EVICTION. Depriving a person of the possession of his lands or tenements.
Teohnically, the dispossession must be by judgment of law ; if otherwise, it is an ouster.
Total eviction takes place when the pos sessor is wholly deprived of his rights in the premises. Partial eviction takes place when the possessor is deprived of only a por tion 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 ease ment over it, by a title which is prior to that under which he holds.
2. With respect to the demised premises, an eviction consists in taking from a tenant some part of the premises of which he was in possession, not in refusing to put him in possession of something which by the agree ment with his landlord he should have en joyed. 12 Wend. N. Y. 529. And in order to effect a suspension of rent there must be something equivalent to an expulsion from the premises, and not a mere trespass or dis turbance in the enjoyment of them. 4 Wend. N. Y. 505 ; 5 Sandf. N. Y 542 ; T. Jones, 148; 1 Yerg. Tenn. 379.
3. It is not necessary, however, in order to produce the eviction of a tenant, that there should be an actual physical expulsion ; for a landlord •may do many acts tending to diminish the enjoyment of the premises, short of an expulsion, which will amount to an eviction in law.: as, if he erects a nuisance so near the demised premises as to deprive the tenant of the use of them, or if he otherwise intentionally disturbs the tenants enjoyment to such an extent as to injure his business or destroy the comfort of himself and family, it will amount to an eviction. 8 Cow. N. Y. 727; 2 Ired. No. C. 350; 1 Sandf. N. Y. 260 ; 4 N. Y. 21-7.
4. The remedy for an eviction depends chiefly upon the covenants in the deed under which the party held. When the grantee suffers a total eviction, if he has a covenant of seisin or for quiet enjoyment, he recovers from the grantor the consideration-money which he paid for the land, with interest, and not the enhanced value of the premises, whether such value has been created by the expenditure of money in improvements there on, or by any other more general cause. 14
Wend. Y. 38 ; 2 Mass. 432 ; 2 Wheat. Penn. 62. And this seems to be the general rule in the United States. 3 Caines, N. Y. 111; 4 Johns. N. Y. 1; 13 id. 50 ; 4 Dall. Penn. 441 ; Cooke, Tenn. 447 ; 1 Hen. & M. Va. 202 ; 5 Munf. 'Va. 415 ; 4 Halst. N. J. 1395 2 Bibb, Ky. 272. In Massachusetts, the measure of damages on a covenant of warranty is the value of the laud at the time of eviction. 3 Mass. 523 ; 4 id. 108. See, as to other states, 1 Bay, So. C. 19, 265; 3 Des. Eq. So. C. 245 ; 2 M'Cord, So. C. 413 ; 3 Call, Va. 326.
5. With respect to a lessee, however, who pays no purchase-money, the rule of damages upon an eviction is different; for he recovers nothing, except such expenses as he may have been put to in defending his possession ; and as to any improvements he may have made upon the premises, he stands upon the same general footing with a purchaser. The rents reserved in a lease, where no other consideration is paid, are regarded as a just equivalent for the use of the demised pre= miser. Upon an eviction the rent ceases, and the lessee is thereby relieved from a burden which must be deemed equal to the benefit he would have derived from the con tinued enjoyment of the property. 2 Hill, N. Y. 105. And see 1 Du. N. Y. 343 ; Taylor, Landl. & Ten. 317.
6. When the eviction is only partial, the damages to be recovered under the covenant of seisin are a ratable part of the original price, and they are to bear the same ratio to the whole consideration that the value of the land to which the title has failed bears to the value of the whole tract. The contract is not rescinded, so as to entitle the vendee to the whole consideration-money, but only to the amount of the relative value of the part lost. 5 Johns. N. Y. 49 ; 12 id. 126 ; La. Civ. Code, 2493; 4 Kent, Comm. 462. See 6 Bacon, Abr. 44; 1 Sound. 204, note 2, 322 a, note 2 ; 1 Baiv:er, Inst. n. 656.