Pope and Another, Assignees of Garbet, a Bankrupt, against Biggs
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1829 |
| Date | 01 January 1829 |
| Court | Court of the King's Bench |
English Reports Citation: 109 E.R. 91
IN THE COURT OF KING'S BENCH.
S. C. 4 Man. & Ry. 193; 7 L. J. K. B. O. S. 246. Commented on, Evans v. Elliot, 1838, 9 Ad. & E. 353. Approved, Boodle v. Cambell, 1844, 7 Man. & G. 395. Observed upon, Wilton v. Dunn, 1851, 17 Q. B. 301. Referred to, Rusden v. Pope, 1869, L. R. 3 Ex. 275.
[245] pope and another, Assignees of Garbet, a Bankrupt, against biggs. 1829. A mortgagee having given notice to the tenants holding the mortgaged premises under leases granted by the mortgagor after the mortgage, is entitled to receive from those tenants the rents actually due at the time of the notice, as well as those which accrued due afterwards. And where such rents had been received by the agent of the mortgagor after his bankruptcy, and were not actually paid over: Held, that the agent might retain such rents in order to pay the interest accruing due on the mortgage to the mortgagee, who had required him to do so, and that the assignees could not recover them. [S. C. 4 Man. & Ey. 193; 7 L. J. K. B. 0. S. 246. Commented on, Evans v. Elliot, (a) 1 Stark. 204. See Jacaud v. French, 12 East, 317. Bolton v. Puller, 1 Bos. & Pul. 539. 92 POPE V. BIGGS 9 B. & C. 246. 1838, 9 Ad. & E. 353. Approved, Boodle v. Cambell, 1844, 7 Man. & G. 395. Observed upon, Wilton v. Dunn, 1851, 17 Q. B. 301. Referred to, Eusden v. Pope, 1869, L. E. 3 Ex. 275.] Debt for use and occupation, money paid, laid out, and expended, had and received, and on an account stated. Plea, nil debet. At the trial before Gaselee J., at the Summer Assizes for the county of Berks, 1828, it appeared that on the 20th of February 1827, a commission of bankrupt issued against Garbet, and that he before and at the time of his bankruptcy was mortgagor in possession of six houses at Southern Hill, near Reading, Berks, which in the years 1823 and 1824 he had mortgaged to various persons. The defendant was tenant of one of the houses, at the rent of 651. a year, under an agreement with Garbet, the bankrupt, and had in the character of agent to the bankrupt, received his rents of the other houses, and applied them to pay the interest due on the mortgages, and had rendered him an account of the rents received and disbursements made up to Christmas 1826. The assignees in this action sought to recover from the defendant 481. 151., being three quarters of a year's rent of the house occupied by him, which became due at Lady-Day 1828, and various sums received by him on account of rent from the tenants after the bankruptcy, in the years 1827 and 1828. The tenancies of the several tenants all commenced subsequent to the mortgages, but while Garbet had the entire control of the premises. The defendant sought to discharge himself in part by reason of payments made by him in those years to the mortgagees on account of [246] interest which had become due to them on their mortgages, and as to the residue by reason of notices given to him on the part of the mortgagees subsequent to the bankruptcy. It appeared that after the bankruptcy, on the 22d of February 1828, the mortgagees gave notice to the tenants of the several houses that the interest was in arrear, and required them to pay the amount of such interest in part of the rent, and similar sums out of future rents, until further notice; and that in default of such payment, they, the mortgagees, would pursue such remedies as were allowed by law for recovering the same. At the time when this notice was delivered to the tenants, there was rent in arrear, and other rents subsequently became due; and all these rents had been received by the defendant, and applied by him from time to time to pay off the interest due to the mortgagees, with the exception of his own rent, and of a small sum, which together were not more than sufficient to meet the next half year's interest on the mortgages, which would become due in about three months after the commencement of the action. It was contended by the plaintiff that the defendant could not avail himself of any of these payments, because if the mortgagor had brought an action against the tenants themselves they could not have pleaded that the mortgagor nil habuit in tenementis, and consequently could not have denied his right to recover the rent; and, secondly, assuming that the tenants would have been justified in paying to the mortgagees the rents which became due after the notice, they were, at all events, liable to pay to the mortgagor the rents which had accrued due before the notice; and, thirdly, that the defendant having received the rents in the character of agent for the bankrupt, could not set [247] up the rights of any other persons to discharge himself. The learned Judge was of opinion that the defendant had rightly made all the payments, and was entitled to retain the residue of the rents to countervail the accruing arrears of interest, and consequently that the plaintiffs were not entitled to recover; and he directed a nonsuit to be entered, but reserved liberty to them to move to enter a verdict for such sum as the Court should think right. A rule nisi for entering a verdict for the plaintiffs having been obtained...
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