(ex æquo et bono) or upon the particular equitable principle that he who seeks the aid of equity in enforcing some claim must himself do equity." 3 Pom. Eq. Jur. § 1239. Illustrations of equitable liens, so declared, are cases where two or more persons own real estate in common, and one of them has made permanent improvements on the property which have added to its value. Upon partition of the estate a court of equity will allot to the cotenant making the improvement the portion improved without taking account of its value, but if such division cannot be made will create a lien upon the proceeds of the other shares for their proportionate amounts of the increased value caused by the improvement. Louvalle v. Menard, 6 Ill. 39, 41 Am. Dec. 161; Dean v. O'Meara, 47 Ill. 120; Kurtz v. Hibner, 55 Ill. 514, 8 Am. Rep. 665; Mahoney v. Mahoney, 65 Ill. 406; Noble v. Tipton, 219 Ill. 182, 3 L.R.A. (N.S.) 645, 76 N. E. 151. Another illustration of a lien not arising by contract, but declared by a court of equity upon general considerations of justice, is the vendor's lien. The lien does not grow out of any agreement of the parties, but out of the equitable consideration that "no man shall be compelled to part with his title until he receives the consideration .; and so vigilant are courts of equity to protect the seller that, although an absolute conveyance be made, and no mortgage or other security taken, still in the hands of the vendee, or a subsequent purchaser with notice, the vendor has a lien on the land for his money." Dyer v. Martin, 5 Ill. 146; Croft v. Perkins, 174 Ill. 627, 51 N. E. 816; Wright v. Buchanan, 287 Ill. 468, 123 N. E. 53. Here the appellant and the appellee were not cotenants, nor were they vendor or vendee, but their relation was such that they had a common interest in the property, and that the improvement which the appellant was entitled to place upon the property, and which the appellee no man should be compelled to part with his title till he receives the consideration, to apply it to this situation. The equitable lien thus recognized is not an estate in the property, and does not give any right of possession. It differs in this respect from the common-law lien, which is simply the right to retain possession until some obligation of the owner is satisfied, while the equitable lien is no more than a right to proceed in Landlord and tenant-enforce ment of lien for restoration of building possession. an equitable action continued against the subject matter of the lien and to have it sold or sequestered, and its proceeds or rents and profits applied to the demand of the owner of the lien. 3 Pom. Eq. Jur. § 1233. The appellee has cited a number of cases involving the claim of a lien for improvements made by a tenant in accordance with the provisions of a lease by which the landlord agreed to pay for the improvements at the expiration of the term, in which it has been held that in the absence of a specific provision for a lien the effect of the landlord's covenant to pay for the improvements was merely to make him liable to an action for their value, and that the tenant had no other remedy. In each of those cases the lease contemplated the expenditure of money by the tenant and its repayment at the expiration of the term with no reservation of a lien, and it was held that the matter existed wholly in contract, that the failure to reserve a lien implied that none was intended, and that the court could not supply the omission when there was no agreement by the parties for a lien. In this case there was no contract in regard to the making of any improvement by the tenant. That subject-matter did not enter into the contemplation of the parties. The destruction of the building was (297 Ill. 81, 130 N. E. 325.) provided for by the covenant of the appellee to rebuild, and there was no provision in regard to the rights of the parties in case of her breach of the covenant. On the occurrence of such breach the appellant, in order to have the beneficial enjoyment of his term, was compelled to rebuildnot by virtue of any contract to do so, but because of the default of the appellee. Assuming the correctness of the decisions referred to, there is a distinction between the liability for an improvement which the tenant agrees to make at his own expense, for which the landlord agrees to reimburse him at the expiration of the term, and liability for the restoration of a building which the tenant is obliged to make on account of the landlord's default, which results in the landlord's acquiring the ownership of the restored building at the expense of the tenant. The former case is provided for by the contract, while the latter is not, but the rights of the parties in the emergency which was not foreseen and provided for are left to be determined by the general principles of equity and justice. The covenant to surrender possession at the expiration of the term is not affected by the failure of the landlord to perform his covenant or the existence of the tenant's lien for his reimbursement. It is an express provision of the contract, which is not subject to any condition precedent except