Pawson v Revell
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JENKINS,LORD JUSTICE PEARCE |
| Judgment Date | 23 July 1958 |
| Judgment citation (vLex) | [1958] EWCA Civ J0723-3 |
| Date | 23 July 1958 |
| Court | Court of Appeal |
[1958] EWCA Civ J0723-3
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Jenkins
Lord Justice Parker and
Lord Justice Pearce
Mr NORMAN STOGDEN (instructed by Mr. F. Wilberforce Bridge, agent for Messrs Richard Witty & Co., Kingston-upon-Hull) appeared as Counsel for the Appellants.
Mr RAYMONDWALTON and Mr J. B. MORTIMER (instructed by Messrs Smith & Hudson) appeared as Counsel for the Respondent.
: This is an appeal from a Judgment of his Honour Judge Harper given at Hull on the 26th February, 1958, he dismissed the Plaintiffs' claim for possession of a farm called section farm, Thorngumbald in Yorkshire.
The plaintiffs are mortgages of the farm and they sue as the Trustees of the Hall Grand Division of the order of the sons of temperature Friendly society. The defendant, who is the party, in possession is the tenant of the farm as between her self and and Mrs. Nichelson, the mortgagers. The sole question in the case is whether the tenancy granted by the mortgagers to the Defendant, which is an oral tenancy from year to year, is binding on the Plaintiffs or not.
The facts of the case are not in dispute. The mortgage was to secure the sum of £5,000 and it was granted on the 11th 1949. It contained, amongst other provisions, a vary usual clause excluding the powers of leading conferred on mortgagers by Section 99 of the Law of Property Act, 1925. As the property constituted an agricultural holding, that clause was in effect nullified by the Agricultural Holdings Act, 1948, Seventh Schedule, Paragraph 2. That schedule contains amendment of various Action their application to and faction MODIFIED a the effect of Section 99 of the Law of Property act, 1925 in the way I have mentioned. Accordingly, it was open to the mortgagers withstanding that clause in the mortgage, to grant a tenancy which would be binding on the "" provided it complied with the powers of leasing contained in Section 99.
Mr Stogden for the Plaintiff Mortgages Submits that when all the circumstances of the case are looked at, At becomes apparent that this was not a letting in exercise of the statue-power at it was simply a letting at common law to the Defendant, binding the interests of the mortgagers but ineffective so far as the mortgagees were concerned.
The circumstances in which the tenancy was granted were these. Apparently Mr. and Mrs Nicholson parted in 1953 and the Defendant then became Mr. Nichlonshousekeeper and at about the time of the parting, to be exact, on the 23rd June. 1953, Mr and Mrs Nichlons orally agreed to let her the farm as tenant from year to year at a rent of £100 a year payable quarterly. Nothing was said as to any proviso for re-entry on non-payment of rent. The oral tenancy, I understand, did not become known to the Plaintiff Trustees until these proceedings for possession had actually been launched, so far as the Mortgagors ape concerned; it appears that on the 2nd March, 1956, an order was made in proceedings In the Chancery Division in favour of the Mortgagees, the Plaintiffs, far possession of the premises within 42 days after the service upon of the order for possession, which was in fact served on the 16th April, 1956. The position, therefore, la for the purposes of the present action that the Defendant is the only person in possession of the premises and the mortgagors are not concerned in these proceedings.
I should next refer to the statutory powers of leasing conferred on mortgagers by section 99 of the Act of 1925, because Mr. Stogden's case is founded on the submission that the oral tenancy did not comply with the terms of that section. Section 99(1) provides: "A mortgagor of land while in possession shall, as against every "" have power to make from time to time any such lease of the Mortgaged land, or any part thereof, as is by this section authorised. Then sub-section (2) deals with the powers of the mortgages. Than (3) says: "The leases which this section authorises are (1) agricultural or occupational leases for any tern not exceeding 21 years, or, in the case of & mortgage made after the comment of this Act, 50 years, and (ii) building leases", with which we are not concerned. Than (4): "Every person making; a lease under this section may execute and do all assurances and things necessary or proper in that behalf" Nothing turns on that. "(5) Every such lease shall be made to take effect in possession not later than 12 months after its date". Again nothing turns on that such lease shall be made take the effect in possession not later than 12 months after its date. Again nothing turns on that. "(6) Every such lease shall reserve the best rent that can reasonably be obtained, regard being had to the circumstances of the case, but without any fine being taken". It is not disputed that the £100 a year reserved by the oral tenancy is anything less than the best rent which could reasonably be obtained.
Then comes sub-section (7), the provision which is chiefly Material for the present purpose; "Every such lease Shall contain a covenant by the lease for payment of the rent, and a condition of re-entry on the rent not being paid within a time therein specified not exceeding 30 days". Then there is a provision in sub-section (8) that a counterpart of every such lease shall be executed by the lessee and delivered to the lessor. I can pass over sub-sections (9) and (10). Than sub-section (11): "In case of a lease by the mortgager, he shall, within one month after Making the lease, deliver to the Mortgagee, or, where there are more than one, to the Mortgagee first in priority, a counterpart of the lease duly executed by the lessee, but the lessee shall not be concerned to see that this prevision is complied with". Then: "(12) A contract to make or accept a lease under this section may he enforced by or against every person on whom lease if granted would be binding ". Next: "(13) This section applies only if and as far as a contrary intention is not expressed by the mortgagor and mortgager in the Mortgage dead, or otherwise in writing, and has effect subject to the terms of the mortgage deed or of any such writing and to the provisions therein contained". That is the provision which has been rendered inoperative so far as mortgages of agricultural holdings are concerned. Then (14), (15) and (16) I need not trouble with. Then comes (17) which is of importance:" The provisions of this section referring to a lease shall be construed to extend and apply, as far as circumstances admit, to any letting, and to an whether in writing or not for leasing or letting.
One of the matters which has been debated before us is whether, having regard to the terms of subsection(17), It is indispensably necessary that an aril. agreement should Include a condition of re -entery as stipulated in subsection(7); or whether that is rendered unnecessary by the words "as far as circumstances admit" contained in subsection (17). It is plain that so far, at all events, as a lease in writing is concerned it must contain the condition stipulated in sub-section (7), and there appears to me to be doubt that the omission from a lease in writing of a condition of re-entry would be a defect sufficient to take the letting in question out of the scope of the power.
The basis of Mr Stogden's submission is that not withstanding that this was an oral tenancy and as such clearly exempted by sub-section (17) from requirements such as those contained in sub-sections (8) and (11), it ought to have included the condition for re-entry prescribed by subsection(7). an the other side it is said that may or may not be so, but if it is so, than any consequent invalidity of the tenancy agreement is cured by the provisions of Section 1.52 of the Law of Property Act, 1925.
That section is the successor of the Leases Acts of 1849 and 1850, and I should next read some parts of it. By subsection (1) it provides: "where in the intended exercise of any power of leasing, Whether conferred by an Act of Parliament or any other instrument, a lease (in this section referred to as an invalid lease) is granted, which by reason of any failure to comply with the terms of the power is invalid, then (a) as against the person entitled after the determination of the Interest of the grantor to the reversion; or (b) as against any other person who subject to any lease properly granted under the power, would have been entitled to the land comprised in the lease; the lease, if it Made in good faith, and the lessee has entered there under, shall take effect in equity as a contract for the grant, at the request of the leasee, of a valid lease the power, of like effect as the invalid lease, subject to variations...
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