| Mass. | Sep 27, 1839
delivered the opinion of the Court. This is a bill in equity, by the lessee for years of certain real estate, to redeem the same from the incumbrance of a mortgage made by his lessor to John Bowdoin, one of the defendants, and by him assigned to the other two defendants.
The defendants demur to the bill; and the first question raised by the defendants’ counsel is, whether a tenant for years has a right to redeem a mortgage made by his lessor. And we think it very clear, that he has such a right. It was so laid down by Lord Mansfield in Keech v. Hall, 1 Doug. 21, as an undisputed right. 2 Cruise’s Dig. tit. 15, c. 2, § 6, 7 But if this right were doubtful, it is now rendered certain by
It was then argued by the defendant’s counse., that the instrument under which the plaintiff claims is not to be construed as a lease, but as an agreement for a lease ; and they rely on Jackson v. Delacroix, 2 Wend., 433" court="N.Y. Sup. Ct." date_filed="1829-05-15" href="https://app.midpage.ai/document/jackson-v-delacroix-5513092?utm_source=webapp" opinion_id="5513092">2 Wendell, 433. In that case it was decided, and, as we think, correctly, that whether an instrument be a lease, or only an agreement for a lease, depends on the intention of the parties to be collected from the whole instrument. And, accordingly, it was held, that the instrument in that case, although it contained words of present demise, was to be construed as an agreement for a lease, such appearing to the court to have been the intention of the parties. But there is a material distinction between that case and the present. The instrument in that case contained an agreement for a future lease, after certain alterations and improvements of the building should have been made ; and by the habendum in the same instrument, the term was not to commence until after the completion of the alterations and improvements. These alterations and improvements bad never been made, but the old building had been taken down and a new building erected, and the lessee had never entéred into the premises demised or intended to be demised. None of these circumstances, from which the intention of the parties was inferred in that case, exist in the present. There is no agreement for a lease at a future day. The term is to commence in futuro at a day certain. There are express and apt words of a present demise, and the bill avers, that the plaintiff entered in pursuance of the lease, and has ever since continued in the possession of the premises. Under these circumstances there can be no doubt, we think, that the parties intended, what the language of the instrument clearly imports, namely, a present demise to commence in futuro. Considering this as a valid lease, we think it clear that upon the facts stated in the bill the plaintiff is entitled to redeem.
It is objected, that the land was not demised, but the buildings only, and that the plaintiff has only an easement in the land If this were so, still the plaintiff would be entitled to
Demurrer overruled. ,