Whitney v. Dart

Devens, J. As there was no evidence of any forcible entry or detainer, if the present proceeding under the Gen. Sts. c. 137, is to be maintained, it must be upon the ground that the defendant occupied the relation of tenant to the plaintiff’s grantor, or that such grantor was in privity of estate with the lessor of the defendant. Howard v. Merriam, 5 Cush. 563. The report finds that Miranda Dart had in these premises an estate for life while the remainder was owned by the plaintiff’s grantor, Elizabeth A. Dart; that the defendant occupied the premises with Miranda during her life, and since her decease has insisted on keeping possession of them. Ho tenancy under the plaintiff’s grantor is shown, and there is no possession to be restored by the defendant, as the possession which he retains was acquired under one who held a different and distinct estate in the land. While the process is not limited to the lessor alone, but may be maintained by an alienee to whom the lessor has since the demise conveyed his estate, it proceeds always upon the ground that the defendant has obtained his possession from some one with whom the plaintiff is in privity. The estates of Miranda and Elizabeth A. Dart were independent, although both were created originally by the deed of Miranda, and the. posses, sion which the defendant obtained under Miranda gave nb right [155] to the plaintiff or his grantor to deal with him in the summary mode provided in favor of a landlord against a tenant wrongfully holding over. We are therefore of opinion that the learned judge erred in directing a verdict for the plaintiff, and by the terms of the report there must be . Judgment for the defendant.