which is revocable at the will of the licensor, un- less followed by expenditure on the faith of it, in which case it becomes irrevocable.^^ Though the parol lease be for a period greater than three years, and, as such, ineffective by virtue of ^'Kille V. Reading Iron Works, 141 "Moore v. Miller, 8 Pa. 272. Pa. 440, 21 Atl. 006. "Moore v. Miller, 8 Pa. 272; Sheets "Heilman v. Weinman, 139 Pa. v. Allen, 89 Pa. 47. 143, 21 Atl. 29. ''Buff v. McCauley, 53 Pa. 206, 91 "Davies v. Maxwell, 5 Kulp, 351. Am. Dec. 203. ^Watson V. O'E^rn, 6 Watts, 362. 676 LANDLORD AND TENANT. the statute of frauds, yet a recovei-y may be had by the lessee for the work done and the expense incurred by him.^* Though the agreement be signed and sealed by but one party, yet, if accepted by the one not signing, he is bound to the same ex- tent as if he had done so.^" And the same is true where the lease is signed by one pretending to act as agent for the lessee, who had no such authority, the lessee having subsequently ac- cepted the grant,-'' Though a guardian has exceeded his powers in executing a lease, his acts may be ratified by the minor after attaining majority.^- As administrators have no control of the land of the decedent, they have no power to lease the same, or to receive the rents and profits accruing after the death of the in- testate.^^ Though a consideration is necessary to the validity of the contract, yet the sarae is not void because the amount agreed to be paid is small.-* 791. Successive conveyances, — The same principle governs mining leases, that actual possession of the tenant carrying on the mining operations is notice of his interest to a third person, as fully as in the tenancy of a dwelling house. The right of a tenant in possession, under such a lease is not extinguished in favor of a purchaser who knew the fact.^'' So, where coal was conveyed, but the deed was unrecorded before the land was pur- chased and paid for by another who had no notice of such con- veyance, but the first deed was first recorded, the title acquired by it will have precedence. A subsequent purchaser, to be first in right against a prior purchaser, must be first on record.^^ ^"Heilman v. Weinman, 139 Pa. -"Groin v. WUkes Bane Coal Co. 1 143, 21 Atl. 29. Kulp, 53. '"Grove v. Hodges, 55 Pa. 504; -'Sheets v. Allen, 89 Pa. 47. See Carner/ie Natural Gas Co. v. Phila- Delaware & H. Canal Co. v. Englies. delphia Co. 158 Pa. 317, 27 Atl. 951. 183 Pa. 66, 38 L. R. A. 826, 63 Am. ^^Grove v. Hodges, 55 Pa. 504. St. Rep. 743, 38 Atl. 568. ''Myers v. Kingston Coal Co. 126 "Peniisyh-unia Salt Alfg Co. v. Pa. 582, 17 Atl. 891. .Yeei, 54 Pa. 9. "Merkel's Kstate, 131 Pa. 584, 18 Atl. 931. MINES AND MINERAL LEASES. 677 792. Fraud. — As in other cases, a contract may be set aside for fraud, accident, or mistake; but such relief must be sought in an action to rescind.^'' The fact that the vendee was aware of the presence of minerals, of which the vendor was ignorant, is not ground for impugning the validity of the conveyance, where there has been no wilful misstatement of a material fact by which the vendor was misled.^^ Nor can a lessee be relieved of his obligation because there is no coal upon the land, there be- ing no implied warranty that such exists,^* nor because he was mistaken as to the amount of ore ;^*' nor because the contract was made upon the belief that a branch railroad was to be con- structed.^^ 793. Construction of lease. — Each instrument is to be con- strued, like any other contract, by its own terms.^^ ^^ Where a modification of a written lease by parol is alleged, the same prin- ciples apply as in the case of alteration of any writing. But if a written lease provides for the development of land upon one side of a road, and by parol the right is given to develop on the other side, the second agreement is independent, and no change of the written contract by parol is involved.^* "Where the lease gives the right to mine certain minerals only, such deposits, and others which are absolutely incident, can be taken. Such pass as an appurtenant, but not such as are merely important, useful, or convenient So, where the right was given to mine soapstone only, other rocks could not be taken.*^ Or where land is leased for oil purposes, gas cannot be taken.^" But where the additional mineral is incident, it may be used. "Harlan V Lehigh Coal & Vav. Co. " ^Denniston v. Haddock, 200 Pa. 35 Pa. 287. 426, 50 Atl. 197. '^Harris v Tyson, 24 Pa. 347, 64 '*Heilman v. Weinman, 139 Pa. Am. Dec. 661. ' 143, 21 Atl. 29. "Harlan v. Lehigh Coal £ Xav. Co. '^Verdolite Co. v. Richards, 7 35 Pa. 287. Northampton Co. Rep. 113. ^KemUeCoal & I. Co. v. Scott. 90 '"Palmer v. Truly, 136 Pa. 556, 20 Pa 332. Atl. 516; Kitchen v. Smith, 101 Pa. ^Kemhle Coal & I. Co. v. Scott, 90 452. Pa. 332. 678 LANDLORD AND TENANT. So, where iron ore was leased and a furnace, sufficient limestone to operate the furnace could be taken by the lessee.^' But where the right has been given, for a nominal consideration, to take iron ore and limestone, the evident motive being to secure the erection of an iron furnace, no such right passes to the limestone as will enable purchasers from the vendee to maintain ejectment for the limestone quarry.^^ So, where the lease is of salt wells, no right exists to take petrolevim. And if such rises with the salt, and is sold by the lessee, he must account therefor to the lessor, though trover cannot be maintained, since the right to possession is in the lessee.^* The lease of two veins of coal, followed by a second lease of two other veins to a lessee who has acquired the rights of the first lessee, will not be construed as a merger of all of the veins, so as to relieve from the covenants in the first lease.*" 794. Certainty. — Certainty as to the commencement and duration of the term is an essential quality of a lease. But if tlie commencement is capable of being reduced to a certainty by an event to occur after the date of the lease, the contract it- self is not void simply for want of certainty. So, where the lease was for a definite term, a certain royalty to be paid for all coal mined, the lease was not invalid for uncertainty, be- cause no date was fixed for the beginning of the operation. Whether work was commenced within a reasonable time is a question for the jury.*^ jSTor is a lease uncertain which pro- vides for a fixed term, and gives to the lessee the right to con- tinue operation as much longer as rent shall be paid. In such case the right to continue is at the will of the lessee.*^ "Watterson v. Reynolds, 95 Pa. '^Grotz v. Wilkes Barre Coal Co. 474, 40 Am. Rep. 672. 1 Kulp, 53. '■''Clement v. Youngman, 40 Pa. "Mi/crs v. Kingston Coal Co. 126 341. Pa. 582, 17 Atl. 891; Effinger v. "Kier v. Peterson, 41 Pa. 357. Leiois, 32 Pa. 367. "Lehigh Coal & Nav. Co. v. Harlan, 27 Pa. 429. MINES AND MINERAL LEASES. 679 795. Option to purchase. — Where the lessee has been given the option to purchase the land, such privilege runs with the land, and is not a mere right of election which must be exercised in the lifetime of the parties.*^ But the right accrues only to the holder of the lease, or to the person to whom it has been as- signed with the consent of the lessor. The privilege cannot be reserved by the lessee, when he assigns the lease to another, so as to enforce the right against the lessor or his executors.*' So, the lessee may give an option to purchase the lease, and if the conditions are complied with and the option accepted, the rights of the grantees will be protected. They cannot be ousted for nonpa^^ment of royalties, where the lessor has stated to them that none are due, and time and money have been spent on the faith of such declaration.*' 796. Assignments and subleases. — Where a lease has been as- signed, the assignees take the same subject to the covenants of the lease, of which they are bound to take notice.*® The sub- lessee acquires the rights of his assignor. Thus, an assig-nee of a subjacent mine secures the privilege to put air shafts through superjacent mines, the assignor having had this right, since the easement attaches to the estate^ and not to the owner.*' So, the assignee for the benefit of the creditors of the lessee may use a railroad, constructed for the purpose of moving coal, belonging to the lessea** But the sublessee is not liable upon covenants contained in the original lease, except for breaches committed while the right of possession is vested in him.*^ Where liabil- ity exists, the assignee may be sued directly.^'' But if the sub- ^'Striokhouser v. York County Iroti "Lykens Valley Coal Co. v. Dock, Co. 1 York Legal Record, 46. 62 Pa. 232. '^Winton's Appeal, 111 Pa. 387, 5 "Oil Greek 4 C. Branch Petroleum Atl. 240. Co. V. Stanton Oil Co. 23 Pa. Co. Ct. "Gomegys v. Russell, 185 Pa. 283, 153. 39 Atl. 956. '■'Watt v. Dininny, 141 Pa. 22, 21 "Gomegys v. Russell, 175 Pa. 166, Atl. 519. 34 Atl. 657. "Philadelphia & R. Goal & 1. Go. V. Taylor, 1 Legal Chronicle, 335. 680 LANDLORD AND TENANT. lessee has agreed to assume all of the covenants in the original lease, he will be bound. So, liability accrues where the covenant provided for the mining of a minimum number of tons per year, although possession was not taken until after the beginning of the year.^^ -If the sublessee has covenanted to pay certain coal royalties due and in arrear, he is bound to do so, and cannot set off debts due to him by the assignor, in an action on the cove- nants^ The original lessee remains liable to the lessor upon the covenants in the original lease.^* If the original lease prohibits its assignment, the lessor may forfeit the same and bring suit for the damages sustained, and need not wait and sue for the royalties as they become due."* A stipulation that the lease shall be forfeited if assigned, trans- ferred, or taken on execution is not violated by reason of the sale of a leasehold held by partners, by order of court, in order to settle the partnership affairs.''^ The fact that an assignment of the lease is in violation of the covenant therein does not pre- vent the passing of the title. It does not lie in the mouth of an assignee to set up such an irregularity while holding under an assignment which the assignor has ratified by suit or in any other way.®® 797. Interest conveyed. — Sale. — What is termed a "min- eral lease" is frequently found to be an actual sale of a portion of the land. "It differs from an ordinary lease in this, that, although both convey an interest in land, the latter merely conveys the right to its temporary use and occupation, whilst the former conveys absolutely a portion of the land itself. It is one of the essential properties of a lease that its duration shall "^Goddard's Appeal, 1 Walk. (Pa.) "Keck v. Bieier, 148 Pa. 645, 33 97. Am. St. Rep. 846, 24 Atl. 170. "Ardesco Oil Go. v. North Ameri- "Patterson v. Silliman, 28 Pa. 304. can Oil & Min. Go. 66 Pa. 375. "'Oil Creek & G. Branch Petroleum "Oil Greek & C. Branch Petroleum Go. v. Stanton Oil Co. 23 Pa. Co. Co. V. Stanton Oil Co. 23 Pa. Go. Ct. Ct. 153. 153; Fisher v. Milliken, 8 Pa. Ill, 49 Am. Rep, 497. MINES AND MINERAL LEASES. 681 be for a determinate period, shorter than the duration of the es tate of the lessor ; hence the estate demised is called a 'term/ and necessarily implies a reversion. If the entire interest of the lessor is conveyed, in the whole or a portion of his land, the con- veyance cannot, therefore, be properly regarded as a demise, but as an assignment."®'' The extent of the interest transferred is first discussed in Caldwell v. Fulton.^^ In that case a deed was made, in consideration of the payment of a lump sum, by which the grantee was given the full right, title, and privilege of digging and taking away stone coal to any extent that he might think proper to do or cause to be done. This grant was held to be more than a license, — an estate in the land itself, — and more than an incorporeal hereditament; since the grantor reserved no interest in himself, but gave to the grantee the right to remove or cause to be removed every available foot of the coal, subject only to the duty to make the opening upon a particular tract. So, in Harlan v. Lehigh Coal & Nav. Co.^^ the lease of the right to mine coal in the land of the lessor was held to grant an interest in the land, and not a mere license to take the min- eral. The agTeement in this case provided for a lease, for a definite term, of the right to take such coal as was desired, pay- ing a certain sum per ton, and in any case to pay a minimum royalty. The same determination is found in Scranton v. PhillipSj^° in which the court says : "Although called a lease, it was virtually a sale of all the coal, with unlimited time to remove it, with the right at their election to yield it up after the expi- ration of ten years." The question was next considered in Sand- erson V. Scranton,^^ in which the liability of the grantee under such a conveyance, for taxes, was determined. The contract in this case was called a lease, by which the grantee was given the right to mine coal and to pay a certain royalty. The maximum "Sanderson v. Scranton, 105 Pa, "' 35 Pa. 287. 469. "94 Pa. 15. ^i^ - ^il Pa. 475, 72 Am. Dec. 760. ' "105 Pa. 469. 682 LANDLORD AND TENANT.' quantity was unlimited, but the lessee was required to mine a minimum quantity, or pay for the same if he did not do so. It was further provided that the lease should be perpetual until all the coal under the tract of land was mined. It was held by the court that the entire interest in the coal in place was transferred. There was such a severance of the surface from the underlying strata as created a divided ownership in the distinct portions of the land. This decision was followed in construing the same lease in Delaware, L. & W. B. Co. v. Sanderson.^' So a sever- ance is worked where the grant gives the right to mine until ex- haustion.*^ Where the words "grant, bargain, and sell" are used in con- nection with coal, and words of inheritance are added, it is to be presumed, unless a contrary intent clearly and affirmatively appears, that the parties intended them to have their ordinary legal effect, which is to vest in the grantee the entire ownership of the coal in the land described. But these technical words are not necessary to the creation of a separate estate in the coal, provided the intention to sell it is manifest, and it is now well settled that an instrument which is in terms a demise of all the coal in, under, and upon a tract of land, with the unqualified right to mine and remove the same, is a sale of the coal in place. And this, too, whether the purchase money stipulated for is a lump sum or a certain price for each ton mined, and is called rent or royalty; and, also, notwithstanding a term is created within which the coal is to be taken out.