Doe on the Several demises of Graves and Lowne against Wells and Trowbridge
| Jurisdiction | England & Wales |
| Judgment Date | 03 June 1839 |
| Date | 03 June 1839 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 162
IN THE COURT OF QUEEN'S BENCH.
S. C. 2 P. & D. 396; 8 L. J. Q. B. 265; 3 Jur. 820. Adopted, Archbold v. Scully, 1861, 9 H. L. C. 381.
427] dob on the several demises of graves and j^ownb against wells and tbowhridge. Monday, June 3d, 1839. A tenant for a definite term of years does not forfeit his term by orally refusing, upon demand of the rent made by his landlord, to pay the rent, and claiming the fee as his own. [9. C. 2 P. & D. 396 ; 8 L. J. Q. B. 265 ; 3 Jur. 820. Adopted, Archbold v. Scully, 1861, 9 H. L. C. 381.] Ejectment for lands in Wiltshire. The several demises were alleged in the declaration to have been made on 17th October 1836, habendum for seven years, from (a)1 7 A. & E. 480. See the judgment, ibid. 490. (a)3 See 2 & 3 Viet. c. 85, and Regina v. The Justices of Wilts, post, sittings in Baac. after M. t. 1840. 10AE.&E.U8. DOE V. WELLS 15th October 1836. After pleas pleaded, Wells compromised with the lessors of the plaintiff, but Trowbridge continued to defend. On the trial before Pabteson J., at the Wiltshire Summer Assizes, 1837, it was proved, on the part of the plaintiff, that Graves, the lessor of the plaintiff, was entitled to the reversion upon a lease under which Trowbridge held, which lease was for ninety-nine years, to end in 1888, determinable on certain lives not yet expired, at a rent. It was further proved that, on 17th October 1836, Graves'a agent, in a conversation with Trowbridge, who was then in possession, demanded the rent of him, but Trowbridge then refused to pay it, and asserted that the fee was in himself. The counsel for the' plaintiff contended that this was a disclaimer, working a forfeiture of Trowbridge's term; the defendant's counsel disputed this, and contended further that, even supposing this to be a forfeiture, the demise was laid too early, being on the very day of the supposed forfeiture. The learned Judge directed the jury to find for the plaintiff, if they were of opinion that the words used by Trowbridge were not mere idle language, but a serious claim of the fee. The jury having found for the plaintiff, the learned Judge reserved leave to the defendant's counsel to move to enter [428] a verdict for the defendant. In Michaelmas term, 1837, Crowder obtained a rule accordingly. Erie and Barstow now shewed cause. As to the day of the demise, Roe dem. Wrangham v. Hersey (3 Wils. 274), shews that it may be the day on which the title of the lessor of the plaintiff accrues. There the title, it is true, accrued by death of the ancestor, not, as here, by disclaimer; but that can make no difference. Doe dam. Lewis v. Co/wder(b) was a case of disclaimer: but in that case there was nothing to carry back the disclaimer even to the day of the demise. Secondly, the disclaimer here worked a forfeiture. That takes place wherever the tenant does any act incon sistent with the relation of landlord and tenant, especially if derogatory to the landlord's title. In Doe dem. Ellerbrock v. Flynn (1 Or, M. & R. 137. 4 Tyrwh. 619), the tenant gave up possession to a hostile claimant, in fraud of the landlord, for the purpose of enabling the claimant to set up the adverse title against the landlord: and this was held to be a forfeiture of the tenant's term. So a disclaimer dispenses with a notice to quit, even where it is doubtful whether there be a term to which the disclaimer will apply; here the term is clearly shewn to have existed at the time of the disclaimer. [Littledale J. There are several cases in Com. Dig., Forfeiture (see {A, 5)), of forfeiture by acknowledging a hostile title on record.] In Hovenden v. Lord Anneslty (2 Sch. & Lef. 607. See p. 625), Lord Eedesdale assumed that the assenting by a tenant to the [429] claim of a stranger...
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