Noble v. Brooks

Massachusetts Supreme Judicial Court

Noble v. Brooks

112 N.E. 649, 224 Mass. 288, 1916 Mass. LEXIS 1079

CourtMassachusetts Supreme Judicial Court

DecidedMay 19, 1916

StatusPublished

Cited by12 cases

This text of 112 N.E. 649 (Noble v. Brooks) 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

Noble v. Brooks, 112 N.E. 649, 224 Mass. 288, 1916 Mass. LEXIS 1079 (Mass. 1916).

Pincite

Opinion

Braley, J.

The lease having described the term as “One year from the first day of September one thousand nine hundred and thirteen to August 31st, one thousand nine hundred and fourteen and thereafter from year to year until one of the parties hereto shall, on or before the first day of July in any year, give to the other party written notice of his or her intention 'to terminate this lease on the last day of the following August, in which case the term hereby created shall terminate in accordance with such notice,” it could not be ended by either the lessor or the lessee except in accordance with these provisions or by operation of law.

The subsequent mortgage of the leased premises undoubtedly operated as an assignment of the lease. Burden v. Thayer, 3 Met. 76. Russell v. Allen, 2 Allen, 42, 43. And the mortgagee, having entered and having given notice to the tenant, thereafter was entitled to all accruing rent. Mirick v. Hoppin, 118 Mass. 582, 587. Adams v. Bigelow, 128 Mass. 365, 366. But, as the mortgagee never terminated the lease, it remained in full force and effect at the time possession of the premises was surrendered to the plaintiff as receiver of the lessor. The defendant having continued in occupation and there being no evidence that the required notice has been given, the fourth request was refused properly.

The first request, that upon all the evidence the plaintiff as [292]*292matter of law cannot recover, is also disposed of by what has been said, except as to the defendant’s contention that the action cam not be maintained by the receiver in his own name.

It is plain that he is not an assignee of the lease and the action should have been brought in the name of the lessor. Wilson v. Welch, 157 Mass. 77, 80, 81.

The merits having however been fully determined, the plaintiff is given leave to amend; and upon the filing of the amendment the order dismissing the report is affirmed. St. 1913, c. 716, § 3.

So ordered:

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

Braley, J.

The lease having described the term as “One year from the first day of September one thousand nine hundred and thirteen to August 31st, one thousand nine hundred and fourteen and thereafter from year to year until one of the parties hereto shall, on or before the first day of July in any year, give to the other party written notice of his or her intention 'to terminate this lease on the last day of the following August, in which case the term hereby created shall terminate in accordance with such notice,” it could not be ended by either the lessor or the lessee except in accordance with these provisions or by operation of law.

The subsequent mortgage of the leased premises undoubtedly operated as an assignment of the lease. Burden v. Thayer, 3 Met. 76. Russell v. Allen, 2 Allen, 42, 43. And the mortgagee, having entered and having given notice to the tenant, thereafter was entitled to all accruing rent. Mirick v. Hoppin, 118 Mass. 582, 587. Adams v. Bigelow, 128 Mass. 365, 366. But, as the mortgagee never terminated the lease, it remained in full force and effect at the time possession of the premises was surrendered to the plaintiff as receiver of the lessor. The defendant having continued in occupation and there being no evidence that the required notice has been given, the fourth request was refused properly.

The first request, that upon all the evidence the plaintiff as [292]*292matter of law cannot recover, is also disposed of by what has been said, except as to the defendant’s contention that the action cam not be maintained by the receiver in his own name.

It is plain that he is not an assignee of the lease and the action should have been brought in the name of the lessor. Wilson v. Welch, 157 Mass. 77, 80, 81.

The merits having however been fully determined, the plaintiff is given leave to amend; and upon the filing of the amendment the order dismissing the report is affirmed. St. 1913, c. 716, § 3.

So ordered:

Cite This Page — Counsel Stack

Bluebook (online)

112 N.E. 649, 224 Mass. 288, 1916 Mass. LEXIS 1079, Counsel Stack Legal Research, https://law.counselstack.com/opinion/noble-v-brooks-mass-1916.

Opinion

Related

Cite This Page — Counsel Stack