4 Wend. 423 | N.Y. Sup. Ct. | 1830
By the Court,
When this cause was formerly before the court, (8 Cowen, 71,) we had occasion to consider the effect of a fraudulent alteration of a deed by a party to be benefitted by it, and we then held that such alteration avoids the deed; but as in this case there were two leases executed, both of which were originals, we held that the fraudulent alteration of one deed. did not avoid the other, and that the lessor therefore was entitled, as the case was then presented, to recover the rent due? if any remained unpaid ; and a new trial was accordingly ordered, the jury having found for the plaintiffs.
Upon the new trial, the question whether a fraudulent alteration of one of the leases had been made waS again submitted to the jury upon testimony on both sides, and has been again decided against the defendant. On the former trial we thought the jury would have been justified in finding a verdict either way upon that question. I am of the same opinion in relation to the last trial. The evidence is nearly balanced, but the jury have placed the most reliance upon the plaintiff’s witnesses, or have considered the circumstances strongest against the defendant; and under such a state of facts the verdict ought not to be disturbed as contrary to evidence.
The principal questions now to be decided are, 1st. Whether under the pleadings the plaintiffs were at liberty to prove an eviction by the lessor of part of the premises ? 2d. Whether proof of the lessor’s distraining for the rents upon the leases to Van Burén and others was sufficient evidence of an eviction? and 3d. Whether such an eviction bars the landlord from recovering his rent ? '
1. As to the question upon the pleadings. The evidence clearly shewed that there was a holding by the plaintiffs under the defendant, and that there was rent in arrear. The defendant is therefore entitled to judgment, unless under the plea of riens in arrere the plaintiffs are at liberty to prove an eviction. It is said that if the plaintiffs have been evicted by
Where the lessor enters wrongfully into part of the demised premises, the tenant is discharged from the payment of the whole rent, till he be restored to the whole possession; and this that no man may be encouraged to injure or disturb his tenant in his possession. (6 Bac. Abr. 49. Coke Litt. 148, b.) If the lord or lessor disseises or ousts the tenant or lessee of any part, the whole rent is suspended as it is held in Arcough’s Case, (9 Coke, 135.) In Dyett v. Pendleton, (8 Cowen, 728,) this principle is recognized and adopted
Did, then, the distress upon the lots held under the prior leases amount to an eviction? Hunt v. Cope (Cowp. 242,) was an action of replevin in which the defendant avowed for rent, to which the plaintiff pleaded, 1. No rent in arrear, and 2, That before the distress, the defendant (the lessor) unlawfully entered into a garden, part of the demised premises, and pulled down a summer house. To this plea there was a demurrer and joinder, and judgment was given for the plaintiff, (the tenant.) But upon a writ of error to the king’s bench, the judgment was reversed; and the only question argued was, whether the facts amounted to an eviction. Lord Mansfield said that the question turned upon the pleading; that the rule of law was clear; that to occasion a suspension of the rent, there must be an eviction or expulsion of the lessee, but this plea merely stated a trespass; that the lessee should have pleaded an eviction, and then the facts which were stated might have been sufficient for the jury to have found a verdict in his favor. And in Dyett v. Pendleton it seems to be held that any obstruction by the landlord to the benefipial enjoyment of the demised premises, or a diminution of the consideration of the contract by the acts of the landlord, amounts to a constructive eviction. The acts of the landlord in this case are, distraining for rent due on the prior leases, after he had conveyed all his interest in them to the plaintiffs, in this suit. This, under the decisions which have been made, amounts to something more than a constructive eviction, and is sufficient to cause a suspension of the rent.
It is contended, however, that an ouster by the landlord which suspends the payment of the rent, must be not only an entry upon the demised premises, (for instance, that act of distraining,) but there must be a continuance in possession, so that the tenant is deprived of the occupancy; and
The defendant, therefore, is not entitled to recover any rent of the plaintiffs until he restores to them the entire possession of the premises demised, and the plaintiffs are entitled to judgment