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The Annotations are prepared by the following Editors and Assistants :
Department of PRACTICE, PLEADING AND Evidence.

Hon. George M. Dallas, Editor. Assistants: Ardemus Stewart,
Henry N. Smaltz, John A. McCarthy, William Sanderson Furst.
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Lewis, Wm. Struthers Ellis.

Department of MUNICIPAL CORPORATIONS.

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streth.

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Department of PATent Law.

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Department of PROPERTY.

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Haig, Wm. A. Davis, Jos. T. Taylor.

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DEPARTMENT OF PROPERTY.

EDITOR-IN-CHIEF,

HON. CLEMENT PENROSE.

Assisted by

WILLIAM A. DAVIS.

ALFRED ROLand Haig.

HOLLIS 7. BROWN.' SUPREME COURT OF PENNSYLVANIA.

Lease-Warranty as to Condition of House.

Where one leases a house and lot of ground for a term of years, there is no implied warranty on the part of the lessor, that the house is habitable, and fit to dwell in, even though the situation of the house is such that it could not be used for anything else than a dwelling house; and an affidavit of defence to an action for rent, which makes only this defence, is insufficient.

IMPLIED WARRANTIES IN A LEASE.
DWELLING HOUSE

JOSEPH T. TAYLOR.

The above case finally settles the law in Pennsylvania on the question involved, if, indeed, it had not been practically settled by previous decisions, see infra. Habitable condition is not implied in the lease of a dwelling house. A. may rent a house from B. for five years, and the day after find it uninhabitable by reason of its faulty construction, yet A. has to pay the rent for the term. The rule caveat emp tor applies. There is no escape. because there is no implied warranty that the house was habitable. This is in accordance with the previous trend of decisions in the State: See Wheeler v. Crawford, 86

Pa. 327. The opinion of Judge WOODWARD, in Carson v. Godley, 26 Pa. 117; Moore v. Weber, 71 Pa. 429, page 432; Barns v.

'157 Pa.

HABITABLE CONDITION.

Wilson, 1 Crum. (Pa.) 303; Hazlett 7. Powell, 6 Casey, 297. As we shall sce, is in accordance with the general drift of authority in the United States. It is not, however, on the exact point involved, as the law of England. We will first trace the English authorities on the subject.

As long ago as 1811, Lord MANSFIELD decided the case of Baker v. Holtpzaffell, 4 Taunt, 44. This was an action for rent. The premises in question had been let for one year. Shortly after the first quarter's rent had been paid, the house was burnt down. It was held that the tenant had to pay the rent for the remainder of the term. The ground, on which Lord MANSfield put the decision, was one peculiar to the common law. The civil law

would have looked at the lease as a contract. Doing so, the question would be necessarily decided in favor of the tenant. He had leased a particular thing, i. e., a house, and the house, the subject matter of the contract, had disappeared. The contract was necessarily terminated. But Lord MANSFIELD advanced at the question from the standpoint of the English law of real property. What was rented was not the house but the land. "The land," he says, "is still in existence, and there was no offer on the part of the defendant to deliver it up. The landlord could not enter to rebuild." While Judge HEATH adds, on this last point, "the defendant might have rebuilt at any period of the term, whereas the landlord would have been a trespasser, if he entered for that purpose." This was good logic from the point of view taken, but the absurdity of telling the tenant, who was liable to be turned out within a twelfth month, that because he could build a new house for the benefit of his landlord and, therefore, must pay rent, is evident. It is said by Justice HEATH that the case had often been decided before at nisi prius, though this is the first reported decision. The defendant evidently knew his case was hopeless, for he had appealed for relief to Lord ELDON (Holtpzaffell . Baker, 18 Ves. 116). But unlike the life tenant in possession, the lessee is not a favorite with the Chancellor, so the bill was dismissed.

be said for the common law rule. The burning of the house is the fault of neither party to the contract. It is as fair that it should fall on the tenant as on the landlord. Had equity interfered, it might have divided the loss, requiring the tenant to pay half the

rent.

The law of this country, unlike the English law, except where altered by statute as in Ohio and Illinois, has followed this leading

case.

After all, there is something to

As we have said, the decision in this first English case is undoubtedly still law on the point involved both in England and America. Where, however, the premises become uninhabitable, through a defect existing at the time of the lease, the English decisions cannot be made to agree with the reasoning of Lord MANSFIELD or with the Pennsylvania case.

In 1825, the case of Edwards v. Etherington, Ry. & Moody, 11, 268, came up for decision. It appeared that the walls of the house, for rent of which the action was brought, were in a dilapidated condition. The defendant, who had occupied the house as tenant from year to year, finding that the house was unsafe, left it. The landlord did not accept a release for some time. The question involved was whether the landlord could demand rent from the time the defendant had quitted the premises to the date when he had finally agreed to accept them from the tenant. Lord Chief Justice ABBOTT charged the jury that it was for them to say whether such serious reasons for quitting existed in the case, as would exempt the defendant from the demand on the ground of his having no beneficial use and occupation of the premises; and that, through no fault of his own, but through the fault of the plaintiff, who ought to have taken care that the premises should

have been in such a state as to continue useful to the defendant, the house became unfit for use. The verdict was for the defendant.

