Neale v Mackenzie
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1836 |
| Date | 01 January 1836 |
| Court | Exchequer |
English Reports Citation: 150 E.R. 36
EXCHEQUER OF PLEAS.
S. C. 5 Tyr. 1106; 1 Gale, 119; 4 L. J. Ex. 185. Reversed in Exchequer Chamber, 1837, 1 M. & W. 747; 2 Gale, 174; 6 L. J. Ex. 263. For former proceedings see 1 Cr. M. & R. 61.
neale v. mackenzte. Exch. of Pleas. 1835.-A lessee of 100 acres of land for one year accepted the lease and entered upon the land. Upon bis entry he found eight acres in the possession of a person entitled under a prior lease from the lessor, and that person kept possession of the eight acres until a half-year's rent became due, and excluded the lessee from the enjoyment during that period, the lessee continuing in possession of the remainder :-Held, that this was not a case of eviction by the landlord, but that the rent was apportionable, and that the landlord was entitled to distrain for such apportioned rent. [S. C. 5 Tyr. 1106 ; 1 Gale, 119 ; 4 L. J. Ex. 185. Reversed in Exchequer Chamber, 1837, 1 M. & W. 747 ; 2 Gale, 174; 6 L. J. Ex. 263. For former proceedings see 1 Cr. M. & Et. 61.] Trespass for breaking and entering the dwelling-house of the plaintiff, and seizing and distraining divers household furniture, goods, and chattels therein. Plea-that before and at the time of the demise thereinafter mentioned, the defendant was seised of the dwelling-house in which &c., and of other premises thereinafter mentioned to be therewith demised, with their appurtenances, in his demesne as of fee ; arid, being so seised, afterwards, and before the time when &c., to wit, on &c., demised the said dwelling-house, and certain other premises, with the appurtenances, to the plaintiff, for the term of one year, commencing from the 25th day of June, 1833, at the clear rent of 701., payable quarterly, that is to say, &c.; that [85] afterwards, &c., the plaintiff accepted the said lease, and by virtue of the said demise entered into and upon the demised premises with the appurtenances, and thereupon became, and was, and yet is possessed thereof for the term so to him thereof granted as aforesaid, until the 25th day of December, in the year 1833 aforesaid, and from thence until and at the said time when &c. held and enjoyed the said dwelling-house, in which &c., and the said demised premises with the appurtenances under aucl by virtue of the said demise. And the defendant further says, that on the said 25th day of December, 1833, a large sum of money, to wit, 351. of the rent aforesaid, for six months of the said term ending on the day and year last aforesaid, and then last elapsed, became and was due and payable to the defendant, arid at the time when &c. was in arrear and unpaid. Wherefore the defendant, on the day when &c. entered into and upon the said dwelling-house, in which &c., for the purpose and in order to seize, take, and distrain, and did then and there seize, take, and distrain the household furniture, &c., in the declaration mentioned, as for and in the name of a distress for the said rent so due and in arrear to the defendant as aforesaid, and kept and detained &c., according to the form of the statute, &c., arid in so doing &c. Replication-that before and at the time of making the said demise in the declaration mentioned, one Adam Charlton was and from thence hitherto has been 2 C. M.& E. 88. NEALE V. MACKENZIE 37 and gtill is in the possession, use, occupation, and enjoyment of divers, to wit, eight acres of land, parcel of the said demised premises in the plea mentioned, as tenant thereof to the said defendant, whereby the plaintiff did not and could nob enter into the possession of, or hold or enjoy the said last-mentioned land, so being parcel of the said demised premises, or any part thereof. And although the plaintiff has always, from the time of the making of the supposed demise in the said plea mentioned, hitherto, [86] been ready and willing and desirous of entering into the possession, use, occupation, and enjoyment of the said last-mentioned land, under and by virtue of the lust-mentioned demise, of which the defendant had due notice; yet the plaintiff in fact says, that he the said plaintiff always from the time of the making of the said last-mentioned demise has been and still ia kept out of the possession, uhb, occupation, and enjoyment of the said last-mentioned land and every part thereof, by the act and default of the defendant, whereby the plaintiff has been wholly hindered and prevented from entering into, and holding and enjoying the same, ami from having and receiving all the profit, benefit, and advantage which ought and would otherwise have arisen and accrued to the plaintiff therefrom. Wherefore the defendant at the said timo when itc., wrongfully and unlawfully entered into and upon the said dwelling-house, in which &c., and seized and distrained &c. Verification. Demurrer-shewing for cause, that the replication does not traverse or put in issue any fact contained in the plea, and contains no matter