
    Brandter, ex dem. Fitch and others, against Marshall.
    If a tenant enters under a lease, holding over after its expiration, is not evv donee of adverse possession. So, if the tentant’s son come in under him.
    Ejectment for lands in West Chester, tried in June, 1801, before the Chief Justice. The case stated that the plaintiff produced and proved:
    *lst. A paper signed Joseph Marshall, the father of the defendant, dated 6 th September, 1758, by which he acknowledged that he had, about six years before that period, taken possession of the land in question, under Thomas Fitch and John Raymond, and that he then held the same under them as his landlords.
    2dly. The counterpart of a lease executed by the said Joseph Marshall, by which the said Thomas Fitch, and John Raymond demised to him the premises, for three"years then next ensuing, at a reserved annual rent of one shilling, of any payments of which no testimony was given; but it was given in. evidence, that some time subsequent to the lease, two suits for forcible entry and detainer were brought against the said Joseph Marshall, relative to the land in question, and that, on these occasions, Joseph Marshall applied to Thomas Fitch, who defended him therein ; that he was turned out of possession in one of those suits, but afterwards restored; that Joseph Marshall died intestate in 1774, and letters of administration were granted to his son Joseph; that Joseph Marshall, the father, died in a house on the premises, in which he resided with several of his sons, who were of age, and had, for some years past, worked the farm; but whether on their own account or that of their father, did not appear.
    It was further proved, by two witnesses,, that they were present at a sale by auction of the effects of the intestate, when they were told by the administrator and auctioneer, that the defendant had purchased the possession of the land in question.
    One of the witnesses, who was a neighbor of the defendant, deposed, that, according to his supposition, the defendant held the lands ever since by virtue of the purchase: and another proved that he was the youngest son of the intestate, and not his heir at law. It was also in evidence, that the defendant had in his possession the lease granted to his father; that Thomas Fitch died in 1775, and some of the. lessors of the plaintiff are his heirs. On the part of the defendant it was established, that he had been in the actual and peaceable possession of the premises from" the death of his father to the present time, holding *and claiming them as his own, and that no rent [*896] had ever been paid by, or demanded from, him.
    The judge, on this evidence, charged the jury, that if they beleive the defendant hold the land under his father’s title, they ought to find for the plaintiff; on which direction the jury brought in their verdict accordingly.
    On these facts a motion was made for a new trial
    
      Hoffman, for the defendant.
    We contend that cu the circumstances, as presented by the case, the judge ought to have directed for the defendant, and not for the plaintiff. The facts, indeed, are but limited; some principles, however, -are involved, which it is of the utmost importance to have decided. For, admitting that the defendant claimed under his father, still, we insist, the plaintiff, as appears from the case itself, is not entitled to recover. There is no evidence of title whatsoever from the expiration oí ¿he lease in 1758. That, then, being only for the years, expired in 1761. After 1761, the lease is no evidence of a possessory right in the plaintiff to have the premises, unless subsequent acts of the defendant can be shown equivalent to an acknowledgment that his title was under the lease. Without resorting to authorities, principles of law will bear out the position. The lessor’s right commenced in 1761. It was incumbent on him then to have entered, or have exacted some acknowledgment, which rendered the entry unnecessary. He was out of possession for 40 years without receipt of rent or profits; if his right did then accrue, and was not pursued, the defendant remaining in ■ quiet possession, the court will not intend he held under the present plaintiffs. For the holding was tortious, against their right. If this be not so, where is the doctrine of the opposite side to carry us ? If it be acceded to, any one entering under a lease, is it for ever to be supposed to hold under it; 200 years’ quiet possession might be shown, and yet no title acquired. To evince that when the lease determines, the plaintiff should have entered, Emm. on Eject. 60, is.fully in point. “ Nor is a common person affected by the statute of limitations, where the possession is in the' hands of his tenant, who has paid him rent within [*397] the *time of limitation; for the possession of a lessee for years is the possession of his lessor, and payment of rent is an acknowledgment of the possession. So that during the continuance of the lease, and payment of rent, the lessor is in no sort of default, for he cannot enter and take the actual possession till the lease be expired; but then, it seems, he should, because his right of entry then first accrues.” The court will find the same principle recognized in England v. Slade 4 D. & E. 682. It was there ruled, that a man entering under a lease cannot, pending the term, contradict his lessor’s title, but after the time has expired, he may prove his landlord not entitled, by producing the lease; in which case, the landlord must show a better title. The lease, therefore, given in evidence, only shows a right of possession against us till 1761, and no longer. Even for that time, no rent was paid, and it ia to be observed, that the reservation was merely nominal. But the fact really is, that none ever ivas paid. It is next to be observed, that the jury were not warranted in finding the son took under his father. There is no evidence of this fact. The defendant might have taken as a stranger, and then this lease would have been totally out of the question, because he would have come in as a third person, and not affected by it. He was also the youngest, and not the eldest son. The testimony that ho did derive title under his father, is hearsay throughout, and, therefore, the judge ought to have charged that it was not entitled to any credit. The auctioneer, and some one else, told the witnesses that the defendant had purchased the possession; but this was not done in his presence, nor is any acknowledgment of the fact substantiated: the declaration was made by a third person, and never assented to. This, surely then, cannot be evidence. On the contrary, the testimony in behalf of the defendant demands a presumption that he held adversely, and so the judge ought to have charged: it ought to have been laid down to the jury, that there was sufficient for them to presume an adverse holding. The principle of this doctrine has been recognized in this court, in Van Dyck v. Van Beuren & Vosburg, ante, 89. That*was a case of tenancy in common, and [*398] yet there the court said, after 40 years* possession by one tenant in common, the jury ought to have been directed to presume an ouster. If, then, this be law between tenants in common, a fortiori between others. It is impossible here to presume otherwise, for could it be so, the doctrine would extend ad infinitum, and a lease once shqwn, would be an argument for holding under it for ever. The inconvenience this would lead to, ought to be an argument against it. The plaintiff therefore, should have shown, as his lease had expired 40 years ago, a title paramount; for it is possible neither party have -a right.
    
