- Acts of omission. An eviction by the landlord is properly an affirmative act on his part, an act of commission, involving an interruption of or interference with the tenant's possession or enjoyment of the premises. It is, in its nature, a wrongful act which involves a breach of the covenant of quiet enjoyment. Unfortunately, the courts have occasionally lost sight of the true nature of an eviction in this respect, and because an eviction is a recognized defense to a claim for rent, there is a tendency to say that there is an eviction whenever a condition exists on the premises which the court regards as justifying a failure to pay rent. Some courts have, for instance, applied the term to a mere failure of the tenant to perform covenants which he may have made, the nonperformance of which renders the premises less desirable for some particular purposes. Thus, breaches by a landlord of covenants by him to furnish electric power for use on the premises,76 to furnish heat,77 and to furnish proper elevator service,78 have each been referred to as constituting an eviction. Occasionally the expression has even been applied to an undesirable physical condition of the premises, not the result of any act or omission of the landlord, merely because the tenant has, by statute, the right to relinquish possession and refuse to pay rent if such condition is not removed.79 The mere fact that the tenant is thus given the right to refuse to pay rent on account of such "untenantable" condition of the premises does not impose upon the landlord any obligation to remedy that condition, as appears from the fact which, it is conceived, is not open to question, thai the tenant has no right of action against the landlord for failure to remove such condition unless he has entered into a covenant to that effect. This being so, the statement that the existence of such a condition constitutes an eviction by the landlord is equivalent to a statement, it would seem, that the landlord may be guilty of an eviction because he fails to do what he is under no obligation to do. Even when the tenant has entered into a covenant, the failure to perform which results in an untenantable condition, it is not perceived how either the breach of covenant. or the resulting untenantable condition, or both together, can properly be referred to as an eviction, whatever may be the effect on the liability for rent.80

76. Brown v. Holyoke Water-Power Co., 152 Mass. 463, 23 Am. St. Rep. 844, 25 N. E. 966.

77. Harmony Co. v. Rauch, 64 111. App. 386; Bass v. Rollins. 63 Minn. 226, 65 N. W. 348; Jackson v. Paterno, 58 N. Y. Misc. 201, 108 N. Y. Supp. 1073; Riley v. Pettis County, 96 Mo. 318, 9 S. W. 906; Lawrence v. Burroll, 17 Abb. N. C. (N. Y.) 312; Russel v. Olson, 22 N. D. 410, 37 L. R. A. N. S. 1217, Ann. Cas. 1914B 1069, 133 N. W. 1030; McSorley v. Allen, 36

Pa. Super. Ct. 271.

78. McCall v. New York Life Ins. Co., 201 Mass. 223, 21 L. R. A. (N. S.) 38, 87 N. E. 582; Lawrence v. Mycenian Marble Co., 1 N. Y. Misc. 105, 20 N. Y. Supp. 698; Ardsley Hall Co. v. Sirrett, 86 N. Y. Supp. 792. See Delmar Inv. Co. v. Blumenfeld, 118 Mo. App. 308, 94 S. W. 823.

79. See, e. g., Tallman v. Murphy 120 N. Y. 345, 24 N. E. 716; Sully v. Schmitt, 147 N. Y. 248, 49 Am. St. Rep. 659, 41 N. E. 514.

- (c) Effect of eviction. An eviction of the tenant gives him a right of action on the covenant for quiet enjoyment,81 and, in the case of an eviction by the landlord, he has also ordinarily a right of action in tort for the interference with his possession and enjoyment.82 The most important effect, however, is that upon the tenant's liability for rent. An eviction by the landlord, whether from the whole or a part of the premises, has the effect of suspending the tenant's liability for rent, and the result of a total eviction under title paramount is absolutely to extinguish such liability. Rut in the case of a merely partial eviction by title paramount, the rent is apportioned, and is extinguished merely to the extent of the eviction.83

80. See Wright v. Lattin, 38 111. 293; Hallett v. Wylie, 3 Johns. (N. Y.) 44, 3 Am. Dec. 457; Etheridge v. Osborn, 12 Wend. (N. Y.) 399; Huber v. Ryan, 26 N. Y. Misc. 428, 56 N. Y. Supp. 135;

Biggs v. McCurley. 76 Md. 409, 25 Atl. 466.

81. Ante Sec. 49(b).

82. See 2 Tiffany, Landlord & Ten. Sec. 185i.

83. Post Sec. 413 at note 93 et seq.

Real Property.

[Sec. 58

An eviction by the landlord does not, it seems, terminate the tenancy. That this is so, would appear from the statements in the books, not that the rent is extinguished by an eviction but that it is suspended thereby,84 and that it is revived by the tenant's reentry.85 That an eviction from part does not terminate the tenancy has been clearly asserted,86 and it does not, it has been decided, relieve the tenant from the performance of his covenants other than for the payment of rent, such as that to repair,87 or to use the premises in a tenant-like manner.88 The occasional statements to the contrary, that a partial or entire eviction terminates the tenancy, are presumably to be construed as referring merely to the question then at issue, the termination, for the time being, of the liability for rent. The view that the tenancy still exists after the eviction does not necessarily mean that the tenant's liability for rent revives merely upon the landlord's subsequent withdrawal from the premises, but it is, it seems, only upon the tenant's re-entry that such liability revives.89

The effect of an eviction under paramount title is, it seems, different from that of an eviction by the landlord, in that it absolutely extinguishes the relation of tenancy.90

84. See Bro. Abr., Apportionment, pl. 7; Co. Litt. 148b; Hodg-kins v. Robson, Vent. 277.

85. Cibel v. Hills, 1 Leon. 110, pl. 149; Timbrell v. Bullock, Styles, 446; Bro. Abr., Extinguishment, pl. 4; Co. Litt. 319a.

86. Leishman v. White, 83 Mass. (1 Allen) 489; Morrison v. Chadwick, 7 C. B. 266, 283; Smith v. McEnany, 170 Mass. 26, 64 Am. St. Rep. 272, 48 N. E. 781.

87. Newton v. Allen, 1 Q. B. 519; Smith v. McEnany, 170 Mass. 26, 64 Am. St. Rep. 272, 48 N. E. 781 (dictum).

88. Morrison v. Chadwick, 7 C. B. 266, 283.

89. Cibel v. Hill, 1 Leon, 110; Bennett v. Bittle, 4 Rawle (Pa.) 339; See Lewis v. Payn, 4 Wend. (N. Y.) 423.

90. Wheelock v. Warschauer, 34 Cal. 265; Fitzgerald v. Beebe, 7 Ark. 310; Gartside v. Outley, 58 111. 210, 11 Am. Rep. 59; Stub-bings v. Village of Evanston, 136 111. 37, 11 L. R. A. 839, 29 Am. St. Rep. 300, 26 N. E. 577; Fitch-burg Cotton Manufactory Corp. v. Melven, 15 Mass. 268; Mussey v. Holt, 24 N. H. 248, 55 Am. Dec.