Marsters v. Cling

Massachusetts Supreme Judicial Court

Marsters v. Cling

40 N.E. 763, 163 Mass. 477, 1895 Mass. LEXIS 140

CourtMassachusetts Supreme Judicial Court

DecidedMay 23, 1895

StatusPublished

Cited by8 cases

This text of 40 N.E. 763 (Marsters v. Cling) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Marsters v. Cling, 40 N.E. 763, 163 Mass. 477, 1895 Mass. LEXIS 140 (Mass. 1895).

Pincite

Opinion

Barker, J.

In these cases each defendant was a tenant at will of one Kendall of lands of which he was seised as tenant in curtesy. Kendall’s estate was attached upon a writ against him, and was duly levied upon and sold and conveyed upon execution to the plaintiff’s lessor. Thereafter a written lease of the premises was made by the purchaser at the execution sale to the plaintiff, who thereupon gave to each of the defendants written notice to quit and deliver up the premises to him, as he had taken a written lease of the same for one year. The defendants remained in possession, claiming as tenants at will of Kendall, and the plaintiff brought these actions under Pub. Sts. c. 175.

At the trial, the defendants contended and asked the court to rule that the actions could not be maintained, first, because neither the plaintiff nor his lessor had ever had possession of the premises, and, secondly, because the relation of landlord and tenant did not exist and had never existed between the plaintiff and the defendants.

But the plaintiff holds under Kendall, who was the defendants’ lessor, having acquired Kendall’s title under the execution sale and the lease from the purchaser at that sale. Originally tenants at will, the defendants were made tenants at sufferance by the sale, and the plaintiff after giving his notices had the right to immediate possession. Each case is that of a tenant who holds possession without right after the determination of a lease* and is an instance of the third class of cases for which the summary process for the recovery of lands is given by Pub. Sts. c. 175, § 1. In such cases the plaintiff need show no forcible entry nor forcible detainer, and he may maintain the action against one who has been the tenant of a former owner to whose title the plaintiff has succeeded, although the defendant has never held under nor attorned to the plaintiff. Howard v. Merriam, 5 Cush. 563, 567, 583. Rooney v. Gillespie, 6 Allen, 74.

Exceptions overruled.

Free access — add to your briefcase to read the full text and ask questions with AI

Barker, J.

In these cases each defendant was a tenant at will of one Kendall of lands of which he was seised as tenant in curtesy. Kendall’s estate was attached upon a writ against him, and was duly levied upon and sold and conveyed upon execution to the plaintiff’s lessor. Thereafter a written lease of the premises was made by the purchaser at the execution sale to the plaintiff, who thereupon gave to each of the defendants written notice to quit and deliver up the premises to him, as he had taken a written lease of the same for one year. The defendants remained in possession, claiming as tenants at will of Kendall, and the plaintiff brought these actions under Pub. Sts. c. 175.

At the trial, the defendants contended and asked the court to rule that the actions could not be maintained, first, because neither the plaintiff nor his lessor had ever had possession of the premises, and, secondly, because the relation of landlord and tenant did not exist and had never existed between the plaintiff and the defendants.

But the plaintiff holds under Kendall, who was the defendants’ lessor, having acquired Kendall’s title under the execution sale and the lease from the purchaser at that sale. Originally tenants at will, the defendants were made tenants at sufferance by the sale, and the plaintiff after giving his notices had the right to immediate possession. Each case is that of a tenant who holds possession without right after the determination of a lease* and is an instance of the third class of cases for which the summary process for the recovery of lands is given by Pub. Sts. c. 175, § 1. In such cases the plaintiff need show no forcible entry nor forcible detainer, and he may maintain the action against one who has been the tenant of a former owner to whose title the plaintiff has succeeded, although the defendant has never held under nor attorned to the plaintiff. Howard v. Merriam, 5 Cush. 563, 567, 583. Rooney v. Gillespie, 6 Allen, 74.

Exceptions overruled.

Cite This Page — Counsel Stack

Bluebook (online)

40 N.E. 763, 163 Mass. 477, 1895 Mass. LEXIS 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marsters-v-cling-mass-1895.

Opinion

Related

Cite This Page — Counsel Stack