219 Mass. 151 | Mass. | 1914
On September 12, 1911, the defendant, in consequence of her failure to pay the rent which in the lease given to her by John J. Dorey (hereinafter called the lessor) she had agreed to pay, had committed a breach of her covenant in that lease. Thereupon the lessor entered upon the premises for that breach by her. The effect of this entry, unless some one or more of the
1. She cannot defend against this action on the ground that she has the right to possession under her mortgage by reason of the fact that there was a breach of the condition thereof. The mortgage was not put in evidence, and we do not know its terms. But this defense was not set up in the answer or the amended answer. The only reference there made to the mortgage is by way of inducement to her allegation of a right to set off the amounts due to her under the mortgage against the rent due from her under the lease. But her right to the possession under the mortgage, if it existed, was an independent right in avoidance of the lessor’s rights under the lease. She took her lease from the lessor, and thereby admitted his title and right to possession, except as that right had been conveyed to her. If she relied upon anything that subsequently had occurred to avoid his title, she must aver and prove it. Accordingly, this defense was not open to her, and we need not determine whether in any event it would have been of avail, upon the facts here presented.
2. The judge was not bound to rule that she could set off the amounts due to her under the mortgage and the note secured thereby against the sums due for rent, and so to find that she had not broken her covenant to pay rent. Morrill v. De la Granja, 99 Mass. 383. Borden v. Sackett, 113 Mass. 214. There was no agreement for such a set-off, as in Fillebrown v. Hoar, 124 Mass. 580, and McGuinness v. Kyle, 208 Mass. 443, 445. Nor did the findings of the master in the equity suit require such a ruling as matter of law. Those findings fell far short of what has been contended for, and we need not consider how far they were binding upon this plaintiff.
3. It is immaterial whether there was or was not on May 11, 1911, a breach by the defendant of the covenants of her lease. The lessor’s entry was made four months later, for a breach then existing.
4. The attachments made by trustee process were immaterial.
5. The lessor’s assignment to Bryne and the later agreement between the lessor and Bryne did not deprive the lessor of his right to make the entry. The assignment was given merely to secure an indebtedness to Bryne. Whether or not the lessor’s right of entry was suspended thereby is not material. The effect of the later agreement was at least to revest that right in the lessor.
6. There was no evidence, the judge at the trial did not know, and We cannot know, whether the defendant at the trial was willing to pay the amount found due by the auditor. That she asked for a ruling based upon such assumed fact is certainly no proof of its existence. The ruling rightly was refused.
7. The payment of $1,078.83, made by the defendant, is not material. See Gordon v. Richardson, 185 Mass. 492. When it was made the right of the plaintiff had accrued, as she knew, ’and he neither waived nor abandoned his rights. Indeed, it hardly has been contended that this payment was any bar to the maintenance of the action. The right of a tenant, under R. L. c. 129, § 11, to pay or tender the amount due for rent has of course no bearing here.
We have, considered all the questions which have been argued by the defendant, and need not discuss the requests for rulings in detail. We see no reason for saying that any of them should have been given.
Exceptions overruled.
