Covell v. Matthews

139 N.E. 533, 245 Mass. 135, 1923 Mass. LEXIS 1056

• Court: Massachusetts Supreme Judicial Court
• Decided: May 23, 1923
• Status: Published

Opinion

Rttgg, C.J.

This is an action of summary process to recover possession of the top floor of 73 Massachusetts Avenue in Arlington. The defendants first entered upon the premises as tenants by the entirety in 1916. Whether there was at that time any mortgage upon the premises does not appear and perhaps is not material. In 1919 the defendants mortgaged the premises to one Dinner, who duly foreclosed purchasing them himself. Matthews v. Dinner, 237 Mass. 153. Later one Levins became owner and conveyed them to the plaintiff in May, 1921. In July, 1921, notice to quit and deliver up the premises within fourteen days was served on the defendant Alice J. Matthews. The premises not being vacated, this proceeding was brought.

. The plaintiff is not entitled to prevail as purchaser through mesne conveyances from' the purchaser at the foreclosure sale of the mortgage. Warren v. James, 130 Mass. 540.

Although in a certain sense it has been said that a mortgagor in possession or holding over after breach of condition is a tenant at will or tenant at sufferance of the mortgagee, it has several times been held that the mortgagee or the owner of the premises cannot maintain under such circumstances the summary process for recovery of the premises. This statute was not designed to afford relief in cases of that nature. Hastings v. Pratt, 8 Cush. 121. Larned v. Clarke, 8 Cush. 29. Gerrish v. Mason, 4 Gray, 432. Walker v. Thayer, 113 Mass. 36. Barrell v. Britton, 244 Mass. 273.

There is nothing in the record to indicate that the defendants have ever been tenants of the plaintiff or her predecessors in title, or have recognized them as landlords.

Exceptions sustained.