to be considered. Under these provisions allence is strong it was not intended that the land assessed in the designated territory the land should be assessed. Roxbury v. is to be assessed ratably in proportion to Nickerson, 114 Mass. 544; Worcester Co. v. quantity, not to value. The tax must be Worcester, ubi supra. It was decided in Agproportional, and it is the intention of the ricultural Society v. Worcester, 116 Mass. statute to make it so. Under section 4, the 189, that the provision of Gen. St. c. 11, proportional benefit and tax was determined § 5, cl. 5, (Pub. St. c. 11, § 5, cl. 9,) exemptby the value of the land. The amendment ing the estate of incorporated agricultural embodied in section 7 apportioned the tax societies from taxation, does not include sewto the quantity of land, and was obvious-er assessments, and the same decision as to ly applicable to land available as city or vil-a highway assessment was made in Friend lage lots, and for kindred purposes. It could Society v. Mayor, etc., 116 Mass. 181, in renot have been intended to enact that land spect to the exemption in the same statute which could be used only for purposes of of property of charitable institutions. Those burial of the dead should be deemed to be exemptions are in the general tax law, which equally benefited by a street sewer as the provides for the assessment and collection of same area of land in building lots on the taxes, and are held to apply to taxes to be assame or any other street in the designated sessed and collected under that law, and not territory. Whether the use is regarded as to assessments for highways and sewers, public or not, the fact that the land is per- which, though public taxes, are not assessed petually devoted to the purposes of burial, or collected under the general tax law, but and cannot be sold or appropriated to other under particular statutes. There is an imuses, distinguishes this case from In re As-plied limitation of the restriction to the taxes sociation, 66 N. Y. 569, and Donnelly v. Association, 146 Mass. 163, 15 N. E. Rep. 505, and brings it within the reasons of the decision in Association v. Beecher, 53 Conn. 551, 5 Atl. Rep. 353, and Association v. New Haven, 43 Conn. 234.

A

which are the subject-matter of the chapter, which does not exist in regard to the exemptions in the charter of the petitioners. more marked distinction is that real estate held by such societies receives the same benefit from roads and sewers as if owned absolutely by an individual. It has a market value; it may be appropriated to any lawful use, and may be sold for such use, and it may be sold to pay the assessment. Even if the words "all public taxes" in the act of incorporation are not held to include the spe-. cial tax for sewers that was subsequently created, the provision at least shows a legislative disposition to be considered in finding its intention in the subsequent acts. We think it was not the intention of those acts that the petitioner's land should be assessed under them. Demurrer overruled.

(150 Mass. 34)

APPLETON v. AMES et al.
(Supreme Judicial Court of Massachusetts.
Suffolk. Sept. 6, 1889.)
LANDLORD AND TENANT- -SUBLETTING ATTORN-
MENT-NOTICE TO QUIT.

The statute provides that assessments shall constitute a lien upon the real estate assessed, and may be levied by sale of such real estate. It is clear that the land of the petitioner was not "real estate assessed" within the meaning of this provision. The legislature could not have intended to authorize a sale of the cemetery under this provision. It was perpetually appropriated by express legislative authority to the purposes of a burial-ground; it was made exempt from taxation; it was to be divided into burial lots, the rights of which were to be sold as soon as practicable, and which were exempt from taxation and from execution, (Pub. St. c. 11, § 5; Rev. St. c. 97, § 22,) and were protected from desecration or injury by penal statutes, (Rev. St. c. 130, §§ 19, 21.) The land assessed has all been laid out, and a large portion of it has been sold in fee-simple, to different persons, for the purposes of burial, and bodies have been interred therein. Whether the deeds conveyed the title or only a beneficial nterest in the land is immaterial. If the legislature intended that the legal title should remain in the corporation, it did not intend that the graves of the dead should be sold to pay for drains and sewers for houses of the liv-denies the original lessors' title, asserting title in 2. Where he thereafter refuses to pay rent, and ing. See Com. v. Viall, 2 Allen, 512; Sohier himself under the sublease, the original lessors v. Trinity Church, 109 Mass. 1; Louisville v. can treat the tenancy as terminated without notice Nevin, 10 Bush, 549; Lima v. Association, to quit, and may oust the tenant. 42 Ohio St. 128; Cemetery v. St. Paul, 32 N. W. Rep. 781; Cemetery v. Buffalo, 46 N. Y. 506; Mayor of Baltimore v. Cemetery, 7 Md. 517; Brown v. Lutheran Church, 23 Pa. St. 495; Cemetery Co. v. City of Philadelphia, 93 Pa. St. 129. There is no other way in which the tax can be collected, and, as the provision made for collecting the tax does not apply G. M. Reid and A. C. Vinton, for plaintiff. to an assessment upon this land, the infer- J. H. Benton, Jr., for defendants.

