and parcel of the same, with the appurtenances, and to receive and take the rents, issues and profits thereof, and of every part and parcel of the same, without let, suit, trouble, eviction, ejection, expulsion, interruption, hindrance or denial whatsoever of, from or by him the said vendor, or his heirs, or any other person or persons whomsoever." Platt on Covenants, p. 138 (marginal page 312).

Referring to this form of covenant, Platt says:

"Formerly it was supposed that a court of common law could not recognize proceedings in equity, and on this ground it was resolved that a suit in chancery was not a breach of a general covenant for quiet enjoyment. But this decision has been denied, and the contrary is settled. All question on the point is now avoided by introducing into the covenant for quiet enjoyment a few words extending to suits in equity; thus, that the purchaser shall enjoy, without any let, suit, etc., by the vendor, or his heirs, etc. But the institution of a suit by a landlord against a tenant for a collateral purpose, unconnected with the lessee's estate or title, for example, to restrain him from ploughing up meadows and committing waste, is not such an interruption or disturbance as will amount to a breach of the landlord's covenant for quiet enjoyment, even though the suit prove groundless and be ultimately dismissed, with costs." Page 143 (marginal page 323).

And again, he says (page 145 [marginal page 327]):

"To qualify a party to support an action on this covenant some positive act of molestation or some deed amounting to a prohibition of enjoyment must be proved."

Further on he says:

"It is not to be understood that an ouster or expulsion must take place in order to found a suit; it is enough that the quiet enjoyment of the covenantee be invaded or prevented."

This author thus lays stress upon the use of the word "suit" in this covenant, and it is a fair inference from his language that he concludes that the mere bringing of a suit by the lessor against the lessee is of itself a breach of the covenant, provided the suit be connected with the lessee's estate or title, as in ejectment. Hunt v. Danvers, Sir T. Raym. 193; Dennett v. Atherton, Law Rep. 7 Queens' Bench, 316, 326 (1871– 72); Tebb v. Cave, Law Reports 1 Chancery (1900) 642.

The covenant in the case at bar, like the English form construed by Platt, contains the words "without any manner of let, suit, trouble or hindrance of or from the said party of the first part or any other person whatsoever." Interpreting this covenant in the light of Platt's conclusions, it would appear that the bringing of the suits against the title and possession of the plaintiff in the manner alleged in the complaint are violations of the covenant, although he was never evicted.

I think it is clear from the terms of the covenant that the lessor agreed not to bring a wrongful suit against the lessee with intent to affect the lessee's possession or title-that if he did it would be deemed a breach of the covenant. For the question is: What was the intentention of the parties to the covenant as shown in all the surrounding circumstances and in the words of the covenant? Was it their intention to allow the lessor by suits to slander and attack the title and possession which he had conferred upon the lessee, thus to declare to the world that he had re-entered and that the lessee was a trespasser upon the demised premises, and yet deem the covenant unbroken by the lessor simply because the suit had not been preceded by an actual

eviction or expulsion of the tenant? Such a construction would fail to give words their ordinary meaning and language its true signifi

cance.

In this covenant there is no mention of an eviction or re-entry or expulsion. Nor is there anything in the covenant to suggest that the "suit" referred to therein must be preceded by eviction, expulsion, or actual re-entry before there could be a breach of the covenant. The language of the covenant is plain and the intention of the parties is clear: The lessee is to enjoy the premises without any manner of let, suit, trouble, or hindrance of or from the landlord.

The lessor brought a suit in the Supreme Court in ejectment. We must assume that the parties, when they entered into this covenant, knew that the bringing of a suit in ejectment by the lessor against the lessee was in law equivalent to an actual re-entry by the lessor-a declaration on the part of the lessor that the relation of landlord and tenant no longer existed and that the tenant was a trespasser. Logically it must have been the intention of the parties that such a suit brought by the landlord maliciously and wrongfully would of itself constitute a breach of the covenant. See Janes v. Paddell, 74 Misc. Rep. 409, 132 N. Y. Supp. 379; Van Rensselaer v. Ball, 19 N. Y. 100; Samson v. Rose, 65 N. Y. 411; Martin v. Rector, 118 N. Y. 476, 23 N. E. 893; Michaels v. Fishel, 169 N. Y. 381, 62 N. E. 425. To hold that the parties to this covenant intended to make breach of it depend upon an actual expulsion would be importing into the agreement terms absolutely unsuggested by its language.

