Warren v. Wagner.

of sale is not to be taken in its primary sense, but means a power to mortgage." Bloomer v. Waldron, 3 Hill, 361. It is not an abṛ solute, unconditional sale, a sale outright, which is authorized; a conditional sale is equally within the meaning of the statute. Peeples v. Stolla, 57 Ala. 53. A lease is a sale and conveyance of a partial, qualified, limited interest in lands. It is defined as "a species of conveyance for life, for years, or at the will of one of the parties, usually containing a reservation of rent to the lessor." Taylor Land. and Ten. 314. There can be no good reason assigned for compelling husband and wife to a sale, absolute or conditional, of the entire estate or interest, when a lease for a term, conveying a limited interest, the reversion remaining in the wife, would be more beneficial to them. The lease for a term that may possibly endure beyond the life of husband and wife may be necessary to preserve the estate from waste, or to make it a source of income. The estate, as is the fact in reference to the premises, the subject of present lease, may be fitted and adapted to uses requiring an outlay of capital, or skill and experience to manage and operate them profitably. Neither husband nor wife may have the skill and experience, or they may not have the capital, or if they have it, may be unwilling to appropriate it to these uses. The interest of the wife, the preservation of her real estate, will often be best promoted by leasing it, rather than by sale, converting it to some other species of property. All principles of just construction require that the general words of the statute, authorizing a sale and conveyance of the wife's statutory estate, should be interpreted as comprehending a lease, which is a sale and conveyance of a qualified, partial interest, in contradistinction of a sale and conveyance of the entire estate.

Construing the statute investing a married woman relieved of the disabilities of coverture with the right to buy, sell, hold, convey and mortgage real and personal property, as similar statutes are construed, we must hold, that she has capacity, in conjunction with her husband, to make a valid lease of her lands for a term of years. If the statute were not so construed, though its plain purpose is to enable the wife to enlarge her capacity of contracting, and of conveying her property, it would operate an abridgement of a power she could have exercised at common law and under pre-existing statutes. The capacity of the wife to sue and be sued alone is coextensive with her capacity to contract or convey, as it is defined by the statute. Having authority to make the lease in conjunction VOL. LI-57

Warren v. Wagner.

with her husband, the rents could properly be reserved to her alone, and for them she may sue alone, not joining her husband. The demurrer to the first plea was properly sustained.

[Omitting minor point.]

The representation of the husband, pending the negotiations for the lease, and prior to its execution, seems to have been limited to the legal effect and operation of a particular clause or covenant, and not to the lease taken in its entirety. The clause or covenant to which the representation related was that by which the lessee stipulates that he would "deliver up the said leased premises, with all the machinery and other things mentioned in the schedule hereunto attached, to the said Mary B. Wagner, her heirs or assigns, and quietly, at the expiration of the said term of three years, in as good order and condition as the same now are, reasonable use and wear and tear excepted." The representation was, that this clause or covenant did not impose a liability upon the lessee to repair or to restore, if there was by fire, or other unavoidable accident, a destruction of the premises, or a material part thereof, during the term. If the representation was (as we are now bound to regard it) confined to the legal effect of this particular clause, and was without reference to the lease in its entirety, it was not untrue. In all leases it is implied, if it be not expressed, that the lessee will pay the rent as it accrues, will make tenantable repairs, will avoid the exposure of the premises to ruin or destruction by acts of omission or commission, and on the expiration of the term, will quietly surrender possession. In the absence of an express covenant, he is not amenable because of the deterioration of the premises from the ordinary wear and tear incident to their reasonable use; nor if by unavoidable accident, or by the act of God, or by the act of a public enemy, there is injury to, or a destruction of the premises, is he bound to repair or restore. Taylor Land. and Ten., § 343; Nave v. Berry, 22 Ala. 382; U. S. v. Bostwick, 94 U. S. 53; Warner v. Hitchins, 5 Barb. 666. A covenant on the part of the lessee, like that we are now considering, that upon the expiration of the term, he will return or surrender possession of the premises in the same condition they were when he entered into possession, the usual or natural wear and tear excepted, is not a covenant to repair or rebuild; it is but the expression of the implied obligation or duty resting upon him. Authorities supra; Maygort v. Hansburger, 8 Leigh, 532; Howeth v. Anderson, 25 Tex. 557. In this view, there

Warren v. Wagner.

was no misrepresentation, and the evidence was irrelevant. It is the settled practice to entertain a motion for the exclusion of evidence, which is not merely secondary, but in itself illegal, or irrelevant, at any stage of the cause before the retirement of the jury. 1 Brick. Dig. p. 887, §§ 1190, 1197. Whether the lease taken in its entirety contains any covenant binding the lessee to rebuild or restore, if there was injury to, or destruction of the premises, without fault or neglect on his part, is not a question now presented. If such obligation is imposed, and as is most probable, the representation of the husband had reference to the lease in its entirety, whether it was the expression of an opinion upon matter of law, as distinguished from the representation of matter of fact; and if it be the representation of matter of law, whether it was not fraudulent, as proceeding from a party having superior means of information, professing a superior knowledge of the law, upon which the lessee relied, in ignorance and in confidence, trusting to the truthfulness of the husband, and thereby enabling the lessor to gain an unconscionable advantage, are not inquiries now involved. Nor do we see that they can arise in this cause, or unless there should be an effort to enforce the clause or covenant of the lease, which imposes the obligation. There is no possible aspect of the case in which the evidence was not irrelevant, and it was properly excluded.