1. A sublessee, who holds over after his lessor has surrendered to the original lessors, and who is informed of such surrender, and thereafter pays rent to his own lessor as agent for the original lessors, and endeavors to obtain a new lease from the latter, acquiesces in their possession, and becomes their tenant at will, and his rights under the sublease are terminated.

Report from superior court, Suffolk county; JAMES M. BARKER, Judge.

Action by Samuel Appleton against Frederick L. Ames and Sarah L. Ames, for his ouster from certain realty. The trial judge found for defendants, and reports the case on the evidence.

DEVENS, J. The plaintiff's position, that | terms of the lease to enter and repossess themby the so-called surrender of the lease of selves of the estate, and they were at that Wight on March 11th to defendant he con- time in actual possession of the premises, tinued as sublessee the tenant of Wight, other than those occupied by plaintiff. On under no liability to pay rent to any one, and March 11th Wight surrendered to the dethat it was the duty of the judge thus to have fendants, and the plaintiff was notified that found, cannot be sustained. Upon the facts, Wight no longer held a lease of the building. as reported, it was competent to find that the The plaintiff acknowledged the receipt of this defendants had taken possession of the leased notice on March 20th, and then inquired premises for breach of the condition in the whether it was the purpose of defendants to lease to Wight. It was in evidence that give him a lease for a term similar to that Wight had failed in January, 1884, and from held from Wight. He was told in reply this it might well be inferred that he had not that defendants hoped to lease the whole merely failed to meet some mercantile obliga- building, in which case he could undoubtedtions, but that he was unable to comply with ly go on as he had been doing, and, if no such the covenants in his lease. Upon neglect or party was found, that defendants would be failure by Wight to perform any of these glad to have him remain as their tenant. covenants, or if he should be declared bank- The plaintiff, remaining in possession of the rupt or insolvent, or if any assignment should premises sublet to him, pursued his negotiabe made of his property for the benefit of tion for a lease from the defendants, by the creditors, the lessors were entitled, without letter from his attorney of April 10th, and it further notice or demand, to enter and repos- was not until April 15th that he asserted a sess themselves of the estate as against the right under the lease to Wight to hold the lessee and those claiming under him. On premises sublet to him without any payment the failure (as it is termed in the report) of of rent whatsoever. His position is, in subWight, the defendants put a janitor into the stance, that by the surrender by Wight of building, and made arrangements by which the lease to him, the plaintiff was entitled to Wight was to collect the rents for them. hold his sublease without payment to anyThese facts, if they did not constitute, cer- one; that, rent being an incident to the retainly afforded, evidence of a taking posses- version, Wight could not collect it, because sion by them. In answer to the plaintiff's he had parted with his reversion to the deinquiry of defendants whether their rights fendants, nor could the defendants collect it, were in any way affected, and if they should because, although the reversion to which it continue to pay rent to Wight, as heretofore, was incident had been conveyed to them, yet, they were told it would be right to pay rents as soon as it was so conveyed, it merged in to Wight, "who is acting as the agent of Mr. the greater reversion, in fee of which they Ames in collecting them. The plaintiff, on were actually possessed. Inequitable as this February 14th, paid to Wight the rent then result would be, there is certainly authority due, and on March 24th paid the rent due on for the proposition that where a lessee techMarch 1st also to Wight. On March 4th nically surrenders to his landlord, having had Wight made an assignment of his property authority to grant, and having granted, a for the benefit of his creditors, and on March sublease of a portion of the premises, this 11th indorsed on the lease a surrender of his surrender not only fails to prejudice the subrights thereunder. On the same day the plain- lessee, but releases him, for the reasons stated, tiff was notified that Wight had no longer a from the payment. Webb v. Russell, 3 Term lease of the premises, and that, until further R. 393; Tayl. Landl. & Ten. §§ 517, 518; Grunnotice, the rent due from him would be due din v. Carter, 99 Mass. 15. We do not think and payable to the defendants. While the it applies to the case at bar upon the facts as plaintiff testified that he never paid rent to the court was authorized to find them. It the defendants, or either of them, and never was competent for the lessors, upon the ocacknowledged either as his landlord; when, currence of several contingencies, heretofore in answer to his own inquiry of them, after stated, to enter and repossess themselves of the janitor was put in possession by defend- the estate, thus putting an end to all subants, as to whom the rent should be paid, leases. When, on the failure of Wight, they he is told to do so to Wight, acting as the did thus enter, and when, being thus in, agent of defendants, and he then pays the Wight makes an assignment of his property rent to Wight, it must be deemed that he for the benefit of his creditors, which is one does so to the defendants. It is to be ob- of the contingencies upon the occurrence of served, also, that he does this in regard to the which the defendants were entitled to enter, payment in March, (for the February preced- and when the plaintiff thereafter pays his ing,) after he was fully aware that Wight rent to Wight as the agent of defendants, alhad no interest in the lease, and therefore no though for the month previous to the assignright, except as agent of defendants, to the ment, seeking from them in the first instance rents. Even if any doubt existed as to wheth- a lease for the remainder of the term of the er or not the possession taken by the defend- sublease made to him by Wight, the strongants in January was for any failure to perform est evidence is afforded that he assented to the covenants of the lease, the assignment the entry of defendants as one they might made for the benefit of creditors on March lawfully make, with the effect of dispossessing 4th entitled the defendants by the express him of the estate granted by his sublease,