the expiration of the term. Possession is not essential to the equitable lien, -covenant to surrender-how affected. JOHN B. STEVENS & COMPANY, Appt., V. C. A. PRATT et al., Copartners Doing Business under the Firm Name of Pratt Dock Company, Respts. Washington Supreme Court (Dept. No. 1)–March 18, 1922. (119 Wash. 232, 205 Pac. 10.) Landlord and tenant breach of covenant to repair premises. The tenant may abandon the premises upon breach by the landlord of his covenant to keep the premises in repair so that they can no longer be used for the purpose for which they are intended. [See note on this question beginning on page 1448.] APPEAL by plaintiff from a judgment of the Superior Court for Pierce County (Card, J.) in favor of defendants in an action brought to recover rent alleged to be due on premises leased by plaintiff under a written contract with defendant Pratt. Affirmed. The facts are stated in the opinion of the court. Mr. W. H. Pratt, for respondent If the use of the leasehold for the purpose intended by the lessor is materially impaired by the breach of covenant to repair, then the tenant is entitled to abandon the premises. Wusthoff v. Schwartz, 32 Wash. 337, 73 Pac. 407; Hoeveler v. Fleming, 91 Pa. 322; Edmison v. Lowry, 3 S. D. 77, 17 L.R.A. 275, 44 Am. St. Rep. 774, 52 N. W. 583; Coulter v. Norton, 100 Mich. 389, 43 Am. St. Rep. 458, 59 N. W. 163; Dyett v. Pendleton, 8 Cow. 727; West Side Sav. Bank v. Newton, 76 N. Y. 616; Jackson v. Eddy, 12 Mo. 209; Skally v. Shute, 132 Mass. 367, 3 Sutherland, Damages, 2d ed. § 848; Brewster Cigar Co. v. Atwood, 107 Wash. 639, 182 Pac. 564; Hartman Estate v. McNair, 61 Wash. 74, 111 Pac. 1059; Shigeta v. Gaffney Invest. Co. 72 Wash. 221, 130 Pac. 88; Piper v. Fletcher, 115 Iowa, 263, 88 N. W. 380; Rea v. Algren, 104 Minn. 316, 124 Am. St. Rep. 627, 116 N. W. 580; Dolph v. Berry, 165 Mo. App. 659, 148 S. W. 196; Bostwick v. Losey, 67 Mich. 554, 35 N. W. 246; Vromania Apartments Co. v. Goodman, 145 Mo. App. 653, 123 S. W. 543; Thalheimer v. Lempert, 49 Hun, 606, 17 N. Y. S. R. 346, 1 N. Y. Supp. 470; Krausi v. Fife, 120 App. Div. 490, 105 N. Y. Supp. 384; Lawrence v. Mycenian Marble Co. 1 Misc. 105, 20 N. Y. Supp. 698; Zbarazer Realty Co. v. Brandstein, 61 Misc. 623, 113 N. Y. Supp. 1078; Phyfe v. Dale, 72 Misc. 383, 130 N. Y. Supp. 231; Myers v. Bernstein, 104 N. Y. Supp. 348; Prior v. Sanborn County, 12 S. D. 86, 80 N. W. 169; Vincent v. Central City Loan & Invest. Co. 45 Tex. Civ. App. 36, 99 S. W. 428; Alger v. Kennedy, 49 Vt. 109, 24 Am. Rep. 117. Mitchell, J., delivered the opinion of the court: John B. Stevens & Company, a corporation, the owner, by a written contract with C. A. Pratt, let "all of the two north sections of those certain warehouses, docks, and wharves located on lots 105-110 in the Northern Pacific Railway Company's plat A of Tacoma tidelands, Tacoma, Washington," for a period of three years commencing on January 15, 1920. It was stated in the lease that the premises were let “for general warehouse and dockage purposes." Among other things, the lease provided: "The lessor further covenants that it will keep the premises in its present state of repair, or as may be required by Federal, state, and municipal authorities, as against reasonable wear, usage, and damage by the elements." And also: "The lessee herein accepts the said premises above mentioned with full knowledge of their present location, state of repair, and surroundings." The lease was almost immediately assigned to a copartnership, with the knowledge and consent of the lessor, who thereafter received from the occupants the monthly rentals provided for in the lease. Pursuant to written notice theretofore given, and claiming that the premises had become unsafe and unfit to be used for dock purposes. notwithstanding oral and written demands for needed repairs, the tenants abandoned the premises on April 14, 1921, and this action was brought to recover the rent due for the month commencing April 15, 1921. The trial without a jury resulted in favor of the tenant, from which the lessor has appealed. The trial court found that the lessor failed, neglected, and refused to keep the docks, wharves, and (119 Wash. 232, 205 Pac. 10.) warehouses in the state of repair required by the lease, failed to keep them in the state of repair required by the municipal authorities, and permitted the docks, wharves, and warehouses to deteriorate to such an extent that they became unsafe for use for dockage and warehouse purposes, and became dangerous and unsafe for workmen using the same. It was further found that steamboat companies and persons owning and operating vessels landing at the wharves refused to longer allow them to land there, and refused to do business with the respondents because of the unsafe condition of the wharves; that the respondents on February 21, 1921, notified the appellant of the unsafe and defective condition of the premises, and requested that they be suitably repaired, but that appellant failed and refused to make any repairs, and by reason thereof respondents were compelled to, and did, vacate the premises. The record makes it pretty clear that