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Vol. I.)


[No. 11.



[SEPTEMBER, 1874.]





1. A general statute authorizes a tax collector for state and county taxes to exe

cute a deed upon a tax sale, and further provides that such deed shall be primâ facie evidence of certain facts recited therein, and conclusive evidence of the regularity of the proceedings in all other respects. A subsequent statute provides that a town tax in a certain town shall be assessed and collected at the same time, and in the same manner, as provided by said general act, and confers upon the town treasurer all the powers exercised by the tax collector of the state and county taxes under the general act, but makes no provision as to the effect of the tax deed executed by the town treasurer. Held, that such deed will not be primâ facie

evidence of the regularity of the prior proceedings. 2. A tax deed which the statute does not make primâ facie evidence of the regularity

of the assessment and sale does not cast a cloud upon the title. 3. An injunction will not be granted to restrain the collection of a tax, when the

deed issued upon a sale for taxes would not cloud the title.
THE facts appear in the opinion.
Mr. W. W. Crane, for complainant.
Mr. G. W. Tyler, contra.

SAWYER, J. The question in this case is, whether a deed issued by the treasurer of the town of Alameda, upon a sale for town taxes under the act of 1872 to incorporate the town of Alameda, would be primâ facie evidence of title, and would therefore cast a cloud upon the title. Section seven of the act is as follows:

“ The annual tax authorized by this act to be levied by the board of trustees shall be levied, assessed, and collected at the same time, and in the same manner, as is, or may be by law provided for the levying and collecting state and county taxes, within the county of Alameda, the treasurer being hereby vested with the same powers to make collections for taxes as is, or shall be, conferred upon tax collectors for the collection of state and county taxes within said county."

This is the only provision of the act affecting the question. The general provisions of the Political Code relating to the collection of state and county taxes have no application, except so far as they are made applicable by said section seven. The general statute is made applicable, so far as the mode, manner, and time of assessing and collecting the tax is concerned, and the treasurer, with respect to the town tax, is vested with all the powers that are conferred upon tax collectors of state and county taxes by the Political Code, but it goes no further. The town treasurer may sell for town taxes legally levied, and execute a deed in pursuance of

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HAYNER V. Smith.

(No. 11.

such sale, because the tax collector of state and county taxes may do so. The power of the treasurer is spent when he has executed the deed.

Section seven does not say what the effect of that deed shall be. It does not provide that it shall have any other effect than ordinary deeds executed by public officers upon tax sales. The general act does not stop with authorizing the tax collector to execute the deed prescribed, but goes on in sections 3786 and 3387, to provide, that the deed so executed by the tax collector shall be prima facie evidence of title in the grantee as to certain enumerated particulars, and conclusive evidence as to all others. This is something outside, and beyond the powers of the tax collector. It is intended to change a rule of evidence – to shift the burden of proof as to the regularity of the proceedings resulting in the tax deed from the claimant under, to the party claiming against, the tax deed.

The act, under which the tax in question is levied, stops short of the effect of the deed as an instrument of evidence. Its says nothing about its effect, but ends with the powers of the treasurer. Without such provision the deed can only have the effect of ordinary tax deeds. The act must be strictly construed, as it assumes to divest title to land in invitum. That such is the rule is clear from the principal authority cited by complainant, Selby v. Smith, 2 Mich. 487. In that case the statute, besides the provision that the officers should proceed in the same manner and exercise the same powers as the officers under the general act, adds, " and in all respects, with the like effect.It was upon this clause alone that the title was sustained. See, also, 1 Blackford, 336; Blackwell on Tax Titles, 449 et seq., and cases cited. We do not think the deed which the treasurer is authorized to issue would have the same effect as evidence as a deed executed by the tax collector under the general law. It would not be primâ facie evidence of title, and consequently would not cast a cloud upon the title. This is settled by numerous decisions in this State. Huntingdon v. Central Pacific R. R. Co. 2 Sawyer; S. C. 1 Am. L. T. R. N. Š. 94, and cases cited. There is, therefore, no ground for an injunction.

Motion for injunction denied. Mr. Justice FIELD concurred.

