Moores v Choat
| Jurisdiction | England & Wales |
| Judgment Date | 20 February 1839 |
| Date | 20 February 1839 |
| Court | High Court of Chancery |
English Reports Citation: 59 E.R. 202
HIGH COURT OF CHANCERY
S. C. 8 L. J. Ch. (N. S.) 128; 3 Jur. 220. Followed, Cox v. Bishop, 1857, 8 De G. M. & G. 825; 44 E. R. 608. See M'Creight v. Foster, 1870, L. R. 5 Ch. 607, n.
Equitable Mortgage. Deposit. Lease. Administration. Personal Representative. Parties.
[508] moores v. choat. Feb. 19, 20, 1839. [S, C. 8 L, J. Ch. (N. S.) 128; 3 Jur. 220. Followed, Cox v. Bishop, 1857, 8 De G. M. & G. 825 ; 44 E. K. 608. See M'Creight v. Foster, 1870, L. E. 5 Ch. 607, n.] Equitable Mortgage, Deposit. Lease. Administration, Personal Representative. Parties. A deposit of a lease by way of equitable mortgage does not render the depositary liable for the rent and covenants. Bill by a lessor against an equitable mortgagee of the lease and a third party, to whom letters of administration to the deceased lessee had been granted, limited to attend, supply, substantiate and confirm the proceedings in the suit or in any other suits concerning the premises until a final decree should be made and fully com- E leted, praying that the depositary might be decreed to take an assignment of the jase. Semble, that the letters of administration did not give the third party any interest in the term or in any of the assets of the deceased ; and, consequently, that the suit was defective in respect of parties. By an indenture, of the 27th of August 1829, the Plaintiff demised to L. Andrews two messuages in Poplar, Middlesex, for 21 years, from the 24th of June then last, at the yearly rent of 46; and Andrews, for himself, his heirs, executors, administrators and assigns, covenanted with the Plaintiff, his executors, administrators and assigns, to pay the rent, rates and taxes, and to keep the premises in repair. On the execution of the lease, Andrews entered into possession of the premises, and he continued in possession until his death. He died on the 18th of March 1837, intestate and insolvent; and in July 1838, when the bill was filed, 249, lls. 6d. were due for rent of the premises accrued in his lifetime and since his death; and the premises were greatly out of repair. In November 1837 the Plaintiff applied to Andrews's widow to deliver up the lease and possession of the premises; and he then discovered that, in December 1830, Andrews deposited the lease with George Mash, as a security for 55 lent to him by Mash. In November 1831 Mash died, having appointed the Defendant Choat, and W. Lock, deceased, his executors; and they proved his will. In February 1837 Lock died. On Mash's death [509] Choat, who was the acting executor, took and had, ever since, retained possession of the lease, as a security for the 55, the whole of which remained due from Andrews's estate to Choat, as the surviving executor of Mash. In March 1838 the Plaintiff's solicitor gave notice to Choat that, unless he delivered up the lease, the Plaintiff would hold him personally responsible for the rent and covenants. In April 1838 Cheat's solicitor wrote to the Plaintiff's solicitor, stating that Choat never had been in possession of the premises, and that, if the Plaintiff would pay 10 in part of the debt due to Mash's estate, the lease should be given up; this offer, however, was not accepted, and consequently Choat refused to deliver up the lease. In June 1838 letters of administration to Andrews, limited, as the bill stated, " to attend, supply, substantiate and confirm the proceedings that should or might thereafter be had in this suit, or in any other causes or suits which might be, thereafter, commenced or carried on in this Court or any other Court or Courts, bebween the said parties or any other parties, touching and concerning the premises, until a final decree should be had and made therein, and the said decree carried into execution, and the execution thereof be fully completed, but no further or otherwise," were granted to the Defendant Sharp, who, as the bill alleged, thereby became the legal personal representative of Andrews, and could make a valid and effectual assignment of the lease and the term thereby granted to Choat. * SIM. S10. MOOBES V. CHOAT 203 The bill prayed that Choat might be decreed to pay the 249, 11s. 6d. to the Plaintiff, and to put the premises in repair; and, if necessary, that he might be decreed to take an assignment of the lease, and that the [510] Plaintiff might be at liberty to bring one or more action or actions against him, on the covenants in the lease, and that he might be restrained from setting up as a defence thereto that no assignment of the lease had been made to Mash; and that he might pay the coats of the suit and of the assignment. Choat demurred for want of equity, and because Andrews's real representative and Lock's personal representative were not made parties to the suit. The two latter causes of demurrer were not much insisted on; but two other causes were assigned ore tenus, namely, that the person in possession of the premises was not made a party; and because there was no personal representative of Andrews who had any interest in the term, or in his personal estate in general. Mr. Jacob and Mr. Rogers, in support of the demurrer. It does not clearly appear by the bill who is in possession of the premises; but it is proposed that that person, whoever it may be, should live rent free ; as the bill asks that Choat may be decreed to pay the rent. [THE vice-chancellor. It is to be inferred, from the bill, that Andrews's widow is in possession of the premises; for the bill states that, after Andrews's death, the Plaintiff applied to his widow to deliver up to the Plaintiff the possession of the demised premises. If she was once in possession, she must be taken to be still in possession.] Choat is the executor of Mash; but it does not clearly appear whether or not the Plaintiff means to contend that Choat is personally liable to him. If the liability was incurred by taking the deposit, then it would fall on Mash's assets; but if it arose on Cheat's subsequent refusal to deliver up the lease, then it must [511] fall on Choat personally. The Plaintiff seems to think that the liability was incurred by the refusal to deliver up the lease ; as he prays that Choat may pay the rent, but does not ask that he may pay it out of Mash's assets. If that is right, then a similar liability would attach on solicitors who claim a lien on their clients' deeds and papers. The executor of a lessee is not liable to the landlord tsxcept to the amount of...
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