A lessee of premises destroyed during the term by unavoidable accident is not excused from the performance of an express provision or covenant to pay rent for the term, unless he has protected himself by an express stipulation for the cessation of rent in that event, or the landlord has covenanted to repair or rebuild. 3 Kent Com. 603; Taylor Land. and Ten., §§ 372-75, 377; Chamberlain v. Godfrey, 50 Ala. 530. A limitation, or rather an exception to the general rule, which seems to obtain, and has been specially applied to leases of apartments in a tenement, or to leases of tenements for particular uses, is that the destructian must not be of the entire subject-matter of the lease; there must be remaining something capable of holding and enjoyment by the lessee. The value of the premises may be diminished; they may be rendered incapable of yielding the benefit it was expected to realize from their use and occupation. So long as the thing is capable of holding under the lease, the obligation and duty of paying the rent continue. Chamberlain v. Godfrey, supra; McMillan v. Solomon, 42 Ala. 356. Whether this limitation or exception to the general rule, holding a

Warren v. Wagner.

lessee to liability upon his express and unconditional promise or covenant to pay rent, is not as it has been usually applied, confined to a lease of tenements for particular purposes, or to the apartments of a tenement, and cannot be extended to a lease of lands and tenements, is not now of importance. This lease is of lands and tenements, accompanied with the right of quarrying stone upon the lands during the term. The only injury or destruction upon the premises was of the lime-kiln, the use of which, it may be, was the principal consideration moving the lessee to enter into the lease, and it was probably the thing from which it was expected the principal profit would issue. The lands and the tenements remain, capable of use and enjoyment, and the right of quarrying stone continues. It would be a latitudinous construction of the exception, not warranted by authority, that would draw this case within its influence. There is no error in the several rulings of the Circuit Court upon this point.

The eviction of a tenant consists in the disturbance of his possession, his expulsion or a motion depriving him of the enjoyment of the premises demised, or any portion thereof, by title paramount, or by the entry and act of the landlord. The eviction may operate a bar, partially or wholly, to the right to demand rent falling due in the future. Taylor Land. and Ten., §§ 378-88. If it be from a part only of the premises, by title paramount, the rent is discharged partially, in proportion to the value of the premises of which the tenant is dispossessed. But if the eviction is the act of the landlord, the entire rent is suspended during its continuance, for the reason that a man cannot apportion his own wrong, and the landlord shall not so apportion his tortious act and entry, as to compel the tenant to pay rent for the part of the premises upon which he does not enter. Royce v. Guggenheim, 106 Mass. 201; s. c., 8 Am. Rep. 322; De Witt v. Pierson, 112 Mass. 8; s. c., 17 Am. Rep. 58, note; Crommelin v. Thiess, 31 Ala. 412; Chamberlain v. Godfrey, 50 Ala. 530. A mere trespass by the landlord upon the premises, not intended by him as a permanent amotion or expulsion of the tenant, or to deprive him of the possession and enjoyment of the premises, may entitle the tenant to recover damages, but it will not amount to an eviction. Taylor Land. and Ten., § 380; Lounsbery v. Snyder, 31 N. Y. 514; Edgerton v. Page, 20 N. Y. 281; Lynch v. Baldwin, 69 Ill. 210. If the damages are capable of legal measurement by a pecuniary standard, as if they consist only of the value

Warren v. Wagner.

of use and occupation during the continuance of the trespass, they would form proper matter of set-off to an action by the landlord for the recovery of rent. Cage v. Phillips, 38 Ala. 382; Holley v. Younge, 27 Ala. 203; Kannady v. Lambert, 37 Ala. 57. Or if the damages are unliquidated, and not capable of legal measurement by a pecuniary standard, they will form matter for recoupment in an action by the landlord for the recovery of rent. Lynch v. Baldwin, supra; Batterman v. Pierce, 3 Hill, 171. The eviction, or the trespass, may be the act of the landlord in person, or it may be the act of a servant or agent, for which he is answerable upon the general doctrine holding a principal liable for the misfeasances or torts of a servant or agent. Story Agency, § 452. Direct or positive evidence that the wrongful act, whether it be of eviction or of trespass, was done under the authority, or by the consent of the landlord, is not necessary. Such evidence is not often attainable, and the fact, like any other controverted fact, is capable of proof by circumstances. The nature and character of the act, taken in connection with the relation of the landlord to the actor; his employment or agency in the business of the landlord; and the acquiescence of the latter in former acts, accompanied by circumstances indicative of his knowledge that the act was done, or continued, and the absence of objection upon his part, are facts which must be considered by the jury, whose business it is to determine the inquiry, whether he authorized or assented to the act complained of as wrongful. McClung v. Spotswood, 19 Ala. 165; Krebs v. O'Grady, 23 Ala. 726; s. c., 58 Am. Dec. 312; Gimon v. Terrell, 38 Ala. 208. When the landlord enters and dispossesses the tenant of a part of the premises, a discharge of the entire rent will not result, unless it be shown that the tenant surrendered or abandoned possession entirely. Nothing less than an entire abandonment or surrender will operate a dissolution of the tenancy, and a suspension or discharge of the whole rent. The rent is discharged only pro tanto, to the extent of the value of the use and occupation of the part of the premises of which the tenant is dispossessed, if he remains in undisturbed possession of the residue. Crommelin v. Thiess, 31 Ala. 412; Chamberlain v. Godfrey, 50 Ala. 530; Willard v. Tillman, 19 Wend. 358.

[Minor point omitted.]

Reversed and remanded.