There are decisions to that effect that a failure to give possession to the lessee at the time named for the commencement of the term is a breach of the covenant for quiet enjoyment60a which, as we have seen, is ordinarily im56. See Porter v. Shephard, 6 Term. R. 668, per Kenyon, C. J.; Roberts v. Brett, 11 H. L. Cas. 354 per Chelmsford.

57. Hammon, Contracts, p. 905.

58. See Palmer v. Meriden Brit-tannia Co., 188 111. 508, 59 N. E. 247, aff'g 88 111. App. 485.

59. Boone v. Eyre, 1 H. Bl. 273 note a; notes to Pordage v. Cole, 1 Wms. Saund. 320b; Carpenter v. Creswell, 4 Bing. 409. See Pal mer v. Meriden Brittannia Co. 188 111. 508, 59 N. E. 247, aff'g 88 111. App. 485; Butler v. Manny, 52 Mo. 497; Lewis v. Chisholm 68 Ga. 40.

60. Newson v. Smythies, 2 Hurl. & W. 840.

60a. Ludwell v. Newman, 6 Term. R. 458 (semble); Smart v. Stuart, 5 U. C. Q. B. (O. S.) 301; King v. Reynolds, 67 Ala. 229, 42 Am. Rep. 107 (semble); Allan v. Guaranty Oil Co., - Cal. --, 168 Pac. 884; Berrington v. Casey, 78 111. 317 (implied contract for pos session and quiet enjoyment); Riley v. Hale, 158 Mass. 240, 33 N E. 491; Friedland v. Myers 65 Hun (N. Y.) 619, 19 N. Y. Supp. 741, 47 N. Y. St. Rep. 52; modi fied 139 N. Y. 432, 34 N. E. 1055; Garrison v. Hutton, 118 N. Y. App.

Real Property.

[ Sec. 50 plied from the relation of landlord and tenant, if not expressed in the lease.60b In opposition to this view, however, it has been stated that one who has a mere interesse termini cannot sue on a covenant for quiet enjoyment.60c A covenant for quiet enjoyment in a conveyance in fee is usually regarded as broken by the exclusion of the grantee from possession by one having a paramount title, since the law will not compel the grantee to obtain possession by committing a trespass before bringing suit on the covenant.60d And it would seem that, on the same theory, a lessee should be allowed to sue on such a covenant in the lease if excluded from possession by one having paramount title, or by the lessor himself. There is, however, some difficulty in accepting this view in any jurisdiction in which it is held that an eviction is necessary to effect a breach of the covenant,60e and where it is also the law that one who has not been in possession cannot be evicted.60f Nor can the covenant for quiet enjoyment be regarded as the basis of liability when the lessee is excluded by a stranger, in possession without right,60g it being recognized that the wrongful acts, of strangers are not within the scope of such a covenant.60h

In many of the cases in which the lessee has been allowed to recover damages on account of his exclusion from possession-, the exact theory of the action does not clearly appear. In an English case denying the right of the lessee to sue on the covenant for quiet enjoyment in case of his exclusion from possession, his right of recovery in case of such exclusion is said to "founded on implied covenant,"60i and so in several cases in this country it is said that there is a right of action on the implied agreement to give possession.60j Occasionally the expressions of the court are to the effect that the action is on an agreement to give possession, without terming the agreement "implied" although it is not expressed otherwise than in the language of demise.60k Not infrequently the courts speak of the action for damages for exclusion from possession as being for "breach of the contract of lease,"60lan expression which has been criticised in a previous part of this work.60m This can mean merely that the action is for breach of either an express or implied covenant to give possession. The most satisfactory mode, perhaps, of regarding the lessor's liability in damages on account of the lessee's inability to obtain possession would be to view it as based on a covenant to give possession, implied from the making of the lease, as the covenant for quiet enjoyment is implied from the relation of landlord and tenant.

Div. 455, 103 N. Y. Supp. 265; Steel v. Frick, 56 Pa. 172; Pos-key v. Nunkwitz, 68 Wis. 322, 60 Am. Rep. 858, 32 N. W. 35.

