This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
There are decisions to the effect that a lease is not within a statutory provision that no covenant shall be implied in any conveyance of real estate. City of New York v. Mabie, 13 N. Y. 151, 64 Am. Dec. 538; Fifth Ave. Building Co. v. Kernochan, 221 N. Y. 370, 117 N. E. 579; Edwards v. Perkins, 7 Ore. 149; Northern Brewery Co. v. Princess Hotel, 78 Ore. 453, Ann. Cas. 1917C 621, 153 Pac. 37; Contra, Ninnis v. New-bro-Gallogly Co., 140 N. W. 980; 174 Mich. 635, 44 L. R. A. (N. S.) 1110, Koeber v. Somers, 108 Wis. 497, 52 L. R. A. 512, 84 N. W. 991.
35. Holder v. Taylor, Hob. 12; Fraser v. Skey, 2 Chitty, 646 (sem-ble); Line v. Stephenson, 5 Bing. N. C. 183 (dictum); Burnett v. Lynch, 5 Barn. & C. 589, 609 (dictum); Stott v. Rutherford, 92 U. S. 107, 23 L. Ed. 486; Grannis v. Clark, 8 Cow. (N. Y.) 36; Ware v. Lithgow, 71 Me. 62; Crouch v. Fowle, 9 N. H. 219, 32 Am. Dec. 350; Harms v. McCormick, 132 111. 104, 22 N. E. 511, rev'g 30 111.
"let" has the same effect as the word "demise" for this purpose,36 though in a previous decision in the same jurisdiction it was asserted that such a covenant would not be implied on a lease by parol."37 In two states in this country it has been decided that such a covenant cannot be implied upon a written lease, without the use of the words "demise" or "grant."38 On the other hand there are occasional suggestions to the effect that such a covenant will be implied without reference to the use of any particular words of leasing.39
An implied covenant, as distinguished from an express covenant, will not, it has been held, endure longer than during the continuance of the estate out of which the lease is granted.40 If, for instance, one having an estate for life makes a lease for years and dies before the expiration of the lease, whereupon the lessee is evicted by the remainderman, the lessee cannot assert any liability against the personal representatives of the lessor under the covenant of quiet enjoyment.41
The covenant for quiet enjoyment protects the lessee against interference with his enjoyment of the premises by the acts of the lessor himself,41a and acts by others under his authority are constructively his acts for this purpose.42 The covenant also, unless expressly limited, extends to an eviction by one having a paramount title.43 It does not, on the other hand, extend to wrongful acts of third persons, it not being regarded as in accordance with the intention of the parties that the lessor should be answerable for the acts of strangers which he could neither foresee nor prevent.44 Nor does it extend to the acts of the state, or of an agency of the state, acting in the exercise of the right of eminent domain or of the police power.45
App. 125; Conrad v. Morehead, 89 N. C. 34; Ford v. Ball, 76 W. Va. 663, 86 S. E. 562 (grant and demise).
36. Mostyn v. West Mostyn Coal & Iron Co., 1 C. P. Div. 145.
37. Bandy v. Cartwright, 8 Exch. 913.
38. Baxter v. Ryers, 13 Barb. (N. Y.) 284; Gano v. Vanderveer, 34 N. J. L. 293.
39. See McAlester v. Landers, 70 Cal. 79, 11 Pac. 505; Wade v. Halligan, 16 111. 507; Streeter v. Streeter, 43 111. 155.
40. Hyde v. Dean & Canons of Windsor, Cro. Eliz. 552; Baynes
& Co. v. Lloyd & Sons  2 Q. B. 610; Cheiny v. Langley, 1 Leon. 179; City of Brookhaven v. Baggett, 61 Miss. 383; Mc-Clowny v. Croghan's Adm'r, 1 Grant Cas. (Pa.) 311; Compare Hamilton v. Wright's Adm'r, 28 Mo. 199.
41. Swan v. Stransham, 3 Dyer.. 257b, Benl. & D. 150.
41a. See McDowell v. Hyman, 117 Cal. 67, 48 Pac. 984; Berring-ton v. Casey, 78 111. 317; Kansas Inv. Co. v. Carter, 160 Mass 421, 36 N. E. 63; Herpolsheimer v. Funke, 1 Neb; Unoff. 471, 95 N. W. 688.
