Hemphill v. Eckfeldt

The opinion of the Court was delivered by Gibson, C. J. I a Spencer’s case, (5 Coke, 17 a,) it was resolved that the word concessi or demisi, implies a covenant, on which the lessee or his assignee may have an action for an eviction: “ for,” says Lord Coke, “ the lessee hath the yearly profits of the land, which shall grow by his labour and industry, for the annual rent; and therefore it is reasonable, when he hath applied his labour and employed his cost on the land, and be evicted, whereby he loses all, that he (the assignee) shall take such benefit of the demise and grant, as the first lessee might: and the lessor hath no other prejudice than what his especial contract with the first lessee hath bound him to.” Now, the word let in the lease before us, implying, according to Johnson’s Dictionary, concession, and also a grant to a tenant, is the proper equivalent of the word concessi, or demisi; the English word demise, though improperly used as a synonyme, strictly denoting a posthumous grant and no more; and had the writing in this instance, been sealed, it would have equally implied a covenant against eviction by title, a violation of which, on the principle of Fairman v. Fluck, (5 Watts, 516,) might have been successfully urged in an action of covenant for the rent, as a failure of the consideration. And if that might be done in an action on a specialty, how much more readily may it be done in an action on a contract resting in parol? Such a case is distinctly within the principle of Heck v. Shener, (4 Serg. & Rawle, 249.) Here it appears in the affidavits which are at present incontrovertible, that the defendants had taken the premises in March, 1835, for a term of three years; and that they were evicted in December, 1838, by title paramount to that of the lessor: consequently the eviction not only operated as a suspension, but afforded in its consequences, so far as the defendants were prejudiced by it. a defence to a demand for the rent that had already accrued. Whether they were actually evicted, or how far their business was broken up by it, may be a subject of future inquiry; but in that aspect the affidavits contain matters for a jury. [279] There is another aspect, however, in which the matter sworn to may possibly become a ground of defence. A recovery of rent subsequently due is stated to have been had in the plaintiff’s name; and if the declaration, which however has not been made part of the affidavit, included the subject of the present action, it would preclude him, on the principle of Hess v. Heeble, from urging it a second time. Besides, it might be doubted whether the. policy of the law would allow a landlord, under all circumstances, to split up the rent by equitable assignments of particular parts of it, and thus oppress the tenant with a multiplicity of actions. It will probably turn out, though it is no part of the affidavits — and we can look at nothing else — that the action was brought for the use of a purchaser at sheriff’s sale of the reversion; and I will not say, that the transaction is not susceptible of explanation; though the purchaser’s title to sue being a legal one, the action lies properly in his own name. But in any event, this recovery, standing unexplained as it must necessarily do in an affidavit of defence, appears to be prima facie evidence that the rent for the previous quarters had been paid ; and, for the purpose of having the benefit of it, the defendants were entitled to go before a jury. Judgment reversed and a procedendo awarded.