Hannan v. Dusch

• Citation: 154 Va. 356
• Parties: JAMES T. HANNAN v. WALTER F. DUSCH.
• Decision Date: 12 June 1930
• Court: Virginia Supreme Court

Page 356

154 Va. 356

JAMES T. HANNAN v. WALTER F. DUSCH.

Supreme Court of Virginia, Wytheville.

June 12, 1930.

Absent, Campbell and Holt, JJ.

1. LANDLORD AND TENANT — Covenants — Delivery of Possession of Property to Tenant — Duty of Landlord to Oust Trespassers and Wrongdoers. — A landlord, who without any express covenant as to delivery of possession, leases property to a tenant is not required under the law to oust trespassers and wrongdoers so as to have the property open for entry by the tenant at the beginning of the term; without an express covenant by the landlord there is no implied covenant to deliver possession to the tenant.

2. LANDLORD AND TENANT — Possession of Tenant — Implied Covenant of Legal Right of Possession. — There is an implied covenant on the part of a landlord to assure to the tenant the legal right of possession; that is, that at the beginning of the term there shall be no legal obstacle to the tenant's right of possession.

3. LANDLORD AND TENANT — Possession of Tenant — Quiet Enjoyment — Possession Disturbed by Wrongdoer — Liability of Landlord. — Where a tenant rightfully in possession under the title of his landlord is thereafter disturbed by a wrongdoer, the tenant must protect himself from the trespasser, and there is no obligation on the landlord to assure his quiet enjoyment of his term as against wrongdoers or intruders.

4. LANDLORD AND TENANT — Covenant for Quiet Enjoyment. — The landlord assures to the tenant quiet possession as against all who rightfully claim through or under the landlord.

5. LANDLORD AND TENANT — Possession of Tenant — Duty of Landlord to put Tenant in Possession — Former Tenant Refusing to Surrender Possession to New Tenant — American and English Rules. — As to the duty of a landlord in the absence of an express covenant, in case a former tenant, who wrongfully holds over, illegally refuses to surrender possession to the new tenant, there are two rules, one called the English rule, which implies a covenant requiring the lessor to put the lessee in possession, and that called the American rule, which recognizes the lessee's legal right to possession, but implies no such duty upon the lessor as against wrongdoers. These rules are irreconcilable. But the American rule would seem to be the most reasonable and is followed in the instant case.

6. LANDLORD AND TENANT — Possession of Tenant — Duty of Landlord to put Tenant in Possession — Former Tenant Refusing to Surrender Possession to New Tenant — English Rule. — The English rule which implies a covenant requiring the lessor to put the lessee in possession, does not extend the period beyond the day when the lessor's term begins. If after that day a stranger trespasses upon the property and wrongfully obtains or withholds possession of it from the lessee, the tenant's remedy is against the stranger and not against the lessor.

7. LANDLORD AND TENANT — Possession of Tenant — Duty of Landlord to put Tenant in Possession — Parties may Protect Themselves. — It is not necessary for either the landlord or tenant to involve himself in uncertainty as to the duty of the landlord to put the tenant in possession, for by appropriate covenants each may protect himself against any doubt either as against a tenant then in possession who may wrongfully hold over by refusing to deliver the possession at the expiration of his own term, or against any other trespasser.

8. LANDLORD AND TENANT — Possession of Tenant — Duty of Landlord to put Tenant in Possession. — In the absence of express contract a landlord who leases property is not bound to put the tenant into actual possession, but is bound only to put him into legal possession, so that no obstacle in the form of a superior right of possession will be interposed to prevent the tenant from obtaining actual possession of the demised premises. If the landlord gives the tenant a right of possession he has done all that he is required to do by the terms of an ordinary lease, and the tenant assumes the burden of enforcing such right of possession as against all persons wrongfully in possession, whether they be trespassers or former tenants wrongfully holding over.

9. LANDLORD AND TENANT — Possession of Tenant — Duty of Landlord to put Tenant in Possession — Former Tenant Holding Over. — Where a new tenant fails to obtain possession of the premises only because a former tenant wrongfully holds over, his remedy is against such wrongdoer and not against the landlord — this because the landlord has not covenanted against the wrongful acts of another and should not be held responsible for such a tort unless he has expressly so contracted. This accords with the general rule as to other wrongdoers, whereas the English rule appears to create a specific exception against lessors.

