ending in 1838, 1839, and 1840, one Utter occupied the premises as tenant of the defendants; and, on the 1st of February, 1840, the plaintiff called on Utter to ascertain if he desired to continue in the occupation of the store for another year. Utter informed him that he did, and, in reply to an inquiry of the plaintiff, said he was willing to pay $600 rent. The plaintiff refused this proposition, and soon after posted a bill on the store announcing that it was "to let." Some three weeks afterwards the plaintiff again called on Utter, and offered to let him have the store for $700 and taxes. Utter was dissatisfied with the price, and the negotiation between him and the plaintiff ceased. About a week before Utter's term expired, the plaintiff told him that, on looking over his papers, he found the defendants' lease did not expire till May, 1841, and that he had therefore nothing to do with the store. This information was immediately communicated by Utter to a clerk of the defendants, but not at the plaintiff's request. It farther appeared that, in February, 1839, Utter was told by one of the defendants' clerks that the lease in question expired on the 1st of May, 1840; and from such information, in connection with the plaintiff's subsequent acts, Utter was induced to believe that the plaintiff had control of the premises, and therefore did not apply to the defendants for a new lease. Before he was advised of his mistake he had rented another store. It did not appear that the defendants attempted to rent the store for the last year, or that they took any interest in the matter. The court, in charging the jury, submitted to them whether the acts of the plaintiff, between February and May, 1840, did not amount to a constructive eviction. They remarked that, if the plaintiff entered upon the premises with intent to exercise his control as landlord, and had done so, it might amount to a constructive eviction, although the tenant in possession held under the defendants and had paid rent to them up to the 1st of May. They added, that, if the landlord interfered with the defendants' tenant, or the demised premises, in such a manner as to cause the tenant to move away, and by reason thereof the premises remained vacant for the following year, it would amount to a constructive eviction. The plaintiff's counsel excepted to the charge, and the jury rendered a verdict for the defendants. After judgment, the plaintiff sued out a writ of error.

J. M. Martin, for the plaintiff in error.

W. C. Wetmore, for the defendant in error.

BY THE COURT, NELSON, C. J. No case, I apprehend, has carried the doctrine of constructive eviction to the extent laid down by the court below. The most that can be made out of the facts are these: The landlord (wilfully, if you please, though it was evidently through mistake) undertook to let the premises himself, before the expiration of the lease to the defendants and at the usual time for leasing in the city, by negotiating with the sub-tenant; and, on failing to agree with him, posted a bill on the premises, which continued till some short time before the year ex pired, when he abandoned all further interference. There was no inter

ference by the landlord, or by any one claiming under him, with the actual use or occupation of the premises. The lessees had the undisturbed possession by their sub-tenant, until his term expired, and they might have had it till the expiration of their lease. The only ground for saying there has been an eviction, is the possible injury to the defendants, arising out of the mistaken or ill-advised interference of the plaintiff in the several attempts to lease the premises himself. This may, indirectly and remotely, have embarrassed the letting by the defendants, though it does not appear in the case that they interested themselves in any manner with a view to re-letting, or that they complained of or protested against the conduct of the plaintiff in the matter. They appear to have been perfectly passive and silent throughout.

Now, no general principle is better settled or more uniformly adhered to than that there must be an entry and expulsion of the tenant by the landlord, or some deliberate disturbance of the possession depriving the tenant of the beneficial enjoyment of the demised premises, to operate a suspension or extinguishment of the rent. The cases are collected and well considered by Mr. Justice Kennedy in Bennett v. Bittle and Another, 4 Rawle, 339, and they establish the proposition stated beyond all manner of doubt. It would be a work of supererogation to go over them again, after the full and satisfactory review there taken. Dyett v. Pendleton, 8 Cowen, 727, decided in the Court for the Correction of Errors, shows only an application of the doctrine to an extreme case. That adjudication is not to be regarded as introducing a new principle, nor as establishing an exception to the general rule. There, the grossly lewd and immoral conduct of the landlord in the adjoining premises (another part of the same dwelling) was so offensive to common decency, and accompanied with such riotous and outrageous disturbances, as effectually to destroy the quiet occupation and beneficial enjoyment of the demised tenement, and render it uninhabitable by respectable people, This was considered such a disturbance and destruction of the reasonable use and occupation of the premises, as amounted to a virtual expulsion of the tenant.

