PARTRIDGE v. BERE.†

(5 Barn. & Ald. 604-606; S. C. 1 Dowl. & Ry. 272.)

A mortgagor in possession of the premises mortgaged is tenant to the mortgagee.

ACTION for diverting a watercourse. The declaration contained an averment, that a certain close was in the possession and occupation of one John Turner, as tenant thereof to the plaintiff, the reversion belonging to the plaintiff. At the trial before Park, J. at the last assizes for the county of Devon, it appeared, that Turner being tenant for life of the close mentioned in the declaration, in March, 1817, had mortgaged the same to the plaintiff for 100l., for a term of years, provided he, Turner, lived so long, and that Turner had since that time continued in possession and paid the interest. It was objected on the part of the defendant, that the relation of landlord and tenant did not subsist between a mortgagor and mortgagee, and consequently, that the averment was not supported by evidence; the learned Judge overruled the objection; and now

Adam moved for a new trial, and contended, that there was no tenancy, there was no payment of rent, but of interest; and he relied on the opinion of BULLER, J. in Birch v. Wright.‡

Per CURIAM:

*

Here the mortgagor was in actual possession of the mortgaged premises, by sufferance of the mortgagee, who has the legal title vested in him. The former, therefore, is a tenant within the strictest definition of that word.

† Applied in judgment of Lord SELBORNE, L. C., Heath v. Pugh (1881) 6 Q. B. Div. 345, 359; 50 L. J. Q. B. 473, 477; affirmed in H. L. (1882) 7 App. Cas. 235; 51 L. J. Q. B. 367.-R. C.

† 1 R. R. 223, 225 (1 T. R. 378, 382). § As long as the mortgagor or his heir is in possession of the land, and

Rule refused.§

the legal ownership is in the mort-
gagee, there must subsist a tenancy
between the parties; or otherwise
the mortgagor or his heir must hold
in fee, and as disseisors; for the law
of England recognises no possession
independent of a tenancy, either to
the lord paramount or mesne lord:
If, in the mortgage deed, there is

1822.

April 27.

[604]

[ *605 ]

1822. April 27.

[606]

A deed containing a general release of all debts, &c. recited that the releasee had previously agreed to pay to the releasor the sum of 407. for the possession of certain premises, and that in I consideration of the said sum of 401. being now so paid as hereinbefore is mentioned," and also in consideration of the sum of 108. a piece, well and truly paid to the said releasor and J. S., the receipt of which said several sums of money they did thereby acknowledge, did release, &c. There was also a receipt for the sum of 407. indorsed on the release. But it appeared on action afterwards brought for this sum that, in fact, it had never been paid: Held, that this deed of release was no estoppel, inasmuch as the general words of release were qualified by the recital, which stated only an agreement to pay, and not an actual payment of the sum of 407. ASSUMPSIT against the defendant, as the maker of the following promissory note, dated Edenbridge, April 11th, 1821, "Two

† See this case discussed and followed (by a majority) in Bottrell v.

the usual proviso for the enjoyment
of the land by the mortgagor, and
his heir, until default in payment,
&c. and the mortgagor is in actual
possession, he may, under the agree-
ment, be regarded as tenant for
years
to the mortgagee, during the con-
tinuance of the agreement; Powseley
v. Blackman; and on his death,
during the agreement, his legal in-
terest devolves on his executors,
who, during the remainder of the
agreement, are trustees for the heir
of the mortgagor. If, in the case of
such agreement, the money is not
paid at the appointed time, and the
mortgagor continues in possession
after the determination of the agree-
ment, without any fresh agreement
between the parties, he is, until pay-
ment of interest, or other recognition
of tenancy, tenant by sufferance, for
he came in by a rightful title, al-
though he holds over wrongfully.
If the mortgage deed contains no

Cro. Jac. 659.

Summers (1828) 2 Y. & J. 407.—
R. C.

such agreement, and the mortgagor remains the actual occupant with the consent of the mortgagee, he is strictly tenant at will. Keech v. Hall. If, in the latter instance, the mortgage is transferred to another, without the concurrence of the mortgagor, the tenancy at will is determined, and the mortgagor becomes tenant, by sufferance, to the assignee, until payment of interest or other recognition of tenancy; and in all cases in which the mortgagor can be considered tenant at will, the death either of himself or of the mortgagee must determine the tenancy. If it is determined by the death of the latter, the mortgagor will be tenant, by sufferance, to the representative of the mortgagee, until payment of interest or other recognition of tenancy, and afterwards tenant at will. If it is determined by the death of the mortgagor, and his heir or devisee enter

§ 1 Doug. 22.

months after date I promise to pay Mr. Thomas Lampon, junior,
or order, the sum of 401., value received this day, in things
appraised by Mr. Doubell, and in having possession given to me
of the premises lately held under me by Thomas Lampon, senior,
afterwards by the sheriff." The declaration contained, also,
counts for goods sold and delivered, and the usual money counts.
Plea, general issue. At the trial, at the last London sittings, before
Abbott, Ch. J. it appeared, that the defendant was the landlord
of certain premises occupied by the plaintiff's father, and that the
plaintiff having taken possession of the premises, and the crops
growing thereon, under a writ of execution against his father,
the defendant, in order to get possession of the premises and
crops, gave the note in question, which, when originally signed
by him, did not contain the words "or order." These words were
inserted on the 14th April, 1821, without his knowledge. Under
these circumstances, the LORD CHIEF JUSTICE thought the count
on the note could not be sustained, and the plaintiff then pro-
ceeded on the other counts in the declaration. The defendant,
in answer to the plaintiff's case, put in a deed, executed by the
plaintiff, dated 14th April, 1821, which recited that Thomas
Lampon the elder was in possession of certain hereditaments and
premises, as tenant to the defendant, but which tenancy would
have expired on the 29th day of September, 1821, had it not
been otherwise determined; and that the plaintiff had recovered
a judgment against the said Thomas Lampon the elder, for the
and hold without any recognition of
the mortgagee's title by payment of
interest or other act, an adverse pos-
session may be considered to take
place. Per HOLT in Smartle v. Wil-
liams. In every case in which a
tenancy by sufferance exists between
the parties, and even where an ad-
verse possession commences, as by
the entry of the heir or devisee of
the *mortgagor without the consent
of the mortgagee, the payment of
interest is a recognition of the title

