Ralph Green vs Smith Tourtellott, 11 Cush. 227

Dewey, J. The decision of the present case in favor of the respondent is not inconsistent with the cases of Hildreth v. Conant, 10 Met. 302, and Howard v. Merriam, 5 Cush. 567, cited and relied upon by the counsel for the complainant. The real objection to the maintaining of this action is not, because the relation of landlord and tenant does not exist between these parties; that is not necessary, and the assignee of the lessor, or any one else, who succeeds to the estate of the lessor, may equally well institute this process against the lessee. The difficulty is of a different character.

There was nothing done by the lessor to terminate the tenancy at will of the respondent. Fuller was his lessor, and he claimed title in fee simple by deed from Shaw of an earlier date than the attachment on the complainant’s writ. Fuller, the lessor, had done nothing to terminate the estate at will of the respondent, either by notice under the statute, or by any of the modes recognized by common law. A subsequent conveyance by Fuller by deed or lease of the premises would have done so. A levy of execution against the lessor would be equally effectual to do so.

But a levy of execution against a stranger, alleged to have a paramount title to the lessor, has no such effect. The complainant cannot thus, by showing that respondent was a lessee to some one, use this process under the Rev. Sts. c. 104, to try the title when, as against the lessor, he could resort to no such mode. Suppose there had been no tenant to Fuller, and the premises had been occupied by him under his deed, claiming title thereto, and .the complainant had done as he now has, levied upon the same as Shaw’s estate.

The effect of such levy would have been that the complainant would thereby have been enabled to try the question of title with Fuller by the usual forms of action, to try controverted titles, and not under Rev. Sts. c. 104. The fact that Fuller does not personally occupy the premises, but the same is held by a tenant under him, and who justifies under his title, does not authorize this process. In a case like the present, the complainant must resort to the usual mode of asserting his claim, by a writ of entry, or action of trespass quare clausum.

The respondent has never been the lessee of the complainant, or of any one through whom plaintiff claims a title by deed, lease, levy of execution, or any other mode of transfer. No act has been done or suffered to be done by the lessor of the respondent to defeat or determine his title as lessee. Upon this distinction, and without questioning the entire soundness of the cases cited on the part of the complainant, the court are of opinion that it was properly held by the court of common pleas that this complaint could not be maintained. Exceptions overruled.