Hull v Vaughan, Clerk
| Jurisdiction | England & Wales |
| Judgment Date | 27 November 1818 |
| Date | 27 November 1818 |
| Court | Exchequer |
English Reports Citation: 146 E.R. 771
IN THE COURT OF EXCHEQUER AND EXCHEQUER CHAMBER
v. vaughan, Clerk. Friday, 27th November 1818.-Use and occupation.- Where an owner of an estate contracts to sell to another, who thereupon sells a part of the property so contracted for by auction to a third person, and he, (the sub-vendee,) gets possession, and the original vendor afterwards refuses to perform his contract, which occasions a suit in equity, pending which the original vendor obtains possession from the sub-vendee, on a demand to be restored to it, it being rumoured that the original purchaser had failed in the suit instituted for specific performance-if, in fact, the plaintiff should ultimately succeed in that suit, and 772 HULL V. VAUGHAN 6 PRICE, 168. tjhe estate is in consequence conveyed to the purchaser under a decree of the Court, the isub-vendee may maintain use and occupation against the original vendor, for all the time during which he held the possession so obtained from the Second purchaser.-A nonsuit directed at niai prius, under such circumstances, get aside. [Observed upon, Winterbottom v. Ingham, 1845, 7 Q. B. 617.] The question which arose in this case was, whether the plaintiff could maintain an action for use and occupation under particular circumstances affecting the right to the possession of the premises, which were the subject-matter of the suit as between the plaintiff and defendant. The cause was tried at the Hereford Summer Assizes, 1818, before Mr. Justice Holroyd, when that learned Judge, holding that the action could not be maintained under the circumstances disclosed in evidence, nonsuited the plaintiff'. [158] Puller having obtained a rule for setting aside that nonsuit, gabrow, Baron, now read the report of the evidence, which was in effect-that in 1804 the defendant agreed to sell some freehold property to a Mr. Bach, an attorney, at that time the defendant's solicitor. Bach immediately afterwards sold the property by public auction, in lots. Hull, the plaintiff, became the purchaser of one of those (thepremises in question), and took possession at Candlemas, 1805, haying paid by far the greatest part of the purchase-money; but there was no agreement made between Bach and him in writing. The other lots were sold to various persons (among whom was the defendant himself), and all of them entered into possession. When the time arrived which had been agreed on for the completion of the original purchase by Bach, Vaughan refused to complete the contract. Bach then, after having tendered the purchase-money and deeds of conveyance for execution, filed a bill to compel specific performance, and for an injunction to restrain actions of ejectment brought by Vaughan against the vendees in possession. The injunction was granted, and the cause was set down for hearing in the early part of the year 1813. About that time Vaughan the defendant, availing himself of a report then prevalent, (in consequence of Bach having been attached for not paying the purchase-money into Court, in pursuance of the terms on which he had obtained the injunction,) that he had succeeded in [159] the suit, required the plaintiff Hull to deliver up to him the possession of the premises which he had bought of Bach, which under the influence of the rumour he consented to do. Hull soon afterwards discovered that the suit in equity between Bach and the defendant had not been determined, Bach having by that time paid in the purchase-money; and he then demanded back possession of the land from Vaughan, who refused to restore it. Hull afterwards knocked the lock off the gate, and took possession. Vaughan took possession again, and putting on another lock, kept it till the month of April, 1815, a period of two years. During the time that Hull the plaintiff had had possession under his contract for the purchase of the premises, he had improved the land from rough ground into productive hop-ground and orcharding, and it had become worth double the sum which he had originally agreed to pay Bach for it. Vaughan, on taking possession, had agreed to allow Hull a fair valuation price for the hop-poles on the premises, which were of considerable value, and the apple trees which he had planted, but which he nerver paid. The suit in equity being afterwards (in 1815) finally determined in favour of Bach, the plaintiff therein, Vaughan then took the purchase-money out of Court- gavelup possession of the estate-and executed the deeds which had before been tendered to him; for that purpose by Bach. [160] On these facts an objection was taken at the trial, that the plaintiff had no title on which to found the action for use and occupation-that the relation of landlord s.nd tenant did not at any time subsist between the parties-and that the defendant was in truth at the time for which the plaintiff sought to recover, the legal owner of the premises: and they cited the cases of Ilearn v. Tomlim (Peake's N. P. C. 192), and Kirtland v. Powisett (2 Taunt. 145). On the other hand, it was...
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