Doe on the demise of Higginbotham against Barton and Warburton
| Jurisdiction | England & Wales |
| Judgment Date | 13 January 1840 |
| Date | 13 January 1840 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 432
IN THE COURT OF QUEEN'S BENCH.
S. C. 3 P. & D. 194; 9 L. J. Q. B. 57; 4 Jur. 432. Adopted, Serjeant v. Nash, [1903] 2 K. B. 315.
432 DOE V. BARTON 11AD.&E. 307. [307] doe on the demise of HiGGiNBOTHAM against barton and warburton. Monday, January 13tb, 1840. M., being seised in fee of land, mortgaged to 0., but remained in possession, and afterwards demised part for a terra to B., who also entered ; after which M. mortgaged to H. H. after this received rent from B., and demised the other part to A. Afterwards B. arid A., on notice from O., paid 0. rent. H. then brought ejectment (after notice to quit) against B. and A. Held that B. and A. might both shew, in defence, the first mortgage to O., O.'s notice to them, and their payment of rent to O. For that, although B. could not dispute M.'s title at the time of the demise, he might shew that H. had no derivative title from M., and he was not precluded by having paid rent to H. under a mistake of the facts. That A., by shewing that M., at the time of the demise to him, was only mortgagor in possession, did not impugn M.'s right to confer upon him, by the demise, a legal title to the possession, but might shew that M. had since been treated as a trespasser by the mortgagee, so as to determine M.'s right; and that O.'s notice to the tenant to pay him the rant might, if received in evidence, tend to shew that by so doing O. treated the mortgagor aa a trespasser. [S. C. 3 P. & D. 194 ; 9 L. J. Q. B. 57 ; 4 Jur. 432. Adopted, Serjeant v. Nash, [1903] 2 K. B. 315.] Ejectment for messuages and lands in Cheshire. On the trial before Alderson B., at the Chesire Summer Assizes, 1837, the lessor of the plaintiff proved that Matthew Morton, being seized in fee of the premises in question, let a part, in August 1826, to the defendant George Barton, as tenant from year to year. By lease and release of 20th and 21st March 1829, Morton assigned all the premises, by way of mortgage, to Thomas Higginbotham, the lessor of the plaintiff. Afterwards Barton, upon demand made by the lessor of the plaintiff, paid the rent to him from time to time, the first of such payments being made in September 1831, and the last in January 1835. The lessor of the plaintiff demised the part not let to Barton to Elizabeth Bullock, aa tenant from year, in 1833; and she paid the rent to him from thence till September 1834, inclusively. She afterwards underlet to the defendant John War-burton. In 1835, both Barton and Bullock refused to pay the rent to the lessor of the plaintiff: and he duly served notices to quit (a)1. [308] In answer, the counsel for the defendant offered to prove that Morton had, by lease and release of 19th and 20th February 1821, mortgaged the premises in question to Thomas Marriott in fee, but had remained in possession ; and that, by lease and release of llth and 12th November 1835, Marriott had conveyed the same premises to George Woodhead in fee; and that Woodhead afterwards gave notice to the tenants to pay him the rents, and received them accordingly. The learned Judge was of opinion that the defendants were estopped from this defence, and rejected the evidence. In Michaelmas term, 1837, Jervis obtained a rule for a new trial. In Trinity term last (ft)". Evans and Welsby shewed case. The defendant Barton cannot set up the prior mortgage, because the effect of such a defence would be to deny that Morton, from whom Barton took as tenant, had a right to demise. The supposed mortgage...
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