Chamberlain v. Perry

138 Mass. 546 | Mass. | 1885

Field, J.

We assume that both levies w;ere void for the reason given in Cochran v. Goodell, 131 Mass. 464. From June 29, 1879, the time Plimpton paid the mortgages, up to May 19, 1883, when a decree was obtained directing him to discharge the mortgages, he was the equitable assignee of both mortgages, and lawfully in possession as such, receiving the rents and profits. The fact that he first entered into possession claiming as owner under the levies, even if the claim proved to be unfounded, does not preclude him from setting up his title under the mortgages, when acquired, as justifying his possession; and he has accounted to these plaintiffs in their suit in equity for rents and profits received as mortgagee in possession from a time long anterior to the bringing of this action.

On November 19, 1881, the date of the writ in this action, these plaintiffs, or one of them, owned the equity of redemption of the premises subject to these two mortgages, but they had no right to the possession as against Plimpton, and were not in actual possession. On February 15, 1879, this defendant took a written lease of the premises for one year from Goodell, and • entered into possession under it; before the year expired, on February 1,1880, the defendant took a written lease of Plimpton, who claimed to be the owner, and he has been in possession since that time, claiming to be the tenant of Plimpton. When this action was brought, which was nearly two years after the expiration of the lease from G-oodell, the defendant was not a tenant of the plaintiffs, or either of them, but he was a tenant of Plimpton, who had the possession in fact, and rightfully as against these plaintiffs, and so had this defendant as his tenant. The doctrine that a tenant, so long as he continues in possession under a lease, cannot deny the lessor’s title at the time of making the lease, has no application to the case.

Judgment for the defendant.