Hannan v. Dusch

PRENTIS, C.J., delivered the opinion of the court.

The declaration filed by the plaintiff, Hannan, against the defendant, Dusch, alleges that Dusch had on August 31, 1927, leased to the plaintiff certain real estate in the city of Norfolk, Virginia, therein described, for fifteen years, the term to begin January 1, 1928, at a specified rental; that it thereupon became and was the duty of the defendant to see to it that the premises leased by the defendant to the plaintiff should be open for entry by him on January 1, 1928, the beginning of the term, and to put said petitioner in possession of the premises on that date; that the petitioner was willing and ready to enter upon and take possession of the leased property, and so informed the defendant; yet the defendant failed and refused to put the plaintiff in possession or to keep the property open for him at that time or on any subsequent date; and that the defendant suffered to remain on said property a certain tenant or tenants who occupied a portion or portions thereof, and refused to take legal or other action to oust said tenants or to compel their removal from the property so occupied. Plaintiff alleged damages which he had suffered by reason of this alleged breach of the contract and deed, and sought to recover such damages in the action. There is no express covenant as to the delivery of the premises nor for the quiet possession of the premises by the lessee.

The single question of law therefore presented in this case is whether a landlord, who without any express covenant as to delivery of possession leases property to a tenant, is required under the law to oust trespassers and wrongdoers so as to have it open for entry by the tenant at the beginning of the term -- that is, whether without an express covenant there is nevertheless an implied covenant to deliver possession.

For an intelligent apprehension of the precise question it may be well to observe that some questions somewhat similar are not involved.

It seems to be perfectly well settled that there is an implied covenant in such cases on the part of the landlord to assure to the tenant the legal right of possession -- that is, that at the beginning of the term there shall be no legal obstacle to the tenant's right of possession. This is not the question presented. Nor need we discuss in this case the rights of the parties in case a tenant rightfully in possession under the title of his landlord is thereafter disturbed by some wrongdoer. In such case the tenant must protect himself from trespassers, and there is no obligation on the landlord to assure his quiet enjoyment of his term as against wrongdoers or intruders.

Of course, the landlord assures to the tenant quiet possession as against all who rightfully claim through or under the landlord.

The discussion then is limited to the precise legal duty of the landlord in the absence of an express covenant, in case a former tenant, who wrongfully holds over, illegally refuses to surrender possession to the new tenant. This is a question about which there is a hopeless conflict of the authorities. It is generally claimed that the weight of the authority favors the particular view contended for. There are, however, no scales upon which we can weigh the authorities. In numbers and respectability they may be quite equally balanced.

It is then a question about which no one should be dogmatic, but all should seek for that rule which is supported by the better reason.

It is conceded by all that the two rules, one called the English rule, which implies a covenant requiring the lessor to put the lessee in possession, and that called the American rule, which recognizes the lessee's legal right to possession, but implies no such duty upon the lessor as against wrongdoers, are irreconcilable.

The English rule is that in the absence of stipulations to the contrary, there is in every lease an implied covenant on the part of the landlord that the premises shall be open to entry by the tenant at the time fixed by the lease for the beginning of his term.

In Gross v. Heckert, it was held in an action for breach of a lease that, where the landlord knew at the time the lease was made that he would not be able to deliver possession as required by the lease, and that the tenant intended to use the premises for a certain kind of business and to prepare to commence business at the beginning of the term, he is liable for all damages which could be reasonably considered to be the natural and proximate result of the breach.'

It must be borne in mind, however, that the courts which hold that there is such an implied covenant do not extend the period beyond the day when the lessee's term begins. If after that day a stranger tespasses upon the property and wrongfully obtains or withholds possession of it from the lessee, his remedy is against the stranger and not against the lessor.

It is not necessary for either party to involve himself in uncertainty, for by appropriate covenants each may protect himself against any doubt either as against a tenant then in possession who may wrongfully hold over by refusing to deliver the possession at the expiration of his own term, or against any other trespasser.

In Rhodes v. Purvis, the lessor agreed that the term should commence 'from the date of occupancy, which shall commence as soon as vacated by the present occupants.' He was not able to eject them as soon as contemplated, and it was held that this provision exempted him from any liability to the new tenant for failure to deliver possession prior to such vacation by the tenants in possession.

As has been stated, the lessee may also protect himself by having his lessor expressly covenant to put him in possession at a specified time, in which case, of course, the lessor is liable for breach of his covenant where a trespasser goes into possession, or wrongfully holds possession, and thereby wrongfully prevents the lessee from obtaining possession.

