Winnisimmet Trust, Inc. v. Libby , 234 Mass. 407 ( 1920 )

De Courcy, J.

This action was brought in the Municipal Court of the City of Boston to recover rent from March 2, 1917, to March 2, 1918, inclusive, reserved under a lease to the defendants from the plaintiff’s assignor, James S. Duval. The Appellate Division ordered judgment for the plaintiff in the sum of $100. Both parties appealed. The defendants contended that the conveyance of the real estate from Duval to one Green, on October 16, 1916, cut off the rights of the plaintiff to the rent subsequently accruing. Since the entry of this appeal, it has been decided by this court, in an earlier case pending between these same parties,- that the assignment to the plaintiff was effectuai as against the subsequent purchaser of the lessor’s reversion. Winnisimmet Trust, Inc. v. Libby, 232 Mass. 491. The defendants now concede that this settles the question raised by them as to the plaintiff’s right to recover the rent for March and April, 1917, amounting to $100; and they waive their appeal.

As to the plaintiff’s appeal: On March 2, 1916, when the lease was executed, but prior thereto, Duval mortgaged the property to Rufina M. Jordan by a power of sale mortgage in the usual form. At the time of its delivery the mortgagee signed the following clause written in the lease: “I hereby assent to the foregoing lease, [signed] Rufina M. Jordan, mortgagee.” On May 31, 1917, the mortgagee made an entry on the premises for breach of condition; on July 10, 1917, the premises were sold under the power of sale to a third person, and immediately reconveyed to said Rufina M. Jordan, who still holds the title. The defendants have continued to occupy the property without interruption. The only issue now argued by the parties is, whether the defendants are liable to the plaintiff for the rent due in advance on and after May 2, 1917, since said entry to foreclose the mortgage. We assume that the parties intended to raise this question by their requests in the Municipal Court.

It was in effect decided by the earlier case between these parties that the right to recover future instalments of rent as they should become due under the covenant of the defendants was an incorporeal interest in land, which the plaintiff holds in its own right by assignment, and for which it may sue in its own name. The mortgagee could not, as such, demand the rent reserved by the lease, as there was no privity between her and the lessees. The tenants cannot avoid paying rent to the assignee of their original landlord unless and until the mortgagee in possession notifies them to pay rent to her, or threatens to evict them, or they have agreed to attorn to her in recognition of her paramount title. Knowles v. Maynard, 13 Met. 352. Adams v. Bigelow, 128 Mass. 365. Holmes v. Turner’s Falls Co. 142 Mass. 590. Tilden v. Greenwood, 149 Mass. 567. So far as this record discloses, Mrs. Jordan has never demanded rent of the defendants. They have remained in undisputed and undisturbed occupancy of the premises under their lease. They have shown no reason why they should not pay rent to the plaintiff, in compliance with their covenant.

We have reached this conclusion apart from the “assent” which the mortgagee signed on the lease. Accordingly it is unnecessary to determine whether that assent should be construed any broader than as an agreement not to disturb the occupancy of the lessees, even in the event of foreclosure, so long as they shall perform the covenants of the lease. She is not a party to these proceedings. Regardless of the question how far her right (under a mortgage antedating the lease) to take possession and evict the lessees has been affected by that “assent,” on the facts revealed by this meagre record the defendants are liable on the covenants in the lease .under which they have remained in undisturbed possession.

Accordingly judgment for the plaintiff must be ordered in the sum of $650 instead of $100 as ordered by the Appellate Division. Patten v. Deshon, 1 Gray, 325. Streeter v. Ilsley, 147 Mass. 141. Elmore v. Symonds, 183 Mass. 321.

So ordered.