#### The Fitchburg Cotton Manufactory Corporation *versus*James E. Melven and Another.

Where, on a lease indented, an annual rent is reserved, and the lessee is evicted, before the day of payment, by force of a title paramount to that of the lessor’s, no action lies against the lessee on the covenant, for the rent accruing before the eviction.

This was an action of *covenant broken,*upon an indenture made by and between the plaintiffs and the defendants on the 10th of June, 1816, by which the plaintiffs demised to the defendants certain buildings and mill privileges, with tools and machinery in the buildings, for the manufacture of woollen cloths, for the term of three years from the date of the indenture, “ yielding and paying therefor the rent of 275 dollars *annually*during the term aforesaid.” The breach was alleged in the non-payment of one year’s rent, due on the 10th of June, 1817.

The defendants pleaded, in bar, that, before the making of the indenture, the plaintiffs had mortgaged all the demised premises, excepting the tools and machinery, to one *Edmund * Cushing,*to secure the payment of their promissory note to him; and that on the 2d of November, 1816, the said note being then due and unpaid, *Cushing entered*for the condition broken, and evicted the defendants. The same facts were pleaded in a second plea, in bar of damages, except for a ratable and meet sum for the rent of the tools and machinery ; and in a third plea, in bar of damages for the rent of that part of the demised premises which had been mortgaged, for any time after the 2d of November, 1816. The plaintiffs demurred to each of these pleas ; and the defendants joined in demurrer.

*Shepley,*for the plaintiffs,

argued that the defendants, having continued in the occupation of the demised premises under the lease, must be accountable for the whole rent demanded; and if they have been ousted by a paramount title, they must resort to their action against the plaintiffs upon their covenants. (1) But at any rate, the plaintiffs are entitled to recover, in this action, the rent for that part of the term prior to the eviction, and also for such part of the demised premises as they have not been evicted from. (2)*Willard*for the defendants.

(1)

 1 *H. Black.*273, note (a), *Boone*vs. *Eyre.*— 1 *Saund.*320, note 4.

(2)

 3 *Cruise on Real*Property, tit. 28, c. 3, § 33, 34, 35, 39, 40.— *Co. Lit.*148 note 6. — 11 Mass. *Rep.*496, *Randall*vs. *Rich.*

Jackson, J.

We are all of opinion that the first plea in bar is good, and that the plaintiffs are not entitled to recover any thing in *248this action. If the rent had been payable quarterly, the sum due for the first quarter might have been recovered, notwithstanding the subsequent eviction ; but as the tenants were evicted before the first day of payment, no rent can be recovered upon the indenture. (3)

This result is not influenced by the circumstance that *Cushing,*who evicted the defendants, was a mortgagee. It is enough that he entered under a title paramount to that of the lessors. If the lease had been made before the mortgage, *Cushing*would have been assignee of the reversion, and in that character entitled to all the rents payable by force of the indenture, excepting only such as *might*have been paid by the lessees before notice of the assignment. * He could not, in that case, have evicted the tenants, but would have held subject to their lease.

But when the lease is made, as in this case, after the mortgage,' it does not bind the mortgagee, nor in any manner affect his right. There is no privity between him and the lessee, and no right in him to demand the rent reserved by the lease. He may consider the lessee as a trespasser or a disseisor, and may maintain an ejectment or writ of entry against him. The lessee stands in the situation of the mortgagor; and as the mortgagee cannot recover the back rents against the mortgagor, when he is left in possession, it seems to be the better opinion that he could not recover, in the like case, against the lessee of the mortgagor. (4) *(a)*

It may often happen that the lessee will suffer a loss, by being evicted, that would overbalance the advantage of holding the premises for a part of the term. In such a case, equity would concur with the rule of law which prohibits an apportionment of the rent. But if the lessee has derived a substantial benefit from the use of the estate demised, although he does not hold it for the whole term, equity would require that he should pay a *quantum meruit.*If the lessors, in the present case, have any claim on that ground, their only remedy must be an action of *assumpsit;*as in the analogous case of a charter-party of affreightment. In that case, when the ship is prevented by the perils of the sea from carrying the goods to the destined port, and they are received by the owner at an intermediate place, the latter is not liable to an action of covenant on the charter-party; but it was thought, in a case of that kind, that he might be held, in an action of *assumpsit,*to pay a reasonable com*249pensation for the services of the ship owner, as far as they were performed, and so far as he was benefited by them. (5)

Some doubts have arisen, whether the plaintiffs may not re cover in this action for the rent or use of the tools and machinery, which were not included in the mortgage to * *Cushing.*When a part of the land is evicted, and the residue is enjoyed by the lessee, it is a discharge only in proportion to the value of the land evicted. But in the case at bar, the tools and machinery cannot be considered as a distinct, substantial part of the estate demised. They are in the nature of mere appurtenances to the mill and the buildings, and to be used in them for the manufacture of woollen cloth. They would apparently have been of no use to the defendants, unless in connection with the buildings ; and the eviction of these latter seems, therefore, to amount to an eviction of the tools and machinery likewise. The plaintiffs may probably recover a reasonable compensation for the loan or use of the tools and machinery, in an action of *assumpsit;*but they cannot recover it in this action, (a)

*Per Curiam.*

*Defendants’ plea in bar good.*

(3)

 10 *Co.*128. — *Cro. Eliz.*47. — *Salk.*65.

(4) (a)

2 *Atk.*107. — *Doug.*21. (a) In *Pope*vs. *Biggs,*(9 *B. & Cr.*245,) it was held, that a mortgagee, having given notice to tenants holding the mortgaged premises under leases granted by the mortgagor, after the mortgage, is entitled to receive from those tenants all rents unpaid al tt e time of the notice, as well as those accruing due afterwards.

(5)

*7 D. & E.*381.

(a)

*Woodfall on Landlord and Tenant, by Harrison,*pp. 324, 634, *332.—Pope*vs. *Biggs, 9 B. & C.*245. — *Diet*vs. *Pendleton,*8 *Cow.*727. — Where lands and goods are let at an entire rent, and the tenant is evicted from the lands, no apportionment can be made for the goods, as the rent is held to issue from the land alone. — *Woodf.*p. 324. — *Ernot*vs. *Cole, Dyer,*212, b, in marg. — *Collins*vs. *Harding, Cro. Eliz.*606. — So if a lease be made of lands, with a right of common, and the lessee be evicted of his right of common, the rent is not suspended. — *Comyn, Landlord and Ten.,*by *Chilton,*525. — *Sanderson*vs. *Harrison, Cro. Jos.*679. — But as between lessor and lessee, an eviction out of *part*of the lands by the lessor, or any person claiming through him, will operate as a suspension of the *whole*rent. — *Com. L. & T.*524. — *Clun’s*case, 10 *Rep.*128, b. — *Dorrell*vs. *Andrews, Hob.*190.— *Cibil*vs *Hill,*1 *Leon*110. — And there shall never be an apportionment for part of the time.—10 *Rep*128