The opinion of the court was delivered by
Ross, J.This was an ejectment for three lots of ground, house, blacksmith shop, and tilt-hammer in the borough of Bellefonte.
The defendants took defence for the blacksmith shop, tilt-hammer and water-right.
The first bill of exception was to the admission of the amicable ■ scire facias, and the confession of judgment thereon, the 29th of October, 1824, for seven hundred and forty-two dollars and sixty-eight cents.
The objection to the scire facias was, that it was not regular; not signed and sealed by the officer, and not tested at any term: — to the judgment, because it purports to be a judgment before the test day of the scire facias on the mortgage.
The law is well settled, that a man may waive any right to a *406particular mode of judicial proceeding against himself. The plaintiffs in error could not have been proceeded against adversely on the mortgage in any other way than by -ejectment, or by a scire facias under the.act of assembly. But when the mortgagor is-alone-'.to be affected, he may agree to dispense with both these modes of proceeding, which have been provided, as well for his protection, .as a remedy for the mortgagee. This is often done by the consent .of the parties to save costs; sometimes to .expedite the sale, and the collection of the money; sometimes to render a purchaser more-secure in his title, at an earlier day than -it could be otherwise done in pursuance of a previous agreement. The plaintiffs in error, on the 29th of October, 1824, entered an amicable scire facias, and jud'gment thereon, by agreement, with the mortgagee, for seven hundred and forty-two dollars and sixty-.eight cents.
A levari facias, issued to the November term following. It might, very properly, be tested of the preceding .term. It is done so in .other cases, where execution issues on a judgment entered in vacation, to the next succeeding term.
To this course, all the parties in interest assented. There was-nothing done in contravention of any rule of law or practice ; no «, body had any right to .complain of it, because no one was injured; it was sanctioned by the plaintiffs in error, and acquiesced in by them until the trial of this cause. No motion was made to set aside the proceedings on the amicable scire facias, or the sheriff’s sale under them; no writ of error brought to reverse them; they therefore, by their acts and their neglects, expressly or tacitly, waived all objections, if any existed. A judgment erroneous is good until reversed. 2 Serg. & Rawle, 142. 4 Serg. & Rawle, 467.
The record was evidence against them. 1 Salk. 276, 290. Holt, 292, 11 Serg. & Rawle, 168.
Whether the sheriffs deed poll .duly acknowledged and certified' under .the seal of the proper, court, as directed by the act of the ,6th of April, 1802, would have been full and conclusive evidence against the person named in the execution, under wliich the premises .were sold, is not a question now made. There was no- error in the admission .of fhe amicable scire facias and the proceedings on if.
The second bill of exception was to the admission of a lease, proved by the subscribing witnesses, from J. M. Benner and P. Benner, Jr. to John Hall, Jr. for three lots bearing date, November 26,1824.
The defendant’s counsel objected to it, •“ because Philip Benner, Jr. and J. M. Benner had no right to make a lease. They had not then got their deed. The sheriff’s deed recites the sale as made the .day after the lease purports to have been executed. The writ was not returned.”
It is true a man cannot grant that which he hath not, or more *407than-lie hath; although he may covenant to purchase an estate, and levy a fine to uses, which will be good. Bac. Max. 58. Peck, Sec. 65.
A lease doth properly signify a demise or letting of land, &c. ■unto another for a lesser time, than he that doth let it, hath in it. Shep. T. 266. Plow. 421, 432.
Assuming the above authorities to be law, it would seem to be very clear, that a man cannot make a valid lease to another who is in possession of land, when such lessor has no interest, title, possession or right of possession in the premises he lets.
The tenant, under a lease made by such a lessor, should never be estopped from disputing his landlord’s title. To a tenant so circumstanced, the doctrine of estoppel is totally inapplicable, yet the lease was evidence. The acts and declarations of a party in interest, and to the suit, are evidence against him. Whart. Dig. 365, pl. 405. 1 Dall. 65. 10 Serg. & Rawle, 268. Marshall v. Sheridan.
The evidence was therefore properly admitted, both as the deed and as the declaration of the defendants below, having a direct relation to the matters in dispute.
The third exception was to the admission of the evidence of William Ward and James M. Petrikin, to prove that the property had been struck down before the lease was executed, and that the date of the lease is a mistake.
Prima facie every deed is supposed to be made the day it bears date. 3 Liv. 348. 1 Sel. Pr. R. 422.
But it takes effect from, and therefore has relation to the time, •not of the date, but of its delivery; and this is always presumed to be the time of its date, unless the contrary do appear.. The time ■of delivery is material; and is always to be tried by a jury. Shep. T. 72.
