Eviction

If the grantee be unable to obtain possession in consequence of an existing possession or seisin by a person claiming and holding under an elder title, this would certainly be equivalent to an eviction and a breach of the covenant.

Depriving a person of the possession of his lands or tenements. Technically, the dispossession must be by judgment of law; if otherwise, it is an ouster (32 Iowa, 71), but in modern usage it is commonly applied to dispossession in any manner (44 N. Y. 382; 39 Cal. 360; 98 N. C. 239.) Eviction may be total or partial. (1) Total eviction takes place when the possessor is wholly deprived of his rights in the premises. (2) Partial eviction takes place when the possessor is deprived of only a portion of them; as, if a third person comes in and ejects him from the possession of half his land, or establishes a right to some easement over it, by a title which is prior to that under which he holds. It may be actual or constructive. (3) Actual eviction is where one is, either by force or by process of law, actually put out of possession. (4) Constructive eviction is such acts of wrongful interference as seriously impair the enjoyment of the premises. 132 Mass. 367; 20 N. Y. 281. Thus, the erection by the landlord on the demised premises, of a permanent structure, which rendered two rooms in the demised house unfit for use, is a constructive eviction. 106 Mass. 201.

Dispossession by process of law; the act of depriving a person of the possession of lands which he has held, in pursuance of the judgment of a court. Rea-soner v. Edmundson, 5 Ind. 395;.Co.wdrey v. Colt, 44 N. Y. 392, 4 Am. Rep. 690; Home Lite Ins. Co. v. Sherman. 46 N. Y. 372. Technically, the dispossession must be by Judgment of law; if otherwise, it is an ouster. Eviction implies an, entry under paramount title, so as to interfere with the rights of the grantee. The object of the party making the entry is immaterial, whether it be to take all or a part of the land itself or merely an incorporeal right. Phrases equivalent in meaning are "ouster by paramount title," "entry and disturbance," "possession under an elder title," and the like. Mitchell v. Warner, 5 Conn. 497. Eviction is an actual expulsion of the lessee out of ali or some part of the demised premises. Pendleton v. Dyett, 4 Cow. (N. Y.) 581, 585.

In a more popular sense, the term denotes turning a tenant of land out of possession, either by re-entry or by legal proceedings, such as an action of ejectment. Sweet. By a loose extension, the term is sometimes applied to the ousting of a person from the possession of chattels; but, properly, it applies only to realty.

In the civil law. The abandonment which one is obliged to make of a thing, in pursuance of a sentence by which he is condemned to do so. Poth. Contr. Sale, pt. 2, c. 1, § 2, art 1, no. 83. The abandonment which a buyer ls compelled to make of a thing purchased, in pursuance of a judicial sentence. Eviction ls the loss suffered by the buyer of the totality of the thing sold, or of a part thereof, occasioned by the right or claims of a third person. Civil Code La. art. 2500.

— Actual eviction. an actual expulsion of the tenant out of all or some part of the demised premises; a physical ouster or dispossession from the very thing granted or some substantial part thereof. Knotts v. McGregor, 47 W. Va. 566, 35 S. E. 899; Talbott v. English, 156 Ind. 299, 59 N. E 857; Seigel v. Neary, 38 Misc. Rep. 297, 77 N. Y. Supp. 854.--Constructive eviction, as the term is used with reference to breach of the covenants of warranty and of quiet enjoyment, means the inability of the purchaser to obtain possession by reason of a paramount outstanding title. Fritz v. Pusey, 31 Minn. 368, 18 N. W. 94. With reference to the relation of landlord and tenant, there is a "constructive eviction" when the former, without intent to oust the latter, does some act which deprives the tenant of the beneficial enjoyment of the demised premises or materially impairs such enjoyment. Realty Co. v. Fuller, 33 Misc. Rep. 109, 67 N. Y. Supp. 146; Talbott v. English, 156 Ind. 299, 59 N. E. 857.

The recovery of of lands by process of law In the civil laip. The a thing, in pursuance of abandonment; the depriving power to retain the thing sold, or of a part of it,

Dispossession by process of law; the act of depriving a person of the possession of lands which he has held,-in pursuance of the judgment of a court. Technically, the dispossession must be by judgmentof law; if otherwise, itis an ovster. Bviction implies an entry under paramount title, #0 as to interfere with tho rights of the grantee. The object of the party making the entry is immaterial, whether ™ ba to take all or a part of the land itself or merely an incorporeal right. Phrascs equivalent in meaning are “ouster by paramount title,” “entry and disturbance, ” “possession under an elder title,” and the like. 5 Conn, 497. Eyiction is an actual expulsion of the lessea out of all or some part of the demised premises. 4 Cow, 581, 585.

