
    Murray Caldwell & Co. v. Pennington.
    April Term, 1846,
    Richmond.
    1. Replevin — Distress lor Rent — Set-Off—Damages from Failure of Lessor to Make Repairs. — A lessor covenants to put certain repairs upon the demised premises, which he fails to do. In an action of replevin upon a distress for the rent, the tenant may set off the damages accrued by the failure of the lessor to make the repairs, under the 62d section of the act, Sup. R. C. p. 157.
    2. Landlord and Tenant — Eviction—Release from Rents —Case at Bar. — In a suit between third persons and a lessor, to which the lessee is not a party, a decree is made directing' the sheriff to rent out the demised premises. The premises are rented out, and the lessee yields possession of the premises: Held. That as the decree did not direct the sheriff to evict the lessee, and there was no paramount title under which the lessee might have been evicted, his surrender of the possession was not an eviction, so as to release him from the payment of rent.
    Replevin by Murray Caldwell & Co., against Pennington, for goods taken by him in distress for rent. Pennington in his avowry alleged, that on a demise by him to Murray Caldwell & Co., of the Cacapon Forge and appurtenances for three years, ending April 1st, 1838, at 1200 dollars per annum rent, there was, at the time of the distress, sued out, 1600 dollars rent in arrear due to him, being the whole rent for the last year, and part of the rent of the next preceding year of the lease, and so he justly took the goods in distress for the rent so due. Murray Caldwell & Co., pleaded “no rent in arrear,” and they offered three other pleas: 1. That Pennington was indebted to them in a sum greater than *the amount of rent by him claimed. 2. That he was indebted to them 2684 dollars for goods, wares and merchandize by them sold to him, work and labour done, and money lent and advanced, which they offered to set off against the rent claimed; and 3. That they had been law'fully evicted from the demised premises during the last year of the term, namely, on the 15th January 1838, by the sheriff of Hampshire, acting under a decree of the Circuit Superior Court of that county. But these three pleas were afterwards withdrawn by consent of parties; “and it was agreed, that under the plea of ‘no rent in arrear,’ Murray Caldwell & Co., might prove any set off, which the Court should decide might be legally given in evidence under any proper plea, and that they might prove a legal eviction of all, or any part of the premises, reserving to the Court the decision of the legality of the alleged eviction, and if legal, whether it operated as an extinguishment of the entire rent of the year in which the eviction might thave taken place, or only entitled Murray Caldwell & Co., to a credit for the portion of the year after the eviction.”
    1st. Murray Caldwell & Co., offered proof that they had sustained damages by reason of the failure of the' avowant to put the repairs on the demised premises, as stipulated in the lease. The avowant’s counsel objected to the introduction of this evidence, and “the Court sustained the objection, and refused to permit Murray Caldwell & Co., to give evidence of unliquidated damages, in consequence of the failure of the avowant to comply with his stipulations in his lease; being of opinion that the agreement, on the record referred to setoffs properly so called, and of the same character with those previously filed, and did not authorize Murray Caldwell & Co., to adduce evidence which would be proper only under a olea filed under the statute of 1830-31, ch. *11, $ 62.” To this opinion Murray Caldwell & Co., excepted. 2nd. Murray Caldwell & Co., for the purpose of proving an eviction of them from the premises, during the last year of the' lease, gave in evidence the record of three suits in chancery, in the Circuit Superior Court of Hampshire; in one of which, James P. Erskine and others, in another, H. & W. White, and in the third, Walter Newman, were plaintiffs, and the avowant, Pennington was defendant; wherein the Court, at April term 1836, made an interlocutory decree adjudging certain debts to those plaintiffs respectively; and at first directed that the rents accruing, upon the existing lease of the Cacapon Forge, should be collected and applied to the payment of those debts; but by another interlocutory decree of September term 1837, the Court, upon its appearing that no rents had been received from the tenants of the Cacapon Forge, and it being admitted that a difficulty had arisen between Pennington and the tenants of the premises, as to the adjustment of the rent, ordered the sheriff to rent out the premises at public auction, for one jrear, and take bonds with security for the rent, and report his proceedings to the Court. Under this last order, the sheriff proceeded to let the premises, for one year, to the highest bidder, for the sum of 325 dollars. At April term 1838, Pennington filed a petition to the Court to set aside the lease so made by the sheriff; and the Court did set it aside, and appointed a receiver to collect the rent of 1200 dollars per annum, due on the lease before made by Pennington to Murray Caldwell & Co., and to pay the same into Court, to be applied as the Court should direct. And with the record of the proceedings in the three suits in chancery, above mentioned, Murray Caldwell & Co., the plaintiffs in replevin, introduced evidence to prove that the sheriff, under the decree in the suits in chancery of September term 1837, did rent out the Cacapon Forge, (the premises in question,) at public auction, on the 13th January *1838, to one John Eiggett; the lease of the plaintiffs terminating on the 1st of April following: that Pennington, the avowant, was himself present, and was at first the highest bidder, but was unable to give the bond and security required for the rent: that the sheriff asked Murray Caldwell & Co., if they would give up the possession to Eiggett, to which they answered they could not resist the decree of the Court; that the sheriff thereupon told Liggett to take possession, and that Murray Caldwell & Co., immediately gave up the possession, sold out their stock, and had never been in possession since. Whereupon, the counsel for the avowant moved the Court to exclude all this evidence from the jury, on the ground that it did not prove a legal eviction; and the Court, because the interlocutory decree of September 1837, was not confirmed, but was set aside at April term 1838, instructed the jury to disregard the evidence, upon the ground, that it did not prove a legal eviction. Murray'Caldwell, & ,Cq.,,. again, .excepted.. to the opinion of the Court; and' á verdict and judgment having been rendered against them, they applied for and obtained an appeal to this Court.
    