It would be easy to cite authorities on this point, and to illustrate the position laid down by a great variety of cases; but it would be a useless labour, as no doubt' can be entertained of its correctness. It is however contended, that admitting the law to be as above stated, the defendant in error was estopped by the recital in the sheriff’s deed, that the sale was made on the 27th November, 1824, from showing it was made on any other day. A general recital is no estoppel, yet a recital of a particular fact is so. 1 Show. 59. 2 Leon. 11. 3 Leon. 118. And the recital, to be an estoppel, must ■be material. 2 Leon. 11. 3 Leon. 118. The recital of the day when the property was sold is not material, and therefore the defendant in error was not estopped from showing the truth. A man is estopped to say any thing against his own deed. Co. Lit. 363 b. 2 Black. Com. 295. Co. Lit. 252 a. But this was not the deed of the defendant in error. It was the deed of the sheriff to him; it was the deed of a ministerial officer authorised to make the sale, whose mistakes in the execution of his duties should never *408be permitted to prejudice the rights of the grantee by way of estoppel. There was no error in admitting this evidence.
The fourth exception was to the rejection of the following evidence offered by the plaintiffs in error. “ That considerable part of the shop is built outside of the town lots, and on the right conveyed by Smith to Hall, the elder, that on the 26th January, 1825, John Hall, the elder, conveyed to John Hall, Jr. all his right under Smith's deed.”
“This evidence was objected to, and overruled by the court. First. Because the defendant is a tenant and cannot dispute the right of his landlord. And second. Because the written papers Vest the title of the property in the purchaser at sheriff’s sale.” .
If the opinion already given on the previous exceptions is correct, it is clear that the plaintiffs should have been allowed to prove what they offered; they had proved by William Pettit, “that he was present with Benner and Hall, heard Benner pressing Hall to take a lease; Hall down spirited; Bernier said he was going away next day, and wanted it fixed. This was after the property had been sold. Benner said he might have it till spring on easy terms; did not .want to turn him out; wanted him to take it; Benner said, if he did not take a lease, he would be under the necessity of removing Mm and obtaining possession by the sheriff; Hall said he wanted to see Mr. Potter; it was on the day before Benner was to start away; it was in the afternoon of the day.”
This evidence of Pettit, corroborated as it was, by- Petrikin and Ward, was sufficient, connected with the circumstances, under which the lease was obtained, to induce a belief that the lease was procured by management: by a suggestio falsi in alleging he had purchased the whole at sheriff’s sale: that he had a right to dispossess themof the whole, and his hurrying them into the execution of the lease, without an opportunity of consulting their counsel or friends, as they expressed a desire to do, a measure suggested to Benner by Mr. Petrikin, as a safe one if he intended to hold the property.
The plaintiffs in error were not such tenants as precluded them from showing what they offered to prove. The very question trying was, whether the written papers vested the title of the property in the purchaser at sheriff’s sale? If they did — what property? Was the tilt-hammer and water right conveyed by Smith to Hall, Sr. included in the sale made by the .sheriff? Was any thing more sold than three lots? , If not — did the three lots extend westerly beyond the water’s edge of Spring creek? If they did, how far — did they include the shop, tilt-hammer and dam? A solution of these questions could only be made by an application of the description of the property contained in the deed, to the properly claimed .under it. The situation of the property claimed, and the relation it bore to the property described, could only be *409ascertained by parol proof. The court, therefore, erred in rejecting the evidence.
The court instructed the jury, that the plaintiff below had shown a right to recover on every ground: First, as landlord — It is a sacred principle of law, that the tenant shall not dispute the title of his landlord. Second. That the fair and correct construction of the defendant’s conveyances, mortgages, judgment, sale, and sheriff’s deed, vested the right of the whole property, whatever it was, in the plaintiff; and that the conveyance by Smith' was an appurtenance which attached to the property.
To this charge the plaintiffs in error excepted, and this forms the fifth bill of exceptions.
It may be true, as a general principle of law, that the tenant shall not dispute the title of his landlord. Yet the application of this general principle is restricted to cases in which the lease has been fairly obtained, without any misrepresentation, management or fraud.
A lease unfairly obtained, will not prevent the lessee from contesting the title of the lessor. Brown v. Dysinger, 1 Rawle 408, 415, and the authorities there cited. In that case, the only evidence of unfairness was, that Walker threatened to turn Brown out of possession, if he did not execute a lease; and that Brown was then very sick with the consumption, and died sometime the following month. The case under consideration is much stronger in favour of the tenant than that of Brown.
The correctness of this observation will be manifest by a reference to the testimony recited, in giving the opinion in this cause, on the third and fourth bills of exceptions. Benner urged the execution of the lease on the ground that he had a right to the possession of the whole of the premises, and that he had the right to remove Hall by the sheriff, and refused Hall time to consult his counsel.
This was a suggestion of a falsehood calculated to mislead Hall. Benner had at the time no title to the land. The levari facias was not then returned. If the property had been then struck off to him, there was no record of it. And if there had been, the sale was liable to be set aside at the instance of Hall, or his creditors; or to be defeated by his (Benner’s,) neglect to comply with the conditions of sale.
Until the sheriff’s deed to him was acknowledged, he could legally take no step to obtain possession; and even then, of nothing not contained in the deed. When acknowledged, he must have given three month’s notice before he could have a jury called to dispossess Hall, which would have prevented him from removing him by the sheriff forthwith, as it was evidently insinuated he had a power to do. The proposition, which was made on the 26th of *410November, 1824, was to lease it to him until spring, on easy terms; when it appears that the sheriff’s deed to Benner was not acknowledged until the 26th April, 1825.-
If this case does not exhibit all those features of management, unfair and uncandid conduct,, as well as misrepresentation on the part of Benner, I should be at a loss to conceive one what would. It is evident that Hall was taken by surprise, and was artfully inveigled and hurried into the execution of the lease, without any opportunity of consulting his friends or his counsel, which he desired to do.
