If it was admissible in practice in this court, I should be quite content to affirm the judgment in this case, upon the careful and able opinion delivered at the General Term of the court below, and reported in 29 Howard, 20.
It can hardly be doubted, I think, at this day, that, by the general assent of the courts in this State, a covenant for quiet enjoyment is implied in every mutual contract for the leasing and demise of land, by whatever form of words the agreement is made. (Smith's Landlord and Tenant, 206; Taylor's id., § 302; TheMayor of New York v. Mabie, 3 Kernan, 160; 11 Paige, 566;Tone v. Brace, 8 id., 597; Vernam v. Smith, 15 N.Y., 328;Graves v. Burdan, 26 id., 498.)
The principal question in the cause, and the one chiefly urged upon our attention on the argument, arises upon the exception to the charge of the judge, in respect to the proper measure of damages. The learned judge instructed the jury that "the measure of damages was the value of the unexpired term of the lease at the time of the eviction, over and above the rent reserved by the terms of the lease.
The rule of damages as thus laid down is clearly in conflict with the rule long settled, and applied in actions upon the personal covenants running with the land in deeds, or upon contracts for the sale of land upon the failure of title. In such cases, the rule generally applied in England and in this country is to restore to the purchaser all he has paid or advanced *Page 175 upon the purchase, with interest and expenses, and to place the vendee as far as possible, in the same condition as if the contract of purchase had never been made. And this has been done upon the basis or assumption of mutual mistake, or error between the parties. (4 Kent, 479; Kames Principles of Equity, vol. 1, 288 and 289; Flureau v. Thornhill, 2 W. Blackstone, 1078;Conger v. Weaver, 20 N.Y., 140.) But this court has recently held, in Pumpelly v. Phelps (40 N.Y., 60), that this rule should be limited to cases of good faith, and that, when a vendor contracts to sell lands, in which he knows at the time that he has no title, he is bound to make good to the vendee the loss also of the bargain sustained by his fault or fraud.
In analogy with the rule thus applied to purchasers of land, in actions upon the covenant for quiet enjoyment in leases, the same rule has been applied to lessees, so far as it was applicable. As no consideration is paid in such case, the rent reserved has been regarded as a just equivalent for the use of the demised premises, and as, in case of eviction, the rent ceases and the lessee is discharged from its payment, he recovers nominal damages, and for such mesne profits as he is liable to pay the true owner, and any costs he may have been compelled to pay in defence of his title. (Kelly v. The Dutch Church ofSchenectady, 2 Hill, 105; Moak v. Johnson, 1 id., 99, andBaldwin v. Munn, 2 Wend., 399.)
But this rule has not been very satisfactory to the courts in this country, and it has been relaxed or modified more or less, to meet the injustice done by it to lessees in particular cases, as will be seen in the cases of Driggs v. Dwight (17 Wend., 72); Giles v. O'Toole (4 Barb., 261); Chatterton v. Fox (5 Duer, 64); and Deane v. Roesler (1 Hilton, 420). In England the rule is repudiated in two well considered cases. InWilliams v. Burrell (1 Manning, Granger Scott, 402; 50 Eng. Com. Law R., 401), it was held by the Court of Common Pleas, in a case referred to that court by the master of the rolls for its opinion, and upon a very elaborate argument, *Page 176 that the lessee, upon a covenant for quiet enjoyment, was entitled to recover the value of the term lost, as well as for mesne profits paid to the owner of the paramount title. The same question came again before that court in Lock v. Furze (19 J. Scott, N.S., 96, and 115 Eng. Com. Law, 94.) The case was very elaborately argued, and the English and American cases carefully reviewed, and the whole court, in opinions given by the four judges, sanctioned, reasserted and reaffirmed the rule held inWilliams v. Burrell, supra, that a lessee who had been ejected by paramount title was entitled to recover upon a covenant for quiet enjoyment the value of the term which he had lost.
And it seems to me that the case of Trull v. Granger Dillaye (4 Selden, 115), in principle commits this court to the same doctrine. It is true that, in that case, the plaintiff was not evicted, having never been in actual possession; but his landlord virtually expelled him from the demised premises by leasing them to another party and putting him in possession before the demise of the plaintiff took effect. The plaintiff recovered the value of his term and this court affirmed the judgment. The same principle is in effect also asserted inTracey v. The Albany Exchange Company (3 Selden, 475). But inMyers v. Burns (35 N.Y., 272), the same principle is clearly asserted and adopted. In this case, in an action for rent on a lease, the defendant set up as counter claim a covenant of the landlord to keep the premises in repair, and alleged a loss of $700 damages occasioned by the loss of the use of four rooms, alleged to be untenantable for want of repairs. The jury found $300 damages for the loss of the use of said rooms. The principle asserted is in effect that the tenant, by the act of the landlord, had been virtually evicted from such rooms, and was, therefore, entitled to recover the value of the use of the same as of the loss of part of his term.
But within the principle asserted in this case, in Trull v.Granger, and in Pumpelly v. Phelps, the plaintiff was clearly entitled to recover the value of his term, and the direction at the trial was entirely correct. The plaintiff was clearly *Page 177 evicted from the premises by the act, procurement and fault of the defendant. He expedited, if he did not instigate, the foreclosure of the mortgage, under which the eviction was had. He became a joint purchaser on the mortgage sale of the demised premises, and a joint petitioner with Dorsheimer for the writ of assistance under which the plaintiff was evicted from the said premises. It would be a gross wrong, if a landlord could thus conspire and assist in turning his tenant out of possession of demised premises, and the latter be limited, in his action upon his covenant for quiet possession, to mere nominal damages.
The point that the judge errred in deciding as matter of law that the defendant was liable to the measure of damages stated in the charge, and that, so far as the question depended upon the good faith of the defendant, it should have been submitted to the jury, is not, I think, well taken. The judge was not asked to submit this question to the jury, and the bad faith of the defendant in the foreclosure proceedings, I think, must have been assumed upon the undisputed facts in the case. I think, however, that the direction of the judge was clearly right as matter of law, and that the judgment should be affirmed.
All concurring for affirmance.
Judgment affirmed.