delivered the opinion of the Court,
The first question arising in this case is, whether the laps© of time will warrant the presumption that Livingston, the landlord, made a regular re-entry for non-payment of rent. It appears that Myers, the plaintiff, who was tenant for life,, left the premises in 1810, and thereupon Livingston entered, and afterwards, on the 18th of April, 1811, executed a lease to the defendant, during the lives of his wife and son, by virtue of which lease the defendant entered, and is now in possession. The present action was commenced ten years and a few months after the plaintiff left the possession ; and rent has been paid by him since May 1, 1809.
It is well settled, that the right of the tenant can only be barred by ejectment, under the statute. A re-entry at common law does not defeat the title in equity, (1 N. R. L, 440. 1 Saund. 287. 3 Black. Com. 175.) It is, however, sufficient for the defendant, if a re-entry in either way can be presumed, for then he holds the possession rightfully, as against the plaintiff '
If a legal re-entry has been made, it may be presumed to have been under the statute, rather than at common law, which was attended with great inconvenience, and many niceties. After the landlord has performed the requisites required by the common law, to entitle him to re-enter* *182resort must be had to an ejectment to obtain, the actual possession, which, when obtained, is always uncertain, from its remaining in the power of the tenant to offer a compensatron at any time, in order to' found an application for relief in equity. (1 Saund. 287 note. Woodfall, 270.)
If the landlord has re-entered, he has undoubtedly chosen the more simple and efficient remedy under the statute. In applying the doctrine of presumption to such a case, I am not inclined to go farther than the Court has already gone; for it cannot be questioned, that if a re-entry had been made under the statute, the evidence of it exists as matter of record, and might have been produced. The non-production of it raises a presumption that there is no such evidence, at least, until search has been made, and some fact established, on which the presumption can rest. It appears to me much more probable, from the facts stated, that the landlord, finding the premises vacant, and rent being in arrear, concluded to take possession, without having recourse to the process of law.
In Jackson, ex dem. Goose, v. Demarest, (2 Caines' Rep. 382.) the Court say, “ after 14 years possession, we will presume a regular re-entry at common law ; re-entry is matter in pais, and not of record.” In that case, which is the shortest period that has been deemed sufficient,. the Court do not rest the presumption on a re-entry, by ejectment under the statute, but at common law, evidently, because, no presumption of the former could be indulged, so long as the record of recovery was not produced, or some cause assigned for its non-production. Considering that this principle operates in derogation of the grant, I apprehend our Courts have been sufficiently liberal; and that a shorter period, if sanctioned, would frequently be productive of manifest injustice. In Jackson v. Walsh, (3 Johns. Rep. 226.) nine years was held insufficient. The presumption relied on would derive but little support from an additional year. I am of opinion, that the lapse of time is not sufficient to raise a presumption of a re-entry for non-payment of rent, either at common law, or under the statute.
*183But It is urged, that the landlord had a right to enter and take possession, because, the tenant left the premises. The clause in the lease is, if the tenant shall “ leave the possession for the space of six monthsThe right to enter did not accrue until six months after the lessor had quit 5 an entry before cannot be supported on the ground of a condition broken. The case states, “ that upon the lessor of the plaintiff leaving the premises, the landlord entered upon the possession.” These expressions imply, that the entry was immediate, and before the expiration of six months. Had the fact been otherwise, there is no doubt the defendant would have strengthened' his case by proving it. The consequence, then, is, that no forfeiture had occurred when the entry was made; and, on this ground, the plaintiff’s right is not barred.
If reliance is placed on the breach of condition, an ejectment must be brought for the forfeiture ; for the lease, in this case, is only voidable, and cannot be determined until the lessor re-enters in this manner. (1 Saund. 287 n. 1. Woodfall, 371.)
But if it were conceded, that the landlord did not take possession until after six months, there is no evidence that an ejectment was commenced, under which such entry was made; neither will the lapse of time support the presumption. It is true, that the legal owner may, for a certain species of injury, when a person who hath no right has previously taken possession of lands or tenements, make entry, which is defined to he an extra-judicial and summary remedy ; in such case, the party entitled may make á formal, but peaceable entry on the land, declaring that thereby he lakes possession. (Co. Lit. 417.) But when the original .entry is lawful, and an apparent right of possession is gained, the law will not suffer that right to be overthrown by the mere act or entry of the claimant. His remedy is by action. (Co. Lit. 57 b. 237 a.)
There is no sufficient evidence to support the presumption of a legal re-entry, either for the non-payment of rent. *184or for condition broken; and, consequently, the plaintiff is entiyed to judgment.
Judgment for the plaintiff»