Hooton v. Holt

29 N.E. 221, 139 Mass. 54, 1885 Mass. LEXIS 18

• Court: Massachusetts Supreme Judicial Court
• Decided: February 27, 1885
• Status: Published

Opinion

C. Allen, J.

1. The first exception is to the admission of the notice in evidence. As the defendant appears to have been a tenant at sufferance, no particular form of notice was required, and a notice calling for immediate possession would be sufficient. If an action is brought without allowing time enough to remove, that does not show that the notice to quit is incompetent in evidence, but is a matter to be shown in defence.

2. The evidence offered by the defendant, which was excluded, as we understand the bill of exceptions, was merely the evidence of a verbal agreement, under which the defendant was to have a right to remain in possession of the premises during life, without charge. This agreement, if proved, would only show that the defendant was a tenant at will under the plaintiff’s grantor at the beginning of said grantor’s ownership, and such tenancy was determined by the execution of the lease to the plaintiff, and the defendant thereupon became a tenant at sufferance. This evidence, therefore, would not help the defendant.

We do not understand from the bill of exceptions, or from the briefs upon which the case has been submitted by counsel, that evidence was excluded to show the age, condition of health, and length of occupancy of the defendant; but the statement in respect to these matters is a statement of facts which appeared in the case, and was introduced to explain, or confirm, or give point to the offered evidence of the oral agreement above referred to. No question of law appears to be openj arising out of the existence of these circumstances.

3. The action is not defeated by the foreclosure of the mortgage and the sale to Buck. Casey v. King, 98 Mass. 503.

Exceptions overruled.