
    [Pittsburg,
    September 13, 1824.]
    BAUDERS against FLETCHER.
    IN ERROR.
    A tenant from year to year, who has been evicted by title paramount, is not liable for rent from the time of the commencement of the ejectment by which he was ousted.
    Writ of error to the Common Pleas of Westmoreland county, in which the following case was stated for the opinion of the court, to be considered as a special verdict.
    On the 7th day of Jlugust 1809, James Fletcher and Frederick Banders, by indenture under their hands and seals, contracted for a lease by Fletcher to Banders, of the property stated in the plaintiff’s declaration in this cause, for the term of three years, commencing on the first day of October, 1,809.
    
      Banders entered on the demised premises, and occupied them during the said term of three years; and afterwards, without any new contract being expressly made, continued to occupy the same property himself, and by his tenants, until the time of bringing this action against him.
    The rent reserved in the lease of 1809, was fifty dollars per annum, and the same not being paid, an action was brought on said lease to May term, 1S14, on the trial of which the claim of Banders for necessary improvements, was submitted to the jury, who found a verdict for the plaintiff for sixty-one dollars and fifty cents, on which judgment was entered, and the money paid.
    A dispute having existed between George Jlrmfriedt and James Fletcher, as to the right to the demised premises, an action of ejectment was .brought by George Jlrmfriedt against Frederick Banders, and James Fletcher, to May term, 1814, in the Court of Common Pleas of .said county; at the trial of which, on the twenty-third day of Jlugust, 1816, in the said court, a verdict was found for the plaintiff, on which judgment was rendered. A writ of error having been sued out thereon, the judgment of the Court of Common Pleas was affirmed in the Supreme Court on the seventh day of September, 1818, and an habere facias posseSsionem and a fi. fa. for costs issued in the Court of Common Pleas, to November term, 1818.
    The bond taken on the last mentioned writ of execution, was assigned by the sheriff to George Armfriedt, the plaintiff therein named, and judgment entered thereon at November term, 1818, against Bauders and Fletcher, the obligors. A fi. fa. issued to February term, 1819, and a levy was made by virtue thereof on the property of James Fletcher, an inquisition held, and the property condemned. A Fend. Exponas issued to May term, 1819, which . was returned, not sold for want of buyers.
    An Alias Fend. Exponas to August term, 1819, was returned; sold; and the costs of the said proceedings in.the action of ejectment, and on the bond, were paid out of the proceeds of said sale.
    
      Bauders, the defendant, on the 23rd April, 1818, purchased the said lands and tenements from the said George Armfriedt, whose title thereto commenced by a warrant dated 12th November, 1811, and was consummated by a patent of the 14th August, 1814.
    If on the above facts the court shall be of opinion, that the plaintiff is entitled to recover, their judgment shall be entered for him, for the sum of one hundred and fifty dollars damages and costs; otherwise judgment for the defendant.
    
      Coulter, for the plaintiff in error,
    contended, that the Court of Common Pleas erred in giving judgment for the plaintiff below, because the defendant was liable to the real owner of the land, in an action for mesne profits.
    2. Because the consideration of the contract had failed.
    
      Alexander, contra.
   The opinion of the court was delivered by

Duncan, J.

The recovery in ejectment by Armfriedt, against Bauders, the tenant, and Fletcher, the landlord, was equivalent to actual eviction; the plaintiff in ejectment, who recovers a judgment, may enter without writ of possession.

As the landlord was a party to the ejectment, the recovery could not be intended to be by collusion, and Armfriedt recovered in contemplation of law the actual possession.

The doctrine so justly settled, that the tenant shall not in any case dispute the title of landlord, is founded on immutable principles of justice, , Where one is in possession as tenant of A., and he takes a conveyance of an adverse title, this is covinous, and the law will avoid it. Our act of assembly giving the landlord a summary relief, is founded on this, and will not suffer the tenant to set up an' out-standing title, or one which he has acquired since his lease, unless it is under the lessor. Here certainly the continuance in possession by Banders after the expiration of his term, was a tacit renovation of his contract, and he became tenant from year to year, on the terms of the indenture. Fletcher might have maintained an action for the use and occupation, and given the lease in evidence, to ascertain the rent.

But this ejectment was brought to May 1814, and to the same term, another action for rent was brought, and a recovery of the rent had, up to that time. In an ejectment by landlord against the tenant, the tenant may show that the landlord’s .title has terminated. Does the purchase by Banders of Mmfriedfs title, alter the state of the parties with regard to the rent? For though h© acquired that title, still he would be accountable in an action for the mesne profits, and the verdict and judgment in ejectment, would be conclusive from the time the writ issued. Banders called in his landlord to defend, and the landlord has defended. During the pendency of this ejectment, Mmfriedt’s right to mesne profits is conclusively established by the verdict. The obligation of landlord and tenant, and their relative duties correspond. The stipulation is mutual. The tenant, that he will pay the rent during the term, the landlord, that he still make good the premises, or be liable to make satisfaction, if he do not. It is a contract between them for the possession and profits of land, on the on© side, and a recompence by rent on the other. 4 Bac. Mr. 1.

Now as it is clear, that Mmfriedt has conclusively established his right to the mesne profits, and as clear, that if they were recovered, Fletcher would be responsible to Baude?'S, it would be an idle circuity of action to require the actual commencement of the suit, and recovery by Mmfriedt, to enable him to recoup. The judgment and verdict in the ejectment, I would consider to operate asan eviction from the time of the commencement of the ejectment. Banders; as the fact showed, was justifiable in retaining the rent, as the eviction established, that- Fletcher had no right to receive it.

I distinguish this from the case of a lease for a certain time, where it would seem, that notwithstanding an eviction by title paramount, the tenant should pay the rent that became due before the recovery, because of his express covenants ; but here the renovaion is only an implied contract; the action would be assumpsit.

Judgment reversed.  