®* But if the intention appears that no sale shall be worked, the contrary is true.*^ If the agreement is to grant the privilege of mining all of the ore upon the payment of a certain consideration, the contract will be treated in equity as a conveyance of the title to "^ 109 Pa. 583, 1 Atl. 394. '^Eosack v. Crill, 18 Pa. Super. Ct. ''Sillihridfie v. Lacl-auanna Coal 90; Bosack v. Crill, 204 Pa. 97, 53 Co. 143 Pa.' 293, 13 L. K. A. 627, 24 Atl. 640. Am. St. Hep. 544, 22 Atl. 1035. '^Clement v. Youngman, 40 Pa. 341. MINES AND MINERAL LEASES. 683 the ore in fee, the price agreed upon having been paid.^® Though called a lease and providing for a fixed price, an agreement naming a liquidated gross sum, payable in instalments, but giv- ing a long period for the removal of the coal, is a sale, and the money due is payable to the executors of the deceased lessor as personal estate.®'^ ^"^ So a lease for a term of years, with the right to remove all of the coal is a sale.^'' It is a sale conditioned upon removal of the coal within a specified time ; and the royal- ties are to be treated as purchase money in the distribution of the lessor's estate ;"* or in determining whether the same will pass by devise of the lessor.^^ So, a sale and conveyance of mine buildings, and the coal under a tract of land, with the privilege of mining and removing the same during seven years, is to be treated as an absolute conveyance of the coal plant and coal -which should be mined ; and the vendee has the right to remove the buildings and other appliances necessarily connected with the mining and the transportation of the coal.'^'' Likewise it is to be treated as a sale in determining whether title has been ac- quired by adverse possession,''^ and in determining the liability of the lessee for a minimum rental which he has agreed to pay.^^ Though such conveyances are to be treated as sales of the coal in place, yet not all of the incidents of sale are to be applied to such instrimients. In discussing the earlier decisions, the "Fairchild v. Dunhar Furnace Co. °°Hosack v. Grill, 18 Pa. Super 128 Pa. 485, :8 Atl. 443, 444. Ct. 90; Rosach v. Grill, 204 Pa. 97 "iHope's Appeal, 29 W. N. C. 365. 53 Atl. 640. "Kingsley v. Hillside Coal & I. Co. ^'Montooth v. Gamble, 123 Pa. 240, 144 Pa. 613, 23 Atl. 250; Plummer 16 At?. 594. V. Hillside Goal & I. Go. 160 Pa. 483, ^Finnegan v. Pennsylvania Trusi .28 Atl. 853; Lehigh Valley Coal Go. Go. 5 Pa. Super. Ct. 124; Artyistrong v.Wilkes Barre & E. R. Co. 8 Kulp, v. Caldwell, 53 Pa. 284. 640; WeaJcland v. Cunningham, 7 ^'Timlin v. Brown, 158 Pa. 606, 28 Atl. 148. Atl. 236; Lehigh & IF. B. Coal Go. "Lazarus's Estate, 145 Pa. 1, 23 v. Wright, 177 Pa. 387, 35 Atl. !I19; Atl. 372; Gardner's Estate, 199 Pa. Kemble Coal & I. Co. v. Scott, 90 Pa. 524, 49 Atl. 346; Fairchild v. Fair- 332. child (Pa.) 9 Atl. 255; Hancock's Estate, 7 Kulp, 36; Maffet's Estate, a Kulp, 184. G84 .LANDLORD AND TENANT. court said in Denniston v. Haddock:''^ "With the decisions in these cases no fault can be found, but the expression that a con- veyance of coal in place, even by a lease for a limited term, is a sale, is inaccurate as a general proposition of law, and unfortu- nate from its tendency to mislead, which is apparent in some of the subsequent cases. Whether it would be better to call such an instrument accurately, what it certainly was at common law, a lease without impeachment of waste, or to endeavor to recon- cile all the decisions by calling it a conditional sale, is not neces- sary at present to discuss. The point to be noted is that the rules applicable to sales are not to be applied indiscriminately to such instruments, but each is to be construed, like any other contract, by its own terms." So it was held in this case that the lessee of coal for a term of twenty years, required by his con- tract to pay minimum royalties, which had been done, — and a greater sum in all having been paid than the value of the coal mined, because of strikes and other circumstances, which pre- vented mining to the full extent, — cannot, after the lease has expired by limitation and a new lease has been taken, defalk the overpayment under the old lease from the royalties due under the new one.''* Licenses and incorporeal hereditaments. — A license is de- fined to be a power or authority given to a man to do some lawful act, and is a personal liberty to the party to whom given, which cannot be transferred over, but it may be made to a man or his assigns. But where an estate or interest is evidently intended to be conveyed, it must be either a corporeal or an incorporeal hereditament.^^ So, the grant of the privilege to dig ore at a fixed price per ton, there being no covenant compelling the licen- see to dig any quantity or to mine within any given time is a mere license.''® A license to take coal is revocable, but, if fol- "260 Pa. 426, 50 Atl. 197. ^'Caldu-ell v. Fulton, 31 Pa. 475, ^'Denniston v. Haddock, 200 Pa. 72 Am. Doc. 760. 420, 50 Atl. 197. ^'Xeumot/er v. Andreas, 57 Pa. 446 MINES AND MINERAL LEASES. 683 lowed by expenditure on the faith of it, the license becomes irrev- ocable, and equity will treat the license thus executed as a con- tract giving absolute rights.'^'' If the owner grant to another the right or privilege to take minerals from his land, this grant, if not an exclusive one, is not a grant of an interest in land, but of an easement or incorporeal right, which leaves the title to the minerals in place remaining in the grantor.'* But the grant of the privilege of raising ore at a specified price per ton, to the grantees and their assigns, the privilege to be given to no one else, is more than a mere license revocable at the will of the licensor. It is a valid grant of an incorporeal hereditament, the right, however, not being exclusive in the grantee, but to be enjoyed in common with the grantor, his heirs and assigns.'^' So, where the grant was to one, his heirs and assigns, with the right of ingress and egress, no exclusive right being granted, the interest is an incorporeal hereditament, and the joint right of the grantor to take the minerals exists.*" And wliere land was devised to three sons, each of whom was to have the privilege of taking coal from an opening then made, the grant was held to be of a privilege in the coal bank, — ^not a share or portion of the coal, — and an easement in the adjacent land necessary to its enjoyment. Since the devise was of a mere privilege, an easement and incorporeal hereditament, a right in, or issuing out of, the land, ejectment was not the proper remedy for a deprivation or interruption of such right or privilege.*^ So, the conveyance of land, with the right to take ore from an adjoining tract so long as the furnace upon the land was carried on by charcoal, gave a limited privilege to take ore, and did not '"Buff V. McCauley, 53 Pa. 206, 91 Grove v. Hodges, 55 Pa. 504; Harlan Am. Dee. 203. v. Lehigh Coal & Nav. Co. 35 Pa. ^'Delaware £ H. Canal Co. v. 287. Hughes, 183 Pa. 66, 38 L. R. A. 826, "Gloninger v. Franklin Coal Co. 63 Am. St. Pep. 743, 38 Atl. 568. 55 Pa. 9, 93 Am. Dec. 720. '"Johnstovn Iron Co. v. Cambria ^^Garnahan v. Broum, 60 Pa. 23. Iron Co. 32 Pa. 241, 72 Am. Dec. 783: 686 LANDLORD AND TENANT. convey the corporeal estate in the mine hill.^^ Where a portion of a tract has been conveyed, with a collateral covenant granting^ the right to take ore upon the remaining portion of the tract, and the land conveyed is sold at sheriff's sale, the easement will not pass to the purchaser, it not appearing that such was appur- tenant to the tract conveyed.*^ And where a devise of land is made with the privilege of taking coal from another tract, the privilege is personal, and does not pass to devisees.^* As has been seen, the granting of all of the coal, though the instrument is called a lease, and a term is fixed, and royalty is reserved, will be treated as a sale. Yet this rule does not apply where a contrary intention appears from the agreement.^' And though the exclusive right has been given to take all gas, and in addition coal, the word "all" not being used, and a royalty being reserved, an incorporeal hereditament alone will pass, such facts showing that it was not the intention of the parties to convey the coal absolutely, or to exclude the grantor from mining.^" 798. Interest of lessee.— The interest of the lessee in the lease for minerals is a chattel real, and as such is a partnership asset.*^ It is a grant of a leasehold, and subject to the mechan- ics' lien law.^* And the instrument, being one for the payment of money, is within the meaning of the early acts of assembly requiring an affidavit of defense to actions thereon.** But the estate acquired thereby was held in Elk Twp. v. Beaver Twp.^'^ not to give such a settlement for a poor person as is contemplated by the act of June 13, 1836. (The theory on which this case was decided is that the contract between the parties constituted a sale '"Grulb V. Grubi, 74 Pa. 25. "Patterson v. Silliman, 28 Pa. "Grubb V. Guilford, 4 Watts, 223, 304; Brown v. Beecher, 120 Pa. 590, 28 Am. Dee. 700. 15 Atl. 608. '^Youghiogheny River Goal Co. v. '^McElxcaine v. Brown (Pa.) 9 Peairs, 2 Pa. Dist. R. 134. Cent. Rep. 789, 11 Atl. 453. See act "Cletnent v. Youngman, 40 Pa. June 4, 1901, P. L. 431. 341. "Johnston v. Coican, 59 Pa. 275. "Jennings Bros. v. Beale, 158 Pa. " 6 Pa, Co. Ct. 562. 283, 27 Atl. 948. MINES AND MINERAL LEASES. 687 of the coal in place. The agreement is not set forth). "Where the agreement constitutes a lease, the rent due is entitled to priority as against execution creditors, as in the case of ordinary leases;®^ and possession of the premises may be obtained by virtue of the provisions of the landlord and tenant act.®^ So the lessee is within the act of assembly providing a special remedy when land is taken under the power of eminent domain.** 799. Right to work open mines. — The lessee of lands is en- titled to work open mines upon the premises, unless restricted by the terms of his lease. As the same privilege exists on the part of the tenant for life,®* so he may lease this right, and his lessee will acquire the same privilege.*^ 800. Right to open new mines. — The right to open new mines does not exist unless the demise includes this privilege.** The habendum determines what estate is granted, and may lessen, enlarge, explain, or qualify the estate in the premises, and, unless totally repugnant to it, is to be construed as if contained in the first part of the deed. When anything is granted, all the means to obtain it, and all the fruits and effects of it, are also granted. Therefore, when the lessee is given the privilege of mines and minerals, he is given the right to them, and the right to dig for them.*'^ If the right has been granted to take all of the coal, the lessee has the privilege of making all necessary openings.** So, the tenant for years of the superjacent mine has authority to permit an opening to a subjacent mine for the purposes of ventilation.** ''Oram's Estate, 5 Kulp, 423; '"'Sayers v. BosUnson, 110 Pa. Greenough's Appeal, 9 Pa. 18. 473, 1 Atl. 308. ''O'Donnell v. Lvslcin, 12 Montg. "Criffln v. Felloios, 81* P.i. 114. Co. L. Rep. 109. "Griffin v. Fellows, 81* Pa. 114; "'Mine Bill & 8. B. R. Co. v. Zerbe, School Board's Appeal, 2 Walk. 2 Walker (Pa.) 409. (Pa.) 37; Tiley v. Mayers, 25 Pa. "WeeJ V. Neel, 19 Pa. 323; Lynn's "Trout v. McDonald, 83 Pa. 144. Appeal, 31 Pa. 44, 72 Am. Dec. 721; "Philadelphia & R. Coal d- I. Co. Shoemaker's Appeal, 106 Pa. 392. v. Taylor, 1 Legal Chronicle, 361. 688 LANDLORD AND TENANT. In case the lessee acts to the injury of the reversion, a writ of estrepement may be granted to stay the waste, but such will not be allowed where it does not clearly appear that the acts com- plained of are unwarranted by the lease and injurious to the land.ioo 801. Right of lessor to mine. — Where the conveyance does not constitute a sale of the coal in place, and no exclusive right is given to the lessee, the grantor, his heirs or assigns, may also mine.^"-'^ If the grant is coextensive with the coal vein of the whole tract, and the lessor enters and takes coal, he is guilty of a breach of the implied covenant for quiet possession, and the lessee can set off the damages resulting therefrom against the claim for rent accrued under the lease. The rent would be suspended in case of an actual expulsion of the lessee out of all or some part of the demised premises. But that already accrued and overdue is not forfeited, though the tenant may defalk the damages caused by. ■'"^ 802. Interest of the lessee when severed. — After the mineral has been severed from the ground it becomes personal property, and passes to the assignee for the benefit of creditors,-'"* and may be sold on execution against the lessee,-' °* or may be recovered in an action of replevin.-"'* So, culm mined from its original place, and piled on the ground, is personal property, and when taken by a railroad company under the right of eminent domain, the owner is entitled to recover its value. ■'"^ 803. Eight to surface. — Where the exclusive right to mine coal has been given, the grantee may take possession of the sur- ™FeiJ V. Strong, 44 Pa. 264. ^'^Lylcens Valley Coal Co. v. Dock, ^'^Johnstown Iron Co. v. Cambria 62 Pa. 232. Iron Go. 32 Pa. 241, 72 Am. Dec. ^"Watts v. Tibbals, 6 Pa. 447. 783 ; Neumoyer v. Andreas, 57 Pa. ^"Oreen v. Ashland Iron Co. 62 Pa. 446; Jennings Bros. v. Beale, 158 Pa. 97. 283, 27 Atl. 948; Gloninger v. Frank- ^"Lehigh Coal Co. v. Wilkes Barre lin Goal Co. 55 Pa. 9, 93 Am. Dec. d E. B. Co. 187 Pa. 145, 41 Atl. 37, 720. ^"Tiley V. Moyers, 43 Pa. 404. MINES AND MINERAL LEASES. 689 face necessary to carry on. the operations, even as against the owner of the soil, and may recover in ejectment the land itself against an intruder. "VVher^ it does not appear what portion of the land is necessary, it will be presumed that the entire tract is required.'"^ So. the lessee of coal who has never gone into possession may maintain ejectment against the lessor, provided hifi rights have not been forfeited.^"* If the lease has desig- nated the sites which may be taken, the lessee is limited to them.-'"" And when the parties have agreed upon the mode of Access to the coal conveyed, no implication can be allowed of a.ny other way, however convenient"" An agreement regulating the manner of removing the coal is a covenant which runs with the land.'^^ A gTant of a surface right, with a stipulation that it shall be used only for the purpose of a coal breaker and dirt room for the deposit of coal and dirt, is the grant of an easement only.