Winnisimmet Trust, Inc. v. Libby

• Decision Date: 10 January 1920
• Citation: 125 N.E. 599,234 Mass. 407
• Parties: WINNISIMMET TRUST, Inc., v. LIBBY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

234 Mass. 407

125 N.E. 599

WINNISIMMET TRUST, Inc.,

v.LIBBY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 10, 1920.

Appeal from Municipal Court of Boston, Appellate Division.

Action by the Winnisimmet Trust, Incorporated, againt Fred M. Libby, Jr., and others, which resulted in finding for the defendants. On report to the appellate division of the municipal court of the city to Boston, judgment was ordered for plaintiff, and plaintiff appeals. Judgment ordered for plaintiff in a larger amount.

Willard Howland and Clarence A. Warren, both of Boston, for appellant.

Theodore Eaton and George C. Scott, both of Boston, for appellees.

DE COURCY, J.

This action was brought in the municipal court of the city of Boston to recover rent from March 2, 1917, to March 2, 1918, inclusive, reserved under a lease to the defendants from the plaintiff's assignor, James S. Duval. The appellate division ordered judgment for the plaintiff in the sum of $100. Both parties appealed. The defendants contended that the conveyance of the real estate from Duval to one Green, on October 16, 1916, cut off the rights of the plaintiff to the rent subsequently accruing. Since the entry of this appeal, it has been decided by this court, in an earlier case pending between these same parties, that the assignment to the plaintiff was effectualas against the subsequent purchaser of the lessor's reversion. Winnisimmet Trust, Inc., v. Libby, 232 Mass. 491, 122 N. E. 575. The defendants now concede that this settles the question raised by them, as to the plaintiff's right to recover the rent for March and April, 1917, amounting to one hundred dollars; and they waive their appeal.

As to the plaintiff's appeal: On March 2, 1916, when the lease was executed, but prior thereto, Duval mortgaged the property to Rufina M. Jordan by a power of sale mortgage in the usual form. At the time of its delivery the mortgagee signed the following clause written in the lease: ‘I hereby assent to the foregoing lease. [Signed] Rufina M. Jordan, Mortgagee.’ On May 31, 1917, the mortgagee made an entry on the premises for breach of condition; on July 10, 1917, the premises were sold under the power of sale to a third person, and immediately reconveyed to said Rufina M. Jordan, who still holds the title. The defendants have continued to occupy the property without interruption. The only issue now argued by the parties is, whether the defendants are liable to the plaintiff for the rent due in advance on and after May 2, 1917, since said entry to foreclose the mortgage. We assume that the parties intended to raise this question by their requests in the municipal court.

It was in effect decided by the earlier case between these parties that the right to recover future instalments of rent as they should become due under the covenant of the defendants, was an incorporeal interest in land, which the plaintiff holds in its own right by assignment, and for which it may sue in its own name. The mortgagee could not, as such, demand the rent reserved by the lease, as there was no privity...