O'Connor v. Daily

| Mass. | Jan 15, 1872

Morton, J.

.The lease from the defendant to Moley and McShane, on which the plaintiff sues as assignee, contains no express covenant for quiet enjoyment. The plaintiff’s claim is that, by force of the words “ lease, demise and let,” there is an implied covenant for quiet enjoyment, which has been broken by his eviction by the purchaser of the premises. If it be true that these words, uncontrolled and unqualified by any other provisions in the lease, would import such a covenant, they cannot do so when the lease contains other stipulations which show a different intent of the parties.

In the case at bar, the defendant’s only estate in the premises was a term for years, under a lease which contained the provision that in case the lessors shall sell the said land before the expiration of this lease they may terminate the same by giving the lessee ninety days’ notice in writing of such sale.” The lease in suit contains the stipulation that “ lessees may make all necessary alterations for carrying on their business, but for no other purpose, and in case the land is sold the lessees may carry away their improvements, otherwise said improvements to be left on the premises at the expiration of the lease, as the property of the lessor.”

If; seems clear that the parties to this lease contemplated a possible sale of the premises by the original lessors, under the right reserved in their lease, and a consequent termination of the tenancy. Provision is made that in such event the lessees shall be compensated by having the right to carry away their im provements which otherwise would be the property of the lessor. Neither party could have understood that the lessor intended to warrant the quiet enjoyment of the leased premises till the end of the term. It would be against the intention of the parties, manifested in the lease, to imply a covenant which amounts to a warranty against an eviction by a purchaser of the land from the owners, who under the terms of the original lease have duly terminated the tenancy.

It follows that the plaintiff, upon the facts stated in the report, has no cause of action.

Judgment for the defendant