that when a party takes an assignment of a lease by way of mortgage as a security for money lent, the whole interest passes to him and he becomes liable on the covenant for the payment of rent, though he has never occupied or become possessed in fact. 1 Brod. & Bing. 72, Williams v. Bosanquet et a.

In this State it has been repeatedly decided that a mortgage in fee vests in the mortgagee the whole legal estate; the necessary consequence of which seems to be that such a mortgagee must be liable for the performance of covenants running with the land. And we think in this case the defendant is liable for any rent that became due after his mortgage was executed.

In considering this case, the question occurred to us whether the liability of the defendant could be affected by the circumstance that the rent was reserved upon a grant of the freehold, while the conveyance to him was in fee. But we find that it has been decided that covenant will lie against the assignee of part of an estate for not repairing his part, for it is devisable [divisible], and follows the land. Cro. Car. 222, Congham v. King; 2 East, 580.

And we are not able to discover any reason why he who takes a larger estate should not be bound by a covenant running with a less estate which is parcel of the larger.

On behalf of the plaintiff it has been argued that the defendant is liable in this action, not only for the rent which has become due since he became owner of the land, but the rent which became due before that time.

The cases which have been cited by the defendant's counsel seem to show that the law is not so.

It is another argument in favor of the defendant, that when the action is against an assignee, it is usual to allege in assigning the breach of the covenant, that the breach happened after the assignment. 2 Chitty's Pl. 191; Lilly, 134; 6 Johns. 105, Dubois v. Van Orden; Carthew, 177; 2 Ventris, 231.

It is said in Woodfall, 274 and 338, that an assignee is liable for arrearages of rent incurred before, as well as during his enjoyment ; but he cites no case in which it has been so decided, and offers no argument in support of the propositions, and we are of opinion that this is not law, and there must be judgment for the plaintiff for the rent which has become due since the 3d of April, 1822.

Judgment for the plaintiff.

LEWIS v. PAYN.

SUPREME COURT OF NEW YORK. 1830.

[Reported 4 Wend. 423.]

THIS was an action of replevin, tried at the Rensselaer Circuit in July, 1828, before the Hon. William A. Duer, then one of the circuit judges. The declaration was in the usual form for taking goods and chattels of the plaintiffs. The defendant put in two avowries, substantially alike, acknowledging the taking of the goods and chattels as a distress for six months rent in arrear, due 1st October, 1823, on a lease in fee of certain real estate, bearing date 1st April, 1818, executed by him to the plaintiffs. The plaintiff's replied non tenure and riens in arrere.

On the trial the defendant proved a counterpart of a lease in fee of certain premises, executed by the defendant as lessor and the plaintiffs as lessees, bearing date 1st April, 1818, reserving an annual rent of $700, payable in equal portions on the first days of May and October in each year; in which lease was a reservation of all rents then due or thereafter to become due, on certain leases before then granted to three individuals, viz. A. Van Buren, W. Bissell, and B. Yale. By an indorsement on the lease dated 4th March, 1818, the four first payments of rent were each reduced $100, and by a subsequent indorsement, dated 7th June, 1821, it was agreed that the deduction of $100 should continue to be made upon the accruing rent. The plaintiffs produced and proved the lease in their possession, which contained a reservation of the rents due on the leases to Van Buren and others, at the date of the lease to the plaintiffs, but not of the rents thereafter to become due. Witnesses were examined on both sides as to the state of the lease and counterpart at the time of the execution of the same, in reference to the variance in relation to the accruing rent and as to the subsequent acts and declarations of the parties on the same subject. The plaintiff's also proved that after the execution of the lease to the plaintiffs, the defendant distrained property upon the premises demised to Van Buren, Bissell, and Yale, or some of them, for rent accrued upon those premises subsequent to the execution of the lease to the plaintiffs. This evidence was objected to as not amounting to an eviction; but if so, as inadmissible under the pleadings in the cause. It was received, subject to the opinion of this court.