King v. Reynolds, has been said to be the leading case in this country affirming the English rule. In that case, after citing some of the cases which affirm the American rule, this is said: 'With all due respect for the eminent jurists by whom the decisions in Cozens v. Stevenson, and in Gardner v. Keteltas, were pronounced, it appears to us that in one phase of the question the argument is faulty. The principle applicable to the case of the lessee's eviction by the lessor himself, or by a title paramount to that of the lessor, certainly rests on impregnable grounds. Such eviction is a breach of the implied covenant in every lease in general terms for quiet enjoyment, and at once bars the lessor's right to recover rent, and confers on the lessee a right of action for the lessor's breach of covenant. And when the lessee cannot maintain his possession, in consequence of the lessor's want of title to uphold his, the lessee's, possession, the latter need not wait for eviction, but may yield possession, and sue his lessor for the breach -- he taking on himself the onus of proving the inability of the lessor to protect his possession by a valid title. And so, when there is no impediment to the possess on at the time fixed by the terms of the lease for the lessee to take possession, it is no breach of the covenant of quiet enjoyment if a trespasser without title subsequently enter and evict the lessee in whole or in part. The lessee must meet such intrusions as that. But how about the implications at the time -- the very moment -- fixed by the terms of the lease for the lessee to take possession? Who is responsible if there is a trespasser, or tenant holding over, then in possession? Must the lessor clear the possession, or is this duty cast on the lessee? The authorities being in conflict, how does this question stand on principle? As was said in Coe v. Clay -- decided long before Gardner v. Keteltas was -- one who accepts a lease expects to enjoy the property, not a mere chance of a lawsuit. A lease for a year, or term of years, is not a freehold. It is a chattel interest. The prime motive of the contract is, that the lessee shall have possession; as much so as if a chattel were the subject of the purchase. Delivery is one of the elements of every executed contract. When a chattel is sold, the thing itself is delivered. Formerly parties went upon the land, and there symbolical delivery was perfected. Now the delivery of the deed takes the place of this symbolical delivery. Still, it implies that the purchaser shall have possession; and without it, it would seem the covenant for quiet enjoyment is broken. Up to the time the lessee is entitled to possession under the lease, the lessor is the owner of the larger estate, out of which the lease-hold is carved, and ownership draws to it the possession, unless someone else is in actual possession. The moment the lessor's right of possession ceases by virtue of the lease, that moment the lessee's right of possession begins. There is no appreciable interval between them, and hence there can be no interregnum or neutral ground between the two attaching rights of possession, for a trespasser to step in and occupy. If there be actual, tortuous occupancy, when the transition moment comes, then it is a trespass or wrong done to the lessor's possession. If the trespass or intrusion have its beginning after this, then it is a trespass or wrong done to the lessee's possession; for the right and title to the property being then in the lessee for a term, it draws to it the possession, unless there is another in the actual possession. . . .

Referring then to the American rule: Under that rule, in such cases, 'the landlord is not bound to put the tenant into actual possession, but is bound only to put him in legal possession, so that no obstacle in the form of superior right of possession will be interposed to prevent the tenant from obtaining actual possession of the demised premises. If the landlord gives the tenant a right of possession he has done all that he is required to do by the terms of an ordinary lease, and the tenant assumes the burden of enforcing such right of possession as against all persons wrongfully in possession, whether they be trespassers or former tenants wrongfully holding over.'

So that, under the American rule, where the new tenant fails to obtain possession of the premises only because a former tenant wrongfully holds over, his remedy is against such wrongdoer and not against the landlord -- this because the landlord has not covenanted against the wrongful acts of another and should not be held responsible for such a tort unless he has expressly so contracted. This accords with the general rule as to other wrongdoers, whereas the English rule appears to create a specific exception against lessors. It does not occur to us now that there is any other instance in which one clearly without fault is held responsible for the independent tort of another in which he has neither participated nor concurred and whose misdoings he cannot control.

