
    Pederick against Searle.
    
      Tuesday, June 14.
    Acceptance of a lease for a small part of atract of land, does not estop the defendant in ejectment from controverting the plaintiff's title to the residue of the tract.
    A continued adverse posession for 21 years gives a title to land, which is valid not only by way of defence but sufficient to recover upon in ejectment.
    It is no objection to such title, that after the 21 years had expired, the premises,were recovered against such party in ejectment.
    Nor is it material, whether such recovery in ejectment was by default, verdict, or confession.
    In ERROR.
    ERROR to the Court of Common Pleas of Luzerne COUnty.
    
      William Searle, the plaintiff' below,
    gave in evidence a complete title from William Moore, who took up the land in dispute by warrant, dated 1st July, IT84, through various persons down to himself. The title was derived through r . ° Samuel Dewitt and Philip Heermans. I he plaintiff, moreover, gave in evidence the record of an ejectment in the name of Samuel Dewitt against the defendant, Benjamin Peu ' ** derick, and one William Britton, in which judgment was entered by confession 3d April, 1815, and a habere facias possessionem having issued, returnable to August Term, 1815, the sheriff returned, tha$ he had delivered the possession to 
      Philip Heermans, in whom the title of Dewitt was then vested. It was proved, that after the delivery of possession to Philip Heermans, in April, 1815, he leased the mansion-house, and a small lot of land adjoining it, to the defendant for the term of one year. The defendant wished to take a lease of the whole tract, but Heermans refused it. After the plaintiff had given this evidence, the defendant offered to give evidence, “ that he had entered upon the tract of land in dispute, and commenced an improvement on it, in the month of February, in the year 1792, and had resided on it with his family continually from that time to the time of trial; that he had built a house and barn, cultivated the land, raised grain, &c. and made it the place of his residence and support for himself and his family, and that he had fields improved and within fence more than 21 years before the bringing of DewitPs ejectment, which fields were not included in the lease from Philip Heermans to the defendant, but were part of the land claimed by the plaintiff in this ejectment.” To all this evidence- the plaintiff objected, and the Court were of opinion, that the objection was good, and they rejected the evidence. This opinion was excepted to by the defendant.
    
      Greenough, for the plaintiff in error.
    This land was out of the seventeen townships, and therefore is not affected by the act suspending the act of limitations as respects lands in those townships. The question really is, whether the defendant, because he has lost the land in one ejectment, may not contest the plaintiff’s claim in a second ejectment. In 1815, there was a recovery against the defendant, and possession was delivered. The defendant afterwards re-entered into the possession of a part, for which this ejectment is brought against him. A recovery in ejectment does not decide the title. It is evidence of title in a second ejectment, but not conclusive. The evidence offered by the defendant was of a title under the act of limitations, prior to the first ejectment. Twenty years adverse possession is a positive title to the defendant; it is not a bar to the action or remedy of the plaintiff only; but takes away his right of possession. Taylor v. Horde.
      
       In Stokes v. Berry,
      
       it was ruled by Holt C. J., that twenty years possession is a good title in ejectment for the plaintiff as well as the defendant; and. it is there said'to be like a descent which tolls entry and gives a right of possession which is sufficient to maintain ejectment, though the possession may have been interrupted after twenty years possession. We admit, that ■we cannot defend ourselves for the part for which the defendant accepted a lease. It can make no difference, that the recovery in the former ejectment was by the defendant’s confession. It was decided in the Lessee of Steinmitz v. Farley, at Sunbury, June Term, 1818, that a recovery by confession in ejectment is no bar to a second ejectment brought by the former defendant.
    
      Hall, contra..
    The plaintiff purchased on the faith of the judgment against the defendant, the result of his own con-, fession of title. We contend,
    1. That the defendant’s title under the act of limitations was defeated by the first recovery, and the delivery of possession under it. This delivery of the possession to the plaintiff broke the continuity of the defendant’s possession.
    2. The tenant cannot resist the title of the landlord. Galloway v. Ogle, 
      
       In Hamilton v. Marsden, the same principle is laid down as applying to all cases except where the lease is attended with circumstances of force or fraud. One in possession who covenants to purchase from another is estopped from disputing the title of the covenantee. Jackson v. Ayres.
      
       So a person who has entered by permission of one tenant in common, cannot set up a title adverse to the other. Jackson v. Creal. One who comes into possession by the permission of another, as was the case here with the defendant, is bound to surrender it, and is es-topped from claiming under an adverse title in a third person. 4 Johns. 210. 6 Johns. 34. 7 Johns. 157. 12 Johns. 427. 13 Johns, 120. The evidence offered was not relevant, and therefore was properly overruled. 1 Sm. L. 180. It is clear, that the defendant kept possession by a trick; in fact he came'into possession altogether under the plaintiff.
    
