Litchfield v Ready
| Jurisdiction | England & Wales |
| Judgment Date | 04 December 1850 |
| Date | 04 December 1850 |
| Court | Exchequer |
English Reports Citation: 155 E.R. 409
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S C 20 L J Ex 51 Discussed, Ocean Accident and Guarantee Corporation v Ilford Gas Company, [1905] 2 K B 498
[939] LrTOHFlELD v heady T)ec 4, 1850-A mortgagee out of possession, who gives notice of the mortgage to the tenant who has occupied since the mortgage, cannot maintain trespass foi mesne piohts against the tenant for the rents a cured due since tho date of the mortgage, by mere entry upon the land after tho notice The doctrrne of relation applies only as between disseusoi and disseisee, in which case the reentry has relation back to pnoi occupation bv the owner, arrd remits hrrn to his original rights -Where the mortgagee gave notice of the mortgage to the tenant in possession, who had become tenant since the mortgage, and made an entry, and subsequently served a notice of ejectment upon the tenant, who gave a judge's order, by winch it was agieed that the action should be stayed upon the tenant's undertaking to gi\o up possession of the prernrses on a clay named therern , and, rn default theieof, the mortgagee was to (a) See tbe following case 410 LlTt'HFIELD V. READY 6 EX 940 be at liberty to sign final judgment, and to issue execution against the tenant for the whole costs of the action Held, first, that the moitgagee was not in a condition to maintain an action of trespass to recover the nie.sne piofits ftom the date of the inoitgage, inasmuch as he nevei had such a possession as is necessary to support the action,, and, secondly, that the Judge's oidei could not he con-sideted as equivalent to a judgment by default in ejectment, ot as any evidence of the moitgagee's pnoi occupation of the piemises [S C 20 L ,1 Ex 51 Disciussed, Ormn Ainilmt and Gum an tee Ooipifiahmt v Il/md Ga Company, [1905] 2 K B 498 ] Tiespass foi rneane piohts ftom the 25th of November, 1848, to the 15th of November, 1849-r\\\e defendant pleaded, hist, Not guilty, and, secondly, that the messuage in which &c was not the messuage of the plaintiff Upon these pluas issuos ere joined At the tual, befoie Alcleison, P , .it tho Middleiex Sittings in List Eastei '1'erm, it appealed that, on the 24th of Novembei, 18 16, the piemiies m question weie mortgaged in fee by one Shaipe to the plaintiff, and that in September, 184.1?, Shaipe let them to the defendant In Septctnbct, ISli), tho plaintitt gave notice of the moitgage to the defendant, at the same time lequiring piyment of the rent. On the 27th of Octobei, 1849, a cleclaiation in ejectment, at the suit of the plaintiff, was seived upon the defendant, and on the 31st of the same month the defendant gave the following Judge's ordei - " Doe on the Demise of 0 Litchfield, Plaintiff, against Richaid line, Defendant, Henty Ready, Tenant "Upon leading the consent of the attoiney of the lessoi of tht plaintiff, and of Hetuy Ready, the tenant in possession, I do ordei that all fuithei pioceedmgi m this action be stayed until the i5th of November next, the tenant in possession heieliy undertaking on that clay to gne up poshession of the piemises in the declaration of [940] ejectment mentioned to the lessoi of the plaintiff on his assent and that, on default, the lessor of the plamtitt shall be at liberty to sign final judgment, and to issu$ execution against the said Ifenry Ready foi the amount of the costs of such judgment, execution, writ of possession, shentfs poundage, orlicei's foes, and all other incidental expenses "Dated the 31st of Octobei, 1849 " On the 15th of Novembei the defendant gave up possession of the piemises to the plamtift, who entered upon them Upon these facts the defendant's counsel contended, that the action ould not he A \fcrdrct was theieupon enteted...
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...& Pul. 499, 546-547, per Lord Eldon L.C. and 547-548 per Lord Alvanley (a Scottish Appeal); Magrath v. Hardy (1838) 4 Bing. N.C. 782; Litchfield v. Ready (1850) 5 Exch. 939, 945, per Parke B.; and Langdon v. Richards (1917) 33 T.L.R. 325. I do not propose to examine these cases in detail. ......
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