There is a wide difference between the case of a lease from a person having title or possession; and that of a lease from one having no title* no-possession or no right to possession, as to-the conclusiveness of the evidence. In the former' case, generally speaking, the tenant. Would be estopped from disputing his landlord’s title, unless fraud* mistake or imposition, be clearly proved. In the latter case, the lessee would not be concluded by the lease,because the obtaining a lease Under' such circumstances, would generally be considered, as unfairly procured.- The plaintiffs in error, on the facts disclosed by the defendant in error, should have been allowed to have impeached the lease: and the testimony of Pettit and the other witnesses- should have been submitted to the jury. . - .
. The court unquestionably erred in the instructions- given to the jury on the second point. The fair and correct construction of the ■ defendant’s conveyances, mortgages, judgment, sale and sheriff’s deed, arising on the face of the papers, without reference to any extrinsic circumstance, is that nothing more was sold under the mortgage than what was contained in the description of the property mortgaged, and that nothing more vested in the purchaser. '
The mortgage was for three lots, which John Hall, the elder, had conveyed to John Hall, Jr. Those lots were described by Nos; 130*. 131 and 132, in the town plot of Bellefonte* with clearly designated boundaries:- each containing sixty feet in front on Spring street* and extending thence'west war dly to the water’s edge of Spring creek. On the face of the title papers, these three lots, only, were conveyed to Benner. The sale was effected by a proceeding on the . mortgage. The Sheriff could sell no properly which was not described in the mortgage, and conveyed by it, unless from its very nature and quality, it was necessary to the enjoyment of what Was-actually described.
If a mill had been within the boundaries of the lots sold, and it had been granted, the water as used for the mill would have passed as appurtenant to it. 3 Salk. 40.
But if a man sells a mill cam pertinentiis, and the jury find a kiln was occupied with the mill for many years, the kiln, shall not pass *411by those words, for it might be a lime kiln; and might have no> relation to the mill: but if the jury had found it to- be a malt kiln,, it might be otherwise. Shep. T. 89-90.
Strictly speaking lands cannot be appurtenant to lands,, or a ■ messuage to a messuage. Plow. 170. 1 Sil. Ab. 91.
But the word pertens may be taken in the sense of usually' leitew or occupied with the land. Plow. 170. Lands shall pass on alease or devise of a house as pertaining to the same, when it’ hath been used and occupied with it, ten years or more: which- is adjudged a, sufficient time to make it appertaining to the house. Cro. Eliz. 704. A grant of a manor ,cum pertinentiis,- it- is said, will pass all things belonging to the manor. Owen’s R. 31.
But in all these cases, it must be ascertained by parol proof, what was- usually letten or occupied with the land, the messuage,- • mill or manor', unless the extent of the claim appears on the face of” the paper title: and even then to-settle what lands, what waters,what dams or races have been used and occupied as appertaining, to the property purchased.-
A-ll these are questions involving matters of fact, not appearing on the face of the title papers, and should have been submitted to the jury for their decision. The court excluded very important evidence as to the relative situation of the two properties: refused to let the plaintiffs in error prove that the shop was partly situated'' on the tract bought of Smith, and not included in the mortgage,, which went to shut out all the evidence- of plaintiffs in error, as to-their title, their possession and occupancy: the situation of the dam,the race, and the land purchased of Smith; and then instructed the jury that all the rights vested by the paper title in. the defendants-in error; andiby it they were, entitled to recover. -
Who' can' say,, on looking over the paper title,- which was the-most worthy: the property derived from Smith, or that derived from Harris. That which is the most worthy is the principal: and when ascertained by a gjrant of it, that which is less worthy or incident, or .accessary, shall pass by the grant. The principal willi not pass by the grant of the incident or accessary.. Accessorium now diicit, sed sequitur suum principóle. Shep. T. 89.
For any thing that appears to the contrary, the right derived from. Smith may be; the principal.. The’ deed from him to Hall’ senior,, bears date the- 26th of April. 1806. Thé' deed from- Harris to Hall bears date the 27th of November, 1807. The.title to- the-property purchased of Smith is above a year and six months older . . than that of Harris jo Hall. The title to the property acquired by the purchase from7 Smith existed in Hall independent of the three-lots granted by Harris to him,- more than eighteen months prior to "the title acquired from Harris. It was not, therefore, during that time appurtenant to the three lots purchased of Harriet If it ever became appurtenant thereto, when ánd how? This can only be *412shown by matter in pais, It was not purchased as a necessary appendant to the enjoyment of the three town lots, because it was purchased long before Hall became the owner of the three town lots. From all that appears, the property purchased of Smith was the principal, and the purchase from Harris was the accessary; and requisite to the full enjoyment of the rights purchased of Smith. These matters may be made to wear a very different complexion from that which they exhibit now on the face of the papers.
Judgment reversed, and a venire de novo awarded.