Grey v Friar
| Jurisdiction | England & Wales |
| Judgment Date | 05 August 1854 |
| Date | 05 August 1854 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 583
House of Lords
Mews' Dig. viii. 903. S.C. 18 Jur. 1036; and, below, 5 Exch. 584, 597; 15 Jur. 814. Considered in Bastin v. Bidwell, 1881, 18 Ch. D. 248.
Lease - Notice to determine - Condition precedent.
[565] JOHN GREY and Others-Plaintiffs in Error; THOMAS FRIAR'- in Error [June 21, July 4, August 5, 1854]. [Mews' Dig. viii. 903. S.C. 18 Jur. 1036 ; and, below, 5 Exch. 584, 597; 15 Jur. 814. Considered in Bastin v. Bidwell, 1881, 18 Ch. D. 248.] Lease-Notice to determine-Condition precedent. A. became tenant to B. of a colliery and also of some farm land, at distinct rents. The lease contained very numerous covenants as to the payment of the rents, and as to the management of each property. The term created was for forty-two years; but the tenant was to have liberty to put an end to the term, on giving eighteen months' notice before the expiration of the first eight years, or of any subsequent three years. The proviso which gave the tenant this liberty, after describing the giving of the notice, contained these words: " Then and in such case (all arrears of rent being paid, and all and singular the covenants and agreements on the part of the said lessees having been duly observed and performed), this lease, and every clause and thing therein contained, shall, at the expiration of the first eighth year, and thereafter at the expiration of any such third year, cease, determine, and be utterly void. * * * But nevertheless, without prejudice to' any claim or remedy which any of the parties hereto may then be entitled to for breach of any of the covenants or agreements hereinbefore contained." The Court of Exchequer had held that this proviso did not make the performance of all the covenants a condition precedent to the tenant's power to put au end to the lease. The Court of Exchequer Chamber held that the proviso did make the performance of the covenants a condition precedent. The Lords were equally divided, and so the judgment of the Exchequer Chamber was affirmed. This was an action of covenant for rent, brought by Thomas Friar, as reversioner, against Grey and others, as surviving lessees of a colliery or coal mine, and a farm, situate in the parish of Northani, in the county of Durham. The lease upon which the action was brought, dated 30th April, 1838, was granted for a term of forty-two years, commencing 12th May, 1838, determinable, as after men-[566]-tioned, at a fixed rent of 280 per annum for the colliery, on a calculation that there would be annually raised therefrom1 134,588 bolls- of coal, and 51 per annum for the land, payable half-yearly on the llth of November and the 12th of May in each year. If an increased quantity of coal should be obtained, an increased rent was to be paid; if the quantity of coal obtained in any one year should be less than the 134,588 bolls, the rent of 280 was still to be paid, but the deficiency in the coal obtained was to be made up from any surplus quantity obtained in any three succeeding years during the continuance of the lease, but not afterwards. The lease also contained numerous covenants by the lessees, both with respect to the colliery and the farm, and then followed a proviso enumerating these covenants, and providing that if the rents, or any of them, or any part thereof, should be in arrear for forty 583 IV H.L.C., 567 GREY V. FRIAR [1854] days, or if payment of money which might be awarded to be due from the tenants for the exercise of any of the powers and liberties granted in the lease should not be duly made, or if any such award should not be obeyed, or if pits not wanted for air or water should not be filled up, or if the carrying on and management of the colliery should be neglected, or if sufficient walls and pillars of coal to support the roof should not be left, or if any thing should be done, or neglected to be done, whereby the colliery might be drowned with water, or otherwise damnified, or if a barrier of twenty yards should not be left against the adjoining collieries, or if the coal under any houses should be disturbed within twenty yards of the site, or if monthly accounts of the quantities of coal wrought should be refused to be presented to the lessor, or if he should be hindered from inspecting the books or gauging the corves, or if the tenant should not keep the houses, etc. in repair, or should demise or assign the colliery without license, or [567] should enter into partnership with persons except as named in a preceding covenant (namely, those who were of kindred by blood or marriage'), or should not manage the lands in the manner specified, or should obstruct the lessor in making trials in working coal, or should become bankrupts, then in any or either of the said cases the covenant for quiet enjoyment hereinafter contained * shall cease and be void; and it shall be lawful for the lessor, his heirs or assigns, to enter upon