BRICKELL, C. J.—
Though there may not be in a lease,, an express covenant for the quiet possession and enjoyment of the premises during the term, the law implies it, and it is [529] the condition on which rent is payable. In the absence of an express covenant, the lessor is not- liable for the acts of mere trespassers or wrong-doers, disturbing the tenant in the quiet enjoyment and possession, or preventing him from entering on the premises. For such wrongs or trespasses, the law affords the tenant protection, and the covenant of the lessor which is implied, extends only to his own acts, or the acts of those claiming under him, or which are done under his authority, or under a title paramount. The complainant had ample remedy for the ejection of the tenants holding over, after the commencement of her term, and for the recovery of such damages from them, as resulted from the wrongful holding. There is no express covenant against «such interruptions, nor is it averred they were, authorized by the lessor. The intrusions of the tenants of the basement, so far as disclosed by the bill were mere trespassers, unauthorized by the lessor, and for which she rests under no liability. Taylor’s Land. & Ten. § 304—17. True, it is averred, these persons claimed they had authority from the lessor, but this does not involve the fact of such authority.—Jones v. Cowles, 26 Ala. 612. In the consideration of the equity of the bill, all claim against the lessor because of these wrongs must be discarded.
Discarding them, the bill though it may be rather vague and indefinite in its allegations, shows, that the complainant was by the lessor molested in the rightful use and enjoyment, of the premises, and that the covenants for repairs were broken,, and that the resulting damages equalled, if they did not exceed the rent due, and which would accrue for the expiration of the term. The lease conferred on the tenant, the use and enjoyment not only of the hotel building, but of the lots of ground described. The lessor was as much bound to protect her in the use and enjoyment of the one, as the other, and was without right to disturb her in, or render less valuable the possession of either. The removal of the fences enclosing the lots, was a- material disturbance of the rights of the tenant. It was probably an eviction, which would have authorized the tenant to abandon the lease. It certainly entitles her to recover the damages which she may have sustained from it.—Taylor’s Land. & Ten. § 315.
In Hill v. Bishop, 2 Ala. 320, it was held, that a leseee, when sued for rent, had the right of recoupment for damages arising from the breach of the lessor’s covenant to repair. Independent of our present statute, which enlarges the demands, the subject of set-off, embracing unliquidated [530] demands, not sounding in damages merely, as well as liquidated demands, since’the decision in Greene v. Linton, 7 Port. 133, without regard to the inquiry, whether the covenants in a deed, or the stipulations in a contract, were dependent or independent, a defendant, has not been driven to a cross-action, but has been allowed to set up by way of recoupment, damages resulting to him from the plaintiff’s breach of covenant, or contract. And the general principle, is now well settled, that a lessee sued for rent, may set up the breach of the lessor’s covenants, from which he has sustained damage, by way of extinguishing or reducing the demand.—Taylor’s Land. & Ten. §§ 373-74; Waterman on Set-off, 580; Ives v. Van Epps, 22 Wend. 155; Mayor, &c. v. Malie, 3 Kern. 151; Fairman v. Fluck, 5 Watts, 516.
The right is legal, and if there was not some fact or circumstance intervening, embarrassing, or rendering its assertion impossible in a court of law, a court of equity would* not interfere. The residence of the lessor in another State, • rendering ordinary legal remedies against her unavailing, coupled with her insolvency, are circumstances which authorize a court of equity to interfere for the relief of the lessee. Tone v. Brall, 8 Paige, 596; White v. Wiggins, 32 Ala. 424; T. C. & D. R. R. Co. v. Rhodes, 8 Ala. 206; Donelson v. Posey, 13 Ala. 752. These facts concurring—the non-residence and insolvency of the lessor, would of themselves authorize the court of equity to take jurisdiction, for the relief of the lessee, if there is not a judgment at law against her, and she has not lost her right, because of her failure to make defence. The equity of the present bill is maintainable also upon another ground.
