Hannan v. Dusch

Decision Date12 June 1930
CourtVirginia Supreme Court
PartiesHANNAN. v. DUSCH.

Landlord leased premises to lessee for term of 15 years, to begin on designated date at specified rental. When time came for lessee to take possession, property was occupied by former tenants, and landlord refused to take legal action to oust them or compel their removal from property. Thereupon lessee brought action for damages against landlord, based on alleged breach of contract and deed. There was no express covenant as to delivery of premises or for quiet possession by lessee. Landlord contended that he was under no duty to see that premises were open for entry by lessee.

Code 1919, § 5445 et seq., specifically provides that summary remedy for unlawful entry or detainer shall lie for one entitled to possession in any case in which a tenant shall detain possession of land after his right has expired, without consent of him who is entitled to possession.

Error to Circuit Court, City of Norfolk.

Action by James T. Hannan against Walter P. Dusch. Judgment for defendant, and plaintiff brings error.


N. T. Green, of Norfolk, for plaintiff in error.

Miller & Jacob, of Norfolk, for defendant in error.


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, Va., 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 de fendant 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 take legal or other action to oust said tenant or 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 premises by the lessee.

The defendant demurred to the declaration on several grounds, one of which was "that under the lease set out in said declaration the right of possession was vested in said plaintiff and there was no duty as upon the defendant, as alleged in said declaration, to see that the premises were open for entry by said plaintiff."

The single question of law therefore presented in this case is whether a landlord, who without any express covenant as to delivery or possession leases property to a tenant, is required under the law to oust trespassers and wrongdoers so as to have it open for entry by the tenant at the beginning of the term; that is, whether without an express covenant there is nevertheless an implied covenant to deliver possession.

For an intelligent apprehension of the precise question it may be well to observe that some questions somewhat similar are not involved.

It seems to be perfectly well settled that there is an implied covenant in such cases on the part of the 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. This is not the question presented. Nor need we discuss in this case the rights of the parties in case a tenant rightfully in possession under the title of his landlord is thereafter disturbed by some wrongdoer. In such case the tenant must protect himself from trespassers, and there is no obligation on the landlord to assure his quiet enjoyment of his term as against wrongdoers or intruders.

Of course, the landlord assures to the tenant quiet possession as against all who rightfully claim through or under the landlord.

The discussion then is limited to the precise legal duty of the 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. This is a question about which there isa hopeless conflict of the authorities. It is generally claimed that the weight of the authority favors the particular view contended for. There are, however, no scales upon which we can weigh the authorities. In numbers and respectability they may be quite equally balanced.

It is then a question about which no one should be dogmatic, but all should seek for that rule which is supported by the better reason.

That great annotator, Hon. A. C. Freeman, has collected the authorities as they were at the time he wrote, in 1909, in a note to Sloan v. Hart (150 N. C. 269, 63 S. E. 1037, 21 In R. A. (N. S.) 239), 134 Am. St. Rep. 916. We shall quote from and paraphrase that note freely because it is the most succinct and the most comprehensive discussion of the question with which we are familiar.

It is conceded by all that the 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, are irreconcilable.

The English rule is that, in the absence of stipulations to the contrary, there is in every lease an implied covenant on the part of the landlord that the premises shall be open to entry by the tenant at the time fixed by the lease for the beginning of his term. These cases appear to support that rule: King v. Reynolds, 67 Ala. 229, 42 Am. Rep. 107; Rose v. Wynn, 42 Ark. 257; Cohn v. Norton, 57 Conn. 480, 18 A. 595, 5 L. R. A. 572; Spencer v. Burton, 5 Blackf. (Ind.) 57; Clark v. Butt, 26 Ind. 236; Hammond v. Jones, 41 Ind. App. 32, 83 N. E. 257; L'Hussier v. Zallee, 24 Mo. 13; Hughes v. Hood, 50 Mo. 350; Kean v. Kolksehneider, 21 Mo. App. 538; Rieger v. Welles, 110 Mo. App. 173, 84 S. W. 1136; Kerr v. Whitaker, 3 N. J. Law, 670; Albey v. Welngart, 71 N. J. Law, 92, 58 A. 87; Herpolsheimer v. Christopher, 76 Neb. 352, 107 N. W. 382, 111 N. W. 359, 9 L. R. A. (N. S.) 1127, 14 Ann. Cas. 399; Sloan v. Hart, 150 N. G. 269, 63 S. E. 1037, 21 L. R. A. (N. S.) 239, 134 Am. St. Rep. 911; Hertzberg v. Beisenbach, 64 Tex. 262; Stewart v. Murphy, 95 Kan. 421, 148 P. 609, Ann. Cas. 1917C, 612; Coe v. Clay, 5 Bing. 440, 3 M. & P. 57, 7 L. J. C. P., O. S., 162, 30 R. R. 699; Jinks v. Edwards, 11 Ex. 775, 4 R. R. 303.

A dictum to the same effect is found in Schreiner v. Stanton, 26 Wash. 563, 67 P. 219. In Gross, v. Heckert, 120 Wis. 314, 97 N. W. 952, it was held in an action for breach of a lease that, where the landlord "knew at the time the lease was made that he would not be able to deliver possession as required by the lease, and that the lessee intended to use the premises for a saloon, and to prepare to commence business at the beginning of the term, the lessor was liable for all damages which could be reasonably considered to be the natural and proximate result of the breach."

It must be borne in mind, however, that the courts which hold that there is such an implied covenant do not extend the period beyond the day when the lessee's term begins. If after that day a stranger trespasses upon the property and wrongfully obtains or withholds possession of it from the lessee, his remedy is against the stranger and not against the lessor.

It is not necessary for either party to involve himself in uncertainty, 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.

In Rhodes v. Purvis, 74 Ark. 227, 85 S. W. 235, 236, the lessor agreed that the terms should commence "from the date of the occupancy, which the contract provided should commence as soon as vacated by the present occupants." He was not able to eject them as soon as contemplated, and it was held that this provision exempted him from any liability to the new tenant for failure to deliver possession prior to such vacation by the tenants in possession.

As has been stated, the lessee may also protect himself by having his lessor expressly covenant to put him in possession at a specified time, in which case, of course, the lessor is liable for breach of his express covenant where a trespasser goes into possession or wrongfully holds possession, and thereby wrongfully prevents the lessee from obtaining possession. Snodgrass, v. Reynolds, 79 Ala. 452, 58 Am. Rep. 601.

King v. Reynolds, 67 Ala. 229, 42 Am. Rep. 107, has been said to be the leading case in this country affirming the English rule. In that case, after citing some of the cases which affirm the American rule, this is said: "With all due respect for the eminent jurists by whom the decisions in [Cozens v. Stevenson] 5 Serg. & R. [(Pa.) 421], and in [Gardner v. Keteltas] 3 Hill [(N. Y.) 330, 38 Am. Dec. 637], were pronounced, it appears to us that in one phase of the question the argument is faulty. The principle applicable to the case of the lessee's eviction by the lessor himself, or, by a title paramount to that of the lessor, certainly rests on impregnable grounds. Such eviction is a breach of the implied covenant in every lease in general terms, for quiet enjoyment, and, at once, bars the lessor's right to recover rent, and confers on the lessee a right of action, for the lessor's breach of covenant. And when the lessee...

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