Thе first question is, whether there was an eviction of the defendant from the demised premises, by the owner of the paramount titlе.
To constitute an eviction the tenant must be disturbed in his possession, and in pleading an eviction, an
ouster
must be alleged. (
Vernam
v.
Smith,
But the tenant must quit possession in consequence of such interference. (Id.) So the eviction need not be by process of law, provided the tenant yields the possession to the person adjudged to be the rightful owner; or if such owner (the premises being vacant) entеrs into possession.
(St. John
v.
Palmer,
*373
But if the tenant yields the possession, in pursuance of a judgment for the recovery of possеssion, or in consequence of it, to the person adjudged to he the rightful owner of the paramount title, it is an eviction.
.(Fowler
v.
Poling,
This distinction will reconcile the authorities, which otherwise may seem conflicting. The rule to be gathered from all the authorities, and which accords with good sense, is that a person cannot remain in possession of premises, and still claim that he has been turned out; nor, when a judgment of a competent court has determined, that he shall deliver possession to а particular person, need he wait to be forcibly ejected. He can acquiesce in the judgment of the cоurt, and voluntarily obey its mandate.
In this case, the judgment obtained by Hoffman was, that he recover possession of the premises, “ and that said defendants deliver the possession of the said premises to the plaintiff, and that he have executiоn therefor.”
The defendant had a right to comply with the requirement of the judgment, without waiting for the execution. An eviction by title paramount, before the rent falls due, discharges the tenant from the payment of rent. The obligation ceases when the consideration for it ceases, which is, the enjoyment of the land. (1 Kent’s Com., 464.)
But the referee finds, that the defendant did not surrender the possession to Hoffman, the plaintiff in the judgment in ejectment; and it is urged that he cannot, therefore, claim the benеfit of the rule referred to. It is undisputed that he abandoned the premises and delivered the keys to the plaintiffs in this action, whо were his lessors, and who were also parties defendant to the action in ejectment, and bound by the judgment.
If the defendаnt had delivered the keys to a stranger, having or claiming an interest not subordinate to the judgment, there might have been forcе in this objection; but the plaintiffs cannot object on this ground. They could have delivered the keys to Hoffman, in accordance with the judgment, as *374 they were legally bound to do; and if they elected not to do so, it was their fault, for which defendant is not rеsponsible.
It appears that the judgment was obtained, on account of the business of the defendant of manufacturing hоop skirts, which was a violation of a covenant in the lease from Hoffman to Devlin & Co., that no business which was deemed by thе insurance companies to be extra hazardous, should be carried on in any part of the premises ; and when the defendant removed that business, neither Hoffman nor the plaintiffs intended or desired to change their relations to the proрerty; and they did .not, as the latter continued to pay rent as before. It is manifest that this was understood by the defendant and all the other parties, and it is presumed that the keys were delivered to the plaintiffs. With that understanding. But, upon technical grounds, it may wеll be doubted whether the abandonment of possession, in pursuance of the judgment, did not operate to transfer the seizin to Hoffman, and put him in constructive possession of the premises. (5 Hill, supra.)
It is also claimed that the judgment in favor of Hoffman, having bеen obtained by reason of the business carried on by the defendant, and which was a violation of the covenants in the original lease from Hoffman to Devlin & Co., and also of the covenants in the lease from the plaintiffs to the defendant, he cannot take advantage of his own wrong, and thus relieve himself from the payment of rent. While this position is plausible, I do nоt think it is tenable. The judgment by Hoffman was by virtue of the forfeiture, for a violation of the covenants in the lease from him to Devlin & Co. The rights of the parties in this action, under the lease executed by them, were not and could not be litigated in that actiоn. If the plaintiffs had expressly stipulated, that the defendant might carry on the hoop skirt business, the result of Hoffman’s action would hаve been in no degree affected. If the defendant has violated the covenants in his lease, the plaintiffs are nоt remediless, but can maintain an action for such violation, and recover such damages as they have suffered, which may or may not be equal to the rent; but they cannot *375 maintain an action for the rent. As we have seen, the circumstances amount to an eviction of the defendant, and the rent is extinguished, but this does not shield him from liability for a violation of his other cоvenants.
These views render it unnecessary to review the question of fact, whether the plaintiffs consented to or requested the abandonment of the premises by the defendant.
The order granting a new trial must be affirmed, and judgment absolute ordered for the defendant.
All concur.
Judgment affirmed. h