Re King, decd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE UPJOHN,LORD JUSTICE DIPLOCK |
| Judgment Date | 04 February 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J0204-1 |
| Date | 04 February 1963 |
| Court | Court of Appeal |
In the Matter of the Estate of Richard Francis Henry King dec.
[1963] EWCA Civ J0204-1
The Master of the Rolls
(Lord Denning)
Lord Justice Upjohn and
Lord Justice Diplock
In The Supreme Court of Judicature
Court of Appeal
From Mr. Justice Buckley
MR H.E.FRAKCIS, Q.C. and MR. S.L.NEWCOMBE (instructed by Mr. J.G. Barr, Solicitor to the London County Council) appeared as Counsel for the Appellants.
MR.R.W.GOFF, Q.C. and MR. A.A. BADEN FULLER (instructed by Messrs C.A. Maddin & Co.) appeared as Counsel for the Respondent, Louis Water John Robinson.
MR.A.J.BALCOMBE and MR I.D.IWI (instructed by Mr. Edward F. Iwi) appeared as Counsel for the Respondent, Edward Ernest Graves-Tagg.
On the 5th December,1395, Mr. Edward Graves Tagg, an original lesser, let to an original lessee, Mrs. Elven, a piece of land in Bethnal Green, together with a factory which had recently been erected on it. The term was for eighty years from the 29th September,1894, at a rental of £100 a year. The lessee, for herself, her executors, administrators and assigns, covenanted with the lesser, his heirs and assigns (a) to keep the premises in repair during the term and yield them up in repair at the end; (b) at their own expense to insure the preuisos and keep them insured against loss or sum equal to three quarters of the value of the premises";(c) to lay out all moneys which should be received under any such policy in rebuilding or repairing such part of the said premises shall have been destroyed or damaged by fire in and, case such moneys shall be insufficient for the purpose, she, the lessee, her executors, administrators and assigns will out of their own moneys expend such further sums as may be necessary to reinstate the said premises'. The reversion expectant on the leaye has at all material times been vested in Mr. Edward Ernest Graves Tagg (hereinafter called "Mr. Tagg"). The lease has been vested in Mr. Richard Henry Francis King (hereinafter called Mr. King) and his executors. The lessee, Mr. King, sublet the premises for twenty-one years from the 29th September, 1944, and covenanted with the sub-lessee that he (Mr. King) would perform, the covenants of the head lease, and would insure against fire.
In December 1944 the factory was severely damaged by fire so that it was reduced to a mere shall. It could not, of course, be repaired or rebuilt at that time owing to the restrictions in force. Mr. King the lessee, had duly insured in joint names of lesser and lessee. In 1945 the insurance moneys, which amounted to £6,380. 11s.6d.,were duly paid into the joint namesof Mr. Tagg and Mr. King and after certain outgoings there was a balance of £5,939. 17s.5d. available for rebuilding or repairing the premises. The solicitors for less or and lessee agreed that this sum should be dealt with according to the terms of this letter sent by the less or's solicitors to the lessee's solicitors: "The balance of £5.939. 17s.5d. to be invested in the joint names of my client and jour client in Savings Bonds 1965/1975. My client, after reserving unto himself from the dividends sufficient to pay the pent as provided by the lease, shall account to your client each year for the balance The said sum of £5.939. 17s.5d to be charged with the liability of your client to perform his covenants under the lease, the said sum on his decease shall not form part of his estate".
Mr. King died on the 18th June, 1949, and the defendants are the executors of his will. The factory never has been repaired or rebuilt. In 1951 Mr. Tagg served notice on Mr. King's executors alleging breaches of the covenants in the lease and requiring them to be remedied. The executors did not repair or reinstate the premises. On the 16th February, 1953,an order was made for the administration of Mr. King's estate in Chancery. In July 1954 both Mr. Tagg and the sub-lessee made claims in the administration, claiming to be creditors of Mr. King's estate, Mr. Tagg claimed £19,619 damages for breaches of covenant to repair or reinstate and £800 arrears of rent under the lease. The sub-lessee claimed damages of £6,750 against the executors for their failure to reinstate.
About this time, however, the London County Council came on the scene. They took steps compulsorily to acquire the derelict factory and made a compulsory purchase order. Their intention was not to repair it but to pull it down and replace it by now houses. The compulsory purchase order was confirmed by the Minister on the September, 1954. On the 1954 November, 1954,the London County Council served on Mr. Tagg notice totreat. On the 9th September, 1955, they served notices to treat on Mr. King's executor and the sub-lessee. On the 28th December, 1960, Mr. Tags transferred the fee simple to the London County Council and the paid him £3,750 for it. On the 6th March, 1961 the sub-lessee transferred the sub-lease to the London County Council and they paid him £2,500 for it. Mr. King's executors have not yet transferred the lease to the London County Council but the compensation for it has been fixed at £1, subject to resolving the disputes here under debate.
