Carpenter v Parker
| Jurisdiction | England & Wales |
| Judgment Date | 13 November 1857 |
| Date | 13 November 1857 |
| Court | Court of Common Pleas |
English Reports Citation: 140 E.R. 718
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 27 L. J. C. P. 78; 6 W. R. 98.
[206] carpenter v. parker. Nov. 13th, 1857. [S. C. 27 L. J. C. P. 78; 6 W. R. 98.] By a deed of settlement made by the defendant in 1842, under a power contained in his father's will, a term of 1000 years in certain estates was limited to Teed and White, in trust, by mortgage, sale, or otherwise, to raise a sum not exceeding 10,0001. for payment of the defendant's debts; and in 1843 the trustees assigned the term by way of mortgage to A. and B., the defendant being a party to the deed, covenanting for payment of the principal and interest, and also for title in the trustees, and for quiet enjoyment by the mortgagees in case of default. This assignment contained a power to the defendant to lease, by and with the consent and approbation of the mortgagees, their heirs, &c. In 1846, the defendant, without haying obtained the consent of the mortgagees, granted a lease of part of the lands to the plaintiff, with a covenant for quiet enjoyment during the term, "without the let, suit, trouble, 3C. B. (N, S.)207. CARPENTER V. PARKER 719 denial, eviction, molestation, or disturbance of the lessor, his heirs or assigns, or any person or persons claiming or deriving, or to claim or derive, by, from, or under him, them, or any of them."-The plain tiff in 1851 received a notice from the surviving mortgagee, informing him of the mortgage, and that the principal and interest were unpaid and in arrear, and requiring the plaintiff to pay rent to him. Having consulted his attorney, and finding that he could not successfully resist the claim of the mortgagee, the plaintiff consented to give up possession of the land to him, and the mortgagee entered and took possession,-paying the plaintiff 751. as a compensation for certain improvements.-Upon a case stated for the opinion of the court:-Held, that the plaintiff was entitled to maintain an action upon the covenant for quiet enjoyment,--the facts shewing an eviction, or, at all events, a molestation and disturbance of the plaintiff, by one claiming title by, from, or under the defendant.-The breach assigned in the declaration alleged an "eviction" only, and that by one having title " by virtue of a mortgage theretofore to him made by the defendant :"-The court amended the declaration, by alleging the eviction to have been by one claiming " by, from, or under the defendant," and adding that the plaintiff was "molested and disturbed" in his enjoyment of the premises. This was an action brought by the plaintiff to recover 10001. damages against the defendant, for an alleged breach of a covenant for quiet enjoyment of a mansion and property at Cherrymount, in the county of Waterford, in Ireland. The declaration stated, that therefore, to wit, on the 26th of May, 1846, the defendant by deed let to the plaintiff certain lands at Cherrymount, in the county of Waterford, in Ireland, to have and to hold all and singular the said demised premises, together with their and every of their rights, members, and appurtenances, unto the plaintiff, his heirs, executors, administrators, and assigns, from the 29th of September then last past, for and during the natural lives and life of the plaintiff and his the plaintiff's wife, and the survivor of them, or for and during the full term, time, and space of thirty-one years from the said 29th of September, which-[207]-ever of the said terms should longest last: That the defendant did in and by the said deed covenant with the plaintiff that he the plaintiff should and might peaceably and quietly have, hold, occupy, possess, and enjoy the said demised premises, with their and every of their appendances and appurtenances, during the term thereby granted, without the let, suit, trouble, denial, eviction, molestation or disturbance of the defendant or his heirs or assigns, or any person or persons claiming or deriving or to claim or derive, by, from, or under him, them, or any of them: That, by virtue of the said indenture, the plaintiff afterwards, and before this suit, entered into and upon the said demised premises, and became and was possessed thereof for the said term so to him thereof granted as aforesaid : Breach, that, although the plaintiff had always from the time of the making of the said deed thitherto observed, performed, fulfilled, and kept all and singular the covenants and agreements in the said indenture contained on his part to be observed, performed, fulfilled, and kept; yet the plaintiff did not during the said term peaceably and quietly have, hold, occupy, possess, and enjoy the said demised premises and appurtenances according to the said covenant, [but, on the contrary thereof,] (a)1 after the making of the said deed, and dur ng the said term thereby granted, and whilst the plaintiff was possessed of the said demised premises, with their appurtenances, one Hilary Frederick L'Estrange, who before and at the time of the making of the said deed, and continually from thence until and at