      At the trial, the plaintiffs filed two bills of exceptions to opinions of the Court:
    
      Leigh, for the appellants.
    The pleas having been withdrawn, the agreement makes the issue between the parties; and the whole question upon the first exception of the appellants is, whether the defence proposed to be set up is a good defence under the statute of 1831, ch. 11, § 62, Sup. Rev. Code, ch. 109, 'i 62, p.157. This act authorizes any setoff which is good either in law or equity; and the agreement is, that Murray Caldwell & Co. may set off anyr thing they might have set off under any proper plea. The set off offered and rejected by the Court, was the damages sustained by the tenants by the failure of Pennington to put upon the demised premises the repairs stipulated for in the lease. These repairs were a part of the contract; and in such case the damages sustained by the want of them is a proper set *off against the rent. Tomlinson v. Day, 6 Eng. C. E. R. 315.
    Murray, Caldwell & Co. having -, been evicted from the premises by the decree of the Court, they cannot be held responsible for the rents. It is true that decree was erroneous, and afterwards set aside; but the eviction was made byr the officer of the Court whilst the decree was in force; and it was not for the tenants to know that the Court had erred and would correct its error.
    The tenants having been evicted, the question arises, does that eviction extinguish the whole rent, or is the rent to be apportioned. On this point the Court is referred to Corny, on Eand. & Ten. 6 haw Eibr. 218-19, 523-26.
    Cooke, for the appellee.
    The first question is, whether the setoff offered at the trial could have been set up by plea under the 62d section of the act of 1831. That statute says, “In all actions founded in contract,” &c. This word “contract” is the keyword of the act. But the action of replevin is not an action founded in contract, l?ut in tort, for taking the property of the plaintiff unlawfully. And therefore no plea under this provision of the statute is admissible in replevin.
    Under the agreement in this case the plaintiffs were authorized to give evidence of a legal eviction. But here there is no evidence of a legal eviction. The decree did not intend or direct that the plaintiffs should be evicted. It merely intended to provide for the renting of the property after the plaintiffs’ lease expired. That decree was made in September. The plaintiffs’ lease would expire on the first of April following, before the next term of the Court; and the decree merely intended to provide for the renting of the property after that lease had terminated.
    In fact there was no eviction of the plaintiffs from the demised premises. The , sheriff did. not intend, to .evict *them.
    He'asked them if’they would give up the premises to Liggett, and they willing no doubt to be relieved from a burdensome contract, answered affirmatively.
    Leigh, in reply. Mr. Cooke and I differ as to the nature of the action of replevin. That action is in form an action of trespass, but when the landlord comes in and avows a taking for rent in arrear, it then becomes an action on a contract. The avowant is not defendant, but avows, the plaintiff defends and pleads. 1 Chitt. PI. 161. 1 Wms. Saund. 347, note 3, 7.
    The act of 1811, gives the right to the party who pleads, and ás it introduces a new remedy, it should be construed so as to suppress the mischief and advance the remedy.
    It is said the decree did not intend to oust the plaintiffs. The wrong intended to be corrected by this decree, was the refusal of the tenants to pay the rent. This was to be done by renting out the premises. But suppose the sheriff misunderstood the decree. Still the plaintiffs were evicted; and is it competent for the .Court to say that the execution of this decree is void because 'the decree is so vague as to be misunderstood by its officer.
    Eviction is defined to be “ouster by form of law.” Legal eviction is “ouster by legal process.” The tenant is not bound to enquire whether such ouster be right or wrong. And especially these tenants were not bound to know that the proceeding was irregular, seeing that they were not, and the lessor was a party to it.
    
