247 Mass. 560 | Mass. | 1924
This action was brought, in the Municipal Court of the City of Boston, to recover rent from April 2, 1918, to and including November 2, 1918, reserved under a lease to the defendants from the plaintiff’s assignor, one Duval. The trial judge found for the defendants and the case was reported to the Appellate Division, which dismissed the report.
At the trial the material facts were not in dispute. The record shows that Duval, who was the owner of an estate known as the “ Dream Theatre,” on March 2, 1916, mortgaged it to Rufina M. Jordan by a power of sale mortgage in the usual form; that on the same day, but after the execution and delivery of the mortgage, he leased the estate to the defendants for the term of three years, at an annual rental of $600, payable $50 monthly in advance, and the mortgagee signed the following clause, written on the lease: “ I hereby assent to the foregoing lease.”
It further appears that upon the execution and delivery of the lease the defendants entered into possession of the premises; that on or about April 27, 1916, Duval assigned all rents (except the last three instalments falling due to him under the lease) to the plaintiff, as security for certain indebtedness then and thereafter to be contracted; that the defendants were duly notified of the assignment, on or about November 28,1916, and payment of the rent was demanded by the plaintiff; that on May 31, 1917, the mortgagee, for breach of the conditions of the mortgage, made an entry
It also appears that the "defendants have not paid rent, under the lease or otherwise, to any one since the payment of the balance of the rent due March 2, 1918. It is their contention that thereafter they were under no liability to the plaintiff, and were hable to Mrs. Jordan only for the rent due April 2, 1918.
Certain questions, previously arising under this lease between the same parties, were considered by this court in 232 Mass. 491, and in 234 Mass. 407.
"No rule of law is plainer than that a mortgagor of real estate has a right to the rents and profits, while he is allowed to remain in possession. Wilder v. Houghton, 1 Pick. 87. And when a lease is made by a mortgagor, after the mortgage, it does not bind the mortgagee, nor in any manner affect his right. There is no privity between him and the lessee, and no right in him to demand the rent reserved by the lease. ... In order to give him such right, there must at least be an entry by him, and notice to the tenants to pay rent to him, or some act equivalent thereto.” Tilden v. Greenwood, 149 Mass. 567, 569. Knowles v. Maynard, 13 Met. 352.
It remains to consider the effect of the assent of the mortgagee written upon the lease at the time it was executed and delivered. The assent did not have the same effect upon the rights of the tenants as if the lease had antedated the mortgage. Such assent is to be construed as an agreement not to take possession of the premises in the event of foreclosure so long as the tenants perform the covenants of the lease. The assent cannot properly be held as postponing for the term of the lease the mortgagee’s right to collect
It follows that the plaintiff’s requests for rulings were rightly denied.
Order dismissing report affirmed.