Majority
p. 223*Jackson ex dem. Southampton, Ann, his Wife, and others, against Cooly.
Headnote
Evidence of an agreement for a lease between the lessor in ejectment, and the person in possession, is not sufficient to enable the plaintiff to recover the possession, when there is no proof that any lease was ever executed, or rent paid, and the tenant claimed to hold adversely.This was an action of ejectment. The cause was tried at the Montgomery circuit, in June, 1800, before Mr. Justice Radcliff. A verdict was taken for the plaintiffs, subject to the opinion of the court, on the following case.
The heirs of Sir Peter Warren, were three daughters, to wit, Ann, married to Lord Southampton, the lessors, Charlotte, married to Lord Abingdon, and Susanna, married to General Skinner. All the heirs resided in Great Britain during the American war. General Skinner and his wife both died subsequent to the year 1775, and during the war, leaving an only child, a daughter, since married to Lord Gage.
A witness for the plaintiff testified, that the defendant was in possession of the premises in 1763, and in 1767, agreed with the witness, as agent for the heirs of Sir Peter Warren, to take a lease of the premises in question from the heirs, for twenty-five years, at the annual rent of one shilling per acre ; but the witness did not know that any léase had ever been executed, or any rent paid.
The defendant denied the title of the lessors, and produced in evidence an exemplification of letters patent for the premises in question, dated the 29th August, 1735, by which they were granted to Charles Williams and six others, and their heirs and assigns for ever, in free and common socage. Pie insisted also, that if the heirs of Sir Pet.er Warren ever had any title to the premises, it had been forfeited by their alienism.([1] )
Van Vechten, for the plaintiffs.
Cady, for the defendant.
The plaintiff has not proved any seisin or title in the lessors, or those under whom he claims ; and the defendant has shown a title out of the lessors. The evidence about the agreement for a lease, which appears neverlo have been carried into effect, is not sufficient to give the plaintiff the possession. It does not appear that the defendant was put into possession by the lessors, or that he ever paid them any rent. The defendant must have judgment.
Judgment for the defendant.([1] )
b b (b) See Cowen & Hill’s notes to 1 Phill. Er. 201, 202.