The extent or character of the interference with enjoyment necessary to constitute a breach of the covenant of quiet enjoyment is a question on which the cases do not present any harmonious rule. There are decisions and dicta in this country to the effect that an eviction of the tenant, either total or partial, is necessary for this purpose.46 Under such a view, it seems,
42. Levitzky v. Canning, 33 Cal 299; City of New York v. Mabie. 13 N. Y. (3 Kern.) 151, 64 Am. Dec. 538; Sherman v. Williams 113 Mass. 481, 18 Am. Rep. 522; Harmont v. Sullivan, 128 Iowa, 309, 103 N. W. 951; Seaman v. Browning, 1 Leon. 157.
43. See Chestnut v. Tyson, 105 Ala. 149, 53 Am. St. Rep. 101, 16 So. 723; Kane v. Mink, 64 Iowa, 84, 19 N. W. 852; Holbrook v. Young, 108 Mass. 83; King v. Bird, 148 Mass. 572, 20 N. E. 196; Peters v. Grubb, 21 Pa. 455, and other cases cited in the next succeeding notes.
44. Rawle, Covenants for Title Sec. 127; Hayes v. Bickerstaff Vaughan, 118; Malzy v. Eichholz , 2 K. B. 308; Chestnut v Tyson, 105 Ala. 149, 53 Am. St. Rep. 101, 16 So. 723; Playter v. Cunningham, 21 Cal. 229; Stiger v. Monroe, 109 Ga. 457, 34 S. E. 595; Gazzolo v. Chambers, 73 111.
75; Kimball v. Grand Lodge of Masons, 131 Mass. 59; Gardner v. Keteltas, 3 Hill (N. Y.) 330, 38 Am. Dec. 637; Huggins v. Waters. 167 N. C. 197, 83 S. E. 334; Hol-den v. Tidwell, 37 Okla. 553, 49 L. R. A. (N. S.) 369, Ann. Cas. 1915C 394, 133 Pac. 54; Moore v. Weber, 71 Pa. St. 429, 10 Am. Rep. 708; McNairy v. Hicks, 62 Tenn. (3 Baxt.) 378; Underwood v. Birchard, 47 Vt. 305.
45. Pabst Brewing Co. v. Thor-ley, 127 Fed. 439; Ellis v. Welch, 6 Mass. 246, 4 Am. Dec. 122; Goodyear Shoe Mach. Co. v. Boston Terminal Co., 176 Mass. 115, 57 N. E. 214; Lindwall v. May, 111 N. Y. App. Div. 457, 97 N. Y. Supp. 821; Dunn v. Mellon, 147 Pa. St. 11, 30 Am. St. Rep. 706, 23 Atl. 210.
46. Levitzky v. Canning, 33 Cal. 299; Avery v. Dougherty, 102 Ind. 443, 52 Am. Rep. 680, 2 N. E. 123; National Furniture having regard to the nature of an eviction,47 there cannot be any breach of the covenant unless the lessor is either actually ousted from part or the whole of the premises, or unless he vacates them in whole or in part as a result of the acts complained of. In some cases, however, in which there is stated to be an eviction constituting a breach of the covenant, it does not appear that the lessor's possession of the premises, as distinct from his right of enjoyment, had been in any way affected,48 and in some cases, without any reference to the matter of eviction, an act falling short of an eviction has been regarded as constituting a breach.49 Equivalent, it seems, to the statement that an eviction is necessary to constitute a breach of the covenant, is the statement, occasionally made, that a "mere trespass" by the landlord, without any assertion of title, actual or constructive, is not sufficient for the purpose.50
- Damages. The ordinary measure of damages for the breach of the covenant for quiet enjoyment, by which the lessee is deprived of the possession, is the Co. v. Inhabitants of Cumberland County, 113 Me. 175, 93 Atl. 70; Kimball v. Masters, Wardens & Members of Grand Lodge of Masons in Massachusetts, 131 Mass. 59; International Trust Co. v. Schumann, 158 Mass. 287, 33 N. E 509; Boreel v. Lawton, 90 N. Y 293, 43 Am. Rep. 170; And see Roth v. Adams, 158 Mass. 341, 70 N. E. 445, Boreel v. Lawton, 90 N. Y. 293, 43 Am. Rep. 170.
