State Use of Thompson v. McClay

1 Del. 520

• Court: Superior Court of Delaware
• Decided: July 5, 1835
• Status: Published

Opinion

By the Court—Clayton Chief Justice:

The pleadings admit that the plff. has a right to recover his rent unless he evicted the tenant Reading during his term. An eviction is any entry by the landlord upon the possession of his tenant with a design to injure or prejudice the tenant’s right of possession. The premises in question were rented by Reading for one year from the 25th of March, 1833. On the 25th of September he absconded in the night time and left the state, taking with him a part of his goods. The goods left on the premises were sold by the deft. M‘Clay on execution process. They were also levied upon by distress at the suit of the plff. for rent; and it is not denied that he is entitled to be paid out of the proceeds of the sales unless his conduct in taking possession of the' premises occasioned a forfeiture of the rent. If a tenant absconds and goes out of the government and abandons the property, common sense would teach that the landlord had the right to take proper care of the abandoned premises to prevent their going to destruction. The object, therefore, of Mr. Thompson in entering upon these premises and locking up the house should govern in ascertaining whether there was an eviction. If he entered with a view of dispossessing the tenant, keeping him out, or prejudicing his rights as tenant; or if he did so dispossess him, against his will; it would be an eviction; but if all the acts of Thompson amounted only to reasonable care of his property; and were not designed and had not the effect to dispossess or keep out Reading against his will, they would not constitute an eviction. The fact of again leasing the property is no evidence of an eviction, for the term was not to commence until the expiration of Reading’s lease; and these arrangements for a new tenancy must always be made before the expiration of the old. The entry by the new tenant for the purpose of filling the ice house is not proved to have been by authority of the landlord; and it would, perhaps, be justified by the custom of the country. Necessity and the custom require that the incoming tenant should be permitted to fill the ice house before his term commences as much as that the way-going tenant shall return to reap his wheat crop.

Verdict for plaintiff.