^^* Where the lease provides that the lessee shall have sufScient surface room for the erection of a breaker and the de- posit of culm, he may exercise the privilege, but is not compelled to erect a breaker or to deposit culm.^^'^ Though the lessee is granted surface rights for the purpose of preparing coal and dumping refuse from the land leased, such privilege cannot be •exercised for tlie purpose of preparing coal from other land. If this privilege has been expressly gTanted, to be paid for, it is a covenant running with the land, and a purchaser of part of the tract can recover from the lessee for such use of the sur- face. No privilege exists to use the right of way granted, for removing coal from an adjoining tract, though both tracts were at one time owned by one person, who used the right of way."* ^"Turner v. Reynolds, 23 Pa. 119. Co. v. West Ridge Coal Co. 187 Pa. ^'^Orotz V. LeUgh & W. B. Coal 500, 41 Atl. 458. Co. 1 Kulp, 53. ^'■-Big Mountain Improv. Co.'s Ap- ^"Duffield V. Hue, 129 Pa. 94, 18 peal. 54 Pa. 361. Atl. 5G». '''Lance v. Lehigh & W. B. Coal Co. '"Kascom v. Cannon, 158 Pa. 225, 163 Pa. 84, 29 Atl. 755. 27 At). 908. '"Webler v. Vogel, 159 Pa. 235, 28 ^"Electric City Land & Improv. Atl. 226. Land. & Ten. 44. 60O LANDLORD AND TENANT. 804. Subterranean rights.— Where land is sold with a reserva- tion of minerals and subterranean passages, the lessee who takes the same has the right to pass through the land over the soil lying under the coal vein.^^^ Subterranean passages may be used for removing coal from other lands, unless the lease re- stricts the inside workings to the mining and preparing coal upon the land leased.^'" A lessor who has reserved the rights to oil and gas may drill through the coal for that purpose, but an injunction will be granted in case the lessee is interfered with or injured by leakage.^^^ In the absence of a reservation, the grantor has the right of access to the strata underlying the coal."» 805. Lessee's rights when mineral removed. — An estate in coal is determinable upon removal of the coal ; and when all the coal is removed, the space it occupied reverts to the grantor by opera- tion of law.^-'^ The estate terminates with the exhaustion of the mineral, and the owner of the land above and below has a right to a reversion of the space occupied, within the time con- templated by the parties.-'^" 806. Lessee's right to refuse. — Where the lessor is to receive a certain sum per ton for all coal passing over a screen of a cer- tain mesh, and to have all the culm or refuse coal from the mines, he is entitled to only such culm or refuse coal as the lessee rejects and places upon the refuse pile, and not to such smaller coal as would pass through the mesh, but which the lessee chooses to sell.^^^ Where the lease was granted for the ^^'Parlc Coal Co. v. Cummings, 2 ™Chartiers Block Coal Co. v. Law Times, O. S. 121. Mellon, 152 Pa. 286, 18 L. R. A. 702, '"Rochafellow v. Hanover Coal Co. 34 Am. St. Rep. 645, 25 Atl. 597. 2 Pa. Dist. R. 108, 12 Pa. Co. Ct. '"IVebber v. Vogel, 189 Pa. 156, 42 ^41. Atl. 4; Lillibridge v. Lackawanna '"Charters Bloclr Coal Co. v. ^fcl- Coal Co. 143 Pa. 293, 13 L. R. A. Ion, 1.52 Pn. 280, IS L. R. A. 702, 34 027, 24 Am. St. Rep. 544, 22 Atl. Am. St. Rep. 045, 25 Atl. 597. 103,0. '^"Chnrtiers Block Coal Co. v. Mel- '-'Lance v. Lehigh cG U'. B. Coal Icii. lrV2 Pm. 28H, IS h. R. A. 702, 34 Co. 1C3 Pa. 84, 29 Atl. 755. Am. St. Rep. 045, 25 Atl. 597. MINES AN0 MINERAL LEASES. 691 purpose of searching for mineral and fossil substances, the grantees to pay for all zinc and iron ores, the refuse material must be regarded as a substance other than ores, and for its con- version by the grantees the gTantor is entitled to recover the value thereof as damages, and to an injunction restraining the grantees from its further sale and removal from the land de- mised.^^^ The intent of the parties at the time the contract is entered into should govern its enforcement; and where the right was given to take iron ore, and the lessee subsequently at- tempted to use the refuse for paint j)urposes, an injunction was granted, it being clear that the crude ochre in the refuse dam was not intended to pass under the terms of the lease.^^* 807. Duty of the lessee to furnish surface support. — If min- erals are demised, and the surface is retained by the lessor, there arises a prima facie inference, upon every such demise, that the lessor is leasing them in such a manner as is consistent with the retention by himself of his own right of support.-'^* The lessee is bound to leave enough of the mineral in place to answer the purposes of support for the surface, unless the right has been ex- pressly released.^^^ The lessee cannot remove the minerals in such a way as to injure the surface.^ ^^ This right to support extends to the portion of the highway belonging to the surface owner.-'^'^ It is no defense to an action for injury sustained, that the greatest of care was taken by the lessee, since an absolute right to the support exists.^ ^* And a custom to deprive the sur- face of proper support is not reasonable, and cannot be set up in. defense.^^® ^Doster v. Friedensville Zinc Co. ^'Lotcry v. Hay, 2 Walk. (Pa.) 140 Pa. 147, 21 Atl. 251. 239. ^Ervjin's Appeal, 20 W. N. C. 278. ^''■'Barnes v. Berimnd, 3 Pennyp. ^" Jones V. Wagner, &6 Pa. 429, 5 140. Am. Rep. 385. ^-'Rohertson v. Toughiogheny -^Allshouse's Estate, 23 Pa. Super. ^.^,^^ ^^^^ ^^ ^^^ Pa. 5C6, 33 Atl. Ct. 146; Horner v. Watson, 79 Pa. ,„^ ^ , ^ „., ,„ , ,. n..o ^1 . T. cc AT 7 D-„ I. 706: Gumhert v. Kilgore Pa. f> 242, 21 Am. Rep. 55; Nelson v. Hovh, ' 14 Phila. 655; Nelson v. Miller, 1 Cent. Rep. 406. Legal Record Rep. 187. ^"'Jones v. Wagner, 66 Pa. 429, 5 692 LANDLORD AND TENANT. The owner of the mineral rights is liable to the surface own- er, though he has subsequently leased his rights to another, where the injury has occurred prior to the lease. But where it has occurred subsequently, the lessor is prima facie not liable. In case the action is based upon a covenant of the first lessee, the second lessee woud not be a proper party to the action.'*" The lessor, who merely reserves the right to examine the mine, is not liable for the deprivation of surface support.'** But the contrary is true if the work is done under his direction.'*^ 808. Eelease of right. — The owner of the surface may release the lessee from his obligation to furnish surface support. Such right is not to be taken away, however, by a mere implication from language not necessarily importing such result So, the reservation that the lessee "shall do as little damage to the sur- face as possible will not relieve from liability."'** ISTor will a release be effective which provides for freedom from obligation in case "all ordinary precautions" are taken.'** Where an ex- ception has been made, the lessee or those who claim through him haay mine all the coal, even thotigh by said mining the sur- face should fall in.'*^ If a covenant appears by which the oc- cupier of the surface agrees to remove his railroad upon demand ao that all the coal may be taken, ajid he fails to do so, damages may be recovered for the breach.'** Where the agreement of the parties has been put in writing, the lessee cannot show a parol alteration of the lease, allowing him to withdraw the sur- face siipport.'*'' In case the right has been released, it will be Am. Rop. 385; Horner v. Watson, 79 ^^WilUams v. Hay, 120 Pa. 485, Pa. 242, 21 Am. Rep. 55. Am. St. Rep. 719, 14 Atl. 379. ^"Hill V. Pardee, 143 Pa. 98, 22 '"Youghiogheny River Goal Go. v. Atl. 815, Hopkins, 198 Pa. 343, 48 Atl. 19. ^"Offennan y. Starr, 2 Pa. St. 394, ^^'Scranton v. Phillips, 94 Pa. 15. 44 Am. Dec. 211. See Little Schuijl- "M7/,?ie Hill & S. H. R. Go. v. l-All Xai\ I!, d Coal Go. ^. Richards, Lippincott, 86 Pa. 468. 57 Pa. 142, 98 Am. Dec. 209. ^"HeclMclier v. Sheaffer (Pa.) 14 ^'-Kisilcr V. Thompson, 158 Pa. Atl. 53; Lowry v. Hay, 2 \'\alk. 139, 27 Atl. 874. (Pa.) 239. MINES AND MINERAL LEASES. ,693 effective, provided the grantor of the right possesses power to so do ; but executors autliorized by a v.n.W to sell coal underlying certain lands, with "tlie usual mining privileges," are not au- thorized to sell the coal and release the right of surface or lateral support. •'*® 809. Remedy for failure to furnish support. — Where the lessee has deprived the owner of the surface support, the right not hav- ing been released, an action may be maintained to recover the damage suffered. The statute of limitations in such case runs from the time when the coal was removed without leaving suf- ficient support, although the owner of the surface may have been ignorant of the violation of his right. ^^^ Where the injury has occurred by reason of an error of judgment, only compensatory, and not vindictive, damages are to be awarded.^ **• And the plaintiff is not entitled to interest on his damages from the time they accrued.-'^-' The rights of the surface owner may likewise be protected by injunction.-*^^ 810. Duty of lessee to adjacent owners. — Where adjacent mines are held by different owners, the lessee must ascertain the divid- ing line at his peril. And the lessor who directs the lessee to mine beyond the line is liable to the adjoining owner.^** But this rule does not apply where the plaintiff is the lessor of both of the ad- joining mines, and he has not protected himself by covenant If he not only gives his tenant the power, but makes it his duty, to explore, and marks a theoretical line upon his own premises, the tenant cannot be treated as a trespasser, if in an honest attempt ^Allshoiise's Estate, 23 Pa. Super. '^Emerson v. Schoonmaker, 135 Ct. 146. Pa. 437, 19 Atl. 1025. "'yoonan v. Pardee, 200 Pa. 474, "''Nelson v. Hoch, 14 Phila. 655: 55 L. R. A. 410, 86 Am. St. Rep. 722, Neckscher v. Sheaffer (Pa.) 14 Atl. 50 Atl. 255; Pantall v. Rochester d 53,: Ganley v. Kirst, 7 Lack. Legal P. Coal . Go. v. Bar- "^Ege V. Kille, 84 Pa. 333; Ritchie Ian., 27 Pa. 429. r. McAllister, 14 Pa. Co. Ct. 267; "'6"nio« Improv. Go. v. llarkle, Williams's Appeul, 1 Monaghan 191 Pa. 329, 43 Atl. 1103. (Pa.) 274, 36 Atl. 810. See Advance "'East Shugar Loaf Goal Go. v. Coal Co. V. Miller, 7 Kulp, 541. Wilbur, 5 Pa. Dist. R. 202. MINKS AND MIN'KRAL LEASES. 717 benefit of the lesser, and lie is under no duty to take tlic same at the appraisement."^ Where (he lease gives the right, upon re- entry by the lessor, to sell po mnch of the improvements as will l^ay the rent, the balance to be appraised and its value paid to the lessees, the, lessor is not bound to so act. A bill for accounting cannot be maintained when filed a long time after, where it does not appear that the property was ever taken, — particularly when there was an adequate remedy at law.^"- 835. Improvements where the lessee is evicted.— Where one was a bona fide occupant of land, holding under a claim of title, but possession has been taken from him by an action in eject- ment, he may set off the value of such improvements of a perma- nent character as increase the value of the land, in an action for mesne profits."^ So, if the owner permits others to lease the €oal, and allows the lessee to mine the same for many years with- out objection, he cannot, in au action of trespass, refuse credit for the improvements.-"^^ If the lessee has been evicted with- out fraud on the part of the lessor, he cannot recover from him the value of such improvements, where he had the right to re- move them ; and the fact that the lessor has set off their value iu an action brought by the holder of the paramount title is imma- terial.i"^ ^'Waiter v. Gilbert, 111 Pa. 159, ^'^ilcdowan v. Bailey, 179 Pa. 470, 33 L. R. A. 580, 35 Atl. 597. 3tj Atl. 325. '--ill ay V. C'aiawissa B. Co. 18 W. ^"'Lanigaii v. Kille, 97 Pa. 120, 39 >i. C. !). Am. Kep. 797. ^"-Ege V. Kille, 84 Pa. 333. CHAPTEE XXXIX. OIL AND GAS LEASES. 836. Execution of lease. 837. Fraud. S38. Description of premises. 839. Options to lease or explore, 840. Successive leases. 841. Nature of oil and gas. 842. Interest conveyed by lease, 843. Interest retained by lessor. 844. Estate acquired 84.5. License. 84G. Tenants in common. 847. Interest of lessee after termination of work. 848. Exclusiveness of lessee's right. 849. Construction of agreements. 850. Meaning of words. 851. Understanding of the parties. 852. Alteration. 853. Where lease lost. 854. Remedy for interference. a. By injunction. 6. By action of trespass. c. By ejectment. 85.5. Interference with third parties. 856. Account. 857. Receivers. 836. Execution of lease. — The usual mode of creating the relationship of landlord and tenant is by an express agreement which fixes the rights and duties of the respective parties. Since oil is a mineral, it is to be considered a part of the- realty; and the guardian therefore cannot lease the land of his ward for the purpose of its development, as it would in effect be a grant of a part of the corpus of the estate. In such case the approval of the orphan's court must be obtained,^ The lessee '^Stoughton's Appeal, 88 Pa. 198. 718 OIL AND GAS LEASES. 719- will be bound by the covenants provided for in the agreement, though the writing has never been signed and sealed by him^ when he accepts the same and acts thereunder. Particularly is- this true where the lease is subsequently signed by him.^ Nor can a lessee defend to an action upon the agreement on the- ground that the same was not acknowledged by a married woman, as required by law, where she has in all respects com- plied with her contract, and has not sought to avoid the instru- ment, nor interfered with the defendant, or in any way or man- ner prevented him from operating thereunder.^ Likewise, the- objection is futile where based on the failure of the wife to join with her husband in the lease, where it was agreed that she should do so upon the presentation of the writing to her by the lessee's agent, who was never sent, and where it appeared that she was present at the negotiation, which led to the execution of the lease, and that she did not then, or afterward, object thereto.* If the agreement has been entered into by an agent of the lessor, acting by virtue of a letter of attorney, the powers- conferred must be strictly interpreted, and the authority is never to be extended beyond that which is given in terms, or that which is necessary and proper for carrying the authority so- given into full effect. "\^1ioever deals with an agent constituted for a special purpose deals at his peril, when the agent passes the precise limits of his power. ^ In proceedings arising from the agreement, the lease is ordi- narily to be proved by the subscribing witness. But if not di- rectly in issue, it may be proved by the lessor without calling such witness.