Manser v Dix
| Jurisdiction | England & Wales |
| Judgment Date | 11 February 1857 |
| Date | 11 February 1857 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 561
BEFORE THE LORDS JUSTICES.
S. C. 3 Jur. (N. S.), 252.
[703] manser v. dix. Before the Lords Justices. Jan. 30, Feb. 10, 11, 1857. [S. C. 3 Jur. (N. S.), 252.] Under a trust to sell property which was subject to a mortgage, and out of the proceeds to pay off the mortgage and pay the surplus to the mortgagor: Held, that a sale subject to the mortgage was valid. A lease for years contained a covenant to pay rent, and a proviso for re-entry on nonpayment of rent, the rent "being first lawfully demanded." The property being vacant, the landlord asked for payment of rent from the person liable to pay it, and not receiving it, re-entered. Held, that there had been a sufficient demand, and that the lease was effectually determined. This was an appeal by the Plaintiff from a decision of Vice-Chancellor Wood. On the 26th of March 1840, the Plaintiff assigned certain leasehold property at Brighton, to which he was entitled for the residue of a term of ninety-three and a quarter years under a lease dated the 28th of September 1830, to John Langforcl, by way of mortgage to secure 400 and interest. The Plaintiff was at the same time entitled to other property at Brighton, under a lease dated the 29th of May 1833, by which, Thomas Attree demised the property to him for eighty-seven years. The lease contained the following proviso for re-entry : -"Provided also, that if the said yearly rent hereby reserved, or any part thereof, shall be unpaid for the space of twenty-one days next after any or either of the days whereon the same is appointed to be paid as aforesaid (being first lawfully demanded upon or at any time after the expiration of the said twenty-one days), or if the said F. Manser, his executors, administrators or assigns, shall neglect or refuse to observe and keep all or any of the covenants and clauses on his and their part herein contained, then it shall be lawful for the said Thomas Antree, his executors, administrators or assigns, into and upon the said demised premises to re-enter, and the same and every part thereof, with the appurtenances, to have again and enjoy as in his and their former estate." [704] In November 1843, the Plaintiff agreed to mortgage both the above properties (as well as some other leaseholds, held under leases of the 28th of June 1825, and the 1st of February 1828, and already mortgaged on the 3d of June 1828, to Robert Dix for 700), to Thomas Benson for securing 1000 and interest, and deposited the lease of May 1833 with Thomas Benson accordingly. In the early part of 1845, the Plaintiff being embarrassed, agreed to vest the above properties in trustees for sale. He accordingly executed an indenture, dated the 12th of February 1845, and expressed to be made between the Plaintiff of the first part, Eobert Dix of the second part, Thomas Benson of the third part, James Tennant of the fourth part, and Thomas Benson of the fifth part; whereby, after reciting the leases and mortgages, and the agreement of November 1843, and the deposit of the lease of 1833 with Benson, and that the 700 remained owing to Dix on his security, with 309 for arrears of interest, and that the 1000 secured by the agreement of November 1843, remained owing to Benson on his security, with 12, 2s. 6d. for arrears of interest up to the 18th of November, then last, and the 562 MANSER V. DIX 8 DE O. M. & O. T05. sum of 5 for expenses ; and reciting that the Plaintiff was desirous that the premises respectively comprised in the said several indentures of lease should be absolutely sold and disposed of, for the purpose of paying off the several mortgages and securities thereinbefore recited; and that, in order to facilitate such sale, it had been agreed that all the premises comprised in the two indentures of lease firstly recited (the leaseholds in Dix's mortgage) should be assigned to James Tennant, and that the two several indentures of lease of the 28th of September 1830, and the 29th of May 1833, should be assigned to Thomas Benson upon the trusts thereinafter declared, the Plaintiff and Dix and [705] Benson purported to assign the properties comprised in Dix's mortgage to Tennant, with their appurtenances, upon trust to sell the premises, either together or in lots, and either by public auction or private contract, subject or not subject to any special or other conditions or stipulations relative to the title or evidence of title as to him or them should seem reasonable, with liberty for him or them to buy in the same premises or any part thereof respectively at any auction or auctions to be holden for the sale thereof, and to re-sell the same or any part thereof at any future auction or by private contract. And it was thereby agreed, that, for the purposes aforesaid, it should be lawful for Tennant, his executors or administrators, to enter into, make and execute all such contracts, deeds, assignments and assurances as to him or them should seem reasonable. And it was further agreed, that all uch contracts, deeds, assignments and assurances as should be entered into, made and executed by Tennant, his executors or administrators, by virtue of the deed should, whether the Plaintiff and Dix and Benson or any of them, or any of their executors, administrators or assigns, should or should not join therein or further assent thereto, be equally valid and effectual, arid should bind the Plaintiff and Dix and Benson respectively, and their respective executors, administrators and assigns, and all persons whomsoever claiming or to claim by, from, through, under or in trust for them or any of them. The usual power to give receipts was given to Tennant, his executors and administrators. And it was further agreed that Tennant, his executors or administrators, should stand possessed of the moneys to arise by such sale or sales, and of the rents and profits of the property until sold, upon trust, in the first place, to discharge one moiety of all the costs and expenses attending the preparing, engrossing and executing the now stating indenture; and, in the second place, [706] to pay the rents due, or which from time to time until such sale or sales as aforesaid should become due by virtue of the leases under which the property was held, and the expenses (if any) of observing and performing the covenants and conditions in the leases, and the expense of repairs and fire insurance; and, in the third place, to pay all such expenses as he or they should be put unto in effecting the sales or otherwise in the execution of the trusts; and, in the next place, to pay to Dix and Benson respectively, or their respective executors or administrators, the several principal sums of money and interest secured to them, respectively, by their securities, and all costs and expenses due to them thereunder, according to their respective priorities of charge, in the same manner as the same would have been payable in case the now stating indenture had not been made ; and after full payment of all principal and interest moneys, and all such other payments as aforesaid, upon trust to pay the residue (if any) of the moneys arising from such sale or sales to the Plaintiff, his executors or administrators. By a further operative part of the same indenture the Plaintiff assigned to Benson, his executors, administrators and assigns, the premises comprised in the leases of the 28th of September 1830, and the 29th;of May 1833, for the respective residues of the terms of years granted by those leases, subject as to the said indenture of lease of the 28th of September 1830, to the said indenture of mortgage of the 26th of March 1840; nevertheless, upon trust to sell the said premises so lastly thereinbefore assigned as aforesaid in like manner as was thereinbefore declared in reference to the premises thereinbefore assigned to Tennant; and with like power to enter into and rescind contracts, and to execute assignments and other assurances for giving receipts and other powers as were thereinbefore declared and given as to premises thereinbefore first assigned, as [707] fully and effectually as Tennant was thereinbefore empowered to do, and as if the same clauses had been repeated with the name "Thomas Benson " substituted for that of "James Tennant." And it was further agreed, that Benson, his executors and administrators, should stand possessed of the moneys to arise by such sale or sales as aforesaid, and of the 8 DE G. M. 6 O. 708. MANSER V. DIX 563 rents and profits thereof, until the same should be...
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