Bennet v. Bittle

• Decision Date: 11 January 1834
• Citation: 4 Rawle 339
• Parties: BENNET v. BITTLE and Another.
• Court: Pennsylvania Supreme Court

4 Rawle 339

BENNET v. BITTLE and Another.

Supreme Court of Pennsylvania.

January 11, 1834

IN ERROR.

A demise or conveyance of a " barn, " without other words being superadded to extend its meaning will pass no more land than is necessary for its complete enjoyment.

Any entry by the landlord on the premises demised, against the will or wishes of the tenant, is not an eviction in point of law, which will suspend the rent. But if the landlord ejects expels, evicts, or turns out the tenant, and prevents his enjoyment of the premises for which the rent is payable, the rent will be suspended; and whether there has been such an eviction, in point of fact, is a question for the jury.

ERROR to the Court of Common Pleas of Delaware County.

In the court below, an action of replevin was brought by Lewis Bennett, the plaintiff in error, against William Bittle and Josiah Moore, the defendants in error, in which Moore made cognizance as the bailiff of Bittle, who avowed for rent in arrear. The plaintiff replied, no rent in arrear, and an eviction of part of the premises leased.

On the trial, the defendants gave in evidence a lease from William Bittle to Lewis Bennett, dated the 9th of February, 1830, of which the following are the material parts:

" Be it remembered, that William Bittle has leased to Lewis Bennett, the messuage, tenement or tavern-house, barn, sheds, & c. with four lots of land on the north-east side of the Westchester road, in the township of Haverford, and county of Delaware, known by the name of the Spread Eagle Tavern, to hold the same for one year from the first day of April next ensuing, the said Lewis Bennett yielding and paying to the said William Bittle, the rent or sum of three hundred and seventy-five dollars together with the price of the license for keeping the public house, and all the taxes that may be levied upon the said premises for the year 1829. It is further agreed to pay the rent half yearly."

After having proved that Bennett went into possession of the premises, under this lease, soon after the middle of April, 1830, and remained in possession until the last of March, 1831, the defendants closed their case.

The plaintiff then examined several witnesses, from whose evidence it appeared, that about the first of May, 1830, two men and a boy employed by Bittle, hauled manure out of the barn-yard. They were hauling it the greater part of one day, and they afterwards returned to haul more. Bennett was not at home on the first day. He afterwards reproved Bittle for taking away the manure, who replied, he would do as he pleased. Some further dispute then took place between them. Bittle also turned cattle into the barn lot; one day seven, and the next day ten, and kept them there more than two weeks, putting them in in the morning, and taking them out at night. Bennett forbade his putting cattle into the lot, and told him he should charge him the same that he did for drove cattle. Bennett used the barn and lot, but each insisted that they were his. Bittle asserted that they were excepted from the lease, which the other denied. Bittle on one occasion said, that Bennett had put up the bars, and four of the cattle were out, and three in the field, and he would make Bennett find them. The latter answered, that he would not find them, but would charge him for those that were in the field. Bittle said, that if he had rented the lot to Bennett, it was his, and the witness added, that Bennett had convinced Bittle that the lot was his, and he agreed that Bennett should take out the cattle and drive them home. On the same day, Bennett took the cattle out of the lot, and put them into Bittle's field over the road.

In a conversation between Bennett and a witness, in reference to the lease, he stated, that he did not get a foot of land on that side of the road on which the barn lot was situated, except half the barn. At another time he stated to the same witness, that he would like to rent the barn field of Bittle, but he could not spare it; he wanted it for pasture. Bittle put a fence across it either in April or May, 1830, but after the dung was hauled away, Bennett had possession of it, and continued to occupy it until the expiration of the lease. The lot in question contained about eleven acres.

Other evidence was given on both sides, tending further to show the understanding of the parties, as to what was intended to be embraced by the lease, which it is unnecessary to state.

