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man v. Legge, 8 B. & C. 324 ; 2 M. & R. 438 - that the plea shows a surrender by act and operation of law, we think the plea is bad, on special demurrer, as amounting only to an argumentative denial that any breach had been committed during the continuance of the tenancy.!

Judgment for the plaintiff. T. Jones, in support of the demurrer. Peacock, contra.

MÄLOUGHLIN v. CRAIG,

QUEEN'S BENCH, IN IRELAND. 1856.

[Reported 7 Ir. C. L. 117.) The summons and plaint claimed a sum of £150 for one and a half year's rent due out of certain premises demised by the plaintiffs and others deceased, to one William Boyd, on the 15th of July, 1833, for a term of three lives still subsisting, and renewable forever; which premises, it was alleged in the plaint, had vested in the defendant by assignment, and that since said assignment the said sum of £150 had accrued due.

To this the defendant pleaded as to £75, part of said sum of £150, that before and at the time of making the said indenture of 15th July, 1833, one Matilda M'Loughlin was by herself and her under-tenants, and still is, in possession of a portion of said premises in plaint mentioned ; and that being so in possession, the plaintiffs and William Boyd in his lifetime instituted proceedings in ejectment against the said Matilda M'Loughlin, for recovery of said portion, and that Matilda M'Loughlin had recovered judgment in said ejectment against the plaintiffs and William Boyd, and before any portion of said sum of £75 became due, and has since retained and continued in possession of the said portion of the premises ; and that, by reason thereof, the said William Boyd in his lifetime, and the defendant since his death, and from thence and before the time of the accruing of said sum of £75, were kept out of the possession and enjoyment of said portion of the premises, and neither he nor the said William Boyd had, since making said indenture, or since said judgment in ejectment, any use, possession, or enjoyment of the said portion. To this defence the plaintiff demurred.

Mackay (with him T. O'Hagan), in support of the demurrer.
Concannon and D. Lynch, contra.

LEFROY, C. J. In this case we are of opinion that this demurrer must be overruled. It is plain that, upon an eviction by title paramount, the lessee may either give up the lease or hold the part of which he remains in possession, at an apportioned rent. That is well settled. Then the question in this case is, Are the matters stated on the defence, by which the defendant says he was disabled from getting possession of

1 The rest of the opinion, relating to another point, is omitted.

made to him.

was any in reversion.

a portion of the lands, equivalent to an eviction by title paramount; that is, has enough been shown to satisfy the court that the lessee was prevented, by title paramount in Matilda M'Loughlin, from getting possession of the entire of the land demised by the lease? The defence alleges that Matilda M'Loughlin was in possession of part of the premises previous to the lease being made ; and that she continued in possession up to and after the making of the lease ; and that subsequently an ejectment was brought by the lessor and lessee in that lease, and that they failed to disturb her possession. It must be assumed that she showed title against both parties, against the lessor antecedent to the lease, and against lessor and lessce after the lease ; and that ever since, during the accrual of the rent, she continued in possession. The question then is, whether that is a substantial averment of matters whence the law deduces what may be called a presumptio juris, that, de jure, she was in possession by title paramount? When the landlord made the lease, he must have known in what condition the property stood at the time he let it; it was his duty not to make a lease to a stranger, save of what he had to demise ; a stranger could not know that Matilda M'Loughlin was in possession by title paramount

. He had no muniments of title ; had nothing to do with the land before the lease was

The lease imports that the title went with the possession; there is no recital in it of any outstanding lease, or that there

It was incumbent on the landlord, therefore, when he seeks to enforce the entire rent, to show his right, to establish that Matilda M'Loughlin was in possession as a sub-lessee, or in some way under him; whereas it is averred, in the defence, that the lessee never had any benefit or enjoyment under the lease of the portion of the premises in question. If anything were shown to establish that a rent had been received for this portion from Matilda M'Loughlin, by the defendant getting the reversion to which that rent was incident, that would not be inconsistent with the right of the landlord to recover the entire rent; but that averment ought to have come from the plaintiff. This defence amounts in substance to an eviction by title paramount; and as in such case the lessee is entitled to hold the remaining portion of the premises, paying a proportionate part of the entire rent, or to abandon all, so here the defendant is entitled to a similar election. This demurrer, therefore, must be overruled. CRAMPTON, J. I do not dissent from the judgment pronounced by

