Goodwin against Noble and Others
| Jurisdiction | England & Wales |
| Judgment Date | 25 November 1857 |
| Date | 25 November 1857 |
| Court | Court of the Queen's Bench |
English Reports Citation: 120 E.R. 219
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
S. C. 27 L. J. Q. B. 204; 4 Jur. N. S. 208. Distinguished, Williams v. Taylor, 1869, 21 L. T. 613.
[587] goodwin against noble and others. Wednesday, November 25th, 1857. M,, being lessee of certain premises for a term of years to G., under a lease containing a covenant by G. that M. should at any time during the term be at liberty to purchase the freehold, and having made arrangements for borrowing a sum of money for the purpose of making such purchase, agreed with A., in consideration of A.'s having paid off certain mortgages upon the premises, to assign the said freehold to A. by way of mortgage, subject to a first mortgage to the lender of the purchase money. A deed was executed by M., which recited, among other things, that G. had conveyed the freehold to M., leaving a blank for the date of the indenture of conveyance, and recited also that M. had made a mortgage to the lenders of the purchase money, a blank being left for the date of the deed of mortgage. It then witnessed that M. conveyed the premises (subject to such last mentioned mortgage), "and all the estate, right, title, interest, property, claim and demand whatsoever" of M. in the said premises, to A., his heirs and assigns, for ever. The freehold was not then, nor was it eventually, conveyed by G. to M.-Held, that the deed did not paas M.'s leasehold interest; that, looking at the intention of the parties, the deed muat be construed as intended to pass the freehold, when purchased ; and that, such purchase never having been made, the deed was, with respect to those premises, wholly inoperative.-The assignees of a bankrupt, lessee of an hotel, upon the bankruptcy closed the hotel, with the exception of the tap, which was occupied by a third party, tenant to the bankrupt before the bankruptcy. He was supplied, by order of the assignees, with beer and spirits at a slight advance over cost price, he keeping the proceeds of the business for himself, and the profit on the sale to him being credited to the bankrupt's estate. The license of the tavern was renewed in the bankrupt's name by the assignees. A distress was put in upon the premises on two occasions by the lessor; and the assignees, after asking for time, paid rent and costs of distress, for the purpose, as they stated, of saving the furniture, which was afterwards removed from the premises by their order. On their being threatened with ejectment for certain breaches of covenant, their attorney said they would resist the ejectment. The tap was afterwards closed by their order.- Held, on a case giving the Court power to draw inferences of fact, that these acts did not shew an election to take the lease.-Under circumstances leaving it in doubt whether the assignees are adopting a lease or not, the lessor should take (a) Lord Campbell C.J., Coleridge, Wightman and Erie J. 220 GOODWIN V. NOBLE 8 EL. * BL. JS8. steps to compel the assignees to elect, under The Bankrupt Law Consolidation Act, 1849 (12 & 13 Viet. c. 106), s. 145. [S. C. 27 L. J. Q. B. 204; 4 Jur. N. S. 208. Distinguished, Williains v. Taylm; 1869, 21 L. T. 613.] Covenant on an indenture of lease, dated 6th June 1853, by which plaintiff demised to Thomas Masters certain premises called The Beulah Spa Hotel, for twenty five years. The declaration set out the lease, which contained covenants by Masters to pay the rent; to lay out 5001. upon the premises within two years; to keep the premises in repair; to insure them ; and to keep the hotel open as a tavern. Averment: that, after the making of the said indenture, and during the said term thereby granted, to wit on &c., all the estate and interest of the said T. Masters in the said premises, by assignment thereof, legally came to and vested in defend-[588]-ants: whereupon defendants entered into aud upon the said premises, and were possessed thereof from thence during all the time of the happening arid committing by defendants of the breaches of covenant thereinafter mentioned. Breaches : non-payment of rent; non-expenditure of 5001. on the premises within two years; non-repair; non-insurance; and not keeping open the hotel as a tavern. A count was also added, by Judge's order, for use and occupation. Pleas to the first count: 1. That all the estate and interest of the said Thomas Masters in the said premises, by assignment thereof, did not come to or vest in the defendants as alleged. Issue thereon. 2. That, after the making of the said indenture, and before the commencement of this suit and the bankruptcy of the said T. Masters thereinafter mentioned, the said T. Masters, by an indenture dated 30th December 1854, granted and assigned the said premises to C. Appleyard and B. Simpson, their heira and assigns, for ever, subject as in the said indenture expressed : that, after the making of the said indenture, and while the same was in force, the said T. Masters became bankrupt, and defendants were duly appointed assignees; and that the assignment in the declaration mentioned waa an assignment to defendants as such assignees. Issue thereon. 3. That the assignment in the declaration mentioned was an assignment to defen dants upon and by reason of the bankruptcy of the said T. Masters, who, after the making of the indenture in the declaration mentioned, became a bankrupt within the meaning of The Bankrupt Law Consolidation Act, 1849; that defendants were duly appointed assignees; and that, save under such bankruptcy, the estate and interest of the [589] said T. Masters in the declaration mentioned never came to defendants by assignment: and that defendants, as such assignees, never elected to take the said premises within the meaning of the provisions of the said statute; nor were they, as such assignees, ever required to elect whether they would accept or decline the same according to the provisions of the said statute; nor did plaintiff, being entitled to the rent under the said demise in the declaration mentioned, ever apply to the Court of Bankruptcy for an order; nor did the said Court ever order defendants, aR such assignees, to elect, or make any other order touching the accepting or declining of the same by defendants as such assignees, under the provisions of the said statute. Replication : that defendants did elect to take the said premises. Issue thereon. 4. to the second count: Never indebted. Issue thereon. At the trial, at the Summer Assizes for Surrey, 1856, a verdict was taken for the plaintiff, subject to the opinion of this Court upon a special case and to the determination of an arbitrator as to the amount of...
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