Taylor v. O'Brien

• Decision Date: 20 April 1896
• Citation: 34 A. 739,19 R.I. 429
• Parties: TAYLOR et ux. v. O'BRIEN.
• Court: Rhode Island Supreme Court

34 A. 739

19 R.I. 429

TAYLOR et ux.

v. O'BRIEN.

Supreme Court of Rhode Island.

April 20, 1896.

Action by Henry Taylor and wife against Maria B. O'Brien. Judgment for defendant. Plaintiffs except Exception sustained.

Wood & Pitch, for plaintiffs.

Dennis J. Holland, for defendant.

MATTESON, C. J. This is an action of trespass and ejectment to recover possession of a tenement belonging to the plaintiffs, being the house numbered 20 on Home avenue, in Providence. The action was brought in the district court of the Sixth judicial district, and was heard by the court on an agreed statement of facts as follows: (1) The defendant's husband, Cornelius O'Brien, a former owner of the property, mortgaged it to the Smithfield Savings Bank January 8, 1892. (2) On December 27, 1895, the mortgaed estate was sold, by virtue of the power contained in the mortgage, and purchased by the plaintiffs. (3) Nearly a year prior to the sale, Cornelius O'Brien began proceedings for divorce from the defendant, and subsequently absconded, leaving her in the occupation of the property, and she has continued to occupy it since. (4) After filing his petition for divorce, and before the sale under the mortgage, to wit on August 29, 1895, Cornelius conveyed the property by deed to Mathew O'Brien, of Bridgeport, Conn. (5) Prior to bringing this action, the plaintiffs gave notice in writing to the defendant to quit the premises on a day prior to the beginning of the action.

On these facts the plaintiffs contended that, prior to the notice to quit the defendant was a tenant by sufferance of the premises, and that, on the expiration of the notice, they became entitled to maintain their action. The district court, however, held that, to make the defendant a tenant by sufferance of the plaintiffs, as purchasers at the mortgage sale, she must have been a tenant of some kind under Mathew O'Brien, the holder of the equity of redemption at the time of the sale; that the agreed statement showed no facts from which a tenancy by sufferance could arise; and that the defendant was to be regarded as a trespasser, and, consequently, that the court had no jurisdiction of the suit The plaintiffs excepted to the decision, and the case is before us on their exception.

The court below, if we understand its decision correctly, were of the opinion that to create a tenancy by sufferance it is necessary that there should have been some prior contract of letting between Mathew O'Brien and the defendant...