
    [Philadelphia,
    Dec. 22, 1822.]
    THOMAS against WRIGHT.
    IN ERROR.
    The sheriff’s docket is not evidence to show the time when an inquisition was held on a fi. fa. where there is a blank left in the inquisition.
    But the time may be shown by parol evidence.
    The day on which an inquisition was taken is not a matter of record, but a matter in pais.
    
    
      A mere return to a Uberari by the sheriff, that he had delivered possession to the plaintiff in that suit, does not vest the title in such plaintiff'; it is only an authority to enter; and he must bring an ejectment, or obtain the actual possession, before it can be considered, in an ejectment between others, as a subsisting title in him.
    Where the defendant in ejectment has only aii equitable title to hold real estate till certain moneys are reimbursed, the plaintiff is entitled to recover, if such moneys are reimbursed at the time of trial: but if the defendant has a legal title of that description, the plaintiff cannot recover, unlessthe moneys were reimbursed at the institution of the ejectment.
    A contract that a person shall occupy a house, and put it in repair, and in consideration thereof shall enjoy the property at a certain rent, till the repairs be reimbursed, makes such person a tenant from year to year, and not liable to ejectment when the contract is ended, without notice to quit.
    This was a writ of error to the District Court for the city and county of Philadelphia, in an ejectment brought by William Wright, the plaintiff below, against John Thomas, for a house and lot in the county of Philadelphia, in which a verdict and judgment were rendered for the plaintiff. Two bills of exceptions were taken by the defendant to the admission of evidence, and a third to the charge of the court.
    The property in question belonged to the plaintiff’s father, George Wright, who, in the year, 1801, conveyed it to a. certain John Thomas, (not the defendant,) in trust, to pay over the rents ‘and profits to the said George and his wife Mice, during their lives, and afterwards to the plaintiff in fee. George Wright died, and after him Mice; and the plaintiff, (who was an infant at the time of the conveyance,) remained absent till the year 18-7. In the meanwhile the property had gone out of repair, and had been also subject originally to a ground rent. By an arrangement made between Thomas the trustee, Mr. Odenheimer, the ground landlord, and Rose Thomas, under whom the defendant claimed, it was agreed, that Rose Thomas should put the house in repair, and, in consideration thereof, should enjoy the property at a rent of 60 dollars, until she was reimbursed the money she expended. A considerable sum was expended by Rose Thomas in repairs, and one question of fact .was, whether she had enjoyed the property long enough to reimburse herself. In the summer of the year 1817, the plaintiff William Wright, returned to Philadelphia, and claimed the property: but evidence was given by the defendant, that at a meeting at Mr. Bradford’s office about that time, at which the plaintiff, Rose Thomas, Thomas the trustee, and Mr. Odenheimer, the ground landlord, were present, the abovementionedarrangementwas assented to by the plaintiff,. and a balance admitted still to be due to Rose Thomas, on account of moneys expended in repairs. In October, 1817, the plaintiff being indebted to Jacob Mooney, gave him a bond and warrant of attorney, upon which, in December, 1817, judgment was entered up, and execution issued and levied on the property, and an inquisition was afterwards held in March, 1818, as the defendant alleged. This inquisition having found that the rents and profit's would pay the debt in seven years, a liberari fa-cias was taken out.
    On the trial, the defendant contended that the moneys expended for repairs were not reimbursed at the time of trial; but that at all events they were not reimbursed when the ejectment was brought, and, therefore, the plaintiff could not recover in this.ejectment. He also contended, that there was an outstanding title in Jacob Mooney, under the' liberari facias, and produced the liberari facias, and inquisition, after having proved the judgment above mentioned, and fieri facias. The liberari facias was tested the 5 th March, 18! 8, and the sheriff’s return was indorsed, that he had delivered possession on the 18th June, 1818. The inquisition purported to have been taken on the-day oí March, eighteen hundred-. The defendant then offered the docket of Thomas Truxtun, sheriff, of June term, 1818, to show, that the inquisition annexed to the writ of liberari facias was held and taken by the said sheriff and jury, in March, 1818. The plaintiff objected to this evidence, and the court overruled it, which was the subject of the first bill of exceptions.
    The defendant then offered parol evidence to prove, that the inquisition was, in fact, held and taken by the said sheriff and jury, in March, 1818. This evidence was also objected to by the plaintiff, and overruled by the court, and a second bill of exceptions was taken by the defendant.
    The third bill of exceptions was to the following charge of the court.
