Landlord and Tenant. Mortgage, Of real estate. Receiver. Assignment. Practice, Civil, Amendment. Supreme Judicial Court.
The term of a lease in writing of an apartment in a building was described as follows: "One year from the first day of September one thousand nine hundred and thirteen, . . . 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." Held, that the lease could be terminated only by a notice given in accordance with its terms or by operation of law.
A mortgage, in the usual form, of real estate which is subject to a lease operates as an assignment of the lease.
Where the mortgagee of real estate which is subject to a lease enters and takes possession of the property for a breach of condition and gives notice to the lessee, he is entitled to all rent thereafter accruing and the lease remains in full force and effect until terminated in accordance with its terms or by operation of law.
Where a receiver is appointed to take possession of real estate that is subject to a lease, and a mortgagee of the property, who previously on a breach of condition had taken possession of it subject to the lease, surrenders the property to the receiver, this does not operate as an assignment of the lease to the receiver, and in suing on a covenant of the lease for accrued rent the receiver must sue in the name of the lessor.
Where an action on a covenant in a lease to pay rent was brought by a receiver in his name as receiver, and it was held that the defendant was liable on the covenant to the lessor whose property was in the hands of the receiver but it was plain that the receiver was not an assignee of the lease, this court under St. 1913, c. 716, § 3, gave the plaintiff leave to amend by substituting the name of the lessor as plaintiff and ordered that, upon the filing of the amendment, a finding for the plaintiff should be affirmed.
BRALEY, J.
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 matter of law cannot recover, is also disposed of by what has been said, except as to the defendant's contention that the action cannot be maintained by the receiver in his own name.
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.