is mentioned in the Act. Whenever there are a result as that now claimed can take place. relations of the whole blood, who are named in Under Section 8 of the Act of 1833, which dethe Act, they take, as to real estate, in exclu-clared that "no representation shall be admitted sion of the half blood of the same degree. The Act of 1855 is to be taken as if it had been passed as part of the Act of 1833, with Secs. 7 and 8 of that Act following it. Viewed in that light, it will be seen what the Court means in Lane's App. (4 Cas. 487), Brenneman's App. (4 Wr. 115), Graham's Est. (7 WEEKLY NOTES, 11), Illigs's Est. (3 Luz. Leg. Obser. 102), in speaking of the cousins (or grand-nephews) being created by the Act additional classes of heirs, as distinguished from next of kin, and deciding directly, that the words, "when by existing laws entitled to inherit," are intended to preserve the distinction between the whole and the half blood. amongst collaterals after brothers' and sisters' children," a living nephew or niece took to the entire exclusion of the children of all deceased nephews or nieces; and a living uncle or aunt to the exclusion of the children of all deceased uncles or aunts. This was decided in 1853, in the case of Parr v. Bankhart (10 Harris, 291); and it was doubtless to remedy the hardship of such a case that the Act of 1855 was passed. It is a primary canon of construction "that it is not to be presumed that the Legislature intended to make an innovation upon the existing law, further than the case absolutely required. For the law rather infers that the Act did not intend to make any alteration other than what is specified, and besides what has been plainly expressed; for if the Parliament had held that design, it is naturally said, they would have ex 66 66 Two new classes of heirs are established, to wit, grand-nephews and first cousins of the whole blood. In default of these, the estate descends to next of kin, under Secs. 7 and 8 of Act of pressed it." (Dwarris on Stat. 43.) We are not 1833. left to mere interpretation, however, upon this January 22, 1881. THE Court. The ex-point, since the Act, in express terms, says that pression in the Act of 8th of April, 1833, of the preference given to the whole blood, being confined to the case of the inheritance of real estate by brothers and sisters and their descendants, the familiar rule of construction excludes the implication that, in any other case, such preference was intended; while the fact that, in providing for inheritance by the next of kin, personal estate, as to which there is, concededly, no distinction of blood, is blended with real estate the latter being subject only to the provision that no estate of inheritance therein shall pass to one not" of the blood" (that is, either of the whole or half blood, Baker v. Chalfant, 5 Whart. 477) of the first purchaser-shows, conclusively and affirmatively, that the omission in the case of next of kin was not accidental. It was accordingly held in Danner v. Shissler (7 Casey, 289), that where the next of kin of an intestate were uncles and aunts, they took under the Act without distinction of blood. In the case before us, the parties claiming are all children of deceased uncles and aunts of the whole and of the half blood; and, under the Act of 1833, being the next of kin, both alike would clearly be entitled. But it is contended by the respondent that a different rule has been introduced by the Act of April 27, 1855, which provides, that "among collaterals, when, by existing laws, entitled to inherit, the real and personal estate shall descend and be distributed among the grandchildren of brothers and sisters, and the children of uncles and aunts by representation; such descendants taking equally among them such share as their parent would have taken if living." It is not easy to see upon what principle such the persons taking by representation under its provisions shall do so (in all cases) "when, by existing laws," collaterals shall be entitled to inherit." By the laws then existing brothers and sisters of the whole blood, and their descendants, took to the exclusion of brothers and sisters of the half blood and their descendants; and by the same existing law uncles and aunts of the whole blood had no preference whatever over uncles and aunts of the half blood. In either case, the persons taking by representation under the new Act could only have what "their parent would have taken if living." Hence, a nephew or niece of the half blood, and consequently their children, could take nothing should there be a nephew or niece of the whole blood or their children, while an uncle or aunt of the half blood, and consequently their children, would take equally with an uncle or aunt of the whole blood or their children; provided, in both cases alike, that the parties claiming were of the blood of the first purchaser. This is said by the Court below in Danner. Shissler, supra, to be clear since the Act of 1855, and the judgment was affirmed without remark upon the point. We have no doubt, therefore, that the children of deceased uncles or aunts of the half blood are entitled to share with those of the whole blood in the case before us. Under the construction given to the Act of 1855 by the Supreme Court, the distribution must be made per stirpes, notwithstanding the fact that the parties entitled stand in the same degree