Knowles v. Maynard

54 Mass. 352

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1847
• Status: Published

Opinion

Wilde, J.

We think this case cannot be distinguished from that of Welch v. Adams, 1 Met. 494, and several other cases cited by the defendant’s counsel. In the case of Welch v. Adams, it was decided that the tenant of a mortgagor was not liable for rent that accrued after the mortgagee had entered and required that the rent should be paid to himself, and the tenant had agreed to pay him. The case of Smith v. Shepard, 13 Pick. 147, was decided on the same principle, which is, that the mortgagee, having a title paramount, has a right to enter on such lessee and evict him; to prevent which, the lessee has the right to pay the rent to the mortgagee. If the lessee had refused to pay the rent, and he had thereupon been ousted or evicted by the mortgagee, the mortgagor would not have been entitled to the rent. It was so decided in Fitchburg Cotton Manuf. Corporation v. Melven, 15 Mass. 268. It follows conclusively, that the lessee, in the present case, had a right to attorn to the mortgagee, and to pay the rent to him.

It was argued for the plaintiff, that he was entitled to the rent accrued before the entry of the mortgagee; and this would be true if the rent had accrued, and was payable before the entry; as was decided in the case of Massachusetts Hospital Life Ins. Co. v. Wilson, 10 Met. 126. But in the case at bar, the rent was payable annually, and no rent was due at the time of the entry of the mortgagee ; and there can be no apportionment of the rent. Nor is the defendant liable on an implied promise.

Judgment for the defendant.