PLAYTER v. CUNNINGHAM, 21 Cal. 229

Cope, J. delivered the opinion of the Court Field, C. J. and Norton, J. concurring. In April, 1860, the defendant executed to the plaintiff and one Berring a lease of certain premises in the city of San Francisco, for one year, commencing on the first of August. Berring assigned his interest to the plaintiff, and at the proper time the plaintiff tendered the rent and demanded possession of the premises, but was prevented from entering by one Reed, who was in possession, claiming to hold under a prior lease.

The action is brought upon a covenant in the lease for quiet enjoyment, and the question is, whether the defendant was bound by the covenant to put the plaintiff in possession. The case comes up on demurrer to the complaint, the Court below having sustained the demurrer, and rendered a judgment for the defendant. The language of the covenant is, that the lessees paying the rent shall peaceably and quietly have, hold, and enjoy the premises for the term mentioned.

This is the form usually adopted in such cases, and there is no doubt that a covenant of this character insures to the lessee a legal right to enter and enjoy the demised premises. The plaintiff contends, that it amounts to an undertaking that the lessee shall be permitted to enter quietly and without suit, and that it devolves upon the lessor to remove any obstruction to his entry by putting him in possession. The defendant contends that it only implies a legal right to enter, and is not a guaranty against damages resulting from the wrongful act of a third person who may happen to be in possession.

This we regard as the correct view; and although the authorities are not entirely uniform, we understand the law upon the subject to be perfectly well settled. (Taylor's Landlord and Tenant, 147; Rawle on Covenants for Title, 147.) The lessor is responsible upon the covenant for his own acts, and for the acts of others claiming by title paramount to the lease, but he is not responsible for the acts of a mere trespasser. The effect of these acts may be to deprive the lessee of the benefit of the lease, but the remedy is against the person by whom the acts were committed, and not against the lessor.

If it were averred that Reed was in possession actually holding under a superior title, the complaint would probably be sufficient, without alleging that a suit had been brought, and the validity of the title judicially determined. It is not enough, however, to have averred that he was in possession, claiming to hold under a prior lease, for it was necessary to show that the plaintiff had been kept out by means of a paramount title. Judgment affirmed.