Doe on the demise of Marlow against Wiggins

[367] doe on the demise of MARLOW against wiggins. Tuesday, February 7th, 1843. The landlord of premises dying, a tenant, whose term would have expired on 10th October 1840, signed the following document. "I, J. T., agree with W. M." (the late landlord's devisee) " to retake of him two acres," &c. (the land occupied by the tenant and devised as above), "from 10th October 1840, when my tenancy expires, till March 25th, 1841, for the sum of 101. And I promise W. M. in the mean time a right to plant fruit trees and to come on the land for that purpose: and I further agree with W. M. to give him quiet possession on 25th March 1841." W. M. did not sign. The tenant retained possession during the term above specified. Held, that the instrument was not subject to stamp duty under stat. 55 G-. 3, c. 154, Sched. part 1, as a lease. Per Lord Denraau C.J. and Patteson J., because it was not executed by any person as lessor. Per Coleridge J., because it contained no stipulation by any person as lessor, and therefore would not have been a lease even if executed by the landlord. Held, also, that it was not liable to stamp duty as an agreement under the schedule, because the subject matter was not of the value of 201. The subject matter of such an agreement is the rent, not the value of the occupation. Agreements for leases at a rack rent of less than 51. a year, though for a term of four years, are exempt from duty by the above Schedule, part 1, tit. Agreement. The tenant paid rent to the devisee, and signed the agreement, on being told by the devisee that the premises were devised to him. Held that, in ejectment against the tenant by the devisee, the defendant could not offer evidence that the devise was void by reason of incapacity in the testator, no ground being shewn for imputing fraud to the devisee in the communication made by him to the tenant. [S. C. 3 G. & D. 504; 12 L. J. Q. B. 177 ; 7 Jur. 529. Applied, Carlton v. Bowcoek, 1884, 51 L. T. 661.] Ejectment for land, &c., in the parish of St. Leonard, in the county of Leicester. On the trial before Williams J., at the Leicestershire Spring Assizes, 1842, the material facts appeared to be as follows. John Thompson had come into possession of the premises as tenant to Samuel Simpson. Pending the tenancy (in 1839), Simpson died, devising the premises to Marlow, the lessor of the plaintiff. Marlow told Thompson that he, Marlow, was Simpson's devisee; and Thompson afterwards paid Marlow rent in respect of the holding eomraenced under Simpson. Marlow gave Thompson a notice to quit, which would have expired at Michaelmas, 1840 : but an agreement was afterwards made between Marlow and Thompson, and reduced into writing, as follows. " I John Thompson do hereby agree with William Marlow to retake of him two acres of land, be it more or less, and premises, in the Abbeygate, iu the parish of St. Leonard, Leicester, from the 10th day of October [368] 1840, at which time ray tenancy thereof expires, until the 25th day of March 1841, for the sum of 101. And I promise the said William Marlow in the mean time a right to plant fruit trees, and to come on the said land and premises with his servants and labourers for that purpose whenever he shall think proper. And I further agree with the said William Marlow to give him quiet possession of the said land and premises on the 25th day of March 1841. Witness this 19th day of September 1840." (Signed) "john thompson." Marlow did not sign. Before the expiration of the term mentioned in this agreement, Wiggins, the defendant, obtained posaession under Thompson (a). The agreement was produced on behalf of the plaintiff, but objected to because (a) Wigbtman J. was absent. (a) Wiggins alleged some title in himself: but it was admitted, on the discussion of this cause in Bane, that he stood on the same footing of right with Thompson. K. B. xuil-30* 938 DOE V. WIGGINS 4Q.B. 369. unstamped. Williams J. overruled the objection, being of opinion that the writing was an agreement the subject matter of which did not amount in value to 201.: but he gave leave to move to enter a nonsuit. The defendant offered evidence that Simpson, at the time of the alleged devise, was incapable of making a will: but the learned Judge held that the defendant, standing in the same relation to Marlow as Thompson, was estopped from giving such prod; and the evidence...