224 Mass. 288 | Mass. | 1916
The lease having described the term as “One year from the first day of September one thousand nine hundred and thirteen to August 31st, one thousand nine hundred and fourteen and thereafter from year to year until one of the parties hereto shall, on or before the first day of July in any year, give to the other party written notice of his or her intention 'to terminate this lease on the last day of the following August, in which case the term hereby created shall terminate in accordance with such notice,” it could not be ended by either the lessor or the lessee except in accordance with these provisions or by operation of law.
The subsequent mortgage of the leased premises undoubtedly operated as an assignment of the lease. Burden v. Thayer, 3 Met. 76. Russell v. Allen, 2 Allen, 42, 43. And the mortgagee, having entered and having given notice to the tenant, thereafter was entitled to all accruing rent. Mirick v. Hoppin, 118 Mass. 582, 587. Adams v. Bigelow, 128 Mass. 365, 366. But, as the mortgagee never terminated the lease, it remained in full force and effect at the time possession of the premises was surrendered to the plaintiff as receiver of the lessor. The defendant having continued in occupation and there being no evidence that the required notice has been given, the fourth request was refused properly.
The first request, that upon all the evidence the plaintiff as
It is plain that he is not an assignee of the lease and the action should have been brought in the name of the lessor. Wilson v. Welch, 157 Mass. 77, 80, 81.
The merits having however been fully determined, the plaintiff is given leave to amend; and upon the filing of the amendment the order dismissing the report is affirmed. St. 1913, c. 716, § 3.
So ordered:
