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 .
53. Borough of Poole v. Whitt, 15 Mees & W. 571; Merryman v. Bourne, 9 Wall. (U. S.) 592, 19 L. Ed. 683; Lyon v. Washburn, 3 Colo. 201; Montanye v. Walla-han, 84 111. 355; Kane v. Mink, 64 Iowa 84, 19 N. W. 852; Luns-ford v. Turner, 5 J. J. Marsh (Ky.) 104, 20 Am. Dec. 248; Martin v. Martin, 7 Md. 368, 61 Am. Dec. 364; Holbrook v. Young, 108 Mass. 83; Smith v. Abbott, 221 Mass. 326, 109 N. E. 190; Foss v. Van Driele, 47 Mich. 201, 10 N. W. 199; Hinck v. Cohn, 86 N. J. L. 615, 92 Atl. 378; Whalin v. White, 25 N. Y. 462; West Shore Mills Co. v. Edwards, 24 Ore. 475, 33 Pac. 987; Ross v. Dysart, 33 Pa. 452.
Sible on principle,54 but there are a number of cases opposed thereto.55
The tenant, in yielding possession on demand to a third person asserting a claim of superior title, takes the risk of such claim being a valid one, and in an action between him and his landlord, in which he asserts this as an eviction, he has the burden of showing the validity of the claim to which he has thus yielded.55a The same holds true in the case of an attornment, without a yielding of possession, to one asserting a paramount title,56 and likewise in the case of the tenant's purchase of such claim.
- (b) By landlord. There clearly is an eviction by the landlord if he forcibly dispossesses the tenant, as there is if, during the temporary absence of the tenant, the landlord prevents him from returning.57 But not only is such an act, which in itself involves a direct deprivation of possession, regarded as an eviction, but so is any other act which so affects the tenant's enjoyment of the premises that he relinquishes possession, provided this act is a legal justification for such relinquishment. An eviction of the latter class, that is, not by the forcible removal or exclusion of the tenant but by the acts of interference with his enjoyment resulting in his relin54. See 1 Tiffany, Landlord & Ten. Sec. 78 p. (2).
55. Rogers v. Boynton, 57 Ala. 501; Simmons v. Robertson, 27 Ark. 50; Thompson v. Pioche, 41 Cal. 508; Lowe v. Emerson, 48 111. 160; Mason v. Bascom, 3 B. Mon. (Ky.) 269; Mosher v. Cole, 50 Neb. 636, 70 N. W. 275; Jack-son v. Harper, 5 Wend. (N. Y.) 246; Dem d. Belfour v. Davis, 20 N. C. (3 Dev. & B. L.) 443, McCardell v. Williams, 19 R. I. 701, 36 Atl. 719; Hammond v. Dean, 8 Baxt. (Tenn.) 193; Stover v. Davis, 57 W. Va. 196, 49 S.
E. 1023; Delaney v. Fox, 2 C. B. (N. S.) 768.
55a. Hamilton v. Cutts, 4 Mass. 349, 3 Am. Dec. 222; Morse v. Goddard, 54 Mass. (13 Mete.) 177, 46 Am. Dec. 728; Marsh v. But-terworth, 4 Mich. 575; Spear v. Allison, 20 Pa. 200; Murray v. Pennington, 3 Grat. (Va.) 91; Rawle, Covenants for Title, Sec. 136.
56. Merryman v. Bourne, 76 U. S. (9 Wall.) 592, 19 L. Ed. 683; Borough of Poole v. Whitt, 15 Mees. & W. 577.
In order that there be an eviction by the landlord, in the legal sense, it is necessary that the tenant no longer retain possession of the premises. In case of an actual dispossession of the tenant, an "actual eviction," no question can arise in this regard, but when there is merely an interference with his possession and enjoyment, it is necessary that the tenant relinquish possesses of the premises in order that there be a "constructive eviction," the theory being that the acts of interference by the landlord compel the tenant to leave and that he is thus in effect dispossessed, though not forcibly deprived of possession.58 As has been remarked, "the proposition that there can be retention of demised premises and an eviction are logically and legally contradictory."59 It is true that the courts usually speak of a
48 Pac. 671; Hayner v. Smith, 63 111. 430, 14 Am. Rep. 124; Skally v. Shute, 132 Mass. 367; Hall v. Middleby, 197 Mass. 485, 83 N. E. 1114; Witte v. Quinn, 38 Mo. App. 681.
A forcible expulsion of the tenant is an eviction, though thereafter no attempt is made to prevent his return. Cibel v. Hills, 1 Leon. 110.
The refusal to allow the tenant to have a key made, so that he is unable to enter, has been held to be an eviction. Smith v. Tennyson, 219 Mass. 508, 107 N. E 423.
58. Crommelin v. Thiess, 31 Ala. 412, 70 Am. Dec. 499; Agar v. Winslow, 123 Cal. 587, 69 Am. St. Rep. 84, 56 Pac. 422; Barett v. Baddie, 158 111. 479, 49 Am. St. Rep. 172, 42 N. E. 143; Talbott v. English, 156 Ind. 299, 59 N. E.
857; National Furniture Co. v. Inhabitants of Cumberland County, 113 Me. 175, 93 Atl. 70; Roth v. Adams, 185 Mass. 341, 70 N. E. 445; Beecher v. Duffield, 97 Mich. 423, 56 N. W. 777; Metro-pole Const. Co. v. Hartigan, 83 N. J. 409, 85 Atl. 313; Boreel v. Law-ton, 90 N. Y. 293, 43 Am. Rep. 170; Edgerton v. Page, 20 N. Y. 281; New State Brewing Ass'n v. Miller, 43 Okla. 183, 141 Pac. 1175; Sutton v. Foulke, 44 Leg. Int. (Pa.) 5; Wilson v. Smith, 13 Tenn. (5 Yerg.) 379; Ralph v. Lomer, 3 Wash. St. 401, 28 Pac. 760.
59. Mortimer v. Brunner, 19 N. Y. Super. Ct. (6 Bosw.) 653. So it is said by Larremore, C. J., in Koehler v. Scheider, 15 Daly, 203, 4 N. Y. Supp. 611, the statement that a tenant, while remaining in possession, cannot assert an evicparticular act or series of acts on the part of the landlord as constituting a constructive eviction vel non without any reference to the subsequent relinquishment of possession by the tenant, but this is not a strictly accurate mode of expression, since parting with the possession is as much a part of the eviction when the tenant leaves as a result of the landlord's interference with his enjoyment as when he is forcibly ousted, he being in theory ousted by the landlord in the former case as in the latter.
In order that an eviction may take place as a result of acts on the part of the landlord involving merely an interference with the tenant's possession and enjoyment, as distinct from an actual dispossession, it is said to be necessary that they be such as to indicate an intention on the landlord's part to deprive the tenant of the possession.60 The intention here referred to is, however, ordinarily of a purely legal nature, inferred from the character of the landlord's act or acts, and the question of actual intent arises, it has been said, "only when tion, "is only another way of saying that one cannot raise the defense of eviction unless he has been evicted."