    The plaintiff has showed a good and sufficient title. The deed of ti’ust vested the property in the plaintiff, immediately on the death of Mice Wright, and no conveyance was necessary to be made by the trustee, to the plaintiff, after the death of Mice. Thé_ defendant has contended, that the plaintiff must have a right to possession of the premises at the time of the .action brought, and that if the right of possession was not in the defendant, it was in Jacob Mooney, a creditor of the plaintiff, who had sued out the writ of liberari facias, by virtue of which possession of the premises had been delivered to him. We think that Mooney’s possession under the liberari facias was no more than legal posssession, and if the proceeding on the liberari facias had been fair and regular, Mooney might have brought an ejectment for the premises. In such suit, he must have shown the proceedings to be regular; but on thé face of the inquisition they are not fair' and regular — there is a blank in the inquisition which cannot be supplied by parol proof. Had<application been made to the court within a short time after the return of the inquisition, it might, perhaps, have been amended; but that would have been discretionary with the court, under all the-circumstances. The defendant has no right to set up a title in a third person, unless it be a good and subsisting title at the time. Mooney may have abandoned his title, or may have been paid. The defendant must show that Mooney’s title still subsists, and as Mooney does not set up his title, we cannot presume it. But it was contended, that the jury may infer the time when the inquisition was executed from the liberari, inquisition, sheriff’s return, and record of the District Court. We do not think so; the jury have no such right, it would be giving them power to amend. We put therefore entirely out of the question the title of Mooney, and the jury are not to take it into consideration. But admitting the proceedings were regular and a legal, possession in Mooney, the defendant stands in the light of a tenant of the plaintiff, and as the tenant of the plajntiff the law is, that he cannot set up eveii a good outstanding term against his landlord. But it is further contended by the defendants, that under this arrangement made by Thomas, the trustee, with Mr. Odenheimer, the defendant had a right to retain possession of the premises, until reimbursed the amount of monies expended by him for repairs, taxes, and ground rent. The plaintiff contends, that Thomas, the trustee, had no right to make such an arrangement; strictly, perhaps, he could not as trustee. But after the trust had expired, . Thomas acted as the agent of the plaintiff, who sanctioned his authority. We think the arrangement made with Mr. Odenheimer binding on the plaintiff. Under that arrangement, as to the repairs, and the amount of them, and whether they were tenantable repairs, these are questions for the jury. The defendant must be reiiqjfursed; but the question is, whether it is sufficient if it is found that he is now reimbursed, or whether the plaintiff had a right to bring his action, unless the defendant had been reimbursed at the time the action was brought. The defendant contends that the plaintiff cannot recover, unless the defendant was reimbursed at the time the action was brought, or unless the plaintiff had offered to reimburse him before the ■ suit was brought. The plaintiff contends thatthe defendant was reimbursed before .the suitwas brought, but says it is sufficient, if it appear that the defendant was reimbursed at the time of the trial. The defendant' contends that he was not reimbursed before the suit was brought. The law appears to be well settled as contended for by, the plaintiff, and that it is so, appears by the cases of Wharf v. Howell, 5 Binn. 499. and 4 Binn. 31. If the defendant be paid at the time of the trial it is sufficient. The defendant admits that he is now paid, and offers to deliver up the possession. It is said, that it is a simple question of costs. By whose faults have the costs occurred? The costs are the consequence of the defendant’s persevering to hold the possession, and not rendering an account to the plaintiff, and attempting to show that the expenditures have not been satisfied out of the rents. The defendant has only an equity, the legal title is in the plaintiff. When the plaintiff claimed possession, the defendant should have offered to give up the property, and shown his account of expenditures. It was not incumbent on the plaintiff before action brought, to make tender of payment or claim any account. Why should the plaintiff make a tender, when the defendant offered no account at Mr. Bradford’s office. Before the suit brought there were no vouchers produced, nor was the account settled. Mr. Bradford stated that he acted as the attorney of the defendant, and, of course, made out the account as favoura-bly as he could for the defendant. That account can have no operation in this case, the only question is, is the defendant now paid? If he is, the plaintiff is entitled to recover, and the costs will necessarily follow the verdict.
    The bill of exceptions contained no statement of the testimony previously given on the trial, but referred to it as contained in the notes'of the four counsel employed in the cause, and in the notes of the judges who tried it.
    
