Francis Cooke Rogers against John Humphreys

[299] francis cooke rogers against john humphreys. Monday, Nov. 23d, 1835. A mortgagee, after default in payment by the mortgagor, has (if he think proper to exercise them) the same rights against a tenant by lease granted before the mortgage, as the mortgagor had, and may take his remedy on such lease, as assignee of the reversion. If the lease was made by the mortgagor subsequently to the mortgage, the mortgagee may treat the tenant as a trespasser, but cannot distrain, or sue for rent, unless he has accepted rent from the tenant, or has given him notice to pay rent, and the tenant has acquiesced. A deed to lead the uses of a recovery, after reciting that the premises were to be conveyed for the purpose, among others, of securing payment of 8001. advanced by J. H. to M. R., tenant in tail in remainder, declared the uses as follows :-To H. and L., their executors, &c., for 1000 years, to commence from the day before the date, &c., in trust (subject to the powers, &c., after mentioned), upon nonpayment of the 8001. and interest, to sell or mortgage, and pay that sum to J. H. : arid, from and after the determination of that term, and subject meantime thereto, and to the trusts thereof, to E. R., mother of M. R., for life : remainder to T. L., his executors, &c., for 2000 years, to commence from the day of the decease of E. R., in truat to levy and repay such sums as E. R. should during her life pay to J. H. for interest on the 8001., and to suffer the person next in remainder or reversion expectant on the first term to receive the residue of rents not applied in executing the trusts of the latter term: remainder, and in the meantime subject thereto, to such uses as M. R. should appoint, and, in default of appointment, to him for life: remainders to his sons and to his daughters in tail: remainders over. A power was then reserved to E. R. to demise the premises for ten years from the date of the deed, of seven years from the day of her decease, reserving the best rent, &c. E. R. demised the premises to a tenant for seven years from the day of her decease, reserving rent "to M. R., or the person for the time being entitled to the freehold or inheritance of the premises immediately expectant" on the decease of E. R. She died and the lessee entered. M. R. died shortly afterwards, and left a daughter. Afterwards, the trustees of the terms of 1000 and 2000 years assigned them to J. H., default having been made in the payment of his 8001. Held, that the seven years' lease granted by E. R., being made under a power created by the deed of uses, must be deemed contemporaneous with the term of 1000 years created by the same deed, and binding on the trustees of that term, who were parties to the deed, so that they could not disturb the possession. That the trustees of that term, though not " entitled to the freehold or inheritance," were the reversioners entitled to the rent reserved by the lease, and, consequently, that their assignee might distrain for it. And this, although an ejectment had been brought against the lessee, on the demises, among others, of the last-mentioned trustees (laid previously to their assignment to J. H.); there having been no judgment, nor any actual eviction of the lessee. The Court, after giving the above decisions on a special case, ordered judgment to be entered up for the successful party for half a year's rent. On application of that party in the next terra, it appearing, on reference to the special case and postea, that the rule for judgment should have been for a year's rent, and no judgment having yet been entered up, the Court, after cause shewn, amended the rule on payment of costs. [S. C. 5 N. & M. 511 ; 1 H. & W. 625; 5 L. J. K. B. 65.] Replevin for cattle, goods, and chattels, taken October 14th, 1833. The defendant (a) See the observations of the Court on a subsequent application by the same party against the Lords Commissioners ; Rex v. The Lords Commissioners of the Treasury, Easter term 1836. [4 Ad. & E. 976.] 800 ROGERS V. HUMPHREYS 4 AD. & E. 300, avowed the taking of the cattle, goods, and chattels, as a distress for rent due and in arrear from the said plaintiff to the said defendant, and averred that it became payable on the [300] 20th of May and 20th of November in every year. Plea, iioh tenuit; and issue thereon. On the trial before Patteson J. at the Spring Assizes for Shropshire, 1834, the defendant had a verdict for 1501., the amount of the rent in arrear (a), subject to the opinion of this Court on the following case. By indentures of lease and release (b) dated 24th and 25th of September 1830, the latter being made between Elizabeth .Rogers widow, who was tenant for life of the premises thereby conveyed, of the first part; Milward Rogers, tenant in tail in remainder of the same premises, of the second part; William Henry Rosser, of the third part; John Williams, of the fourth part; John Humphreys, the defendant, of the fifth part; William Humphreys and Thomas Lloyd, of the sixth part; and Thomas Lloyd, of the seventh part; after reciting(c) that John Humphreys had agreed to lend Milward Rogers 8001. on the security of his bond, and of the hereditaments after-mentioned and referred to in that recital, which 8001. John Humphreys had paid to Milward Rogers; it was witnessed that, for barring all estates tail in the hereditaments after mentioned, Elizabeth Rogers and Milward Rogers did convey to Rosaer the premises in respect of which the distress was taken, to the intent that he might become tenant to the prsecipe for suffering a common recovery, wherein Williams should be demandant, Rosser tenant, and Milward [301] Rogers vouchee. And it was agreed that the aaid recovery, and those presents, and all other conveyances and assurances to be made or suffered by and between all or any of the parties, should enure to the use of the said William Humphreys and Thomas Lloyd, their executors, administrators, and assigns, for the term of 1000 years, to commence from the day next before the day of the date thereof, but nevertheless upon the trusts, &e., and subject to the powers, provisoes, &c., thereinafter expressed : and after the determination of the said terra, and in the meantime subject thereto and to the trusts thereof, to the use of Elizabeth Rogers for life, without impeachment of waste; remainder, from and after her decease, or other sooner determination, &c., to the use of the said T. L., his executors, &c., for the term of 2000 years, to commence from the day of the decease of E. R., or other, &c., upon the trusts after declared ; remainder, after the determination of the said estate, and in the meantime subject thereto, and to the trusts...