The judge submitted to the jury the questions, whether the lease in Payn's possession had been fraudulently altered, and whether the defendant had distrained for rent accrued on the premises demised to Van Buren, Bissell, and Yale, subsequent to the execution of the lease to the plaintiffs. The jury found both questions against the defendant, and a verdict was accordingly entered for the plaintiffs, subject to the opinion of the court.

M. T. Reynolds, for the defendant.

D. Buel, Junior, for plaintiff's.

SAVAGE, C. J. When this cause was formerly before the court (8 Cowen, 71), we had occasion to consider the effect of a fraudulent alteration of a deed by a party to be benefited by it, and we then held that such alteration avoids the deed; but as in this case there were two leases executed, both of which were originals, we held that the fraudulent alteration of one deed did not avoid the other, and that the lessor therefore was entitled, as the case was then presented, to recover the rent due, if any remained unpaid; and a new trial was accordingly ordered, the jury having found for the plaintiffs.

Upon the new trial, the question whether a fraudulent alteration of one of the leases had been made was again submitted to the jury upon testimony on both sides, and has been again decided against the defendant. On the former trial we thought the jury would have been justified in finding a verdict either way upon that question. I am of the same opinion in relation to the last trial. The evidence is nearly balanced, but the jury have placed the most reliance upon the plaintiff's witnesses, or have considered the circumstances strongest against the defendant; and under such a state of facts the verdict ought not to be disturbed as contrary to evidence.

The principal questions now to be decided are, 1st. Whether under the pleadings the plaintiffs were at liberty to prove an eviction by the lessor of part of the premises? 2d. Whether proof of the lessor's distraining for the rents upon the leases to Van Buren and others was sufficient evidence of an eviction? and 3d. Whether such an eviction bars the landlord from recovering his rent?

1. As to the question upon the pleadings. The evidence clearly showed that there was a holding by the plaintiffs under the defendant, and that there was rent in arrear. The defendant is therefore entitled to judgment, unless under the plea of riens in arrere, the plaintiffs are at liberty to prove an eviction. It is said that if the plaintiff's have been evicted by the defendant, such an eviction has concluded the tenancy, and that consequently no rent can be in arrear. The general principle is, that anything may be given in evidence under the general issue, which shows that no right of action ever existed; and in some cases facts may be shown which prove that no right of action existed at the commencement of the suit, though it be conceded that a right of action had once existed. In the action of debt for rent, the defendant, under the plea of nil debet, may show an eviction by the plaintiff. 1 Mod. 35, 118; 1 Ld. Raym. 370; 1 Saund. 204, n. 2. But in an action of covenant for non-payment of rent, an eviction cannot be proved, unless pleaded. Probably the reason of the distinction is, that in the action of covenant there is, strictly speaking, no general issue. The plea of non est factum has been considered the general issue for the purpose of attaching to it a notice of special matter; but it puts in issue only the execution of the instrument declared on; it does not impose

upon the plaintiff the necessity of proving the breaches alleged. In the case of Horn v. Lewin, 1 Ld. Raym. 641; 12 Mod. 354, it is said by the court that riens in arrere is the general issue to an avowry. If an eviction may be shown in an action of debt for rent upon the plea of the general issue, I can see no reason why it may not in replevin upon the plea of the general issue to the avowry. Had there been a general issue in covenant, the same defence should, upon general principles, be received in that action upon the same plea. I am therefore of opinion that the plaintiffs were at liberty, under the pleadings, to show an eviction by the defendant of all or any part of the demised premises.

