Wilson v. Sale , 41 Pa. Super. 566 ( 1910 )

Opinion by

Rice, P. J.,

In this action of replevin the defendant Sale filed an affidavit of defense on behalf of the other defendant as well as himself, in which he admitted the taking of the goods by virtue of a warrant of distress issued by him to the other defendant, a constable, for the collection of rent alleged to be in arrear under a lease to the plaintiff, in which George T. Sale, agent for Alma V. Anderson, owner, was described as lessor. The premises were described as “all that certain piece of ground consisting of about fifty acres and having thereon dwelling and out-dwellings, situate at the corner of Cottman Street and Castor Road, the same being a portion of the Ward farm.” On the trial of the case the plaintiff testified, under objection and exception, that prior to the execution of the lease Sale, at his request, went with him to the land at the corner of Cottman street and Castor road and pointed out to him the bounds of the Anderson portion of the Ward farm intended to be embraced in the lease. The plaintiff was corroborated by other witnesses who were present at the execution of the lease. Indeed it is an undisputed fact that the land which the plaintiff went into possession of under the lease was the land which Sale pointed out and represented to him before and at the execution of the lease as the land he was leasing. The plaintiff continued in the occupancy of the premises and paid the rent for two years and more, when one Charles F. Kindred notified him that sixteen acres of the tract belonged to him, charged the plaintiff with being a trespasser and brought an action of trespass against him. The defendant being notified by the plaintiff of Kindred’s claim and suit replied: “To tell you the truth I do not know where Anderson's ground is myself.” Thereupon the plaintiff vacated the land claimed by Kindred, and on the trial of this case the fact of Kindred’s paramount title to the sixteen acres was conclusively established. It was also shown .that this was the most valuable part of the demised premises, but no evidence was introduced by the defendant from which the proportionate relative value of the premises of which the plaintiff retained possession could be ascertained. The distress was for an entire quarter’s rent which by the terms of the lease accrued subsequently to the plaintiff’s vacation of the sixteen acres under the circumstances above stated.

One instance of a breach on the part of a lessor of the implied covenant for quiet enjoyment is where the lessee is lawfully evicted through a defect in the lessor’s title by one having title paramount to the lease. Physical expulsion by force or legal process is not always necessary to enable the lessee to'plead the breach. In Brown v. Dickerson, 12 Pa. 372, it was held that a covenant for quiet enjoyment is broken by a sheriff’s sale under a paramount legal incumbrance, although one of the assignees of the covenantee purchases the property and there is no other ouster. So in Ross v. Dysart, 33 Pa. 452, it was declared: “ Nor is it necessary for the tenant to be actually removed from the premises to give him a good defense against rent. Writs of habere facias possessionem are well executed when the tenant attorns to the plaintiff therein. And the taking of a lease or contract of purchase under pressure of such writ, where there is no fraud or collusion, is an actual eviction in law, which dissolves the relation between the tenant and his original landlord.” It requires no undue extension of the principle of these cases to apply it where, after hostile assertion by a third person of a paramount title, particularly by suit brought, the lessee without fraud or collusion yields thereto and on the trial of the issue between him and the landlord proves that the third person had title paramount : Jackson & Gross on Landlord and Tenant, sec. 1009, citing Greenvault v. Davis, 4 Hill (N. Y.), 643; Hamilton v. Cutts, 4 Mass. 349.

But it is argued that the plaintiff could not set up the eviction as a defense to the rent or any part of it because the Anderson and Kindred deeds were on record, and many cases are cited to show that a recorded deed is constructive notice to those who are bound to search for it. The principle would be. applicable in a dispute between the plaintiff and Kindred,. but not to annul the lessor’s positive representations as to the location of the demised premises and the covenant of quiet enjoyment. The lessee had a right to rely upon these and was not in duty bound to search the record to ascertain whether the lessor had a good title. If the evidence would have justified a finding that the lessee accepted the lease with actual knowledge of the title and at his own risk the.case might have been different: Kemble Coal & Iron Co. v. Scott, 90 Pa. 332; Same v. Same, 15 W. N. C. 220. But there was no evidence which would have warranted the submission of that question to the jury. .

Complaint is made of the admission of evidence of what took place between the parties immediately before and at the execution of the lease, but there is no well-founded objection to this evidence. Upon reading the description in the lease it will be seen that the evidence did not contradict or alter the written agreement between .the parties, and it was admissible under the well-established rule that parol evidence may be given to explain a written agreement, so far as to give locality and identity to the subject-matter, and apply the contract to it: Bertsch v. Lehigh Coal & Navigation Co., 4 Rawle, 130; Ranney v. Byers, 219 Pa. 332; Boice v. Zimmerman, 3 Pa. Superior Ct. 181. Many other cases wherein the principle has been recognized and applied might be cited, but it is unnecessary. Nor was the evidence inadmissible upon the ground that it was not preceded or followed by evidence that Mrs. Anderson authorized or knew of the representations made by Sale. “The. general rule that a principal ig responsible for the misrepresentations of his agent within his authority, is beyond question, and the better opinion is that as to third persons, affected by his acts or words, it is the apparent scope of his authority, and not his actual instructions, that must govern. That is the. basis on which the business of the world in the present day is transacted, and the rule should be enforced in a liberal spirit, with regard to the actual habits of the community. That an agent who is empowered to engage a real estate broker to make sale of a country seat, is thereby authorized to give the broker a description of the place, including its acreage, is so clear, that the learned judge would have been justified in submitting the point to the jury in terms much stronger against the defendant below than he did:” Griswold v. Gebbie, 126 Pa. 353. The principle of that case is applicable here. Moreover, there was payment and acceptance of rent for a considerable length of time, while the plaintiff was in the open and visible occupancy of the land he had been put in possession of. The contention that the plaintiff must go on paying the entire rent reserved, notwithstanding he was evicted from the most valuable portion of the land demised, and that his only remedy is by an action of deceit against Sale, cannot be sustained in view of all the evidence.

It might be said, although the point has not been argued by appellant’s counsel, that as the- plaintiff retained possession of a portion of the demised premises he would be liable for a proportionate part of the rent at least. This might be so in an action for use and occupancy, but we think such liability cannot be enforced in this action where distraint was made for the entire quarter’s rent, and where it appears that the plaintiff has been evicted from the most valuable part of the demised premises by a paramount title, and where there is no evidence furnished by the lessor from which the jury could ascertain the proportionate rental value of the premises retained by the plaintiff.

Upon the whole case we are of opinion that the judgment was properly entered for the plaintiff. The assignments of error are overruled and the judgment is affirmed,