Bowser v Colby
| Jurisdiction | England & Wales |
| Judgment Date | 11 December 1841 |
| Date | 11 December 1841 |
| Court | High Court of Chancery |
English Reports Citation: 66 E.R. 969
HIGH COURT OF CHANCERY
S. C. 11 L. J. Ch. 132; 5 Jur. 1106. See Howard v. Fanshawe [1895], 2 Ch. 587.
[109] bowser v. colby. ~Nm. T87T97'20, 24, Dec. 8, 11, 1841. [S. C. 11 L. J. Ch. 132; 5 Jur. 1106. See Howard v. Fanshawe [1895], 2 Ch. 587.] A lessee applying to redeem a lease, which has become forfeited at law by non-payment of rent, is not required by the statute 4 Geo. 2, c. 28, s. 3, before the hearing, to pay into Court the arrears of rent or the costs at law, if no injunction is granted until the hearing, and the lessor is in possession. Where the suit to redeem the lease was brought by the personal representatives of the lessee, evidence having been given tending to shew that the lessee in his lifetime was insolvent, and had committed breaches of covenant, and that his estate was also insolvent, the Court directed an issue to try whether other breaches of covenant had been committed or waived, but imposed it as a term upon the Plaintiff that he should previously pay into Court the costs at law and the arrears of rent due at the time the lessor sued out his writ of possession. The arrears of rent and amount of costs brought into Court by the Plaintiff, in a suit to redeem a lease forfeited by non-payment of rent, must, if the bill is dismissed, be repaid to the Plaintiff. Semble. Equitable agreements, charging the property comprised in a lease, but not accompanied with a change of possession or other alteration of the property, do not work a forfeiture of the lease in equity, notwithstanding there is a clause in the lease against assignment: Semble. A Court of Equity, when asked by a lessee to grant him relief, will consider the conduct of the lessee in dealing with the property whether that conduct does or not involve a breach of covenant. (1) Dumergue v. Mullins, 20th Jan. 1842. Similar motion refused on the like ground. On appeal to the Lord Chancellor motion refused for the same cause, 28th Jan. 1842. V.-C. xl-31* 970 BOWSER V. COLBY 1 HAKE, 110. A lease provided that, in ease of any breach of covenant, it should be lawful for the lessor to re-enter and expel the lessee, and the lease should, in that case, be forfeited, and be utterly null and void. The lessee committed a breach by non-payment of rent. Semble, such a lease is voidable and not void. A Court of Equity will relieve a lessee from a forfeiture by non-payment of rent where there is a proviso that in that case the lease shall be void, as well as where there is a mere power of re-entry. A deed proved by the attesting witness vivd voce at the hearing is well proved for all purposes in the cause, unless it is impeached. Sir Hugh Owen, by indenture of lease, dated the 19th of September 1807, demised unto George Bowser the elder, his executors and administrators, the veins and seams of coal and culm under certain lands in the parish of Pembrey in the county of Carmarthen, with the usual powers for opening and working the same, for the term of fifty years from Michaelmas 1807 ; rendering unto Sir Hugh Owen, his heirs and assigns, one-sixth part of all the monies which should be made or produced by the sale of the coal and culm to be raised from the premises. And in case the lessee, his executors or administrators, should not raise, in the first year, so much coal and culm that one-sixth part thereof would amount to 25, in the second year to 50, and in the third and all subsequent years during the term to 100, then [110] paying to the lessor, his heirs or assigns, in such first year 25, second year 50, and third and all subsequent years 100; and it was provided that the account should be taken at the end of every third year after Michaelmas 1809, and the surplus workings taken upon the average of the three years. And George Bowser the elder thereby covenanted for himself, his heirs, executors, administrators and assigns, among other things, that he and they would duly pay the said reserved rents; and would, at the end of every six months during the term, deliver unto Sir Hugh Owen, his heirs or assigns, a true account of all the coal and culm raised from the premises during the preceding six months, and of the monies produced thereby ; and that Sir Hugh Owen, his heirs and assigns, should have liberty to inspect the books, and to appoint an accountant or bankman to render such account; and that George Bowser the elder, his executors and administrators, should not nor would, during the same term, demise, assign or set over or let the said mines, veins or seams of coal, or any of them, or any part thereof, or the liberties thereby granted, or any of them, without the license or consent in writing of Sir Hugh Owen, his heirs or assigns. And it was thereby provided that if George Bowser the elder, his executors, administrators and assigns, should not well and truly pay or cause to be paid unto Sir Hugh Owen, his heirs or assigns, the said reserved rents within fourteen days next after the same should become due, being lawfully demanded; or if George Bowser the elder, his executors, administrators or