® If the writing has been destroyed by the de- fendant's agent, in whose possession it was, it is not permissible 'Carnegie Natural Gas Co. v. Phil- Co. 16.5 Pa. 133, 33 L. E. A. 847, 30 adelphia Co. 158 Pa. 317, 27 Atl. 9.-.I. Atl. 719. 'Agerter v. Vandergrift, 138 Pa. 'Uladlonald v. O'Neil, 21 P.x. 593, 21 Atl. 202. Super. Ct. 364. niunhle V. People's 'Natural Gas "Kitchen v. Smith, 10] Pa. 452. 720 LANDLORD AND TENANT. for the defendant to prove the form of a lease usually taken by him in that community, and so frequently taken that a book was prepared by the recorder of deeds with the form offered printed therein.'' The contract to drill a well may properly be proved by parol, the statute of frauds having no bearing.* 837. Fraud. — Where the agreement has been induced by the fraudulent representations of the lessor, the agreement may be set aside, or a defense made to an action upon the covenants therein, or to actions upon promissory notes given as a result thereof.® Or a judgment given as collateral security therefor may be opened.^" Or in an action of ejectment." And this defense for fraudtilent misrepresentation may be made to sub- sequent notes given, though sonie have been paid without objec- tion.^^ Where the lessee has been imposed upon by the fraud of the lessor, he may rescind the lease and recover the purchase price, or he may elect to retain the lease and recover the damage which he has sustained.^^ Or an action will lie for damages in falsely representing that a well transferred had not been tor- pedoed.^* Though it was held admissible in such case for the defendant to show that one torpedo had been used, though it was not effective. ■'^ So the vendor may ask for the cancelation of the transfer where fraudulently secured. But it is not ground to so order where there was a mere failure to inform the vendor that oil had been found on adjoining land.^® ^Morris v. Guffev, 188 Pa. 534, il "Smalley r. Morris, 157 Pa. 349, Atl. 731. ' 27 Atl. 734. HJaight V. Conners, 149 Pa. 297, "Guffcy v. Clever, 146 Pa. 54S, 23 24 Atl. 302. Atl. 161. 'Weixel v. Lennox, 179 Pa. 457, 36 "Fer6a.c7i v. Davis, 3 Walk. (Pa.) At). 229. 176. "Weixel v. Lennox, 179 Pa. 459, 36 ''Vc^bach v. Davis, 3 Walk. (Pa.) Atl. 248. 176. "Ghriitie v. Blakeley, 2 Monaghan "Neil! v. Shamburg, 153 Pa. 263, . as to use of words in a written lease, 732, 733. DAMAGES. for breach of contract to lease, 3, 4. measure of, '5. for non-delivery of possession to lessee, 5, 340, 345, 346. for lessee's refusal of possession under oral lease, 34. for interfering with tenant's possession by rebuilding after fire, 80, 81. for breach of covenant to repair, setting of, against rent, 82. as to state of premises, measure of, 83 et seq. to restore building to former state, measure of, 97. erect building, 100. quadruple for ignoring justice's defalcation against rent, 260. treble, for rescous and pound-breach, 246. double, for distraining when no rent is in arrear, 253. for distraining for too much rent, 250. for improper distress, 264. deducting the rent due, from, 258. recovered by landlord, in replevin, 265. exemplary damages for distress when no rent is due, 254. when, in distraining, a trespass is committed, 258. for total eviction by landlord, 360. stranger, 361, 700. partial eviction by landlord, 362. exemplary, for eviction, 362. for breach of covenant against assigning lease, 372, 374. subletting, 390. of various covenants, 377 790 INDEX. {References are to pages), DAMAGES— ( continued ) . respecting hay, fodder and straw, 521. detention of premises, act March 21, 1772, 569. December 14, 1863, 600. dispossession of tenant, act December 14, 1863, 625. of landlord on appeal, act December 14, 1863, 628. exemplary, for removal of surface support, coal lease, 693. interest on damages, 693. for breach of contract to buy interest in oil lease, 721. treble, for taking minerals from others' lands, 694. for breach of covenant to mine with diligence, 696. for failure to mine minimum quantity of coal, 701. for lessor's drilling oil wells within protected area, 735. for lessee's failure to drill proper number of oil wells, 746. to deliver to landlord his share of oil, 747. DEATH. of tenant, landlord's preference, as to rent, 296. equivalent to notice to quit, 306. effect on duration of term, 327. transmission of term, 364. of lessor, to whom right to rent passes, 525. does not terminate lease, 710. DECEIT. action for, in misrepresenting condition of premises, 43. breach of warranty of purity of water, 83. DECLARATION. on covenant omitted from written lease, 46, 47. in action for rent, 135. DEFALCATION. by justice against rent, prior to distress, 258. DELIVERY. of lease, necessity of, 26. DEMAND OF RENT. condition to forfeiture of lease, 410, 415. where made, 416. when unnecessary, 417. condition to procedure under act April 3, 1830, 437. DENIAL OF LESSOR'S TITLE. by lessee, implied conditions against, 398, 434, 754. DISCHARGE. of surety, 62. INDEX. 79i (References are to pages). DISTRESS. right to, at common law, 154. contractual right of, 154. modification of right to contract, 154, 155. right to, as against cropper, 14, 170. right to, for penalty, 154, 107. effect of, on liability of surety, 62. when rent is payable in kind, 117, 118. rent must be already payable, 155, 181. computing time when rent is due, 156. rent payable in advance, 157. -when time of paying rent is hastened by act of lessee, 157. retarded, 159. rent not due, because condition has not been complied with, 139. spoliation of deed reserving rent, 160. rent must be certain, 160. none for use and occupation, 160. for rent for holdover period, 162. lease contingently reduces rent, 163. rent apportioned, 164 et seq. divided, 163. apportioned by division of fee, 165, 171. lease contingently increases rent, 166. for taxes, gas, steam heat, 167. for water rent, 168. necessity of reversion in distrainer, 168, 179, 284. by ground landlord, 168, 172, 180. kind of term to which right is incident, 169. for dower, 169. .things subject to, 186, 209. grain in ground, 209. building, 210. fixtures, 210. the term itself, 210. landlord's goods, 210. exemption of, 210. waiver of, 212. by investment, 212. goods of subtenant, 186. who has paid rent, 188. though tenant's goods are sufficient, 189. goods both of tenant and subtenant, 189. goods of assignee of leasehold, 190. lessee after assignment of term, 191. any one on premises, 191. wife, daughter, mother, of tenant, 192. lent to tenant or wife. 193. piano, melodeon lent to tenant, 194. 192 INDEX. (References fire to pages), DISTRESS— ( continued ) . sewing machine, typewriter, soda water apparatus lent, 195. waiver of exemption of, 206. goods sold by tenant, but still on premises, 156, 195. to following tenant, 177, 190, 195. tenant's goods sold in execution, 196. stranger's goods, unless removed, 196. effect of preventing removal, 197. tenant indemnifies stranger for goods distrained, 198. boarders' goods exempt, 199. goods consigned to tenant for sale or commission, 200. goods stored with tenant as warehouseman^ 202. cattle agisted, exempt, 204. goods bailed for manufacture or repair, 204. exemption of strangers' goods must be asserted in replevin, 204. goods of public corporation exempt, 206. goods in legal custody exempt, 206. committee of lunatic, right to distrain suspended, 207. levy in execution suspends right to distrain, 207. sheriff's sale of tenant's goods, suspends distress, 208. appointment of receiver of tenant's property, 208. locality of goods distrainable, only on premises, 158, 216. contractual right beyond premises, 154, 218, 220, 221. fraudulent and clandestine removal^ 217. rent must be in arrear, 218. what is fraudulent or clandestine removal, 218. distress must be made in 30 days after removal, 220. removal of goods, effect on right of distress, 156, 157. after distress. 196. contractual right to distrain beyond premises, 221. what kind of lessor has right of, 170. by transferee of reversion, 171, 181. by assignee of rent, 171. by lessor's assignee of the lease, 172. by lessee's assignee of term, 173, 370. by sublessor, 173, 180, 392. for how much rent, 173. when rent issues from personalty and realty, 174. for rent due by assignee of term, 175. statute of limitations as affecting right of, 173, 176. effect of end of term on right of, 176. lessor a life tenant, and has died, 180. must be made for all rent then due, 181. ■when repetition allowable, 181. obstacles to, death of tenant, 176, 178. effect of abandonment, 182. other remedies for rent, 183. judgment for rent, 183. INDKX. 793 (References are to pages). DISTRESS— (continued) . novation, 184. payment by check, draft, etc., note, 184. exercise of power to forfeit lease, 184. tender of rent, 184. effect of, on other remedies for rent, 184. right to forfeit term, 185. defalcation, against rent, prior to, 258. DISTRESS— PROCEDURE, breaking outer door, 224. on Sunday, 225. when demand of rent must precede, 226. who may make, 226. the bailiff, 226. how appointed, 227. by whom appointed, 227. landlord's warrant, 245, 248. seizure of goods necessary, 228. inventory of goods, 229, 234. notice of distress to tenant, '?30. form of, 230. mistake in, 231. mode of service of, 231. impounding the goods, 232. discharge of distress by payment of rent, 233. appraisement of goods, 234. time of making, 234. effect of premature, 235. effect of delayed, 236. the appraisers, 236. appraisers' inventory, 237. waived expressly, 237. waived by bringing replevin, 238. purpose of, 238. sale of goods distrained, 239. duty to sell, 240. advertisement of sale, 240. necessity of, 241. length of notice, 241. waiver of, 241. postponement of, 242. preventing sale by payment, 243. officer who conducts, 244. mode of making, 245. distribution of proceeds of, 245. irregularity in making distress, 255. goods not subject to distress, 257. 794 INDEX. Uieferences are to papea), DISTRESS— PROCEDURE— ( continued) . replevin by tenant, 261, 205. stranger, 205. when stranger can resort to trespass, 205. excessive distress distinguished from distress for too much rent, 249, 251. on stranger's goods, 198. liability for distraining for too much rent, 250. trespass the remedy, 2o0. when replevin improper, 251. no rent due, trespass on act of 1772, 253. at common law, 254. injunction against unlawful distress, 206. landlords, remedy against officer who makes distress, 266. rescous of distrained goods, 246 et seq. when no rent is due, 255. DOWER. distress for, 169, 187. DURESS. in making lease, parol evidence to show, 45. EASEMENT. vendee of, not a lessee, 22. premises leased subject to, 39. EJECTMENT. with proceeding for mesne profits, 126. by lessor, effect on lease, 330. by lessee, to obtain possession of premises, 340, 738. lessor compels lessee to resort to, 340. by stranger, not breach of covenant for quiet enjoyment, 355. eviction by means of, 356. by assignee of term against lessee, 385. to enforce forfeiture of lease, 412. to recover possession at end of term, 544. after abandonment of lease, 738. by mining lessee, to obtain possession of surface, 688. by licensor against licensee, 728. EMBLEMENTS. kind of lease, 507, 515 et seq. sheriff's sale of reversion, 517. lease terminable by act of lessee, 517. in what species of crops, 518. manure not, 518. INDEX. 795 (Befercnces are to pages). EMINENT DOMAIN. eviction by exercise of, 349. effect of compensation, 351. effect as to sub-tenant, 396. EMPLOYEE. as distinguislied from cropper and tenant, 13. EQUITY. bill to compel lessor to deliver possession, 340. to apply for transfer of liquor license, 340. See Injunction. ESTOPPEL. against denying agent's authority to make lease, 30. enforcing forfeiture against assignee of term, 407. denying a renewal lease, 472. claiming way-going crop, 512. claiming crop in ground, 519. ESTOPPEL AGAINST DENYING LANDLORD'S TITLE. in suit for rent, 142, 640, 642, 701, 754. in proceedings to recover possession, 641. kind of lease, whence it springs, 643. existence of lease may be denied, 643, 645, duration of estoppel, 647. eviction under superior title, 647. declaration of tenant denying lessor's title, 659. to what estoppel applies, 648. does not apply, 654. when misrepresentation or fraud induces lease, 649. violence compels lease, 650. effect of fraud on the commonwealth, 650. lessee already owner when he accepts lease, 650, 651. who may avail himself of estoppel, 653. tenant may show transfer of lessor's title, 655. extinction of lessor's interest, 656. showing loss of agency, 658. denies that claimant is lessor's transferee, 659. who are subject to, 660, 661. when successor to tenant not, 662. when there is no estoppel, 663. when tenant vacates and reserves possession, 664. ESTREPEMENT. by lessor, damages recoverable by lessee, 340, 346. by stranger, effect on duty to pay rent, 354. to prevent removal of manure, 506. to prevent waste, 688. 790 INDEX. (Eeference8 are to pat/es), EVICTION. what is. 333. by making repairs, 334, 363. by other acts, 336, 337. by preventing subtenant from taking possession, 337. distinction between trespass and eviction, 338, 346. interrupting possession by estrepement, 340, 346. defect of heating apparatus, 340. refusal to give full possession, 344. partial eviction, 343. by other than lessor, 340. by grantee of part of reversion, 347. by sheriff's vendee of reversion, 349. under eminent domain, 349 et seq. effect of compensation, 351. by public authority, 352. by stranger without right, 354. under paramount title, 356. by ejectment, 356. effect of, on duty to pay rent, 80, 341. after termination of eviction, 343. on surety's liability, 63. royalties in mining leases, 700, 704, 711, 764. rent in advance, 277. when tenant has taken the risk of title, 358, 359. result of lessee's breach of .covenants, 357. surety's breach of duty, 358. effect of, on landlord's preference over execution, 277. actions for disturbing possession, 359. damages from total eviction, 360. by stranger, 361. exemplary damages for^ 362. functions of jury, 363. EVIDENCE. parol, to modify written lease, see Pabol Evidence. of custom and habit, 49. of value of premises, as bearing on length of term, 50. EXCEPTION. distinguished from reservation, 721. EXCESSIVE DISTRESS. what is, 249. distinguished from distress for too much rent, 249, 251. on strangers' goods, action for, 198. EXECUTION. suspending right to distrain, 207. INDEX. 