The fact is averred by the bill, and the demurrer admits, that the judgment in the action of unlawful detainer is founded wholly on the tenant’s forfeiture of the lease, by the failure or refusal to pay rent on the day it was demandable. The lease contains the following stipulation: “ The party of the second part agrees to pay rent for the same, one hundred dollars each month in advance, the first month on taking possession. Upon failure to pay for any month as above provided for three days after demand, the party of the second part agrees, that the party of the first part may at her option terminate said lease, and re-enter and take possession which the party of the second part agrees to give.” Having paid rent for eighteen months of the term, the tenant refused further payment, because as she claims, the damages suffered [531] •from the breach of the lessor’s covenants equal the rent due, and to accrue.
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BRICKELL, C. J.—
Though there may not be in a lease,, an express covenant for the quiet possession and enjoyment of the premises during the term, the law implies it, and it is [529] the condition on which rent is payable. In the absence of an express covenant, the lessor is not- liable for the acts of mere trespassers or wrong-doers, disturbing the tenant in the quiet enjoyment and possession, or preventing him from entering on the premises. For such wrongs or trespasses, the law affords the tenant protection, and the covenant of the lessor which is implied, extends only to his own acts, or the acts of those claiming under him, or which are done under his authority, or under a title paramount. The complainant had ample remedy for the ejection of the tenants holding over, after the commencement of her term, and for the recovery of such damages from them, as resulted from the wrongful holding. There is no express covenant against «such interruptions, nor is it averred they were, authorized by the lessor. The intrusions of the tenants of the basement, so far as disclosed by the bill were mere trespassers, unauthorized by the lessor, and for which she rests under no liability. Taylor’s Land. & Ten. § 304—17. True, it is averred, these persons claimed they had authority from the lessor, but this does not involve the fact of such authority.—Jones v. Cowles, 26 Ala. 612. In the consideration of the equity of the bill, all claim against the lessor because of these wrongs must be discarded.
Discarding them, the bill though it may be rather vague and indefinite in its allegations, shows, that the complainant was by the lessor molested in the rightful use and enjoyment, of the premises, and that the covenants for repairs were broken,, and that the resulting damages equalled, if they did not exceed the rent due, and which would accrue for the expiration of the term. The lease conferred on the tenant, the use and enjoyment not only of the hotel building, but of the lots of ground described. The lessor was as much bound to protect her in the use and enjoyment of the one, as the other, and was without right to disturb her in, or render less valuable the possession of either. The removal of the fences enclosing the lots, was a- material disturbance of the rights of the tenant. It was probably an eviction, which would have authorized the tenant to abandon the lease. It certainly entitles her to recover the damages which she may have sustained from it.—Taylor’s Land. & Ten. § 315.
In Hill v. Bishop, 2 Ala. 320, it was held, that a leseee, when sued for rent, had the right of recoupment for damages arising from the breach of the lessor’s covenant to repair. Independent of our present statute, which enlarges the demands, the subject of set-off, embracing unliquidated [530] demands, not sounding in damages merely, as well as liquidated demands, since’the decision in Greene v. Linton, 7 Port. 133, without regard to the inquiry, whether the covenants in a deed, or the stipulations in a contract, were dependent or independent, a defendant, has not been driven to a cross-action, but has been allowed to set up by way of recoupment, damages resulting to him from the plaintiff’s breach of covenant, or contract. And the general principle, is now well settled, that a lessee sued for rent, may set up the breach of the lessor’s covenants, from which he has sustained damage, by way of extinguishing or reducing the demand.—Taylor’s Land. & Ten. §§ 373-74; Waterman on Set-off, 580; Ives v. Van Epps, 22 Wend. 155; Mayor, &c. v. Malie, 3 Kern. 151; Fairman v. Fluck, 5 Watts, 516.
