Underwood v. Birchard

47 Vt. 305

• Court: Supreme Court of Vermont
• Decided: January 15, 1875
• Status: Published

Opinion

The opinion of the court was delivered by

Wheeler, J.

The covenant declared upon and claimed to have been broken, is substantially a covenant for quiet enjoyment. Such a covenant relates to the lessor’s title and right to grant the pi’emises leased, and the possession of them during the term of the lease, and not to the possession and enjoyment of them in fact by the lessee as against those who have no right to disturb him. It is a covenant that he shall not be rightfully disturbed in his possession and enjoyment during the term, and not that he shall not be disturbed at all during the term. 1 Wash. Real Prop. 427; Taylor Land. & Ten. §§ 304, 305, 306; Knapp v. Marlboro, 29 Vt. 282; s. c. 31 Vt. 674. As to this, there is not much controversy in this case. The important question made is, as to whether or not the plaintiff was kept out of possession and enjoyment by a title that was elder and better than his own. The report shows that the defendants were rightfully in possession of the Rutland and Burlington railroad and the management of its property, of which the premises leased were a part, and that Yan Sicklen & Walker were in possession of that part under some arrangement with one Thomas Thatcher, a predecessor in right of the defendants, and that Yan Siclden & Walker refused to permit the plaintiff to enter and enjoy the premises during the term for which they were leased; but it does not show that the arrangement under which Van Sickleu & Walker held, entitled them to possession after the commencement of the plaintiff’s term, nor that they had any other title by which they could have rightfully kept the plaintiff out of possession. It cannot be presumed that the arrangement with Thatcher gave Yan Sicklen & Walker a right to hold the possession for any length of time ; nor can their right be taken to have run, until shown to have stopped. So far as the case shows, they were mere wrong-doers in their holding of possessian against the plaintiff, of whom the plaintiff could have recovered it, with damages for the detention of it from him, by a proper action. Therefore it does not appear but that the plaintiff got all that the defendants covenanted he should have, which, in effect, was, that he should have the right to, and might lawfully, occupy during the term, without lawful let or hindrance.

Judgment affirmed.