McVeigh v. McAlpine

Dethmers, C. J. Plaintiff brought summary proceedings to recover possession of an apartment for nonpayment of rent. Prom judgment, of the circuit court commissioner for plaintiff, granting a writ of restitution, defendant appealed to the circuit court and from a like judgment there has appealed here. Defendant complains that the trial court erred in denying him the privilege of showing, and in failing to' consider, in defense to the charge of nonpayment of rent, that he had suffered a partial eviction at the hands of plaintiff. The proofs show that defendant’s wife went into possession of the apartment under a ■6-months’ lease, that she left defendant and the apartment and that he then took over possession; that for more than 2 years after expiration of the lease defendant stayed on as a tenant at will from month to month, paying the same rental as previously had been provided in the lease; that the claimed partial eviction occurred a number of months prior to service by plaintiff upon defendant of notice to quit and subsequent commencement of these proceedings, but that after the partial eviction defendant stayed on from month to month and started to pay rent in a lesser amount, which he claimed to be entitled to do to offset an amount in excess of the registered ceiling rental which he had previously paid. Claimed default in payments followed. Defendant relies on Ravet v. Garelick, 221 Mich 70 (28 ALR 1331). There tenant suffered a partial eviction by landlord during the term of his lease. We held that he might show that fact in defense to the •claim of nonpayment of rent and forfeiture. In that case, however, we said the following: [415] “If the tenant’s lease has expired and summary-proceedings are instituted to regain possession, the-defense of partial eviction would probably not be a defense. But where the lease is still in force when the proceedings are instituted and the ground assigned for ouster is the failure of the plaintiff to pay-rent, then the defense is admissible. * # * We think the rule is general that if the tenant is partially evicted he may remain in possession during the remainder of his term.” It may be conceded that the partial eviction was-, violative of defendant’s right to total possession during the month when it occurred and the ensuing rent month during which he, as a tenant at will, would have been entitled to possession of the whole premises before notice to quit could have become operative. . That, however, would have constituted all of the “remainder of his term” during which he would have been entitled, under Ravet v. Garelick, supra, to remain in possession and raise the partial eviction as a defense to his own default in payment of rent. Thereafter, his term having expired, the previous partial eviction would not serve as a defense' to his future defaults occurring during the new term, which resulted when he stayed on and occupied the-remainder of the premises as a tenant at will from, month to month. Affirmed, with costs to plaintiff. Adams, Butzel, Care, Bushnell, Sharpe, Boyles,. and Reid, JJ., concurred.