and take possession of the demised premises, and the same to have again, re-possess and re-enjoy as of his or their former estate; and then also it shall be lawful for the lessor, his heirs or assigns, to enter into and upon all or any part of the said premises, and there to seise and take possession of all or any of the engines, etc., used and employed in carrying on the said colliery, and to sell and dispose of the same in and towards the payment of all or any of the said respective rents which may then be in arrear : Provided also, that if the lessees, their executors, etc., shall be desirous to quit the said premises hereby demised at the end of the first eight years of the said term, or at the end of the first or any subsequent three years after the expiration of the said eight years, and of such their desire shall give to the lessor, his heirs or assigns, notice in writing eighteen calendar months before the expiration of such eighth year, and thereafter before the expiration of any such three years (as the [568] case may be), then in such case (all arrears of rent being paid, and all and singular the covenants and agreements on the part of the lessees having been duly observed and performed), this lease and every clause and thing herein contained shall, at the expiration of the first eighth year and thereafter at the expiration of any such third year (whichever in the said notice shall be expressed), cease, determine, and be utterly void to all intents and purposes, in like manner as if the whole of the said term of forty-two years had then run out and expired; But nevertheless without prejudice to any claim or remedy which any of the parties hereto or their respective representatives may then be entitled to for breach of any of the covenants or agreements hereinbefore contained." The lease then contained certain covenants on the part of the lessor, and concluded with an arbitration clause, by which, in the event of any question or dispute arising between the parties relative to or concerning the amount of any damage or compensation to be paid under the lease, or any covenant, clause, word, matter, or thing therein contained, either of the said parties could require and obtain a settlement thereof by arbitrators to be chosen as therein mentioned. The declaration assigned two breaches-one being the non-payment of rent for the colliery for two years and a half, commencing on the 12th day of May, 1847, and ending on the llth day of November, 1849 ; the other being for two years and a half rent of the farm, beginning and ending at the same times. The defendants, by their plea, after setting out the lease on oyer, stated that the whole of the rents alleged in the declaration to have become due and payable, had be- * The covenant for quiet enjoyment was in these terms. The lessor, etc., covenants with the lessees, etc., " that it shall and may be lawful to and for them, well and truly paying the said rents and sums of money at the days and times hereinbefore limited and appointed for payment thereof, and performing all and singular the covenants on their parts and behalves to be kept, observed, and performed (but not otherwise), peaceably and quietly to Lave, use, and occupy," etc., " during the said term of forty-two years (determmable, nevertheless, as hereinbefore-mentioned)." 584 GREY V. FRIAK [1854] IV H.L.C., 569 come due and payable after the 12th day of May, 1846, and after the lease had been determined, and they said that they, being desirous to quit the demised premises at the end [569] of the first eight years of the said term, did, eighteen calendar months before the expiration of the first eight years of the said term, give to the plaintiff notice in writing of such their desire, and thereby gave him notice that they would quit and deliver up possession of the said demised premises on the 12th day of May, 1846, being the end of the first eight years of the said term: And the defendants further said that, at the expiration of those eight years, all arrears of the said rents so reserved and made payable by the said indenture having been paid, and all and singular the covenants and agreements in the said indenture contained on the part of the lessees having been duly observed and performed at the expiration of the said first eighth year of the said term, the said lease, and every clause and thing therein contained, ceased, determined, and were utterly void to all intents and purposes, in like manner as if the whole of the said term of forty-two years had then run out and expired. The plaintiff replied, that all and singular the covenants and agreements in the said indenture contained on the part of the lessees had not been duly observed and performed at the expiration of the said first eighth year of the said term, in manner and form, etc.; but that, on the contrary, after the making of the said indenture, and during the term thereby granted, and before the expiration of the first eight years of...
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