
    George W. Coburn & another vs. John C. Palmer.
    One occupying land under a parol lease from a tenant at will is estopped to deny his lessor’s right to recover possession of the land on a complaint under Rev. Sts. c. 104, § 4.
    A release, made after the commencement of a landlord and tenant process under Rev. Sts. c. 104, by one of two plaintiffs to the other, of all his interest in the premises sought to be recovered, is no defence to the action, if not pleaded within the time allowed for a plea in abatement, although specified in defence as soon as it comes to the knowledge of the defendant. And it seems, that such release, if duly pleaded, would not abate the action.
    Where a lessee at will is the plaintiff, in a proceeding to recover possession of the demised premises, under the Rev. Sts. c. 104, § 4, of a subtenant, and obtains a verdict, a subsequent entry of the superior landlord, and a dispossession of the plaintiff by him, are no bar to a judgment in favor of the plaintiff.
    This was a proceeding by complaint, under the Rev. St. c. 104, § 4, originally commenced before the police court of the city of Lowell, to recover possession of certain premises described in the complaint. A judgment being rendered in that court against the defendant, he appealed to the court of common pleas.
    At the trial in that court, before Byington, J., it appeared in evidence, on the part of the plaintiffs, that, being in possession of the demanded premises, they made a parol lease thereof to the defendant in July, 1848, at a rent of four dollars a month, payable monthly in advance; that the defendant entered under the lease, and had since continued in possession ; that in October following the rent due was demanded and paid; that on the 15th of November, 1848, one and a half month’s rent was in arrear and unpaid; that on the same day a notice in writing to the defendant, to quit the premises and yield possession to the plaintiffs, was duly served, and compliance therewith refused; and that this proceeding was commenced on the 21st of December following.
    The defendant offered to prove that Daniel G. Leavitt, one of the plaintiffs, had, since the commencement of this proceeding, sold all his interest in the demanded premises to the other plaintiff; that the defendant first had knowledge of this fact, since the last continuance of this action, and specified ii as a ground of defence at the then present term. This evidence was objected to, as constituting no defence and as coming too late. The defendant also offered to prove, that the plaintiffs’ title and interest in the premises, at the time of the demise to the defendant, and at the time of commencing this proceeding, were that of tenants at will only under Ransom Reed. This evidence was objected to. The presiding judge, being of opinion that none of the facts offered to be proved by the respondent would constitute a defence to the complaint, rejected the evidence; whereupon the plaintiffs obtained a verdict, and the defendant excepted.
    The defendant also moved, in this court, for a new trial on the ground, that, since the entry of the action in this court Reed, the owner of the premises in fee simple, under whom the complainants derived their title, had entered and repossessed himself of the same, and had put an end to the plaintiff’s estate therein; and supported his motion by Reed’s affidavit of these facts.
    This case was argued and decided at the sittings in Boston in February, 1851.
    
      J. G. Abbott, for the defendant.
    1. The release, to one of the plaintiffs by the other before trial, of all his interest in the premises, incapacitated him to maintain this action; and this, having been specified in writing as soon as it became known to the defendant, is a good defence. The death or incapacity of a demandant in a real action abates the writ. Stearns on Real Actions, 216; Oxnard v. Kennebeck Purchase, 10 Mass. 179; Cutts v. Haskins, 11 Mass. 56. And this so far partakes of the nature of a real action, that it must be governed by the same rules.
    2. This action cannot be maintained by a mere tenant at will. Rev. Sts. c. 104, §§ 2, 3; State v. Pierson, 2 N. H. 550; People v. Nelson, 13 Johns. 340; Mitchell v. Fleming, 3 Ired. 123; Bac. Ab. Forcible Entry, &c., E. If it could, the defendant would be liable to two actions for the same thing at the same time.
    3. The fact, that the owner in fee has taken possession of the premises, and put an end to the plaintiffs’ title, is a bar to a judgment in their favor. Walcutt v. Spencer, 14 Mass. 409.
    
      A. R. Brown, for the plaintiffs.
   Shaw, C. J.

This was a complaint by landlord against

tenant to recover possession of tenements leased by parol agreement by the plaintiffs to the defendant. The court are of opinion, that the defendant is estopped from denying the plaintiffs’ right and title, as landlord, either to dispute the payment of rent, or to resist their title to regain the possession. Cobb v. Arnold, 8 Met. 398. They may therefore have this process, on the ground of an actual letting by the plaintiffs and holding by the defendant. If indeed the superior landlord had entered and excluded the defendant, before this process commenced, it might be a good answer to the complaint. This not having been done, the action was rightly commenced.

The plea in the nature of puis darrein continuance, were it admissible at all, comes too late, even if the transfer from one of the plaintiffs of his interest to the other during the process were sufficient to abate it. But we are inclined to the opinion, that the transfer by one of his right in the premises to the other would not abate the process; there is no discontinuance, no discharge of any party from the record, and if the defendant recover costs, he will have his judgment against both plaintiffs; there seems, therefore, to be no ground on which the defendant can abate the writ.

The fact, that the superior landlord, since the verdict, has recovered the possession, is no bar to the plaintiff’s recovery; it may affect the amount, which the plaintiffs may recover for rent, on the defendant’s recognizance; the amount may be limited to the time of such entry.

The plaintiffs are entitled to a judgment for their costs, and such judgment, also, as will entitle them to the benefit of their recognizance and for payment of rent, until the superior landlord entered; because until that time the defendant is liable to pay rent to them, if, as the case supposes, he hired of them, and they had a right to recover possession when their complaint was commenced. Judgment for the plaintiffs.  