In thе promissory notes upon which the-complaint of the appellee is founded, the description of the payee is Oliver R. Dougherty. The answer to the complaint is in two paragraphs, but, as they are substantially the same, it is only necessary to give a synopsis of one of them. It is alleged that the sole consideration of the notes was the execution of a lease by the plaintiff to the defendants Monroe and Madison Avery; that in thе lease the plaintiff covenanted with the defendants that they should have the peaceable, quiet,, and undisturbed possession and enjoyment of the land therein-described for the term of three years; that the defendants entered into the possession of the land; that prior to the time-the notes sued on became due, the plaintiff wrongfully, and without the knowledge or consent of the defendants, entered upon the land, cut down and worked into saw logs and staves a great number of trees; that the plaintiff and- his servants-entered upon the land at seasons when the ground was soft and spongy, and also after the defendants had planted corn, with horses and wagons, and tramped and packed the ground, thereby injuring the crops of the defendants; that the plaintiff left the tops of the trees cut down by him lying on the ground where they fell; that the defendants were compelled to remove these trеe tops at an expense of five hundred dollars ; that by reason of the wrongful entry and unlawful acts of the plaintiff, the defendants were deprived of the possession of the demised premises and greatly damaged, to wit, in thе sum of five hundred dollars. . ,
It is alleged that Jesse Avery executed the notes as the surety of Madison and and Monroe Avery. The conclusion, and prayer of the answer is substantially as follows: Wherefore defendants say that the сonsideration of the notes has failed, and they pray that the damages so sustained by said Madison and Monroe Avery may be recouped, and they have judgment for the money paid upon the notes by them, together with all оther proper relief.
The lease is not well drawn, and is evidently the work of"
The appellee’s counsel assert that the lease is executed by Marshall, and not by Dougherty, and that the allegation‘that it was executed by the latter is overthrown by the exhibit. It is true that the allegations of a pleading are controlled by -the statements of the instrument upon which it is founded. Hines v. Driver,
The general rule is that a tort can not be made to constitute a defence either by way of set-off or counter-claim. Lovejoy v. Robinson,
It is true that the lease under examination contains no covenant for quiet enjoyment, but there is nevertheless such a covenant, for, where the demise is for a term certain, the law imports such a covenant into the lease. This principle hаs solid support in reason. It would be' a contradiction to affirm in one breath that the tenant is invested with the right of possession, and in the next affirm that the landlord might deprive him of his right by an entry. The doctrine is, however, so well settled that it need not be supported by argument. Wood Landlord and Tenant, 564; Taylor Landlord and Tenant (7th ed.), section 304; 2 Platt Leases, 9. The lease of the appellants, by force of law, contained this cov
Having ascertained and decided that the lease contains, by force of law, the covenant for quiet enjoyment, the only remaining general question is whether the facts pleaded constitute a breach of covenant or a trespass. It is quite well settled that it is not every entry of the landlord, although wrongful, that constitutes a breach of covenant; a landlord may be a trespasser without breaking the covenant. An English writer says: “ Generally speaking, a covenant for quiet enjoyment, or a bond for the performance of such a covenant, extends to secure the enjoyment against lawful interruрtions only, although the word lawful be not contained in the covenant; the law having provided an action of trespass as the means of redressing an unlawful entry or disturbance. An early case to the.contrary has long since been virtually, if not expressly, overruled.” 2 Platt Leases, 312. This, however, is the rule only where a stranger enters. Where the lessor enters the rule is somewhat different. The author from whom we have quoted says: “ But a disturbance of the lessee by the lessor himself is not regarded with the same lenity, as an eviction by a stranger; it being clear, that the lessor exposes himself to an action on his covenant, although he enter wrongfully, notwithstanding the covenant provides against lawful evictions only; for, in such case, the court will not consider the word lawful; nor drive the plaintiff to his action of trespass, whén by the general implied covenant in law the lessor has engaged not to avoid his own deed, either by a rightful or tortious entry. Indeed, it would hardly be consistent with reason to allow the lessor to defeat the tenancy by pleading his own wrong.” 2 Platt Leases, 313.. Although the law is more.strict against the lessor than a stranger, still, a mere entry, though wrongful and unlawful, will not constitute a breach of covenant. It is necessary that something more than an entry and injury be shown, for these are the elements of a trespass, it must also be shown that the
A late writer says: “ It must be remembered, however, that the act done must be in the assertion of title, and not a mere tortious act for which an action of trespass might be maintained.” Wood Landlord and Tenant, 574. Another author says: “ Nor will any acts of molestation, even if committed by the landlord himself, or by a servant at his command, oсcasion a breach of the covenant, unless they are more than a mere trespass.” Taylor Landlord and Tenant (7th ed.), section 309.
In Fuller v. Ruby,
What will constitute a breach of the covenant for quiet enjoyment was defined in Upton v. Townend, 17 C. B. 30:. “ I think it may now be taken to mean this, — not a mere trеspass and nothing more, but something of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised-premises.”
In Mayor, etc., v. Mabie,
The question, it is proper to remark, comes to us as one of pleading, and not as one of evidence. In pleading, the rule is that facts must bе directly stated, so that issue. may be joined upon the averments of the complaint or answer; it is not sufficient to state mere matters of evidence. In the present instance the answer shows an entry, and shows a fight of action in the defendants, but it does not show a breach of ■covenant, and we can not supply by inference or intendment the element essential to constitute a breach of covenant, namely, the assumption of title. Whether it. might be inferred if the question were one of evidence we do not decide, for we are here concerned only with a pleading.
Judgment affirmed.