In the Pennsylvania case of Cozens v. Stevenson, which enforces the American rule, this is said: 'We are all clearly of opinion that the law implies no promise to deliver possession from the words of this lease. It is a bare demise for two years, without mention of the lessor's undertaking to deliver possession, although it is expressly said that at the date of the lease the house and wharf were occupied by Hugg. If a lease be made by the words 'grant or demise,' it amounts to a covenant by the lessor that he will make satisfaction to the lessee if he is lawfully evicted. So covenant lies on the word 'demise,' if the lessor had no power to demise, although the lessee neither entered nor was evicted. So, also, covenant lies against the lessor, if he does an act which destroys or defeats the effect of his grant (as if he grant the use of a way and afterwards stops it). But a covenant, by the word 'demise,' is not broken by the eviction of the lessee, unless it be an eviction by good title. Now, in the present instance, there was no defect in the title conveyed by the lessor to the lessee. Hugg was the tenant of the defendant, and held over unlawfully. It was in the power of the plaintiff to recover the possession by virtue of his lease, and, in fact, he did recover it. He had, therefore, no cause of action against the defendant.'

Another recent American case is Rice v. Biltmore Apartment Co., in which this is said: 'But aside from that it affirmatively appears from the declaration that the plaintiff had leased the property to Bear from the 1st day of October, 1920, but it does not appear that he covenanted or agreed in that lease to put Bear in possession. Under these circumstances while the law will imply a covenant to protect a tenant against a paramount title or against anyone claiming under the lessor, it will not imply a covenant to protect the lessee against a stranger or a mere trespasser wrongfully in possession of the property, such as a tenant holding over after the expiration of his term, but as to such wrongdoer it remits the lessee to the assertion and establishment in the proper forum of the title and right of possession granted to him under the lease. The rule as thus stated is not universally approved, but it is, we think, supported by the weight of authority, and has been accepted by this court.'

There are some underlying fundamental considerations. Any written lease, for a specific term, signed by the lessor and delivered is like a deed signed, sealed and delivered by the grantor. This lease for fifteen years is, and is required to be, by deed. It is a conveyance. During the term the tenant is substantially the owner of the property, having the right of possession, dominion and control over it. Certainly, as a general rule, the lessee must protect himself against trespassers or other wrongdoers who disturb his possession. It is conceded by those who favor the English rule, that should the possession of the tenant be wrongfully disturbed the second day of the term, or after he has once taken possession, then there is no implied covenant on the part of his landlord to protect him from the torts of others. The English rule seems to have been applied only where the possession is disturbed on the first day, or perhaps more fairly expressed, where the tenant is prevented from taking possession on the first day of his term; but what is the substantial difference between invading the lessee's right of possession on the first or a later day? To apply the English rule you must imply a covenant on the part of the landlord to protect the tenant from the tort of another, though he has entered into no such covenant. This seems to be a unique exception, an exception which stands alone in implying a contract of insurance on the part of the lessor to save his tenant from all the consequences of the flagrant wrong of another person. Such an obligation is so unusual and the prevention of such a tort so impossible as to make it certain, we think, that it should always rest upon an express contract.

For the reasons which have been so well stated by those who have enforced the American rule, our judgment is that there is no error in the judgment complained of.

The plaintiff alleges in his declaration as one of the grounds for his action that the defendant suffered the wrongdoer to remain in possession, but the allegations show that he it was who declined to assert his remedy against the wrongdoer, and so he it was who permitted the wrongdoer to retain the possession. Just why he valued his legal right to the possession so lightly as not to assert it in the effective way open to him does not appear. Whatever ethical duty in good conscience may possibly have rested upon the defendant, the duty to oust the wrongdoer by the summary remedy provided by the unlawful detainer statute clearly rested upon the plaintiff. The law helps those who help themselves, generally aids the vigilant, but rarely the sleeping, and never the acquiescent.

Affirmed.


EPES, J., concurring: I concur in the conclusions reached by the chief justice in the opinion in this case, because of the fact that under the provisions of the law of Virginia, a lessor, having made a lease to take effect immediately upon termination of an expiring lease, appears to have been left without power or process to himself evict a tenant under the expiring lease, who tortiously holds over on the day succeeding the termination of his lease, and therefore the power to evict being denied by law to the lessor, no covenant to put the new tenant into possession should or can be properly implied.

But I am further of the opinion that what is stated to be the English rule in the opinion of the chief justice is the law under the common law, and that in the absence of a statute which by express provision or necessary implication changes this common law, it is the law of Virginia on the subject. If at any time the statutes of Virginia be so amended as to permit the lessor after the moment of the expiration of the prior lease to evict his tenant tortiously holding over under the expiring lease, I am of opinion that the English rule, the rule of the common law, will again become the law of the land in Virginia.