Upon the

and that his subsequent tenancy was, at most, | ner v. Munroe, 10 Gray, 290. one at the will of defendants. Even if, as commission of waste by the lessee at will, the the plaintiff contends, there is a paucity of lessor may enter and determine the estate. evidence that the entry or subsequent posses- Daniels v. Pond, 21 Pick. 367. An assignsion was with the intent to hold the property ment of his estate by the lessee at will may for forfeiture, or any requisite manifestation be treated by the lessor as terminating it. of such intent, the conduct of the plaintiff Cooper v. Adams, 6 Cush. 87; King v. Lawshows how it was understood by him. The son, 98 Mass. 309. Where the tenant denies defendants could have accepted a surrender the title of his landlord, or does definite acts of his lease from Wight, without prejudice inconsistent with it, as by accepting a deed to the lease of a part of the premises, and, if from some one other than the landlord and such lease were assigned to them, could have asserting title under it, the tenancy at will maintained an action against a sublessee for may be terminated by the landlord without the rent thereafter accruing. Beal v. Spring any notice to quit. Beal v. Spring any notice to quit. He may bring his action Co., 125 Mass. 157. It is reasonable to sup- against the tenant as a disseisor or trespasser, pose that they would have done so if they had as if he had originally entered by wrong, or not fully understood, as they had a right to he may, if he can do so without violence, reunderstand, from the conduct of the plain- possess himself of the premises. Russell v. tiff, that he acquiesced in their possession of Fabyan, 34 N. H. 223; Sampson v. Schaeffer, the premises, of a part of which he had a sub- 3 Cal. 196-205; Chamberlin v. Donahue, 45 lease, and that he treated their lease to Wight Vt. 55; Isaacs v. Gearheart, 12 B. Mon. 231; and Wight's sublease to him as lawfully Fusselman. v. Worthington, 14 Ill. 135. terminated, and his own possession thereafter No notice to quit is ever necessary, unless as that of their tenant at will. The plaintiff the relation of landlord and tenant exists, and cannot, therefore, recover, as he claims to a disclaimer of tenancy dispenses with such do, for the rentable value of the portion of the premises (of which he was dispossessed) for the unexpired term of the sublease, either with or without deduction on account of the rent reserved in that lease.

lease from Wight. Upon the facts reported, and the inferences which could properly be drawn, the presiding judge was, in our opinion, justified in finding for defendants. Judgment for defendants.

