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of an agreement for a lease (according to the express provision of the Statute 11 Geo. 2, c. 19, § 14), “as evidence of the quantum of damages to be recovered ;” and, as the defendant had been interrupted in the full enjoyment of what had been agreed for, the plaintiff was held “ entitled to recover a reasonable compensation for the property enjoyed by the defendant as an equivalent for rent.” The interruption to the defendant's right of exclusive sporting was indeed compared by Lord Chief Justice Dallas and Mr. Justice Richardson to an eviction ; but, if it was an eviction, it was clearly an eviction by title paramount. The agreement for exclusive sporting was not void on account of the landlord having made a prior agreement to let it to some other person ; but it was defeated, because other persons interfered who had a right superior to that of the landlord. Supposing the circumstances, therefore, to amount to an eviction, it would be a case of apportionment according to the acknowledged rule; and would not assist the argument in favor of the defendant.
Upon the whole, therefore, we are of opinion that the judgment of the Court of Exchequer ought to be reversed.
MORRISON v. CHADWICK.
(Reported 7 C. B. 266.] COLTMAN, J., delivered the judgment of the court."
This was an action by a landlord against his tenant, founded on a promise to use the demised premises, during the continuance of the tenancy, in a tenant-like manner. The breach alleged, is, that, during the continuance of the tenancy, he used them in so untenant-like a manner that they became ruinous, &c. There was also a count for use and occupation, and there were the money counts.
To the first count of the declaration, the defendant pleaded, secondly, that the plaintiff, during the continuance of the tenancy, and before any breach, entered into a certain part of the demised premises, to wit, the shed, and ejected, expelled, and put out the defendant from the possession thereof, whereupon the defendant, before any breach, and whilst he was so expelled, &c., wholly quitted, abandoned, and gave up to the plaintiff the residue of the demised premises, and the possession thereof, and the plaintiff has from thenceforward had the same, and the possession thereof.
To this plea the plaintiff demurred, insisting that it amounted only to an argumentative denial of the allegation that a breach was committed during the tenancy.
1 See Tunis v. Grandy, 22 Grat. 109.
For the defendant, it was said, that the pleå was a good plea in confession and avoidance : for, it was insisted, that, when the plaintiff entered on his tenant, and evicted him from a part of the premises, the tenant was justified in relinquishing the possession of the remainder, and was no longer bound to perform the agreement he had entered into on becoming tenant. But we are of opinion that this proposition cannot be supported.
An eviction by a landlord of bis tenant from a part of the premises, creates a suspension of the entire rent during the continuance of the eviction, until the tenant re-enters and resumes possession : see the authorities cited in 1 Wms. Saund. 204, n. (2). But there is no authority for holding that the tenance is thereby put an end to, or_the tenant discharged from the performance of his covenants, other than the covenant for the payment of rent.
It may be urged, that the landlord may have evicted the tenant from the possession of a part of the demised premises, the possession of which part was the main inducement to him to enter into the covenants of the lease, and therefore that he ought not any longer to be bound by them. But it is to be borne in mind, that, in addition to the suspension of the rent, the lessee may maintain his action against the lessor for the eviction ; by which, it is to be presumed that he will obtain satisfaction for any inconvenience or loss which he may suffer.
If the eviction of a part by the landlord will not discharge the tenant from the performance of the covenants of his lease, other than the covenant to pay rent, will the relinquishing the possession of the land, and the landlord's taking possession, have that effect? We think it will not; for the allegations do not show a dissolution of the tenancy by mutual consent. The tenancy, therefore, continues; and whilst the tenancy continues, the obligation to perform the covenants continues." We think, therefore, the plea is bad.
The third plea alleges a surrender of the tenancy before any breach, by operation of law, — by the defendant's quitting possession of the lands demised, with the consent of the plaintiff, with the intention of putting an end to the tenancy, and by the plaintiff's accepting such possession, with the intention of putting an end to the tenancy.
It was contended, on the part of the plaintiff, that this plea was bad, on the ground that the agreement stated in the plea, would not constitute a surrender by act and operation of law; and that the plea, unless it showed a surrender, furnished no answer to the declaration. And we agree that this is so; for the breach is admitted ; and, if the tenancy continued, no answer is given to it.
If, however, it ought to be held — agreeably to what is said in Grim
1 It would appear, therefore, that, where the lessor has evicted the lessee or assignee, or has taken possession with his assent, the lessee or assignee would, under a covenant to repair, be bound to re-enter upon the lessor for the purpose of doing the repairs. It would, of course, be a good answer to an action of covenant for not repairing, to say that the defendant was prevented by the plaintiff from entering. - REP.
man v. Legge, 8 B. & C. 324 ; 2 M. & R. 438 — that the plea shows
Judgment for the plaintiff.
M’LOUGHLIN v. CRAIG.
(Reported 7 Ir. C. L. 117.] THE summons and plaint claimed a sum of £150 for one and a half year's rent due out of certain premises demised by the plaintiffs and others deceased, to one William Boyd, on the 15th of July, 1833, for a term of three lives still subsisting, and renewable forever; which premises, it was alleged in the plaint, had vested in the defendant by assignment, and that since said assignment the said sum of £150 had accrued due.
To this the defendant pleaded as to £75, part of said sum of £150, that before and at the time of making the said indenture of 15th July, 1833, one Matilda M'Loughlin was by herself and her under-tenants, and still is, in possession of a portion of said premises in plaint mentioned ; and that being so in possession, the plaintiffs and William Boyd in his lifetime instituted proceedings in ejectment against the said Matilda M'Loughlin, for recovery of said portion, and that Matilda M'Loughlin had recovered judgment in said ejectment against the plaintiffs and William Boyd, and before any portion of said sum of £75 became due, and has since retained and continued in possession of the said portion of the premises ; and that, by reason thereof, the said William Boyd in his lifetime, and the defendant since his death, and from thence and before the time of the accruing of said sum of £75, were kept out of the possession and enjoyment of said portion of the premises, and neither he nor the said William Boyd had, since making said indenture, or since said judgment in ejectment, any use, possession, or enjoyment of the said portion. To this defence the plaintiff demurred.