the time of the eviction and expulsion thereinafter mentioned, had, and who still had, lawful right and title to the said premises, with the appurtenances [to wit, by virtue of a mortgage thereof [208] theretofore to him made by] (a)2, by, from, aiid under the defendant, and not by or under the plaintiff, did enter into the said premises, with the appurtenances, claiming such right and title to the same as aforesaid, and molested and disturbed the plaintiff in his enjoyment thereof, and ejected, expelled, and removed the plaintiff therefrom, and kept and held out, and still kept and held out, him the plaintiff from his possession and occupation thereof,-by reason of which premises the (a)1 These words were struck out on the argument, at the suggestion of Willes, J., and the word " and " substituted. (a)2 The words within brackets were struck out, and those in italics inserted on the amendment. 720 CARPENTER V. PARKER 3 C. B. Q* S.) 209. plaintiff had not only entirely lost and been deprived of the said demised premises, with their appurtenances, but also a large sum of money, to wit, 5001., by him paid, laid out, and expended in and about the repairing and permanently improving the said premises, and was compelled to sell off his the plaintiff's stock of and belonging to the said premises, in great haste, and at a considerable sacrifice and loss : And the plaintiff claimed 10001. The defendant pleaded,-first, non est factum,-secondly, that the plaintiff did during the said term peaceably and quietly have, hold, occupy, possess, and enjoy the said demised premises and appurtenances, according to the said ccivenant, and that the said premises, with the appurtenances, were not entered into, nor was the.plaintiff ejected, molested, disturbed, expelled, or removed therefrom, or kept or held out from his possession or occupation thereof, as alleged. Issue thereon. The cause came on for trial before Jervis, C. J., at the sittings for London after Trinity Term, 1856, when a verdict was taken for the plaintiff, with 10001. damages, and 40s. costs, subject to the opinion of the court upon the following case:- [209] In the early part of the year 1846, the plaintiff was desirous of taking and renting a certain mansion-house, with buildings, lands, and premises, situate at a place called Cherry mount, in the county of Waterford, in Ireland : and, on the 26th of May, 1846, the defendant by lease granted and demised to the plaintiff all that part of Cherrymount then lately in the possession of L. Sheridan, and then in the plaintiff's actual possession, amounting to 61a. 3r. 30p., together with the dwelling-house, offices, and appurtenances, to hold the said demised premises, with their rights, members, and appurtenances, unto the plaintiff and his heirs, from the 29th of September then last past, during the natural lives and life of the said plaintiff and Sarah Carpenter, his wife, and the survivor of them, or for and during the term, time, and space of thirty-one years from the said 29th of September, fully to be complete and ended, whichever of the said terms should longest last, he the plaintiff yielding and paying the annual rent of 921. 18s., and, amongst other covenants in the said lease was the following,- "And, further, that he the said plaintiff, his heirs, &c., paying the said reserved yearly rent, and performing the covenants and agreements on his and their parts to be paid and performed, shall and may peaceably and quietly have, hold, occupy, possess, and enjoy the said demised premises, with their appendances and appurtenances, during the term thereby granted, without the let, suit, trouble, denial, eviction, molestation, or disturbance of the said defendant, his heirs or assigns, or any person claiming or deriving, or to claim or derive, by, from, and under him or them, or any of them." The lease was duly executed by the defendant on the day it bears date; and the plaintiff entered into and upon the said demised premises, and took possession thereof, according to the terms of the lease, and continued in possession thereof until the 15th of Sep-[210]-tember, 1851, when he received and was served with a notice by one Hilary Frederick L'Estrange, in the words and figures following:- "Whereas, by indenture bearing date the 15th of September, 1843, and made between John Godfrey Teed, of, &c., and Edmund White, of, &c., of the first part, Henry Parker, of, &e., of the second part, and Thomas L'Estrange, of, &c., and Hilary Frederick L'Estrange, of, &c., of the third part, the lands of Conneragh, situate in the barony of Coshbride, in the county of Waterford, and also the lands of Ballyrussell, situate in the barony of Coshmore and Coshbride, and county of Waterford, and the lands of Old and New Conniky and Moneygowin, consisting of arable, meadow, and pasture, and containing in the whole, by...
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...to him. It followed from this that the mortgagee could not exercise any of the powers given to a landlord for arrears of rent. In Carpenter v Parker 140 ER 718 the mortgage deed expressly prohibited any lease without the consent and approbation of the mortgagees. The defendant leased the pr......