Margaret Rutland, - Plaintiff in Error; John Doe, on the Demise of Thomas Wythe and Mary his Wife, - Defendants in Error
| Jurisdiction | England & Wales |
| Judgment Date | 18 August 1843 |
| Date | 18 August 1843 |
| Court | House of Lords |
English Reports Citation: 8 E.R. 801
House of Lords
Mews' Dig. x. 1644. S.C. 12 M. and W. 355. See Fryer v. Coombs, 1840, 11 Ad. and E. 403; Booth v. A'Beckett, 9 L. T. N.S. P.C. 68; Doe d. Hopkinson v. Ferrand, 1851, 20 L.J. C.P. 202.
Devise - Leasing Power, Execution of.
[419] MARGARET RUTLAND,-Plaintiff in Error; JOHN DOE, on the Demise of THOMAS WYTHE and MARY his Wife,-Defendants in, Error [June 14, 15, 1842; June 19, August 18, 1843]. [Mews' Dig. x. 1644. S.C. 12 M. and W. 355. See Fryer v. Coomtis, 1840, 11 Ad. anid E. 403; Sooth v. A'Beckett, 9 L. T. N.S. P.C. 68; Doe d. Hopkimon v. Ferrand, 1851, 20 L.J. C.P. 202.] Devise-Leasing Power, Execution of. A will devising real estate gave a power to the devisees for life to demise and lease the same for any term not exceeding 21 years in possession, " so as upon every such lease there should be reserved and made payable, during the continuance thereof, the best improved yearly rent that could be reasonably had for the same, without taking any sum of money by way of fine or income for or in respect of such lease." The first devisee for life, in,exercise of this power, made a lease for 21 years from the llth of October 1833, at the yearly rent of 903, payable by equal half-yearly payments, on the 6th of April and 11th of October in every year, except the last half-year's rent, which was thereby reserved and agreed to be paid on the 1st of August next before the d-etermination of the said term.- Held by the Lords (concurring in the opinions of a majority of the Judges, and reversing the judgment of the Exchequer Chamber) that the lease was a valid execution of the power. An action of ejectment, brought in the Court of Exchequer by the nominal Defendant in Error, on the demise of Thomas Wythe and his wife, for the recovery of certain tenements in the County of Norfolk, against the Plaintiff in Error the tenant' thereof, was tried at the Norfolk summer assizes in the year 1836, when a verdict was found for the Defendant in Error, subject to the opinion of the Court on a special case. That case was argued in the Court of Exchequer in 1837, and judgment was given for the Plaintiff in Error (2 Mee. and W. 661); whereupon the special case [420] was turned into a special verdict, and the judgment being entered thereon, was brought by writ of Error into the Exchequer Chamber, and there reversed (5 Mee. and W. 688). The present writ of error was brought to reverse the latter judgment. The facts contained in the special verdict, material to be here stated, were as follows:-Benoni Mallett, who died in 1783, seised of the tenements in question, by his will dated the 28th of January 1780; and duly executed, devised the same to his H.L. vin. 801 ..-., 26 X CLARK & FINNELLY, 421 RUTLAND V. WYTHE [1842-43] grandson Philip Mallett Case, for life, with remainder to trustees to preserve contingent remainders; with remainders to the sons and daughters of the sak\ P. M. Case,. as in the will mentioned: And for default of such issue, the said testator, by his said will, devised the said tenements to his grandson, Thomas Mallett Case, for life, with remainder to trustees to preserve contingent remainders; with remainders to the sons of the said T. M.' Case successively in tail male; w ith remainder to his daughter and daughters as tenants in common in tail general, etc. The will contained the following power of leasing: " Provided always, and his will was, that it should and might be lawful to and for his said grandson, Philip Mallett Case, and all his sons, and all other person or persons respectively, as and when they should respectively come into and be in the actual possession of the said tenements, with the appurtenances, or any part thereof, or be actually entitled to the rents and profits thereof, by indenture under their respective hands and seals, to demise and lease the same, or any part thereof, unto any person or persons, for any term or number of years, not exceeding 21 years, [421] in possession, and not in reversion, remainder, or expectancy; so as upon every such, lease there should lie reserved and made payable, during the continuance thereof respectively, the best improved yearly rent that could be reasonably had for the same, without talcing any sum or sums of money liy way of fine or income, for or in respect of such lease or leases ; and so as none of the said lease or leases were made dispunishable of waste by any express words therein ; and that in every such lease there should be contained a clause of re-entry for nonpayment of the rent or rents to be thereby respectively reserved; and so as such lessee or lessees, to whom such lease or leases should be made, sealed and delivered counterparts of such lease or leases." On the testator's death Philip M. Case became, under the will, seised of the