Austin v. Kimball

Sanborn was lessor to the plaintiffs. The plaintiffs had sublet No. 32 to Barnard and Company with Sanborn’s consent, and Barnard and Company had assigned their lease to Wilkins. The plaintiffs accepted Wilkins as tenant in place of Barnard and Company, but it does not appear whether or not Sanborn consented to the assignment to Wilkins.

The defendant Kimball took Sanborn’s title, and entered upon No. 32 for breach of the condition of the lease from Sanborn to the plaintiffs; Kimball thus stood in Sanborn’s place. Wilkins *302yielded possession ; but it does not appear whether he was bound to yield possession or not.

The plaintiffs now bring an action of ejectment for the recovery of the unexpired term of their lease from Sanborn. Such an action still exists in this Commonwealth. Hodgkins v. Price, 137 Mass. 13. But it can only be maintained by one who has the right of possession. Taylor, Land. & Ten. (8th ed.) §§ 698 et seq. Upon the facts of the present case, the plaintiffs must fail, because they had no right of possession.

If Kimball’s entry was lawful, then the plaintiffs’ rights under their lease from Sanborn were at an end. If his entry was unlawful, then Wilkins was not bound to yield to it, and the plaintiffs’ right to recover rent from him remained unimpaired, and the right of possession was in Wilkins. Morse v. Goddard, 13 Met. 177. George v. Putney, 4 Cush. 351. Whitney v. Dinsmore, 6 Cush. 124, 128. Towne v. Butterfield, 97 Mass. 105. Holbrook v. Young, 108 Mass. 83. Cobb v. Lavalle, 89 Ill. 331.

Exceptions overruled.