Weiss v. Levy

Morton, J. It is .expressly found that, on or about January 14,1895, the plaintiff surrendered all his interest in the premises to Max Levy, the husband of the defendant Augusta, the owner of the premises, and delivered up the keys to him, and that Max soon after let the premises to the defendant Greenbaum, who entered into occupation and has since continued to occupy as tenant at will. It is also expressly found that Max Levy “had the entire charge and management of his wife’s interest in the premises, and full authority to act for her in reference thereto,” from November 4, 1891, to February 2,1895; and the surren [293] der must be held to have been made to him and to have been accepted by him for and on behalf of his wife. If the plaintiff had any interest in the premises under the lease to Herman Weiss, we think that it was extinguished by the surrender. It is not necessary to consider what was the precise nature of the plaintiff’s interest. There is nothing in the other facts found by the presiding justice to show that his finding that the plaintiff surrendered his interest was erroneous. Talbot v. Whipple, 14 Allen, 177. Amory v. Kannoffsky, 117 Mass. 351. The circumstances attending the payment of the January rent to the defendant Augusta are not stated, and we cannot infer from that fact alone that the lease to Herman Weiss was thereby recognized by the parties as an existing lease. The plaintiff’s case must rest, therefore, on the lease made to him on January 30,1895. If that was a valid lease, it terminated Greenbaum’s tenancy at will, and he became a tenant at sufferance, and the plaintiff could maintain an action against him under the landlord and tenant process to recover possession. Hollis v. Pool, 3 Met. 350. Hildreth v. Conant, 10 Met. 298. Hooton v. Holt, 139 Mass. 54. The validity of the lease could be fully tried in those proceedings. Hilbourn v. Fogg, 99 Mass. 11. Lamson v. Clarkson, 113 Mass. 348. Emmes v. Feeley, 132 Mass. 346. The plaintiff has therefore a plain, adequate, and complete remedy at law, and the case does not come within the equitable jurisdiction of this court. This view of the case renders" it unnecessary to consider other questions that have been raised. We think that the entry should be bill dismissed, and it is So ordered.