Stone v. Patterson , 36 Mass. 476 ( 1838 )

Per Curiam.

The payment of rent in advance was a valid payment and a good discharge pro tanto from the claim of the lessor to whom payment was made, and is a good bar to the claim of the plaintiffs, his assignees. The case of Farley v. Thompson, 15 Mass. R. 18, is decisive on this part of the case. It has been argued that the assignees ought to have been notified ; and no doubt this would have been necessary, if the rule of law in respect to negotiable securities applied to the assignments of leases ; but these assignments are governed by the well known rule, of caveat emptor.

In respect to the other portion of the rent claimed, it is quite clear that the defendant was bound to pay it to French, •who entered under a mortgage made previously to the lease and ordered the rent to be paid to him. It is objected tho. this entry was not a good entry for condition broken, because no notice was given to the' plaintiffs. But it is immaterial whether it was a good entry for the purpose of foreclosure or not; for the entry was lawful, and the mortgagee thereby became possessed of the premises, and might have expelled the defendant if he had not agreed to-pay rent to him. This was equivalent to an actual- and complete ouster or eviction, as was decided in Fitchburg Manuf. Corp. v. Melven, 15 Mass. R. 268, and in Smith v. Shepard, 15 Pick. 147. Such an ouster or eviction by a person having a paramount title is a good de fence to an action for rent by the lessor or those claiming under him.

Plaintiffs nonsuit.