Prescott v. Kyle

103 Mass. 381

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1869
• Status: Published

Opinion

Colt, J

The lease of the defendant to Phillips was absolutely void at the election of the plaintiff. It was made by the defendant with the knowledge that the premises were to be used for an illegal purpose, which by the statute made it a common nuisance. The act of making the lease subjected him to punishment as guilty of aiding in the maintenance of a nuisance. Gen. Sts. c. 87, §§ 6-9. The defendant knowingly permitted such illegal use after making the alleged lease. Under the circumstances, a court must be justified in finding that he was a participator in such use. Otherwise a lessee might intentionally devote the leased premises to an unlawful use through his undertenant. By the same statutes, such use annuls and makes void the lease, and without any act of the owner causes the right of possession to revert and vest in him. He may, without process of law, make immediate entry, or avail himself of the remedy sought in this case. After notice of such use, he is required under severe penalties to take measures to eject the occupant. These stringent provisions imply that no notice is necessary to the tenant before commencing this process. The continuance of a nuisance is not protected by the law which requires notice to terminate a tenancy for nonpayment of rent, or entry for breach of condition. Trask v. Wheeler, 7 Allen, 109. Way v. Reed, 6 Allen, 364, 370. Taylor Landl. & Ten. § 521. Healy v. Trant, 15 Gray, 312. Exceptions overruled.