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1. Since the act of 1861, in a suit to recover rent under a lease executed by a mar

ried woman on her own separate property, it is error to join her husband as plain

tiff in the action. 2. Where a lessee is, by his lessor, wrongfully evicted from a portion of the demised

premises, he is thereby excused from the payment of any of the rent, although

Vol. 1.)

HAYNER v. Smith.

[No. 11.

he remains in possession of the remaining portion of the premises to the end

of the term. 3. But, to constitute an eviction, there must be more than a mere trespass by the land

lord. There must be something of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the premises the question of eviction or no eviction depending upon the circumstances,

and being a matter for the jury to decide. 4. Some acts of interference by the landlord with the tenant's enjoyment of the prem

ises may be mere acts of trespass, or may amount to an eviction, the question whether they partake of the latter character depending upon the intention with which they are done if clearly indicating an intention on the landlord's part that the tenant should no longer continue to hold the premises, they would constitute an eviction.

APPEAL from the Alton city court; the Hon. Henry S. Baker, Judge, presiding:

Mr. Charles P. Wise, for the appellants. Mr. William S. Field, contra. Mr. Justice BREESE delivered the opinion of the court. This was an action originally brought before a justice of the peace in Alton, in the county of Madison, by John H. Smith and Elizabeth Smith, against appellants, to recover the monthly rent claimed to be due on a written lease executed by Elizabeth Smith to appellants.

The judgment by the justice of the peace was in favor of the plaintiffs, from which the defendants appealed to the Alton city court, where a like judgment was rendered. To reverse this judgment the defendants appeal to this court.

The first point made by appellants is, that the lease was executed by Elizabeth Smith to appellants' assignors, and she alone should have brought the action.

This point is well taken, for, although John H. Smith may be the husband of Elizabeth, and was so at the time of executing the lease, he did not sign it, nor was the ownership of the property in him. It was in his wife in her own right. No joint cause of action was established, and there was no undertaking to pay rent to the plaintiffs. There was, therefore, a variance between the cause of action and the evidence. It was payable to Elizabeth Smith in her own right, and she alone must sue. Emerson v. Clayton, 33 II. 497; C. B. f Q. R. R. Co. v. Brown, 51 Ib. 206.

The very object and purpose of the act of 1861, commonly called the “ Married Woman's Act," would be defeated, should the husband join in an action to recover the property of the wife, for in such case he could control the recovery and deprive the wife of its enjoyment.

This disposes of the case, and must reverse the judgment.

It is suggested that another action may be brought by the proper party, and it is desired this court should state the principles which should govern it.

The defence to the action was that, after the demise, John H. Smith, who it is proved controlled the property for the lessor, took possession of a building on the premises erected by the lessees for a drying house, and used it as a stable, and the entire lot as a cattle yard, without the consent of the lessees ; that these acts of the lessor amounted to an eviction, and discharged the lessees from the payment of rent for the unexpired term.

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There is a covenant in this lease for the quiet enjoyment of the whole of the demised premises; but if there was not such a covenant, such enjoyment, without any protestation by the landlord, would be implied in the condition on which the tenant is bound to pay the rent. The law implies covenants against such acts of the landlord as destroy the beneficial enjoyment of the premises leased. Wade v. Halligan, 16°Ill. 507.

Forcible expulsion of the tenant is, of course, an eviction, and may terminate the tenancy.

There is much diversity of opinion in the books on the question of a constructive eviction and the consequences flowing from it. Some courts have held that an actual eviction of the lessee by a title paramount, or by the lessor himself, would alone justify the lessee in resisting the payment of rent, whilst other courts go further, and hold that an eviction from a part of the leased premises by the act of the landlord will justify the tenant in abandoning the premises, and thus discharge himself from liability for rent; and other equally reputable courts have said that any act of the lessor which defeats the enjoyment of the entire property by the lessee, though he may continue in possession of the part not intruded upon by the lessor, would be a bar to the recovery of the rent.

It is unnecessary to collate these authorities ; it is sufficient to say they are not entirely harmonious.

