Smith v. McEnany

170 Mass. 26, 48 N.E. 781 (1897)



A wrongful eviction of a tenant by the landlord from a part of the premises suspends the rent under the lease. The main reason is that the enjoyment of the whole consideration is the foundation of the debt and the condition of the covenant, and that the obligation to pay cannot be apportioned. There may be an apportionment when the eviction is by title paramount, or when the lessor's entry is rightful.


The tenant rented a lot from the landlord, part of which was covered by a shed that was used by the tenant to store wagons. A permanent brick wall for a building was built on land that adjoined the lot. The adjoining land was owned by the landlord's husband, and the wall encroached onto the lot rented by the tenant. The wall was constructed with the landlord's assent and with her knowledge of the encroachment. Thereafter, the landlord filed an action against the tenant based on his non-payment of rent, and for the breach of a covenant to repair.


Whether the wrongful eviction of the tenant by the landlord from a part of the premises suspends the rent.




The superior court ruled that the tenant had the right to treat the encroachment as an eviction determining the lease, to which the landlord filed exceptions. The court overruled the exceptions and held that the wrongful eviction of the tenant suspended the rent under the lease. The court held that by the terms of the lease as construed, the tenant made it an absolute condition that he should have the whole of the demised premises, at least as against wilful interference on the landlord's part. The court noted that such an eviction did not necessarily end the lease or other obligations of the tenant under it.

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