Leishman v. White , 83 Mass. 489 ( 1861 )

Bigelow, C. J.

This action cannot be maintained if the defendant proves that he has been evicted from a part of the demised premises by the plaintiff. 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. Shumway v. Collins, 6 Gray, 232.

Nor can an action for use and occupation of the premises be maintained against the defendant. The lease is not terminated by the unlawful eviction of the lessee. He still continues to occupy that part of the estate from which he has not been evicted, under and by virtue of the demise under seal. No implied promise arises to pay for such occupation and enjoyment. The case therefore stands thus: to the claim on the covenant, the answer is the eviction; to the demand for use and occupation, the answer is that the defendant holds under his lease; so that, in neither aspect of the case, can the plaintiff maintain his action. Fuller v. Ruby, 10 Gray,

Verdict set aside.