assigns, should make default in performing, fulfilling and keeping all or any of the covenants, provisoes and agreements thereinbefore contained, which on his and their part were or ought to be performed, fulfilled and kept; or if George Bowser the elder, his executors or administrators, should become insolvent, or the term thereby granted, [111] or any part thereof, should be sold or assigned to any person or persons under a writ of execution of any judgment or judgments against him or them, that then and thenceforth, and in every or any of the said cases, it should be lawful to and for Sir Hugh Owen, his heirs and assigns, into and upon the said premises, or any part thereof, in the name of the whole, to re-enter, and the same to have again, repossess and enjoy, as in his or their first and former estate ; and the said George Bowser the elder, his executors and administrators, and all other occupiers and possessors thereof, from thence to expel and amove; and that the lease as to the term thereby granted should, in that case, be forfeited; and the same term should cease, determine and be utterly null and void, as if the same had never been made; but the covenants and agreements entered into by George Bowser the elder, for himself, his executors and administrators, should continue and be in force against him and them, until he or they should have fully performed and fulfilled the same to the time of such forfeiture. George Bowser the elder entered into possession under the lease. Sir Hugh Owen died in 1809, having devised the mines and premises to John Colby the elder, I HARE, 112. BOWSEB V. COLBY 971 his heirs and assigns. John Colby the elder devised the same premises to the Defendants, Cordelia Maria Colby, Thomas Frederick Colby and Charles Matthias, upon certain trusts, and ultimately to the use of his eldest son, Hugh Owen Colby and his heirs. Hugh Owen Colby afterwards died under twenty-one, leaving the Defendant, John Colby, his brother and heir at law. George Bowser the elder died on the 29th of March 1835, having, by his will, appointed the Plaintiffs, Mary Ann Bowser, his widow, and G-eorge Bowser, his son, and the Defendant, Abraham Meredith, his executrix and [112] executors, and leaving also two other sons, Samuel Bowser and Eobert Bowser, surviving. The will was proved in May 1835 by Abraham Meredith alone; and George Bowser and Samuel Bowser entered into possession of the mines as mortgagees. In October 1835 the Defendants, C. M. Colby, and her co-trustees brought an action of covenant against Meredith to recover the arrears of rent of the premises due from the estate of George Bowser, the elder ; to which action Meredith pleaded plenk administravit. They also, in Michaelmas term 1835, brought an action of ejectment against the Plaintiff, George Bowser, and Samuel Bowser to recover possession of the mines; and the said George Bowser and Samuel Bowser, not appearing to defend the action, judgment by default was signed against the casual ejector on the 18th of February 1836, as of the preceding Hilary term. The Defendant, John Colby, came of age in February 1837. In Michaelmas term 1837 a writ of scire facias was issued, and the same was served on George Bowser and Samuel Bowser on the 10th of November 1837. The judgment was afterwards revived, for want of appearance to the scire facias, and the writ of possession was issued and executed, and possession delivered to the Defendant, John Colby, on the 23d of December 1837. The bill was filed the 12th of June 1838 by Mary Ann Bowser and George Bowser, as personal representatives of George Bowser the elder; and stated that George Bowser the elder expended large sums of money in working the colliery, and in bringing the coals to market, and paid 2190 for the sleeping rent, though the value of one-sixth of the coals worked during that time amounted to less than 1200; that, upon the [113] death of George Bowser the elder, the Plaintiffs, George Bowser and Samuel Bowser, entered into possession of the mines and premises, for the purpose of satisfying monies which had been advanced to George Bowser the elder in his lifetime, out of the property settled on his wife, to enable him to pay the rent, the working of the mines being conducted by Samuel Bowser alone. The bill alleged that the agents of the Defendants had, in some communication with Samuel Bowser on behalf of himself and the Plaintiff, George Bowser, agreed to accept the arrears of rent, and give up the premises to the Plaintiffs, if they should place themselves in a position to take them, by proving the will of George Bowser the elder; and that, in January 1838, the Plaintiffs proved the will, and tendered the amount of the arrears of rent to the Defendants, which was refused: it also stated that the Defendant, Meredith, refused to join in the suit. The bill prayed an account of...
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...no sufficient reason for excluding him from relief. 29 On the other hand, Mr Rochford, very properly, referred us to the case of Bowser v. Colby (reported in 1 Here, at page 109) as it tended to support the view of the matter taken by his opponent, it was a Judgment of Vice-Chancellor Wigra......