Doe on the several demises of Henry Chawner, Henry William Beavan, and Hugh Phillips Beavan, against Henry Boulter

[678] DOE ON THE SEVERAL DEMISES OF HENRY CHAWNER, HENRY WlLLIAM beavan, and hugh phillips beavan, against henry boulter. Monday, May 1st, 1837. T., being tenant by the courtesy, demised to C. for ninety-nine years if he T. should so long live, at a pepper-corn rent, to the intent that C. should re-demise as next-mentioned ; and, immediately after, C. re-demised to T., for ninety-eight years if T. should so long live, at a rent of 551., with a proviso that, if the rent should be in arrear, C. might enter on the premises, and have, hold, use, occupy, &c., the messuages, lands, &c., and take the rents and profits, until, by perception of the rents and profits, or otherwise, he should be satisfied. Afterwards T. demised to defendant for sixty years. Before the sixty years expired, the 551. rent being in arrear, C. brought ejectment, and T. defended as landlord. C. recovered ; and the defendant, to prevent a writ of possession being executed, attorned to C., and thenceforward paid rent to him. Afterwards, and during the sixty years' term, defendant was served with notice of an award, reciting a submission to reference by one H., and by T. and C., and that H. was entitled to an annuity, charged on the lands with the usual powers of distress, as trustee, under a grant by T. prior to T.'s demise to C.; and the award adjudged that H.'s rent charge was in arrear, that H. was entitled to priority over C., and that H. should receive the rents. The defendant then signed a memorandum that he attorned to and became tenant of H. ; and afterwards he paid rent to him. Held, that defendant, by attorning to C., became tenant to him from year to year, C. having a right to enter and suspend his term of sixty years till C.'s rent-charge was satisfied ; and that afterwards defendant, by attorning to H. upon notice of the award, became tenant to H. from year to year; and that H. could maintain ejectment against defendant after giving him six months' notice. [S. C. 1 N. & P. 650; W. W. & D. 333 ; 6 L. J. K. B. 179.] Ejectment for messuages and lands in Radnorshire. The cause was tried at the Radnorshire Summer Assizes, 1835, before Patteson J. No evidence was offered in support of the demise of Henry William Beavan. The plaintiff proved the execution of the following instrument, dated 12th April 1826, by the defendant. " Memorandum. That I have this day attorned to, and become the tenant of, Mr. Hugh Phillips Beavan of," &c., " for a farm," &c., " now in my occupation; and in acknowledgment of such attornment have this day paid to Mr. Richard Pemberton, the authorised agent of the said Hugh Phillips Beavan, the sum of 21. on account of the arrears due to the said Hugh Beavan." It was also proved that, after this, rent had been paid to Hugh by the defendant, and distresses levied on him by Hugh, and that Hugh had given the defendant a regular notice to quit [676] The defendant then put in a lease from one Theophilus Beavan to the defendaut, for sixty years, from 24th July 1811, if Theophilus should ao long live; and it was shewn that Theophilus was, at the time of the lease, tenant by courtesy of the premises, that he formerly received rent under the lease from the defendant, and that he was still alive. The defendant then contended that the attornment, and other circumstances proved, shewed simply an acknowledgment by the defendant of Hugh as landlord in 6 AD. & E. 677. DOE V. BOUL.TKB 261 the place of Theophilus, and that the defendant was therefore entitled to hold on to the end of the sixty years' term. The learned Judge inclining to this opinion, the plaintiff put in evidence in reply. First, he proved that, in 1823, Cbawner brought ejectment for the lands in question, against the defendant, then being tenant in possession, and for others, and that Theophilus Beavan defended as landlord. In this ejectment, Chawner's title was founded upon two deeds, dated respectively^6th and 17th of October, 1795. By the former deed, between Theophilus of the one part, and Chawner of the other, Theophilua, in consideration of 5501. paid to him by Chawner, granted, bargained, sold, and demised, to Chawner, his executors, administrators, and assigns, the premises now in dispute, together with others, habendum to Chawner, his executors, &c., for ninety-nine years, if Theophilua should so long live, at a pepper corn rent, on trust that Chawner, immediately after the execution of that deed, should execute an underlease of the thereby demised premises, for ninety-eight years, determiuable on the death of Theophilua, at the rent of 551., the under lease to be dated the day after the date of the present deed, arid to be made between Chawner of the one part, and Theophilus of the second ; [677] Theophilus covenanted that he had good title for his life, an annuity of 251. (not material to the present case), and an annuity or rent charge of 801. granted by Theophilus, by indenture of 30th August 1785, to Gabriel Nicholls and John Griffiths, for ninety-nine years, determinable on the death of Theophilus, and the powers and remedies given for enforcing and compelling the payment of the two annuities, always excepted and foreprized. By the indenture of 17th October (between Chawner of the one part and Theophilus of the other), in performance of the deed of the 16th, and in consideration of the payment of the 5501. by Chawner to Theophilus, and of the rent and covenants in the present deed reserved and contained, to be paid and performed by Theophilus, Chawner bargained, sold, and demised the same premises to Theophilus and his assigns for ninety-eight years, if Theophilus should so long live, at a rent of 551.; and Theophilus, for himself, his heirs, executors, and administrators, covenanted to pay the rent...