      J. 8. Smith and Ewing, for the plaintiff in error,
    cited Brown v. Vandusen, 10. Johns. 51. M‘Cormick v..Meason, 1 Serg. & Rawle, 92. Morehead’s lessee v. Pearce, 2 Yeates, 456. Lynn, v. Risberg, 2 Ball. 180. Mageehan v. JLdams’s lessee 2 Binn. 109. 2 Yeates, 150.
    
      Keemle and Newcomb, contra,
    cited act of 1705, 1 Sm. Laws. 63; Moody v. Vandyke’s lessee, 4 Binn. 31. Wharf V. Howell, 5 Binn. 499.
    
   The opinion of the .court was delivered by

Duncan, J.

The reference in the bill of exceptions to the notes of- the four counsel concerned for. the parties, and the notes of the ‘evidence of the judges before whom the cause was tried, does not answer the design of a bill of exceptions, which is, to desire the opinion of the court on certain points of law propounded to them on some given state of evidence. To refer then to the notes of six . gentlemen, however accurate and correct they may be in noting the evidence, cannot be said to afford a precise statement of facts. The • notes will not always agree, nor is it to be expected that they should. If they disagree, what is the reviewing court to do? They cannot decide upon their relative accuracy and exactness. Besides, it is imposing on the court above a task which their duty does not require of them, of wading through volumes of notes, where only a small portion of them relates to the particular point, in which the opinion of the court is required. _ This, besides consuming time unnecessarily, creates confusion, and incertitude as to the facts; for the bill does not draw the whole matter into examination, but only the point on which it is taken. So much difficulty may not arise in the present case, inrelationto which,I donotparticularlymake theobser-vation, but with reference to a practice which ought'nót to be countenanced. It saves a little labour at the moment, but finally wastes much time. .There is no doubt from the whole record, but that the plaintiff below, defendant in error, is the owner of the property in question: that is, he has the title to it; for cestui que trust can in this state sustain ejectment in his own name. But one man may have thé right of possession, and the other the right of property, and the right of possession is the sole inquiry in ejectment. The defence set up by the plaintiff in error, defendant below, was,; that the property was levied on by the sheriff, as the estate of the defendant in error, at the suit of Jacob Mooney; that an inquisition was. held, that it would pay the debt and damages within seven years, as was found by the inquisition; that a liber ari facias issued, on which it was returned, executed, and possession delivered to the plaintiff in the judgment. The plaintiff in error offered to prove this by the record and return of the sheriff, (the inquisition annexed to the liber ari facias being in blank as to the day and year in which it was taken by the sheriff and jury, viz. on the-■ day of March, one thousand eight hundred-.) This was objected to, and the plaintiff offered the sheriff’s docket to prove.that it was executed-March, 1818. This evidence was overruled, and I cannot say there was error in this. It was the mere private book of the sheriff; the transaction was a recent one; and there had been no actual correspondent possession. But the defendant below further offered to prove by the witnesses, that the judgment was executed on the-day of March, 1818, and this was likewise refused. This evidence was competent. It was impossible that the inquisition could have been taken in March, 1800: there had been then no judgment; tire teste of the liberari facias was 1818. Thomas Truxton was not the sheriff in 1800. . This inquest was not a judicial act and record of the court. The sheriff was out of office — was dead — there could be no order to amend or amendment made. The day on whichit was taken was notamatter of absolute verity as a record of the court, but a matter merely inpáis. If it had even stated a precise date, the mistake could be put right, and parol evidence admitted to show when it was really done. Indeed it required no explanation. The evidentiarei was sufficient to show the real year — that it was 1818, and not 1800. But to remove all doubt, it was competent to the plaintiff to show, by the jurors or others, the year in which it was executed. This however would have gone but a little way, it would not have placed either title or possession in Mooney; for the return of the sheriff, as the court very properly instructed the jury, did not prove an actual, but a virtual delivering of possession. On the execution of the liber ari facias, the sheriff is Jo' deliver to the creditor the premises, in the same manner as lands are delivered.on writs of ejecUnent in England. But this delivering is no more than an authority to enter, and the creditor must bring an ejectment, 4 Mod. 48. 