      Greenough, in reply,
    was,stopped by the Court.
    
      
       1 Burr. 119.
    
    
      
       1 Salk. 421.
    
    
      
       2 Binn. 468.
    
    
      
      
         6 Binn. 45.
    
    
      
       14 Johns. 224.
    
    
      
      
         13 Johns. 116.
      
    
   The opinion of the Court was delivered by

Tilghman C. J.

Two reasons are given for the rejection of this evidence. 1. That the defendant having accepted a lease, was estopped from controverting the title of his landlord. 2. That the defendant having confessed judgment in Dewitt’s ejectment, and possession having been actually delivered to Philip Heermans, who afterwards conveyed to the plaintiff, the continuity of the defendant’s possession was broken, and therefore his title under the act of limitations was destroyed.

1. If the Court perceive, that the evidence offered is not relevant, they have a right to reject it; because, if given, it might perplex the jury, and it could answer no good purpose, as the Court would be bound to instruct the jury, that in point of law it was of no avail. If, therefore, it had been clear that the defendant had accepted a lease from Heermans of the whole tract in dispute, the evidence offered by the defendant might have been rejected as irrelevant, because, the law is settled, that a man who has accepted a lease must deliver up the possession to his landlord, and shall not be permitted to controvert his title in an ejectment. But in this case, the defendant had accepted a lease for only a very small part of the disputed land j not much more than a single acre out of 400 acres. The rule of law, therefore, would not attach as to the land which was out of the lease, and as to that which was within it, the defendant does not pretend to controvert the plaintiff’s title. But the plaintiff’s counsel now say, that although no more than a small part was included in the lease, yet the defendant occupied the residue of the tract, by permission of the plaintiff. Possibly it may be so, and in that case, the defendant would be estopped from controverting the title; but certainly that is a fact by no means clearly appearing; it is not matter of law, and therefore the defendant had a right to insist on its being decided by the jury. All that the Court could do, would be to instruct the jury what the law wás, in case the jury should find, that the whole tract was occupied by permission of the plaintiff, or of Heermans under whom he claimed.

2. A judgment in an ejectment is evidence, but not conclusive evidence of title, in a second ejectment for the same land, between the same parties. The reason of its not being conclusive, arises from the form of the proceedings. A different title is set forth in the second action from that in which the plain- ' tiff recovered in the first. But the plaintiff ’s counsel rely on the circumstance of Dewitt’s judgment being entered by confession. That is immaterial. A judgment by confession has no more efficacy than a judgment by default, or on a verdict. This was decided by us, here, at the last June Term, in the case of Steinmetz’s lessee v. Farley. Let us consider then, the force of the other reason urged by the plaintiff; that the possession having been delivered to the plaintiff by virtue of a recovery in a court of justice, the act of limitations was thereby avoided, because the continuity of the defendant’s possession was broken. If the continuity of possession had been broken, before the expiration of 21 years, the period required to give effect to our afct of limitations, the argument would have been good. An entry within the 21 years, destroys the efficacy of all prior possession, so that to gain a title under the act of limitations, a new adverse possession for 21 years must be had. But in the case under consideration, the defendant offered to prove, that he had adverse possession for more than 21 years, before the commencement of the former ejectment. If he had proved this, it would 'have constituted a title sufficient to recover. For the right of possession is acquired by 21 years possession, and this right is not only sufficient to support a defence, but is a positive title, underjwhich one may recover as plaintiff in ejectment. This was the very point decided in Stokes v. Berry, 1 Salk. 421. Why then was not the defendant’s evidence received ? The judgment in Dewitt’s ejectment was no bar to this evidence, although it might have been used by the plaintiff as evidence contradictory to the defendant’s title by the act of limitations. There have been two decisions in the Supreme Court of New York, very applicable to the present subject, which strengthen the opinion I had formed in considering this case upon principle. In Jackson v. Haviland, 13 Johns. 229, the case was, that A, obtained judgment by default in an ejectment against B, but did not take possession. Having suffered the term laid in the declaration to expire, and the possession of the defendant being continued without interruption, so that the whole time, in-eluding that which elapsed after the judgment, amounted to 20 years, it was held that B, might defend himself under the statute of limitations against a second ejectment, although A's right of entry was established by the judgment, and he might lawfully have entered without a writ of possession. In the other case, (Jackson v. Dieffendorf, &c. 3 Johns. 267,) the plaintiff obtained judgment by default in ejectment, and afterwards took possession by virtue of the judgment. The defendant then brought his ejectment against the former plaintiff, and it was decided, that he might recover on proving 20 years adverse possession prior to the commencement of the first ejectment. Now the same title which is sufficient for a man to recover on, must certainly be sufficient to defend himself by. The defendant in the present case should, •therefore, have been permitted to give the evidence which he offered. I am of opinion that the judgment should be reversed, and a venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  