47. Post Sec. 58.
48. See York v. Steward, 21 Mont. 515, 43 L. R. A. 125, 55 Pac. 29; Brown v. Holyoke Water Power Co., 152 Mass. 463, 23 Am St Rep. 844, 25 N. E. 966; Her-polsheimer v. Funke, 1 Neb. Un-off. 471, 95 N. W. 688.
49. Levitzky v. Canning, 33 Cal. 299; McAlester v. Landers,
70 Cal. 79, 11 Pac. 505; Gries-heimer v. Bothman, 105 111. App. 585; Boyer v. Commercial Bldg. Inv. Co., 110 Iowa, 491, 81 N. W. 720; Metropole Const. Co. v. Har-tigan, 83 N. J. L. 409, 85 Atl. 313; Hubble v. Cole, 88 Va. 236, 13 L. R A. 311, 29 Am. St. Rep. 716, 13 S. E. 441.
In England it appears to be settled that an eviction is not necessary. See Sanderson v. Mayor of Berwick-upon-Tweed, 13 Q. B. Div. 547; Budd-Scott v. Daniell  2 K. B. 351.
50. Lloyd v. Tomkies, 1 Term R. 671; Avery v. Doughtery, 102 Ind. 443, 52 Am. Rep. 680, 2 N. E. 123; Edgerton v. Page, 20 N. Y. 281; City of New York v. Mabie, 13 N. Y. (S Kern.) 151, 64 Am. Dec. 538.
[Sec. 49 excess of the rental value of the premises over the rent which he has agreed to pay therefor, from the time of the eviction till the end of the term,51 or, in the case of a tenancy at will, till the lessor would have had the right to demand the possession.52 In Pennsylvania and Ohio, apparently, a different rule has been adopted, and there, except in so far as rent may have been paid for a part of the term during which he was deprived of possession, the recovery by the tenant, in the case at least of an eviction by title paramount, is restricted to nominal damages;53 and the same rule is perhaps to be regarded as applicable in New York when the landlord does not participate in the eviction.54 In any case, the tenant is entitled to recover any rent which he may have paid for a part of the term, during which he has been kept out of possession.55
- (c) Dependent and independent covenants.
Covenants and other contracts entered into on the part of the lessor and lessee may be dependent or independent. If one party may assert the nonperformance by the other of some covenant entered into by the latter, without having himself performed a covenant on his own part to be performed, the covenants are independent, while if he cannot assert such nonperformance by the other unless he has himself performed, the covenants are dependent. The question whether covenants, or any contractual stipulations, are dependent or in51. Tyson v. Chestnut, 118 Ala. 387, 24 So. 73; Snodgrass v. Reynolds, 79 Ala. 452, 58 Am. Rep. 601; Sheets v. Joyner, 11 Ind. App. 205, 38 N. E. 830 (semble); Riley v. Dale, 158 Mass. 240, 33 N. E. 491; Duncklee v. Webber, 151 Mass. 408, 24 N. E. 1082 (semble); Prochaska v. Fox, 137 Mich. 519, 100 N. W. 746; Hughes v. Hood, 50 Mo. 350; Williams v. Burrell, 1 C. B. 402; Lock v. Furze, L. R. 1 C. P. 441.
52. Ashley v. Warner, 11 Gray (Mass.) 43.
53. McAlpin v. Woodruff, 11 Ohio St. 120; Lanigan v. Kille, 97 Pa. St. 120, 39 Am. Rep. 797; American Ice Co. v. Pocono Spring Water Ice Co., 105 C. C. A. 625, 183 Fed. 193.
54. See Mack v. Patchin, 42 N. Y. 167, 1 Am. Rep. 506.
55. Riley v. Hale, 158 Mass. 240, 33 N. E. 491; Blossom v Knox, 3 Pin. (Wis.) 262, 3 Chand (Wis.) 295.
Dependent is, as between a lessor and lessee, as in any other connection, a question of the intention of the parties as collected from the language used by them.56 The modern tendency, it is said, in reference to contracts generally, is to construe promises as dependent on each other when they form the whole consideration for each other,57 but this criterion would seem to be inapplicable to covenants in leases, since the making of the demise itself, that is, the grant of an estate in the land, ordinarily enters into the consideration.58 Such covenants call rather for the application of the rule that where a covenant goes only to a part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant.59 Such covenants might also call for the application of the asserted rule that covenants are to be treated as independent rather than as conditions precedent, especially where some benefit has been derived by the covenantor.60