of consanguinity to the intestate. Inquest awarded. Opinion by PENROSE, J. WEEKLY NOTES OF CASES. such a character as this one, title is so important that no one but a very careless man would think of renting without a careful examination. When a lessee seeks to improve demised premises, the rule caveat emptor applies; he should examine his lessor's title or protect himself by VOL. IX.] THURSDAY, MARCH 10, 1881. [No. 29. apt words in an express covenant. Supreme Court. January, '80, 28. Lanigan, to use etc., v. Kille. Bender v. Fromberger, 4 Dall. 407; McClowry v. Croghan's adm'r, 1 Grant, 307, followed. Error to the Common Pleas No. 2, of Philadelphia County. Covenant, brought by J. Lanigan, to the use January 24, 1881. of H. P. Stichter, against J. T. Kille, to recover damages for an eviction from certain ore-land demised for a term of years by defendant to plaintiff. Pleas, covenants performed, covenants performed absque hoc, performance with leave, etc. Lessor and lessee-Covenant for quict enjoyment -Eviction by paramount title-Improvements erected by lessee-In suit against lessor on implied covenant for quiet enjoyment, damages cannot be recovered for value of improvements, which lessee had right to remove. In case of an eviction of a purchaser or lessee of real estate by paramount title, his measure of damages, under the ordinary covenants of title express or implied, in the absence of fraud on the vendor's or lessor's part, is the consideration paid. K. leased to L. for fifteen years, in consideration of a royalty, certain ore-lands, L. covenanting to erect forth with good and approved machinery to take out the ore, and K. covenanting that the lessee should have full privilege of erecting all buildings necessary to working the ore, and that, at the end of the term, he should have the right to take down and remove all buildings put up by him. The lease contained the usual words "demise and let," but no express covenant for title. L. was subsequently evicted in an ejectment-suit founded on a paramount title. In an action by L. against K. to recover damages for the eviction: Held (affirming the judgment of the Court below), that the measure of damages was the consideration paid, and that the damages in this case, therefore, could only be nominal. to fix the value thereof, offered to show that, in an action On the trial, before MITCHELL, J., the following facts appeared: By lease dated August 1, 1871, the defendant Kille leased to J. Lanigan certain ore-lands in Cumberland County for the term of fifteen years, in consideration of a certain royalty. The lease contained the following material provisions: The Witnesseth that the said lessor doth hereby demise and let unto the said lessee, etc. said lessee hereby covenants and agrees to and with the said lessor that he will forthwith procure and set up good and that he will work and mine the same in a good, workand approved machinery to take out and work said ore, manlike manner, and as an open bank, and that he will mine and take away not less than four thousand tons of ore in each and every year of this agreement; The said lessor covenants and agrees, to and with the said lessee, that he shall have the full privilege of building houses and erecting all necessary machinery for developing, working, and taking out the ore upon said tract, and that at the expiration of the hereby demised term, or in case ore shall not be found in sufficient quantity upon the said tract, he shall have the right to take down and remove all buildings and machinery so put up or erected. The plaintiff offered to show the value of machinery The lease contained no express covenant for erected by him and standing at the time of eviction, as a title. The lessee entered upon the premises and portion of the damages he was entitled to; and in order erected certain improvements. Subsequently for mesne profits brought against the defendant, he had judgment was recovered against Kille (the lesfixed the value of said improvements at $9600, and re-sor) in an action of ejectment, founded upon a duced the verdict by that amount: paramount title (Kille v. Ege, 29 Sm. 15; s. c., Held (affirming the judgment of the Court below), thatI WEEKLY NOTES, 500); and the lessee was, acthe evidence was inadmissible. cordingly, put out of possession by the sheriff Per PAXSON, J. As to improvements put up by per-under a writ of hab. fac. poss. (See Ege v. Kille, mission merely of the lessor, there could be no question; 3 Norris, 339.) Subsequently Lanigan assigned and the machinery covenanted to be put up was merely his lease to H. P. Stichter. An action for mesne that which was necessary to work the mine; without it, the lessee could not make the rent. He would have been obliged to put it up, if the covenant were not in the lease. It is to be observed that in no case were any improvements to belong to the lessor, after the termination of the lease; the lessee had the right to remove them. The covenant formed no part of the consideration paid for the lease; at most it merely increased the lessor's security for the rent. If the improvements were to become the lessor's property, the question would be different. Per PAXSON, J. In ordinary short leases, an examination of title by the lessee may be unusual, but in leases of VOL. IX.