
    [Philadelphia,
    Saturday, December 21, 1811.]
    The Lessee of the Mayor, Aldermen and Citizens of the City of Philadelphia against The President, Directors and Company for erecting a Permanent Bridge over the River Schuylkill.
    A leased a lot of ground to B for three years, and B covenanted to deliver up possession at the end of the term; it being agreed that the possession held by B should have no effect upon the right of either party, there being a controversy between them about the title. The possession not being delivered up A brought ejectment; and the parties then agreed that the.title should be tried in the suit, and that if the court should think the right of possession was in A, he should have all the .advantages of actual possession.
    
      Held, that this agreement authorized B, notwithstanding the lease, to show that he had a better right to the lot than A.
    This was an ejectment for a lot of ground in the city of Philadelphia adjoining the site of the Schuylkill Permanent Bridge. The plaintiffs on the 31st December 1800, made a lease of the lot in question to the defendants for three years, at which time it was known’that the defendants claimed title under an act of assembly of 4th April 1799; and it was in consequence of this circumstance covenanted in the lease, that the possession should be restored to the plaintiffs at the end of the term, and that the possession to be held by the defendants should have no effect on the right of either party, *which it was the wish and intention of both to decide by a legal trial.
    The possession not having been delivered up, this action was brought to March term 1806; and on the 17th of that month the following indorsement was made upon the declaration, and signed by the attorneys of both parties:
    “Disagreed that the president, directors and company for erecting a permanent bridge over the river Schuylkill at or near the city of Philadelphia, shall appear to this suit, enter into the common rule, and plead non cul. That the title to the within lot and premises shall be tried under this declaration; and further, that if the court shall be of opinion that the right of possession of the premises is in the mayor, aldermen and citizens, they shall have all the advantage in the trial of the cause by a jury or otherwise which would result to them from actual possession.”
    Upon the trial of the cause before Brackenridge J. at Nisi Prius in November last, the plaintiff having read the lease' before mentioned, rested his case. The defendants then offered to give evidence of title by reading two acts of assembly, one of the 27th November 1779 vesting the estates of the late proprietaries in this commonwealth, and the other of the 4th of April 1799 vesting in the defendants the right and title of the commonwealth to the lot in question, and giving them very summary powers to obtain possession. To this the plaintiff objected, upon the ground that the defendants should not be permitted to contest the title of their landlords ; but his Honor being of opinion that they might do it under the agreement indorsed upon the declaration, a nonsuit was entered by consent, to be taken off, if the court should be of a different opinion upon this point, which was accordingly reserved.
    
      Meredith and Ingersoll for the plaintiffs
    now moved to take off the nonsuit. They argued that the defendants could not dispute the title of the city, because they had taken a lease from the corporation, and originally derived from it the possession which they now held. Lessee of Galloway v. Ogle, 2 Binn. 468. This could not be denied upon general principles *and the agreement on the declaration did not alter the case. The real intention of the agreement could not well be ascertained, the gentleman who signed it on behalf of the corporation, not being now present to explain. It must, therefore, receive-such construction as the legal import of the terms calls for. The title it is said was to be tried in this action. But this action is merely possessory, and, therefore, a possessory title was sufficient for the city. In fact it was all the city relied on, in opposition to the alleged grant from the state; and, therefore, to suppose that this was waived, was to suppose that the agreement had given away the cause. In the common -case, the defendant in ejectment always agrees to rely on title merely; and yet if he stands in the character of tenant, he cannot controvert his landlord’s title. Title in ejectment includes possession and the right of possession as much as the right of property, and more.
    The right of possession, it is also said, must be found in the city, or they could derive no advantage from the ejectment. Time, but as against these defendants, the city by the mere exhibition of the lease proved a right of possession ; and as the proof of this right was to be attended by all the advantages of actual possession, it follows that they were entitled to a verdict that would give them actual possession.
    
      Rawle and Lewis for the defendants.
    By the plaintiff’s argument the agreement proves nothing; for if the city had the title to the fee, then of course they were to recover, and if they were entitled to the possession merely, then they were to recover also.; or in other words, the agreement was to leave the matter just where it found it. But the history of the case shows the meaning of the agreement as well as the terms made use of.
    By the act of 4th April 1799 the defendants were invested with a summary mode of getting possession, and putting the adverse party to his ejectment. This mode was waived by the defendants in order to try the title in this suit. They were not in fact bound to appear to this declaration; and therefore they made their appearance conditional.
    The agreement is that the title shall be tried. If- this means any thing, of course it means more than the possession, or the agreement would not have been made. The last *part of the indorsement however explains it most fully. If the city was found to have the right of possession, then it was to have the same advantages as if in actual possession, or in other words as if the corporation defended, and the bridge company were plaintiffs. The company must then have shown a better right, and that is what they were proceeding to do. The corporation lost nothing by it, for they were placed in the same situation, as if they had been put in possession, and the ejectment had been brought against them.
   Tilshman C. J.