In a more popular sense, the term denotes turning a tenant of land out of possession, either by re-entry or by legal proceedings, such as an action of ejectment. Sweet. By a loose extension, the term is sometimes applied to the ousting of a person from the possession of chattels; but, properly, it applies only to realty.

In the civil law. The abandonment which one is obliged to make of a thing, in pursuance of a sentence by which he is condemned todoso. Poth, Contr. Sale, pt. 2, ¢.1, § 2, art. 1, no. 83. The abandonment which Evietion Ja the loss suffered by the buyer of the totality of the thing sold, or of a part thereof, occasioned by the right or claims of athird person, Oivil Code La. art. 2500.

* It is difficult to define this word with technical accuracy. Latterly, it has denoted what formerly it was not intended to express. In the language of pleading a party evicted was said to be expelled, amoved, put out. The word, which is from evincere, to dispossess by a judicial course, formerly denoted expulsion by the assertion of a paramount title, and by process of law. It is now popularly applied to every class of expulsion or amotion. ^ A wrongful act by a landlord, which results in the expulsion or amotion of his tenant from the land.* An act of a permanent character done by the landlord to deprive, and which has the effect of depriving, the tenant of the use of the demised thing or a part of it.' To constitute an eviction which will operate as a Suspension of the rent, it is not necessary that there should be an actual physical expiilsion of the tenant from any part of the premises.' Any act of a permanent character, done by the landlord, or by his procurement, with the intention and ef Eect of depriving the tenant of the enjoyment of the premises demised, or a part thereof, to which he yields and abandons possession.6 A definition has sometimes been given by which, to constitute an eviction, there must be an amotion of the tenant from the demised premises by, or in consequence of, some act of the landlord in derogation of the rights of the tenant, and with intent to determine the tenancy, or to deprive the tenantof the enjoyment ''*i Ete£wn V. Jarvis, 3 De Gex, F. & J. *173 (1860), Campbeir, Jd. Ch. a State V. Penny, 19 S. C. 321 (1882), Simpson, C. J. s Commonweal1tfii,i;. Eiohmond, &c. R. Co., 81 Va.S67 (1S36). ■ -A • L. evictus: ew^cere, to overcome, vanquish. '» Upton V. Towaend)^84 E. C. L. *64, 80 (1855), Jervis; Chief Justice. \, ■ « [Ibid. •70, Crowder, Jj., ■'Ibid. *73, Willee, J. of the premises, or some part thereof. The amotion may be by physical expulsion by the landlord, or by abandonment by the tenant upon some act of the landlord which amounts to an eviction at the election of the tenant. The intent with which the act is done may he ah actual intent accompanying and characterizing the act, or it may be inferred from the act itself... Generally the question as to what acts of the. landlord, in consequence of which the tenant abandons the premises, amount to an eviction, is a question of law, and includes the question whether the acts constitute proof of the intent. ^ Sometimes spoken of as " actual " or " constructive," and as " partial " or " total." The idea that the ouster must be by process of law has long since been given up. The rule now is that covenants for quiet enjoyment or of warranty are broken whenever there has been an involimtary loss of possession by reason of the hostile assertion of an irresistible title. Moreover, the eviction may be " constructive " — caused by the inability of the purchaser to obtain possession by reason of the paramount title.* Eviction from all or part or the premises suspends the entire rent for the time being. The tenancy is not thereby ended, but the rent and all remedy for its collection is suspended. To have the effect of suspending the rent the eviction must be effected before the rent becomes due, for rent already overdue is not forfeited. The rule is the same although the rent is payable in advance and the eviction occurs before the • expiration of the period in which the rent claimed accrues. 8 A lawful act upon an adjoining estate, done to improve that estate, is not an eviction.*