+ 3 Lev. 387; 1 Salk. 245; Thunder v. Belcher, 3 East, 449.

Carth. 414; 10 Vin. Ab. 418,

of the mortgagee, and evidence of an
agreement that the mortgagor, or
person deriving title from him, shall
hold at will, and a strict tenancy at
will commences. Holland v. Hatton.‡
If the land is in the occupation of
tenants, and the mortgagor is per-
mitted to receive the rents, he has
been considered to be a receiver for
the mortgagee, Moss v. Gallimore,§
but without liability to account.
Coote's Law of Mortgages, pp. 327,
328.

pl. 19.

§ 1 Doug. 283. Vide Ex parte Wilson, 13 R. R. 75 (2 V. & B. 252).

LAMPON

v.

CORKE.

[ *607]

[ *606 ]

LAMPON

v.

СОККЕ.

[ *608 ]

sum of 450l., besides costs of suit; and thereupon all the estate, term, and interest of the said Thomas Lampon the elder, of and in the said hereditaments and premises, together with the crops growing thereon, were taken in execution, by virtue of a writ of fieri facias, and the warrant grounded thereon, at the suit of the plaintiff; and that the defendant, being desirous of obtaining possession of the premises, applied to, and prevailed on, the plaintiff, as such judgment-creditor, to give him possession of the same, which the plaintiff accordingly did, on the 11th day of April, instant, he, the said defendant, having then agreed to pay unto the plaintiff the sum of 401. for such possession; and that the defendant had requested the said Thomas Lampon the elder and the plaintiff, to execute an assignment of all their estate, title, and interest in the said hereditaments, which they had agreed to do; and then *proceeded to state, that, in pursuance of such agreement, "and in consideration of the said sum of 401. being now so paid to the plaintiff, as hereinbefore is mentioned;" and also, in consideration of the sum of 10s. a-piece to the said Thomas Lampon the elder and the plaintiff, in hand well and truly paid by the defendant, immediately before the execution of those presents; the receipts of which said several sums of money they did severally and respectively acknowledge; and from the same sums respectively and every part thereof, did thereby severally and respectively release the defendant, his heirs, &c. the plaintiff bargained, sold, &c.; and Thomas Lampon the elder bargained, sold, ratified, and confirmed unto the defendant, his heirs, &c. all the messuages or tenements, &c.; and it was further stated, that for the considerations thereinbefore mentioned; and also of the sum of 10s. to the plaintiff, in hand paid by the defendant, immediately before the execution of those presents, the receipt whereof was thereby acknowledged, he the plaintiff, generally released the defendant, his heirs, &c. from all dues, sums, claims, and demands. whatsoever, both at law and in equity. There was also indorsed on the deed a receipt by the plaintiff for the sum of 401., dated April 14th, 1821. The LORD CHIEF JUSTICE thought this deed not a sufficient answer to the plaintiff's case, it being clearly proved and admitted, that, in fact, the sum of 40l. above mentioned, had never

been actually paid. The plaintiff accordingly had a verdict; and now,

Puller, by leave of the LORD CHIEF JUSTICE, moved to enter a nonsuit. Here the release was a complete answer to the plaintiff's demand, and he cannot be allowed, after an admission, by deed, of the fact of payment of the 40l., to prove, by parol evidence, that it had not been so paid. Rowntree v. Jacob,† Co. Lit. 512. The plaintiff's remedy, if he has any, is in equity; but at law the release is a good defence; for he has, in terms, distinctly admitted the receipt of the 401.

ABBOTT, Ch. J. :

It appears to me that in this case the release does not operate to prevent the plaintiff from recovering. The deed is, indeed, inaccurately worded; but the Court ought to give such an effect to it as may best consist with what appears to have been the manifest intention of the parties, and what may best conduce to the real justice of the case. In the recital it speaks, in the first place, of an agreement to pay, and not of the actual payment of the sum of 401. And then the consideration for the release is stated in these words: "In consideration of the said sum of 401. being now so paid to the said Thomas Lampon the younger, as herein before is mentioned." These latter words shew, that the parties meant to refer to the former part of the deed, where it speaks of an agreement to pay this sum; and that we ought to read the whole sentence thus: "In consideration of the said sum of 401. being now so agreed to be paid as aforesaid." If that were not so, this absurdity would follow; that the deed would recite an agreement to release in consideration of the payment of 40l.; and then would proceed to release the defendant from the payment of that very sum itself. We have been pressed with the difficulty arising out of the words immediately following; "the receipt of which said several sums of money they, the said Lampon the elder and plaintiff, admit, &c." But these may and do refer, most properly, to the payment of 10s. a-piece to those persons *mentioned immediately before. And

2 Taunt. 141, 144.

LAMPON

v.

CORKE.

[*609]

[ *610 ]