Bennet v. Bittle

[342] The opinion of the court was delivered by Kennedy, J. The first exception is, that “ the court erred in charging the jury, that the lot in which the barn stood did not pass by the terms of the contract, and the legal interpretation of the lease.” The president judge is not fully represented, I think, by the terms in which this error is assigned, in what he said to the jury on this point. The words of his charge are: (His Honour here stated the words of the charge.) In this, I think, he was certainly right. And it would require, I apprehend, a case connected with peculiar and special circumstances to be made out by evidence, in order to make the lease of a barn, by the word “ barn,” without more, carry with it also a lease of eleven acres of land, with which it happened to be inclosed. The word “ domus” or “ house,” which, although adjudged to be nomen collectivum, 4 Leon. 16, has been said where it was used in a devise thereof, without the addition of the words “ cum pertinentiis” not to be sufficient to pass the garden and curtilege. 2 Ch. Ca. 27. Kielway, 57. And in Moore, 24 pl. 82, a grant of a messuage which was formerly thought to be of more extensive signification than the word “ domus” or “ house,” was held to include and pass nothing but the house and circuit of the bouse. This however may be going too far, because the curtilage and garden have been considered as parcel of the house, and therefore will pass by a demise or conveyance of it, without the words “ with the appurtenances,” being added. Carden V. Tuck, Cro. Eliz. 89. S. C. 3 Leon. 214. Hill v. Grange, 1 Plowd. 171. Smith v. Martin, 2 Saund. 401, and note (2). And in the case of a grant or demise of a house with the appurtenances, it seems to be established as a general rule, that no more than the garden, orchard, curtilege and yard adjoining the house will pass with it, although other lands have been occupied with the house. Blackborn v. Edgley, 1 P. Wms. 603. Smithson v. Cage, Cro. Jac. 526. Betsworth’s Case, 2 Co. 32. Co. Lit. 5 b. 56 a. b. Hill v. Grange, 1 Plowd. 171. 2 Saund. 401, note (2). But see Cary, 24, where a messuage was demised (cum pertinentiis), and certain lands had been previously occupied therewith for the same rent and by the same words, and by advice of the judges Lord Chancellor Bromley decreed, that the land should pass also. But the word “ barn” is still of more limited signification than that of “ house,” and a demise or conveyance of it without other words superadded to extend its meaning, would pass no more land than would be necessary for its complete enjoyment. In Archer v. Bennett, 1 Lev. 131, S. C. 1 Sid. 211, it was held, that a conveyance of “ mills cum pertinentiis” did not pass the close on which they stood. There is certainly no good reason why a close, in which a barn stands, should pass by a grant of the “ barn cum pertinentiis,” more than for passing the close in which mills stand by a grant thereof cum pertinentiis. But in the case before us, the words “ cum pertinentiis,’ are wanting, which, perhaps, makes it still more strong against the plaintiff’s claim. [343] The three remaining errors all relate to the same point, and present but one question, which is, Did the president judge charge the jury correctly as to what in law constituted an eviction ? He was requested by the counsel for the plaintiff to instruct the jury “ that any entry on the premises demised, against the will or wishes of the tenant, is an eviction in point of law, and suspends the rent.” In reply to this, the president judge told the jury — (Judge Kennedy here repeated the charge in the language of the judge who delivered it.) If the president judge had instructed the. jury as the counsel for the plaintiff requested, the charge would have been manifestly erroneous; for an entry on the demised premises by the lessor, against the will, or even against the express prohibition of the tenant, without doing more, does not amount to an eviction, and consequently would not extinguish or suspend the payment of the rent. At most it is only a trespass, for which the tenant may obtain compensation in damageá by an action of trespass. In Roper v. Lloyd, T. Jones, 148, which was an action of covenant for the non-payment of rent reserved under a lease for years of a messuage, &c., where the defendant pleaded that after the lease, the plaintiff had separated, pulled doion, taken and carried away a penthouse, fixed and annexed to the said messuage and part of the premises demised, and detained it, before the rent became due, et adhuc detinet, to which the plaintiff demurred, judgment was given for him, “ for,” as the court said, “ this was no suspension of the rent, but a trespass for which the defendant may have his action.” So in Harrison’s Case, Clayton’s Rep. 34, where A. having made a lease of a house reserving rent, afterwards, during the lease, commanded the breaking a partition wall in the house; this was held no such re-entry into the house as will make an extinguishment of the rent; “ for that must be a continuance of the possession, and putting out the lessee.” 