McNeil v. Ames

| Mass. | Sep 1, 1876

Morton, J.

The only ground upon which the plaintiff can maintain an action, either at law or in equity, is that at the time of the levy of the execution in favor of the Lancaster National Bank, Samuel T. Ames.held terms for years or leasehold estates in the premises in controversy, which were duly seized and sold under said execution. Assuming this to be so, the plaintiff stands in the position of an assignee in law of the terms for years, with substantially the same rights as if they had been voluntarily assigned to him by Ames. His remedy at law to enforce his rights as such assignee is plain, adequate and complete. He can compel the under-lessees to pay the rent agreed to him, and can enforce the performance of the covenants of the lessor in her leases. Howland v. Coffin, 9 Pick. 52. Shelton v. Codman, 3 Cush. 318. Patten v. Deshon, 1 Gray, 325. Hunt v. Thompson, 2 Allen, 341.

If then we assume, as contended by the plaintiff, that the deeds from Ames to Kendall & Barrows and to Bambauer operated as under-leases and not as assignments, the plaintiff has a complete remedy at law against the under-lessees. The fact that Ames has made other sub-leases and an assignment to his son since the plaintiff’s title accrued, does not affect the question. If the plaintiff’s claim is well founded, such sub -leases and assignment are null and void, and they cannot embarrass the plaintiff in the prosecution of his legal remedies. They do not constitute a cloud upon his title so as to give the court jurisdiction in equity upon that ground. Commonwealth v. Smith, 10 Allen, 448. Nickerson v. Loud, 115 Mass. 94" court="Mass." date_filed="1874-04-09" href="https://app.midpage.ai/document/nickerson-v-loud-6417663?utm_source=webapp" opinion_id="6417663">115 Mass. 94. Pratt v. Pond, 5 Allen, 59. Clouston v. Shearer, 99 Mass. 209" court="Mass." date_filed="1868-03-15" href="https://app.midpage.ai/document/clouston-v-shearer-6415324?utm_source=webapp" opinion_id="6415324">99 Mass. 209. Nor will the court entertain jurisdiction in equity of the case upon the ground that Ames refuses to deliver the counterparts in his possession of the leases from Harris to him, and of his under-lease to Kendall & Barrows. The bill avers that these leases are recorded, and copies are annexed to the bill. The deeds themselves are not necessary as evidence of the plaintiff’s- title, and the retention by Ames of his counterparts cannot defeat or impair the plaintiff’s remedies at law.

The plaintiff contends that the court has jurisdiction, because this is a case in which “ there are more than two parties having distinct rights or interests which cannot be justly and definitely decided and adjusted in one action at the common law.” Gen. Sts. c. 113, § 2, cl. 6. But the fact that the plaintiff and Ames both claim the rent of the tenant does not give either of them the right to maintain a suit in equity. It may be that the tenant could maintain a bill in equity in the nature of a bill of inter-pleader. A judgment against him at the suit of the plaintiff or of Ames might not protect him against the claim of the other, and therefore his remedy at law might be inadequate. But the plaintiff’s rights are fully protected by a suit at law. A judgment in his favor for the rent would be conclusive, and would afford him the same relief that he can obtain by a suit in equity.

We are of opinion upon the whole case that the plaintiff’s bill states a case in which he has a plain, adequate and complete remedy at law. As, therefore, we have no jurisdiction of the case, we have not considered the question whether the under-leases by Ames operated as an assignment of all his estate or interest in the premises leased to him.

Demurrer sustained, and bill dismissed.