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 .
An eviction of the tenant may be either by the landlord or by a third person having a title paramount to that of the landlord. There is no such thing, in a legal sense, as an eviction by a third person not having paramount title, or, as the same idea may be otherwise expressed, using the term in an untechnical sense, an eviction by a third person, not having paramount title, and not acting under the landlord's authority, does not have any legal effect as against the landlord but merely renders such third person liable as a tort feasor for the trespass.41
An eviction under title paramount occurs when the tenant is deprived of possession by one having a right to such possession not derived from the tenant himself, which takes precedence of the rights of the tenant under the lease42 The expression "title paramount" does not, ton, 8 Ala. 606; Robertson v. Bid-dell, 32 Fla. 304, 13 So. 358; St. John v. Quitzow, 72 111. 334; Kinney v. Leman, 8 Blackf. (Ind.) 350; Presstman v. Silljacks, 52 Md. 647; Jenkinson v. Winans, 109 Mich. 524, 67 N. W. 549; Russell v. Allard, 18 N. H. 222; Newell v. Gibbs, 1 Watts & S. (Pa.) 496.
41. Schilling v. Holmes, 23 Cal. 227; Eisenhart v. Ordean, 3 Colo. App. 162, 32 Pac. 495; Talbott v. English, 156 Ind. 299, 59 N. E. 857; Eagle v. Matthews. 98 Kan. 715, 160 Pac. 211: Wagner v. White, 4 Har. & J. (Md.) 564; Kimball v.
Masters, Wardens & Members of Grand Lodge of Masons in Massachusetts, 131 Mass. 59; Stewart v. Lawson, - Mich. -, 165 N. W. 716; Blythe v. Pratt, 62 Miss. 707; Gribbie v. Toms, 70 N. J. L. 522, 57 Atl. 144; Id. 71 N. J. L. 338, 59 Atl. 1117; McKenzie v Hatton, 141 N. Y. 6, 35 N. E. 929; State v. George, 34 Ohio St. 657; Linton v. Hart, 25 Pa. 193, 64 Am. Dec. 691; McNairy v. Hicks, 3 Baxt. (Tenn.) 378.
42. See Foster v. Pierson, 4 Term R. 617; Naglee v. Ingersoll, 7 Pa. 185; Seabrook v. Moyer, 88 Pa. 417.
In this connection, necessarily refer to a title superior to that which the landlord originally had, but it includes a title derived from the landlord himself which, as being prior to the lease, takes precedence thereover. For instance, if the tenant under the lease is dispossessed by one claiming under a valid prior lease made by the same lessor, there is an eviction by title paramount;43 and there is likewise such an eviction if the tenant is dispossessed by one claiming under a mortgage or other lien created by the landlord before the making of the lease, as when it is by a mortgagee having the legal title, with the right of possession thereunder,44 or by a purchaser at foreclosure sale.45 The title of the dispossessor can, in such cases, be regarded as "paramount" to that of the landlord only in so far as any grantee's title is paramount to that of his grantor.46 In cases where the eviction is by one having a valid title not derived from the lessor, the title is evidently "paramount" in the strictest sense of the term. Occasionally the paramount title is that of the lessor in chief to which a subtenant is compelled to yield upon the termination or forfeiture of the principal lease, this effecting an eviction of the subtenant which he may assert against the sublessor.47
For the purpose of an eviction by title paramount, the tenant may be dispossessed under legal pro43. See McAlester v. Landers, 70 Cal. 79, 11 Pac. 505; Tunis v. Grandy, 22 Grat. (Va.) 109; Neale v. McKenzie, 1 Cromp. M. & R. 61, 1 Mees. & W. 747; Lawrence v. French, 25 Wend. (N. Y.) 443 (semble).
44. See Smith v. Shepard, 32 Mass. (15 Pick.) 147, 25 Am. Dec. 432; George v. Putney, 58 Mass. (4 Cush.) 351, 50 Am. Dac. 788.
45. See Simers v. Saltus, 3 Denio (N. Y.) 214; O'Neill v. Morris, 28 N. Y. Misc. 613, 59 N. Y. Supp. 1075; Kane v. Mink, 64
Iowa, 84, 19 N. W. 852; Mariner v. Chamberlain, 21 Wis. 251. See ante Sec. 53 (b) note 21.
46. See Abbott's Law Dictionary, sub. verb. "Paramount."
47. Holbrook v. Young, 108 Mass. 83, 11 Am. Rep. 310; Home Life Ins. Co. v. Sherman, 46 N. Y. 370; Hyman v. Boston Chair Mfg. Co., 32 N. Y. St. Rep. 113, 58 Super. Ct. (26 Jones & S.) 282, 11 N. Y. Supp. 52; Geer v. Boston Little Circle Zinc Co., 126 Mo. App. 173, 103 S. W. 151.
Ceedings on the part of the holder of such title,48 or he may, it seems, be dispossessed by the latter by force exerted directly by him or his servants without any judicial authority,49 as when the owner of the paramount title renders the premises untenantable by removing part of a structure thereon.50 But it is not necessary that the tenant be dispossessed by legal proceedings or by the exercise of force on the part of the holder of the superior title, it being sufficient that, upon demand by the holder of the paramount title, the tenant yields possession to him.51 There are occasional decisions, moreover, that there is an eviction of the tenant if he buys the paramount title to protect his possession.52 There are a considerable number of cases to the effect that, without any yielding of possession to the paramount claimant or purchaser of the paramount title, the tenant, if he attorns to the paramount title upon the hostile assertion thereof, may assert such attornment as an eviction.53 This view appears to be entirely defen48. Rawle, Covenants for Title, Sec. 132; Upton v. Townend, 17 C. B. 34; Barnes v. Bellamy, 44 U. C. Q. B. 303.
49. Foster v. Pierson, 4 Term R. 617; Parker v. Dunn, 47 N. C. (2 Jones Law) 203; Ricketts v. Garrett, 11 Ala. 806.
50. Bentley v. Hill, 35 111. 414 (removal of wall by owner thereof.)
51. Carpenter v. Parker, 3 C. B. (N. S.) 206; Tyson v. Chestnut, 118 Ala. 387, 24 So. 73; Camp v. Scott, 47 Conn. 366; Hamilton v. Cutts, 4 Mass. 349, 3 Am. Dec. 222; Marsh v. Butterworth, 4 Mich. 575; Home Life Ins. Co. v. Sherman, 46 N. Y. 370.
52. Ross v. Dysart, 33 Pa. 452; Hulseman v. Griffiths, 10 Phila. (Pa.) 350, 32 Leg. Int. 208. See Rawle, Covenants for Title, Sec. 142;
8 Am. & Eng. Enc. of Law (2d Ed.) 108.