(150 Mass. 45)

notice. If one in as a tenant repudiates this relation, and denies that he holds under his landlord, the landlord may at his own election treat the tenancy as terminated. Tuttle v. Reynolds, 1 Vt. 80; Harrison v. MiddleNor are we of opinion that he can recover ton, 11 Grat. 527; Duke v. Harper, 6 Yerg. damages for the three months, at the end of 280; Boston v. Binney, 11 Pick. 1-8. The which time only a notice to quit, had it been relation of tenant at will having been estabregularly given, would have expired, or for lished on the part of the plaintiff towards the fourteen days, at the end of which time a defendants, it is clear that it was wholly renotice for non-payment of rent might have nounced by the plaintiff, and a title adverse been made to expire, even if it be held that to the defendants asserted, when he finally he had become a tenant at the will of the de-insisted on his right to hold under the subfendants. Ashley v. Warner, 11 Gray, 43. After the payment made by him on March 24th for the month of February, the plaintiff not only ceased to pay rent, but in the month of April wholly denied his liability so to do, and asserted title against the defendants under the sublease of Wight to him. Through his tenants, who were either compelled to attorn to the defendants or were removed, he was dispossessed of the premises sublet to him, on May 7th. No notice to quit for nonpayment of rent was served upon him, so far as appears, and if he had become a tenant at 1. It is no defense to an action on a promissory will of the defendants. none, under the cir- note that the payee, plaintiff's intestate, agreed, cumstances, was necessary. While the estate before its maturity, with a third person, for a valof a tenant at will can only be directly termi-uable consideration, not to sue defendant, the maker, thereon, especially where defendant made a nated in the manner provided by statute,-as payment on the note, thus recognizing its validity, by a notice to quit at the end of fourteen after such agreement, and it is immaterial that the days for non-payment of rent, or by three third person with whom the agreement was made was defendant's father. months' notice in writing, and, when the rent reserved is payable at periods of less than three months, by a notice equal to the interval between the days of payment,--there are many acts which lessor or lessee may do which indirectly will or may, at the election of the other party, operate to determine the lease. Thus, by conveyance or written lease to a third party by the lessor, the estate of the lessee is terminated. Howard v. Merriam, 5 Cush. 563; Curtis v. Galvin, 1 Allen, 215; Hildreth v. Conant, 10 Metc. 298; Miz

MARSTON V. BIGELOW. (Supreme Judicial Court of Massachusetts. Suffolk. Sept. 7, 1889.)

NEGOTIABLE INSTRUMENTS-INTEREST-EVIDENCE.

2. Where it appears that the words "with interest" were omitted from the note by mistake, an instruction that, if the jury were satisfied from the to the note that they interpreted it as one bearing subsequent dealings of the parties with reference interest from its date, they might compute interest from that time, is sufficiently favorable to defendant.

3. The deposit of a letter in the mail, addressed to a person at his place of business, accompanied by evidence that the post-office authorities knew of a change in his address, is prima facie evidence dence of its receipt by him the question is propthat he received it, and where there is other evierly left to the jury.

Report from superior court, Suffolk county; | account of the balance due on the note, thus JOHN W. HAMMOND, Judge.

P. B. Kiernan, for plaintiff. C. W. Tur-ed that the son could maintain the action. ner and S. J. Elder, for defendant.

The agreement of the father operated as an emancipation of the son, and entitled him to MORTON, C. J. The defendant offered to receive the wages of his labor. Corey v. Coprove as a defense to the note sued on that rey, 19 Pick. 29. The consideration of the on January 29, 1879, which was before the wages he was to receive when he became of note matured, his father, Samuel Bigelow, age was his labor, and it may well be held as conveyed to the plaintiff's intestate a piece of matter of law that the promise to the father to land; that a part of the consideration, viz., pay the son a stipulated sum was made to the $1,770, was paid and indorsed upon this note; father acting on behalf of and as the agent of and that in consideration thereof the plaintiff's the son, and thus promise to him. The intestate agreed never to molest or trouble agreement was not an independent agreement the defendant by suit for the balance due up-in which the son had no particular interest. on the note. This is not an offer to prove a satisfaction and discharge of the note; indeed, such a defense is not open under the pleadings, and the evidence shows that a year afterwards the defendant made a payment on