10. LANDLORD AND TENANT — Lease — Written Lease and Deed Compared — Case at Bar. — Any written lease, for a specific term, signed by the lessor and delivered, is like a deed signed, sealed and delivered by the grantor. In the instant case the lease was for fifteen years and is, and is required to be, by deed. It is a conveyance. During the term the tenant is substantially the owner of the property, having the right of possession, dominion and control over it. The general rule is that the lessee must protect himself against trespassers or other wrongdoers.

11. LANDLORD AND TENANT — Time Lease takes Effect — Possession — Duty of Lessor to put Lessee in Possession in the Absence of Express Covenant. — The general rule is that a lease becomes complete and takes effect upon its execution, unless otherwise specifically provided, and entry by the lessee is not necessary to give it effect. The landlord is not bound to put the tenant into actual possession of the leased premises. He is only bound to put him into legal or constructive possession — that is, to have the premises open to entry without any obstacle in the form of a superior right to prevent the tenant from obtaining actual possession.

12. LANDLORD AND TENANT — Duty of Landlord to put Tenant in Possession in the Absence of Express Covenant — Former Tenant Holding Over — Tenant has Adequate Remedy under the unlawful Detainer Statute — Case at Bar. — The instant case was an action by a tenant against his landlord for damages alleged to be due by reason of the failure of the landlord to put the tenant in possession of the property which was being held by a former tenant. The Supreme Court of Appeals was confirmed in its view that in the absence of express contract the landlord owed no duty to put the tenant into actual possession of the property but only to put him into legal possession, because the Virginia statute (section 5445, et seq. of the Code of 1919), providing a summary remedy for unlawful entry or detainer, gives the tenant an adequate, simple and summary remedy for such a wrong. That statute specifically provides that unlawful detainer shall lie for one entitled to possession in any case in which a tenant shall detain the possession of land after his right has expired without the consent of him who is entitled to possession.

13. LANDLORD AND TENANT — Damages — Mitigation of Damages. — In an action by a tenant against his landlord for breach of covenant as to the tenant's possession, the amount to be recovered must be proportionate to the extent of the injury, and when the injured party has failed or refused to lessen his injury by such prudent action and reasonable exertion as were in his power, recovery will be denied to him to the extent of his failure of duty.

14. DAMAGES — Mitigation of Damages — Duty of Injured Party. — The law imposes upon a party injured by another's breach of contract or tort the active duty of using all ordinary care and making all reasonable exertions to render the injury as light as possible. If by his negligence or wilfulness he allows the damage to be unnecessarily enhanced, the increased loss, that which was avoidable by the performance of his duty, falls upon him.

15. LANDLORD AND TENANT — Action for Injury to Possession Belongs Exclusively to Lessee. — The right of action for injury to the possession during the term of a lease belongs exclusively to the lessee, whether he retains the possession or not, because he has exclusive right of possession.

Error to a judgment of the Circuit Court of the city of Norfolk, in an action of assumpsit. Judgment for defendant. Plaintiff assigns error.

The opinion states the case.

N. T. Green, for the plaintiff in error.

Miller & Jacob, for the defendant in error.

PRENTIS, C.J., delivered the opinion of the court.

The declaration filed by the plaintiff, Hannan, against the defendant, Dusch, alleges that Dusch had on August 31, 1927, leased to the plaintiff certain real estate in the city of Norfolk, Virginia, therein described, for fifteen years, the term to begin January 1, 1928, at a specified rental; that it thereupon became and was the duty of the defendant to see to it that the premises leased by the defendant to the plaintiff should be open for entry by him on January 1, 1928, the beginning of the term, and to put said petitioner in possession of the premises on that date; that the petitioner was willing and ready to enter upon and take possession of the leased property, and so informed the defendant; yet the defendant failed and refused to put the plaintiff in possession or to keep the property open for him at that time or on any subsequent date; and that the defendant suffered to remain on said property a certain tenant or tenants who occupied a portion or portions thereof, and refused to takelegal or other action to oust said tenants or to compel their removal from the property so occupied. Plaintiff alleged damages which he had suffered by reason of this alleged breach of the contract and deed, and sought to recover such damages in the action. There is no express covenant as to the delivery of the premises nor for the quiet possession of the...