#### RICHARD SNEED *vs.*ROBERT A. JENKINS.

In an action upon a covenant for rent contained in a lease, it is competent for the defendant to shew, that, at the time of its being made, the plaintiff had no title ; provided he can shew at the same time that, in consequence thereof, he could not enter, or having entered he was evicted by a paramount title.

In every plea of eviction there must be an averment, that the lessor had not a perfect title, when he demised; and it must also be added, that, in con*sequence,*the lessee was evicted. The whole is the defence.

Appeal from the Superior Court of Law of Granville County, at the Spring Term, 1847, his Honor Judge Manly presiding.

This was an action for the breach of a covenant for the payment of rent, contained in a lease. The plaintiff, by deed, leased to the defendant a tract of land for the year 1842, reserving a rent of $125, which the defendant covenanted therein to pay. The defendant entered into and kept quiet possession of the land, for the period for which it was leased. The action is brought on the covenant, to recover the rent. On the trial it appeared that the legal title to the premises, at the time the lease was made, was not in the plaintiff, but in another person, whose agent, before the expiration of the defendant’s term, sold the land, at public auction, when the defendant and his father became the purchasers. It was further shown, that at the request of the plaintiff, and of the father, Robert Jenkins, the agent, at the time of the sale, expressly reserved to the defendant, the right to the possession during his term, then unexpired. The defendant relied upon the plaintiff’s want of title, to defeat the action.

His Honor charged the jury, that, upon this state of facts, the plaintiff was entitled to recover, and the Jury *28found a verdict for him. From the judgment thereon the defendant appealed.

*Badger*and *Mangum,*for the plaintiff.

*JE. G. Reade*and *Iredell,*for the defendant.

Nash, J.

The covenant to pay being in the lease, and not in a distinet and separate obligation, it was competent for the defendant to show, in an action upon the lease, that, at the time of its being made, the plaintiff had no title ; provided he could show, at the same time, that in consequence thereof he could not enter, or, having entered, he was evicted by a paramount title ; for it is upon the title of the lessor, and the enjoyment of the premises by the lessee, that the landlord’s right to the rent depends. In truth, in every plea of eviction there must be an averment that the lessor had not a perfect title, when he demised ; but that fact alone is not sufficient. To constitute a perfect plea, it must be added, that, in *consequence,*the lessee was evicted — the *ivhole*is the defence. 6 Taun. 534, *Taylor*v. *Tamina.*There is not that union here. The plaintiff had not the title, but the lessee has not been evicted j on the .contraiy, he has enjoyed his term, and received all the benefit he was entitled to under his lease, and cannot be permitted to set up his landlord’s want of title, in defence, *Hodson*v. *Sharpe,*10 East. 353. But in addition to this, at the time of the sale, by the agent of the owner, his right of possession under his lease, during the term, was recognized and expressly reserved to him, at the request of the plaintiff and. his father, who was a joint purchaser with him. If not bound under his covenant, to pay the present plaintiff, he will have enjoyed the use of the premises, without paying rent to any one.

We perceive no error in the opinion of the Judge, who tried the cause.

Per Curiam, Judgment affirmed»