      
       Replevin — Rent—Set-Off.—To the point that set-off is a good defence to an avowry for rent in an action of replevin, the principal case is cited in Allen v. Hart, 18 Gratt. 722, 727, and foot-note; B. & O. R. R. Co. v. Jameson, 13 W. Va. 840, 846; Fisher v. Burdett, 21 W. Va. 630.
    
   BALDWIN, L,

delivered the opinion of the Court.

The Court is of opinion, that the Circuit Court did not erf in rejecting, on the trial of the cause, the evidence offered by the plaintiffs in error, as stated in their second bill of exceptions, for the purpose of proving that they had been legally evicted from the demised premises; the' said evidence being insufficient in law to *prove an eviction by paramount title; inasmuch as the plaintiffs in error voluntarily surrendered possession of the demised premises ’to the sheriff whq acted as commissioner under the interlocutory decree in said bill of exceptions mentioned, and the said interlocutory decree, though it directed the sheriff to rent out the demised premises to the highest bidder, gave him no authority to evict the plaintiffs in error, the then tenants in possession, therefrom; and there was no paramount title under which such eviction could have been made, the said interlocutory decree, which was rendered without the consent and to the prejudice of the defendants in error, being palpably erroneous in regard to the renting out of said demised premises, and therefore set aside by the same Court that rendered it, at a subsequent term thereof.

But the Court is further of opinion, that the said Circuit Court did err in rejecting, on the trial of the cause, the evidence offered by the plaintiffs in error, as stated in their first bill of exceptions, for the purpose of establishing the setoff claimed by them, for damages sustained by reason of the failure of the defendant in error to put upon the demised premises the repairs stipulated in the lease thereof from him to the plaintiffs in error; inasmuch as by the agreement of the parties, entered of record, the plaintiffs in error were to be at liberty to prove at the trial any setoff which could legally be given in evidence under any proper plea, and a plea of such damages, by way of set-off, would have been a proper one under the 62d section of the act of the General Assembly establishing the Circuit Superior Courts. And for this error, it is considered by the Court that said judgment of the Circuit Court be reversed and annulled, with costs to plaintiffs in error. And this Court proceeding, &c.

Judgment reversed, and new trial awarded.  