Smith v. Shepard

32 Mass. 147

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1833
• Status: Published

Opinion

The opinion of the Court was afterward drawn up by

Shaw C. J.

To an action of covenant for rent, eviction of the tenant by a paramount title is a good defence. Bac. Abr. Rent, L; Hunt v. Cope, Cowp. 242. The facts agreed do show, that the defendant was ousted by title paramount. Howe, the mortgagee, claiming under a mortgage made by the plaintiff, long prior to the lease from the plaintiff to the defendant, made an open and peaceable entry upon the prem ises, in presence of two witnesses, after condition broken, for the purpose of foreclosure, as he lawfully might, and this, by force of the statute of this commonwealth, gave him a lawful possession, and operated as an ouster of the tenant. To render such entry lawful aqd effectual, notice to the mortgager is not necessary. Reed v. Davis, 4 Pick. 216. The mortgagee, having thus the lawful and the actual possession, and the right to expel the lessee, tin eatened to do so, unless he would enter into a new contract. This was equivalent to an actual and complete eviction. Such an entry and eviction, by a mortgagee, has been decided to be a good defence to a claim for rent, in an .action of covenant. Fitchburg Cotton Manuf. Corp. v. Melven, 15 Mass. R. 268.

As to the quarter’s rent due by covenant in advance, the defendant had the whole day to make the payment in advance. But during the day, the mortgagee entered and ousted him, and this was a good excuse. The enjoyment of the land is the consideration for the payment of rent, and when the prospective enjoyment of the estate was taken away, the obligation to make the prospective payment ceased.

Plaintiff nonsuit