Mechanics' & Traders' Fire Insurance v. Scott

Daly, First Judge. The fourth answer sets up no defence. The complaint avers that the plaintiffs leased the premises to the defendant on the sixth day of March, 1858, for one year, to commence on the 1st of May following. This vested in the defendant an interest in the term on the 1st of May, and rendered him liable, after that date, for the payment of the rent. ' Whitney v. Allaire, 1 Comst. 311. It is no answer that he has never had possession. Bellasis v. Burbriche, Lord Ray. 170; Holt, 199; Eaton v. Jaques, 1 Doug. 461. He avers that at the time of the agreement there was a tenant in possession, and that the same tenant is still in possession. This is no answer. It may be a tenant under a demise from some person having no claim or title to the premises. To render the occupancy of a tenant an answer to the demand for rent, the defendant must aver that the tenant is in possession under a title paramount to that of the plaintiff. Ludwell v. Newman, 6 T. R. 458. By leasing, the plaintiff does not warrant the defendant against the act of strangers, or agree to put him in actual possession. The extent of his implied engagement is that he has a good title, and can give a free and unincumbered lease for the term demised ; and if the defendant is kept out of possession by the act [552] of any party other than the landlord, or one having or holding under another having a paramount title, he must resort to his proper remedy to. get possession únder his lease. Gardner v. Keteltas, 5 Hill, 332; Platt on Covenants, 314. The demurrer is well taken. Judgment for plaintiff.