Cuthbertson v Irving
| Jurisdiction | England & Wales |
| Judgment Date | 07 July 1860 |
| Date | 07 July 1860 |
| Court | Exchequer |
English Reports Citation: 157 E.R. 1034
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 28 L. J. Ex. 306. affirmed 1860, 6 H & N. 135. Referred to, Onward Building Society v. Smithson, [1893] 1 Ch. 7.
1004 CUtHBERTSON I1. IRVING 4 H & N 712. [742] trinity vacation, 23 Yricrr. cuthbertson v. irving. Juue 24, 1859.-If any estate or interest passes from a lessor, or his real title is shewn upon the face of the lease, theie can be no estoppel.-If a lessor has no title, and the lessee be evicted by title paramount, he may plead that as a defence to an action by the lessoi.-But so long as a lessee continues in possession under the lease, he cannot set up any defence founded upon the fact that the lessor " nil habuit in tenemeutis," and upon the execution of the lease there is, in contemplation of the law, created in the lessor a reversion in fee simple by estoppel which passes by descent to his heir and by purchase to his assignee or devisee, who may sue on the covenants in the lease -J. B., being mortgagor in possession, on the '2'2ud of Febiuaiy, 1848, by indenture, executed by him and the defendant, demised to the defendant certain premises for seven years at a yearly lent. The lease contained a covenant by the defendant with B., his heirs and assigrib, to repan the premises, J B hnding iron and wood for that purpose. On the 2nd of February, 1854, J B executed an indenture, whereby, after reciting that the premises were mortgaged and that he had sold the equity of redemption to the plaintiff, he "granted, bargained and sold, aliened, released and surrendered the premises, and all his estate, right and title, both at law and itr equity theiein, to the plaintiff, to have and to hold to him, his heirs and assigns, for ever" The defendant paid rent to J. B until the execution of this indenture, and after that time to the pLuntift'. The plaintiff sued the defendant for a breach of the covenant to repair, and the declaration, after stating the lease and covenant, alleged that J. B by deed assigned the premises to the plaintiff, whereby the reversion theieof, subject to the term created by the lease, vested in him. The defendant pleaded, secondly, that J. B. did not assign the premises to the pLiintiff, nor had he at the time of making of the lease any reversion of and in the premises, nor did any reversion in the premises come to the plaintiff. Fourthly, that J. B. did not nor would, nor did nor would the plaintiff, find iron and wood, as in the covenant mentioned -Held, that the plaintiff was entitled to have the verdict on the second plea entered for him, for the defendant was estopped from disputing that J B was seised of an estate in reversion; and as there were apt words in the assignment to convey a legal estate in fee in reversion to the plaintiff, the estoppel continued in his favour, notwithstanding the assignment to him shewed the want of title, and consequently he might sue on the covenants in the lease as assignee of the reversion -Held also, on demurrer to the fourth plea, that it was burl, and that, although the declaration was informal for not alleging that J. B was seised of some estate which by assignment would pass to the plaintiff as assignee, yet sufficient appeared in the declaration to shew that the plaintiff claimed to be assignee of an estate in reversion, and therefore, formerly, the objection would only have been open (if at all) on special demurrer , and now the remedy was by an application under the 52ud section of the Common Law Procedure Act 1852 [S. C. 28 L. J. Ex. 306 . affirmed I860, 6 H & N. 135. Referred to, Onward Building Society v. Smithton, [1893] 1 Ch. 7.] Covenant The declaration stated that, by an indenture made between John Biglands of the first part, the defendant of the second pait, and William Irving of the third part) the said John Biglauds demised, leased and to farm let unto the defendant certain lauds, and also a certain water corn mill, called Birkby Mill, with all and singular [743J the going gear and machineiy thereto belonging and then used theiewith, for a term of seven years, which has since expired, at a certain annual rent of 901. And the defendant did thereby, for himself, his heirs, executors arid administrators, covenant with the said John Biglands, his heirs and assigns, that he the defendant would from time to time dunrig the continuance of that demise, at his or their own costs and charges, repair, support, maintain and keep the said water corn mill, brickwork, &c, machinery and going gear to the said mill belonging, in good, substantial and tenantable repair, order and condition; the said John Biglands, his heire and assigns, finding iron and wood for that purpose, and the defendant finding workmanship (damage by fire and flood only excepted); and in such repan, older and 4H&H. Mi CUTHBERTSON V. IRVING 1035 condition should and would leave and deliver up the same to the said John Biglands, his heirs and assigns, at the expiration or other sooner determination of that demise. And the said John Biglands afterwards, and during the said term, by a certain deed by him duly made in that behalf, assigned the premises in the said indenture comprised to the plaintiff, whereby the reversion thereof, subject to the said term, came to and vested in the plaintiff And although tie plaintiff has always since that time performed all things and conditions precedent on his part to be pei formed, and all things and conditions precedent to the defendant's liability hereinafter mentioned