In a case similar to this in all respects, between the same parties, before this court at a former term, in disposing of the instructions given in that case, the second, given on behalf of the lessees defendants, to this effect, was held to be proper: The principle upon which a tenant is required to pay rent is the beneficial enjoyment of the premises unmolested in any way by the landlord ; and if the jury believe from the evidence that the plaintiff took possession of any part of the premises leased by her to the defendants, against their consent, then in law it is an eviction, and releases the defendants from the payment of any more rent, and they will find for the defendants. The fourth and seventh instructions were substantially the same.

In addition to the authorities cited in that case, Briggs v. Hall, 4 Leigh (Va.), 484, may be referred to. In that case a farm was let for one year, and the landlord entered on a meadow, parcel of the premises, within the year, and cut and carried away the hay without the consent and against the will of the tenant, who, nevertheless, continued to occupy the farm during the residue of the year. It was held, the landlord, by such disturbance of the tenant, lost the benefit of the entire contract, and was not entitled to recover any part of the rent. A reference is made to Smith v. Raleigh, 3 Campb. 553, in which Lord Ellenborough said, “ An eviction from part of the demised premises is a complete answer to the action.”

In Dyatt v. Pendleton, 8 Cowen, 727, the court of errors of New York recognize a distinction found in the books where an eviction is by a third person, or by the landlord. A legal eviction of the tenant by a third person excuses the payment of rent; so does any eviction by the lessor. If the eviction be partial, by a third person, the rent will be apportioned, but a partial eviction by the lessor excuses from the payment of the whole rent.

The principle is, that a party who deprives another of the consider

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[No. 11.

ation upon which his obligation is founded cannot, in general, recover for a violation of that obligation.

In Leishman v. White et al. 1 Allen (Mass.), 489, which was an action for use and occupation of a tenement hired by the defendants to the plaintiff, as set out in the first count of the declaration, and in another count, a lease was set out by which plaintiff leased to the defendants a hotel near Spot Pond, with the lands adjoining, and an island in the pond, for five years, at the yearly rent of two hundred and fifty dollars, payable quarterly.

The defendants, among other things, set forth in their answer an eviction by the lessor from a portion of the premises. Evidence offered on the trial, to show the defendants were evicted from a part of the premises, was refused, the court holding that such eviction, if proved, would only bar the plaintiff's claim pro tanto, and that he might still recover a proportionate share of the rent according to the ratable value of the portion of the premises from which the defendants were not evicted.

On appeal to the supreme court, it was held, the action could not be maintained if the defendants proved they had been evicted from a part of the demised premises by the plaintiff. The court say: “In such case, no recovery can be had on the covenant to pay rent, because the defendant has been deprived of the beneficial enjoyment of a portion of the estate by the tortious act of the lessor, and the covenant being entire, cannot be severed or apportioned so as to allow the plaintiff to recover a part of the rent reserved by the lease.”

The same doctrine was held by the same court in Shumway v. Collins, 6 Gray, 232.

In Christopher, Ex'r, v. Austin, 1 Kernan (N. Y.), 216, it was said: “A wrongful eviction by the landlord from a part of the demised premises suspends the rent until the possession is restored, and the landlord cannot recover a portion of the rent agreed upon, or any compensation for the part of the premises occupied by the tenant while the eviction continued.”

Further reflection and a closer examination of the authorities have satisfied us that these instructions require some modification.

As was said in the court of common pleas, by Jervis, Lord Chief Justice, in Upton v. Townsend, 84 Eng. C. L. 30, and Same v. Greenleaf, Ibid. : “ It is extremely difficult, at the present day, to define with technical accuracy what is an eviction. The word eviction was formerly used to denote an expulsion by the assertion of a title paramount, and by process of law. But that sort of an eviction is not necessary to constitute a suspension of the rent, because it is now well settled that, if the tenant loses the benefit of the enjoyment of any portion of the demised premises by the act of the landlord, the rent is thereby suspended. The term • eviction ’ is now popularly applied to every class of expulsion or amotion.” This eminent judge further says: “I think it may now be taken to mean this — not a mere trespass and nothing more, but something of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises.” The question, therefore, of eviction or no eviction depends upon the circumstances, and is in all cases to be decided by the jury.

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