Gledhill v Hunter
| Jurisdiction | England & Wales |
| Date | 1879 |
| Court | Chancery Division |
Practice - “Action for the Recovery of Land” - Action to establish Title - “Possession” - Joinder of Causes of Action - Leave of Court -
An action “to establish title to land,” not claiming possession, is not an action “for the recovery of land,” so as to require the leave of the Court, under Rules of Court, 1875, Order XVII., rule 2, for its joinder with another cause of action.
Where the writ was indorsed for declaration of title, declaration that a lease was granted under a mistake, recovery of rents and profits, and a receiver, and the statement of claim asked also for possession:—
Held, that this was an action for recovery of land and nothing else, and that there was no joinder of any cause of action which required the leave of the Court.
THIS was a motion by the Defendant in the above action that all further proceedings in the action might be stayed, and that the Plaintiffs might pay the costs of the action, on the ground that the action was one for the recovery of land, and that other causes of action had been joined therewith without the leave of the Court having been obtained for the purpose under Rules of Court, 1875, Order XVII., rule 2, before the issue of the writ.
The writ claimed to have it declared that the Plaintiffs, as trustees of the will of Edward Ridsdale, deceased, were entitled to the entirety of the rents and profits of a freehold messuage and premises at Barnsbury, in the county of York, and that so far as the Defendant had any legal right to receive the said rents from the tenant in occupation of the said premises, she was a trustee thereof for the Plaintiffs: To have it declared that, so far as any lease or agreement for a lease of the said premises was concurred in by the Defendant with the sanction of the said Edward Ridsdale, deceased, such concurrence was had or allowed under a mistake of title common to the Defendant and to the said Edward Ridsdale: A receiver of the rents and profits of the said premises: An injunction to restrain the Defendant from receiving the rents and profits of the said premises: An account of the rents and profits of the said premises received by the Defendant since the decease of the said Edward Ridsdale: Payment of the rents and profits so received: Costs; and further or other relief.
From the allegations in the statement of claim it appeared that on the death of Harriet Ridsdale, the mother of the said Edward Ridsdale, the property was, by a mistake of title, treated as belonging to Edward Ridsdale and his sister, the Defendant, Bessy Hunter, as tenants in common, instead of as belonging to Edward Ridsdale alone as heir-at-law of his mother. It was also alleged that upon the death of their mother Edward Ridsdale and Bessy Hunter both entered into receipt of the rents and continued to receive the same until the death of Edward Ridsdale, since which time the whole of the rents had been received by Bessy Hunter. It was also alleged that under the above mistake of title a lease of the property had been granted by Edward Ridsdale and Bessy Hunter to certain tenants who were now in possession.
The Plaintiffs were devisees in trust for sale under the will of Edward Ridsdale. By their statement of claim they claimed the same relief as by their writ, with the addition of “possession of the said freehold property.”
Seward Brice, for the motion:—
An action for a declaration of title to land is “an action for the recovery of land,” within the meaning of Rules of Court, 1875, Order XVII., rule 2, and, therefore, looking first of all at the indorsement of the writ, the Plaintiffs should have obtained the leave of the Court before joining the latter part of their claim to the first, which is for a declaration of title: Whetstone v. DewisF2. The claim to set aside the lease is, I submit, a distinct cause of action, which cannot be joined without leave: the only cause of action that could be joined under the rule would be the claim for rents and profits, that being in substance a claim “in respect of mesne profits or arrears of rent.” Accordingly, the Plaintiffs not having obtained leave under this rule to issue their writ in its present form, all the proceedings must be stayed: In re Pilcher, Pilcher v. HindsF3.
But, secondly, even if the writ itself does not fall within Order XVII., rule 2, the statement of claim clearly does, since it asks, in addition to the relief claimed by the writ, “possession” of the land, which alone is a sufficient ground for the motion.
Chitty, Q.C., and Caldecott, for the Plaintiffs, were not called upon.
JESSEL, M.R.: —
The first question I have to decide is whether an action commenced by a writ indorsed as this is — putting aside for the moment the statement of claim — is “an action for the recovery of land,” within the meaning of Order XVII., rule 2. Upon that I am referred to a decision of Vice-Chancellor Hall in Whetstone v. Dewis, in...
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Meagher v Woods
...deal with questions where a claim for possession is ancillary to a claim of title and says following the judgment in Gledhill v. Hunter 14 Ch. D. 492:- ‘If a plaintiff claims to establish his title, and also claims possession, the action will be treated as an action for the recovery of land......
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Nihal Mohammed Kamal Brake v The Chedington Court Estate Ltd
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McPhail v Persons, Names Unknown; Bristol Corporation v Ross
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