Norris v Jackson
| Jurisdiction | England & Wales |
| Judgment Date | 13 January 1862 |
| Date | 13 January 1862 |
| Court | High Court of Chancery |
English Reports Citation: 66 E.R. 464
HIGH COURT OF CHANCERY
S. C. 8 Jur. (N. S.) 930; 5 L. T. 576; 10 W. R. 228.
[396] noeris v. jackson. Jan. 13, 1862. [S. C. 8 Jur. (N. S.) 930; 5 L. T. 576; 10 W. E. 228.] A tenant having entered into possession of a farm, and expended moneys under an agreement that the landlord would grant a lease for twenty-one years, and make such improvements and repairs as he and the landlord should jointly agree : Held, on demurrer, that the stipulation as to repairs was not of the essence of the agreement, and that the impossibility of the strict performance of that stipulation in consequence of the death of the landlord was no sufficient reason for allowing a demurrer to a bill for specific performance, where the Plaintiff had so long a possession, and had expended money on the faith of the agreement. In the summer of 1850 A. B. Cook, the owner in fee of the hereditaments in question in this suit, entered into an agreement with the Plaintiff, which was in the following terms :- "Memorandum of an agreement made and entered [397] into this 6th day of August 1850 between A. B. Cook of the one part, and James Norris of the other part, whereby it is agreed that the said A. B. Cook, his heirs or assigns, shall, on or before the 2d day of November now next ensuing, make and execute unto the said J. Norris, his executors, administrators or assigns, a good and valid lease at their mutual expense of all that messuage or tenement and farm called Gostling's Hall, with the outbuildings, lands, hereditaments and appurtenances thereto belonging, together with the cottages occupied therewith, all situate in Debenham aforesaid, and the land containing altogether by recent admeasurement 242 acres or thereabouts, and also all that messuage or tenement and windmill, with the warehouse, outbuildings, lands, hereditaments and appurtenances thereto belonging, situate in Debenham aforesaid, together also with the going gear, machinery, trade and other fixtures belonging to the said windmill (which said messuages or tenements and farm, windmill, land, hereditaments and premises have been lately purchased by the said A. B. Cook of the 3GIFF.S98. NOEBIS V. JACKSON 465 trustees of the will of the late Dr. Chevallier), for the term of twenty-one years from the llth day of October next, at and under the yearly rent of £440, payable half-yearly, on the llth day of October and the 6th day of April in each year, clear of all deductions for taxes or on any other account whatsoever (except land tax, landlord's property tax, and quit and free rents), and subject to all such covenants as are usual and customary in leases of property of the nature hereinbefore agreed to be let on the part of the said J. Norris, his executors, administrators and assigns, except so far as the same may be contrary to the provisions hereinafter contained. And it is hereby expressly agreed that the said J. Norris, his executors, administrators or assigns, shall be authorized by the said lease to use, cultivate and manage all the lands hereby agreed to be demised in such shifts or [398] course of husbandry, and generally in such manner in all respects as he or they shall in his or their irresponsible and absolute discretion think proper, and for the improvement of the property, except during the last year of the continuance of the said demise, when he or they shall use, cultivate and manage the arable lands according to the four-course system of husbandry, and so deliver up the same. And it is also agreed that the said J. Norris, his executors, administrators or assigns, shall have power, with the previous consent in writing of the said A. B. Cook, his heirs or assigns, or his or their agent, to break up all or any part of the meadow or pasture lands hereby agreed to be let, and to remove and break down such hedges and fences as the said J. Norris, his executors, administrators or assigns shall think fit, and that the said lease shall contain a proviso that it shall be lawful for the said A. B. Cook, his heirs or assigns, at any time, and from time to time during the continuance of the lease, if any railway shall be made through the said lands hereby agreed to be let, to take any part of the lands hereby agreed to be demised (not exceeding twenty acres in the whole, and so that the lands so taken do not interfere in any way with the personal enjoyment or occupation of the said dwelling-house), he or they allowing an abatement or reduction from the said rent of £440, at the rate of £1, 13s. for every acre of land which shall be taken by the said A. B. Cook, his heirs or assigns, and so in proportion for any less quantity than an acre, and also a proviso that it shall be lawful for the said A. B. Cook, his heirs or assigns, in case he or they shall be desirous of pulling down the said cottages hereinbefore agreed to be let, and shall give up the site thereof to the said