I admit, a wrong may have been committed in this case against the lessees, by interfering with the right of renting the demised premises, which belonged exclusively to themselves; but I am unable to see how it can be said, within any rule of law that has ever been established, that here has been such an invasion of their possession and enjoyment as will bar an action for the rent. Slander of their title by the landlord would embarrass and prejudice the letting; but no one would think of attaching to it the consequences contended for in this case. The law has provided a different remedy. So of a trespass committed upon the premises by the landlord. Bennett v. Bittle and Another, 4 Rawle, 339; Lawrence v. French, 25 Wend. 443, 445.

The case of Burns v. Phelps, 1 Stark R. 94, is much relied on by the defendants; but the decision there made must be confined to the facts upon which it was founded. It might have applied here, if the sub

tenant had quit during his term and left the store vacant, in conse quence of any threats or improper interference of the landlord. The latter would not be permitted to recover rent from his lessees for the remaining unexpired term of the sub-tenant, whom he had virtually expelled from the premises. In this case there was no attempt to disturb him during his term. He left at the expiration of it because he could not agree about the rent for the next year. He never sought to lease again of the lessees, nor did they endeavor to lease to him. They must have known, or should have known, that they had the control of the store; and, for aught that appears in the case, they might have rented to Utter for the ensuing year, had they taken any steps for that purpose. The failure is owing more to their own remissness and neglect, than to the interference of the plaintiff.

Judgment reversed.

MORSE v. GODDARD.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1847.

[Reported 13 Met. 177.]

THIS was an action of debt, brought to recover five dollars, the amount of one month's rent of a tenement. At the trial in the Court of Common Pleas, before Washburn, J., on appeal from a justice of the peace, the plaintiff put into the case a lease, made by him to the defendant, dated January 6th, 1846, of a certain tenement, for one year, reserving rent in monthly payments, and stated that the action was brought for the rent of the month ending April 6th, 1846. The defendant admitted that he entered into the tenement, under the lease, and that he was still in possession. But he proposed to show, in defence, that in February, 1846, W. M. Benedict and P. Merrick, being the owners of the tenement, entered into the same, and required the defendant to pay rent to them, and that he, in order to prevent being expelled therefrom, agreed to pay rent to them, after that time. The plaintiff objected to the competency of such evidence; but the court ruled that it was admissible. Thereupon the defendant introduced evidence tending to show that, on the 21st of February, 1846, the attorney of said Benedict and Merrick (in company with two witnesses) met the plaintiff in the street, and informed him that he was going to take possession of that part of the house in which the defendant lived; that said attorney and two witnesses went to the house, and went into the part occupied by the defendant, and told him they had come to turn him out unless he would agree to attorn, and become the tenant of said Benedict and Merrick, and pay rent to them; that the defendant yielded, and agreed so to pay rent; that they went from the house, and found the plaintiff, and told him what had been

done, and what the defendant had agreed to do. It did not appear that any evidence was shown to the defendant, at that time, of any title in Benedict and Merrick. In order to prove their title at the trial, the defendant introduced sundry deeds, and other evidence. Benedict v. Morse, 10 Met. 223.

See

The judge instructed the jury, that if the defendant bona fide yielded possession of the premises to Benedict and Merrick, to prevent being actually expelled, and the plaintiff then had notice of this; and if the defendant had satisfactorily proved that Benedict and Merrick owned the estate by a good title, and had a right to take immediate possession, at the time when they undertook to turn the defendant out of possession their title and possession being adverse to those of the defendant and his lessor-such yielding of possession was equivalent to an actual ouster, and was competent evidence in defence to the plaintiff's claim, sued in this action, for rent accruing after such yielding of possession; the burden of proof being upon the defendant.