When the evidence was closed, the president judge delivered to the jury the following

CHARGE.--" On the question, what premises were leased by Bittle to Bennett, it has been broadly urged, that by the terms of the contract, and the legal interpretation of the lease, by the term barn, the lot or field in which it stood, passed. Although the attention of the court has not been asked, it is proper to say, that I do not think that necessarily follows. All contracts are to be construed according to their subject-matter:--If the late Mr. Anderson had leased a house and two lots on the east side of the road, and the barn on the bank of the creek, it does not follow that the field in which it stands is also leased, but at most a passage to it.

In the course of the argument the court has been asked by the plaintiff's counsel to instruct the jury, ‘ That any entry on the premises demised against the will or wishes of the tenant, is an eviction in point of law, and suspends the rent,’ I cannot so instruct the jury. If such were the law, and if Mr. Bittle had entered the tavern of Mr. Bennett, after having been forbidden--had walked over his field, or without leave had walked into the little orchard and carried away a basket of apples or fine peaches, or in short committed any other trespass, it would, according to this position, be an eviction, and suspend the whole rent. But the law is not so; in this, as in every other instance, it is more consonant to reason; it declares, that if the landlord takes the high-handed measure of entering upon the lands he has leased to his tenant, and ejects, expels, evicts, or turns out the tenant, and prevents him from enjoying and using the land, or a portion of it, which he had solemnly leased to him, thus preventing the tenant's enjoyment of the premises, in respect of which rent was to be paid, that would be an eviction which would suspend the rent; so that the inquiry with this jury will be whether Bittle did eject from, and dispossess Bennett, and thus evict him of any particular portion of the premises really demised to him, and for which the rent was to be paid; or whether Bittle merely did other wrongs short of eviction and expulsion, such as trespasses in the field or barn-yard. If the former, the rent for that half year is wholly suspended; and if the latter only, it affords the tenant no such defence."

The plaintiff excepted to the charge of the court.

The following specification of errors, was assigned in this court:

" 1. The court erred in charging the jury, that the lot in which the barn stood did not pass by the terms of the contract, and the legal interpretation of the lease.

2. The court erred in refusing to charge the jury as requested by the plaintiff's counsel, upon the question of eviction.

3. The court did not instruct the jury correctly upon the legal operation of the lease, and improperly restricted their inquiry upon the question of eviction under the evidence given in the cause.

4. The court erred in charging the jury that there must be an absolute expulsion, or turning out of the tenant to constitute an eviction, and they should have left it to the jury to decide whether the acts proved, did or did not constitute an eviction in point of law."

The cause was argued by Edwards for the plaintiff in error, and by Tilghman for the defendants in error, after which

OPINION

KENNEDY J.

The first exception is, that " the court erred in charging the jury, that the lot in which the barn stood did not pass by the terms of the contract, and the legal interpretation of the lease." The president judge is not fully represented, I think, by the terms in which this error is assigned, in what he said to the jury on this point. The words of his charge are: (His Honour here stated the words of the charge.) In this, I think, he was certainly right. And it would require, I apprehend, a case connected with peculiar and special circumstances to be made out by evidence, in order to make the lease of a barn, by the word " barn," without more, carry with it also a lease of eleven acres of land, with which it happened to be inclosed. The word " domus " or " house," which, although adjudged to be nomen collectivum, 4 Leon. 16, has been said where it was used in a devise thereof, without the addition of the words " cum pertinentiis " not to be sufficient to pass the garden and curtilege. 2 Ch. Ca. 27. Kielway, 57. And in Moore, 24 pl. 82, a grant of a messuage which was formerly thought to be of more extensive signification than the word " domus " or " house," was held to include and pass nothing but the house and circuit of the house. This however may be going too far, because the curtilage and garden have been considered as parcel of the house, and therefore will pass by a demise or conveyance of it, without the words " with the appurtenances," being added. Carden v. Tuck, Cro. Eliz. 89. S C. 3 Leon. 214. Hill v. Grange, 1 Plowd. 171. Smith v. Martin, 2 Saund. 401, and note (2). And in the case of a grant or demise of a ...