125 Mass. 157 | Mass. | 1878
The plaintiff, being the owner of the estate, leased the same for the term of ten years to Heyer Brothers; and they, on the same day, leased a part of the premises to the defendant for a term of five years. It is to be inferred from the subsequent agreement between the plaintiff and Heyer Brothers that other underleases were made. Before the expiration of the underlease to the defendant, Heyer Brothers assigned it to the plaintiff; who at the same time indorsed on the original lease to Heyer Brothers an agreement releasing them from rent and accepting the surrender of their lease and the premises, “ but without prejudice to the leases of parts of the premises assigned to him.” This agreement was made in consideration of the assignment to the plaintiff of the underleases by Heyer Brothers.
The intention of the parties is plain. Heyer Brothers having made underleases of parts of the premises which the plaintiff was willing to take, and desiring also to surrender the reversion in these leases to the plaintiff, which he was willing to accept, the underleases were assigned, including the defendant’s, and the surrender of the original lease accepted without prejudice to the underleases. They evidently did not intend that the «rights of the plaintiff under the assignment, or the estates of the sub-lessees, should be destroyed by the surrender, for the language of the acceptance carefully provides for both. The purpose was to put the plaintiff precisely in the position of Heyer Brothers. This intention, as expressed in the papers they have executed, will be carried out, if consistent with the rules of law, and we are of opinion that it is.
The plaintiff brings this action, as assignee of the lease, to recover upon the defendant’s covenant to pay rent; and it is well settled that when a lease is assigned without the reversion, the privity of contract is transferred, and the assignee may sue in his own name for the rent accruing after the assignment. Kendall v. Carland, 5 Cush. 74. Hunt v. Thompson, 2 Allen, 341. The only objection suggested to the plaintiff’s right to recover is the surrender of the lease of Heyer Brothers to the plaintiff; and the claim is, that the rent lue from the defendant is an incident of the reversion in Heyer Brothers, and, the reversion hav
The case is not presented, what would be the rights of Heyer Brothers against this defendant; or what would be the rights of the plaintiff, if he had not taken an assignment of the under-leases, and had accepted a surrender without qualification. The two cases of Grundin v. Carter, 99 Mass. 15, and Webb v. Russell, 3 T. R. 393, relied on in support of the proposition of th« defendant, have no application to the facts here presented.
Exceptions overruled.