118 Mass. 118 | Mass. | 1875
The only questions presented by this bill of exceptions are as to the refusal of the court to give the three instructions requested by the defendant.
1. The court properly declined to rule that the plaintiffs forfeited the lease by refusing to pay the rent payable January 1, 1873. The lease contains the usual condition, that if the lessees neglect to perform their covenants, the lessor may, while such neglect continues, enter upon the premises and expel the lessees, and that upon such entry the term shall cease. Under this the lease may be terminated upon the refusal to pay rent, at the election of the lessor; but it is clear that unless he enters while the default continues, the lease remains in force. The instructions given at the trial upon this point were correct. Guild v. Richards, 16 Gray, 309. Hubbard v. Hubbard, 97 Mass. 188. Chapman v. Harney, 100 Mass. 353.
2. The court also properly refused to rule that the lease was terminated, at the election of the lessor, by the St. of 1872, <?. 371. This statute is in the nature of a police regulation which does not purport to affect existing leases or contracts, and the Legislature could not pass a law annulling or impairing the obligation of such leases or contracts.
3. The defendant requested the court to rule, that the destruction of the premises by fire terminated the lease, and that the plaintiffs had no right to the new store by virtue of their
The general rule is well settled that the grant of a house, store, mill or other building carries with it the land under the building. Blake v. Clark, 6 Greenl. 436. Forbush v. Lombard, 13 Met. 109. Oliver v. Dickinson, 100 Mass. 114.
A case may be taken out of this general rule if the lease or other grant shows that it was the intention of the parties that the building only or a room in it should pass, and not the land ; but there is nothing in this lease to indicate that such was the intention of the parties to it. The lease is of the whole building. The plain intent of the clause requiring the lessees to pay all taxes assessed upon the premises is that they are to pay taxes upon the whole estate including the land. The provision that if the premises are destroyed by fire the rent shall be suspended until the premises are put in proper condition for use, by the lessor,, implies that the lease is to continue though the building should be destroyed.
We are of opinion that by this lease the plaintiffs took an estate for years in the land, and therefore that it does not fall within the rule, recognized in Stockwell v. Hunter, 11 Met. 448, that where the premises leased are destroyed, the lessee’s interest is thereby terminated.
As the plaintiffs had an estate in the land for a term of years, though the lessor was not bound to rebuild, yet any building which he might erect would become a part of the realty and enure to the benefit of the plaintiffs during their term. It follows that the court properly refused the instruction requested by the defendant. Exceptions overruled.