-31 profits was then brought by Ege (the successful WEEKLY The plaintiff made the following offers of evidence: (1) To show the value of the improvements as affixed to the freehold, erected by plain tiff upon the land under his lease from defendant, | It is important to bear this distinction in mind, at the time of the eviction. Objection sustained as the measure of damages is different in the two and exception. (1st assignment of error.) (2) classes of cases. To prove that the defendant, in an action against him for mesne profits by the claimant in the ejectment suit, fixed the value of said improvement at $9600, and used the same as a set-off to the claim for mesne profits, and was allowed for the same. Objected to; objection sustained and exception. (2d assignment of error.) The Court instructed the jury to find for the plaintiff for nominal damages. (3d assignment of error.) Verdict for plaintiff for $6, and judgment thereon; whereupon the plaintiff took this writ, assigning for error the above rulings on evidence, and the charge of the Court to the jury. S. E. Cavin and F. C. Brewster (with them F. E. Brewster), for plaintiff in error. A. S. Biddle and Geo. W. Biddle, for defendant in error. (For opinion of MITCHELL, J., and argument of counsel, see report of the case on a rule for a new trial, 7 WEEKLY NOTES, 293.) It may be conceded to be settled law in England, that the measure of damages for the breach of an express covenant for quiet enjoyment is the value of the property at the time of the eviction. (Williams v. Burrell, 50 E. C. L. R 401; Lock v. Furze, 115 Id. 94; Rolph v. Crouch, 3 L. R. Exchequer, 44.) These cases hold that the rule in Flureau v. Thornhill (2 W. Black. 1078), that, where a contract of sale of real estate goes off in consequence of a defect in the vendor's title, the vendee is not entitled to damages for the loss of the bargain, does not apply to the case of a lease granted by one who has no title to grant it. In this State it is settled that, as between vendor and vendee, the measure of damages is the consideration paid. Bender v. Fromberger (4) Dallas, 441), which expressly ruled the point, has never been questioned, but, on the contrary, has been followed in a number of later cases, which it is needless to cite. While the contrary doctrine has been asserted in a few of the States, the principle of Bender v. Fromberger has been recognized in a large majority of them, and by the Supreme Court of the United States. The cases will be found collected by Mr. Rawle in his Covenants for Title at page 235. February 21, 1881. THE COURT. This was an action of covenant brought by the lessee of certain ore-lands in Cumberland County, against the lessor, to recover damages for an eviction from the demised premises. The lease was for a term of fifteen years, and some time prior to its ex- The question which immediately concerns us piration the lessce was evicted under ejectment proceedings upon a paramount title. It is settled by abundant authority that the word concessi or demisi in a lease implies a covenant for quiet enjoyment during the term. It is sufficient to refer to Hemphill v. Eckfeldt (5 Wharton, 274), Maule v. Ashmead (8 Harris, 482), Schuylkill and Dauphin Improvement and Railroad Company v. Schmoele (7 P. F. S. 271), Nokes's Case (4 Rep. 80 b), Line v. Stephenson (35 E. C. L. R. 77), Smith's Landlord and Tenant, 263; Rawle's Covenants for Title (4th ed.), 464. So much is conceded. Nor is it denied that, for a breach of the covenant implied from the use of the word let or demise, an action can be maintained. The only contention is, as to the proper measure of damages. The plaintiff offered to prove in the Court below (see first specification), the value of the improvements which he had erected upon the demised premises, as a means of ascertaining the damages which he had sustained by reason of the eviction. The Court below ruled out the offer, and instructed the jury to find nominal damages only. a The eviction here, as before stated, was by paramount title. It is not the case of an eviction by a landlord in disaffirmance of his own act, or by a fraud perpetrated upon the tenant. is whether the same rule applies as between lessor and lessee. In England, as we have seen, it does not, and the measure of damages is the value of the property at the time of the eviction. Upon this point the authorities are meagre, and by no means uniform. The true rule, however, would appear to be, that in an action by a lessee against his lessor for an eviction by a paramount title, the measure of damages is the consideration paid, and such mesne profits as he has paid or may be liable for. The consideration for a lease is usually the rent reserved. If the tenant has enjoyed the possession of the demised premises, he has had the precise equivalent for the rent; if be has paid the rent in advance, he is entitled to recover it back in the form of damages for the eviction. This is substantially the rule laid down in Mack v. Patchin (42 N. Y. 167), where it was said by EARL, C. J. "In an action by the lessee against the lessor for breach of covenant for quiet enjoyment, the lessee can ordinarily re cover only such rent as he has advanced, and such mesne-profits as he is liable to pay over; and in cases where the lessor is sued for a breach of contract to give a lease or to give possession, ordinarily the lessee can recover only nominal damages and some incidental expenses, but noth ing for the value of the lease. These