Mackay (with him T. O'Hagan), in support of the demurrer.
Concannon and D. Lynch, contra. · LEFROY, C. J. In this case we are of opinion that this demurrer must be overruled. It is plain that, upon an eviction by title paramount, the lessee may either give up the lease or hold the part of which he remains in possession, at an apportioned rent. That is well settled. Then the question in this case is, Are the matters stated on the defence, by which the defendant says he was disabled from getting possession of
1 The rest of the opinion, relating to another point, is omitted.
a portion of the lands, equivalent to an eviction by title paramount ; that is, has enough been shown to satisfy the court that the lessee was prevented, by title paramount in Matilda M'Loughlin, from getting possession of the entire of the land demised by the lease? The defence alleges that Matilda M'Loughlin was in possession of part of the premises previous to the lease being made ; and that she continued in possession up to and after the making of the lease; and that subsequently an ejectment was brought by the lessor and lessee in that lease, and that they failed to disturb her possession. It must be assumed that she showed title against both parties, against the lessor antecedent to the lease, and against lessor and lessee after the lease ; and that ever since, during the accrual of the rent, she continued in possession. The question then is, whether that is a substantial averment of matters whence the law deduces what may be called a presumptio juris, that, de jure, she was in possession by title paramount? When the landlord made the lease, he must have known in what condition the property stood at the time he let it; it was his duty not to make a lease to a stranger, save of what he had to demise ; a stranger could not know that Matilda M'Loughlin was in possession by title paramount. He had no muniments of title ; had nothing to do with the land before the lease was made to him. The lease imports that the title went with the possession; there is no recital in it of any outstanding lease, or that there was any in reversion. It was incumbent on the landlord, therefore, when he seeks to enforce the entire rent, to show his right, to establish that Matilda M'Loughlin was in possession as a sub-lessee, or in some way under him; whereas it is averred, in the defence, that the lessee never had any benefit or enjoyment under the lease of the portion of the premises in question. If anything were shown to establish that a rent had been received for this portion from Matilda M'Loughlin, by the defendant getting the reversion to which that rent was incident, that would not be inconsistent with the right of the landlord to recover the entire rent; but that averment ought to have come from the plaintiff. This defence amounts in substance to an eviction by title paramount; and as in such case the lessee is entitled to hold the remaining portion of the premises, paying a proportionate part of the entire rent, or to abandon all, so here the defendant is entitled to a similar election. This demurrer, therefore, must be overruled.
CRAMPTON, J. I do not dissent from the judgment pronounced by my Lord Chief Justice, although I feel some difficulty on the points suggested. It has never been decided that the position of a lessee, taking a lease at an entire rent from a landlord, who had power to demise a portion only of the thing demised, not having power to demise the residue, is equivalent to an eviction by title paramount. I do not think that has yet been decided, although the case cited, of Doe v. Meyler, comes near it. A party there made an underlease of premises, over part of which he had a power, and over another portion of which he had no power. It was held in that case that there must be an
pass th: pied pleaded only as the sai est in
apportionment, and that the tenant must pay the apportioned rent for the portion the landlord had power to demise. There is another question on which I also have some difficulty ; that is, as to the meaning of that portion of the plea which alleges a possession in Matilda M'Loughlin, and nothing more. It is consistent with that plea that Matilda M'Loughlin may have been in a temporary possession, or she may have been a tenant of the lessor; and if that were so, the whole rent is payable to the landlord, and there is no apportionment. It is said, however, that there are statements in the plea contradictory of the presumption that Matilda M'Loughlin was in as tenant to the lessor. I feel some difficulty on these two points ; but if the landlord allege she had only a temporary interest, the court will not prevent his now replying that matter, upon payment of the costs of the demurrer. PERRIN and MOORE, JJ., concurred with the Chief Justice.
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ECCLESIASTICAL COMMISSIONERS v. O'CONNOR.
QUEEN's BENCH IN IRELAND. 1858.
(Reported 9 Ir. C. L. 242.] ACTION to recover three half-yearly gales of rent reserved by an indenture of demise dated the 24th of April, 1846, whereby the plaintiffs demised to the defendant a certain messuage, lands, and premises, with the appurtenances, for three lives, and a concurrent term of 999 years, at the yearly rent of £400, payable half-yearly. The first defence alleged that, prior to the making the demise in the plaint mentioned, the plaintiffs had demised two roods, parcel of said demised premises, to Captain Wynder, wbich prior demise was still in force, whereby the defendant was kept out of possession of said parcel of the demised premises, although always desirous of entering thereon, whereof the plaintiffs had due notice; whereby the defendant was prevented from having all the profit and advantage he otherwise would have thereout. The second defence alleged a prior demise, still in force, of two roods of land, parcel of the demised premises, to one Patrick Murray and one Timothy Murray, and in other respects was in the same terms as the first defence.
Demurrer to the first defence, upon the following grounds : Because the said defence does not disclose any matter whereby the demise made by the plaintiffs to the defendant, as in the summons and plaint alleged, is shown to have been, wholly or as to any part of the premises thereby purporting to be demised, void or ineffectual, or whereby the rent reserved became or was wholly or in part extinguished or suspended; and because the said demise made by the plaintiffs to the de-_ fendant, as in the said summons and plaint alleged, was effectual to
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