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 .
The right to rent ceases upon the making of a release of the rent by the owner thereof in favor of the owner of the land.38 If the release is in terms of a portion only of the rent, the balance remains existent as a charge on the whole land.39 A release, as understood at common law, is an instrument under seal, and such an instrument is valid though without any consideration.40 An agreement not to claim any rent, if not under seal, and not supported by a consideration, is, like any other such agreement, invalid.41
The fact that no rent has been demanded, or that no rent has been paid, for a very considerable period, even twenty years or more, does not raise a presumption that the rent has been released, though it may, by reason of the statute of limitations, prevent a re33. Litt. Sec. 222; Co. Litt. 147b, 148a.
34. Co. Litt. 148a; Bac. Abr., Rent (m) 1.
35. Litt. Sec. 224; Co. Litt. 194b; Cruger v. Mclaury, 41 N. Y. 219.
36. Co. Litt. 147b, and note; Van Rensselaer v. Chad wick, 22 N. Y. 32.
37. Co. Litt. 148a; Gilbert, Rents, 163; Farley v. Craig. 11 N. J. Law (6 Halst.) 262.
38. Litt. Sec. 479; Co. Litt. 280a; Howell v. Lewis, 7 C. & P. 566.
39. Co. Litt. 148a; 2 Leake 407; Ingersoll v. Sargeant, 1 Whart. (Pa.) 337.
40. Co. Litt. 264b; Bac. Abr., Release (A.); Wald's Pollock, Contracts (Williston's Ed.) 812.
41. See Haseltine v. Ausher-man, 87 Mo. 410; Raven v. Chrystie, 84 N. Y. Supp. 470; Donaldson v. Wherry, -it Ont.
Covery of particular installments of rent overdue.42
- Withholding of possession. It has ordinarily been held that the lessee is not liable for rent in case the lessor prevents him from taking possession under the lease.43 By some decisions, even though the lessee takes possession of part of the leased premises, he is, if excluded from the balance, not liable for any part of the rent or on a quantum meruit,,44 but in other cases a different view is taken.45 The exclusion of the tenant by the landlord from part of the leased premises appears so analogous to that of an eviction of the tenant by the landlord from part,46 that it might well, it seems, be regarded as having a similar effect in suspending the entire rent.47
That the lessee, without being prevented from taking possession, fails to take possession, is obviously no defense to a claim for rent.48 One cannot thus rid himself of an obligation assumed by him, merely because he finds it convenient to withdraw from his bargain.
552. But in Hill v. Williams, 41 S. C. 134, 9 S. E. 290, the contrary appears to be assumed.
42. Ehrman v. Meyer, 57 Md. 612, 40 Am. Rep. 448; Jackson v. Davis, 5 Cow. 130, 15 Am. Dec. 451; Lyon v. Odell, 65 N. Y. 28; St. Mary's Church Trustees v. Miles, 1 Whart. (Pa.) 229.
43. Reed v. Reynolds, 37 Conn. 469; Moore v. Guardian Trust Co., 173 Mo. 218, 73 S. W. 143; Penny v. Fellner, 6 Okla. 386, 50 Pac. 123; Mcclurg v. Price, 59 Pa. 420, 98 Am. Dec. 356; Merrill v. Gordon, 15 Ariz. 521, 140 Pac. 496. See ante, Sec. 50.
44. Moore v. Mansfield, 182 Mass. 302, 65 N. E. 398, 94 Am. St. Rep. 657; Mcclurg v. Price 59
Pa. 420, 98 Am. Dec. 356; Penny v. Fellner, 6 Okla. 386, 50 Pac. 123. See Mcleod v. Russell, 59 Wash. 676, 110 Pac. 626.
45. See Knox v. Hexter, 42 N. Y. Super. Ct. (10 Jones & S.) 8; Eldred v. Leahy, 31 Wis. 541, 11 Am. Rep. 613.
46. Ante, Sec. 58.
47. Post, this section, note 95.
48. Levi v. Lewis, 6 C. B. N. S. 766; Douglass v. Branch Bank, 19 Ala. 659, 54 Am. Dec. 207; Little v. Hudgins, 117 Ark. 272, 174 S. W. 520; Marix v. Stevens, 10 Colo. 261, 15 Pac. 350; Union Pac. R. Co. v. Chicago, R. I. & P. R. Co.. 164 111. 88, 45 N. E. 488; Brown v. Cairns, 107 Iowa, 727, 77 N. W. 478; Becar v. Flues,
- Exclusion by paramount owner. That the lessee is unable to obtain possession owing to the possession of one having paramount title, is a good defense to a claim for the rent,49 and this has been held to be so even though the exclusion from possession extends to but a part of the premises.50 It has been decided, however, that if the lessee takes possession of the part from which he is not excluded, he is liable in an action of use and occupation accordingly.51 It would seem that the partial exclusion of the lessee from possession by one having paramount title might well be assimilated, so far as concerns its effect on his liability for rent, to his partial eviction by such person, so as to call for an apportionment of the rent,52 and there are occasional decisions to that effect.53
One holding under a previous unexpired lease by the same lessor holds by paramount title, for this purpose,54 as for others.55-56
It has been asserted in England and Canada,57 that possession of part of the leased premises, by a third person holding under an unexpired prior lease
64 N. Y. 518; Mcglynn v. Brock, 111 Mass. 219.
49. Brandt v. Philippi, 82 Cal. 640, 23 Pac. 122, 7 L. R. A. 224; Duncan v. Moloney, 115 111. App. 522; Andrews v. Woodcock, 14 Iowa, 397; Posten v. Jones, 37 N. C. (2 Ired, Eq.) 350, 38 Am. Dec. 683; Maverick v. Lewis, 3 Mccord (S. C.) 211; State University v. Joslyn, 21 Vt. 52. See ante, Sec. 50.
50. Neale v. Mckenzie, 1 Mees. & W. 746; Dengler v. Michelssen, 76 Cal. 125, 18 Pac. 138.
51. Lawrence v. French, 25 Wend. (N. Y.) 443, 7 Hill, 519; Tunis v. Grandy, 22 Gratt. (Va.) 109; Wlatson v. Wand, 8 Kxch.
52. Post, this section, note 9.
53. Mcloughlin v. Craig, 7 Ir. C. L. 117; Seabrook v. Moyer, 88 Pa. 417.
54. See Neale v. Mckenzie, 1 Mees. & W. 746; Dengler v. Michelssen, 76 Cal. 125, 18 Pac. 138; Lawrence v. French, 25 Wend. (N. Y.) 443, 7 Hill, 519; Tunis v. Grandy, 22 Gratt. (Va.) 519.
55-56. Ante, Sec. 58(a), notes 43-46.
57. Neale v. Mckenzie, 1 Mees. & W. 747; Ecclesiastical Com'rs of Ireland v. O'connor, 9 Ir. C. L 242; Holland v. Vanstone, 27 U. C. Q. B. 15.
Made by the same lessor, will not constitute even a partial defense to an action for rent under the second lease, if this latter is under seal, the theory being that it then operates as a lease in possession of that part of the land of which the lessor has possession, and a lease of the reversion (concurrent lease58) of that part held by the prior lessee. Such a view, that the second lease will, so far as possible be regarded as a concurrent lease, is not suggested in any of the cases decided in this country as to the liability for rent when a part or the whole of the premises is in the possession of a prior lessee.59 In any case, it would seem, the question whether the second lease may be so regarded for the purpose of imposing liability for rent, would be one of the construction of the language used.