rules, however much they may be criticized, must be re would apply. It was his own folly to build upon another's land. It was contended that the case in hand does not come within such rule, however, for the reason that the lessee covenanted with the lessor to erect the improvements in question. The lease does contain such a covenant, as to a portion of the improvements. It provides that the lessee shall "forthwith procure and set up good and approved machinery, to take out and work said ore," and the lessor "covenants and agrees, to and with the said lessee, that he shall have the full privilege of building houses and erecting all necessary machinery for developing, working, and taking out the ore upon the said tract, and that at the expiration of the hereby demised term, or in case the ore shall not be found in sufficient quantity upon the said tract, he shall have the right to take down and remove all buildings and machinery so put up or erected." garded as settled in this State." The learned | value thereof from the lessor in event of an evicChief Justice then proceeds to say, that, "at an tion. In such case the rule of caveat emptor early day, in England and in this country, certain cases were declared to be exceptions to these rules, or, more properly speaking, not to be within them: as, if the vendor is guilty of fraud; or can convey, but will not, either from perverseness or to secure a better bargain; or if he has covenanted to convey when he knew he had no authority to contract to convey; or where it is in his power to remedy a defect in the title and he refuses or neglects to do so; or when he refuses to incur expenses which would enable him to fulfil his contract; in all these cases, the vendor or lessor is liable to the vendee or lessee for the loss of the bargain, under rules analogous to those applied in the sale of personal property.' Mack v. Patchin came within the exception noted above. The tenant in that case was evicted under proceedings to foreclose a mortgage upon the demised premises, which mortgage antedated the lease. The foreclosure was evidently procured by the lessor. The collusion of the latter appears in the report of the facts of the case, in the opinion of the Court, and is specially referred to in the concurring opinion of Mr. Justice SMITH, who said, "the plaintiff (tenant) was clearly evicted from the premises by the act, procurement, and fault of the defendant (lessor). He expedited, if he did not instigate, the foreclosure of the mortgage under which the eviction was had. He became a joint purchaser, on the mortgage sale, of the demised premises, and a joint petitioner with Dorsheimer for the writ of assistance under which the plaintiff was evicted from the premises." Under these circumstances, it is not surprising that the Court permitted the lessee to recover, not nominal damages merely, but the value of the lease, less the rent stipulated to be paid. The case in hand does not come within either of the exceptions noted. Neither fraud nor bad faith was imputed to the lessor. He demised the premises under the belief that he had a good title. The lessee leased the premises under a similar belief; both were mistaken. The lessor loses what he paid for the property, unless he is protected by apt covenants in his title, and is liable to his lessee to the extent of the consideration paid by the latter. Is he liable beyond this? The lessee contends that he is also liable for the improvements made by said lessee upon the property. The liability of a lessor under the implied covenant for quiet enjoyment, for improvements made upon the demised premises by the lessee, may depend upon circumstances. A tenant, who, upon his own motion and for his own purposes, erects a building or other improvement upon a leasehold, certainly cannot recover the So far as the improvements which were put up by permission merely of the lessor are concerned, there can be no question. There was no obligation to put them up, and there can be no recovery. But it is said, that as to the machinery, there was a covenant to erect it, and therefore the lessee may recover its value in this proceeding. It will be observed that in no event was it to become the property of the lessor. The lessee was expressly authorized to remove it at the close of his term, or sooner, if ore shall not be found in sufficient quantity upon the tract. We are, therefore, unembarrassed with the question that would arise had the covenant required the improvements to be left upon the premises at the expiration of the term. The improvements were primarily for the use and benefit of the lessee in his business. He leased the premises for the purpose of mining iron ore. This necessarily involved the use of the machinery and appliances usual in such business. Without them, the tenant could not possibly have made the rent which he had covenanted to pay. The lessee having covenanted to mine the ore, the covenant to erect the necessary machinery added nothing to its strength, for the reason that such erection was an essential incident of such mining. He might as well have covenanted to put on the mules, carts, picks, and tools ordinarily used in mining. The lessor had neither title nor interest in the machinery. He could not be said to have derived any benefit from it, except incidentally, as it enabled the lessee to pay the rent. The most that can be said