797 (References are to pages). EXECUTION SALE. see Landlord's Pbefeeence. EXEMPTION. from execution for rent, 137. waiver of, 138. from distress, 199, 210, 393. joint property of joint lessees, 211. waiver of, 212, 284. tenant's methods for securing, 214, 262. remedies for denial of, 214. landlord's preference as to goods exempt, 283. when sublessee has no right to exemption, 393. EXPERTS. testimony of, in construction of lease, 733. F. FEE. transfer of, during term, 523. right of transferee of, to rent, 524. FENCES. lessor's covenant to supply material to repair, 85, 98. FIRE. effect of, on right and duties of lessor and lessee, 77. duty of paying future rent, 77. Insurance; duty to pay future rent, 77. when tenant must pay insurance money to landlord, 78. when the thing demised is an upper story, 78. duty to pay rent conditioned on nondestruction of fire, 79. possession taken by lessor to rebuild, 80. between the making of lease and commencement of term, 80. ■ lessee's duty to deliver in good condition; notwithstanding, 95. FIXTURES. when subject to distress, 210. proceeds of, execution sale, 282. right to remove, 485. annexation not decisive, 486. intention decisive, 486. evidence of intention, 487. other criteria than intention, 488. what are, is question of law and fact, 489. usage as determining what are, 490. whether a tramroad is, 490. contractual modification of tenant's right to, 490, 714. 798 INDEX. (References ere to pages). FIXTURES— ( continued ) . to become conditionally the landlord's, 491. contract provides for valuation, 492, 716. agreements subsequent to lease, regulating right to, 493. instances of removable, 494. kind of premises on which removable fixtures may be, 495, sublessee's right to remove, 496. sale of fixtures to lessee, when lease is made, 496. removal of, during term, 496. levy on, in execution or distress for rent, 496. when they must be removed by tenant, 497, 715, 716. when lessor is life tenant and dies, right to remove, 498. when lease ends at no ccitain time, 499. when lease is forfeited, 499. in mining leases, 714. in oil and gas leases, 766. removal of, prevented by injunction, 489, 494, 502. trespass against landlord for taking, 493, 501. assumpsit on landlord's agreement to account for ii.'vtvires, 501. set-off of value of, in replevin, 501. ejectment by tenant for fixtures, 501. remedies of lessor, as respects fixtures, 502. estrepement, 502. injunction, 502. action on covenant to leave fixtures, 502 FODDER. upon premises at commencement of term, 510. tenant's covenants respecting, 520. FOREIGN ATTACHMENT. damages for landlord's negligence not subject of, S3. FORFEITURE OF TERM. effect of, on surety's liability for rent, 60 right to distrain, 184. on right to distrain for overdue rent, 184. after part of rent has been secured by distress, 185. right to insist on when lost, 403, 711. waiver of right, 403, 762. modes of enforcing, 410, 713. re-entry, 410, 711. how made, 410. when unnecessary, 411, 712. demand for rent on premises, 410. enforced by ejectment. 412. on warrant of attorney, 417. does not involve loss of title to personalty on premises, 431. INDEX. 79& (Ifefercnccs are to popes), FORFEITURE OF TER1[— (continued) . effect of, on right to remove fixtures, 499. by act of April .3, 1S30. for nonpayment of rent, 432. of mining- lease, burden on lessor to prove, 711. time of. 711. makes later lease valid, 724. of oil lease for not drilling suflifient number of wells, 745. attitude of equity towards, 757. only lessor can take advantage of it, 757, 758. notwithstanding assignment of lease, 757, 702. effect of, on duty to pay future rent, 762. to pay rent already due, 763. FORMER RECOVERY. defense to action for rent, 145. FRAUD. on lessor, by misreading lease, 46. in not carrying out lessor's oral promise, 46. on surety, in inducing him to become such, 64. in insertion of a stipulation; parol evidence to show, 79. to induce acceptance of lease; estoppel of tenant, 649. upon lessor or lessee; effect on lease, 677, 720. FRAUDS, STATUTE OF. applied to leases. 2.'). 31, 317. applicable to sublease, 31. applicable to contracts to make leases, 32. lease converlixl to tcTiancy from year to year, 34, 302, 303. signature of lessee unnecessary, 26. 32. ■when lease is made by an agent, 28. necrssity of signature of lessor, 32. exception from operation of statute, 33. effect of, on oral lease .'-M. on covenants in oral lease, 34. on liability of surety, 59. suretyship, 54. assumpsit for use and occupation, 124. rent mentioned in lease. 124. oral surrender of term, 315. oral notice of tenant's intention to renew term, 465. liability of lessor for damages, 675. contract to drill oil well may be parol, 720. FRAUDULENT REMOVAL OF GOODS, right to distrain. 217. what is, 219. effect on landlord's preference, 2S0. 800 INDEX. (Referert^ies are to poyes). FURNACE. lease of, includes right to take limestone, 41. FURNISHED HOUSE, lease of, 43. G. GAS. nature of, 724. leases, 718. see Oil and Gas Leases. GAS BILL. distress for, as part of rent, 167. when preferred, on death of tenant, 297. GAS METERS. tenant not obliged to tolerate, 39. GRADING. lessee's duty to pay assessments for, 108. GRANT, BARGAIN AND SELL. significance of, as indicating sale of minerals, 882. GRATE IN PAVEMENT. duty of lessee to repair, 93. GROUND RENT. distress for, 168. by assignee of, for rent, 172. no landlord's preference for, 286. GUARANTOR. difference between surety and, 53, 57. GUARDIAN. lease by, made valid by estoppel, 30. by ratification, 670. as lessor, may distrain, 171. landlord's preference, execution sale, 284. oil lease by, 718. H. HABIT. of lessor, proof of, 49. HABITABLENESS OF HOUSE, implied covenant as to, 68. INDEX. 801 {References are to payea). HAY. lessee's covenant as to consuming, 103. removing, 520. on premises at commencement of term, 519. HEATING APPARATUS. defect in, not an eviction, 340. HOLDING OVER, what is, -183. by occupancy of an assignee or subtenant, 484. distress for rent during, 162. responsibility of lessee, 475. recognition of tenant by landlord, 479. tenant may be treated as trespasser, 480, makes a new contract, 482. ILLEGALITY. of object of lease, 147. IMPOINDING GOODS, in distress, 232. IMPROVEMENTS. taking oral lease out of statute of frauds, 33. made by lessor, damages for, 7, 34. made by lessee, landlord's duty to purcliase, 81, f)5, lessee's covenant to make, necessary, 99. distinction between repairs and, 98. lessee's covenant to leave, 99. upon mining leaseholds, 714. INJUNCTION. against removal of machinery by tenant. 96, 100, 102. fixtures, 489, 494, 500. locking of door of stairway, used by several tenants, 104. maintaining show cases on pavement, 105. maintaining signs, 106. spreading dust through parts of building leased to other ten- ants, 106. by orphans' court, against distress of goods of deceased t>nant, 179. against distress of property of public corporation, 206. sale and removal of goods, prior to rent becoming due, 218. distress on goods, 266. enforcement of forfeiture of term, 355, 408, 412, 414, 415, 714. assigning term, 372. using premises in forbidden mode, 372. LAN. & 'Ten. 51. 803 INDEX. (.References are to pages). INJUNCTION— ( continued ) . proceeding under act December 14, 1863, 582, 605. boring for minerals, 675, 690. removing surface support, 693. mining on land adjoining leased premises, 694. taking oil from land reserved, 725. interfering with leasee in oil and gas lease, 734. INSANITY. of lessor, 45. INSOLVENCY. of tenant transmission of right to sue for excessive distress, 252. of second assignee, first assignee of lease nevertheless released, 381. INSURANCE. when payable to lessee, 9. effect of landlord's receiving, on rent, 77. landlord refuses to permit rebuilding; effect on rent, 78. when tenant must pay to landlord, 78. effect of lessee's receiving, 100. INTEREST. on rent due, when payable. 111. death of tenant; preference, 297. on damages for lemoval of surface support, 693. on royalties in coal lease, 707. INTERPLEADER, SHERI EPS. effect of, on distress, 207. J. JUDGMENT. on warrant of attorney for rent, 420, 425. for possession, 417, 425. opening and striking off, 425. causes for opening, 425. causes for striking off, 427. lien of, on oil and gas leaseholds, 727. leaseholds, 11. JLFJIORS. proceedings under act March 21, 1772, 548. by whom selected, 549, 550. a second jury, 551. JURY. determine whether a lease exists, 23. tliere has been an eviction, 363. questions for, construction of oil and gas leases, 730. INDEX. 803 (References are to pages). JUSTICE OF PEACE. jurisdiction in cases of rent, 138. in actions for royalties, 709. in trespass for distress when no rent is due, 253. defalcation of, against rent prior to distress, 258. to wliom complaint is mado, act March 21, 1772, 544. proceedings under act April 3, 1830, 432. March 25, 1825, 629. December 14, 1863, 581. K. KEY. reception by landlord, significance of, 318 et seq. LABOR CLAIMS. preferred in distress proceedings, 245. to landlord, in execution sales, 293. subrogation of, to landlord's lien, 700. lien of, on oil and gas leaseholds, 727. LANDLORD'S PREFERENCE IN EXECUTIONS, the statutory provision, 269. apportionment of rent to levy, 269. payable in advance, 270, 272. rent payable contingently in advance, 273. all rent made payable by the sale, 158. no rent accruing after levy, 271. when there are successive executions, 271. vrhen taxes, water rent, etc., are part of rent, 274. form of the preferred rent, 275. amount of rent preferred, 275, 700. what is not rent, 699. rent already paid, 275. what is payment, 275. distress made, followed by replevin, 276. defalcations from rent, 276. stranger's goods need not be distrained, 277. release of tenant from rent, 277. eviction of tenant, 277. effect of surrender of lease, 277. rent of what year, 278. locality of goods when levied on, 279. unlawful detention of goods on premises till levy, 280. remoyal of goods after levy, 280. goods attached while on premises, and subsequently removed, 281. goods liable to distress at time of levy, 281. 804 INDEX. (Beferenoea are 1o pages). LANDLORD'S PKEFER.KNOE IN EXECUTIONS— (continued), death of tenant before \evy, 179, 281. execution sale of partner's interest in joint property, 282. execution sale of removable fixtures, 282. leasehold, 282. goods levied on, not property of tenant, 282. landlord's own goods, 283. goods exempt from execution sale, 283. effect of loss of landlord's reversion, 284. effect of ending of term before execution, 285. sublessor's right to preference, 173, 288. demise must be for life, or year, or otherwise, 286. ground-rent landlord not entitled, 286. lease may be oral or written, 286. lessor in mining leases entitled, 687, 699. right to compensation for use and occupation does not entitle, 287. cropper not a tenant, 287. assignor of term not entitled, 287. levy between making lease and beginning of term, 288. alienee of reversion entitled, 288. part of reversion, 289. when sheriff's vendee of reversion disaffirms lease, 528. notice of claim to sheriff or constable, 289. to whom given, 290. when it must be given, 290. staying the writ of execution, 291. proving landlord's claim in bankruptcy proceedings, 292. claims of laborers, 293, 700. effect of bankruptcy proceedings, 293. costs of execution, 294. liability of sheriff or constable to landlord, 294. not a prior lien which causes sale to divest mortgage, 700. forfeited by act of landlord, 206, 276. effect of waiver of exemption as to the execution, 213. goods liberated from distress by replevin, 265. LARCENY. depriving sheriff of access to distrained goods, 248. LEASE. agreement to, 1, 674. coupled with contract to convey, 8. distinguished from a conveyance, 9, 10. from contract to sell, 22. from bailment of sawmill, 21. words used in instrument not decisive of character, 10. the word itself not necessary, 18. distinguished from licenbc, 15, 2U, 675, 684. INDEX. 805 (Referencis are to pages). LEASE— ( continued ) . phrases sufficient to make, 18, 19, 675. Iciuds of compensation stipulated for, 18. distinguished from mortgage, 21. agreements which are not, 22. existence of, determined by jury, 23. construction of, 24, 677, 849. subjects of, 37. of oil and gas land, 718. of coal and other minerals, 673. acceptance by lessee necessary, 140. corporation, 146. of roof and \yall, 20, 354. of sawmill, 21. spoliation of, effect on duty to pay rent, 160. commencement of term, 457. ending of term, 458 et seq. lost, proceeding under act February 28, 1865, 637. execution of, when writing unnecessary, 25, 675. when must be written, 25. when conditional, 26. when lessor's signature is necessary, 26. proof of execution, 137. praying oyer of, 137. execution by agent of lessee, 27. of lessor, 27, 2S, 676. annulment of, 42. modification of, 42, 677. later oral modifications of, 51. LESSEES. more than one, 17, 728. presumed equality of interest of two or more, 17. release by one of several, of covenant for quiet enjoyment, 17. who are not, 22. right of, to costs of improvements, 81, 86. to reimbursement for laying pavement, 90. of different parts of same building, 104. right to staircase, 104. right to pavement, 105. negligence of one affecting others, 105. landlord's preference, on death of, 296. liability of, to indemnify stranger for goods taken in distress, 198. remedy to recover possession, 340. covenants as to premises, 93. covenant to make repairs, 93, 98. when lessee is co-owner with lessor, 94. to restore building to former state, 96. 