In Wisconsin it has been held that the covenant for quiet enjoyment could be broken without ouster or surrender of possession. In Akerly v. Vilas, 23 Wis. 207, 212 (99 Am. Dec. 165), the covenant was that the grantors of the said premises, etc., "in the quiet and peaceable possession of the party of the second part, etc., would warrant and forever defend against the claims of all persons lawfully claiming the same, by, from, or under the parties of the first part or by, from, or under any other person whomsoever." In that case Akerly had made a deed of certain lots to the plaintiff (Vilas). Thereafter Akerly brought suit against Vilas to set aside the deed, alleging that it had been obtained by fraud. Akerly also procured himself to be made a defendant in an action to partition the lands in question, and by his answer therein denied Vilas' title. In consequence of these acts Vilas was prevented from selling lands at the prices then ruling, or until prices had greatly depreciated, when Akerly discontinued the action to set aside his deed and withdrew his answer in the partition suit. In an action by Akerly to foreclose Vilas' mortgage for the purchase money it was held (1) that Valis was equitably entitled to have the actual damages resulting to him from said acts of Akerly deducted from the mortgage debt, and (2) that said acts were also a breach of Akerly's covenant for "quiet and peaceable possession." See headnote to the case. Dixon, C. J., wrote as follows:

"But in this case the question is, whether a suit to avoid the deed and regain possession of the lands, commenced by the covenantor himself, with 'no reasonable or probable cause of action,' as alleged in the answer, and prosecuted 'willfully, wrongfully and maliciously,' to the great pecuniary damage

and loss of the covenantee, is a breach of the covenant. We are satisfied that it is.

So in the case at bar the question is whether a suit in ejectment with its legal consequences, commenced wrongfully by the covenantor himself and without reasonable cause and prosecuted wrongfully, maliciously and causing great pecuniary damage to the lessee is a breach. of the covenant. According to the terms of the covenant reasonably interpreted I think it is a breach. It will be observed that the covenant in the case at bar is far more comprehensve in its terms than the covenant in the Akerly Case.

The case of Levitzky v. Canning, 33 Cal. 299, was an action against a lessor for breach of a covenant for quiet enjoyment, and the court there held the covenant was broken, although there was no ouster or abandonment of possession. The covenant was "to hold and enjoy the above mentioned premises peaceably and quietly for the term," etc. The complaint contained three counts. The court in considering the third count said as follows:

"From the third count in the complaint it appears that the defendant had slandered the plaintiff's possession, giving out and pretending publicly that he had no right to the possession of the demised premises, and that he had brought two actions at law to recover the possession of the premises from the plaintiff and his tenants, under the pretense that his lease had expired. That in consequence of these actions brought against himself and his tenants he had been put to great expense in defending the same, and his tenants had quit the premises, leaving the same vacant, and that he had been unable to rent the same to other parties, by reason of their doubts as to the lawfulness of his possession, caused by the acts of the defendant, in bringing said suits and publicly declaring that the possession of the plaintiff was unlawful and that he had no legal right to let the premises. Was this a breach of his covenant within the rule already stated and the cases which we have cited? That it was does not admit of doubt. Those acts, if performed by him, were as much a molestation, disturbance, and invasion of the plaintiff's possession as a taking by the shoulders and a forcible eviction of the plaintiff's tenants would have been. The character of the act must be determined by the results which follow it, and in view of the results which are alleged to have followed the acts of the defendant, there can be no question that he disturbed and interrupted the possession of the plaintiff to his injury, which is precisely what he had covenanted not to do."

In the case at bar the landlord covenanted to bring no wrongful suit affecting the tenant's estate and title. He did this very thing and so broke the covenant. In his work on Covenants for Title, at page 173, Rawle says (section 130):

"At one time there seems to have been some doubt whether a disturbance or interruption interfering with the title and possession of the land by reason of a suit in equity came within the scope of a covenant for quiet enjoyment against disturbances generally. This question is now well settled in the affirmative; but where the proceeding in equity interferes only with a particular mode of enjoyment of the land or part of it, but not with the title or possession, it is not a breach."

Section 131:

"Nothing is more generally or more truly said than that 'an eviction is nec essary to a breach of the covenants for quiet enjoyment and of warranty.' The exceptions are either where the former covenant is so expressed as to have a wider scope than the latter or where some peculiar local construction is given to these covenants, or one of them."

And in his note he says:

"As, for example, where the covenant for quiet enjoyment stipulates against 'any let, suit, interruption, disturbance, etc.'

He then refers to the following language of Gibson, C. J., in Stewart v. West, 14 Pa. 338:

"A covenant for quiet enjoyment, which resembles the modern covenant of warranty, differs from it in this, that the former is broken by the very commencement of an action on the better title."