is that it increased the lessor's security for his rent. The payment of the rent upon the days and times stipulated would have been so far an answer to a suit by the lessor against the lessee for a breach of the covenant of We are of opinion the Court below committed no error in excluding the offer to show the value of the improvements referred to in the first specification. the latter to erect the machinery, that nominal | not recover for the loss of his bargain; that the damages only could have been recovered. If, value of the contract was not the measure of then, the machinery was the property of the damages for its breach. lessee, was erected for his own convenience for the prosecution of his business, it cannot be said to have been a part of the consideration paid for the lease. Not any more than in the ordinary case of landlord and tenant, when the latter for his own convenience and without a covenant erects a building or puts up machinery for the purposes of trade. In either case, the lessor has increased security for his rent, to the exact amount that property of this description is placed upon the premises. There was evidently a mutual mistake in regard to the title. Why should the lessee throw the consequences of that mistake wholly upon the lessor? He was neither deceived nor misled by the latter. He probably examined the lessor's title, at least he might have done so, and the omission of such examination would be negligence under the circumstances. While it may be and doubtless is true, that in ordinary short leases, an examination of title is neither usual nor necessary, the same cannot be said in regard to leases of valuable ore lands, having fifteen years to run, and when from the necessities of the business costly improvements are required. The lessee of a small tenement has little occasion to concern himself about the title. If he is evicted, the rent ceases, and that is the end of it. But in leases of the character of the one we are considering, title is of such supreme importance, that no one but a very careless man would ever think of renting without a careful examination. However careless a man may be as to title in ordinary leases, it is well to understand that, when a lessee seeks to improve demised premises, the rule of caveat emptor applies, and he would do well to see that his lessor has title. And if not satisfied therewith, he may further protect himself by apt words in an express covenant. There is no case in this State which is in conflict with this view. Hemphill v. Eckfeldt (5 Wh. 274) is not in point. The question of the measure of damages in an implied covenant for quiet enjoyment, was not before the Court. In Maule v. Ashmead (8 Harris, 482), the eviction was not by title paramount, but by the act of the lessor, and comes within the exceptions noted in Mack v. Patchin, supra. In Schuylkill and Dauphin Railroad Co. v. Schmoele (7 P. F. S. 271), the measure of damages was not even adverted to. Kille v. Ege (1 Norris, 102) was an action of mesne profits, and raised no such question as the one we are considering. McClowry v. Croghan's Adm'rs (1 Grant, 307) is an authority the other way. That was an action to recover damages for the breach of a contract to renew a lease, and it was held the plaintiff could The second specification alleges that the Court erred in excluding plaintiff's offer to prove “that the defendant, in an action against him for mesne profits, by the claimant in the ejectment suit, fixed the value of said improvements at the sum of $9600, and used the same as a set-off to the claim for mesne profits and was allowed for the same." There was no error in rejecting this offer. Under no circumstances, as we view the case, would such evidence have been admissible. If we concede the right of the plaintiff to recover more than nominal damages, it is manifest he could only claim the value of the machinery after its removal, whereas the offer is to show its value in place. It is not to the purpose that years afterwards, the defendant, in an action against him for the mesne profits, succeeded in reducing the damages by showing that the value of the property was enhanced by the improvements. He would have had the same right, had they been placed there by a stranger or even by a trespasser. His defence in that suit was that the plaintiff had gotten back his property increased in value; he was not using Lanigan's property, nor his own as a set-off, but merely reducing the plaintiff's claim to what ex æquo et bono he was entitled to recover. Had the suit been against Lanigan for the mesne profits, he could in like manner have set up the value of the improvements as a defence pro tanto. Had there been a verdict against him, I have no doubt, under all the authorities, he could have recovered it back in this proceeding as a part of his damages for the eviction. But he would have been limited to the amount of the verdict, not the verdict plus the improvements by which its amount has been reduced. As, however, the action for the mesne profits was against Kille, Mr. Lanigan has no further concern in that matter, and it is referred to only by way of illustration. The third specification has been sufficiently January, '79, 179. Jan. 13, 1881. Amanda Martin's Appeal Distribution of proceeds of sheriff's sale by auditor-Demand for issue-Where facts in dispute are immaterial, issue is properly re |