806 INDEX. (References are to pages), LESSEES— (continued) . as to fences, 98. to leave improvements, 99. to construct building, 100, 101. to change building, 100. when performance is made illegal, 101. to cultivate farm in workmanlike manner, 102. concerning consuming hay, corn, etc., on premises, 103. LESSORS. who may be, 16, 170. a cotenant may be, 17, 170. two or more cotenants may be, 29. two or more as partners may be, 29. authority of one partner to make lease for all, 30. infants, liability of lessee for rent, 31. married women, 31, 59. covenants of, 66 et seq. see Covenants of Lessor. not liable for negligence of fellow tenants, 90. preference of, when tenant dies, 296. in executions, 268 et seq. see Landlobd's Preference. duty, to give possession to tenant, 4. to make repairs, 66, 71, 73, 74, 88. to make improvements, 66. to improve neighborhood, 71. to furnish steam to lessee, 81. to cleanse cesspool, 88. to remove dangerous walls, 89. with respect to sidewalks, 666. with respect to areaways, 667. with respect to cesspool, 668. with respect to privy walls, 670. when premises are in good condition at making of lease, 669. when landlord becomes such during running of term, 669. with respect to strength of building, 671. with respect to condition of doorsteps, 672. with respect to disrepair of building, 672. LET. word consistent with conveyance of a fee, 10. LICENSE. distinguished from lease, 15, 20, 675, 684. equivalent to lease, 18, 675. becomes irrevocable how, 675, 685, 728. what is, 684, 728. IJMDJiX. g07 (Iicferences are 1o pages), LICENSE— ( continued ) . terminated by assignment, 728. made irrevocable by expenditure, 728. LICENSE TO SELL LIQUOR. condition of continuance of lessee's liability, 146. bill to compel lessor to apply for transfer of, 340. procuring it a condition subsequent, 401. LIEN. of judgment upon leasehold, 11, 727. LIFE TENANT. distress by, as lessor, 180. right to royalties of coal lease, 708. right to make oil and gas leases, 725. entitled to interest on royalties of oil leases, 752. LIGHT. implied covenant against interference with, 72. LIMESTONE. right to take under lease of furnace, 41. LIMITATION OF ACTIONS, for rent, 139. inapplicable to sealed leases, 130, 483. applicable to distress, 173, 176. applicable to holdover period, tliough lease under seal, 483. for removal of surface support, when statute begins to run, 693. LOST LEASE. proceeding to obtain discovery of time of term's ending, 037. proof of contents, 734. LUNACY OF LESSEE. appointment of committee suspends right to distrain, 207.. M. MANDAMUS. to compel landlord to allow exemptions from distress, 214. MANURE. belonging to landlord or tenant, 503. land let for agricultural purposes, 503. right to, as afl'ected by kind of term, 504. source and place of, 504. landlord's remedies with respect to, 506. tenant's removal of, as waste, 506. 808 , INDEX. (References arc to paijea), IM ANIIRE— ( continued ) . trespass in estrepement, 506. violation of lessee's covenant, respecting hay, fodder, otc, 521. MARRIED WOMEN. lessee, liability of surety of, 59. separate acknowledgment of lease by, 59, 719. husband occupies her land; duty to pay rent, 129. distress of goods of, for husband's rent, 192. wife of tenant, may remove goods and avoid distress, ]9(j. effect of nonjoinder of, in lease, 719. liability of husband to, for royalties belonging to her as lessor, but received by him, 752. MECHANICS' LIEN. when lease contains contract to convey, 9. when tenant may put one on the fee, 22. leaseholds in mines subject to, 686. on oil and gas leaseholds, 727. MELODEON. lent to tenant, exempt from distress, 194. MERGER. of agreement to lease in lease afterwards made, 6. of term in reversion, 328. when it will not occur, 329. MESNE PROFITS. when there is no contract for rent, 126. tenant's liability for, effect on rent, 355. MINE. what is, 673. MINERAL. what the term embraces, 673. MINER'S WEIGHT. meaning of phrase, 698. MINING LEASES. option to lease, 674. bond to bore coal treated as penalty, 697. contract to lease, liability for not accepting lease, 674. offer of lense in a reasonable time, 674. liability of lessor for not making lease, G75. certainty as to commencement and end of term, 078. lease of one mineral, excludes other, 077. INDEX. 80& (References are to pa-ges)^ MINIXO LEASES— { continued ) . assignee of, bound by lessee's covenants, 679. to mine minimum amount, 680. to pay minimum royalty, 704. when sales of part of land, 680. when license, 684. when creates incorporeal hereditament. 684. '■grant, bargain, and sell," indicative of sale, 682. privilege to mine all the ore for a price, paid, indicative of sale, r,S2. right to remove all the coal, a sale, 683. the interest of the lessee, 680. a chattel real, 686. subject to mechanics' lien law, 686. landlord has special remedy to obtain possepsion, 687. lessee's implied right to work open mines, 687. right to open new mines, 687. right to make necessary openings, 687. right to allow opening to subjacent mine for ventilation, 687. waste, prohibited by estrepement, 688. right of lessor to mine, 688. lessee's o^s'nership of several minerals, 688. legal character of culm, 688. lessee's right to occupy surface for mining operations, 689. covenant regulating manner of removing coal, 689. easement for coal breaker and dirt room, 689. use of way to adjacent tract, 6S9. right to subterranean passages, 690. lessor of coal reserves oil and gas; right to drill through coal, 690. lessor's right of access to strata below leased coal, 690. exhaustion of leased minerals, effect on lessee's right to the space, 690. lessor's right to the refuse of coal, or zinc and iron ore, 090. surface .support, lessee's duty not to destroy, 691. release of, 692. parol release of surface support, 692. release by executors, with limited powers, 693. remedy for failure to furnish, 693. preventive remedy, 693. leasee's duty respecting owners of adjacent land, 693, 694. liability to treble damages for taking minerals from others land, 694. lessee's duty to mine, 696. manner of working mine, 697. substituting electricity for compressed air, 697. covenants, dependent or independent, 69.5. to work mine with reasonable diligence, 696. not enforceable in eijuity. 690. royalties, determined by terms of lease, 698. per busliel of coal; wlip.t coal? 698. meaning of term "miners' wpight," 698. 810 INDEX. {References are to pages). MINING LEASES— (continued) . meaning of "ton," 698. proportioned to selling price, 698. meaning of screened coal, 698. on coal lease, coal measured by bushel, 699. varying according to sizes of coal, 699. none for coal taken from lessor's land beyond the bounds of the lease, 699. none, on coal used in the mining operations, 699. landlord's preference as to, 699. eviction suspends, 700, 704, 711. minimum royalty, 701. when only conditionally payable, 705. mining in one year, more than, 706. damages for failure to mine minimum, 701. cessation of operations no excuse, 702. unprofitableness of operations no excuse, 702. poorness of quality of ore no excuse, 702. nonexistence of ore as an excuse, 703, 704. no defense that coal in place is more valuable than if it had been mined, 704. defenses against action for, 704, 706. eviction a defense, 704, 711. eviction from one of several tracts, 704. release from liability for, 705. accounts rendered by lessee, 706. conclusiveness of acceptance of payment, 700. payment of royalty in excess of what is due, 707. payment of royalty to wrong person, 707. interest on royalty, 707. to whom royalty is payable, 707, 708. contract a sale; royalty payable to whom, 708. right of life-devisee to royalties, 708. royalties payable to trustee; his commission on them, 709. action to recover royalties, 709. where brought, 709. jurisdiction of justice of peace, 709. forfeiture of mining lease, 711. time of, 711. for not properly working mine, 712. notice of, 713. effect on royalty subsequently accruing, 713. mode of enforcing, ejectment, 713. mode of enforcing, equity, 714. improvements and fixtures, 714. when removable by contract, 714. when removable without contract, 715. setting;- ofi' value of, against rent, 716. INDEX. 811 (References are to pages), MINING LEASES— (continued). setting off vahie of, against mesne profits, 717. sale of proceeds applied to rent, 717. eviction, damages recoverable for, 700. abandon of lease, right reserved therein, 703, 705, 710. MINORITY OF LESSOR, defense to rent, 31. MISTAKE. parol evidence to show, 44, 45, 47, 48. in description of premises, action for rent, 147. setting aside of lease, on account of, 677. as to existence of coal or ore, effect on lease, 677. MONTH TO MONTH, tenancy from, 307. created by holding over, 476. MORTGAGE. distinguished from lease, 21. by lessee, to secure performance of covenants, 95. of leasehold, 369, 727. of leasehold, a breach of condition against assignment, 373. N. NEGLIGENCE. of fellow tenant, lessor not liable, 90, 105. in use of water by tenant of upper story, 105. NOTICE. of existence of lease, by record, 35, 723. by lessee's possession, 35, 723. express, 723. of lessor's acceptance of surety's contract, 58. from surety to lessor to collect rent from lessee, 58. from surety that he will not continue liable, 58, 61, 62. to surety, of lessee's delinquency, 59. to secure exemption from distress of organ, piano, etc., 194, to tenant, that distress has been made, 230. form of, 230. of landlord's claim from proceeds of execution, 289. by sheriff's vendee of reversion to tenant to surrender possession, 527. to tenant to disclose time of ending of term, lease being lost, 638. of intention to forfeit lease, 713. of intention to abandon lease, 764. NOTICE TO QUIT. effect of, on future liability of surety, 60. 812 INDEX. (Referenoea are to pages). XOTICE TO QUIT— (continued). in tenancy at will, 299. in tenancy from year to year, 303. in tenancy from month to month, 307. in tenancy for years, 308, 309 et seq., 480. contractual necessity to give, 309, 310. contractual duty of tenant to give, 310. necessary in proceedings under act April 3, 1830, 436. when holdover tenant has paid rent, 479. when unnecessary, as precondition to lessor's ejectment, at end of term, 544. necessary in proceedings under act March 21, 1772, 560. waiver of notice, 562. when term is for definite time, 562. tenancy from year to year, 563. necessary in proceedings under act December 14, 1863, 587. notice precedes expiration of term, 588. NOTICE TO REVIEW TERM, of tenant's intention, 465. waiver of written notice, 465. of lessor's or lessee's intention to terminate term, 468, 473. withdiawal of notice, effect of, 475. NUISANCE. liability of landlord or tenant for, 668. 0. OIL AND GAS LEASES, nature of, 10, 718, 724. not embraced in reservation of "all minerals" in grant, 720. lease of oil and gas a sale, 718, 727, 752, 753. by guardian, 718. mode of execution, 718. efi'ect of nonexecution by wife, 719. proof of, 719. fraud on lessee, effect of, 720. fraud on lessor, effect of, 720. description of premises leased, 721. drilling and boring operations excluded, 721. options to demand, 722. conditioned on successful effort to discover oil in reasonable time, 722, 727, 729, 744, 755. terminability of lease, 729. "paying quantity" applied to oil, meaning of, 751. recording of, 723. possession under, as notice, 724. abandonment of, 723. INDEX. 813 {References are to pages), OIL AND GAS LEASES— (continued), nature of oil and gas, 724. life tenant as lessor, 725, 752. interest conveyed by, 725. lease for oil does not include gas, 725. lease for "volatile substances," inclusive of gas, 725. interest retained by lessor, 726. inference from vagrant character of oil, 726. are chattels real, 727. not subject to lien of judgment, 727. subject to mechanics' lien, 727. partition between owners of land, 728. license given to prospect and bore for oil, 723. to two or more lessees; tenants in common, not partners, 729. when lessee's right excludes lessor's right to take oil, 729. construction of, 730, 731. meaning of M'ords in, 731. lessor's privilege to take gas for special use, 732, 733. lost lease, proof of contents, 734. lessee's remedies for interference, 734. injunction, 734. action for damages, 735, 737. trespass for lessor's interference, 737. for negligence of lessor, injuries too remote, 737. ejectment, 738. lessor's remedies. injunction to restrain improper drilling, 735, 736. injunction when bill is an ejectment bill, 736. bill in equity to decree forfeiture, 736, 745. ejectment, 738. lessee's liability to third persons, 739. lessee's liability to account, 739. receiver of premises appointed, 740. covenants of lessee, 743. to explore for oil, 743. remedy thereon by suit, 744, 746. to put down necessary number of wells for oil, 744. bind assignee of lease, 745. damages for violation of, 746. to put down necessary number of wells for gas, 745. to put down casing, and test well for oil, when abandoned for gas, 753. to drill wells and furnish gas to lessor for domestic purposes, 754. abandonment by lessee, 755. by acceptance of a new lease, 756. by forfeiture, 757. by forfeiture for nonpayment of rent or royaUy, 759. when equity will relieve, 758. for not drilling well according to contract, 758, 7.=)!). 814 INDEX. (Referencen are to pages). OIL AND GAS LEASES— (continued) . for failure to produce oil or gas, 760. formal declaration of forfeiture, 761. who may make declaration, 761. waiver of forfeiture, 760, 762. termination by lessee, no covenant to explore, 763. when proper exploration shows no oil, 763. on eviction, 764. when lease gives right; notice to lessor, 764. by surrender, 764. by decree of court, 765. personal property after termination, 766. royalties and rental; reduction of, by agreement, 734, 750, 751. liability for determined by words of lease, 747. when they become payable, 748. payable in advance, 748. when conditioned on production of oil or gas in paying quanti- ties, 748. for what payable, 749. oil drawn from other than the premises leased, 749. assignee of lease liable for, 750. who maintains action for, 750. interference of third persons no defense, 751. nonjoinder of wife of lessor, 751. no defense that lessor might forfeit lease, 751. diligent exploration discovers no oil or gas in paying quanti- ties, 751. right of life tenant, lessor, to royalties, 752. liability of husband of lessor, for royalties paid to him, 752. denial of lessor's title inadmissible, 754. reimbursement of lessee for expenditures, 767. of trespasser, by defalcation from mesne profits, 767. assignee of, acquires no more than lessee's rights, 767. liability of, 768. for royalty becoming due while he owns lease, 769. for failure to duly prosecute work, 769. when his covenants do not run with lease, 770. lessee continues liable, despite assignment, 770. action for breach of covenant, against lessee or assignee, 771. liability of, to the les3ee, as assignor, 771. plugging wells, 771. OPTION. to accept a lease, 1. created by will, 20. of lessee to buy reversion, enforceable against lessor's grantee, 523. riuis with the lease, 67!K to take a lease for mining purposes, 674. IMDEX. 815 (References arc to pages), OPTION— ( continued ) . to buy the lease, given by the lessee, G79. to accept an oil lease, 722. ORGAN. lent to tenant, exemption of, from distress, 194. OYER. of lease, 137. P. PAROL EVIDENCE. to show lessor's misrepresentations, 42. mistake in framing lease, 44, 45, 79. to show omissions of parts of actual agreement, 44, 68, 75. omitted covenants must be declared on, 58. to show duress, 45. insanity, 45. of promise which induced acceptance of lease, 47, 48. to explain the terms, 51, 731. to show situation of parties, the state of the subject-matter, 733. of later modification of lease, 51, 734. of promise to make repairs, 75. of release of surface support to the lessee of coal, 692. to contradict lease as to amount of coal to be annually mined, 696. modifying written lease as respects coal, 705. of understanding of parties; not affecting assignee of lease, 733. degree of, necessary to modify a writing, 733. PARTITION. between tenants in common, how it affects lessee, 541, 728. PARTNER. as distinguished from tenant, 12, 17. lease by one of several, 29. authority of one, to make lease for all, 30. equity of, as respects leasehold, 3(i9. oil lease, asset of partnership, 727. PAVEMENT. duty of landlord to lay, 90. right of tenant of part of building, to use, 105. lessee's duty to paj- assessment for, 133. PAYlXr; QUANTITIES. meaning of, in oil and gas leases, 751. PAYJIENT. on account of rent by distress, 143, 145. appropriation of, to rent, 143. 