      Hanson, contra.
    It has ever been a principle, of law, that where a person enters under a title from another, the person so entering never can dispute the right of the original holder. So where the relation of landlord and tenant has subsisted between the parties, though there should be a holding over, the tenant, in an action against him, cannot •contradict the title of the lessor. If this be a mistake, it is so in the very foundations of the law. For the general principles thus stated, and to show that a lessee cannot ¡dispute the title under which he has entered, the court will find an authority in 2 Black. Bep. 1259. These positions are not altogether denied by. the counsel for the defendant, but they are qualified by saying, when the lease expires, ' if the party entitled to the possession does not enter, the relation of landlord and tenant' is at an end. Surely, however, if the lessee, on the expiration of his term, continues to possess, by the tacit consent of his landlord, he is tenant at will, or at least from year to year accountable for the value of the rent, when the owner may think proper to demand it. But he may lose his right, to the rent, by neglecting to apply for it within six years. On examining the doctrine in Runnington, it will be found to apply merely to leases taken by third persons. Where the lessee parts with the land, if he pays rent, still the statute does not run. This is not the case of lessor and lessee, but of an assignee of a lessee. The decision in 4 D. & E. will be seen to have settled only that *where a person enters [*399] under a landlord, it shall be competent in him to show that the title of the landlord has terminated, and that the landlord himself held by a lease which has expired. [f this had been so, then it might have been shown that Fitch himself held only as lessee. But till shown it cannot be presumed, for in all cases the presumption of law is, that the party under whom the holding is, has a fee. See Stokes v. Berry, 2 Salk. 241. Therefore, unless it be shown to the contrary, it must be taken that Fitch had the fee, and the party continuing in possession held under that fee. Should this be the law, it is asked, what becomes of the statute of limitations? This brings it to the question, whether the statute applies when the possession is not adverse ? The whole of the facts stated by the case, show no more than a holding by sufferance, and, under such circumstances the statute does hot apply. For though 100 years may have elapsed without payment of rent, or any acknowledgment, it is immaterial if the first entry was by the landlords consent, as no tenancy by sufferance is adverse, and in adverse cases only does the statute of limitations run. In Bishop v. Edwards, Bull. N. P. 103,104, the court will find the whole of these positions laid down. As to the reservation of the rent being nominal, the value is immaterial ; a pepper corn would be sufficient to create the relation between landlord and tenant. If this be light, the relation did subsist, provided the son entered under the father, as holding by his title. This is a question of fact, and, as in all other eases, the jury were at liberty to infei either for or against. 'What, then, are the circumstances here ? The father enters into possession under the lessors of the plaintiff, lives in the house, cultivates the land witti his sons, who, in his old age, do so likewise, and on his death, continue in the same course. On this is a disseisin to be supposed? Is it not more reasonable to imagine the sons preserved the tenure, and held as their father had done ? It is said, however, that this could not be, because in such a case the eldest son would have taken. True, had there been a disseisin, because then a fee would [*400] have been acquired. But as the *title to the premises was a chattel interest, it passed to the personal representative, and, therefore, it was properly left to the jury to determine, whether, on the facts of the sale by the administrator, the defendant did not enter under his father’s title. To say that the court and jury ought not to presume on facts, when they all lead to one point, would be an outrage to common sense; it might, perhaps, be thought, that if it was so, notice to quit was necessary. But when the defendant disclaimed to hold under the plaintiff, notice was unnecessary, and, therefore, an ejectment was brought. Admitting the case of Van Dyck v. Van Beuren & Vosburg to be as stated it only shows, there was, from the circumstances, enough to suppose an ouster; but here, the reverse is the fact, and, therefore, we contend the charge and verdict were equally right, and a new trial must be refused.
    
