O'Brien v. Ball

119 Mass. 28, 1875 Mass. LEXIS 54

• Court: Massachusetts Supreme Judicial Court
• Decided: October 21, 1875
• Status: Published

Opinion

Devens, J.

The defendant entered upon and occupied the

premises, possession of which is sought by this proceeding, by virtue of a lease from the plaintiff which was for the term of five years. During this term the city of Boston, acting by authority of the St. of 1868, c. 277, for the purpose of making certain improvements of a public character, took the estate in accordance with the provisions of that statute, and the title thereof was then vested in the city, that of the plaintiff being divested. Dingley v. Boston, 100 Mass. 544. The plaintiff brings this proceeding for tbe possession of the premises, upon the ground that the de • fendant has failed to pay him one month’s rent which has accrued since this taking by the city, the defendant still continuing in possession, although disturbed therein by the work which the city has been carrying on, and the plaintiff’s right to recover depends upon the question whether any rent was due to him from the defendant. But, even without eviction by, or attornment to, the holder of the new title, the liability to pay the rent reserved ceased with the termination of the plaintiff’s estate during the term subsequent to the making of the lease and the entry of the defendant under it. Lamson v. Clarkson, 113 Mass. 348, and cases cited.

It was for the plaintiff, then, to show that, subsequently to the expiration of his title, a new tenancy had been created; and upon the facts stated, the court below was warranted in finding that no agreement for such new tenancy was shown, and in rendering judgment for the defendant.

Since this proceeding was commenced, the city of Boston has reconveyed to the plaintiff the title to these premises; but this cannot affect the case, which is to be determined by the condition of things which then existed. Judgment affirmed.