said' tenements. Thomas M. Case died in 1800, leaving issue one child, Mary, one of the lessors of the plaintiff in the action; and who in the year 1810 intermarried with, Thomas Wythe, the other lessor of the plaintiff. By an indenture dated the 14th of December 1833, under the hand and seal of the said P. M. Case, and made between him of the one part, and the said Margaret Rutland of the other part, he, P. M. Case, being in actual possession of the said tenements, and actually entitled to the rents and profits thereof, in exercise of the said power of leasing, demised unto the said Margaret Rutland, and her executors, administrators, and assigns, the said tenements, with the appurtenances ; to have and to hold the same unto her and her executors, etc. from the llth day of October then last, for and during the term of 21 years then next ensuing; yielding and paying therefor, unto the said P. M. Case and his assigns, during such [422] part of the term of that demise as he should live, and after his decease unto such person or persons as for the time being should be entitled to the reversion of the said premises under the said will, the yearly rent of 903 by equal half-yearly payments, that is to say, on the 6th day of April, and the 11th day of October, in every year, in equal portions, except the last half-year's rent, which was thereby reserved and agreed, to be paid on the 1st day of August next before the determination of the said term. And it was thereby provided, that if the said rent, or any part thereof, should be unpaid for 42 days next after any of the days whereon the same was reserved to be paid, or if the said Margaret Rutland, her executors, etc., should not perform the covenants therein contained, then in either of the said cases it should be lawful for the said P. M. Case or his assigns, during his life, and after his decease for such person or persons as aforesaid, into the said demised premises, or any part thereof in the name of the whole, to enter, etc. P. M. Case died without issue in July 1834, whereupon Mrs. Wythe became entitled to the said tenements as tenant in tail general under Benoni Mallett's will; and she, and her husband in her right, sought by the said action to set aside the said lease, as not being in pursuance of the power of leasing contained in the said will. The only question before the House was, whether so much of the lease as reserved payment of the last half-year's rent on the 1st of August, instead of the 11th of October,, the last day of the term, was consistent with the leasing power. That question was argued on the 14th and 15th of June 1842, in the presence of the learned Judges. The Solicitor-general and Mr. R. V. Richards for [423] the Plaintiff in Error, contended, generally,* that the lease was a valid execution of the power, that the * The reports, before referred to, of the arguments and judgments in the Courts. 802 RUTLAND V. WYTHE [1842-43] X CLARK & FINNELLY, 424 judgment of the Court of Exchequer chamber was erroneous and that the judgment of the Court of Exchequer was right. Mr. Pemberton and Mr. Biggs Andrews, contra, argued that the power was not well executed by the said lease, on account of the reservation of the last half-year's rent, whereby no rent was made payable from the 1st of August to the llth of October in the last year of the term; whereas, as they submitted, the rent ought to have been reserved equally during the whole term, and so that each person entitled to the reversion of the demised premises would receive the rent to accrue during the period for which such person should be entitled. At the close of the arguments the following question was proposed to the learned Judges :-" Whether the indenture of lease between P. M. Case and Margaret Rutland, dated the 14th of December 1833, as stated in the special verdict, is a valid execution of the power of leasing, as also stated in the special verdict, given by the will of B. Mallett, dated 28th January 1780." The Judges desiring time to answer the question, the further consideration of the cause was postponed. On the 19th of June 1843, the Judges again attended, and the Lord Chancellor informed the House [424] that they differed in their opinions on the question ; whereupon it was ordered that they should deliver their opinions seriatim, with their reasons. Mr. Justice Wightman :-My Lords, it appears to me that the lease set out in th& special verdict is a good execution of the power of leasing contained in the will of Benoni Mallett. The power enables the devisee for life to grant leases for any number of years not exceeding 21 in possession, and not in reversion, remainder, or expectancy, " so as upon every such lease there be reserved, etc. the best improved yearly rent, etc. without taking any sum or sums of money by way of fine or income, etc., and that in every such lease there be contained a clause of re-entry," etc. The lease in question is for 21 years from the llth of October 1833, yielding and paying to the 'enant for...
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