Borden v. Sackett

113 Mass. 214 | Mass. | 1873

Devens, J.

It is well settled that the estate of a tenant at will is not assignable, and that if the tenant makes an actual grant of his estate, that terminates the tenancy. Cooper v. Adams, 6 Cush. 87, 90. Clark v. Wheelock, 99 Mass. 14. But the question whether the sub-letting by the plaintiff in this process, who was himself the tenant at will of James Anthony, amounted to an assignment of his interest and thereby terminated his tenancy, is not before us, as no such question was raised at the trial.

While the defendant was in occupation under his agreement with the plaintiff, the plaintiff made an assignment of all his interest in the premises to one Delos, who at the same time made an assignment thereof to a third person, and that person to the plaintiff, and the exceptions state that these conveyances were made at the same time and as a part of the same transaction. Under these circumstances, the possession of Delos was instantaneous only, he was a mere conduit for passing the title and there was nothing on this part of the case for the jury Haynes v. Jones, 5 Met. 292. Webster v. Campbell, 1 Allen 313. It is probable that this transfer was made with the intention of inducing the defendant to believe that Delos was actually entitled under the assignment to the rent, as defendant was informed by Delos of the transfer to him; but the instruction of the judge that the assignment by the plaintiff to Delos under the circumstances stated did not effect a change of title, and did not estop the plaintiff from maintaining the action, was correct, and he sufficiently guarded the rights of the defendant by adding, “ unless the jury were satisfied that the defendant was misled thereby and induced to do or omit something to his prejudice.”

By the arrangement between the plaintiff and defendant, the defendant was to pay the rent to Anthony; and it was on the ground that he had neglected to pay the rent to Anthony for some three months, and that the plaintiff had been compelled to pay the same for those months, that this process, after notice to quit for non-payment of rent, was brought; and the jury were properly instructed “ that the defendant must pay the rent either to Anthony or the plaintiff without any notice or demand by the plaintiff on the defendant.” It is the duty of the party, from whom rent is due, to pay the same without demand on the day, and his failure to do so is a neglect which, under Gen. Sts. c. 137, will enable the landlord to terminate the tenancy by fourteen days’ notice to quit. Kimball v. Rowland, 6 Gray, 224. It could not be contended that he had tendered payment to Anthony because he had offered, on each of these months, to pay the rents to one Peckham, who had previously been an agent of Anthony, and was then informed by Peckham that Anthony had not handed him the bills for these months.

Nor could the fact that the plaintiff was indebted to the defendant on another account make any difference. By the agreement the rent was to be paid to Anthony; but apart from this, as between plaintiff and defendant, such indebtedness on the part of the plaintiff would not operate as a payment of the defendant’s liability. A debtor has not paid the claim of his creditor, even if he holds a claim of an amount equal to that of his creditor, although it may be one which might be used in set-off.

Exceptions overruled.