delivered the opinion of the court, May 3d, 1886.
The error assigned in this case, is that judgment was entered for the defendant, non obstante veredicto, upon the question of law reserved in the answer of the court, to the defenddant’s third point. In the determination of this question, we must assume the facts to be as they are in the point stated. No exception was taken to the manner in which the question was reserved, or to the facts assumed, out of which the question óf law is supposed to arise ; the parties are therefore conclusively presumed to have acquiesced in the facts as stated in the point, and assented to the reservation as made. A party, not objecting at the time of the reservation, cannot be permitted afterwards- to say that the facts ought to have been submitted to the jury: Insurance Co. v. Phoenix Co., 71 Penn. St., 31; Koons v. Western Union Tel. Co., 102 Penn. St., 164.
This is a proceeding in form by a landlord against his ten*597ant, under the Act of 3d April, 1830, to obtain possession of the premises demised, for non-payment of rent. In Clark v. Eberley, 8 W. & S., 226, it was held, that in a proceeding under that Act, if it appeared from the evidence that the title was in dispute, and that the alleged lessee refused to pay the rent because he claimed title in himself, the jurisdiction of the magistrate was at an end, and that the remedy to obtain possession must be the common law action of ejectment: this case was followed by Euler v. Johnson, 25 Penn. St., 350; and, Bergman v. Roberts, 61 Penn. St., 497. The rule of all the cases cited is, that the jurisdiction of the magistrates, and of the Common Pleas on appeal, is ousted, in every case where it appears by the evidence that a question of title arises between the party charged as tenant, and the party claiming as landlord.
We must be understood, however, as referring only to the practice and proceedings under the Act of 3d April, 1830; the Acts of 21st March, 1772, 16th June, 1836, and 14th December, 1863, provide remedies which are applied under other circumstances and for other purposes, and their provisions are very different: Brown v. Gray, 5 Watts, 20; and Cress v. Richter, Ms. Sup. Ct., 7th April, 1853, are cases arising under the Act of 1836; Debozear v. Butler, 2 Gr., 417, relied upon by the plaintiff in error, under the Act of 1772, and Koonts v. Hammond, 62 Penn. St., 181, under the Act of 1863. These cases are of undoubted authority. At first blush they might appear to be in conflict with the cases first referred to, and with the ruling of this case, a more careful examination will show, however, that as they apply to different statutes no conflict in fact exists.
It is a general principle, however, that a tenant has no right to attorn to the holder of an adverse title ; his paramount duty is to hold and defend the possession for his landlord, and surrender it to him at the end of the term. The title of a stranger, not claiming by or under the lessor, cannot come in question: (Heritage v. Wilfong, 8 P. F. S. 137); unless the title of the landlord has actually come to an end by his own act, or been divested by the act of the law. For although the defendant is not permitted to show that his lessor never had title to the demised premises, he may, on admitting he once had title, prove that his interest has expired, and become vested in another: Newell v. Gibbs, 1 W. &. S., 496; Elliott v. Smith, 11 Harris, 131; Smith v. Crosland, 10 Out., 413.
In the case at bar, however, the defendant does not assert title in a third party, by expiration of the title of the lessor; he claims to have the lessor’s title in himself, and, if at the trial it appeared from, the evidence, that this claim of the de*598fendant was Iona fide, and that the payment of the rent was resisted on that ground, the jurisdiction of the magistrate, and of the Court of Common Pleas, on appeal, was at an end. It was not necessary that the evidence must fully establish the validity of that title, its validity as between the lessor and the lessee involved an inquiry which the magistrate was not authorized to make, and the powers of the Common Pleas were limited accordingly. From the facts assumed in the point reserved, it appears, that pending the lease, the terms and conditions of which were found by the jury, the parties entered into a parol agreement of sale of the premises in dispute; that the defendant, from the date of that agreement for several .years, and to the time of the institution of these proceedings, has had exclusive possession of the premises under it; that the parties have during all that time treated the lease as at an end, and no claim for rent has been made; that a large number of payments have been applied upon the purchase money, and the whole conduct of the case, during the progress of the trial shows, that the payment of the rent is resisted on these specific grounds.
Whether the facts stated would justify a chancellor in awarding the specific performance of the parol agreement mentioned, is not a question raised upon this record, and cannot now be considered; enough is shown to entitle the defendant to have his rights determined in an action of ejectment.
The judgment is therefore affirmed.