"Such being the evidence in the case, the jury held that it proved an eviction of the tenant; and we think their conclusion was correct.
"It is no longer necessary that there should be a physical eviction or expulsion by the landlord, to operate as a suspension of the tenant's liability to pay rent. It is sufficient for the tenant to prove that there was an interference with or disturbance of his beneficial enjoyment of the demised premises by the landlord, intentionally committed and injurious in its character. This was established by the Court of Errors in Dyett v. Pendleton, 8 Cowen, 727; and the doctrine has commended itself to the good sense of the bar and the community. The case of Ogilvie v. Hull, 5 Hill, 52, does not in any respect conflict with the rule laid down in Dyett v. Pendleton; and if it did, we should be bound by the decision of the superior tribunal. In this case, there was an intentional disturbance by the landlord's family, for which he was chargeable, with the tenant's beneficial use and enjoyment of the tenement in question, seriously injurious to his business, as well as destructive of the comfort of himself and his family. This constituted an eviction by the landlord, which precludes him from recovering for the rent of the premises."
1 Pomfret v. Ricroft, 1 Saund. 321; 1 Ventr. 26, 44; 1 Sid. 429; 2 Keb. 505, 569.
2 Adams v. Gibney, 6 Bing. 656; 4 M. & P. 510.
§ 1222. So, also, if a man make a lease by parol, there is an implied promise by the lessor to put the lessee in possession, and if he do not do so within a reasonable time, an action will lie against him.2 And if, in consequence of the refusal or failure of the landlord to give possession of the premises, the tenant suffer inconvenience and loss, he may recover damages therefor against the landlord.3 So, if apartments be leased, a promise is implied on the part of the lessor to allow to the tenant all incidents which are necessary or proper for their reasonable and comfortable enjoyment, such as the benefit of the skylight on the staircase, the use of the water-closet, and the door-bell or knocker.4
§ 1223. Again, it has been thought that the landlord impliedly covenants that the premises are fit for beneficial occupation. As, where certain apartments were let, and the wall of a privy on the ground-floor below them gave way and overflowed the kitchen with filth, and impregnated the water of the pump, and the landlord did not remove the difficulty after complaint by the tenant, rent was held not to be recoverable by the landlord.5 Also, where a furnished house was let, and the beds were infested with bugs to such an extent as to render them utterly unfit for occupation, it was held that the landlord could not recover rent therefor.6 But this doctrine, that there is an implied warranty that demised premises are fit for occupation or cultivation, has been overruled in England, and denied in America.7 It is certain that the mere
1 Mack v. Patchin, 42 N. T. 167 (1870). And see Williams v. Bur-rell, 1 C. B. 402; Lock v. Furze, 19 C. B. (N. S.) 96, reviewing the English and American cases.
2 Coe v. Clay, 3 M. & P. 57; 5 Bing. 410; Hawkes v. Orton, 5 Ad. & El. 367.
3 Driggs v. Dwight, 17 Wend. 71.
4 Underwood v. Burrows, 7 C. & P. 29; Cohen v. Dupont, 1 Sandf. 261, 264. But see Hart p. Windsor, 12 M. & W. 68.
5 Cowie v. Goodwin, 9 C. & P. 378. 6 Smith v. Marrable, 11 M. & W. 5.
7 Sutton v. Temple, 12 M. & W. 52; Hart v. Windsor, Ib. 68; Sur-plice v. Farnsworth, 7 Man. & G. 576; Dutton v. Gerrish, 9 Cush. 89 fact that the premises are unwholesome would not entitle a tenant to quit them, where he had the knowledge or means of knowledge of the fact, and where the landlord has been guilty of no fraud or misrepresentation, and is in no default.1 But if the landlord, between the making and the commencement of the lease, render the house unfit for use, the tenant may refuse to take possession.2
§ 1224. Implied covenants only exist in the absence of an express agreement in relation to the subject-matter thereof, and, of course, may be qualified or removed by any special agreement of the parties. In such a case, the question what constitutes a breach must depend on the terms of the agreement. The landlord is not bound to repair or rebuild the premises in any event, unless there be an express covenant to that effect in the lease.3 And in such case he is not liable to an action for not repairing, unless notified of the need of repairs, since the tenant is in possession of the premises, and has the best means of knowledge.4 If the landlord insure the premises, and they be burnt down, he is not bound to apply the insurance to the rebuilding thereof; and a court of equity will not restrain him from suing for the rent for the whole term.5 He is also entitled at law to recover the rent, notwithstanding the premises are burnt down or otherwise destroyed, if he have not agreed to rebuild.6 If there be an express covenant by the lessor, that he will, in case the premises shall be consumed, rebuild and replace them in the same condition as they were before the fire, he is only bound to restore them to the state in which they were when they were let by him, and not to rebuild additions made by the tenant.1 But if there be no such express covenant to rebuild in case of fire or other casualty, he is not bound to rebuild, and his lease will be entirely terminated, unless it be of such a nature as to give him an interest in the land. Where, therefore, a demise was made of basement rooms of several stories in height, without any stipulation by the landlord to rebuild in case of fire, and the whole building was burned down, it was held that, as the lease gave no interest to the lessee in the land, his whole interest was terminated, although he had paid his rent in advance.2
Foster v. Peyser, Ib. 242; Cleves v. Willoughby, 7 Hill, 83; Howard v. Doolittle, 3 Duer, 464; O'Brien v. Capwell, 59 Barb. 504 (1871); McGlas-han v. Talmadge, 37 Barb. 314; Gott v. Gandy, 22 Eng. Law & Eq. 173; 2 El. & B. 845; Libbey v. Tolford, 48 Me. 316. But see Gilhooley v. Washington, 4 Comst. 217, 222.
1 Westlake v. DeGraw, 25 Wend. 669. See also post, § 1247.
2 Cleves v. Willoughby, 7 Hill, 83.
3 Hill v. Woodman, 14 Me. 38.
4 Makin v. Watkinson, Law R. 6 Exch. 25 (1870). But see Hayden p. Bradley, 6 Gray, 425, apparently contra.
5 Belfour v. Weston, 1 T. R. 312; Leeds v. Cheetham, 1 Sim. 146; Holtzapffel v. Baker, 18 Ves. 117.
6 Fowler v. Bott, 6 Mass. 63; Izon v. Gorton, 5 Bing. N. C. 501; post, § 1247.
§ 1225. The landlord, in the absence of special agreement, is bound to pay the land-tax eventually; for although it be incumbent on the tenant to pay it in the first instance, he may then deduct it from the rent. The landlord is not, however, bound to pay any additional land-tax upon the improvements of the estate made by the tenant,3 but only upon the premises as originally demised.
1 Loader v. Kemp, 2 C. & P. 375; per Best, Ch. J.
2 Stockwell v. Hunter, 11 Met. 448. See to the same point Izon v. Gorton, 7 Scott, 537; 5 Bing. N. C. 501.
3 Hyde v. Hill, 3 T. R. 377; Yaw v. Leman, 1 Wils. 21; Whitfield v. Brandwood, 2 Stark. 440; Watson v. Atkins, 3 B. & Ald. 647. In Massachusetts the tenant may deduct only one-half the tax paid by him from the rent; and the landlord may recover one-half of the taxes paid by himself in an action against the tenant. Mass. Rev. Stat. ch. 7, sect. 8, p. 76.