      Hoffman, in reply.
    That a jury may infer from circumstances is not disputed; but then there must he legal evidence of those circumstances before the court. That which Was given was inconclusive ; it rested on hearsay, and ought not to have had any weight with the court. The sale of the premises was merely hearsay, and it is to be observed, that the vendue was of personal estate, as if land was totally out of the question: the lease so much relied on, expired in 1761. Had we then disavowed holding under the lessor of the plaintiff, the statute would have run. Can there be a stronger disavowal, than taking to ourselves the rents and profits for forty years ? After thirty years the law will intend an adverse possession. It is not rea- . sonable that a proprietor, should permit a person to go on for forty years improving, and then set up an old dormant lease, after laying by so long. The jury ought to have been directed to presume an adverse holding, for the instant we are called upon, we assert our own right, and deny that of the lessor. On the grounds contended for by the plain ■ tiff, had the lease been dated on the day of first taking possession of this country by the British, it would have been equally efficacious. The interests of the community require a different doctrine; if for no other reason, the plaintiff ought to *show a title beyond the [*401] lease. Improvements have been made, and this, connected with a forty years’ exclusive enjoyment of rents and profits, ought to have induced from the j udge a charge to the jury, that an adverse possession was a presumption of law, and on which they ought to find.
    
      
      
         Where the copyholder for life, remainder in fee tc another, surrenders the whole estate, (by which he lets in the remainder,) anl takes a new estate to himself and others, it seems a holding over by him, for more than 20 years, would be a bar in ejectment by the remainder-man. Doe v. Read, 8 East, 353. But observe, that in such a case, the copyholder takes under the lord, and paramount the remainderman.
    
    
      
      
        а) Because the tenancy'is held to subsist, the holding over amounting to a tacit agreement that the original contract shall continue, Beavan v. Delahay, II. Black. 8, subject, however, to be determined on regular notice. Right v. Darby, 1 D. & E. 162. Therefore, though the rent bo withheld for more than 20 years, Roe v. Ferrars, 2 Bos. & Pull. 542, or the possession by, or under the tenant endure for 100 years,- it is not a disseisin, nor an adverse holding, upon which the statute of limitations will run; Bull. N. P. 104, because it is in subserviency to, and consistent with, the title of the landlord. On the same principle a receipt of the rents and profits, for more than 20 years, o. an estate the legal title of which is in trustees, for the purpose of'sale, cannot be set up against the trustees, or those claiming under them, if such receipt be consistent with, and secured by, the deed of trust; Keene v. Deardon, 8 East, 248, nor an outstanding title in a third person, by a party who has entered under the lessor of the plaintiff; Jackson v. Stewart, 6 Johns. Rep. 34, nor, after an acknowledgment of tenancy by a defendant, can he dispute his landlord’s title; Jackson v. Vosburgh, 7 Johns. Rep. 186, consequently, an admission by a defendant, that he went into possession under one of the lessors of the plaintiff, is sufficient to entitle to a recovery. Jackson v. Dobbin, 3 Johns. Rep. 228. Whether there be a tenancy or not, is matter of fact for a jury. Jackson v. Vosburgh, ubi sup. Qu. tamen, if it be a deduction from acts done.
    
    
      
      
        Doe v. Lawrence. In this case the lessee who was the defendant, had paid rent to the lessor of the plaintiff.
    
    
      
      
         The case is exactly so.
    
   Livingston, J.

delivered the opinion of the court. This is a motion for a new trial for misdirection of the judge, and because of the verdict being against evidence.

The chief justice charged the jury, that if they believed the defendant held under his father, they should find for the plaintiff, which they did accordingly.

This direction and finding of the jurj were both correct.

When a person enters under another, and transfers the possession, his grantee is supposed to hold under the same title. Although the lease be expired, he will be regarded as holding by consent of the original landlord, and as his tenant at will; unless he can show that since the expiration of it, he has acquired a new title, either from, or paramount to that of the party under whom possession was *taken. Joseph Marshall, the father, it is admit- [*402] ted, held under Pitch. He, therefore, under this rule, would not, on his mere possession, be permitted to prevail against the title of one, acknowledged by himself. The presumption that he continued to hold under Pitch is a reasonable one, nor would it work any hardship to him, as it would not preclude him from showing a better title, when he had continued in so long after the lease' had expired. The possession, therefore, in 1774, when Joseph Marshall died, must be considered as that of Pitch. The next question relates to the proof of the present defendant holding under his father. The testimony was sufficient to go to a jury and we think they have drawn the proper conclusion.

The defendant is not only his son, but ■ the contemporaneous declarations of the vendue master and administrator, although not in the hearing of the defendant, were properly admitted, and unless the defendant produced some other title, would satisfy any reasonable mind that such was the case.

There can then, be no adverse possession; for until 1774, Joseph Marshall did not set up, for aught that appears, any title adverse to that of Pitch, and since that, time twenty years, deducting the period of the British war, have not elapsed. The rule, therefore, for a new trial must be discharged, with costs, and the plaintiffs have judgment.

New trial refused. 
      
       See Failing v. Schenck, 3 Hill, 344; Brant v. Ogden, I J. R. 156; Jackson v. Parker, 3 J. C. 124; Jackson v. Sharp, 9 J. R. 163; Jackson v. Waters, 12 J. R. 365 ; Jackson v. Thomas, 16 J. R. 293; Jackson v. Camp, 1 Cow. 605; Jackson v. Scissam, 3 J. R. 499; Jackson v. Reynolds, and note [1] post, 444.
     