J. Norris, his executors, administrators or assigns, to erect and build other cottages as convenient in all respects as those to be taken down, on other part of the said lands hereby agreed to be demised as may be [399] mutually approved of, and such new cottages when completed to be given up to the said J. Norris, his executors, administrators or assigns, as included in this agreement. Provided that it shall not be in any way obligatory or binding upon the said A. B. Cook, his heirs or assigns, to build cottages which shall realise the same amount of rental as was payable in respect of the cottages which shall be so pulled down. And the said A. B. Cook doth hereby agree on or before the llth day of October 1851, to put the said messuage or tenement called Gostling's Hall into a good and sufficient state of repair, and in making such additions thereto, and alterations and improvements therein, and in putting such tenant's and other fixtures therein, and in erecting suitable and sufficient coachhouses and stables as the said J. Norris and A. B. Cook shall jointly agree upon, to the intent that the same dwelling-house and other premises may be made fit in all respects for the use and occupation of the said J. Norris and his family and servants. And the said A. B. Cook doth also agree, at his own expense, to put the said windmill and the dwelling-house and premises occupied therewith, and also the stones going and other gear and machinery connected therewith into a properly efficient state and condition in all respects on or before the said 6th day of April 1851, and also on or before that day, at his own expense, to put all the other buildings not comprised in the foregoing stipulations, with all the gates, hedges and fences on the said premises, into a proper and complete state of repair in all respects. And the said J. Norris doth hereby agree that after the full and due performance by the said A. B. Cook of the several foregoing stipulations on his part, he, the said J. Norris, will accept of the said lease, and execute a counterpart thereof, and thereby agree to keep up the said dwelling-house, mill, other buildings and premises in a good and tenantable state of repair during the continuance of the [400] said lease, being allowed good and 466 NORRIS V. JACKSON 3 GIFF. 401. sufficient rough timber and other materials for the purpose in the usual and customary way, damage by fire, storm arid tempest being excepted. And the said J. Norris doth hereby agree to take by valuation the articles and effects now in and about the said windmill and the premises occupied therewith, which the said A. B. Cook has agreed to purchase with the said premises, and which are mentioned in a certain inventory signed by the said parties hereto, or such of them as are now upon the premises." On the llth of October 1850 the Plaintiff took possession of the farm, and in October 1851 possession of the messuage called Gostling Hall. During the period between the Plaintiff taking possession and the sale by A. B. Cook to the Defendant, Jackson, in 1857, disputes and negotiations of a lengthy and complicated description took place between the Plaintiff' and Cook respecting the repairs, additions and improvements stipulated to be performed by A. B. Cook, in consequence of which no lease was ever granted, but the Plaintiff continued in possession and paid without prejudice the rent of £440 stipulated to be paid. In 1857 the said A. B. Cook sold the farm, &c., to the Defendant, Jackson, who, as a part of the same transaction, mortgaged it to the Defendants, Lloyd and Echalaz. The bill alleged that at the time of the sale and mortgage the Defendants were aware of the agreement, and the Plaintiffs interest thereon, and on the occasion of the purchase the said A. B. Cook allowed the Defendant, Jackson, to make a deduction from his purchase-monies. The Defendant, Jackson, gave A. B. Cook an indemnity against the Plaintiff's claim. The bill alleged that subsequently to the sale disputes and negotiations took place between the Plaintiff and the Defendant, Jackson, relative to the repairs, additions and [401] improvements, and Jackson employed one Benjamin Kix, of Ipswich, to inspect the premises, who, in 1857, recommended very considerable repairs as being immediately necessary, and, as the Plaintiff believes, stated his opinion that other and more extensive repairs were necessary, but the said Defendant refused to let the Plaintiff see the said report or to supply him with a copy. A. B. Cook died in November 1859, having appointed C. S. Webber and William Jones his executors. On the 6th of November 1860 the Plaintiff filed his bill against the Defendant, Jackson, and against C. S. Webber and W. Jones, stating in substance as heretofore, and also stating that the said Webber and Jones were prosecuting an action at law to recover certain rent claimed to be due from the Plaintiff, and praying- First, that 'the Defendants, or some or one of them, might be decreed to put Gostling Hall...
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