818 INDEX. (References are to payes). PAYMENT— ( continued ) . piosumption of, 144. what is, 184, 275. of rent, by check, 408. conclusiveness of acceptance of, on account of royalties on coal lease, 706. of royalty to wrong person, 707. of royalty in excess of what is due, 707. PENALTY. for non-payment of rent, right to distrain for, 154, 167. PERSONALTY. rent for, in conjunction with land, 107, 174. a leasehold is, 11, 364, .365, 727. on leased premises, right to remove, 485. PHILADELPHIA. fraudulent removal of goods, effect on right to distrain, 156. 220. proceedings when lease is lost, 637. PIANO. lent to tenant, exemption from distress, 194. PITTSBURG. fraudulent removal of goods, effect on right to distrain, 156, 220. PLUGGING. abandoned oil wells, 771. PLUMBING. misrepresentation as to condition of, 42. PORCH. lessor's promise to repair, 86. POSSESSION. liability of lessor for nondelivery of, 4, 48. remedy of lessee for nondelivery of, 340, 345, 346. effect of nondelivery of, on duty to pay rent, 344. effect of not taking, on duty to pay rent, 142. loss of, by eviction, see Eviction. recovery of, at end of term, act March 21, 1772, 542. without legal process, r)43. by ejectment, 544. act December 14, 1863, 5S1. before expiration of term, act Mnrch 25, 1S2."). i 29. as notice of lease to subsequent purcliaser or lessee, 35, 676, 723. &S. taking oral lease out of statute of frauds, 33. INDEX. 817 (References are to payes), POUND BREACH, what is, 196, 247. remedy for, 246. PEESI'JIPTION. of payment of rent, 144. PRIVY. duty of landlord to cleanse, 88. duty of tenant to cleanse, 94. nuisance to neighbors, when tenant liable, 668, 670. PUBLIC ENEMY. tenant not liable for waste by, 95. Q. QUARTER TO QUARTER, tenancy from, 306. notice by tenant of intention to quit, 305. QUIA EMPTORES TEEEARUM. statute of, 169. QUIET ENJOYMENT. release of coA-enant for, by one co-lessee, 17. covenant for, 332. implied, 333. acts on adjacent property not a breach, 353. acts of stranger without right, 354. pendency of ejectment by stranger, 355. forfeiture, defense to action for breach of, 391. damages for breach of, 700. R. RAILROAD. siding, inclusion of, in lease, 43. cutting for, by tenant's permission, waste, 102. RATIFICATION. by lessor, under statute of frauds, 32. RECEIVER. no landlord's preference as to proceeds of sale by, 286. of oil leases, 740. RECOGNIZANCE. for appeal, in proceedings under act of April 3, 1830, 443, 449. unnecessary for certiorari, under act of April 3, 1830, 445. LAN. & Ten. 52. 818 INDEX. {References are to payee), KECOGNIZANCE— ( continued ) . who enter into, 449. set-off by surety, against, 83, 450. to arrest proceedings under act March 21, 1772, 574, 579. for certiorari, under act December 14, 1863, 607. for appeal, under act December 14, 1863, 617. RECORDING. of lease, 35, 386, 676. RE-ENTRY. to enforce forfeiture of lease, 410. how made, 410. when unnecessary, 411. after close of term, 480. REFUSE. lessee's right to, under mining leases, 690. RELEASE. of rent, defense to suit, 152. of tenant's goods distrained, effect on right to distrain subtenant's goods, 189. of rent, effect on landlord's preference in execution, 277. from minimum royalty in mining lease, 705. by lessor to lessee, of the reversion; merger, 329. REMOVAL. of tenant; effect on right to distrain, 158. remedy of act March 25, 1825, 629. of building, stipulation for, 478. RENEWAL OP TERM. provision in lease for, 460. phraseology, expressing the right, 461, 462. length of new term, 462. frequency of, 464. conditioned on tenant's giving notice, 465, 46G. validity of oral notice, 465. on fixing rent for new term, 466. on prepaying rent, 467. by simply holding over, 468, 472. conditioned on non-notification by landlord, 468. distinguished from accepting new leases, 469, 470. by independent agreement pending the first term, 471. conditioned on lessor's consent to continuance in possession of tenant, 473. holding over after a definite term, 475. repetition of same terms and conditions, 476. landlord must recognize the liolding-over tenant, 479. INDEX. 819 (Befercnces are to pages), RENT. none named, in lease, 125. agreement for "fair rent," 3. "reasonable rent," 125. forms of, 18, 19. under oral lease, statute frauds, 34. conditioned on nonliappening of fire, 79. conditioned on performance of lessor's covenants, 71, 87, 88. condition waived by continuing in possession, 91. definition of, 107. for both land and personalty, 107, 174. distinguished from repayment of loan in instalments, 108. assessments, 108. taxes, 109, 167. for gas, steam heat, etc., 167. when interest upon, is payable. 111. when it falls due, 112, 535. when rent payable in money becomes due, 535. in kind becomes due, 535, 538. payable in advance, when it falls due, 112, 157. made payable earlier, on contingency, 113, 157, 158. contingently payable, 113. claimed out of assigned estate, 113. payable otherwise than in money, 115, 162. when share of crop becomes landlord's, 116. to be determined by arbiters, action for, 123. occupancy of premises imposes no liability for rent, 124. when lease negatives duty to pay, 128, 129. apportionment, when dae to life-tenant, 180. payable to transferee of reversion, 524. assignment of, as against sheriff's vendee of reversion, 530. provision in lease for reduction of, 149, 163. subsequent agi-eement to reduce, 150, 750, 751. effect of, on surety's liability, 58. right to reduction of, without agreement, 151. provision for contingent increase of, 166. excuses for not paying rent: easements on premises, 39. destruction of building by fire, 77. receipt of insurance money by landlord, 78. possession taken, after fire, for purpose of rebuilding, 80, 81. lessor's breach of covenant, 71, 86, 87, 88. lessor's set-off of damages, 82. set-off of, cost of, repairs, 94. tenant has not taken possession, 142. tenant has abandoned possession, 142. want of title in lessor, 142. inability to use premises in expected mode, 146, 830 INDEX. (References are to panes), EENT— (continued). illegality of object of lease, 147. that the lease has been assigned, 148. lessee is only nominally such, 149. that rent has been released, 152. that rent has been assigned, 152. denial of lease sued on, 146. mistakes in description of premises, 147. surrender of term, 147. bankruptcy, 152. former recovery by tenant in replevin, 145. former recovery for an instalment of rent, 145. payment, 145. by distress, 143. spoliation of lease, 160. eviction, 334 et seq., 341. after its termination, 343. tenant conclusively liable for mesne profits, 355. by tenant under paramount title, 356. landlord's remedies for: crop payable in kind; distress, 116, 117, 118, 153 et seq. see Distress. action on contract, 116 et seq. generally : account render, 121. assumpsit, 121. claim in orphans' court, 121, 132. assumpsit for use and occupation, 122. ejectment and mesne profits, 126. trespass for mesne profits, 126. set off of rent, by landlord, 132. warrant of attorney, judgment for rent, 132. joint action by all co-owners necessary, 134. proceedings for rent before justice, 138. landlord's preference when tenant dies, 298. continuance of rent after tenant's death. 328. payment of rent a condition subsequent, 402. pajTnent otherwise than in money, 408. action of transferee of reversion, 524. KENT CHARGE, 154. EENT SERVICE. ground rent is, 169, 172. REPAIRS. landlord's covenant to make to make, 66, 67, 74. made after the lease, 73 el seq. what not breach of, 82. INDEX. 821 (Refereticcs are to pages). REPAIRS— ( continued ) . landlord's duty as trustee, 88. right to make, 81. when barn destroyed by fire, 99. when making is an eviction, 334, 363. dutj' of lessee to make, 93. made necessary by non-negligent accident, 94. mortgage to secure performance of, 95. to repair fences, 98. interpretation of covenant to make, 98. REPLEVIN, by tenant: set-off in, of improvements taken by landlord, 86. breach of lessor's covenant, may be shown, 87, 264. of way-going crop, 514. distress, for too much rent, 251. excessive distress, 252. when goods distrained not subject to distress, 257. defalcation against rent by justice, 259, 261. defalcation not allowed by justice, 261. allowed by act March 21, 1772, 261, 263. of goods levied on in execution, 261. waiver of right to, 261. time for beginning, 262. giving claim to exemption, 262. exemption of stranger's goods from distress, 204. against landlord or bailiff or both, 262. avowry in, 262. cognizance in, 262. plea to avowry, 263. plea i-eins in arrere, 263. plea non-tenant, 263. payment of rent may be shown, 263. setting off of taxes, 264. damages recovered in, by tenant, 264. damages recovered by landlord, 265. goods not delivered to landlord on de retorno haiendo, 265. discharge of goods from lien of distress, by sheriff's delivery to the tenant, 265. by lessor, for hay and fodder taken by tenant in violation of covenant, 52L KE-RESTITUTION. writ of, act March 21, 1772, 572. RESCOUS. what is, 196, 246, 247. remedy for, 246, 255. «22 INDEX. (References are to panes), RESERVATION. distinguished from exception, 721. with respect to right to drill for oil, 725, 726. of "all minerals," not inclusive of oil, 726. RESTITUTION, WRIT OF. under act March 21, 1772, 571. under act April 3, 1830, 443. under act December 14, 1863, 602. RESTRICTION. on tenant's use of premises, 40. REVERSION. change of ownership of, effect on surety's liability, 64. . in distrainor necessary, 168, 179. transferee of, may distrain, 171. necessity of, to support landlord's preference as to executions, 284. transfer of, during term, 523. lessor's covenants run with, 523. covenant to let lessee purchase, runs, 523. right of transferee of, to subsequent rent, 524, 533. when there is no apportionment, 533. transfer of, by death of lessor, 525. rent a share of crop, 525. of lessor, a life-tenant, 526. by sheriff's sale, 527. purchaser affirming the lease, 528. prepayment of rent, 529. assignment of rent, 529. lessor's share of crop sold by sherifl, 531. by other judicial sales, 532. when alienee's title begins, 534. when rent payable in crop, falls due after grant of reversion, 536. of part of reversion, 539. effect on recovery of possession, 541. right of transferee of, to sue for breaches of tenant's covenant, 771. ROOF AND WALL, lease of, 20. ROYALTIES. recovery of, when only an option to accept lease, 2, upon coal lease, 697 ct seq. see Mining Lease. RtFN WITH THE LAND. covenants that, 92, 768. covenants regulating manner ot removing coal, 689. INDEX. 823 (References are to pages), RUN WITtl THE LA ND— ( continued ) . covenants to drill oil wells, 709. covenants to pay rent, 769. covenant of an assignee of lease, 770. right of lessee to dump refuse on surface. 689. s. SALT WELLS. lease of, right to take petroleum, 678, 725. ■SAW MILL. lease of, 21. SCHUYLKILL COUNTY. landlord's preference in, 269. SEAL. dispenses with consideration for suretyship, 54. •SET-OFF. by tenant in replevin, for goods distrained, 86, 140, 263, 493, 501. in action for rent, 140, 141. landlord's claim from execution proceeds, 140, 276. of damages for lessor's tort, 140. breach of covenant, 140. by landlord, of rent, 131. not in action of tort, 132. of judgment for rent, 132. by justice, against rent, preliminary to distress, 258. of lessee's breach, against lessor's breach of covenant, 390. by surety in recognizance given under act April 3, 1830, 450, 456, on appeal, under act April 3, 1830, 455. against rent of value of tenant's improvements, 716. against mesne profits, of the value of improvements, 767. ■SEWER. liability of tenant to pay assessments for, 109. SEWING MACHINES. exemption from distress, 195, 205. consigned for sale, exemption from distress, 201. SHERIFF. lease of house for, by county commissioners, 147. bailiff to make distress, 227. to make appraisement and sale, in distress, 244. liability of, to landlord, for proceeds of execution, 291, 294. :SHERIFFS' VENDEE OF REVERSION. liability to, for use and occupation, 128. 834 INDEX. (References are to pages). SHERIFFS' VENDEE OF REVERSION— (continued), lessee becomes a tenant at will, 303. right to emblements, 517. right to rents, 527. may affirm or disaffirm lease, 528. what is a disaffirmance, 528. when rent is paid in advance, 529. assignment by lessor of rent, 530. how affected by sheriff's sale of lessor's interest in crop as rent, 531. when his title begins, 535. SHOW CASE. right to maintain on pavement, 105. use of entrance for, 105. SIDEWALKS. duty of tenant respecting, 666. duty of landlord, different rooms let to different persons, 666. SIGNATURE TO LEASES. necessity of lessor's, 25, 32. as to tenant's surety, 55. by agent of lessor, 32. necessity of lessee's, 32. to bind surety, 55. SIGNS. right to use wall for, 41. when they obscure show-cases, 106. putting up, 106. SI5A.TING RINKS. construction of lease of, 24. SODA-WATER APPARATUS. exemption of, from distress, 195. SPACE. effect on lessee's right to, of exhaustion of coal, 690. SPECIFIC PERFORMANCE, of contract to lease, 2, 3. under statute of frauds, 33. SPOLIATION OP DEED. effect on duty to pay rent, 160. STAIRWAY. duty of lessor with respect to, 71. right of lessee of part of building to use, 104. INDEX. 825 (References are to pages), STEAM. covenant to furnish, 81. STEAM HEAT. distress for charge for, as rent, 167. STEREOPTICON VIEWS. lease of roof for exhibition of, 20. STONES. when grant of right to take is a lease, 10, 19, 28. lease of furnace, including right to take limestone, 41. STRAW. landlord's share of, as rent, 115. a part of way-going crop, 509. lessee's covenant respecting, 520. SUBJECT OF LEASE, area defined, 37. building, and not the soil, 38. water-right included, 39. easements included, 39. furnished house, 43. different parts of same building, 104 et seq. SUBLETTING. effect of, on liability of surety, 62. right of distress, 173, 392. goods of sublessee distrainable for primary rent, 187, 282. of all or part of premises, 188, 388. landlord's preference, as respects sublessee's goods, 282. sublessor entitled to landlord's preference, 288. preventing sublessee's taking possession, on eviction, 337. effect of, on liability of assignee, 379. by assignee of lease, 383, 390. distinction between assigning and, 384, 387, 389. when transferee's right is restricted, 389. the right to underlet, 390. damages for, 390. condition against, 391. acquiring easement, not a violation of, 392. sublessee about to be evicted, declines to pay rent, 392. liability of sublessee for negligence, although sublease a breach of condition, 392. duty of sublessee to pay rent to lessee, 392. distress for rent due by sublessee, 392. effect of tenant's surrender, on his sublessee's rights, 393. sublessee may assign the sublease, 394. 