Lewis v. Payn

By the Court, Savage, Ch. 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 benefitted 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 Burén 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 shewed 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 plaintiffs have been evicted by [427] the defendant, such an eviction has concluded the tenancy, and that consequently no rent can be in arrear. The general principle is, that any thing may be given in evidence under the general issue, which shews that no right of action ever existed ; and in some cases facts may be shewn 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 shew 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 instalment declared on; it does not impose upon the plaintiff the necessity of proving the breaches alleged. In the case of Horn v. Lewin, (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 shewn 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 shew 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. Coke Litt. 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 [428] as correct. In that case it was said that such a defence cou]¿ pe 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 ease of Watts v. Coffin, (11 Johns. 499,) it was said by Van Ness, justice, that an eviction to produce ap 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 benefipial 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, that act of distraining,) but there must be a continuance in possession, so that the tenant is deprived of the occupancy; and [429] 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 beep 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