of fact in avoidance of the demise and entry contained in the plea. That the averment in the replication, that the said A. C. was and still is tenant of the defendant of part of the same promises, consists of mere inference and matter of law, wholly inconsistent with the facts admitted on the pleadings; and that the other averments in the replication consist of mere inference not warranted by the facts, and upon which no apt or material issue can be taken. That the replication is argumentative, and denies by implication a material averment contiuned in the plea, viz. the entry of the plaintiff' into the demised premises under and by virtue of the demise, and alleges that the plaintiff has been kept out of the possession and enjoyment of the eight acres of land, part of the demised premises, by the act and default of the defendant, without stating any act or default of the [87] defendant by which he has been kept out of possession or enjoyment. Joinder in demurrer. Cleasby, in support of the demurrer. The replication is bad on various grounds :- First, the tenancy of Gharlton is informally pleaded ; nor, if rightly pleaded, would it have been an answer to the plea. It is not shewn how Gharlton was tenant, whether for years or otherwise. [Parke, B. Does the replication contain any answer to the right to distrain set up in the plea?] It does not, and that is one of the grounds upon which it is contended that it is bad. [Parke, B. It states, in an informal manner, a sort of eviction by title paramount; but the question is, whether that is any answer to the plea. The averment in the plea is, that the plaintiff entered into the demised premises, and became and was possessed thereof. The Court will hear the other side.] Bompas, Serjt., contra. The replication is good ; it shews an eviction of the plaintiff from part of the premises by the act of the defendant himself, and after such an eviction the defendant could not distrain. There is a distinction between an eviction by title paramount, in which case the rent may be apportioned, and an eviction by the act of the party, as here, in which case there can be no apportionment. [Parke, B. If the party evicting holds under the defendant by virtue of a former lease, he holds by title paramount to that of the plaintiff.] The distinction is between cases where the tenant is deprived of the beneficial enjoyment of part of the premises, in consequence of his landlord's own act, and where he is deprived in consequence of the act of some other party. Here it is by the act of the landlord himself; for it is the same thing whether, after the lease, he actually evicts him from part of the premises, or whether, knowing that he has already conferred upon a third person a title to the possession of part of the pre-[88]-mises, he lets the whole to a tenant who is afterwards evicted from that part. Title paramount means paramount to the title of the landlord. [Parke, B. It means paramount to the lease or other title conveyed. In this case, suppose the lease to have been made, not by the defendant, but by a former owner of the property ; it is clear that in such case the rent would have been apportioned.] If the former lease was, as it must have been, within the knowledge of the landlord when he made the second lease, the entry of the first lessee would in law 38 NEALE V. MACKENZIE 2 C. M. & R. 89. amount to an eviction by the wrongful act of the landlord, and the rent would not be apportioned. There are several cases in which this has been held to amount to a wrongful eviction. The Court expressing an opinion against the form of the replication, Bom pas, Serjt. prayed leave to amend, and it was granted to him accordingly. The following was the form of the replication as amended. That before and at the time of the making of the demise in the plea mentioned, one Adam Gharlton was and from thence hitherto has been and still is in the possession and enjoyment of divers, to wit, eight acres of land, parcel of the said demised premises in the plea mentioned, under arid by virtue of a certain demise theretofore made by the defendant to the said A. C., and which last-mentioned demise was then, and from thence hitherto has been, and still is, in full force and undetermined: whereby the plaintiff did not and could not enter into the possession of, or hold or enjoy the lastmentioncd land, so being parcel of the demised premises in the plea mentioned, or any part thereof. And although the plaintiff has always, from the time of making the said demise in the plea mentioned, been ready and willing and desirous of entering into the possession and occupation and enjoyment of the last-mentioned land, under and by virtue of the last-mentioned [89] demise, whereof the defendant had due notice ; yet from the time of making the last-mentioned demise, hitherto, the plaintiff has been and still is kept out of the possession, use, occupation, and enjoyment of the last mentioned land and every part thereof by the said A. C...
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