Dispossession by process of law; recovery of lands; ouster notice to Ex,;. From; of; out dant! cautela: from guitur ad usum: as to its use. Ex in equity. Ex aequo good. Ex assensu Ex antecedentibus pretatio: the best precedes and follows. cretion of the judge. of the goods. Ex inherited through the fraudis: on the ground title. Ex causa Ex certa scientia: comity, courtesy. Ex paratione scriptorum concessione: by [premises]. Ex nenti: immediately. culpa levissima: titiae (from a debt bito natural!: from for a defect in right. of blood. Ex delicto missione: on the ing to the voice of Ex diurnitate esse acta: on account sumed to have been tur actio: out of purchase. Ex eo quently happens. Ex act, actual. Ex facto the fact. Ex fictione by favor. Ex gravi writ that lay for one custom by will, and of; by or with; aooording to. Ex abunexcessive caution. Ex abuso non arfrom the abuse of a thing you cannot argue adverse: on the other side. Ex eequitate: et bono: according to what is just and patris: from the father's consent; v. Dower. et consequentibus fit optima interinterpretation is made by means of what Ex arbitrio judicis: from the dis- Ex auditu: from hearsay. Ex bonis: bonis maternis, patemis: from the goods mother, the father. Ex capite doli or of fraud. Ex causa: from cause, by lucrativa: by a lucrative title [gratuitously]. of certain knowledge. Ex comitate: by commodate: from a loan. Ex com-: by comparison of handwritings. Ex grant. Ex concessis: from the granted consuitu: from consultation. Ex conti- Ex contractu: from contract. Ex from the slightest fault. Ex debito jusof justice): as a matter of right. Ex denatural obligations. Ex defectu juris: Ex defectu sanguinis: for a failure: from fault or crime. Ex dem., dedemise. Ex dicto maj oris partis: accordthe majority. Ex directo: immediately. tempoiis, omnia prsesumuntur solemniter of the lapse of time, all things are predone in due form. Ex dolo malo, non orifraud, no action arises. Ex empto: from quod plerumque fit: from that which frefacie: on the face. Ex facto: from an jus oritur: the law (arises) depends on juris: by a fiction of law. Ex gratia: querela (on grievous complaint): an old to whom lands were devised by special the heir retained them. Ex hypothesi: ration. Ex incontinenti: summarily. design, on purpose. Ex insinuatione Ex integro: anew, afresh. Ex Ex jure naturae: by the law of a just cause. Ex latere: on the legibus: according to law. Ex license. Ex looato: from a letting, non oritur contractus: from arise. Ex mero motu: of mere toris: on account of the debtor's to custom. Ex natura rei: from necessitate: by necessity; legis, non oritur actio: from a bare consideration] no action arises. Ex Ex pacto i Uicito non oritur ment no action arises. Ex parte one party; hence, partial, done for application of. Ex parte materna, father's side. Ex paucis: from post facto: by matter happening or event. Ex post facto la'w: an law as to previous events or contracts. litia: of malice aforethought. Ex ises. Ex proprio motu: of his vigore: of 'their own force. Ex tled on the wife in tail by provision husband and wife, by his ancestor. ing as if from a contract. Ex rel, or iaformation. Ex rigore juris: Ex scriptis olim visis: from writings ciali gratia: of special favor. Ex without preparation. Ex testamento verso: across. Ex turpi causa [illegal] consideration no action can one side. Ex utraque parte: metu: by force or fear. Ex tion of God. Ex visu scriptionis Ex industria: with: on the information [of]. intervallo: after an iaterval. nature. Ex justa causa: by side, collateral. Ex lege, liceutia regis: by the King's a hiring. Ex maleficio, misconduct, no contract can motion. Ex mora debidelay. Ex more: according the nature of the thing. Ex of law. Ex nudo pacto agreement [parol and without ofl Scio: by virtue of office. actio: from an Ulegal agree-: 1. from, of, or by one side, or by one party. 2. On the paterna: on the mother's, few (things or words). Ex afterwards, from a later act act or statute changing the Ex praecogitata maprsemisses: from the premown accord. Ex proprio provisione viri: lands setof the husband; or on both Ex quasi contractu: arisrelatione: on the relation, according to the rigor of law. formerly seen. Ex spetempore: by lapse of time;: by a will. Ex transnon oritur actio: on a bad arise. Ex una parte: from on both sides. Ex vi aut visitatione Dei: by the visita-: from sight of the writing Ex vi termini the

[Lat. evictio, from evincere, to overcome, to prevail in law.] In the civil law. The abandonment which one is obliged to make of a thing, in pursuance of a sentence by which he is condemned to do so. Pothier Contr. of Sale, part 2, ch. 1, sect. 2, art. 1, n. 83. The abandonment which a buyer is compelled to make of a thing purchased, in pursuance of a judicial sentence. Id. ibid. The sentence which orders such abandonment. Id. The depriving a buyer, without any sentence, of the power to retain the thing bought, in virtue of the sale. Id. n. 86. The loss suffered by the buyer of the totality of the thing sold, or of a part thereof, occasioned by the right or claims of a third person. Civil Code of Louisiana, art. 2476.