Adams v. Bigelow

• Decision Date: 05 February 1880
• Citation: 128 Mass. 365
• Parties: Horace J. Adams v. Albert S. Bigelow
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

128 Mass. 365

Horace J. Adams v. Albert S. Bigelow

Supreme Court of Massachusetts

February 5, 1880

Middlesex. Contract for the rent of a house in Boston from June 15 1878, to September 3, 1878. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on agreed facts in substance as follows:

On September 15, 1875, the plaintiff leased the house in question to the defendant, for the term of three years from that date, rent being payable quarterly at the rate of $ 1100 a year. At the time of executing the lease the plaintiff was the owner of the premises, subject to a mortgage given by the plaintiff's grantor for $ 12,000, which mortgage the plaintiff was not bound in law to pay.

On September 3, 1878, twelve days before the last quarter's rent was payable, the holder of the mortgage entered for a breach of the conditions of the mortgage and for the purpose of foreclosing the same, and notified the defendant that he must pay rent to him as a condition of his remaining, and demanded of the defendant payment of the quarter's rent payable by the terms of the lease on September 15. The defendant, without the knowledge and consent of the plaintiff, paid the rent to the mortgagee.

If the plaintiff was entitled to recover, he was also to be entitled to interest from the date of the writ; otherwise, judgment for the defendant.

Judgment for the defendant.

I. S Morse & G. A. Morse, for the plaintiff.

D. L Withington & E. W. Cate, for the defendant.

Endicott J. Colt & Lord, JJ., absent.

OPINION

Endicott

At the time the plaintiff leased the premises to the defendant, they were subject to a mortgage. Before the quarter's rent became due, which the plaintiff seeks to recover in this action, the mortgagee entered for condition broken and for the purpose of foreclosure, and notified the defendant that he must pay rent to him. No rent was then due, and the defendant upon demand paid the rent falling due soon after to the mortgagee, who was in possession. The tenant of a mortgagor is not liable to him for rent, after the mortgagee, who holds a mortgage given prior to the lease, has entered and notified the tenant to pay rent. Cook v. Johnson, 121 Mass. 326, and cases cited. Knowles v. Maynard, 13 Met. 352. See also Russell v. Allen 2 Allen 42; Mirick v. Hoppin, 118 Mass. 582.

The St of 1869, c. 368, concerning the apportionment of rent, has no application to this case. It provides in § 1, that...