Russell v. Fabyan

Eastman, J.

At the last term of this court, in an action between these parties, for the recovery of the rent which by the terms of the lease fell due in September, 1850, the court held that the eviction by Dyer, on the 14th of June, 1848, was a good answer to an action for the rent during the continuance of Dyer’s title; provided the defendant paid the rent to Dyer before the eviction termination. We held, ■also, that the eviction terminated by the tender of Russell, on the 3d of November, 1848, and that the rent due of September, 1850, was recoverable in that action.

This action is brought to recover the rent for the two preceding years, being that which fell due in September, 1848, $800, and September, 1849, $1000 ; so that notwithstanding the eviction continued for only one year and five months, yet both of the days of payment happened within that time. A question is thus presented, whether the rent can be apportioned so that Russell can recover for any part of the two years.

In Fitchburg Man. Co. v. Melvin, 15 Mass. Rep. 268 , it was held that where on a lease 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,, no action.lies *545 against the lessee on the covenant, for the rent accruing before the eviction.

According to the doctrine of that case, which is cited and approved in Perry v. Aldrich, 13 N. H. Rep. 350 , this question must be decided against the plaintiff. The contract was an entire one, to pay the rent on the first day of September in each year, and in an action upon the covenant it would be a good plea that it was paid on those days. At common law, rent might be apportioned as to estate, but not as to time. A covenant to pay rent on a specified day creates no debt until the day of payment arrives. Countess of Plymouth v. Throgmorton, 1 Salk. 65; Wood v. Partridge, 11 Mass. Rep. 493 ; Perry v. Aldrich, 13 N. H. Rep. 343 .

If, then, we should regard the action as brought merely to recover the rent from March, 1848, to June 14th, 1848, the time of the eviction, or from November 3d, 1849, the time when the eviction terminated, to March following, the suit would equally fail, upon proof of payment to the holder of the paramount title on the first of September, 1848 and 1849; for the days of payment were during the eviction, and there can be no apportionment.

But there is no plea of payment filed by the defendant; and as the pleadings stand he cannot show payment in defence of the action. The contest between the parties has been principally upon the question of the eviction. In an action of covenant broken for rent, payment can only be shown under the general issue, with a brief statement; or under a special plea of payment. 1 Chit. Pld. 423, 426 ; 2 Saund. on Pld. & Ev. 712; Gould’s Pld. 329.

Counsel have, however, stated that the rent for 1849 was paid to Dyer by the defendant in September of that year, and they have exhibited papers tending to show that such was the fact. And we think the defendant should have leave to move the common pleas -to amend his pleadings so as to show this payment if it was made. That court will *546 grant the motion or not, as they shall think proper, and upon such terms as they may deem just.

There is no suggestion that the rent for 1848 has been paid to. any one, and there is no valid reason why the plaintiff may not have judgment for that amount. Upon the termination of the eviction, the plaintiff' was restored to all his rights under the lease, and whatever was not paid during the eviction can be recovered by him. We so held in considering the other case.

The plaintiff may take his judgment for $800, the rent for 1848, and abandon his claim for 1849; or if he elects, the matter of the payment of the $1000 can be contested further, should the common pleas grant leave to plead payment.

Should it be shown that the rent for September, 1849, was duly paid to Dyer, Russell might, perhaps, sustain an action against Dyer for its recovery. But in regard to that question we give no opinion.