1 Crompt. Pr. 363. Addison, 103. State v. Kirkpatrick and another. By act of 13th April, 1807, Purd. Dig. 262, on the execution of a libe-rari facias, where the defendant, or his tenant is in possession, the sheriff shall deliver the actual possession thereof to the plaintiff, or his agent. When the liber arifacias was executed, the defendant in error was not in possession, nor the plaintiff in error considered as tenant-: it is however certain that neither was dispossessed. Itis not pretended that any possession was really delivered to Mooney, or any further prosecution of his judgment and execution, nor was there any connection then or now between Mooney and the plaintiff in error, or any claim set up by Mooney. And though it be true, that the tenant in possession may sot up an outstanding title in a stranger, yet it must be a subsisting one. The title could not be said to be in Mooney. -He has not taken the possession, nor has he made any entry. The proceeding is altogether inchoate: it cannot, be compared to. a sale by the sheriff, and deed executed and acknowledged, for that vests the absolute title in the purchaser. There is no error in this instruction to the .jury-:, it was not a bar to the plaintiff’s recovery. Besides these reasons, there is another very competent one. The plaintiff in error was considered as the tenant of defendant, as. coming into possession and holding under him, under some contract held to be binding, either made by authority of the defendant in error or ratified by him. Among the conditions was one, that the plaintiff in error, should be reimbursed for the repairs he might make. Now it is admitted, that when the action was brought, he had not been reimbursed, though at the time of trial he was. At any rate it was left to the jury, to find whether he was reimbursed’ at the time of trial, and if they found he was, then whether he was reimbursed or not at the time of action brought, the court said was altogether immaterial, and they should find for the plaintiff below, the defendant in error, with costs. If this were a' matter all. in equity, the plaintiff in error having a legal right both.to the property and to the possession, and the defendant but a mere equity, the cases.of Moody v. Vandyke’s lessee, and Wharf v. Howell, might apply. But this is not the case here, for Thomas held as a tenant to the defendant in error; a- tenant who had a lien for the sum beyond his rent which he had advanced in repairs; he had a right to hold the possession until he was paid. It was the duty of Wright to call on him for his account, and tender him the balance. Wright could not thro w up the possession and sue Thomas for the repairs. The dissolution of the demise depended on Wright, by giving notice to Thomas, calling for his account, and paying or tendering him what was due for repairs. But there is another objection in the way of the judgment. If Thomas held the possession under a contract with Wright, or as his tenant for an uncertain time, then most certainly Wright could bring no action against him to recover the possession without notice to quit. He had lived on under the contract for several years. It would be then a lease from year to year. In either case, a contract for an indefinite possession in point of time, or a holding over which would amount to a lease from year to year, the action could not be sustained without a notice to quit. It was, in contemplation of law, a lease from year to year, and if it depended on the pleasure of Wright to end *it, he must give notice to quit, Bedford v. M‘Ilherron, 2 Serg. & Rawle, 50. And if a lease be for one year, and the tenant is afterwards permitted to remain from year to year, a notice in the first month of a new year is illegal; the tenant has a right to hold for thatyear, Fahnestock v. Faustenhauer, 5 Serg'. & Rawle, 174. The error of the District Court consists in supposing, that Thomas had but an equity, and Wright, the right to the possession. Now the court had before stated, that Thomas stood in the light of- a tenant to Wright-, and could not set up even a good outstanding title. All this was very just, but it followed that being a tenant, and not allowed to set up an outstanding title, he was the legal tenant, andbeing subjeCfto the incapacities of a tenant, to controvert the title, he was entitled to all the privileges of a tenant. This possession was a legal one, and his term did not expire until he had notice to quit. If the plaintiff had a perfect cause of action, against which the defendant had no defence at law, but defended himself on the equity of his case, all which equity had been removed since the commencement of the action; then indeed, the court, exercising Chancery powers would only interpose to prevent the plaintiff from recovering costs, which would depend altogether on the special circumstances of the case, on a variety of circumstances peculiar to every case: as here the readiness.of the party where called, upon seasonably to deliver up possession, on-payment of reasonable expenditures. But as he was not called upon, nor any demand of possession or offer to ádjustthe amount due, Ido not feel the equity of burdening the defendant with costs. See Hart v. the executors of Porter, 5 Binn. 223. In Pennsylvania, ejectment is frequently made use of to serve the ends of a bill in equity, and. in the exercise of the blended jurisdiction of law and equity, our courts from necessity exercise the power by directing a verdict on equitable terms. But here the plaintiff had no right to the possession in point of law. The defendant had no necessity to call on the court to interpose their chancery powers to relieve him on some principle of equity; for if he was, as they considered him, a tenant, then until -notice to quit had been given, and offer to pay for the repairs beyond the rents had been made, he stood firm on legal grounds.

Judgment reversed.  