Kinsley v. Ames , 43 Mass. 29 ( 1840 )

Shaw, C. J.

It does not appear distinctly how this process of forcible entry and detainer, under Rev. Sts. c. 104, § 2, which must have commenced before a justice of the peace, comes before this court; but we presume it was done pursuant to the provisions of § 9, by which it is directed, that when it appears before the justice, that the title to the freehold is brought in question, tne cause shall be transferred, without trial, to the court of common pleas, and then it is open to an appeal to this court.

The question then is, whether this process lies, under the circumstances stated in the case, without notice to quit. It is clear that the sale of the mortgaged estate, being made in pursuance of a valid power given by the owner, vested in the purchaser an estate in fee, free from the original condition, and from any right of redemption ; and this estate passed by mesne conveyances to the plaintiff. The absolute right of property drew after it the right of possession, and an entry upon part, by the plaintiff, and a forcible resistance by the defendant, constituted a forcible detainer of the residue. Formerly some doubt was entertained, whether there niust not be a forcible entry as well as a forcible detainer, to lay the foundation of this process. But this is now rendered clear, by the statute, which gives this process, either when any forcible entry shall be made, or when an entry shall be made in a peaceable manner, and the possession shall be unlawfully held by force. Here it was so forcibly held, and whether it was unlawful depends on the question, whether the defendant was entitled to notice to quit.

It is obvious that the defendant was a tenant at sufferance. His original entry was lawful, but after a sale and the entry of the purchaser, he had a mere naked possession, without any right or interest whatever.

By St. 1825, c. 89, § 4, commonly called the landlord and tenant act, tenants at sufferance and tenants at will were put on the same footing in regard to notice ; and it was provided that i.uch tenancies might be terminated by either party, by three months’ notice, with some modification where the rent was payable more frequently than quarterly. But the Rev. Sts. c. 60, § 26, which provide that estates at will may be determined by three months’ notice, designedly omit tenancies at sufferance, because, as the commissioners say in their note to this section, so long as the party continues to be a mere tenant at sufferance, his estate is, and ought to be, determinable at any moment, at the pleasure of the landlord. The defendant therefore was not entitled to notice to quit. He was precisely within the provision of the statute, which gives the process when the possession of lands or tenements is unlawfully held by force.

Defendant defaulted.