18 Vin. Abr. 504, tit. Rent, (A. a.) pl. 11. In Bushell v. Lechmore, 1 Ld. Raym. 370, in an action of covenant by the plaintiff for rent, and eviction pleaded by the defendant, Lord Holt said, “ whether the plaintiff entered by virtue of any power, or whether he was a mere trespasser, if the defendant was not evicted it will be no suspension of the rent.” In Reynolds v. Buckle, Hob. 326, in debt for rent, the defendant pleaded, that before the rent became due, the plaintiff entered upon him, but did not say that he expelled him, or held him out, and so issue was taken on non intravil and found, according to the report of the case, for the defendant. This seems to be a misprint of the word “ defendant,” instead of “ plaintiff,” and so alleged by Lord Holt in the case of Jones v. Boddinger, Comb. 380, who, in speaking of it, says, “ I take the case of Reynolds, Hob. 326, to be misprinted, for the entry is no bar. Expulsion makes the first part of the bar, and holding out the rest, the book saith. It was found for the defendant, which could not be, the judge must direct the jury otherwise.” And again, in Arnold v. Foot, 3 Keb. 453, in debt upon an obligation and agreement to pay twenty shillings a year for the premises, so long as enjoyed, where the de [344] fendant pleaded entry by the plaintiff before the 24th óf June, 25 Car. 2, and before any rent became due, and that an ejectment was brought, and judgment had in Michaelmas term after; to which the plaintiff demurred, because it was not said expulit or amovit, nor that the plaintiff continued in possession, as it ought to be, being pleaded by way of suspension: but by way of eviction it were well enough, which the court agreed, in case it were payable as a rent. Mr. Chambers, in his treatise on the law of Landlord and Tenant, lays it down, that “ if the lessor enter without ousting the tenant, although he damages the premises irreparably, it will not be a sufficient entry to suspend the rent,” p. 591. He refers to some of the cases cited above, and to two others, Cherbern v. Rye, Cro. Eliz. 341, and How v. Broom, Goulds. 125, which do not support his proposition ; for Popham and Gawdy, Justices, thought that the entry of the lessor, and his pulling down the house on the demised land, was a suspension of the rent, although the tenant re-entered and enjoyed the land afterwards; but Fenner and Clench, Justices, doubted whether the rent was not revived by the re-entry of the lessee. Lord Mansfield, however, in Hunt v. Cope, Cowp. 243, declares, that to occasion a suspension of the rent, the rule of law is clear, there must be an eviction or expulsion of the lessee. And it seems to be settled, that if the lessee, after having been evicted by the lessor, re-enters and possesses again the demised premises before the rent becomes due, it is thereby revived. Page v. Parr, Styles, 432. 1 Selw. N. P. 432. 500. Cibels v. Hills, 1 Leon. 110. But if the lessor enter and oust the lessee, it is not material whether he (the lessor) continue his possession there or not; for having once entered and expelled the lessee, although he depart presently, the possession is in him sufficient to suspend the rent, until the lessee does some act that amounts to a re-entry. Cibel v. Hills, 1 Leon. 110. If the lessor enters and expels the lessee from part only of the demised premises, the latter may abandon and give up the residue; and by doing so, it is clear, that he thereby discharges himself from all liability to pay rent, which otherwise would have become due subsequently. Smith v. Raleigh, 3 Camp. 513. But if he should continue to possess and enjoy the residue, I will not say but that he may be made liable upon a quantum meruit. Stokes v. Cooper, Ibid. 514, in note. It appears, then, from an unbroken chain of authority and decisions, that an entry of the lessor, without an expulsion of the lessee from at least some part of the demised premises, is insufficient to produce a suspension of the rent; it follows, that the court below were right in refusing to charge the jury as requested by the counsel of the plaintiff, and in directing them that nothing short of an eviction or expulsion from at least a portion of the demised premises, would be sufficient for that purpose. Whether an eviction was proved or not, was left entirely as a matter of fact to be decided by the jury, upon which I cannot perceive that the president of the court in delivering the charge, ventured to intimate an opinion. He seems to have met, [345] very fully and fairly the proposition contended for by the counsel of the plaintiff. And it was perhaps owing to a conviction resting on the mind of the plaintiff’s counsel at the time, that his evidence at most tended only to prove a mere entry by the defendant against the will and consent of the plaintiff, that he waspnduced to contend as he did, that such an entry amounted in law to an eviction. For if he had conceived that his evidence was, under any view that might be taken of it by the jury, sufficient to establish any thing beyond such entry, as for instance, an exclusion or holding of the plaintiff out of the possession and enjoyment of any part of the demised premises, he ought to have shaped his proposition accordingly, and to have asked the instruction of the court to the jury in regard to it; and in this way, it is more than probable, some of those things, which it has been alleged on the argument that the court in explanation of what in law amounted to an eviction ought to have told the jury, would have been mentioned by the court to them. But as the proposition of the plaintiff’s counsel did not require any such illustration, there was nothing improper on the part of the court in omitting it. The judgment of the Court below is affirmed.