Shattuck v. Lovejoy

Bigelow, J. Upon the facts proved at the trial, the plaintiff cannot maintain this action. During the time for which he now seeks to recover against the defendant for use and occupation, the term of years, created by the lease of the whole estate by his father, was still outstanding. So long as this lease remained in force, the plaintiff’s sole remedy for rent of the premises was either by an action on the covenant for its payment against the original lessees, or of debt against their assignees. Wall v. Hinds, 4 Gray, 266. The defendant stood in neither of these relations. He occupied a part of the demised premises under a verbal agreement with the assignees of the lessees. There was no privity of contract or of estate between him and the plaintiff. The defendant was only an undertenant of the assignees, holding that part of the estate occupied by him as tenant at will. Com. Landl. & Ten. 52, 248. The breach of covenant by the lessees, by assigning the lease, and permitting other persons to occupy the premises, without the approbation of the lessor or those having his estate in the premises, did not terminate the lease and revest the estate in the lessor or his assigns. The remedy for such breach was either by an action for damages against the lessees, or under the clause in the lease which gave the right to reenter and expel the lessees or those claiming under them, in case they committed a breach of the covenants. In the latter case, after such reentry, the lessor or his assigns would be in as of the lessor’s old estate, 206 and might claim for use and occupation of those who subse quently occupied the premises or any part of them. But until then the lease remained in full force, the term was still outstanding, and no claim could be made by the plaintiff for rent, except under the covenants in the lease, either against the lessees or their assigns. Exceptions overruled.