
    [Pittsburg,
    September 19, 1826.]
    MILLER against M‘BRIER.
    IN ERROR.
    If the plaintiff in ejectment, claims both on an original title and by virtue of a lease from him to the defendant, it is competent to the defendant to defend on both grounds; and it is error in the court to assume the existence of the lease, and prohibit the defendant from showing that the title is not in the plaintiff, but a third person.
    A tenant may impeach his landlord’s title, whenever he can show that he was induced to take a lease by misrepresentation and fraud.
    An agreement by a person in possession of land, to abandon the premises at a certain day, is not a lease, and does not estop him from controverting the title of the person with whoni the agreement was made.
    Error to the Court of Common Pleas of Westmoreland county, in an ejectment by Nathaniel M'Brier, the defendant in error, against Jesse Miller, the plaintiff in error •
    The plaintiff below claimed the land in dispute under an application dated the 4th of April, 1769, in the name oí John Fleming, a survey thereon, dated the 25th of June, 1772, and a patent to the plaintiff, dated the 29th of December, 1814, which recited a deed to him from John Fleming, dated the 18th of October, 1814.
    It appeared from evidence produced by the plaintiff, that the defendant had been in possession of the land in dispute for the space of twelve or fourteen years before the institution of the action, and had made improvements upon it. The plaintiff produced his patent to the defendant, and it was agreed, that it should be determined by referees what compensation the defendant should receive for the improvements he had made. The referees made no award, and the defendant received no compensation for his la-bour.' But an agreement was entered into, which the plaintiff alleged to be a lease, by which it was stipulated that the defendant should occupy the premises until the 1st of Jlpril, IS 16, and then give peaceable possession of them to the plaintiff. The defendant was_ afterwards asked by the plaintiff, at what time he intended to leave the place; to which he replied, that he was not ready then, but if he would give him nine or ten days, he would be ready.
    'The defendant offered in evidence the deposition of John flSk* nough, the object of which was to show that John Fleming, who originally located the land under the application given in evidence, was at so advanced an age, in the year 1769, that his death, before the title set- up by the plaintiff had accrued, might be fairly presumed by the jury, and that therefore the patent had been surreptitiously obtained. The plaintiff’s counsel objected to the evidence. The court rejected it, and sealed a bill of exceptions.
    The defendant then offered a witness to prove that the plaintiff had procured him to draw a deed poll for the land in dispute from a person who was not the owner of it; and that, upon the deed thus executed he obtained the patent which he gave in evidence. He further offered to prove that John Fleming, the original owner of the application,, had been dead upwards of thirty years before the trial of the cause. To all this evidence the plaintiff’s counsel objected; and, the court having rejected it, exception was taken to their opinion.
    In charging the jury, the court below said, “It is possible the plaintiff may have imposed upon the state, or rather upon a certain John Fleming, or his legal representatives; but of this you have no testimony. If, in rejecting what was offered on this subject, we have been mistaken in point of law, the defendant has a remedy in a higher tribunal, and we shall be happy, in that case, to have our error set right. There is certainly no testimony of any direct fraud or imposition of the plaintiff on the defendant at the time of the execution of the contract of lease. There may have been fraud, but there is no proof of it at this time. It is not to be presumed on slight grounds; still less on mere surmises, without any pregnant circumstances to support it. But even if the fraud did exist, and had been fully proved, it is one which principally affects another person or persons, and not the defendant. The defendant having voluntarily placed himself as a tenant, and acknowledged the title of the plaintiff, whatever it was,.or may hereafter turn out to be, his term having expired, and he having, after its expiration, asked for further time, which was granted, he ought not now to be allowed to call the plaintiff’s title sn question.” The plaintiff’s counsel excepted to this opinion of the court.
    