It has never been decided that the position of a lessee, taking a lease at an entire rent from a landlord, who had power to the residue, is equivalent to an eviction by title paramount. I do not

Portion only of the thing demised, not having power to demise think that has yet been decided, although the case cited, of Doe v.

A party there made an underlease of premises, over part of which he had a power, and over another portion of which he had no power. It was held in that case that there must be an

suggested.

demise a

Meyler, comes near it.

apportionment, and that the tenant must pay the apportioned rent for the portion the landlord had power to demise. There is another question on which I also have some difficulty ; that is, as to the meaning of that portion of the plea which alleges a possession in Matilda M'Loughlin, and nothing more. It is consistent with that plea that Matilda M'Loughlin may have been in a temporary possession, or she may have been a tenant of the lessor; and if that were so, the whole rent is payable to the landlord, and there is no apportionment. It is said, however, that there are statements in the plea contradictory of the presumption that Matilda M'Loughlin was in as tenant to the lessor. I feel some difficulty on these two points ; but if the landlord allege she had only a temporary interest, the court will not prevent bis now replying that matter, upon payment of the costs of the demurrer. PERRIN and MOORE, JJ., concurred with the Chief Justice.

Demurrer overruled.

ECCLESIASTICAL COMMISSIONERS V. O'CONNOR.

QUEEN'S BENCH IN IRELAND. 1858.

(Reported 9 Ir. C. L. 242.] ACTION to recover three half-yearly gales of rent reserved by an indenture of demise dated the 24th of April, 1846, whereby the plaintiffs demised to the defendant a certain messuage, lands, and premises, with the appurtenances, for three lives, and a concurrent term of 999 years, at the yearly rent of £400, payable half-yearly. The first defence alleged that, prior to the making the demise in the plaint mentioned, the plaintiff's had demised two roods, parcel of said demised premises, to Captain Wynder, which prior demise was still in force, whereby the defendant was kept out of possession of said parcel of the demised premises, although always desirous of entering thereon, whereof the plaintiff's had due notice; whereby the defendant was prevented from having all the profit and advantage he otherwise would have thereout. The second defence alleged a prior demise, still in force, of two roods of land, parcel of the demised premises, to one Patrick Murray and one Timothy Murray, and in other respects was in the same terms as the first defence.

Demurrer to the first defence, upon the following grounds: Be. cause the said defence does not disclose any matter whereby the demise made by the plaintiffs to the defendant, as in the summons and plaint alleged, is shown to have been, wholly or as to any part of the prem. ises thereby purporting to be demised, void or ineffectual, or whereby the rent reserved became or was wholly or in part extinguished or suspended; and because the said demise made by the plaintiffs to the defendant, as in the said summons and plaint alleged, was effectual to

defendant himself.

pass the reversion of the said parcel of the said demised premises occupied by the said Captain Wynder; and because the said defence is pleaded to the whole of the said first cause of action, although, at best, only an answer to part thereof; and because it does not appear that the said Captain Wynder has, or ever had, any greater estate or interest in the said parcel of the said demised premises than that of tenant from year to year; and because it does not appear that the said defendant ever gave a proper and legal notice to quit to the said Captain Wynder, or otherwise used legal means to determine his tenancy; and because it is not shown by the said defence what estate or interest the said Captain Wynder has or had in the said parcel of the said demised premises ; and because it is not alleged by the said defence that the said defendant is not in receipt of the rent payable by the said Captain Wynder in respect of the said parcel of the said demised premises ; and because, consistently with the said defence, the said Captain Wynder may have always been, and still be, in occupation of the said parcel of the said demised premises, by the consent or default of the

The grounds of demurrer to the second defence were in similar terms to those of the first defence, substituting the names of Patrick and Timothy Murray for that of Captain Wynder.

