approbation being under hand and seal, by any deed or deeds sealed and delivered in the presence of two or more credible witnesses, to demise or let all or any part or parts of the said several lands, &c., to any person or persons, for any term or number of years, not exceeding twenty-one years, in possession, and also to demise or lease all or any part or parts of the said several lands, &c., for one life, or for two or three lives in being at the same time, or for any term or number of years determinable upon the dropping of one life, or two or three lives in being at the same time, either in possession or reversion, but so as to wear out or be determinable on the dropping of the lives of three persons all in being at one and the same time, or for one life, or for two or three lives in being at one and the same time, with a further term of thirty-one years, to take effect after the expiration of the last or subsisting life, and also to demise or lease all or any part or parts of the said several hereditaments and premises mentioned to be hereby released, to any person or persons who shall be willing and shall accordingly by such demise or lease covenant and agree to improve the same by erecting or building thereon any new house or houses, erections, or buildings, or to rebuild or repair any of the messuages, tenements, or buildings which now are or hereafter shall be on the premises, and to expend such sums of money in such improvements as shall be an adequate consideration for the interest to be departed with in such parts of the said hereditament so to be demised respectively for one life or for two or three lives as aforesaid, or for any number of years determinable upon the dropping of one life or two or three *such lives as aforesaid, so as upon every of such demise or lease *223] as aforesaid there be reserved and made payable during the continuance thereof, to be incident to and go along with the reversion expectant thereon respectively, the best and most improved yearly rent or rents that can be reasonably had or obtained for the same, without taking any sum of money or other thing by way of fine, premium, or foregift for or in respect of any such demise or lease, and so as such lessees respectively, and their respective executors, administrators, or assigns, be not made dispunishable of waste by any expression therein, and so as in every such lease there be contained a clause of re-entry for non-payment of the rent or rents thereby respectively reserved, by the space of twenty-one days after the same, or any part thereof, shall become due, and so as the respective lessees to whom such leases shall be made do seal and deliver counterparts thereof respectively." And it was thereby agreed and declared by and between the said several persons parties thereto, and more particularly by the said Thomas L'Estrange and Hilary Frederick L'Estrange, that, until default should happen to be made in payment of the said sum of 10,300l. and interest thereby secured as aforesaid, or some part thereof, contrary to the true intent and meaning of those presents, it should and might be lawful to and for the said Henry Parker and his assigns, or other the person or persons for the time being entitled as aforesaid, to have, hold, use, occupy, possess, and enjoy the said lands, &c., thereby assigned, or intended so to be, with their and every of their appurtenances, and to have, receive, and take the rents, issues, and profits thereof to his and their own proper use, without the let, suit, trouble, molestation, interruption, eviction, claim, or demand whatsoever of or by the said Thomas L'Estrange and Hilary

[*224

Frederick L'Estrange, *their executors, administrators, or assigns, or any other person or persons whomsoever, claiming or to claim by, from, or under him, them, or any of them: And it was thereby declared and agreed by and between the said Thomas L'Estrange and Hilary Frederick L'Estrange, that the said sum of 10,3007. thereinbefore mentioned to have been advanced by them, and the payment whereof was thereby secured, was money belonging to them upon a joint account, and that, in the event of the decease of either one of them, the receipt or receipts of the survivor of them, or of the executors or administrators of such survivor, or of his or their assigns, should be a good and sufficient discharge or good and sufficient discharges for so much of the said sum of 10,300l. and interest thereby secured, as should be therein expressed to be received.

Byles, Serjt. (with whom was Brewer), for the plaintiff. (a)—By the indenture of the 15th of September, 1843, to which the defendant was a party, certain lands in the county of Waterford, including an estate called Cherrymount, were demised by the trustees of the *de[*225 fendant's marriage-settlement for a term of 1000 years, to Thomas L'Estrange and Hilary Frederick L'Estrange to secure a sum of 10,000l. which was raised for the payment of the defendant's debts. This deed reserved to the defendant a power to lease any part of the premises, for a term or for lives "by and with the consent and approbation of the mortgagees, their heirs, &c., during the continuance of the security of those presents, such consent and approbation being under hand and seal." On the 26th of May, 1846, the defendant granted a lease of part of the premises comprised in the mortgage to the plaintiff and his wife, for their respective lives or for thirty-one years, whichever of the said terms should longest last; and, by virtue of that lease, the plaintiff entered into possession of the premises, and expended considerable sums of money upon them. This lease was made without the required consent. In September, 1851, the plaintiff received a notice from Hilary Frederick L'Estrange, the surviving mortgagee, that the mortgage-money was unpaid, and the interest largely in arrear, and that the rent must be paid to him. Upon receiving this notice, the plaintiff inquired into the title of Mr. L'Estrange, and, finding it to be indisputable, permitted him to take possession of the premises. Now, the lease not having been granted in pursuance of the power, was defeasible: but that lease contained a covenant that the lessee, his heirs, &c., paying the rent and performing the covenants, should "peaceably and quietly have, hold, occupy, possess, and enjoy the said demised premises, &c., during the term thereby granted, without the let, suit, trouble, denial, eviction, molestation, or disturbance of the lessor, his heirs or assigns, or