Where the lessor enters wrongfully into part of the demised premises, the tenant is discharged from the payment of the whole rent, till he be restored to the whole possession; and this that no man may be encouraged to injure or disturb his tenant in his possession. 6 Bac. Abr. 49; Co. Lit. 148 b. If the lord or lessor disseises or ousts the tenant or lessee of any part, the whole rent is suspended as it is held in Arcough's Case, 9 Coke, 135. In Dyett v. Pendleton, 8 Cowen. 728, this principle is recognized and adopted as correct. In that case it was said that such a defence could be given in evidence under a plea of eviction only; that, however, was an action of covenant, in which there is no general issue. In the case of Watts v. Coffin, 11 Johns. R. 499, it was said by Van Ness, Justice, that an eviction to produce an apportionment or a suspension of the rent, must be of part or the whole of the thing demised.

Did, then, the distress upon the lots held under the prior leases amount to an eviction? Hunt v. Cope, Cowp. 242, was an action of replevin in which the defendant avowed for rent, to which the plaintiff pleaded, 1. No rent in arrear; and 2. That before the distress, the defendant (the lessor) unlawfully entered into a garden, part of the demised premises, and pulled down a summer-house. To this plea there was a demurrer and joinder, and judgment was given for the plaintiff (the tenant). But upon a writ of error to the King's Bench, the judgment was reversed; and the only question argued was, whether the facts amounted to an eviction. Lord Mansfield said that the question turned upon the pleading; that the rule of law was clear; that to occasion a suspension of the rent, there must be an eviction or expulsion of the lessee, but this plea merely stated a trespass; that the lessee should have pleaded an eviction, and then the facts which were stated might have been sufficient for the jury to have found a verdict in his favor. And in Dyett v. Pendleton it seems to be held that any obstruction by the landlord to the beneficial enjoyment of the demised premises, or a diminution of the consideration of the contract by the acts of the landlord, amounts to a constructive eviction. The acts of the landlord in this case are, distraining for rent due on the prior leases, after he had conveyed all his interest in them to the plaintiffs in this suit. This, under the decisions which have been made, amounts

to something more than a constructive eviction, and is sufficient to cause a suspension of the rent.

It is contended, however, that an ouster by the landlord which suspends the payment of the rent, must be not only an entry upon the demised premises (for instance, the act of distraining), but there must be a continuance in possession, so that the tenant is deprived of the occupancy; and that as the distress complained of took place before the accruing of the rent for which the distress was made, which is the foundation of the suit, the court are to presume that the tenants have subsequently had the full enjoyment of all the demised premises. In the absence of proof on that subject, the legal presumption is that the tenant, having been ousted of a part of the premises, continues out of possession; and such presumption can only be rebutted by evidence of their having been subsequently restored. But when it is recollected that the very gist of this action is, the right to the rents of which the defendants were ousted by the distress complained of, to presume a restoration of the premises, would be presuming contrary to the allegations of the defendant himself.

The defendant, therefore, is not entitled to recover any rent of the plaintiffs until he restores to them the entire possession of the premises demised, and the plaintiffs are entitled to judgment.

FOLTS v. HUNTLEY.

SUPREME COURT OF NEW YORK. 1831.

[Reported 7 Wend. 210.]

ERROR from the Onondaga Common Pleas. Folts sued Huntley in a justice's court, and declared in covenant on certain articles of agreement, bearing date 7th June, 1814, executed under seal by the parties, which, after reciting that Huntley, for the benefit of a saw-mill erected by him, had diverted the water of the Limestone Creek, along the bank thereof, on the land of Folts, proceeded as follows: "Now therefore, in consideration and upon condition of the payment of the rent hereinafter mentioned, on (the part of) the said Huntley (to be paid), the said George Folts doth hereby for himself, his heirs and assigns, lease and demise to the said Timothy Huntley, his heirs and assigns, the use of the water in said creek, with so much of the bank as may be necessary to continue the diversion of the water as aforesaid, with the privilege of digging gravel in the bank of the said creek, for the purpose of repairing and improving his dam and water-works, for such term of time, and upon the express condition, that if he, the said Timothy Huntley, his heirs or assigns, shall pay, or cause to be paid to the said George Folts, his heirs or assigns, annually and every year, on the first day of