Bergengren v. Aldrich

29 N.E. 667, 139 Mass. 259, 1885 Mass. LEXIS 78

Opinion

W. Allen, J.

The allegations of the pleas show a defence to the suit by all the defendants. It is alleged that, when the lease was given, one of the lessors, William S. Boyce; trustee for Lydia G. Aldrich under the will of Avis Keene, had an estate in an undivided third of the demised premises for the life of the said Lydia, with remainder to her children; and the said Lydia has since then deceased. Neither this interest of the trustee, nor the power of sale given to him by the will, gave him any authority to bind the remaindermen by the covenant of renewal, and their plea shows, a perfect defence.

As regards the other two defendants, who appear to be bound by the covenant, the plea adopted by them also alleges that the demised premises are parcel of lands held in common by all the defendants, these defendants owning each an undivided third part. A lease of their interests would therefore be a lease of an undivided part of a separate parcel of the land held in common. If there were no other reason, this would prevent a decree for specific performance by them to the extent of their interest. As their plea shows that there could have been no decree for specific performance against them after the death of Lydia G. Aldrich, it sets up a full defence. Pleas allowed.