The first point is this. Mr. Tagg says that, although ho has transferred his interact in the factory to the London County Council, he can still clair. damages against Mr. King's executors for their failure to repair or reinstate the promises after the fire. Mr. King's executors say that if they are liable to Mr. Tagg in damages, they should be indemnified by the London County Council against the claim and that such indemnity should be included in the transfer by them of the lease to the London County Council. This claim by Mr. Tagg raises directly for decision this important points when a lessor assigns his reversion to a purchaser, does he still retain the right to sue the lessee for breaches of covenant that occurred before the assignment? Both Woodfall and Foa on Landlord and Tenant say that he can. Thus Woodfall says (26th Edition, p. 852) that "The assignee of a reversion has no right of action against the lessee for arrears of rent previously due nor for damages for breaches of covenants, though running with the land, committed before the assignment of the reversion, unless the right to sue for such arrears or damages has been properly assigned to him as a chose in action; but the assignor may sue for such previous breaches notwithstanding the assignment". Foa says much the same (8th Edition, p. 442). The Judge has accepted that as a correct statement of the law. But Sugden and Dart on Vendor and Purchaser say the opposite.
Edward Sugden (afterwards Lord St. Leonards) wrote every linehimself. This is the passage which appears in every edition from the Second Edition in 1806 to the Thirteenth and last Edition in 1862 (p. 181): "The purchaser is entitled to the benefit of covenants in a lease by the lessee with the vendor and may recover for a breach before his time, if he is seized of the reversion during the continuance of the term; and he may, after notice to the tenant of the conveyance, distrain for rent in arrear, whether the estate be freehold or leasehold. But he cannot recover arrears of rent due before the assignment, although it will carry the right to the whole accruing quarter or half year: nor can he recover if he purchase after the term ended for a breach during the term". Dart says much the same (8th Edition, Vol.II, p. 693).
Which of these conflicting views is right? Let me take the covenant to keep in repair. The promises fall out of repair during the assignor's time and remain unrepaired during the assignee's time. A year or so later the lease comes to an end and the premises are delivered up still out of repair. The assignee can clearly sue the lessee for dilapidations and he will recover the cost of making them good: for that is, in the ordinary way, the amount by which the value of the reversion is diminished, is distinction is over drawn between those dilapidations that occurred before the assignment and those that occurred after the assignment. The assignee recovers for the whole of them. Such is the law and it has been so applied in numberless cases to my knowledge. And I ask myself: can the assigner in those circumstances afterwards sue the lessee for the breach that occurred, before the assignment, of the covenant to keep in repair? Clearly not: for that would mean that the lessee would be made liable twice over. I have taken that case when the assignee sues first. But suppose the assignor sues first. Can that make any difference? Surely not. The rights of the parties cannot depend on which of the two is first in time inissuing a writ. It would, of course, be different if the assignor, before the assignment, had recovered damages from the lessee for the breach. That would go in mitigation of the damages which the assignee could recover from the lessee, but would not otherwise affect his claim.
Let me next take the covenant to reinstate. Suppose the premises are damaged by fire, The lessee does not reinstate within a reasonable time. The breach is over once for all, but its effect continues. The lessor assigns to a purchaser, whilst the premises still remain damaged. The assignee serves a notice requiring the lessee to remedy the breach. In order to avoid a forfeiture, the lessee rebuilds and reinstates the promises. Or even without a threat of forfeiture, the lessee may rebuild and reinstate of his own accord. Can the assignor afterwards sue the lessee for the broach that occurred, before the assignment, of the covenant to reinstate? Clearly not, for the lessee. Has made good any damage that any reversion could possibly sustain.
These illustrations convince me that, as a matter of principle, after an assignor has assigned his reversion, he cannot thereafter sue the lessee on the covenants to repair or reinstate. Only the assignee...
To continue reading
Request your trial
-
Siu Yin Kwan and Another v Eastern Insurance Company Ltd (The Barquentine Osprey)
...did not infringe section 2, since the Act was not intended to apply to indemnity insurance. On the other hand in In re King (dec'd)ELR ((1963) Ch 459, 485) Lord Denning, Master of the Rolls, said: "You must remember that when you take out a policy of fire insurance of a building (as distinc......
-
Beacon Carpets Ltd v Kirby
...in the alternative, that they were entitled to the whole of the insurance monies in reliance on the decision of the Court of Appeal in Re King (1963) Ch. 459. 21 The judge, in a long and detailed judgment, found that the landlords had not been guilty of the delay alleged. For reasons which ......
- Ungku Sulaiman Abd Majid and Another v Director of Lands and Mines State of Johor and Another
-
Bland v Ingrams Estates Ltd (No 2)
...before 29 April 1996 – see section 141 of the Law of Property Act 1925 and the observations of this Court in In re King, Robinson v Gray [1963] Ch 459 and London and County (A & D) Ltd v Wilfred Sportsman Ltd [1971] Ch 764. The question is whether, in determining what payment should be made......