Fox v. Corey , 41 Me. 81 ( 1856 )

Rice, J.

Assumpsit for use and occupation. To maintain this action the relation of landlord and tenant must subsist between the parties, founded on agreement express or implied. Taylor’s Landlord and Tenant, 294; Bancroft & ux. v. Wardwell, 13 Johns. 491.

On the 18th of May, 1853, the plaintiff executed a lease of the premises occupied by the defendant to Lyman & Richardson, “ To hold for the term of ten years from the first day of July, 1853,” &c.

Before that time the defendant had been tenant at will of the plaintiff, and had paid rent to him for the premises. On the first day of July, 1853, the plaintiff presented the defendant a bill for rent for the months of April and May, which was paid, and informed defendant that he had leased the premises to Lyman & Richardson, who would collect the rent from June 1st.

As a lease for years is a mere chattel, it may be made to commence either presently, or at a future period, at a day to come, or at Michaelmas next, or at three or ten years after, or at the happening of a certain event in the future. Taylor’s Landlord & Tenant, 33; Woodfall’s Landlord & Tenant, 71.

The term of Lyman & Richardson commenced on the first day of July, 1853. The relation of landlord and tenant subsisted between the plaintiff and defendant until that time, but not afterwards. The fact that the rent from the first of June was to be paid to, or was to go to the benefit of Lyman & Richardson, by an arrangement between them and the plaintiff, did not affect the legal liability of defendant to pay to the plaintiff until he ceased to be tenant of the plaintiff.

In England, since the statute of 4 Anne, c. 16, § § 9 and. 10, if the lessor sells or transfers his legal estate and interest in the demised premises to a third party, and the lessee receives notice of the transfer, and is required to pay his rent to the transferee, and refuses, he is liable to an action for use and occupation, at the suit of the latter, though he has not attorned to him. Lumby & al. v. Hodgdon, 16 East, 104; Birch v. Wright, 1 T. R., 383; Rennie v. Robinson, 7 Moore, 531, (1 Bing. 147); Addison on Contracts, 710. Whether this same rule prevails in this State, it is not necessary for us now to determine.

The defendant must be defaulted, and judgment entered for the amount of rent accruing during the month of June, as per agreement.

Tenney, C. J., and Cutting, Hathaway and Goodenow, J. J., concurred.