¶1The opinion of the Court was delivered by
¶2—The facts of the case, although not very clearly stated, seem to be these. The plaintiff, Peter Sassaman, was in the possession, and the reputed owner, of a tract of land, in the county of Dauphin, which, on the 1st of April 1822, he leased for one year to the defendant, at an annual rent of 9 dollars. The defendant, Feagly, continued in the possession of the property, under the lease, until some time about the 1st of April or May 1825, a period of three years ; when, having refused payment of the rent on the ground of an outstanding title to the land, a suit was brought against him, before a justice of the peace. The parties came to a compromise, and entered into the agreement on which this suit is brought. The court charged the jury that the plaintiff could not recover until there is a decision at law on the title, in some proceeding to which Hottenstein, who, it is understood, was a claimant of the land, was a party. Of this instruction the plaintiff complains. He alleges that the object of the parlies in entering into this stipulation was, on the part of the plaintiff, that he should recover possession of the property, and also the rent in arrear, 27 dollars; but that the money should not be paid until Feagly was indemnified from any risk arissing from a recovery of the land by adverse title, and particularly against the claim of Hottenstein. And this, we think, is the reasonable construction of the agreement. The defendant cannot, in justice, complain, because he has had the use and occupation of the premises under a lease from Sassaman, and the only inquiry should be, whether he can pay with safety; and about this, as the facts now appear, there can be little doubt. The plaintiff has been in the adverse possession of the property since the year 1810. Besides, if an action of ejectment should now be biought, no recovery in that suit could affect Feagly. He would be no party to it, and no action for the mesne profits could now be sustained, as six years have elapsed since he occupied the premises. If an action of ejectment had been pending when the agreement was made, I admit there would be great force in the argument of the defendant’s counsel; but that we do not understand to be the case. If we adopt the de*270fendant’s construction of the agreement, I do not see how the plaintiff can ever recover the rent, as he has no means of compelling Hottenstein to try the title in an action at law.
¶3Judgment reversed, and a venire de novo awarded.