| Mass. | Sep 15, 1845
This is an action of assumpsit to recover the rent of a farm, of which the plaintiffs were mortgagees by a title paramount to that of Robinson, who leased it to the defendant ; and it is understood that the action is brought in the name of the mortgagees in behalf of others, who have acquired their interest in the estate.
It does not appear upon the facts, as set forth in the bill of exceptions, at what periods the rent was payable by the defendant to Robinson, whether quarterly, semi-annually, or at different times, nor whether the learned judge was guided in his opinion by the time when the rent accrued; but it is evident that he considered that the right to all rent remaining unpaid at the time when possession was taken, and which accrued during the existence of the mortgage, passed with the possession taken, as incident thereto, and consequently that the plaintiffs were entitled to recover, notwithstanding the existence of the lease.
When a mortgage is made of an estate subsequent to an existing lease, the rents and profits pass as incident to the reversion ; and if, at the time possession is taken, there is rent accruing upon a quarter not expired, the rent passes as incident, and the mortgagee, by force of the possession taken, may maintain an action for the same. But the rent which has accrued prior to the entry does not pass as incident, it being but a chose in action. See Fitchburg Cotton Manuf. Corp. v. Melven, 15 Mass. 268" court="Mass." date_filed="1818-09-15" href="https://app.midpage.ai/document/fitchburg-cotton-manufactory-corp-v-melven-6404758?utm_source=webapp" opinion_id="6404758">15 Mass. 268, and Burden v. Thayer, 3 Met. 76.
In the present case, the mortgagees entered under a paramount title; there was no privity between them and the lessee, whom they may treat as a disseizor or tenant, at their election; and they took the estate, neither fettered nor affected by any agreements touching it, made subsequent
A new trial is ordered at the bar of this court.