      Foster, for the plaintiff in error.
    1. The deposition of John Menaugh tended to show, that the defendant, who was a settler on the land in dispute, was induced to recognize the plaintiff’s title, in consequence of his false representation that he was the real owner. It ought, therefore, to have been received in evidence.
    ■ 2. The evidence offered, to prove that the plaintiff had a deed executed by a person who was not the owner of the land, and that unon that deed he obtained his patent, would, have clearly established a fraud, and ought to have been admitted.
    3. The rejeetion of evidence of the death of John Fleming, the real owner of the location, long before his supposed deed poll bore date, was wrong; upon the same principle.
    4. There was error in the charge of the court below, that although the agreement between the plaintiff and defendant was without consideration and fraudulent, it was binding on the defendant. The agreement was not a lease, and did not create a tenancy, — to constitute which, there must be a render of rent or service. But, if it was a lease, the defendant is not estopped by it. A tenant or lessee may controvert the title of his lesssor, if the lease was obtained by force, fraud, or any unfair means. 2 Bl. Com. 41,59. 4 Binn. 283. 2 Binn. 468. Hamilton v. Marsden, 6 Binn. 45.
    
    
      Alexander and Coulter, for the defendant in error.
    Nothing can be more clear, than that a tenant cannot dispute the title of his landlord. Banders v. Fletcher, 11 Serg. & Rawle, 420. If, indeed, the lease be fraudulently obtained, the title may be controverted. But there was no fraud in making or procuring the lease in this case. The offer only was to prove, that the plaintiff obtained his patent upon a forged deed; a circumstance which did not affect the defendant, who had recognized that title.
    It is immaterial whether the agreement was a lease or not. It was a writing under seal, by which, in consideration of the improvements he had made upon the land, the defendant was permitted to retain the possession for a limited time, and then give it up to the plaintiff. No consideration was necessary, because the agreement was a sealed instrument. But if a consideration was necessary, the permission to enjoy the land until the next spring, and have the crop in the ground, was a sufficient consideration. He ought to be compelled to keep his faith by performing his 'contract.
   The opinion of the court was delivered by

Gibson, J.

These bills of exception all depend on the supposed eonclusiveness of what I shall for the present call the lease. That a tenant cannot deny, his landlord’s title, is certain; and, by an application of this rule to the circumstances of the case, the court excluded the evidence with which the defendant offered to impeach an original title, with which also the landlord set out. Where a landlord shows no title, but asks to be restored to the possession with which he parted, good faith requires it should be redelivered to him, it being no answer to say he is not the owner of the land. But where, as in this case, hé claims on the separate grounds of original title, and as having parted with the possession pursuant to a lease, the defendant will be permitted to' meet him separately on each. Here the plaintiff showed an office title, apparently sufficient to entitle him to the land. He also showed an agreement, said to be a lease, which, independently of his office title, entitled him, as he said, to the possession; and the court, assuming the existence of this agreement as a valid lease, prohibited the defendant from showing that the office title was not in the plaintiff, but a third person. It is plain, therefore, that the defendant may have been exposed to the office title'with his hands bound, although he may have succeeded in disproving the existence of the lease to the entire satisfaction of the jury; and thus, for the purpose of excluding one branch of the defence, the court assumed the very fact that was put in issue by the other.

It appeared, from the plaintiff’s own evidence, that previous to the execution of the agreement called a lease, he had exhibited to the defendant and others his office title, consisting of a patent, in which is recited a location and conveyance from the person who had taken it out; and the defendant then offered to prove that this conveyance was a forgery, and that the patent was procured by fraud and surprise. Now, beside that what has just been said is equally applicable to this point, there is another reason why the evidence was indisputably competent. A tenant -may impeach his landlord’s title, whenever he can show that he was induced to accept of the lease by misrepresentation and‘fraud; and the exhibition of a title founded in forgery, to induce a person already in possession to accept of a lease, is an act whose character is too unequivocal to be doubted. The evidence, therefore was admissible to show that the agreement was procured by imposition and deceit. -

But I cannot discover in this agreement a single feature of a lease. It contains neither words of demise, nor reservation of rent, nor any other part of a regular lease. These ingredients, no doubt, are not essential, it being sufficient if it appear to havejbeen the intention of the lessor to dispossess himself of the premises, and of the lessee to enter pursuant to the agreement. 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 estop-pel. It will be perceived, therefore', that the foundation of the whole fails.

Judgment reversed, and a venire facias de nova awarded.  