Johnson v. Stone

Braley, J. By the death of the lessee dining the term, the leasehold became personal assets of his estate, and the restrictive covenant not to lease, nor underlet, nor permit any other person or persons to occupy or improve the premises but with the approbation of the lessors thereto in writing having been first obtained, while binding the lessee, did not prevent the leasehold interest from passing to the defendant as the administrator of his estate. Smith v. Putnam, 3 Pick. 221, 223. Bemis v. Wilder, 100 Mass. 446. Squire v. Learned, 196 Mass. 134, 136. But the defendant’s offer of proof, that he obtained a purchaser ready to accept an assignment, but who afterwards withdrew because the plaintiffs refused to recognize him as a tenant, affords, no defense, and was rightly excluded. If the sale had been perfected by an assignment, the defendant still would have been liable by privity of contract under the intestate’s covenant to pay the rent for the amount shown by the stipulations of the parties, although the assignee also might have been bound through 221 privity of estate. Way v. Reed, 6 Allen, 364, 368, 369. Hovey v. Newton, 11 Pick. 421. Bradford v. Patten, 108 Mass. 153. Greenleaf v. Allen, 127 Mass. 248. Deane v. Caldwell, 127 Mass. 242. Donaldson v. Strong, 195 Mass. 429, 431, and cases cited. Nor would the acceptance of rent from the assignee bar an action against the defendant for rent subsequently accruing and remaining unpaid. Way v. Reed, 6 Allen, 364, 368, 369. Greenleaf v. Allen, 127 Mass. 248. The defendant could be relieved only by a surrender of the remainder of the term unconditionally accepted by the lessors, and in -the absence of such evidence the judge properly ordered a verdict for the plaintiffs. Deane v. Caldwell, 127 Mass. 242. Exceptions overruled.