(a) The following were the points marked for argument on the part of the plaintiff:"1. That he was evicted of the demised premises by title paramount, and therefore he is entitled to recover in this action:

"2. That there was a breach of the covenant for quiet enjoyment, by H. F. L'Estrange taking possession:

"3. That there was an eviction from the demised premises:

"4. That the plaintiff had no title or power to prevent or hinder Hilary Frederick L'Estrange taking possession, as the said Hilary Frederick L'Estrange had a superior title to the demised premises than either the defendant or the plaintiff:

"5. That the defendant had no power to grant the lease to the plaintiff as against the title of the said Hilary Frederick L'Estrange."

any person or persons claiming or deriving, or to claim or derive, by, The question is, whether from, or under him, them, or any of them.'

the special case discloses a breach of that covenant. In *Wood

*226] fall's Landlord and Tenant, 7th edit., p. 513, it is said: “A breach of the covenant for quiet enjoyment may occur either by a molestation arising from a suit at law or in equity relating to the title or possession, or by any act by which the lessee is disturbed in the possession of the premises. Of the first sort is a recovery by ejectment by a person having a lawful title; or any other suit by which the peaceable occupation of the premises is prevented. Thus, a covenant in a lease, that the lessee should quietly enjoy the estate discharged from tithes, is broken by a suit for them, after the expiration of the term: Lanning v. Lovering, Cro. Eliz. 916: but where in covenant for quiet enjoyment the breach assigned was that the defendant had exhibited a bill in Chancery against him for ploughing meadow, and obtained an injunction, which had been dissolved with 208. costs,'-it was held, on demurrer, to be no breach of covenant, for, the covenant was for quiet enjoyment, and this was a suit for waste,-Morgan v. Hunt, 2 Ventr. 213. On the other hand, any description of annoyance to the occupation of the in so premises, which prevents the lessee from enjoying his property ample a manner as he is entitled to do by the terms of the lease, amounts to a breach of the covenant for quiet enjoyment of the second sort; thus, if a man covenant that he will not interrupt the covenantee in the enjoyment of a close, the erection of a gate which intercepts it is a breach of the covenant, although he had a right to erect it: Andrews v. Paradise, 8 Mod. 318." In order to constitute a breach of the covenant for quiet enjoyment, it is not necessary that there should be an actual eviction: it is enough if the lessee was molested or disturbed in his enjoyment of the demised premises. Here is a notice of a claim given to the lessee In what by one who is entitled to give it, and has power to enforce it.

position does it *place him? [COCKBURN, C. J.-Suppose the *227] lease had been made with the consent of the mortgagees,-the principal and interest due upon the mortgage being unpaid, would not the surviving mortgagee equally have given such a notice? and, suppose he had, would there have then been a breach of the covenant for quiet enjoyment?] It is submitted that there would. [CROWDER, J.-The notice contains no intimation that advantage will be taken of the irregularity in the lease: all it amounts to is,-"I am mortgagee; pay your rent to me." Is that an eviction?] It is not necessary that there should be an actual eviction. The lessee has a right to the enjoyment of the premises subject to the terms of the contract; one of which is, payment of rent to the lessor. By the notice, he finds himself placed between two contending parties: he is not excused from paying rent to his lessor; and, if he paid his lessor after receiving such a notice, he would be liable to be called upon to pay over again to the mortgagee. The service of that notice, therefore, clearly is a "let, trouble, molestation, or disturbance" by one claiming title. Suppose he had resisted the claim of the mortgagee, and, being sued in ejectment, had let judg ment go by default, could it have been said that the covenant for quiet enjoyment had not been broken, because he offered no defence to a defenceless action? [COCKBURN, C. J.-My Brother Williams suggests that the strength of your argument is, that the lessee would have no

answer to a demand for rent by his lessor. WILLIAMS, J.—But a payment of rent to the mortgagee would have been good: Johnson v. Jones, 9 Ad. & E. 809 (E. C. L. R. vol. 36), 1 P. & D. 651.] Precisely so. The plaintiff was in the position of a mere tenant at will to the mortgagee. The effect of the notice is,-"If you do not pay your rent to me, I will turn you out." It amounts to a demand of possession. The case of Ludwell v. Newman, 6 T. R. 458, goes far beyond what is necessary here. There, in an *action for the breach of a covenant for [*228 quiet enjoyment, the declaration stated, that, before the demise to the plaintiff, the defendant had made a demise to A. which was then subsisting; that, in order to get into possession, the plaintiff brought an ejectment, but was nonsuited on account of that prior demise; and that he never had been in possession. And the court said "that the defendant's covenant for quiet enjoyment meant a legal entry and enjoyment without the permission of any other person, which could not have taken place here on account of the prior lease granted to Rogers, and which was averred to be then subsisting." Here, the lessee could not have continued to hold without the permission of the mortgagee.