836 INDEX. {References are to payea), SUBLETTING— ( continued ) . acquire the reversion, 394. right to way-going crop, 510. not bound by lessee's covenants, 394. subject to conditions aii'ecting lessee, 395. right of, when eminent domain is exercised, 396. right to remove fixtures, 490. conditions may be in a sublease, 399. SUITABLENESS OP PREMISES. to particular use, no implied covenant for, 69. SUNDAY. distress on, 225. SURETY. in constable's bond, liability to landlord, 267. in recognizance for appeal, act April 3, 1830, 449. set-oflf by, 450, 456. lessee as surety for liis assignee of term, 382. of assignee of term, rent falling due after another assignment, 368. SURETY OF LESSEE. distinction between guarantor and, 53, 57. becomes such, by writing only, 54, 56. consideration necessary, 54, 56. connection between his contract and the lease, 55. necessity of signature of lessee, 55. lessor, 55. when jointly liable with lessee, 55. when severally liable, 55. liable on all the lessee's covenants, 56. liable for taxes, 56, 58. when he becomes such, after the making of lease, 56. notice of lessor's acceptance of contract unnecessary, 58. not discharged by lessor's failure to seek payment from lessee, 58. notice by, to lessor, to collect rent from lessee, 58. notice of refusal to continue, liable, 58. effect of reducing rent, on liability of, 58. effect of his death, a future liabilitj-, 59, 61, 62. effect of surrender of term, on liability of, 59, 60, 63. liability of, when lessee a married woman, 59. when lease is within statute of frauds, 59. when renewals are made, or tenant holds over, 60. affected by conditions subsequent, 60. Tight of, to prevent renewal of tern\ on his credit, 61. liability of, when lessor relinquishes means of paying rent, 62, 185, 267. when partial payment is refused, 65^ 191. INDEX. 827 {References ore to pages), SXJRETY OF LESSEE— (continued). as affected by distress, 62, 183. as affected by assignment of lease, 62. as affected by eviction, 63, 344. right of, to possession of premises, 63. may avail himself of lessee's defenses, 63, 358. when he becomes such, by fraud on him, 64. liability of, when he has misapprehended the length of the terra, 64. as affected by misrepresentations made to him, 64. as affected by transfer of reversion, 64. to others than lessor, 65. set-off by, of damages for breach of lessor's covenant, 73, 83. right of, to pay rent and arrest the distress-sale, 244. effect of replevin on liability of, 267. effect of eloignment of goods after distress, on liability of, 267. effect of his becoming assignee of term, 382. SURFACE SUPPORT. in mining, lessee's duty not to remove, 691. lessor's release of lessee, 692. when lessor is an executor, 693. SURRENDER OF TERM. by accepting a new lease, 23, 24, 3.16, 323, 469, 470, 756. effect of, on surety's liability, 59, 63. on liability for rent, 147, 148, 326. on landlord's preference in executions, 277. validity of consideration for, 314. when oral, 315, 765. in fact and in law, 315. of all or part of premises, 316. form of express surrender, 317. lessor's acceptance necessary, 318. evidence of the acceptance, 324. expressed by acts, 318 et seq. significance of giving notice to let, 321. reletting the premises, 321. distraining on goods of subtenant or assignee, 323. accepting rent from one in possession after tenant leaves, 324. destruction of premises and payment of insurance money to lessor, 324. to an agent of landlord, 325, 764. by agent of tenant, 749, 764. right to surrender secured by lease, 315, 322. of lease by firm, change in, 323. effect of, on tenant's right to possession, 327. fixtures, 327. merger, as efTect of, 328. 828 INDEX. {References are to panes). SURRENDER OF TERM— ( continued ) . effect on sublessee's rights, 393. effect on prior sale of way-going crops, 510. stipulated for in lease, effect on duty to pay royalties, 703, 710. SWITCH. covenant to procure right to use, 82. T. TAXES. liability of lessee's surety for, 56, 58. lessee's duty to pay, does not embrace assessments for grading, paving, etc., 109. Vifhen lessee binds himself to pay, 109, 297. statutory duty of tenant to pay, 110, 264. set-off of, against rent, 264. for bounty, tenant not obliged to pay, 110. road, liability of tenant. 111. as part of rent preferred to an execution creditor, 274. on death of tenant, 297. lessor of oil lease must pay, 727. on distilled liquors, lien of, preferred to landlord, 293. TENANCY AT WILL, 299. created by possession under unenforceable contract, 300. results from holding over, after expiration of term. 302, 479. convertibility of, into tenancy from year to j-ear, 302. TENANCY FROM MONTH TO MONTH, 307. necessity of landlord's notice to quit, 307. necessity of notice from tenant of intention to quit, 308. TENANCY FROM QUARTER TO QUARTER, 306. necessity of landlord's notice to quit, 305. necessity of tenant's notice of intention to quit, 306. TENANCY FROM YEAR TO YEAR, 300. results from holding over, after expiration of term, 302, 479, 480^ results from application of statute of frauds, 302. notice to quit, 303, 309. notice to revocation of, 305. notice of tenant's intention to quit, 304. contractual duty to give notice, 305. effect of death of lessee, 306. TENANT. distinguished from cropper, 11. distinguished from partner, 12. distinguished from employee, 13. INDEX. 829 {References ure io i^hqcs), TENANT— ( continued ) . distinguished from bailee of sawmill, 21. work done by, preliminary to taking possession under lease, 102. duty of, with respect to sidewalks, 666. duty of, with respect to areaway, 667. duty of, with respect to cesspools, 668. liability of, for collapse of building, 670. liability of, for fall of platform tilted against wall, 671. of upper story, liability for negligent use of water, 671. TENANTABLENESS OF HOUSE, implied covenant as to, 69, 72. TENANT IN COMMON, may be lessor, 17, 170. may distrain for rent, 170. liability of, to cotenant for rent, 17, 12.3, 130, 752. liability of, to cotenant for royalties, 739. liability to cotenant for repairs, 97. action by several, as coles.sors, for rent, 134. as lessors, several may give warrant for distress. 228. partition between invalid as to tenant, 541. rent validly paid to one of several colessors, 7.")2. when one is prevented by estoppel from claiming rent, 752. TENDER OF RENT. effect on right to distrain, 184. by assignee of term, effect on right to distrain assignor's goods, 191 to arrest distress sale, 243. by assignee of term, 376. to prevent forfeiture of lease, 408. TERM. necessarily implies a reversion, 681. certainty as to coinmencement and close of, 678. length of, parol evidence to explain, 51. for fixed time, and so long thereafter as tenant pays rent, 464, 678. commencement of, posterior to making the lease, 457. when it ends, 458. when lease is for a number of years, but is to the lessee, his heirs and assigns, 459. when lease is for so long as tenant resides at a certain place, 460. when lease is for so long as premises shall be used for certain pur- poses, 460. when lease is for a definite time, and thereafter until notice is given by either party, 468, 473. provision for renewal, 460. provision for length of renewal term, 402. 830 INDEX. (References are to pages). TERM— (continued). provision for frequency of renewal, 464. right of renewal conditioned on notice, 465, 466. conditioned on previous fixing of rent, 466. conditioned on prepaying rent for new period, 467. renewal of, by holding over, 468. renewal of, by agreement made during the term, 471. renewal conditioned on lessor's assent, 473. effect of holding over, 475. repetition of same terms and conditions, 476 et seq. landlord recognizes tenant after expiration of lease, 479. when time of ending is unknown, act February 28, 1865, 637. termination of, by abandonment or surrender, according to stipulatioB in lease, 703, 705, 710. TIMBER. right of lessee with respect to, 520. TON. meaning of, in mining lease, 698. TREBLE DAMAGES. for rescous and pound breach, 24G. for taking minerals from others' lands, 694. TRESPASS. by landlord, distinguished from an eviction, 338, 340. TRESPASS, ACTION OF. for lessor's appropriating tenant's improvements, 86. for lessor's appropriating tenant's fixtures, 493. for lessor's failure to make repair, 86. for mesne profits, 126. for distress for too much rent, 250. for excessive distress, 252. insolvency of tenant, right of action does not puss, 2'r2. for distress, no rent being in arrear, act 1772, 253. for distress, no rent being in arrear at common law, 2.54. for distress on goods not liable, 257. for ignoring claim to exemption from distress, 262. for improperly removing manure from premises, 506. for interfering with way-going crop, 513. for taking minerals from plaintiff's land, 694. joint action by partners, though lease is in name of one only, 694. TRESPASSER. holdover tenant may be treated as, 480. TRUSTEE. as lessor, may distrain, 170. INDEX. 831 (References are to pages). TYPE-AVRITING MACHINE. exemption from distress, 195. u. USAGE OF TRADE. determining what is a fixture, 490. USE AND OCCUPATION. when lease is inchoate, 2. assumpsit for, 122, 124. actual possession unnecessary, 122. wlien action for, is inapplicable, 123. when rent is precisely defined, 123. when lease provides for precise definition of rent, 123. wlien lease is voidable because of statute of frauds, 124. when lease calls for a "reasonable rent," 125. what constitutes occupation, 125. when contract to pay any rent is implied, not express, 126. when no contract can be implied and there is no express contract, 126, 127. liability for, of tenant to sheriff's vendee of reversion, 128, 521). when occupation is permitted witliout expectation of compensa- tion, 128. when relationship negatives expectation of rent, 129. when land belongs to several owners; duty to pay to each, 131. liability for, of tenants at sufl'erance, 131. measure of compensation for, 132, 481. no right to distrain for compensation for, 160. landlord's preference, as against execution creditor, 287. when tenant holds over, 481. USE OF PREMISES, restriction on, 40. VIADUCT. for railroad, on leased premises, 39. w. WAIVER. by tenant, of defects of premises, 91. of exemption, 138, 212, 284. of sewing machines from distress, 206. of right to appeal from justice's judgment for rent, 139. of appraisement in distress proceedings, 237. of public notice of distress — sale, 241. 832 INDEX. (References (ire io pages). WA] VER— ( continued ) . of right to damages for excessive distress, 252. of riglit to maintain replevin, 261. of stipulation accelerating payment of rent, 274. of covenant or condition against assignment of lease, 373. of want of Jurisdiction in action on lessee's covenants against as- signee, 378. of condition against subletting, 391. of right to forfeit for breach of condition, 403, 430. of right to forfeit; valid against lessee, 430. of right to written notice of tenant's intention to remain on prem- ises, 465. of right to appoint appraisers to fix rent for renewal term, 467. of prepayment of rent, to secure renewal of term, 467. of irregularities in selection of jurors, act March 21, 1772, 550. of notice to quit, act March 21, 1772, 501. of notice to quit, act December 14, 1803, 593. of forfeiture of lease, for any cause, 762. WALLS. duty of landlord to remove, when dangerous, 89. WAREHOUSEMAN. goods stored with, exempt from distress, 202. WARRANT. landlords, to distrain, 226, 227, 245, 248. when no defense to bailiff, 228. may be oral, 228. by justice, in proceedings under act April 3, 1830. 440. by justice, in proceedings under act i\Iarch 21. 1772, .546. by justice, to deliver possession, act ]\Iarch 21. 1772, 571. by justice, to deliver possession, act December 14, 1863, 602. WARRANT OF ATTORNEY. to confess judgment in ejectment for land, 132. to enforce forfeiture. 417. who may act under the warrant, 41S. against whom judgment confessed. 419. when no attorney appears, 422. record must aver breach of condilinn. 422. affidavit of breach filed, +22. premises must be adci|uatel.v described. 423. requiring signature of an altorney to the agreement to enter judg- moni, 423. forms of, 424. to confess judgment for rent, 132, rent for hold-over period, 420, 477. when prothonotary may enter judgment Avithout attorney, 132. INDEX. 83a (References are to pages), WARRANT OF ATTORNEY— ( continued ) . for both rent and recovery of poasession, 425. unnecessary when attorney appears for defendant, 421. striking oflf and opening judgment entered on, 425. causes for opening, 425 et seq. effect of opening on conclusiveness of judgment, 426. causes for striking off, 427. who obtains rule to open or strike off, 427. appeal from decision of court, 42&. WASTE. by tenant, 96, 100, 102. prohibited by estrepement, 688. WATER. right to use embraced in lease, 39, 481. lessor's warranty of purity of, 83. negligent use of, by tenant of upper story, 105. lease of right to use, 131. when lessor's stoppage of supply not an eviction, 339. what can be recovered for use and occupation of, 481. WATER POWER. when included in lease of riparian land, 39. WATER RENT. custom of landlord to pay, 49. when it may be distrained for, 168. as part of rent, preferred to execution creditor, 274. as part of rent, preferred on death of tenant, 297. WAY-GOING CROPS. proof of custom, 49, 512. when they become property of landlord, 119. what are, 507. with respect to what kinds of lease, 507. are crops sovni in fall and winter, 508. straw as part of, 509. who has the right to, 510. subtenant's right to, 510. right of assignee of lease, 510. right of tenant's vendee, 510. effect of surrender on right of prior purchaser of crop, 510. continues the tenant's, after expiration of lease, 510. effect of sheriff's sale of reversion on right to, 510. right as affected by stipulation, 512. remedies for denial of tenant's rights, 513. origin of right to, 514. LAN. & Ten. 53. 834 INDEX. (.References are to pages). WILKBS-BARRE. liability of receiver of taxes in, for office rent, 124. WITNESSES. proof of lease bj' subscribing, 719. YEAR TO YEAR. tenancy from, 300, see Tekakct fkom Yeab to Yeab. /