Doe on the Demises of Hughes and Rising v Bucknell
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1839 |
| Date | 01 January 1839 |
| Court | High Court |
English Reports Citation: 173 E.R. 620
IN THE COURTS OF KING'S BENCH, COMMON PLEAS AND EXCHEQUER
(Civil Side) before Mr. Justice Patteson. DOE ON THE DEMISES OF HUGHES AND RlSING V. BUCKNELL. (If a person who has an estate borrows money on it upon mortgage, and the mortgagor afterwards grants a lease of the property to a tenant, e g for 21 years, that lease being made after the mortgage, cannot be set up by the tenant to prevent the mortgagee from recovering the possession of the property, and the mortgagee may put the tenant out of possession by an ejectment, and the only remedy the tenant has for being thus put out of possession is against the mortgagor. But if instead of the mortgagee turning the tenant out of possession, he consents to take the tenant as his tenant, the mortgagee will not thereby set up the 21 years' lease, but will make the tenant his tenant from year to year only ) Ejectment to recover a farm called Curriers, in the parish of Shrawley It appeared that the property had formerly belonged to Mr Bourne, who had mortgaged it to Mr. Goode, and that Mr. Hughes had bought the property subject to the mortgage, and had also purchased the mortgage term which had been assigned for his benefit to Mr. Rising, as trustee, Mr. Rising having no interest in the property except* as trustee for Mr. Hughes It further appeared that the defendant had occupied the property for a considerable time, and that before Lady-day, 1838, Mr. Hughes, the soa of the lessor of the plaintiff, called on him and asked if he would give up the= possession, of a field of five acres, which was wanted for brick earth. This the delendant refused to do, saying, that Mrs. Bourne, the widow of Mr. Bourne, had granted him a lease of the property for her life. He was then asked if he would give up the property, provided that the regular notice to quit was given, [567] and he replied that he would not, unless he was paid the sum of £190, or unless Mr. Hughes would insure the life of Mrs. Bourne for £300, for his benefit. It was contended by Talfourd, Serjt, for the plaintiff, that a notice to quit was unnecessary, as the defendant had disclaimed the title of Mr. Hughes, and had set up that he had a right to the property in himself for the life of Mrs. Bourne. 8 GAB. £ p. 568. COOK V. HARTLE 621 Maule, for the defendant, submitted that this was not a disclaimer ; and that if the defendant was merely a yearly tenant, he...
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