the defense asserted and covered by the findings has been established by a preponderance of the evidence. The case is not one where a tenant remains in possession and seeks to avoid the payment of rent, or any part of it, because the landlord has failed to uphold the premises according to his obligation, but it is a case in which a tenant is defending against a claim for rent for a period of time occurring after he has been compelled to vacate the premises because of their unsafe and unfit condition occasioned by the failure of the landlord to comply with his obligation to repair. It is to be deduced with reasonable certainty from the authorities that, when the magnitude of the violation of the covenant to repair on the part of the landlord reaches the point where the premises are no longer fit for the purposes intended, such conduct on the part of the landlord operates to impair the consideration for the lease, and also to breach the implied covenant for the quiet enjoyment of the premises, and has the resultant effect of releasing the tenant from any further liability to pay rent, provided he abandons the premises to the lessor. Such is the right and reason of the matter. Indeed, bearing in mind the fact that the appellant did covenant to make repairs, it is argued, and authorities are cited on behalf of the appellant, that "failure of the appellant to keep the premises in repair would not entitle the respondent to vacate the premises and declare the lease void unless the premises were thereby rendered so untenantable as to amount to a constructive eviction, the remedy of respondents being a claim for damages for breach of covenant or to make the repairs and charge the same against the rent." One of the authorities cited by the appellant-16 R. C. L. p. 692, § 178 -states the rule as follows: "Where, however, a landlord has covenanted or is under obligation to repair, and by reason of his failure to do so the prem- Landlord and of covenant to repair-right to premises. ises have become tenant-brench untenantable, this may, it seems, ac- abandon cording to the better rule in this country, constitute a constructive eviction justifying the tenant in abandoning the premises." A number of cases are furnished in support of the text, including Ann. Cas. 1916B, p. 124, which has an extensive note and list of cases on the subject. This case, falling within the rule, was, in our opinion, correctly decided by the trial court. Affirmed. Parker, Ch. J., and Bridges, Fullerton, and Tolman, JJ., concur. Petition for rehearing denied. ANNOTATION. Rights and remedies of tenant upon landlord's breach of covenant to repair. I. In general; dependence or inde pendence of covenant to repair and to pay rent, 1448. II. Action for damages, 1450. III. Effect to defeat obligation for rent: a. In general, 1453. b. Where repairs are to be made before commencement of term: 1. In general, 1454. 2. Effect of acceptance of premises, 1455. 3. Refusal to accept, 1459. c. Where repairs are to be made during the term: 1. In general, 1460. 2. Acceptance and retention of possession, 1461. IV. Effect of tenant's prior default, 1463. V. By or against whom breach may be asserted, 1464. VI. Right and duty of tenant to make repairs or rebuild: a. In general, 1465. b. Duty to repair, 1470. c. Option to repair, 1472. d. Lien of tenant for cost of repairs, 1475. VII. Right to abandon the premises: a. In general, 1475. b. Where premises are untenantable or unfit for purposes for which they were leased, 1477. The necessity of notice to landlord as a condition of asserting breach of express covenant to repair is treated in the annotation following Kennedy v. Supnick, post, 1525. The duty of the landlord under express covenants, to rebuild or restore where the property is damaged or destroyed by fire, is treated in the annotation following Gralnick v. Magid, post, 1535. As to the measure of damages for breach of landlord's covenant to heat, or furnish hot water for, premises leased for business purposes, see the annotation following Brewington v. Loughran, post, 1550. I. In general; dependence or independence of covenant to repair and to pay rent. The question as to the rights and XI. Measure of damages: a. In general, 1494. b. Difference in rental value, c. Expense of repairing, 1501. g. Special damages, 1513. XII. Evidence as to damage: b. Particular evidence to show loss, 1517. remedies of the tenant upon the landlord's breach of his covenant to repair presupposes a breach of the covenant, and the annotation is not concerned with the question as to what amounts to such a breach. The question as to how and by what form of remedy the tenant is to take advantage of the landlord's breach of the covenant to repair depends in a measure on whether the tenant's own covenants, especially his covenant to pay rent, are dependent upon, or independent of, the landlord's covenant to repair. If independent, performance by the lessor of his covenant to repair is not a condition precedent to his right to enforce the lessee's covenant to pay rent. In this regard it may be said that the usual covenant by the landlord to repair is independent of |