This is a process under the Rev. Sts. c. 104, § 4, by which the plaintiffs seek to recover possession of the premises in controversy, on the ground that the defendant holds the same, without right, after a legal termination of his tenancy. The title of the plaintiffs is derived through sundry mesne assignments from the lessees of George C. Shattuek, who originally demised the entire estate, of which the premises in dispute are a part, for a term of five years from the first day of January 1850. The defendant claims to hold possession by virtue of an agreement or underlease, made by Parsons, an intermediate assignee of said lease, bearing date December 7th 1850, by which a certain portion of the entire demised estate was underlet to Nichols, jvho subsequently assigned his right to the defendant.
There being no proof of a forcible entry or detainer, the only ground, under the statutes of this commonwealth, on which the plaintiffs can maintain this action is, that the relation of landlord and tenant has subsisted between them and the defendant; and that the tenancy has been determined by its own limitation, or by a notice to quit, according to the proxis*230ions of the Rev. Sts. c. 60, § 26; c. 104, § 4; and St. 1847, c. 267, § 1.
In order to prove their case, and establish their title to the possession of the premises in controversy, the plaintiffs relied, at the trial, on the lease from Shattuek, which was assigned to them by Parsons. By the terms of this assignment, it appears that they took the estate expressly subject to the right of Nichols to occupy a part of the premises under the agreement previously made with Parsons. The plaintiffs are therefore estopped to deny the right of Nichols to occupy the premises in controversy according to the terms of the agreement with Parsons. By taking the assignment of the lease, subject to the right of Nichols, and now claiming possession under it, they have recognized the validity of that right. The agreement with Nichols, being in the nature of an underlease, was clearly assignable in law, and having been duly transferred by Nichols to the defendant, conferred on him a valid title to the occupancy of the premises, as against the plaintiffs, according to the stipulations therein contained. Com. Landl. & Ten. 51.
The plaintiffs were therefore bound to show that the right of the defendant to occupy the premises under this agreement was at an end. To do this, they relied, at the trial, on several distinct grounds. The first was, that the original lease from Shat-tuck contained a covenant that the lessees should not underlet the premises demised, or any part thereof, without the consent of the lessor in writing; and that, for a breach of said covenant, the lessor had a right to enter and expel the lessees and those claiming under them; and, in the present case, no such consent being shown, that the defendant had no right to occupy the premises. This argument cannot avail the plaintiffs, because their own title depends on an assignment of the same lease, made without any consent of the lessor. But a better answer to it is, that this covenant was made solely for the benefit of the lessor or his assigns, and he or they only can take advantage of it, and terminate the estate demised by an entry for breach of the condition. No such entry being shown, the lease still subsists in full force, and the estates existing under it continue according to the terms of their creation.
*231The plaintiffs further contended that the right of the defendant to occupy the premises had been determined, for the reason that the premises were used for a purpose different from that to which they were appropriated at the time of the agreement between Parsons and Nichols, by which they were demised “ to be occupied for the same purposes they now are.” Admitting, for the sake of the argument, that, under this clause in the underlease, a change of occupation would defeat the right of the defendant to hold the premises, (which is by no means clear,) we think the evidence falls very far short of proving such an essential and substantial alteration in the mode of use, as to constitute a breach of the agreement, and warrant aerdict for the plaintiffs on this ground.
The only remaining ground on which the plaintiffs relied to maintain their suit was, that the right of the defendant to occupy the premises was terminated by a failure to pay rent, and by a notice to quit, given according to the provisions of the statutes before cited. But we think the plaintiffs jail to bring their ease within any of those provisions. It is clear that the defendant was not a mere tenant at will. He occupied the premises by virtue of a written lease, which was, as has been already shown, valid between him and the plaintiffs. The only question therefore is, whether he is liable to this process, under St. 1847, c. 267, § 1, for the reason, that he has neglected or refused to pay rent according to the terms of this written lease. Clearly he is not. By the wrongful act of the plaintiffs, ne has been evicted from a part of the premises demised to him. This has been found by the jury, under instructions to which no exception is taken.
We do not deem it necessary to determine whether, according to the ruling of the judge at the trial, and in conformity with many of the authorities, an eviction extinguishes all claim for rent; Bac. Ab. Rent, L.; Morrison v. Chadwick, 7 C. B. 283; Upton v. Townend, 17 C. B. 30; Christopher v. Austin, 1 Kernan, 216; Smith on Landl. & Ten. 202; or whether, as has been sometimes said, after an eviction, a tenant is liable on a quantum meruit, for use and occupation of such part of the premises as was *232actually occupied by him subsequent to the eviction. Stokes v. Cooper, 3 Campb. 514, note. Smith v. Raleigh, 3 Campb. 513. Grand Canal v. Fitzsimons, 1 Hudson & Brooke, 449. Smith on Landl. & Ten. 307. The decision of this case does not depend on the determination of that question. All the authorities concur m declaring that a lessee is not liable to pay the rent stipulated by his lease after an eviction by his landlord. The agreement, in a lease, to pay rent is entire, in consideration of the demise of the whole estate; and it cannot be severed or apportioned by an eviction of part of the premises by the tortious act of the landlord.
After the eviction therefore in the present case, there was no wrongful refusal or neglect by the defendant to pay rent, according to the terms of the written lease under which he held the premises in controversy. To any claim for rent under this lease, the eviction by the plaintiffs was a legal and sufficient answer. The defendant, after his eviction from a part of ihe premises by the plaintiffs, had a right to continue in the occupation of the residue, though not bound to do so ; and, while he so occupied, he was in, not as a tenant at will, but under his written lease. The plaintiffs could not, by their own wrongful act, change the tenure by which the defendant occupied the residue of the premises. His lease was not terminated by its own limitation; he was not liable to a notice to quit for nonpayment of rent, as a tenant at will; nor for having neglected or refused to pay rent according to the terms of his written lease. The plaintiffs there fore failed to bring their case within any of the provisions of law by which this process is prescribed as a remedy to restore landlords to the possession of estates withheld wrongfully by tbeir tenants. Exceptions overruled.