152 Mass. 440 | Mass. | 1890
There being no evidence of a forcible entry and detainer, it was necessary for the plaintiff to show, in the first place, that the defendant was “a person holding under such lessee” of the premises, within the meaning of the Pub. Sts. c. 175, § 1. It has recently been held that there must have been an actual demise of the premises, and that one who is merely in possession under a contract of purchase is not subject to the summary statutory process for ejection. Kiernan v. Linnehan, 151 Mass. 543.
In the present case, the firm consisting of Hart and Bouton, under the name of the “ Holyoke File Company,” appear to have occupied the premises for several months as tenants at will to the owner, by the assent of Hart, who held an undisclosed lease from the owner. The bills for rent were made out to the firm, and were paid with partnership funds; and the firm, that
Under this state of things, and before the expiration of the lease according to its terms, the partnership ended. Hart’s interest in the property of the firm was sold by him to Bouton, and possession was formally delivered. This, as we construe the agreed statement of facts, carried with it the actual possession of the premises. Now of course a tenant at will has no legal right to transfer the premises to another person. The relation of such a tenant to his landlord is merely personal, and a formal transfer by him gives no rights to the assignee, and the owner of the premises may treat the assignee as a trespasser; Coughlin v. Gray, 131 Mass. 56 ; or he may maintain the statutory summary process to recover possession. King v. Lawson, 98 Mass. 309. Clark v. Wheelock, 99 Mass. 14. In the present case, there was no formal underletting of the premises, or conveyance thereof of any kind, written or oral, by the firm, to Bouton, but this makes no essential difference. He did not enter the premises forcibly, or as an intentional trespasser, but as the successor of the firm, and we think he must be regarded as a person who held under the firm.
On the same day when he took possession of the property and premises, Bouton transferred the property to his wife, who at once filed a married woman’s certificate, and appointed her husband her agent to conduct the business, which was continued at the same place. Here again, as we construe the agreed statement of facts, she took the actual possession of the premises with the property, and although her husband had no legal right to give her the possession, and although she gained no possession which she could assert against the owner, yet for the time being she was in the actual possession of .the premises, and must be regarded as a person who held under her husband.
If, then, the defendant is a person against whom this process may be maintained, there can be no doubt that the plaintiff is the proper person to bring it, he being, in the language of the statute, “ the person entitled to the premises.” As between the plaintiff and the owner of the premises, it appears that the lease was treated as in force by the payment of rent by the plaintiff. It is entirely plain that the execution of a subsequent lease would enable the lessee to maintain this process. Casey v. King, 98 Mass. 503. Clark v. Wheelock, 99 Mass. 14. But it makes no difference to the defendant that the lease was executed previously. The only question in which she is interested is, Who is entitled to the premises? The statute gives to the person entitled to the premises the right to maintain this process for the recovery of possession. When the firm ceased to exist, and gave up possession of the premises, the plaintiff became legally entitled to the possession under his lease, unless something had happened as between him and the owner to cut him off from that right. Nothing of the kind appears to have happened; on the other hand, the plaintiff paid the rent for the preceding month, before bringing this process. This payment is to be-referred to the covenant of the lease, and shows that the lease was then treated as in force by the owner and the plaintiff, there being no fact and no suggestion to the contrary.
The notice to quit, three days before the process was brought, was sufficient. Judgment for the plaintiff affirmed.