Evans against James Elliot, Samuel Elliot, and Patrick
| Jurisdiction | England & Wales |
| Judgment Date | 01 December 1838 |
| Date | 01 December 1838 |
| Court | Court of the Queen's Bench |
English Reports Citation: 112 E.R. 1242
IN THE COURT OF QUEEN'S BENCH
S. C. 1 P. & D. 256; 8 L. J. Q. B. Distinguished, Underhay v. Read, 1887, 20 Q. B. D. 213. Approved, Towerson v. Jackson, [1891] 2 Q. B. 486.
evans against james elliot, samuel elliot, and patrick. Saturday, December 1st, 1838. Where a mortgagor in possession makes a lease, after the mortgage, reserving rent, the mortgagee cannot, by merely giving the lessee notice of the mortgage, and that principal and interest are in arrear, and requiring such lessee to pay the rent to him, make the lessee his tenant, or entitle himself to distrain for rent subsequently accruing under the terms of the lease. Nor, if, after such mortgagee's death, his executors distrain for rent accrued before his death, but after the notice, and avow upon a holding by the lessee under the terms of the original lease, as tenant to the mortgagee, will such avowry be supported by proof that, after the mortgagee's death, the lessee paid the executors rent, in sums and at periods corresponding to the reservation in the lease, and recognised them as his landlords by letter; such a recognition not having relation back to the notice. Quaere, how far the mortgagee by his own conduct, as by permitting the mortgagor to remain in possession and to lease, without interfering, may preclude himself from treating the mortgagor and his lessee as trespassers ? [S. C. I P. & D. 256; 8 L. J. Q. B. 51. Distinguished, Underhay v. Read, 1887, 20 Q. B. D. 213. Approved, Towersm v. Jackson, [1891] 2 Q. B. 486.] Keplevin. Avowry by James Elliot and Samuel Elliot, and cognisance by Patrick, as their bailiff, for 271. 10s. rent, for half a year ending 29th September 1832, stating the locus in quo to have been, before and [343] on and after that day, held and enjoyed by plaintiff as tenant thereof to Samuel Elliot deceased, under a demise at a rent of 551., payable half yearly, to wit 25th March and 29th September; and that, after the said 271. 10s. became due, Samuel Elliot died, and made the defendants James Elliot and Samuel Elliot his executors. There was also another avowry and cognisance, which led to a demurrer, on which judgment was given for the plaintiff. See Evans v. Elliot (5 A. & E. 142). (a) See p. 339, note (a), ante. 9AD.&E.3M. EVANS V.ELLIOT 1243 Fleas in bar, to the first avowry and cognisance, 1. Biens in arrere. 2. Non teuuit modo et forma. Issues thereon. On the trial before Lord Denman C.J., at the Brecknockshire Summer Assizes 1836, the plaintiff proved that, in 1830, Philip Elliot, being then in possession of the locus in quo, granted to the plaintiff a lease (or agreement for a lease), for a term of eleven years, at 551. per annum, payable as stated in the pleadings; and that the plaintiff took possession under the lease, and held till the time of the distress, which was made in November 1834. The plaintiff paid rent to Philip till Michaelmas 1832, including the rent then due. The defendants proved that, by indenture of llth August 1827, between Philip Elliot, of the first part, and the testator Samuel Elliot, of the second part, in consideration of 11001. paid to Philip by the testator, Philip bargained, sold, and demised to him the locus in quo, habendum to the testator, his executors, &c., for 1000 years, subject to a proviso for cesser of the term on repayment of the 11001. with interest. Philip continued in possession; but, the interest having become in arrear, the testator, on 3d [344] May 1832, gave the plaintiff notice of the mortgage and that the principal and a considerable sum for interest were due; adding, " I do therefore give you notice not to pay any rent now due, or hereafter to become due, from you, for the said messuages," &c., " to the said Philip Elliot, or to any other person or persons on his behalf, but to pay the same rent and arrears of rent to me," &c. The testator died in December 1832, leaving the defendants James and Samuel Elliot his executors. The plaintiff on two occasions paid half a year's rent, 271. 10s., to the executors, at periods corresponding to the reservation in the lease; and he wrote to them letters in which he requested them to perform certain repairs on the property, saying, " I am satisfied I cannot live under you as tenant, unless you will put the building more comfortable," and "you cannot expect of one to build on your premises." The Lord Chief Justice, on these facts, considered that the defendants' case was made out, and directed a verdict for them. In Michaelmas term 1836, Chilton obtained a rule for a new trial, on the ground of misdirection. In Hilary term last (a), Evans and Nicholl shewed cause. It will be contended that notice, by the mortgagee, to a party who has become tenant under a lease granted by the mortgagor after mortgage, does not make him tenant to the mortgagee under such lease; and the dicta in Partington v. Woodcock (6 A. & E. 690. 5 N. & M. 672), will be referred to. In that case it was urged, on the authority of Pope v. Biggs (9 B. & C. 245), that the [345] mortgagor's tenant may shew, against the mortgagor, that the mortgagee, under a mortgage prior to the commencement of the tenancy, has demanded the rent: upon which Patteson J. remarked that...
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