Morris v. Kettle

• Decision Date: 12 January 1895
• Citation: 30 A. 879,57 N.J.L. 218
• Parties: MORRIS v. KETTLE.
• Court: New Jersey Supreme Court

30 A. 879

57 N.J.L. 218

MORRIS

v. KETTLE.

Supreme Court of New Jersey.

Jan. 12, 1895.

Case certified from circuit court, Hudson county; before Justice Lippincott.

Action by Miles Morris against Margaret Kettle. There was a verdict for plaintiff, and the case was certified to the supreme court. Heard on rule to show cause. New trial advised.

Argued before BEASLEY, C. J., and DEPUE, VAN SYCKEL, and LIPPINCOTT, JJ.

Van Winkle & Klink, for plaintiff.

Pagan & Murphy, for defendant.

DEPUE, J. This action was in contract upon a covenant contained in a lease, for the recovery of rent for 13 months. By a lease in writing and under seal, dated February 1, 1891, the plaintiff demised to the defendant certain premises for the term of five years from February 1, 1891. It was admitted that the rent from September 1, 1892, to October 1, 1893, had not been paid. The defense was that the defendant had been evicted by the plaintiff from a part of the demised premises before any of the unpaid rent became due. In debt for rent under the plea of nil debet, the defendant may show an eviction; but, in an action of covenant, an eviction cannot be set up unless specially pleaded, for the reason that in the action of covenant there is no general issue. 1 Saund. 204, note 2; Lewis v. Payn, 4 Wend. 427. But, the defense having been admitted without objection, the infirmity in the defendant's pleading will be overlooked. The defendant continued to pay the monthly payments of rent for seven months after the act of eviction complained of, and remained in possession of the remainder of the premises. The trial judge instructed the jury that, when a tenant is evicted from part of the premises by his landlord, he is discharged from the payment of rent for the residue of the term, if he chooses to quit the premises, but that, if he remain in possession during the term of his lease, he is taken to have consented and acquiesced in the eviction, and is bound to pay the rent as fixed by the lease, because he is in that event in possession under no other agreement; and the question was left to the jury whether the defendant, by continuing in possession after the eviction complained of and paying rent, did not acquiesce in the eviction, and waive her rights. This view of the legal effect of an eviction by the landlord is erroneous. If the tenant be evicted from part of the premises by a stranger under a title paramount to that of the landlord, the rent will be apportioned. Doe v. Meyler, 2 Maule & S. 276. But, if such eviction be by the landlord, there will be a total suspension of the rent during the continuance of the eviction, "for the lessor cannot so apportion his own wrong as to enforce the lessee to pay anything for the residence." 2 Piatt, Leas. 127. The reason given by Chief Baron Gilbert for this rule of the common law is "that no man be encouraged to injure or disturb his tenant in his possession"; and he adds "that such disseisin or tortious entry suspends the whole rent, and the lessee or tenant is discharged from the payment of any part of it till he be restored to the whole possession." Gilb. Rents, 173. This rule of the common law is inflexible. For rent which by the terms of the demise would accrue during the continuance of the eviction the landlord can neither sue, nor can he distrain for the rent reserved, or any part of it; nor can he recover for use and occupation, although in either case the tenant has continued in possession of the remaining part of the premises demised. Neale v. Mackenzie, 1 Mees. & W. 747; Upton v. Townend, 17 C. B. 30; Lewis v. Payn, 4 Wend. 423; Leishman v. White, 1 Allen, 489; Colburn v. Morrill, 117 Mass. 262; Christopher v. Austin, 11 N. Y. 216; Smith v. Wise, 58 Ill. 141; Hayner v. Smith, 63 Ill. 430; 7 Am. & Eng. Enc. Law, 41, tit. "Eviction," and cases cited. The common-law rule that, upon an eviction by the landlord from part of the premises, the entire rent and all remedy for its collection will be suspended during the continuance of the eviction, was expressly recognized by this court In Hunter v. Reiley, 43 N. J. Law, 480-482. Such an act of disseisin on the part of the landlord does not...