Harrison v Wells

I have asked Lord Justice Harman to deliver the first judgment.

LORD JUSTICE HARMAN: When he died In the year 1930, a Dr Tulk-Hart was the absolute owner of, among others, a property known as No. 18, Beynon Parade, Beynon Road, Carshalton. He made a will which was proved in the same year by his widow, Mrs Tulk-Hart, by a solicitor called Hallyar, and a third person of the name of Bryant. By that will he left all his property to his trustees for sale, to pay all testamentary expenses and debts, and so forth, with power to postpone the sale as they should think fit, "and to pay the income of my said trust estate" (which included this property) "as well before as after the sale conversion andinvestment thereof to my wife during her widowhood", with various remainders over with which we are not concerned.

Of what happened in the next nineteen years, we know nothing, but in 1949 there appears the document which has caused the trouble in this action, and which purports to be a lease made on the 16th June of that year between Mrs Tulk-Hart and the defendant in this case. That document demised to the defendant for seven years premises forming part of No. 18, Beynon Parade, and to those premises the Landlord and Tenant Act of 1954 applies, so that when the term of seven years would have come to an end In 1956, it was simply continued. What notices there were on each side do not perhaps matter, but the letting was certainly continued for a considerable time, and was eventually surrendered (so the facts are agreed before us) upon the handing over of the keys to the agent who was collecting the rent up till then on the 27th June 1961.

The lease, as I say, purports to have been made by Mrs TuIkHart, and like most leases does not say in what capacity she purports to make the demise) the term "lessor" is merely said to include persons deriving title under her. There are the usual repairing covenants in addition to the rent. By the time that the lease was surrendered in June 1961, several events had happened. The executors in 1951 executed in their own favour an assignment as trustees for sale, and in that same year the plaintiff, Mr Harrison, was appointed trustee instead of the third trustee, Bryant, so that you have then three trustees, Mrs Tulk-Hart, Hallyar and Harrison.

On the 20th June 1961 Mr Hallyar, who was solicitor to the trust as well as one of the trustees, died, so that when the lease was surrendered the trustees were Mrs Tulk-Hart and the plaintiff, Harrison. In December of 1961 Mrs Tulle-Hart died. That left Harrison as the sole trustee. She also left a will by which she appointed Harrison her executor, and in March of 1962 be started those proceedings against the defendant for damages for breach of the repairing covenants.

The action purports to be an action by him as personal representative of Sirs Tullk-Hart, and wan it imply an action for damages for breach of covenant. The statement of claim shortly states the case, states the repairing covenants, and in paragraph 4 says: "The aforesaid term of years terminated by the defendant' surrender thereof on the 27th June 1961"; that is agreed. "The defendant vacated the premises on the 27th July 1961", and so on, and then there is an allegation that in breach of the covenant the defendant did not yield up the premises in proper repair, and particulars of breaches were delivered in a schedule. Issue was joined on that defence. Paragraphs 1, 2 and 3 were admitted, so no question of the title of the lessor was raised; the only defence was that the defendant was not in breach of the repairing covenants, and that he had done enough after he had gone out (or by the time he had gone, out) to satisfy them.

There was then some discovery from which it appeared that after the date when the writ was issued, one Cullen was appointed a new trustee of Dr Tulk-Hart' estate, and the plaintiff and Cullen then proceeded in exercise of the trust for sale to sell the property. It then appeared to the defendant that Mrs Tulk-Hart on the face of it was never tenant for life, but was only a person entitled to the rents and profits under the trust for sale, and that she was not entitled, therefore, to make the lease at all. The defence was then amended by an allegation that the deceased lady "had not in June 1949 or at any material time any sufficient title to the said property entitling her as sole lessor to grant the lease". Tha reply to that was "that the defendant is estopped from denying the plaintiff' title to the said property or her right to grant the said lease by reason of the facts admitted in paragraphs 1 and 2 of the amended defence and the defendant' acknowledgment of the deceased and after her death of the plaintiff as his landlord who is also entitled to the damages in the schedule. That was the question which came before the official referee.

He came to the conclusion that the rent and the dilapidations amounted to about £750, and was then confronted by this famidable question as to the validity of the estoppel set up. The official referee delivered a very careful and lengthy judgment in which he came to the conclusion that there was no such estoppel, and that, the lease having come to an end and the defendant having gone out of possession, he was in a position to show and prove to the court the true facts, which were that Mrs Tulk-Hart on the face of it had no title to grant a lease at all, and that her representative could not sue on the repairing covenants in it. Having come to that conclusion, the learned official referee rejected the plaintiff' claim on its first leg, but he assented to the plaintiffs claim on another ground, namely, that this document, if it was not a lease (which it may not have been on this footing at all) was nevertheless a document under seal whereby there was a covenant by the defendant to put this property In repair, and, says the official referee: "Why should it not be a perfectly good covenant, and if so why should not the defendant pay on it the sum of £750, the amount held to be the damage for the breach of it ", and that the estoppel and what not did not arise. Accordingly he gave judgment for £750 or thereabouts on that footing.

In this court the main dispute has been the plaintiff' claim to an estoppel. It was argued by him that the official referee was wrong in the view that none existed, though he reached the right result by another route. The plaintiff' contention was that, although the lease had come to an end, as it did by the surrender in June of 1961, yet the defaults which gave rise to this claim for damages all occurred during the currency of the lease as prolonged, of course, by the Landlord and Tenant Act 1954; and it was said that in respect of damage arising in that way there is still in the proposed lessor a sufficient reversionary estate by estoppol to support an action to enforce these covenants. The chief case relied upon in support of that was a case in 1859 reported in volume 28 Law Journal Reports (Now Series) at page 306, Cuthbertson v. Irving.

The matter decided in that case was not the same as here. What had happened was that a mortgagor in possession, not having a power of leasing under the mortgage, and not therefore being able to create a legal estate, made a lease by estoppel because he was the person in possession, and he gave possession to the lessee (or the supposed lessee) under the lease. During the currency of that lease, he sold the equity of...