Winnisimmet Trust v. Libby

• Decision Date: 03 March 1924
• Citation: 142 N.E. 772,247 Mass. 560
• Parties: WINNISIMMET TRUST, Ino., v. LIBBY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

247 Mass. 560

142 N.E. 772

WINNISIMMET TRUST, Ino.,

v.LIBBY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1924.

Appeal from Municipal Court of Boston, Appellate Division.

Action of contract by Winnisimmet Trust, Incorporated, against Fred M. Libby, Jr., and others, to recover rent. From an order of the appellate division of the municipal court of the city of Boston dismissing report, plaintiff appeals. Order affirmed.

Clarence A. Warren and Lester W. Edwards, both of Boston, for appellant.

G. C. Scott, of Boston, for appellees.

CROSBY, J.

This action was brought, in the municipal court of the city of Boston, to recover rent from April 2, 1918, to and including November 2, 1918, reserved under a lease to the defendants from the plaintiff's assignor, one Duval. The trial judge found for the defendants and the case was reported to the appellate division, which dismissed the report.

At the trial the material facts were not in dispute. The record shows that Duval, who was the owner of an estate known as the ‘Dream Theatre,’ on March 2, 1916, mortgaged it to Rufina M. Jordan by a power of sale mortgage in the usual form; that on the same day, but after the execution and delivery of the mortgage, he leased the estate to the defendants for the term of three years, at an annual rental of $600, payable $50 monthly in advance, and the mortgagee signed the following clause, written on the lease: ‘I hereby assent to the foregoing lease.’

It further appears that upon the execution and delivery of the lease the defendants entered into possession of the premises; that on or about April 27, 1916, Duval assigned all rents (except the last three installments falling due to him under the lease) to the plaintiff, as security for certain indebtedness then and thereafter to be contracted; that the defendants were duly notified of the assignment, on or about November 28, 1916, and payment of the rent was demanded of the plaintiff; that on May 31, 1917, the mortgagee, for breach of the conditions of the mortgage, made an entry on the premises for the purpose of foreclosure; that on July 10, 1917, the mortgage was foreclosed and the premises were sold under the power of sale therein; that on the same day the purchaser reconveyed the property to Rufina M. Jordan, who has ever since been the owner; that all rent falling due from December 2, 1916, to March 2, 1918, inclusive, has after litigation been paid to the plaintiff by the defendants; ‘that the defendants continued to occupy and enjoy the demised premises under said lease without interruption until May 2, 1918, except that on frequent occasions after foreclosure and prior to April 2, 1918, Mrs. Jordan and her attorney demanded payment of the rent and threatened to evict the defendants unless payment was made, and that in consequence of these demands and threats the defendants on May 2, 1918, entered into an agreement with Mrs. Jordan’ by the terms of which the tenancy of the defendants was to terminate on that day and they were to attorn to her for rent previously due; and that on the same day the defendants vacated the premises.

It also appears that the defendants have not paid rent, under the lease or otherwise, to any one since the payment of the balance of the rent due March 2, 1918. It is their contention that thereafter they were under no liability to the plaintiff, and were liable to Mrs. Jordan only for the rent due April 2, 1918.

Certain questions, previously arising under this lease between the same parties, were considered by this court in 232 Mass. 491, 122 N. E. 575, and in 234 Mass. 407, 125 N. E. 599, 14 A. L. R. 638.

‘No rule of law is plainer than that a mortgagor of real estate has a right to the rents and...