Duppa, Executor of Baskerville v Mayo
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 336
COURT OF KING'S BENCH
See Marshall v. Green, 1875, 1 C. P. D. 39; In re Smith, Bilke v. Roper, 1890, 45 Ch. D. 636
[275] 42. duppa, executor of baskerville, versus mayo. Hil. 20 & 21 Car. II. Regis, Rol. 1463. [See Marshall v. Green, 1875, 1 C. P. D. 39; In re Smith, Bilke v. Roper, 1890, 45 Ch. D. 636.] Same entry, 1 Bro. Ent. 179, pi. 64. Herefordshire, to wit.-Be it remembered, that heretofore, to wit, in the term of St. Michael last past, before our lord the King at Westminster, came Thomas Duppa, Esquire, executor of the last will and testament of Elizabeth, Lady Bas-[276]-kervile, deceased, by John Crump, his attorney, and brought here into the Court of our said lord the King then there his certain bill against Thomas Mayo, gent, in the custody of the marshal, &c. of a plea of debt; and there are pledges of prosecution, to wit, John Doe and Richard Roe; which said bill follows in these words, to wit; Herefordshire, to wit, Thomas Dnppa, Esquire, executor of the last will and testament of Elizabeth Lady Baskervile, deceased, complains of Thomas Mayo, gent, being in the custody of the marshal of the Marshalsea of our lord the King, before the King himself, of a plea that he render to him 13601. of lawful money of England, which he unjustly detains from him : for that whereas Robert late Earl of Essex was seised of and in a messuage, and 200 acres of land, 20 acres of meadow, 100 acres of pasture, and 103 acres of wood, with the appurtenances, in Bodenham, Rosbury, Moore, Beeresfielrl, and Maund, in the said county, in his demesne as of fee: and being so seised thereof, he the said earl afterwards, to wit, on the 4th day of December, in the 43d year of the reign of the Lady Elizabeth, late Queen of England, at Bodenham aforesaid, demised, granted, and to farm let (1) to one Sir Thomas Coningsby, Knight, the said tenements, with (1) It is to be observed, that it is not said, that the lessor demised by deed or other writing, bub only generally, that he demised the premises for a certain term. There seem to be two reasons for this way of pleading, first, because if the lease were by deed, which was not necessary at this time, the plaintiff is a stranger to it, for he does not claim the land, but only a rent-charge out of it, which was created by another instrument; and therefore, as he has not the deed, he cannot state it: 10 Rep. 93, 94, Leyfield's case. 1 Ves. 394, Whitfield v. Fausset: and secondly, which seems the chief reason, because the distinction is, that where a lease for years by indenture is the gist and foundation of the action, as where debt, or covenant, is brought upon any covenant contained therein, it is necessary to state the demise to have been by deed; Cro. Eliz. 571, Southwel v. Brown; and to set out so much thereof as is sufficient to support the action, and no more; 1 Lev. 88, Elliott v. Blake. Cowp. 665, Dwndas v. Lord Weymouth. Ibid. 727, Price v. Fletcher; but where such lease is but inducement to the action, it is only necessary to state generally, that the lessor demised the premises for a certain term, without saying it was by indenture. See ante, 38, note (3). For at common law, a lease for any number of years might be made by tenant in fee-simple by parol only; and though the statute of Frauds, 29 Car. 2, c. 3, ss. 1, 2, enacts, " that from thenceforth, all leases, or terms for years, made by parol, and not put into writing, and signed by the lessors, or their agents authorised by writing, shall have only the effect of leases at will, except leases not exceeding the term of three years from the making," (a) yet it is held, that the statute has not altered the manner of (a) Notwithstanding these express words of the statute, it is held that a parol lease, for more than three years, enures as a tenancy from year to year. 5 T. R. 471, Doe v. Bell 8 T. R. 3, Clayton v. Blakey. [2 Bing. N. C. 752, Doe v. PuUen, by 1WM8.SAUTO.178. TRIN. 22 CAR. II. REGIS 337 the appurtenances, to have and occupy to the said Sir Thomas Coningeby, his executors, pleading; ante, 211, note (2), and see the next note; and therefore this general mode Tindal C.J.: but see the observations in Smith's Leading Cases, vol. ii. p. 75, et seq. Parol leases not exceeding the term of three years are valid, and may contain the same special stipulations as regular leases; and whatever remedy can be had upon them, in their character of leases, may be resorted to ; Or. & J. 391, Edge v. Stratford. 5 A. & E. 856, Lord Bolton v. Tomlin. 1 Nov. & P. 247, S. C.; but, by reason of the 4th section of the statute, they do not confer the right to sue the lessee for damages for not taking possession. 1 Cr. & J. 391.] It may not be improper in this place to point out how the landlord or tenant may, in some cases, determine the tenancy. What was formerly considered as a tenancy at will, has in modern times been construed to be a tenancy from year to year ; 3 Burr. 1609, Timmins v. Rowlinson. 