Mirick v. Hoppin

118 Mass. 582, 1875 Mass. LEXIS 438

• Court: Massachusetts Supreme Judicial Court
• Decided: October 23, 1875
• Status: Published

Opinion

Endicott, J.

The defendant was the lessee of the premises under a lease from Michael Quinn. After the execution of the lease, Quinn mortgaged the premises to Taylor, who assigned the mortgage to the plaintiff. There was evidence that the plaintiff, by his attorney Knight, entered upon the premises with Quinn for the purpose of taking possession under the mortgage. Knight notified the defendant of this entry, and also that he must pay the rent to him as attorney for the plaintiff, and the defendant afterward paid a month’s rent to Knight.

A mortgagee, upon giving notice to a tenant in possession under a lease given before the mortgage, is entitled to receive the rent due and unpaid after the execution of the mortgage. Russell v. Allen, 2 Allen, 42, 43. It was therefore immaterial that Knight, at the time of the alleged entry and notice, said that it was not the purpose of the plaintiff to disturb Quinn in the possession and control of the premises, but only to get the rent to apply on the mortgage. It was not necessary that the plaintiff should make an actual entry and obtain the possession against Quinn, as in the case where the mortgage is prior to the lease. The notice to pay rent to the plaintiff was all that was required in this case. Russell v. Allen, supra.

The eviction of a tenant from a part of the demised premises suspends the obligation to pay rent under the lease. This is on the ground that an eviction is a tortious act done against the con•ent of the tenant, and with the intent on the part of the landlord to deprive the tenant of the beneficial enjoyment of the demised premises, in whole or in part. In such case, the landlord is not allowed to apportion his own wrong. Royce v. Guggenheim, 106 Mass. 201. De Witt v. Pierson, 112 Mass. 8. Colburn v. Morrill, 117 Mass. 262. But there is no eviction if the landlord incloses a portion of the demised premises with the knowledge of the tenant, oath parties at the time supposing that the line of the land thus inclosed was the true line of the dexnised premises. There was evidence to this effect in the case at bar, and also that the landlord, when he discovered the mistake, proposed and attempted to correct it, but was prevented by the defendant. The instructions by the court upon this point were sufficiently favorable to the defendant.

The receipt for rent given to the defendant by Knight, as attorney for the plaintiff, was competent evidence on the question of notice and demand to pay rent to the plaintiff as mortgagee. Its weight was for the jury, and the court was not bound to give the instruction that, in itself, it was not sufficient evidence of notice and demand. The other instructions prayed for were in substance given to the jury. Exceptions overruled.