Ware v. Lithgow

71 Me. 62, 1880 Me. LEXIS 30

• Court: Supreme Judicial Court of Maine
• Decided: February 16, 1880
• Status: Published

Opinion

AttletoN, C. J.

This is an action of covenant broken, for the breach of the covenant for quiet enjoyment. The defendant filed a general demurrer to the declaration which was joined. The presiding justice sustained the demurrer and adjudged the declaration bad.

The declaration sets forth that "the defendant did lease, demise and let unto” the plaintiff, a certain parcel of land situate in said Augusta, &c.

Tbe word " demise” in a lease, implies a covenant for quiet enjoyment. This word imports a covenant that the lessor had authority to make a valid lease of the promises. Grannis v. Clark, 8 Cow. 36; and a covenant for the quiet enjoyment of the premises leased. Barney v. Keith, 4 Wend. 502; Crouch v. Fowle, 9 N. H. 219. Though the covenant be an implied one, it may be stated according to its legal effect, Dexter v. Manley, 4 Cush. 14.

The declaration is fatally defective in not setting forth any breach of the covenant for quiet enjoyment. The allegations are, that the defendant leased portions of the premises to certain persons, and sold to another the grass on the remainder. It is nowhere stated that his lessees have entered on the premises leased, or interfered with the plaintiff’s quiet enjoyment of the same, or that the vendee of the grass has cut or carried away any. No eviction is alleged. No tortious interference with any of the plaintiff’s rights is disclosed. Every allegation in the writ may be true, and the plaintiff may have been in the quiet enjoyment of the premises leased.

Exceptions overruled.

Wat,TON, Barrows, .DaNforth, Libbey and Symores, JJ., concurred.