But a mere failure of the landlord to make repairs, ,although such act may cause the place to be untenantable, will not amount tc an eviction ; Coddington v. Dunham, 35 N Y. Super. Ct. 412 ; Bussman v. Ganster, Pa. 285. See Alger v. Kennedy, 49 Vt. 109 24 Am. Rep. 117. Nor the presence of ver• min; Jacobs v. Morand, 59 Misc. 200, 11( N. Y. Supp. 208. If the objectionable acts are done on an adjoining property it is not eviction ; Solomon v. Fantozzi, 43 Misc. 61 86 N. Y. Supp. 754; Kellogg v. Lowe, 3f Wash. 293, 80 Pac. 458, 70 L. R. A. 510 Gray v. Gaff, 8 Mo. App. 329.
The doctrine of constructive eviction amounts only to a right to abandon the premises ; it is not a defence against an ac Lion for rent when the tenant waives the eviction and remains in possession ; Edger ton v. Page, 20 N. Y. 281.
The ownership of adjacent premises, and the doing of an act, solely as owner of such premises, which injures a tenant's use of hie land, do not infringe a right of the tenant and will not amount to a constructive evic tion; Palmer v. Wetmore, 2 Sandf. (N. Y.) 316; Solomon v. Fantozzi, 43 Misc. 61, 86 N Y. •Supp. 754 ; Kellogg v. Lowe, 38 Wash• 293, 80 Pac. 458, 70 L. R. A. 510 ; Gray v. Gaff, 8 Mo. App. 329. • The remedy for an eviction depends chief ly 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 genetal cause ; Kinney v. Watts, 14 Wend. (N. Y.) 38; Mar ston v. Hobbs, 2 Mass. 433, 3 Am. Dec. 61. And this seems to be the general rule ; Ben net v. Jenkins, 13 Johns. (N. Y.) 50; Bender v. Fromberger, 4 Dall. (U. S.) 441, 1 L. Ed. 898; Talbot v. Bedford's Heirs, Cooke (Tenn.) 447; Lowther v. Com., 1 Hen. & M.
(Va.) 202 ; Stewart v. Drake, 9 N. J. L. 139; Cox's Heirs v. Strode, 2 Bibb (Ky.) 273, 5 Am. Dec. 603.
With respect to a lessee, however, who pays no purchase-money, the rule of dam ages upon an eviction is different; for he recovers nothing, except such expenses as he has been put to in defending his posses sion ; and as to any improvements he may have made upon the premises, he stands up on the same general footing with a purchas er. The rents reserved in a lease, where no other consideration is paid, are regarded as a just equivalent for the use of the demised premises. 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 ; Kelly v. Dutch Church, 2 Hill (N. Y.) 105; The Rich mond v. Cake, 1 App. D. C. 447; Holmes v.
Guion, 44 Mo. 164 ; Alger v. Kennedy, 49 Vt. 109, 24 Am. Rep. 117; McClurg v. Price, 59 Pa. 420, 98 Am. Dec. 356 ; Leadbeater v. Roth, 25 Ill. 587. It is no defence, however, to an action for rent which was due at the time of the eviction ; Johnson v. Barg, 8 Misc. 307, 28 N. Y. Supp. 728.
When the eviction is only partial, the dam ages 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; Guthrie v. Pugsley, 12 Johns. (N. Y.) 126; 4 Kent 462. See 6 Bac. Abr. 44; 1 Saund. 204, 322 a; Colburn v. Morrill, 117 Mass. 262, 19 Am. Rep. 415; Tunis v. Grandy, 22 Gratt. (Va.) 109; Hunter v. Reiley, 43 N. J. L. 480; Home Life Ins. Co. v. Sherman, 46 N. Y. 370. See MEASURE OF DAMAGES.