The landlord engaged by her lease not to deny wrongfully the title of the lessee. She did so by suits wrongfully, vexatiously, and maliciously brought, in which she was defeated finally, and by which she forced the lessee into great expense to defend his title and possession. There is nothing in the terms of the covenant to justify the conclusion that it has not been violated simply because the landlord refrained from aggravating his wrong by ousting the tenant, or was unable to accomplish that purpose because of the tenant's successful opposition. She did her utmost to evict him wrongfully. Contrary to her promise she subjected him to suits, trouble, and hindrances in the enjoyment of the title and possession with which she had invested the lessee. These facts, if proved, in my opinion amount to a breach of a covenant as expressed.

The motion for judgment on the pleadings is denied, with costs.

O'CONNOR v. CHRISTOPHER et al.

- AMENDMENT

(Supreme Court, Trial Term, Orleans County. April 19, 1915.) 1. PLEADING 218- MISJOINDER OF CAUSES OF ACTION KILLING OF Demurrer-STATUTE Where a complaint shows separate, distinct causes of action, each against but one of two defendants, upon demurrer to such complaint on the ground that such causes of action were improperly joined, the service of an amended complaint cannot kill the demurrer, under Code Civ. Proc. § 542, permitting amendments of course, since a complaint cannot be amended by dropping both a defendant and a cause of action without leave of court; the proper procedure being to move under section 497 after demurrer sustained.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 549-566; Dec. Dig. 218.]

2. PLEADING 218-MISJOINDER OF CAUSES OF ACTION-AMENDMENT-KILLING OF DEMURRER-STATUTE.

Where causes of action against each of two defendants were joined in the complaint, and demurred to for misjoinder, service of an amended complaint, under Code Civ. Proc. § 542, permitting amendments of course, setting up but one of the original causes of action, killed such demurrer, so that the case was improperly on the calendar for trial.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 549-566; Dec. Dig. 218.]

Action by David O'Connor against Thomas Christopher and anDefendants demurred, plaintiff served an amended complaint, defendants noticed the case for trial on demurrer, and plaintiff moves to strike from the calendar. Motion granted.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

William J. Baker, of Rochester, for plaintiff.
Knickerbocker & Blake, of Albion, for defendants.

POUND, J. Complaint joins two causes of action. Defendants demur on the ground that causes of action were improperly united. Plaintiff, within 20 days after the service of the demurrer, served an amended complaint setting up but one of the two original causes of action. Defendants noticed the case for trial on the demurrer. Plaintiff maintains that the amended complaint superseded the demurrer. The causes of action originally pleaded each affected both defendants. Plaintiff moves to strike case from calendar.

[1] That a demurrer may be killed by the service of an amended pleading within section 542 of the Code of Civil Procedure, permitting amendments of course, and in no other way, is held in Neun v. Bacon Co., 137 App. Div. 397, 121 N. Y. Supp. 718. And the question arises whether the demurrer herein is killed by the amended complaint. The difficulty which arises where separate, distinct causes of action, each against one only of two different defendants, are joined, is one that from the nature of things cannot be overcome by the serv ice of an amended complaint. A complaint cannot be amended by dropping a defendant and a cause of action without leave of court. The action must be divided, and the defendants sued separately. After demurrer is allowed, this may be permitted under section 497 of the Code of Civil Procedure. Neun v. Bacon Co., supra; Gottwald v. Weil, 68 Misc. Rep. 468, 124 N. Y. Supp. 333.

[2] But that difficulty does not arise where the causes of action joined in the complaint are against the same defendants. The demurrer herein was therefore killed by the service of the amended complaint. As the demurrer was improperly noticed for trial, it is stricken. from the calendar.

The defendants may have 10 days' additional time to answer the amended complaint.

Judgment accordingly.

BURT et al. v. HARRIS et al.

(Supreme Court, Special Term, Kings County. January 3, 1913.)

1. WILLS 572-PROPERTY BEQUEATHED.

Where a testatrix bequeathed the contents of her safety deposit box, with the exception of her savings bank books which were therein, bonds and mortgages, kept in the deposit box and not otherwise disposed of, pass, though the testatrix, after making the will, withdrew them and gave them directly to the legatee.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1245; Dec. Dig. ~572.]

2. WILLS 481-LEGACIES-SPECIFIC LEGACY.

A specific legacy speaks as of the time of the will's execution.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1005-1007; Dec. Dig. 481.]

3. GIFTS 49-GIFTS INTER VIVOS-EVIDENCE-SUFFICIENCY.

Evidence held to show a valid gift inter vivos of bonds and mortgages belonging to the testatrix.

[Ed. Note.

~49.]

For other cases, see Gifts, Cent. Dig. §§ 95-100; Dec. Dig.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes