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 .
25 Kan. 674, 37 Am. Rep. 277; Wattles v. South Omaha Ice & Coal Co., 50 Neb. 251, 36 L. R. A. 424, 61 Am. St. Rep 554, 69 N. W. 785; Coogan v. Parker, 2 S. C. 255, 16 Am. Rep. 659. The question of the equity of the rule is discussed in 1 Tiffany, Landlord & Ten., Sec. 182 m (1).
87. Ainsworth v. Ritt, 38 Cal. 89, 99 Am. Dec. 352; Schmidt v. Pettit, 8 Dist. Col. (1 Mc Arth) 179.
88. Mcmillan v Solomon, 42 Ala. 356, 94 Am. Dec. 654; Wo-mack v. Mcquarry, 28 Ind. 103, 92 Am. Dec. 306; Stockwell v. Hunter, 11 Metc. (Mass.) 448, 45 Am. Dec. 222; Graves v. Berdan,
26 N. Y. 498; Moving Picture Co. v. Scottish etc. Ins. Co, 244 Pa. 358, 90 Atl. 642; Paxson & Comfort Co. v Potter, 30 Pa. Super Ct. 615; Porter v. Tull. 6 Wash. 408, 22 L. R. A. 613, 36 Am. St. Rep. 172, 33 Pac. 965.
The operation of the rule that the liability for rent continues in spite of the partial or total destruction of the buildings on the leased premises may be, and frequently is, excluded by an express provision to the contrary in the instrument of lease. Provisions of this character have quite frequently been the subject of judicial construction.90
In a number of jurisdictions statutes have been adopted which have the effect of partly or wholly relieving the tenant from rent in case of the destruction of the buildings, or any part thereof, during the term. For instance the New York statute9l provides that "where any building which is leased or occupied is destroyed or so injured by the elements, or any other cause, as to be untenantable and unfit for occupancy, and no express agreement to the contrary has been made in writing, the lessee or occupant may, if the destruction or injury occurred without his fault or neglect, quit and surrender possession of the leasehold premises; and he is not liable to pay to the lessor or owner rent for the time subsequent to the surrender." These statutes have frequently been before the courts for construction.92
89. Izon v. Gorton, 5 Bing N. Cas. 501; Marshall v. Schofield, 52 L. J. Q. B 58. See Selby v. Greaves, L. R. 3 C. P. 954.
90. See 1 Tiffany, Landlord & Tenant, Sec. 182 m (6).
91. Real Property Law, Sec. 197, changing the language of the original act of 1860.
92. See cases cited 1 Tiffany, Landlord & Tenant. Sec. 182 m (8), and Harvey v. Weisbaum, 159 Cal. 265, 33 L. R. A. (N. S.) 540, Ann., las. 1912B, 1115, 113 Pac. 656;
The time of the eviction of the tenant and his restoration to possession, even though the landlord does not himself retain the possession.97
- Eviction by landlord. An eviction of ten tenant by the landlord, the nature of which is elsewhere discussed,93 has the effect of suspending the tenant's liability for rent thereafter to become due,94 even though the eviction is as to merely a part of the premises, the tenant retaining possession of the balance.95 Though the courts frequently refer to an eviction by the landlord as absolutely terminating the liability for rent, this is not quite correct. It merely suspends the liability for such time as the tenant remains out of possession of the whole or a part of the premises as a result of the eviction.96 The tenant is free from liability for the rent becoming due between
Spear v. Baker, 117 Md. 570, 84 Atl. 62; Fink v. Weinholzer, 109 Minn. 381, 123 N. W. 931; Lin-'deke v. Mcarthur's Inc., 125 Minn. 1, Ann. Cas 1915C, 600, 145 X. W 399; Carley v. Liberty Hat Mfg. Co., 81 N. J. L. 502, 33 L. R. A. (N. S.) 545, 79 Atl. 447; Sayre v. Roseville Motor Co., 85 N. J. L. 10, 91 Atl. 596; Colonial Land Co v. Asmus, 82 N. J. L. 521, 81 Atl. 827; Acme Ground Rent Co. v. Werner, 151 Wis. 417, 139 N. W. 314.
93. Ante, Sec. 58(b). • 94. Upton v. Townend, 17 C. B. 30; Engstrom v. Tyler, 46 Kan. 317, 26 Pac. 735; Royce v. Guggenheim. 106 Mass. 201, 8 Am. Rep. 322; Osmers v. Furey, 32 Mont. 581, 81 Pac. 345; Bennett v. Bittle, 4 Rawle (Pa.) 339; Poston v. Jones, 37 N. C. (3 Ired. Eq.) 350, 38 Am. Dec. 683; Wolf v. Eppenstein, 71 Ore. 1, 140 Pac. 751.
95. Co. Litt. 148b; Gilbert, Rents, 173; Skaggs v. Emerson, 50 Cal. 3; Frepons v. Grostein, 12
Idaho, 671, 87 Pac. 1004; Smith v. Wise, 58 I11. 141; Smith v. Mcenany,. 170 Mass. 26, 64 Am. St. Rep. 272, 48 N. E. 781; Kus-chinsky v. Flanigan, 170 Mich. 245, 41 L. R. A. (N. S.) 430, Ann. Cas. 1914A, 1228, 136 N. W. 362; Christopher v. Austin, 11 N. Y. 216; Galleher v. O'grady, - N. H. -, 100 Atl. 549; Morris v. Kettle, 57 N. J. L. 218, 30 Atl. 879; Linton v. Hart, 25 Pa. 193, 64 Am. Dec. 691; Edmison v. Lowry, 3 S. D. 77, 17 L. R. A. 275, 44 Am. St. Rep. 774, 52 N. W. 583; Briggs v. Hall, 4 Leigh (Va.) 484, 26 Am. Dec. 326.. New York Dry Goods Store v. Pabst Brewing Co., 50 C C. A. 295, 112 Fed. 381; Contra in Alabama, Warren v. Wagner, 75 Ala. 188, 51 Am. Rep. 446; Anderson v. Winton, 136 Ala. 422, 34 So. 962.
96. Co. Litt. 319a; Mackubin v. Whetcraft, 4 Har. & Mch. (Md.) 135; Smith v. Mcenany, 170 Mass. 26, 64 Am. St. Rep. 272, 48 N. E. 781; Day v. Watson, 8 Mich. 535; Tiley v. Moyers, 43 Pa. 404.
As to the effect of an eviction during a rent period, when the rent is payable in advance for that period, the cases are not agreed, some being to the effect that the tenant is,98 and others to the effect that he is not,99 relieved in such case. It is somewhat difficult to comprehend how, after the tenant has, by the terms of the lease, become absolutely liable for an instalment of rent, he can be relieved from such liability by a subsequent occurrence. The fact of such advance payment could, however, it seems, be considered in assessing damages on account of the eviction, whether the claim for damages is asserted by way of set off or in a separate action.1 A mere trespass or entry by the landlord, not amounting to an eviction,2 does not affect the liability for rent.3
- Eviction under paramount title. The liability for the rent comes to an end upon the eviction of the tenant from the entire premises by one having paramount title.4 Even though this eviction is merely con97. Cibel v. Hill, 1 Leon. 110; Bennett v. Bittle, 4 Rawle (Pa.) 339.