From the first of the report of this case, there is no way in which it can be reconciled with the prin ciple enunciated in Baker V. Holtpzaffell, Lord Chief Justice ABBOTT seems to advance towards the question from an entirely different standpoint than that taken by Lord MANSFIELD. He looks at the lease as he would at a contract for goods and chattels, and asks whether there has been any beneficial use and enjoyment by the tenant. In his mind, the beneficial use and enjoyment was the essence of the contract. In Lord MANSFIELD'S mind, the question seems to have been simple whether the tenant had been given control of a certain portion of the earth's surface, the fact that the lease really contemplated the occupation of a house being left out of consideration.

The next case, that of Collins . Barrow (1831), 1 M. & R. 112, departs, if anything, still farther from the case of Baker . Holtpzaffell. There the defendant took the house, the rent of which was in question, under a written agreement by which he was to occupy for three years and to keep the premises in a tenantable condition. He had, in fact, quited the premises without notice at the expiration of the first six months. The defendant said that the house was unfit for habitation for want of sufficient drainage, whereby it became unwholesome, noisome and offensive. Baron BAILEY, in his decision re'narked: "I do not see that the fact of the tenancy in this case, being under a written agree

ment, is material. In any case, the tenant is bound to pay rent during the time for which he has contracted, unless he satisfies the jury that, under the circumstances, he was justified in quitting. I think, however, that in point of law he will be freed from his obligation to reside on the premises, if he makes out, to the satisfaction of the jury, that the premises were noxious and unwholesome to reside in, and that this state arose from no default or neglect of his own, but from something over which he had no control, except at an extravagant and unreasonable expense." The house in this case was practically uninhabitable until a sewer was built, and the court held that the tenant was not bound to build a sewer, and if the landlord did not build it, the tenant could move out and terminate the lease. In the subsequent case of Arden 7. Pullen, 10 M. & W. 321, it is intimated that the report of the case of Collins . Barrow is not complete, and that it is possible there existed an express stipulation on the part of the landlord that he would build a sewer. From the whole opinion, however, of Baron BAILEY, it is evident that this express stipulation was not necessary for his decision. He took the point of view, which had been taken by Lord Chief Justice ABBOTT, and which was the point of view of the civil and not of the common law. Had the rest of the English judges advanced at the question from the same standpoint, they would have soon expressly overruled the earlier decision in Taunton, but Lord ABINGER, in the later case of Arden v. Pullen, TO M. & W. 321, returned to the common law rule.

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the plaintiff, the contract for letting the house was perfectly good, and implied no warranty that the premises were in a good condition; that the landlord, under the lease, had only one obligation to perform, to wit: not to disturb the quiet possession of the tenant during the term. The allegation in the plea, he asserted, would not be good, had it not contained the assertion that the defects in the house arose through the fault of the plaintiff. As this allegation could not be proved by the defendant, the real question was, whether, when a house turns out to be uninhabitable, the landlord is bound to repair it. "I think," says Lord ABINGER, "that without some express stipulations he is under no such obligation."

The declaration in that case stated that on the 25th of March, 1839. by an agreement made between the plaintiff and defendant, the plaintiff agreed to let, and the defendant agreed to take of the plaintiff, for the term of three years, from the 25th of December, 1839, a house and premises at the yearly rent of thirty pounds, payable quarterly, and the defendant, among other things, agreed with the plaintiff that he, the defendant, would keep the said premises in as good repair and condition as the same then were, and would so leave the same on the termination of the said lease, fair wear and tear excepted. The breach set out was that the defendant had not paid the two quarter's rent, which became due on the 25th of March, 1842. The excuse of the defendants in their plea was that the said house and premises, by means and in conse. quence of age and natural decay, and the badness of the material thereof, and the bad and improper manner, in which they were originally built, and the rotten foundrous miry and unsafe state and condition of the walls, timbers and foundations thereof, and for want of good and sufficient sewerage and drainage, etc., that the premises were in a ruinous, bad, and unsafe and dangerous condition and wholly unfit and unsafe for habitation, and that the defendant had requested the plaintiff to put the house in good condition, and he refused. Counsel for the defence argued that the case of Collins . Barrow was in point, as it undoubtedly was. Lord ABINGER, however, took the position that, unless there was some fraud or improper concealment on the part of

Baron ALDERSON was of the same view in his opinion, he cites the case of Izon v. Gorton, 5 Bing. N. C. 501 (1839). The case follows Baker . Hol:pzaffell, the circumstances presenting exactly the same question, the premises for the rent of which the suit was brought having been consumed by fire. The peculiar circumstances of this last suit, however, bring out very forcibly the absurdity of the English reason, for the Lord MANSFIELD had decided the case before him on the ground that the landlord could not enter to repair without being a trespasser, and that the only person who had a power to repair was the tenant. In Izon v. Gorton the tenant occupied two upper stories in a house. The landlord actually did enter and repair. A man who rents so many square feet of air space fifty feet in the air, enclosed by four walls of a room, is obliged to pay rent for the space when the house is consumed by fire, and a

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