1 T. E. 163, Right v. Darby. 3 T. R. 16, Doe v. Purler. 8 T. R. 3, Clayton v. Blakey ; unless the circumstances of the case clearly render such, a construction impossible ; as where the defendant let a shed to the plaintiff for ao long as both parties should like, on an agreement that the plaintiff should convert it into a stable, and the defendant should have all the dung for a compensation, there being no reservation referable to any aliquot part of a year. 4 Taunt. 128, Richardson v. Langridge. Under an agreement " that the tenant shall always be subject to quit at three months' notice," he is not tenant from year to year, but from quarter to quarter. 3 Camp. 510, Kemp v. Derrett. It must by no means be understood, that a strict tenancy at will cannot exist at the present day. Such tenancy may clearly be created by the express agreement of the parties : and other cases may be put where such tenancy will even now arise; for instance, the case of a mortgagor in possession. 5 B. & A. 604, Partridge v. Here. 1 D. & R. 272, S. C. [But though the mortgagee may treat his mortgagor, as against a stranger, as his tenant at will, he is not bound to do so, and may, therefore, bring ejectment against him as a trespasser, without any previous demand of possession ; 8 B. & C. 767, Doe v. Maisey. 3 Mann. & R. 107, S. C. 9 B. & C. 245, 253, 257, 258, Pope v. Biggs. 4 Mann. & R. 193, S. C. 5 Bing. 421, Doe v. Giles. 2 Moo. & P. 749, S. C. 2 Bing. N. C. 538, 543, Waddilove v. Barnett. 2 Scott, 763, S. C. 4 M. & W. 409, Hitchman v. Walton. 1 Mann. & Gr. 117, Brown v. Storey. 1 Scott, N. R. 9, S. C. 11 A. & E. 307, Doe v. Barton. 3 Perr. & D. 194, S. C. 6 M. & S. 148, Doe v. Boulton; unless he has recognised the right of the mortgagor, or his tenant, to hold possession. 7 Bing. 322, Doe v. Hales. 5 M. & P. 132, S. C. 2 B. & Ad. 473, Doe v. Cadwallader. 4 A. & E. 299, Roger* v. Humphreys. 5 Nev. & M. 511, S. C. 4 M. & W. 409. (See 9 A. & E. 342, Evans v. Elliot. 1 Perr. & D. 256, S. C.) As to what shall amount to a re-demise from the mortgagee to the mortgagor, so as to entitle him to notice or demand of possession, see 2 Q, B. 143, Doe v. Goldwin. 1 G. & Dav. 463, S. C. 2 Q. B. 147, Doe v. Day. When a man enters under an agreement for a lease, he is only tenant at will till he pays, or agrees to pay, rent, or settles it in account; and then he becomes tenant from year to year subject to such of the terms of the agreement as are applicable to that species of tenancy, and determinable on the execution of the lease contracted for. 6 Esp. 106, Doe v. Breach. 3 B. & C. 483, Hamerton v. Stead, by Littledale J. 5 D. & R. 213, S. C. Ry. & M. 355, Mann v. Lovejoy. 3 Bing. 361, Knight v. Bennet. 5 Bing. 118, Cox v. Bent. 1 Bing. 451, Regnart v. Porter. 1 Cr. M. & R. 398, Doe v. Cawdor. 2 Bing. N. C. 749, 753, Doe v. Pullen. 6 M. & W. 104, Chapman v. Toivner, by Parke B. 12 A. & E. 476, Doe v. Amey. 10 M. & W. 494, Braythwayte v. Hitchcock. The law is the same where a man has possession under a lease which is void. 1 A. & E. 52, Richardson v. Gifford. 2 M. & W. 365, 367, Doidge v. Bowers. 3 Bing. N. C. 850, Beetle v. Sanders. 3 Mann. & Gr. 498, Berrey v. Lindley. 4 Scott, N. R. 61, S. C. So where a man has possession under an agreement to purchase, he is a tenant at will: 1 M. & W. 700, Doe v. Stanion, by Parke B. 5 C. & P. 595, Doe v. Miller. 5 M. & Wi 14, Doe v. Chamberlaine. 8 M. & W. 118, Howard v. Shaw; and he will not be con verted into a tenant from year to year by a stipulation in the contract of sale for payment of interest on the amount of the purchase-money until the completion of the purchase: 5 M. & W. 14: seats, where there is a stipulation that the intended 338 DUPPA V. MAYO 1 WMS. SAUND 276. and assigns, for and during and until the full end and term of 99 years thence next of pleading is still sufficient, notwithstanding the statute, where the lease for years is purchaser shall pay at the rate of a sum certain per annum, from the time of taking possession until the completion of the purchase. 6 B. & C. 524, Saunders v. Musgrave. (See 4 A. & E. 528, Seaton v. Booth.) For other instances where a strict tenancy at will has been held to exist, see 9 Bing. 356, Doe v. Price. 10 B. & C. 718, Doe v. Jones. Ibid. 721, Doe v. M'Kaeg. As to how such a tenancy may be determined, see 9 Bing. 356. 10 B. & C. 721. 2 C. M. & E. 120, Ball v. Cullimare. 2 A. & E. 329, Eoe v. Street. 4 Nov. & M. 42, S. C. 7 M. & W. 226, Doe v. Turner. 9 M. & W. 643, S. C. in Cam. Scacc. A tenant who continues to occupy after the expiration of his term ia a tenant at sufferance ; until he pays rent, and then he becomes tenant from year to year: 7 T. R 83, Doe v. Watts. 2 B. & C. 100, Bishop v. Howard: so if he performs services due from the tenant in the way of rent. 1 B. & Ad. 365, Doe v. Morse. But a mere payment of a compensation for the occupation will not thus change the nature of the tenancy. 1 Or. M...
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