Blish v. Harlow

81 Mass. 316

Opinion

Dewey, J.

Footnotes

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1. The service of the notice of the 20th of January was legal and sufficient.

2. There was no want of authority in the plaintiff to give such notice by reason of the previous notice of the 6th of January: the proposition contained in that notice did not result in any contract for a certain term of occupation, but left the plaintiff, as before, at liberty to treat the defendant as a tenant at will, and the subject of any proper notice to quit the premises.

3. In this state of the facts, the present action was properly commenced on the 21st of February, and may be. maintained unless by subsequent events this right has been defeated. It is said to have been so defeated by the institution by the plaintiff on the same 21st of February of an action to recover of the defendant for the use and occupation of the premises from the 20th of December 1856 to the date of the writ, and a second action for the subsequent month, and a further suit by the assignee of the plaintiff for the use and occupation to the 1st of May. We do not perceive any ground for maintaining that these personal actions for the recovery for the use and occupation of the premises should bar this suit, being a process instituted to regain possession of the premises. The ground for supporting this action was the want of any legal title in the defendant to continue his occupation, not a forfeiture for nonpayment of rent; and that ground was not affected by the full payment of all past rents. The ruling of the court that the present suit, having been commenced in due form and on a legal cause of action, was not defeated by the acts above stated, was correct.

4. The objection taken in argument that the assignee of the plaintiff, appointed under our insolvent laws, could not properly be permitted to assume the action and prosecute it in his own name, was not raised at the trial or found in the exceptions. But, on the contrary, it appears that the assignee took upon himself the prosecution, upon the defendant’s insisting that the suit could not proceed in the plaintiff’s name, but in that of his assignee, whereupon leave was granted to the assignee to prosecute the same in his own name. It seems unnecessary to consider this point, but it may be remarked that the case of Ferrin v. Kenney, 10 Met. 294, is not like the present case. That was a case of an executor seeking to prosecute an action instituted by his testator. The rights of an executor are much more limited than those of an assignee of an insolvent debtor, who, under the St. 1838, c. 163, acquires the legal title to all the real as well as personal estate of the insolvent, and is authorized in very general terms to prosecute in his own name actions at law pending in the name of the insolvent.

5. The further objection taken at the argument, that the plaintiff’s title terminated on the 1st of May 1857, furnishes no answer to the right of the plaintiff to maintain the action. That ground of defence was not specified in due season; for, being of the nature of a plea puis darrein continuance, it should have been made at the next succeeding term after it occurred. But further, it was not competent for the tenant to set up such defence, that pending this action the plaintiff’s title had terminated. The relation of landlord and tenant subsisted, and the plaintiff had a legal cause of action at the time this process was commenced, and this was sufficient, and entitles the plaintiff to maintain his action against the tenant. Upon these points the case of Coburn v. Palmer, 8 Cush. 124, seems to be a direct authority. Exceptions overruled.

Shaw, C. J. did not sit in this case.