Leominster Gaslight Co. v. Hillery

• Decision Date: 26 February 1908
• Citation: 197 Mass. 267,83 N.E. 870
• Parties: LEOMINSTER GASLIGHT CO. v. HILLERY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 267

83 N.E. 870

LEOMINSTER GASLIGHT CO. v. HILLERY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1908

COUNSEL

Whipple Sears &amp Ogden and Alexander Lincoln, for plaintiff.

Charles F. Baker, Walter Perley Hall, and Emerson W. Baker, for defendants.

OPINION

KNOWLTON C.J.

The plaintiff is the holder of real estate under a lease for the term of five years from the 1st of February, 1902, containing a covenant of the lessor for a renewal of the lease, upon the same terms and conditions and for the same rental, for the further term of five years from the 1st day of February 1907.On August 6, 1903, the lessor conveyed the property to the defendant Hillery, who is hereinafter called the defendant, subject to the lease.On the 6th day of February 1907, the defendant gave the plaintiff notice to vacate the premises, stating that the lease had expired.Previously, on the 25th day of August, 1906, and again on November 14, 1906, the plaintiff notified and defendant in writing that it desired an extension of the lease according to its terms.This bill is brought to obtain an injunction restraining the defendant from ejecting the plaintiff from the premises so long as it complies with the provisions of the lease, and a decree ordering the defendant to execute to the plaintiff a renewal of the lease.

This was a lease for more than seven years, within the meaning of Rev. Laws, c. 127, § 4, and, if it had been recorded under this section, it would have given the plaintiff the rights of a lessee for ten years on his election to take a renewal of the lease according to its terms.Toupin v. Peabody,162 Mass. 473, 39 N.E. 280;Kimball v. Cross,136 Mass. 300;Kramer v. Cook, 7 Gray, 550;Stone v. St. Louis Stamping Company,155 Mass. 267, 29 N.E. 623;De Friest v. Bradley,192 Mass. 346-351, 78 N.E. 467.

The covenant in the lease providing for an extension of the term was a covenant running with the land, and was an important part of the lease.Cunningham v. Pattee,99 Mass. 248-251;Howland v. Coffin,12 Pick. 125;Sanders v. Partridge,108 Mass. 556;Patten v. Deshon, 1 Gray, 325.

The description of the premises by metes and bounds, in the deed to the defendant, is followed by a statement of certain rights of way in third persons, and then by these words: 'Said premises are sold subject to a mortgage of sixteen thousand five hundred dollars to the Leominster Savings Bank, and interest thereon from July 21, 1903; also a lease of part of the premises to the Leominster Gaslight Company, and a lease of a part of the premises to H. H. Bicknell & Co.'As to that part of the premises included in the plaintiff's lease, the conveyance was only of the reversion after the expiration of the lease.As against the lease, including all rights secured by covenants running with the land, the defendant took nothing.All his rights under the deed are subject to the lease, and are subordinate to the plaintiff's rights under the lease.As the reversioner, he is bound by this covenant to renew the lease.SeeCook v. Farrington,10 Gray, 70;Fitzgerald v. Libby,142 Mass. 235, 7 N.E. 917;In re Butrick, Petitioner,185 Mass. 107-111, 69 N.E. 1044.

In this view of the casewe have no occasion to inquire whether apart from the limitation of the defendant's title, the findings show that he had actual notice of the lease according to its...