Ratner v. Hogan

Jan 29, 1925
Reporters:
, ,
Before:
Pierce
Pierce, J.

This is an action under G. L. c. 239, § 1, by an alleged landlord, to recover possession of certain premises in Cambridge in the possession of the defendant. The plaintiffs claim title to the premises under a deed dated July 16, 1923, given by Gertrude L. Pyle in her capacity as administratrix of the estate of Reginald T. Pyle, under a license of the Probate Court of the county of Suffolk* dated July 3, 1923. Within twenty days after the entry of the decree of the Probate Court authorizing the sale of the *165premises, on July 21, 1923, one Mary C. Hogan, claiming to be a creditor of the deceased Reginald T. Pyle, as also “ a joint owner in common” of the premises licensed to be sold as of the estate of Reginald T. Pyle, filed in the Probate Court a notice of an appeal to the Supreme Judicial Court. The appeal was “ discharged without prejudice ” by the full court on November 19, 1923. No action in the Probate Court has since been taken on the petition for a license to sell the premises for the payment of debts and charges of administration. The appeal stayed the decree granting the license, G. L. c. 215, § 22, and all action under it is void unless the decree be affirmed. G. L. c. 215, § 29. Stone v. Duffy, 219 Mass. 178. It follows that the deed of the administratrix to the plaintiffs, dated July 16, 1923, is invalid, and, upon the facts disclosed in the record, it further follows that the plaintiffs by reason of the deed have no title or right to possession in the premises occupied by the defendant and his wife. Daley v. Francis, 153 Mass. 8.

To recover the possession of real estate under the provisions of G. L. c. 239, § 1, it is essential that there should be proof of the relation of lessor and lessee, or of landlord and tenant, between the plaintiff and defendant or between the occupant and a person through whom or under whom the plaintiff claims; and that the tenancy previously subsisting had been terminated. Hildreth v. Conant, 10 Met. 298, 302. Howard v. Merriam, 5 Cush. 563, 567, 583, 584. Marsters v. Cling, 163 Mass. 477. In the case at bar there is no evidence that such relation ever existed between the intestate, Reginald T. Pyle, and the defendant or his wife. When this action was brought the plaintiffs therefore were required to prove by a contract express or implied that such a relation existed between themselves and the defendant.

The evidence at the trial, offered to establish the indispensable fact of a tenancy between the plaintiffs and the defendant, in substance is that the husband of one of the plaintiffs on July 16,1923, demanded of the wife of the defendant, in his absence, and received of her $32 as one month’s rent of the premises and gave her a receipt reading as follows:

*166“ July 13, 1923..

Received of Mrs. Hogan thirty ($32) for rent up to

Aug. 13th, 1923, in 326 Concord Avenue, Cambridge.

By L. Ratner

Kindly vacate flat by Aug. 13, 1923.”

Subject to the exception of the defendant, the husband, L. Ratner, testified concerning the payment of the money and the giving of the receipt as follows: “ A. When I came over there to collect the rent, it was the sixteenth of July, nineteen twenty-three, and I came over and 1 met there Mrs. Hogan, and she gives me the money, thirty-two dollars, which I bring her the receipt, I tell her I bought this property and want to have it myself as soon as you move, even if you move out before the thirteenth then I will give you back as much as it is as you move out ahead of time, she said, ‘ Mr. Ratner, yes, as soon as I find a flat I will move out.’ ■— Q. That was the entire conversation at that time? A. That is all.”

August 8, 1923, the defendant notified the plaintiff Dora Ratner, by letter, in substance that the premises in question were the property of his wife, and warned the plaintiff “ to refrain from trespassing on the same.” Other than may be inferred from the fact that the defendant was the husband of Mrs. Hogan, there is no evidence that he had knowledge that Mrs. Hogan paid any money as rent to the husband of one of the plaintiffs. And there is no evidence that, in making the payment she did make, she purported to act as agent for the defendant. In these circumstances it properly might have been ruled that there was evidence for the jury of a tenancy between Mrs. Hogan and the plaintiffs, beginning July 16,1923. Twichell v. McNabb, 172 Mass. 329. Rogers v. Coy, 164 Mass. 391. Jones v. Donnelly, 221 Mass. 213. But there was no sufficient evidence of a tenancy between the plaintiffs and the defendant to warrant the taking of the case from the jury and directing a verdict for the plaintiffs.

Exceptions sustained.