always took place and were done, and no damage happened by lite or flood, yet the defendant did not nor would, during the said term, repair, suppoit, maintain or keep the said mill works in good, substantial and tenantable repair, oidei and condition, or in such repair, order and condition leave and deliver up the same to the plaintiff at the expiration of the said demise, according to his said covenant. And the plaintiff' says that the said mill \\orkswere, after the said leveraion [744] came to him as aforesaid^ and until and at the end of the said term, and until the same were delivered up as hereinafter mentioned, suffered to be, and were left by the defendant, m a bad and ruinous condition, and greatly prostiate, dilapidated and spoiled for want of the due keeping and performing by the defendant of his said covenant Theie weie also breaches alleging that, after the reversion came to the plaintiff', parts of the machinery and gear were pulled down by the defendant, arid that the defendant did not deliver up possession of the mill until two months after the expiration of the term Second plea That the said John Biglauds did not assign the premises in the said indenture comprised to the plaintiff*, nor had the said John Biglands, at the time of the making of the said lease, any reversion of and in the said premises, nor did any reversion in the premises come to or vest in the plaintiff Fourth plea. As to so much of the declaration as relates to the covenant to repair, support, maintain and keep in good, substantial and tenantable repair, order and condition; the said John Biglands, his heirs and assigns, finding iron and wood for that purpose, and in such repair, order and condition to leave and deliver up the airne, and the breaches in respect thereof: the defendant says that the said John Biglands did not nor would, nor did nor would any of his heirs or assigns, nor did nor would the plaintiff, find iron and wood as in the said covenant mentioned and provided, but made default therein. The plaintiff joined issue on the second plea, and demurred to the fourth. Tiie issues in fact came on for tnal before Byles, J., at the Cumberland Spring Assizes, 1859, and weie, togethei with the issue in law iaibed by the demuirer, referred to an arbitrator, with power to state a special case foi the [745] opinion of this Gouit. At the request of both parties, the following case was stated .-- On the 22nd February, 1848, the lease in the declaration mentioned, being a lease of a mill and premises for seven years from the 1st August, 1848 (which is to be taken as pait of this ease,(a)) was duly executed by John Biglands, [746] the lessor, (a) The material parts of this lease are as follows .- "This indenture, made the 22nd day of February, AD. 1848: Between John Biglands, of &c., of the first part; John Irving, of &c., of the second part, and William Irving, of &c., of the third part. Witnesaeth, that in consideration of the yearly rent hereby reserved and of the covenants and agreements hereinafter contained, and by or on the part of the said John Irving and William Irving, their executors, administrators, or assigns, to be paid, observed and performed, he, the said John Biglands, Doth hereby demise, lease, and to farm let unto the said Johu Irving, his executors, administrators, and assigns, All those pieces or parcels of arable and meadow land, &c, situate and being in the township of Birkby, in the county of Cumberland, commonly called or known by the names of East Brow, West Brow, &c , And also all that water corn mill, called Birkby Mill, situate in the township of Bnkby aforesaid, with all and singular the going gear and machinery thereto belonging and now used therewith, all which said premises are now in the occupation of the said John Irving. To have and to hold the said hereby demised premises unto the said John Irving, his executors, &c, from Lammas Day next, for and during the term of seven, years from thence next ensuing and fully to be completed and ended. Yielding aad paying therefore yearly and every year during the said term hereby demised unto the said John Biglands, his heirs and assigns, the rent or sum of 901 sterling, free and 1036 CUTHBERTSON V, IRVLNG 4 H. & K. 747. who was then mortgagor in possession of the demised premises*, and by the defendant John Irving, the lessee At the time of making the above lease, the defendant was in possession of...
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Industrial Properties (Barton Hill) Ltd v Associated Electrical Industries Ltd
...position ourselves to over-rule Harrison v. Wells. 23The truth is that the Court there misunderstood a case over 100 years old called Cuthbertson v. Irving, decided in 1959.The Court had only the report in the Law Journal, They ought to have looked at the report in 4 Hurl stone & Norman, wh......
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Harrison v Wells
...The chief case relied upon in support of that was a case in 1859 reported in volume 28 Law Journal Reports (Now Series) at page 306, Cuthbertson v. Irving. 10 The matter decided in that case was not the same as here. What had happened was that a mortgagor in possession, not having a power o......
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Southern Pacific Mortgages Ltd v Scott (Mortgage Business Plc intervening)
...This is the doctrine described as among the "clear" points about estoppel at first instance in Cuthbertson v Irving (1859) 4 Hurl & N 742, 157 ER 1034 (affirmed on appeal at (1860) 6 Hurl & N 135, 158 ER 56): neither the lessee nor the lessor can dispute one another's title and if the lesso......