to the whole rent and the executor or administrator to none. If the lessor dies on the day the rent is due, at any time before sunset, and the rent is not in fact paid, it belongs to the heir not to the executor, for the lessee has the whole day to pay it; or if the lessor grants the reversion on the day the rent is due the grantee has the rent, for the same reason (3). A release by the lessor to the lessee of all causes of action to date does not release rent yet to become due. By the terms of the lease it may be provided that the rent shall be due from day to day, and thus obtain apportionment; and such is the effect of statutes existing in several of the states.

§ 77. When rent is due. An agreement to pay rent in advance is valid and enforcible; but in the absence of provision in the lease or usage proved, the rent is not due till the end of the term of the lease. If the rent is reserved in a lease for years at so much per year, quarter, month, or the like, it is due and payable at the end of each year, quarter, month, or other period named, in equal instalments. Rent payable in a share of the crop is due when the crop is harvested; if payable in ore, it is due as the ore is mined, and so of like cases; but it is believed that a lease of an ice-house with rent reserved payable in ice is demandable in the hot season, and payment cannot be made in ice harvest time. The tenant has the whole of the last day in which to make payment, and, if he is evicted on the day of payment at any time before default, he may abandon the premises and allege the eviction as a defense to any action for the rent. All options as to the time of

(3) Hammond v. Thompson, 168 Mass. 531.

payment are construed in favor of the tenant; a lease yielding a pair of gilt spurs at the feast of Easter or 20s by the next feast, does not put the lessee in default for non-payment till he has failed at the following feast to pay the 20s (4).

§ 78. Effect upon rent of assignment, surrender, or failure to take possession. Acceptance of the rent by the lessor from the lessee's assignee with knowledge of the assignment, is not a release of the lessee from liability, but a surrender of the lease by the lessee and a new grant by the lessor to the new tenant may be shown by parol; and after such acceptance of surrender by the lessor he cannot longer hold the lessee for more than the rent then due. Surrender without acceptance by the lessor is no defense. An assignee of a lease may end his liability without the consent of the lessor by merely assigning to another. Failure of the tenant to take possession at the agreed time does not suspend the running of the rent, unless his failure to take possession is due to the occupation of some other under the lessor or adversely; and then he has his election to take part and pay proportionate rent, or by notifying the lessor refuse to take any unless the entire contract is performed. It has been held that if the failure to get possession of part was due to refusal of the landlord to give possession the tenant need not even pay rent on the part he took.

§ 79. Same: Ouster, eviction, and breach of covenant. It is no defense to an action for the rent that the lessee has been wrongfully ousted and kept out by a trespasser,

(4) Clune's Case, 10 Coke, 127,

unless the lessor covenanted to defend his possession against such persons. If the failure of the lessee to take possession was due to the prior possession of a tenant of the lessor under a prior lease holding over, and the tenant has compromised with him and agreed to accept rent from him, such person so holding over thus becomes the tenant of the lessee, and his later refusal to surrender is no defense to an action against the tenant for rent. Ouster by the king's enemies is a defense if the lessee thereupon surrenders to the lessor. Ouster by paramount title is a defense to an action for rent accruing after that time, as to the whole rent if ousted from the whole premises, as to a proportionate part of the rent if ousted of a part. On ouster from a part, the tenant may abandon the whole.

If the lessor enters for any other purpose than to demand rent, inspect for waste, make such repairs as the lease permits him to make, and so forth, and disturbs the tenant in his enjoyment of the premises, the tenant may abandon the lease and be released from all liability for rent afterwards to accrue or become due. Assertion of paramount title, or trespass by the landlord will not be a defense to an action for rent, if the lessee still remains in possession. If anything is done which entitles the lessee to consider himself evicted and he thereupon abandons, or if the lessor puts an end to the term for any cause, all liability for future rent ceases, but liability for rent past due remains. What constitutes an eviction is a question of fact for the jury, but so long as the lessee retains possession he cannot as a general rule claim that he is

evicted. It has generally been held that if the landlord actually ousts the tenant from a part of the leased premises unlawfully, he is thereby relieved of all liability for further rent for the rest of the term though he retains possession of the rest of the premises for the rest of the term. But liability notwithstanding entry may be continued by express words in the lease.

Defective, unsanitary, or untenantable condition of the premises is no defense to an action for rent unless the lessor covenanted for their good repair, or was guilty of fraud in inducing the tenant to take the lease by misrepresenting the character of the premises in this regard, or intentionally preventing the lessee from discovering it, and even then the tenant is liable if he retains the possession. Even for breach of covenant to repair, the tenant cannot quit and defend an action for the rent unless he has given the lessor notice and opportunity to repair.

§ 80. Same: Destruction of premises. In the absence of a covenant by the lessor to repair, the lessee is not excused from payment of any part of the rent by the destruction of the buildings on the premises by inevitable accident without fault of the lessee, if he has any right to use the land where they stood, or to put up any other building for any purpose. In an action for rent of rooms on a second story of a building that had been destroyed by fire, for rent accruing after the fire, the court held there was no cause for action, saying:

"At common law, where the interest of the lessee in a part of the demised premises was destroyed by the act

of God, so that it was incapable of any beneficial enjoyment, the rent might be apportioned. It is said that if the sea break in and overflow a part of the demised premises, the rent shall be apportioned, for, although the soil remains to the tenant, yet as the sea is open to everyone, he has no exclusive right to fish there. A distinction is taken between an overflow of the land by the sea, and fresh water, because, though the land be covered with fresh water, the right of taking the fish is vested exclusively in the lessee, and in that case the rent will not be apportioned. In the latter case the tenant has a beneficial enjoyment to some extent of the demised premises, but in the former he has none, and if the use be entirely destroyed and lost, it is reason the rent should be abated, because the title to the rent is founded on the presumption that the tenant can enjoy the demised premises during the term. Where the lessee takes an interest in the soil upon which a building stands, if the building is destroyed by fire, he may use the land upon which it stood beneficially to some extent without the building, or he may rebuild the edifice; but where he takes no interest in the soil, as in the case of a demise of a basement, or of upper rooms in the building, he cannot enjoy the premises in any manner after the destruction of the building, nor can he rebuild the edifice. He cannot have the exclusive enjoyment of the vacant space formerly occupied by the demised rooms. The effect of the destruction of the building in such a case is analogous to the effect of the destruction of demised premises by the encroachments of the sea, and the established rule for the abatement or