defeat his rights under it. The court, in its | fact, the weight of which is for the jury. In opinion, puts the decision upon the broad the case at bar there was other evidence ground that "when a promise is made to one tending to show the receipt by the defendant for the benefit of another, he for whose bene- of the letter addressed to him by the plainfit it is made may bring an action for the tiff's intestate, and the court properly left it breach." But, as we have seen, this is not to the jury to determine upon all the evithe law as established by the later decisions. dence whether the defendant had received Bank v. Rice, ubi supra, and cases cited. the letter, giving such weight to the preWhile the case of Felton v. Dickinson sumption or inference as they thought it enwas rightly decided upon its peculiar circum-titled to. stances, we think it cannot be fairly regarded It is plain that the omission of the words as establishing a general rule that a son may "with interest" in the note sued on was a sue upon a promise made for his benefit to mere clerical error, and the instruction on his father. The nearness of the relation may this subject was sufficiently favorable to the be evidence that the promise to the father defendant. Judgment on the verdict. was made to him acting in behalf of and as the agent of the son, and therefore was a promise to the son; but when it appears that the promise was not made to the son, and that the consideration did move from him, we can see no reason why the nearness of the relation should change the general rule of law that a man cannot sue upon a contract to which he is not a party or privy.

In the case at bar there was no offer to prove a promise to the defendant not to sue. The promise is set out in the pleadings and in the offer of proof as a promise to the father upon a consideration moving wholly from him. As to such agreement there was no privity of contract between the plaintiff's intestate and the defendant. The only contract is between the defendant and Samuel Bigelow, and they may at any time revoke and annul it. The only party entitled to sue the defendant upon that contract, either at law or in equity, is Samuel Bigelow. The case falls within the general rule of law that one who is not a party to a contract cannot sue upon it. As the defendant could not enforce this agreement, which he offered to prove, either in law or equity, he cannot avail himself of it as a defense in this suit, and the superior court rightly rejected the evidence offered by him to prove such contract. There was evidence proper to be submitted to the jury that the defendant received the notice which was mailed to him, and the prayer for a ruling that there was no evidence of the delivery of the notice was properly refused.

(150 Mass. 19)

HODGKINS et al. v. FARRINGTON et al. (Supreme Judicial Court of Massachusetts. Suffolk. Sept. 5, 1889.)

LICENSES IN REALTY-REVOCATION-LACHES-ES

TOPPEL.

1. An oral permission given by the owner of realty to an adjoining owner to build on and let timbers into a wall standing on the former's land, of which the wall was to remain a part, passes no estate in the realty, but creates a license only, revocable at the will or by the death of the owner, or by his alienation of the land.

2. Where the license is exercised before any alienation of the land by the licensor, and is continued to be so exercised during successive changes in the title, and the licensor's grantees know that licensee are entitled to the rights of licensees, and fact when purchasing, grantees of the original cannot be considered trespassers until the license is revoked, but where, on revocation of the license and notice thereof to them, they refuse to remove tain a bill for its removal. the structure, the owners may remove it, or main

3. The fact that plaintiffs suffer no injury by the subsistence of such license, and that defendant sustains heavy loss by its revocation, does not af fect plaintiffs' right to revoke.

4. Acquiescence in such license by plaintiffs' predecessors in title, for a period less than the time required for acquiring title to easements by adverse user, is no bar to such a suit, as the principle that one who has permitted another to erect a structure on his own land in violation of the former's rights will be refused equitable relief does not apply.

5. The court has no power to compel plaintiffs to grant an easement to defendant, and to accept compensation therefor in lieu of the enforcement of their right to the removal of such structure and

timbers.

Report from supreme judicial court, Suffolk county: W. A. FIELD, Judge.

The second ruling requested by the defendant was properly refused. The depositing Bill by Frank E. Hodgkins and others a letter in the post-office, addressed to a par- against Isaac Farrington and others, to rety at his place of business, is prima facie strain defendants from maintaining any porevidence that he received it in the ordinary tion of a building standing on certain land of course of the mails. This is founded upon defendant Farrington, so that the same would the presumption that the public officers will project over, overhang, or rest upon plaintiffs' do their duty. Huntley v. Whittier, 105 close, for removal of such building, and for Mass. 391. So, if a party has changed his damages. Case reported to the full court for place of business, and has informed the post-decision.

office authorities of it, there is a presumption R. M. Morse, Jr., and C. S. Hamlin, for or inference that the letter has been delivered plaintiffs. W. B. French, for defendant Farat the new address. The deposit of the let-rington. ter in the post-office, accompanied by evidence that the authorities knew of the change, furnishes competent evidence that the party has received the letter. In either case there is a disputable presumption or inference of

DEVENS, J. In 1841 the premises of the plaintiffs were owned by Robert Burr, and those of the defendant by Noah Blanchard. On August 1st of the same year the boundary