The right is legal, and if there was not some fact or circumstance intervening, embarrassing, or rendering its assertion impossible in a court of law, a court of equity would* not interfere. The residence of the lessor in another State, • rendering ordinary legal remedies against her unavailing, coupled with her insolvency, are circumstances which authorize a court of equity to interfere for the relief of the lessee. Tone v. Brall, 8 Paige, 596; White v. Wiggins, 32 Ala. 424; T. C. & D. R. R. Co. v. Rhodes, 8 Ala. 206; Donelson v. Posey, 13 Ala. 752. These facts concurring—the non-residence and insolvency of the lessor, would of themselves authorize the court of equity to take jurisdiction, for the relief of the lessee, if there is not a judgment at law against her, and she has not lost her right, because of her failure to make defence. The equity of the present bill is maintainable also upon another ground.
The fact is averred by the bill, and the demurrer admits, that the judgment in the action of unlawful detainer is founded wholly on the tenant’s forfeiture of the lease, by the failure or refusal to pay rent on the day it was demandable. The lease contains the following stipulation: “ The party of the second part agrees to pay rent for the same, one hundred dollars each month in advance, the first month on taking possession. Upon failure to pay for any month as above provided for three days after demand, the party of the second part agrees, that the party of the first part may at her option terminate said lease, and re-enter and take possession which the party of the second part agrees to give.” Having paid rent for eighteen months of the term, the tenant refused further payment, because as she claims, the damages suffered [531] •from the breach of the lessor’s covenants equal the rent due, and to accrue.
Covenants of this kind, for the forfeiture of a lease, and the re-entry of the lessor, by a breach of the lessee’s covenant for the payment of rent, in courts of equity, and of law, are regarded as intended as a mere security for the payment of the rent. In a court of equity they are treated as the condition in a mortgage, by which at law, on default of the mortgagor in payment of the mortgage debt, the estate of the mortgagee becomes absolute and indefeasible. They are relieved against, as the mortgagor is relieved, on payment of the rent due, and damages which the lessor may have sustained.—Taylor’s Land. & Ten. § 495; 2 Story’s Eq. '§ 1315. And relief is afforded, though the lessor may in ejectment have recovered possession of the premises.— Wadman v. Calcraft, 10 Vesey, 67; Davis v. West, 12 Vesey, 475; Hill v. Barclay, 16 Vesey, 402. The principle on which the court proceeds, is that the right of the one party, and the duty of the other, is compensation. This may be afforded, as well by extinguishing or reducing demands against the lessor, as by a payment in money, if these demands are such as would be the matter of set-off or recoupment in an -action at law by the lessor for the recovery of the rent. In O’Connor v. Spaight, 1 Sch. & Lef. 305, the accounts between the lessor and lessee, had become too complicated for adjustment in an action at law. The tenant refusing further payment of rent, the lessor claiming a forfeiture of the lease commenced ejectment for the recovery of possession, which was enjoined. And in Beasley v. Darcy, 2 Schoales & Lef. 403, a similar action was enjoined, because the lessee had demands growing out of the lessor’s breaches of covenant, -equalling the rent. In an action of ejectment, or in the statutory, action of unlawful detainer, the right of possession alone is involved. The only inquiry the court can make, is whether the lease has been forfeited, and the lessor has the right of re-entry. There can be no set-off or recoupment allowed the lessee, because of the lessor’s breach of covenants. This could be obtained only in an action ex contractu. The judgment in the action of unlawful detainer does not conclude the complainant, therefore, from relief in equity.
Nor is her right affected by the lessor’s alienation of the premises. The alienees succeed to the right accruing subsequent to the alienation, but it is subject to all the existing ■rights and equities of the lessee, against the lessor.
The bill is not subject to the objection of multifariousness. [532] All its averments, and its prayer for relief relate to the lease, the rights claimed under it, and the damages sustained by the lessor’s breach of its covenants. By the alienation, and by the rights the alienees claimed under it, it was indispensable to full relief, and to the protection of the tenant against •their claims, that they should be made parties.
We do not think the bill was subject to the demurrer, and the chancellor was in error in sustaining it. The decree is reversed, and the cause remanded.
Stone, J., not sitting.