Clark v. Everly

The opinion of the Court was delivered by Gibson, C. J. Asa landlord could not, at common law, annul his tenant’s lease for non-payment of rent or want of property on the premises to answer a distress, the tenant could retain the possession against him, though it were certain that not a shilling would eventually be recovered. The landlord had no choice but to await the expiration of the term, and repose, in the mean time, on his common-law remedies of distress and action, so far as they should avail him; for such was the basis of the lease. Like every other contract, it could be dissolved only by the concurrent assent of the parties which had constituted it. A lease, therefore, was not determinable by the act of only one of them; for even forfeiture, of which non-payment of rent, however, was not a cause, required an entry by the landlord to revest the possession.' On the same principle was a lease determinable by surrender, express or implied. In Savage v. Dent, (2 Stra. 1064), it seems to have been considered that abandonment of the premises is an implied surrender;' yet an ejectment founded on a lease sealed after entry on the vacant premises was deemed necessary to change the relation of landlord and tenant. Perhaps we went further in M’Kin [231] ney v. Reader, (7 Watts 123), by considering flight, combined with a fraudulent removal of the tenant’s family and effects, to be an implied surrender which authorized the landlord to enter, and gave him a ground of defence against the tenant’s action of trespass. Still the provisions of the common law were found to be inadequate to the landlord’s security in all cases; and the 11 G. 2, c. 19, as well as the 57 G. 3, c. 25, was enacted to give him at least a more efficacious remedy for desertion without leaving enough for the rent. These statutes were not extended to Pennsylvania ; and it was not till 1830 that provision was made by our own Legislature. In that year was enacted the statute on which the proceeding before us is founded, and by which it was declared that neglect or refusal to pay the rent for premises destitute of chattels to answer a distress shall authorize the landlord to give notice to quit at the énd of fifteen days; and on the tenant’s refusal to pay or quit, to recover the premises by a summary proceeding before two justices or aldermen. Why was this remedy given? Because, for the hopeless continuance of an insolvent tenancy, the landlord would else have had no remedy at all. The grievance was not an abandonment of the lease, but a neglect or inability to make satisfaction. For abandonment, as appears in Savage v. Dent, he had remedy by entry and ejectment, and with us, perhaps, by entry alone; but for the tenant’s insolvency there was no remedy whatever. Why, then, should the provisions of our statute be extended to a refusal to pay under a claim of right to the reversion, which, being a denial of the landlord’s title, gives him an immediate right of entry and action at the common law? The statute remedy is founded on a continuance of the tenure till the moment of notice to quit, which is required not only to warn the tenant, but to dissolve the tenancy; but a previous repudiation of the lease, which equally puts an end to it, renders notice unnecessary, and gives the landlord a right to recover at the common law, unless the tenant disprove the lease. When that is done, a conflict of adverse paramount title arises, which the Legislature has never confided to the determination of a summary tribunal. A proceeding under the Landlord and Tenant Act of 1772 may be arrested by an allegation of title derived from the lessor to a third person; and the Act of 1836, which gives a similar remedy to purchasers at sheriff’s sale, contains an analogous provision. On the same principle of incompetency to decide, justices are forbidden to hold jurisdiction of title to land brought collaterally into contest, in an action of trespass, trover, Or debt. Now it appeared in the case before us that Judge Morton, the lessor whose title the plaintiff claims, died in 1828, leaving a daughter, his only child, who intermarried with the plaintiff, and died in 1832, leaving issue; and that the defendant, Everly, was not required to pay till 1841, when, rent being demanded of him, and payment refused on the ground of the plaintiff’s supposed want of title, this pro [232] ceeding was instituted. And what was the cause of the procrastination 1 It was because the plaintiff’s title had been denied by the defendant, who claimed the premises under a devise in Judge Morton’s will, which, he alleged, was destroyed by the plaintiff and his wife. Now the statute gives an appeal in this proceeding, not for the trial of a collateral fact started by the defendant, as under the Act of 1772 or the Act of 1836, but for trial of the facts which have been passed on by the justices, who are incompetent to pass on the title to land. But, though adverse title cannot be set up in the Common Pleas as a defence on the merits, an assertion of it previous to the commencement of the proceeding may be set up as an insuperable objection to the jurisdiction; and where the fact of assertion is sustained by evidence, it is fatal to the proceeding, without regard to the validity of the title. I mean by this, that where the tenant has denied the landlord’s title, he has waived his defence on the lease, and given a common-law action against himself, which it was not the design of the Legislature to supplant. By challenging the plaintiff’s right to the reversion the defendant tendered an issue on the title which the plaintiff could not decline, in order to obtain the possession, without meeting the defendant before a jury on his own ground. It may be thought that, to make out a prima facie case, the plaintiff was bound to show no more than that he is the owner of the lease; but to do that involved a question of contested title to the reversion, which the aldermen were incompetent to decide. As there was no jurisdiction, the other points made at the trial were not legitimately raised, and it would be improper to consider them. Judgment affirmed.