The jury returned a verdict for the defendant, and the plaintiff excepted to the judge's instructions.

Bridges, for the plaintiff.

Randall and Hartshorn, for the defendant.

SHAW, C. J. In a justice action of debt for a month's rent, the defence was, that the defendant had been ousted, by persons having a paramount title, before the commencement of the time for which the rent was claimed.

son.

The defendant offered evidence to show, that persons having a valid title, paramount to that of the defendant and his lessor, the plaintiff, and having an immediate right of entry, and of possession under it, made an actual entry on the premises, and required the defendant to pay rent to them from the time of such entry, or quit the premises. But it is objected to this defence, that a tenant cannot contest the title of his lessor, nor set up a paramount adverse title in a third perAnd we think it well settled, that a lessee, taking the estate of his lessor, and entering into possession under it, admits his title, and is estopped from denying that title; or, what is in effect the same thing, is estopped from setting up an outstanding title in a third person. Doe v. Smythe, 4 M. & S. 347; Doe v. Mills, 2 Adolph. & Ellis, 17. But this is not inconsistent with another rule, that where there is an eviction or ouster of the lessee, by a title paramount, which he cannot resist, it is a good bar to the demand for rent, on the plain ground of equity, that the enjoyment of the estate is the consideration. for the covenant to pay rent, and when the lessee is deprived of the benefit, he cannot be held to pay the compensation. Bac. Ab. Rent, L. Cruise's Dig. tit. 28, c. 3. It is not enough, therefore, that a third party has a paramount title; but, to excuse the payment of rent, the defendant must have been ousted or evicted under that title. Hunt v. Cope, Cowp. 242; Pendleton v. Dyett, 4 Cow. 581. But an eviction under a judgment of law is not necessary.

An

actual entry, by one having a paramount title and present right of entry, is an ouster of the tenant. He cannot lawfully hold against the title of such party. He is not bound to hold unlawfully, and subject himself to an action, and is not, therefore, compellable to resist such entry. Hamilton v. Cutts, 4 Mass. 349. So, when an execution creditor is put into possession by the sheriff, under the levy of an execution, he has the actual and exclusive possession, and may maintain trespass. Gore v. Brazier, 3 Mass. 523.

There is a recent case, which seems to us alike in principle. Smith v. Shepard, 15 Pick. 147. A mortgagor in possession made a lease for years, reserving rent. Afterwards, the mortgagee, having a paramount title, entered, as he lawfully might, with right to take the rents and profits. In a suit by lessor against lessee for rent, such entry under a paramount title was held to be an ouster, and a good bar to the action.

It is to be understood, that when a tenant thus relies on an ouster in pais, without judgment, he has the burden of proving the validity of the elder title, the actual entry under it, and that he acted in good faith, and without collusion with the party entering.

The instruction to the jury was, that if the defendant, bona fide, had yielded possession of the premises to Benedict and Merrick, to prevent being actually expelled; that the plaintiff had notice of this; and that, upon the evidence, Benedict and Merrick had a good title, paramount to that of the defendant and his lessor, and the right of immediate possession; their entry was equivalent to an actual ouster, and was a good defence to the action for rent. This direction, we think, was right; and the jury, by returning a verdict for the defendant, affirmed these facts. Exceptions overruled.

CHRISTOPHER v. AUSTIN.

COURT OF APPEALS OF NEW YORK. 1854.

[Reported 11 N. Y. 216.]

66

APPEAL from a judgment of the New York Common Pleas. The action was brought by Thomas Vermilya in that court to recover for the use and occupation of a dwelling-house and three lots of ground from the 1st of May, 1847, to the 1st of May, 1848. The cause was tried before Judge Woodruff, without a jury. He found that the defendant, by agreement not under seal, hired from the plaintiff the demised premises, from the 1st of May, 1847, to the 1st of May, 1848, at the rent of two hundred dollars, payable quarterly, and entered into the possession thereof under the agreement; that afterwards, and before any rent became payable, the plaintiff entered upon the demised prem ises and evicted the defendant from a part thereof, which eviction