10 Ill. App. 591 | Ill. App. Ct. | 1882
It is unnecessary to pass upon any of the errors assigned except the first, which calls in question the action of the court in sustaining the demurrer to the defendants’ fourth plea. That plea alleges, in substance, that when the term granted in the lease commenced, the defendants were kept out of possession of the premises demised by the plaintiffs, and that neither they nor their assignees have ever received, or been able to obtain, possession of the same.
We are unable to see why the plea does not state a good defense to the action. It is true, the lease does not contain an express covenant of the lessor against incumbrances, nor for quiet possession, but in the absence of such covenants, the law implies a covenant against all such acts of the landlord as destroy the beneficial enjoyment of the thing leased. The possession and qniet enjoyment of the premises by the lessee, without any hindrance on the part of the lessor, is an implied condition to the obligation to pay rent. Taylor on Landlord and Tenant, § 377. In Wade v. Halligan, 16 Ill. 507, it was declared to be the settled rule that the law will imply covenants for quiet possession and enjoyment against paramount title, and against acts of the landlord which prevent the beneficial enjoyment of the lease.
In Dexter v. Manley, 4 Cush. 14, Shaw, C. J., said: “ Every grant of any in terest, right or benefit carries with it the implied undertaking on the part of the grantor, that the grant is intended to be beneficial; and that so far as he is concerned, he will do no act to interrupt the free and peaceable enjoyment of the thing granted.”
It will be noticed that the plea does not alone state that they defendants never took, nor were able to obtain, possession; it alleges they were prevented by the plaintiffs from taking possession. It would be no defense to an action for rent, that the lessee never took possession unless possession was withheld by the lessor, or by another under a title paramount to that of the lessor. But if the tenant be at any time deprived of the premises by the agency of the landlord, the obligation to pay the rent ceases. The withholding of possession by the landlord is precisely the same, in effect, as an eviction by him after possession has once been delivered. In either case the rent ceases.
For the error of the court in sustaining the demurrer to the the defendants’ fourth plea, the judgment is reversed and the cause remanded for further proceedings.
Reversed and remanded.
