Tainter v. Cole
| Decision Date | 06 March 1876 |
| Citation | 120 Mass. 162 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Elijah F. Tainter v. Elizabeth Cole & others |
Middlesex. Bill in equity, filed February 12, 1874, against Elizabeth Cole, and the heirs of Andrew Cole, to restrain them from taking down a building owned by the said heirs which had been injured by fire, and a portion of which had been leased by Elizabeth Cole to the plaintiff.
The bill set forth the leases, alterations and improvements of the plaintiff; alleged that the building had been partially destroyed, and that Elizabeth Cole the tenant for life of the estate and some of the other defendants, owners of the reversion, pretended and claimed that by the partial destruction of the building the leases of the plaintiff and his estates thereunder had been determined; that all of the defendants were engaged in tearing down the building to remove the plaintiff's property therefrom and intended to dispossess the plaintiff, and prayed for an injunction to restrain the defendants from so doing and for general relief.
The answer admitted the leases, averred that the building had been substantially destroyed by fire, that the plaintiff's leases and estates had been thereby determined, and alleged that the defendants had a right to enter, tear down the remains of said building and dispossess the plaintiff.
A supplemental bill was filed October 5, 1875, setting forth the tearing down of the building and the erection of a new building on the land, and prayed that portions of the new building might be assigned and set out to the plaintiff, for damages and other relief. The answer admitted the entry upon and taking possession of the premises described and the removal of the ruins and debris of the building, and set forth that the defendants had erected, upon the site of the old one and the yard or passageway, a new brick block, and that in so doing they had removed a structure over said yard or passage erected by the plaintiff without right; and alleging that, whereas the old building was a wooden structure of long standing, of two stories in height, valued at $ 8000, the new building cost $ 40,000, was of brick three stories high above the cellars, and much higher in the walls and in the height of the rooms on each floor than the old building; that it covered much more ground and was very differently divided into separate tenements; and set forth a description of the new building and alleged that a considerable portion of it was leased to tenants, and denied that the plaintiff was entitled to any relief.
Hearing before Wells, J., who reported the case for the consideration of the full court. The material facts of the case appear in the opinion.
Bill dismissed.
C Robinson, Jr., for the plaintiff.
R. D. Smith & W. W. Carruth, for the defendants.
The plaintiff holds two leases executed by Elizabeth Cole, by which she demised to him certain rooms in a building owned by the heirs of Andrew Cole, deceased, for the term of ten years from April 1, 1872.
There are five heirs of Andrew Cole. Before the leases to the plaintiff four of the said heirs had executed a lease of the building and land to Elizabeth Cole for her life. Her interest, when she undertook to lease the plaintiff's rooms to him, was that of a tenant for life, in four undivided fifth parts of the building and land. Carrie E Cole, one...
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...vote on one issue or another. But the beneficiaries at all times have a beneficial interest in the real estate. Cf. Tainter v. Cole, 120 Mass. 162, 164 (1876) (lease executed by four of five tenants in common was invalid as against fifth cotenant in common).8 Both Eastmare, 150 B.R. at 501-......
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... ... § 475; Fry, Spec.Perf. (3d Amer.Ed.) ... 478, 599; Milkman v. Ordway, 106 Mass. 232; ... Fallon v. Railroad Co., 1 Dill. 121; Tainter v ... Cole, 120 Mass. 162. Where a plaintiff prayed for ... performance by a company of an agreement to allot shares to ... him, and for damages ... ...
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...convey or mortgage a specific portion of the common property. Shepardson v. Rowland, 28 Wis. 108; Murray v. Haverty, 70 Ill. 318; Tainter v. Cole, 120 Mass. 162. (3) the circuit court ought to have removed the lien of appellant's judgment from the undivided moiety of the whole estate and de......
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