As to the failure to give possession as a defense to the claim for rent, see post Sec. 413 notes 43-63.

60b. Ante Sec. 49(b).

60c. Wallis v. Hands [1893] 2 Ch. 75.

60d. See the discussion of the cases in Rawle, Covenants for Ti tle, Sec. 138 et seq. See, also, cases cited in 8 Am. & Eng. Enc. Law

(2d Ed.) 105; 11 Cyclopedia Law & Proc. 1121.

60e. Ante Sec. 49(b) note 46.

60f. See Etheridge v. Osborn, 12 Wend. (N. Y.) 529; Vander-pool v. Smith, 4 Abb. Dec. (N. Y.) 461; Stiger v. Monroe, 109 Ga. 457, 34 S. E. 595; McClurg v Price & Sims, 59 Pa. St. 420, 93 Am. Dec. 356; Hawkes v. Orton 5 Adol. & E. 367.

60g. Post, this section, note 60u.

60h. Ante Sec. 49(b) note 44.

60i. Wallis v. Hands [1893] 2 Ch. 75, citing Coe v. Clay, 5 Bing. 440, which decided that one who lets agrees to give possession, and is liable in an action for damages if a previous occupant retains-possession.

60j. King v. Reynolds, 67 Ala. 229, 42 Am. Rep. 107; Berrington v. Casey, 78 111. 317; Dilly v. Paynsville Land Co., 173 Iowa 536, 155 N. W. 971; Herpolsheim-er v. Christopher, 76 Neb. 352, 9 L. R. A. (N. S.) 1127, 14 Ann. Cas. 399, 111 N. W. 359, 107 N. W. 382; Trull v. Granger. 8 N. Y 115; Becar v. Flues, 64 N. Y 518; Hertzberg v. Beisenbach, 64

Tex. 262.

60k. Cohn v. Norton, 57 Conn. 480, 5 L. R A. 572, 18 Atl. 575; Clark v. Butt, 26 Ind. 236; Hughes v. Hood. 50 Mo. 350, 351.

601. Carroll v. Peake, 1 Pet. (U. S.) 18, L. Ed. 34; Rice v. Whitmore, 74 Cal. 619, 5 Am. St. Rep. 479, 16 Pac. 501; Townsend v. Nickerson Wharf Co., 117 Mass. 501; Goldman v. Gainey, 67 N. Y. App. Div. 330, 73 N. Y. Supp. 738; Rogers v. McGuffey, 96 Tex. 565, 74 S. W. 753; Engstrom v. Merriam, 25 Wash. 73, 64 Pac. 914; Robrecht v. Marling's Adm'r, 29 W. Va. 765, 2 S. E. 827.

60m. Ante Sec. 39.

Whether we term such a covenant a covenant for quiet enjoyment seems ordinarily immaterial, though in some jurisdictions, as before suggested,60n to do so would not harmonize with the views there asserted with reference to the latter character of covenant.

- Exclusion by one having paramount title. That the exclusion of the lessee by one having a paramount title gives him a right of action against the lessor is asserted in two or three cases,60o and so the lessor has been held liable when the lessee could not obtain possession from one rightfully in possession under a prior lease from the same lessor,60p such prior lessee's title being paramount as regards that of the subsequent lessee.60q The decisions, subsequently referred to,60r that such possession and title in another constitute a defence to a claim for rent, would also, perhaps, tend to support the view that the lessee may recover damages for his exclusion from possession by one having para-mount title. The lessee thus kept out of possession by one having paramount title, even if not regarded as entitled to sue on the covenant for quiet enjoyment or an implied covenant to give possession, would clearly have the right to sue on the covenant of power to demise,60s when such covenant is expressed or can be implied from the use of particular words of demise.60t

- Exclusion by stranger without right. A lessee who is kept out of possession by a third person who has no right to the possession, as when a previous lessee holds over after his term, has, by some decisions, a right to recover damages against his lessor,60u and it has been said, as justifying such view, that "he who lets agrees to give possession, and not merely to give a chance of a law suit."60v By other decisions he has no right of redress against the lessor in such case, it being for the lessee to obtain possession from the wrongdoer.61 It has been said that, even though the lessee is otherwise entitled to damages as against the lessor for exclusion by a stranger, he cannot recover if he has already recovered judgment against the intruder for possession and rents and profits.6la

60n. Ante note 60(e).