The plaintiffs made a lease for three years of the lot in dispute, to the defendants on the 81st of December 1800. At the time of making this lease, it was known that the defendants claimed the property of the lot by grant from the commonwealth, under an act of assembly, passed 4th April 1799. Both parties expected that the title would be decided by a law suit, and therefore although the plaintiffs were willing to part with the possession for three years, yet they took care to insert a covenant, that the possession should be restored to them at the end of the lease, and that the possession to be held by the defendant under the lease should have no effect on the right of either party, which it was the wish and intention of both, to decide by legal trial. In pursuance of this intention, an amicable ejectment was brought to March term 1806, and the following agreement was indorsed on the declaration. [The Chief Justice then read the agreement.]

At the trial the defendants offered to show their title under the commonwealth,to which the plaintiffs objected, insisting that the defendants having come into possession under the lease before mentioned, ought not to be permitted to contest the title of their landlords. The judge before whom the cause was tried, was of opinion that the defendants might show their title, upon which it was agreed that a nonsuit should be entered, and the point reserved for the decision of this court. The question depends on the agreement indorsed on the declaration, for independent of that agreement, it is very clear that the defendants should not have been permitted to dispute the title of their landlords, especially after the covenant which I have mentioned in the lease. If the plaintiffs’ instruction be right, the agreement answered no purpose whatever. It left the parties just as it found them, that is to say, the plaintiffs either with or without the agreement would have been sure of a recovery in the ejectment. But such does not appear to have been the intent of the parties. The object of the agreement was that the right should be tried, but that the defendants should derive no benefit from the possession ; on the contrary, that the plaintiffs should have all the advantages arising from actual possession. But what is the advantage arising from possession ? It. is this, that the adverse party shall be obliged to show a better right.

The defendant in an ejectment may stand upon his possession, until the plaintiff shows a better right. Ou this principle, the plaintiffs would have been called on to show their title. But the agreement reversed the usual course of proceeding, and entitled the plaintiffs to a recovery, unless the defendants showed a better title. This construction insures to the plaintiffs all the benefit of the covenant in the lease, and indeed gave them every thing they could wish. It would have answered no purpose to obtain the possession, and be immediately involved in a new suit, in which the right must be investigated. The sooner they came to the point the better. Indeed the plaintiffs gained an advantage by this agreement, because had the possession been restored to them, and then the bridge company brought an ejectment, the mayor, aldermen, &c., would have been subject to inconvenience from particular provisions in some of the acts of assembly under which the bridge company derived title. I am therefore of opinion that the nonsuit was properly entered.

Yeates J.

The sole question in this case arises on the true construction of the agreement, indorsed on the ejectment, filed 17th March 1806. And I have no doubt that the judge who sat on the trial at Nisi Prius, assigned the true meaning to that instrument.

• It was expressly agreed, that the title to the premises in dispute, should be tried under the declaration, and that the mayor, aldermen and citizens, should have all the advantages in the trial, which would result to them from actual possession, if the court should be of opinion that the right of *possession was in them. Taking the whole together, the import of the expressions made use of, is obvious. The city corporation had leased the ground to the company for three years, ending the 1st January 1804, under the annual rent of 150 dollars, and possession was to be delivered up to the former on the expiration of the term ; but it was stipulated that the lease should not affect the right or claim of either of the parties. When the lease was executed, the bridge company possessed all the rights of the commonwealth, under an act of the. legislature passed on the 4th April 1799. I construe it then thus. The bridge company was to admit the actual possession of the premises, to be in the mayor, aldermeu and citizens, on the trial; but the title thereto was to be tried. Actual possession, and the right of possession, are distinct subjects; the latter was submitted to the opinion of the court. The instrument in my idea, is susceptible of no other meaning. If the former relation of landlord and tenant was supposed to exist between the parties, or to draw after it the legal consequences, it is clear that the decision must necessarily be in favor of the lessors of the plaintiff; and though the title of the defendant were ever so good, it could not be investigated. There could be no mutuality in such an agreement; and such a construction would defeat the plain expressions of trying the title.

I am therefore of opinion, that the motion to take off the nonsuit be denied.

Brackenbidse J. was of the same opinion.

Motion denied.  