Stammers, for the defendant. (a)-There has been no breach of the covenant for quiet enjoyment, and no eviction by any person claiming by, from, or under the defendant. The terms of the covenant [*229 are, that "Carpenter, his heirs, &c., paying the said reserved yearly rent, and performing the covenants and agreements on his and their parts to be paid and performed, shall and may peaceably and quietly have, hold, occupy, possess, and enjoy the said demised premises, with their and every of their appendances and appurtenances, during the term thereby granted, without the let, suit, trouble, denial, eviction, molestation, or disturbance of the said Henry Parker, his heirs or assigns, or any person or persons claiming or deriving, or to claim or derive, by, from, or under him, them, or any of them." And the breach alleged in the declaration is, that "the plaintiff did not during the said term peaceably and quietly have, hold, occupy, possess, and enjoy the demised premises and appurtenances, according to the said covenant; but, on the contrary thereof, after the making of the said deed, and during the term thereby granted, and whilst the plaintiff was possessed of the demised premises, with their appurtenances, one H. F. L'Estrange, who before and at the time of the making of the said deed, and continually from thence until and at the time of the eviction and expulsion therein

(a) The points marked for argument on the part of the defendant were as follows:"1. That there was no such let, suit, trouble, denial, eviction, molestation, or disturbance as to amount to a breach of the covenant for quiet enjoyment contained in the lease:

"2. That there was no such let, suit, trouble, denial, eviction, molestation, or disturbance by the defendant, or by any person or persons claiming or deriving by, from, or under the defendant:

"3. That the mortgage being in execution of a power, the mortgagees were in under the donor of the power, and not under the defendant:

"4. That the execution of the power to mortgage did not in any way prevent or interfere with the power to lease:

"5. That, notwithstanding the prior execution of the mortgaging power, the subsequent execution of the leasing power was good:

"6. That leases created under power over-reach all the existing limitations to the extent of the interest comprised in such leases; and that, consequently, the lease in question would take Fricrity of and over-reach the mortgage term; and that such lease was valid, notwithstanding the existence of the previous mortgage."

after mentioned, had, and who still hath, lawful right and title to the said premises, with the appurtenances, to wit, by virtue of a mortgage thereof theretofore made to him by the defendant, did enter into the said premises, with the appurtenances, and ejected, expelled, and removed the plaintiff therefrom, and kept and held out, and still keeps and holds out, him the plaintiff from his possession and occupation thereof," &c. That is matter of substance, and the plaintiff cannot vary from it when he comes to prove it: Harris v. Mantle, 3 T. R. 307; Hawkes v. Orton, 5 Ad. & E. 367 (E. C. L. R. vol. 31), 6 N. & M. 842; per Lord Ellenborough in Seddon v. Senate, 13 East 72; 2 Wms. Saund. 178 a, n. As the plaintiff has thought *fit to rely upon an eviction and *230] expulsion, he cannot now depart from that. The facts stated upon this special case clearly do not amount to an eviction. All that appears, is, that the plaintiff, being in under a lease from the defendant, received a notice from the mortgagee of the premises that he would be required to pay rent to him, and, being advised by his attorney that the mortgagee had a title which he could not resist, voluntarily quitted and In allowed the mortgagee to take possession of the premises, receiving from him a sum of money as the price of his abandonment of them. Comyn's Digest, Seisin (F. 2.), it is said: "An act which does not oust him who has the freehold, though it be tortious, will not be a disseisin; as, if a commoner commands the owner of the soil not to cut down trees, whereupon he desists, and goes off out of the land, it is no disseisin; for, he who has right shall not be ousted of his seisin by parol: 1 Roll. 658, 1. 10. So, if A enters upon the possession of B, but does not expel him, it is no disseisin : Smartle v. Williams, 1 Salk. 244; Co. Litt. 181 a. So, it will not be a disseisin, where a man enters by sufferance of the owner: 1 Roll. 659, 1. 20; Skipwith v. Conies, 1 Anderson 134." There was no demand of possession here by the mortgagee; no threat of expulsion; nothing but a mere demand of rent. [WILLIAMS, J.— Was the tenant bound to wait until he was turned out by an action of ejectment?] To constitute an eviction, there clearly must be something more than appears Then, there was no eviction by the defendant or by a person claiming title by, from, or under him. There was no mortgage by the defendant to L'Estrange; the mortgage was under the power in the marriage settlement of the 15th of July, 1799. The term was created by the trustees, Teed and White, in pursuance of the power given to them under the settlement; and they assigned the term to the two *L'Estranges, by way of mortgage. The defendant, *231] it is true, is a party to that deed; but it is merely for the purpose

here.

of covenanting for payment of the mortgage-money and interest, and for title and further assurance. [COCKBURN, C. J.-The defendant had no power to mortgage.] None: the power was in Teed and White, and they alone exercise it. Hilary Frederick L'Estrange, the surviving mortgagee, therefore, did not enter claiming under the defendant: he claimed under the defendant's father, the creator of the power. In 2 Chance on Powers, p. 2, § 1387, it is said: "The appointee claims through or under the creator of the power: he is in, as it is technically termed, under the instrument by which the power is created: the limitation of the estate or interest appointed, is, for many purposes, deemed to be a limitation of the original instrument." If, therefore, L'Estrange had any lawful claim, he has it under John Robert Parker,