60o. Ludwell v. Newman, 6 Term R. 458; Gardner v. Ketel-tas, 3 Hill (N. Y.) 330. See 2 Platt, Leases, 288.

60p. Bernhard v. Curtis, 75 Conn. 476, 54 Atl. 213; Friedland v. Myers, 139 N. Y. 432, 34 N. E. 1055; Steel v. Frick, 56 Pa. 172; Poposkey v. Munkwitz, 68 Wis.

322, 60 Am. Rep. 858, 32 N. W. 35.

60q. Post Sec. 58 (a), notes 43-46.

60r. Post Sec. 413 notes 49-59.

60s. Holder v. Taylor Hob. 12a; Grannis v. Clark, 8 Cow. (N. Y.) 36; 1 Wms. Saund. 322, note a.

60t. Ante Sec. 49 (b) note 35.

It has occasionally been stated that, though the lessor is liable in damages if a stranger is in possession at the time named for the commencement of his term, and the lessee is consequently prevented from taking possession at that time, he is not liable when the lessee is prevented by a stranger from taking possession at a later time,61b and this seems a reasonable limitation on the lessor's liability. He should not be required, if the lessee fails to enter at the time named in the lease, to

60u. Jenks v. Edwards, 11 Exch. 775; King v. Reynolds, 67 Ala. 229, 42 Am. Rep. 107; Rose v. Wynn, 42 Ark. 257 (semble); Hammond v. Jones, 41 Ind. App. 32, 83 N. E. 257; Dilly v. Payns-ville Land Co., 173 Iowa 536, 155 N. W. 971; Hughes v. Hood, 50 Mo. 350, 351; Herpolsheimer v. Christopher, 76 Neb. 352, 9 L. R. A. (N. S.) 1127, 14 Ann. Cas. 399, 111 N. W. 359, 107 N. W. 382; Hertzberg v. Beisenbach, 64 Tex. 262.

60v. Coe v. Clay, 5 Bing. 440.

61. Playter v. Cunningham, 21 Cal. 229; Gazzolo v. Chambers, 73 111. 75; Sigmund v. Howard Bank, 29 Md. 324; Pendergast v. Young, 21 N. H. 234 (dictum); Gardner v. Keteltas, 3 Hill (N.

Y.) 330, 332, 38 Am. Dec. 637; Cozens v. Stevenson, 5 Serg. & R. 421; Underwood v. Birchard, 47 Vt. 305. In Gazzolo v. Chambers, 73 111. 75, it is said that the lessee alone, and not the lessor, had the right to bring an action against the occupant to recover possession, and this seems to have influenced the decision. In King v. Reynolds, 67 Ala. 229, 42 Am. Rep. 107, cited in note 21, ante, it is, on the other hand, said that such action cannot be brought by the lessee.

61a. Hughes v. Hood, 50 Mo. 350, 351.

61b. King v. Reynolds, 67 Ala. 229, 42 Am. Rep. 107; Hertzberg v. Beisenbach, 64 Tex. 262.

Real, Property.

[ Sec. 51 keep the premises free from intruders until the lessee chooses to enter.

There is a decision apparently to the effect that one who purchases the property after the time for the delivery of possession under the lease is liable in dam, ages if the lessee is, because of a wrongful holding over by a prior lessee, prevented from obtaining possession after the purchase.61c

- Exclusion by lessor. In case the lessor himself refuses to allow the lessor to take possession at the commencement of the term,61d or in effect does so by leasing to another before such time has arrived,61e the lessee may, the cases are agreed, recover damages from the lessor.