Noble v. Brooks
| Decision Date | 19 May 1916 |
| Parties | NOBLE v. BROOKS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Supreme Judicial Court, Suffolk County.
Action by John Noble against Arthur G. Brooks. The municipal court found for plaintiff, and the cause was reported to the appellate division; and from a judgment there for plaintiff, defendant appeals. Plaintiff given leave to amend, and, upon filing the amendment, the order dismissing the report affirmed.
Moulton, Loring & Bigelow, of Boston, for appellant.
Loring, Coolidge & Noble, of Boston, for appellee.
The lease, having described the term as ‘one year from the first day of September, one thousand nine hundred and thirteen, to August 31st, one thousand nine hundred and fourteen, and thereafter from year to year until one of the parties hereto shall on or before the first day of July in any year give to the other party written notice of his or her intention to terminate this lease on the last day of the following August in which case the term hereby created shall terminate in accordance with such notice,’ it could not be ended before expiration by either the lessor or the lessee except in accordance with these provisions or by operation of law.
The subsequent mortgage of the leased premises undoubtedly operated as an assignment of the lease. Burden v. Thayer, 3 Metc. 76,37 Am. Dec. 117;Russell v. Allen, 2 Allen, 42, 43. And having entered and given notice to the tenant the mortgagee thereafter was entitled to all accruing rent. Mirick v. Hoppin, 118 Mass. 582, 587;Adams v. Bigelow, 128 Mass. 365, 366. But as the mortgagee never terminated the lease it remained in full force and effect at the time possession of the premises was surrendered to the plaintiff as receiver of the lessor. The defendant having continued in occupation and there being no evidence that the required notice has been given, the fourth request was properly refused.
The first request, that upon all the evidence the plaintiff as matter of law cannot recover, is also disposed of by what has been said, except as to the defendant's contention that the action cannot be maintained by the receiver in his own name.
It is plain that he is not an assignee of the lease and the action should have been brought in the name of the lessor. Wilson v. Welch, 157 Mass. 77, 80, 81, 31 N. E. 712.
The merits having however been fully determined, the plaintiff is given leave to amend; and upon filing the amendment the...
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Pizer v. Hunt
...has frequently been ordered by this court or directly allowed here under G. L. c. 231, § 125, for the same purpose. Noble v. Brooks, 224 Mass. 288, 112 N. E. 649;Savage v. Welch, 246 Mass. 170, 182, 140 N. E. 787, and cases there collected; Weinstein v. Miller, 249 Mass. 516, 522, 144 N. E.......
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Eurengy v. Equitable Realty Corp.
...Hurst Automatic Switch & Signal Co. v. Trust Co., 216 S.W. 954; Cochran v. Gulf Refining Co., 139 La. 1010, 72 So. 718; Noble v. Brooks, 224 Mass. 288, 112 N.E. 649; Jones on Mortgages, secs. 978, 979, p. 363, sec. 876; Krost v. Moyer, 207 N.W. 311, 166 Minn. 153; Hawkins v. Klein, 255 Pac.......
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In re Prichard Plaza Associates Ltd. Partnership
...after a breach of the conditions of the mortgage, is not entitled to receive the rent without an entry. . . ."); Noble v. Brooks, 224 Mass. 288, 291, 112 N.E. 649, 649 (1916) (a mortgagee who enters and gives notice to a tenant is entitled to all accruing rent from the tenant); Elmore v. Sy......
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Eurengy v. Equitable Realty Corp.
... ... 467; Hurst Automatic Switch & Signal ... Co. v. Trust Co., 216 S.W. 954; Cochran v. Gulf ... Refining Co., 139 La. 1010, 72 So. 718; Noble v ... Brooks, 224 Mass. 288, 112 N.E. 649; Jones on Mortgages, ... secs. 978, 979, p. 363, sec. 876; Krost v. Moyer, ... 207 N.W. 311, 166 ... ...