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ant's occupation, and doing him no damage. The process was not a malicious suit, and for it his costs as the prevailing party are his only remedy. Assuming that the entry was an unjustifiable attempt to oust the tenant, which, if he had yielded, would have been an eviction, and a breach of the covenant, as he did not yield, the entry was at most a trespass, for which he might recover nominal damages in a suitable action, but not in this present suit, which by his declaration he has elected to treat as an action of contract for breach of covenant. The alleged acts of the landlord with reference to the tenant's licenses from public authorities had no tendency to interrupt, and did not interrupt the tenant's possession” (9).
$ 27. Same (continued). In a number of cases the courts have given the tenant judgment for damages for a breach of the covenant for quiet enjoyment though he remained continually in possession. So where the tenant leased part of a house and the landlord later suffered prostitutes to occupy the rest of the house openly; or, when the lease was of the bar of a hotel with covenant by the lessor not to sell liquors in the house during the term of the lease, and the lessor later built a wall shutting off access to the bar from the hotel and built and opened a bar on the other side of the house in an annex; and such a covenant was held to be broken by a lease of the same premises by the lessor to another before the plaintiff's lease and covering his term (10). On the other hand,
(9) International Trust Co. v. Schumann, 158 Mass. 287.
it has been held that this covenant does not include a covenant to repair, and is not broken by the premises becoming untenantable for want of repairs, nor by the existence of restrictions upon the use encumbering the lessor's title and enforced against the lessee, nor by the taking of the premises from the tenant by eminent domain proceedings even though prosecuted by the lessor (11). An actual eviction by a paramount title or by the lessor or anyone claiming under him would undoubtedly be a breach of the covenant for quiet enjoyment; and by the greater weight of authority interference which prevents the tenant ever acquiring possession is a breach of this covenant, whether this restraint be exercised by the lessor's sanction, by a paramount title, or by the unlawful act of a stranger. But if the tenant once gets peaceable possession, no subsequent unlawful eviction by a stranger without the lessor's sanction will be a breach of the covenant for quiet enjoyment. It was even held that such a covenant in a lease of land in America was not broken by the fact that the unwarranted ouster by the revolutionists during the term was later sanctioned by the English government making a treaty of peace with them by which it acknowledged the independence of the colonies (12).
$ 28. Same: Assignees. Damages. The covenant for quiet enjoyment runs with the land and the reversion, so that the lessee's assignee may sue for a breach of after the assignment, and the lessor's grantee is liable
(11) Goodyear S. M. Co. v. Boston T. Co., 176 Mass. 115. (12) Dudley v. Folliott, 3 Term Rep. 584,
for breaches of it by his permission. The damages generally allowed on recovery for breach of this covenant are the value of the lease above the rent due to the defendant; and the plaintiff may also recover the costs paid by him in defending the action by the holder of the paramount title on which the tenant was evicted and the damages he was compelled to pay in such suit to the holder of the better title for mesne profits.
§ 29. Covenant for further assurance. This covenant, to execute at any time such further writings and conveyances as may be necessary to pass the title for the term contracted, or as the lessee may be advised is necessary for that purpose, is not much used. Under this covenant the lessee may require the removal of a judgment incumbering the premises, or the conveyance of any title acquired by the lessor after making the lease, so far as is necessary to make good the term leased. This covenant is not broken by refusal of the lessor to execute writings which would be nugatory and useless.
$ 30. Covenant against incumbrances. This covenant _"that the premises are free from all incumbrances"
-is a covenant against any right or interest in the land which may subsist in any third person to the diminution of the value of the land to the lessee but consistent with the passing of some title by the lease. It is one of the greatest practical importance; it is broken the moment it is made, if at all; the statute of limitations immediately begins to run against it; by the majority of courts it is held to be personal, so as not to run with the land or be available to the assignee of the lease; and it is broken by the existence of any outstanding option, lease, mortgage, easement, restriction on the use, rent charge, tax, inchoate right of dower, or other like right, legal or equitable, whether known to the lessee at the time of taking the lease or not, and without any disturbance of his possession by the person holding such right. It is held not to be broken by the existence of such an obvious public easement as a highway across the premises, in actual use and known to the lessee.
§ 31. Covenants of seizin and right to convey. These covenants also are held to be purely personal; broken as soon as made if at all; immediately begin to outlaw; and are not available to or against any but the parties. These covenants usually amount to the same thing, but one may have right to convey by virtue of a power without being seized. The advantage of these covenants to the lessee is that he may sue because of an outstanding title, which would not amount to a breach of the covenant for quiet enjoyment because not asserted.
§ 32. Restrictions upon the use and cultivation. In the absence of any express provision in the lease, the tenant takes the premises subject to any restrictions as to use that were binding on his lessor, and the further obligation to do nothing that will amount to waste or nuisance, and in the cultivation of the lands to observe the rules of good husbandry according to the custom of the country. He has no right to remove from the premises manure made from the products of the soil leased, but should return it to the land to maintain its fertility. Manure made from feed brought onto the premises he may remove if it has not been mixed with manure made from the products of the farm. If the lease has been obtained by fraudulently inducing the lessor to suppose that the premises are wanted for a particular purpose only, a court of chancery will, at the suit of the lessor, restrain other uses injurious to the lessor, though nothing was said in the lease about it. A lease of premises “to be used for” a particular purpose named will also restrain the right of the lessee to use them for other purposes, though there is no express clause of restriction as to the use; but the fact that the lease grants the lessee expressly rights he would not have but for such grant, such as to put down wells for the manufacture of salt, or to open a quarry on the land leased, does not restrict the right of the tenant to use the premises for any lawful purpose other than the one specified.
The right of the lessee to use may be, and often is, restricted further by provisions inserted in the lease, that the premises shall be used only for a private residence, that no business or no dangerous or offensive trade shall be conducted on the premises, that the lessee shall personally reside on the place during the term, and the like. All these restrictive clauses are given a reasonable but strict construction. A covenant against carrying on an offensive trade does not prevent conducting such a dangerous trade that insurance against fire cannot be obtained on the building; and in determining what is an offensive trade the court will consider the character of the neighborhood and the use to which the premises have been put in the past. A covenant to use the prem