Fetherstone (with him T. Lefroy), for the demurrer.
M. Morris (with him G. Fitzgibbon), contra.
LEFROY, C. J. We are all very clearly of opinion that this defence

answer to the claim for the whole rent. It would certainly be a very strange state of the law if, upon the facts which are here presented to us, we were compelled to hold it to be a legal defence, that because two roods of the demised premises were lawfully in the possession of an under-tenant at the date of the demise, thať circumstance is to operate as a suspension of the entire rent of £400 a year, duly reserved and fully secured by sufficient covenants. We were, however, told that such was the law, as settled by the case of Neale v.

But it turns out that the case of Neale v. Mackenzie, in

an authority in support of the present defence, is, for of the Court of Exchequer Chamber, an authority for upholding this the very reasons given by Lord Denman, when delivering the judgment demurrer; for the distinction there taken was, that the second lease, made by the defendant in error, was utterly void, inasmuch as, with respect to eight acres, part of the demised premises, no interest at all

- not even a reversion, which can only be granted by deed under seal; whereas the second lease in that case was not

1 The points noted for argument were, first, that the said defence does not disclose any matter whereby the said demise in the plaint mentioned is shown to have been wholly or in part void, or the rent wholly or in part extinguished or suspended ; secondly, that the said defence is pleaded to the whole rent, although at best only an answer to part thereof, and the points in the body of the demurrer. The points of demurrer to the second defence were precisely similar. — REP.

is not a good

Mackenzie. stead of being

passed to the lessee,

VOL. II.

47

under seal. In the present case, however, it appears that the plaintiffs, who were seised of these lands, and made this lease, were, at the time of this demise, in possession of the great body of the property : but about two roods of it (taking the facts from the pleadings) were then in the possession of some one else, under a former lease. As to these two roods, therefore, the plaintiffs had nothing but a reversion. Inder these circumstances, the plaintiffs demise the entire premises by a lease under seal, reserving an entire rent for the whole. The first question then is, What was the operation of that instrument? It was a lease in possession of all the land of which the lessors had the possession at the time of the demise; and, in point of law, it was a lease of the reversion of that part of the lands of which the lessors had not the possession. Where a person has only a reversion expectant on a lease, with a rent incident thereto, he may make a lease by deed of that reversion for any term, and reserve a rent thereout; he may deal with it as if it were an interest in possession, and he cannot be said not to have a title to such rent. He cannot, it is true, recover it by ejectment, and there may be a difficulty in the way of his distraining for it; but he can recover it either by an action upon express covenant, or by an action of debt upon the implied contract which arises upon the deed between the parties. Are we to be told then that an action for the entire rent will not lie? I am happy to find that the law, so far back as I have been able to trace it, still continues to be unchanged in this respect, and that the reasons assigned by Lord Denman, in pronouncing the judgment of the Exchequer Chamber, in Neale v. Mackenzie, the case which was said to have interfered with the law as I have stated it, were, on the contrary, in perfect harmony with it, established, as it has been, by the high authority of Chief Baron Gilbert, unaffected by any subsequent case. Upon these grounds, therefore, we feel quite authorized in maintaining that state of the law which is consistent as well with common-sense and justice, as with an uninterrupted current of legal authority down to the present time. We, therefore, allow the demurrer.1

PENDLETON V. DYETT.

SUPREME COURT OF NEW YORK. 1825.

[Reported 4 Cowen, 581.] COVENANT for rent upon a lease dated October 15th, 1818, given by the plaintiff to the defendant, for the term of two, three, five, or eight years, but not for a less term than two years, of two rooms, or the whole of the second floor, and two rooms chosen by the defendant on

1 Williams v. Hayward, 1 E. & E. 1040 (1859), which comes here in chronological order at the end of the English cases, is printed ante, p. 700. Cf. Blair v. Claxton, 18 N. Y. 529 (1859).

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