Rogers against Grazebrook and Another
| Jurisdiction | England & Wales |
| Judgment Date | 01 May 1846 |
| Date | 01 May 1846 |
| Court | Court of the Queen's Bench |
English Reports Citation: 115 E.R. 1111
QUEEN'S BENCH
[895] rogbrs against geazebkook and another. Friday, May 1st, 1846. In trespass quare elausura fregit, the plaintiff made title under a mortgage deed of March 6th, 1840, by which the mortgagor, H., demised premises to the plaintiff from thenceforth for a certain term, subject to a proviso that the demise should cease and be void if H. paid principal and interest by March Gth, 1841, arid interest at stated periods iu the mean time; and to another proviso, empowering plaintiff to sail (after three months' notice), if default should be made iu payment of principal and interest at the times named. Then followed covenants (among others) by H. to plaintiff, for payment of principal and interest at the days appointed, and that, at any time after default made in such payment, it should be lawful for plaintiff peaceably and quietly to enter upon the premises, and from thenceforth, for the residue of the term, to hold the same and take the rents and profits without lawful interruption from H. or any other person, &c. On pleadings in trespass, setting forth the deed, and shewing that the plaintiff had entered upon the mortgaged premises after the execution of the deed but before March 6th, 1841, and before default in payment, and raising the question whether or not he had a right so to enter, Held that the deed gave power to the mortgagee to enter before default, and before the day named for any payment. Trespass for breaking and entering plaintiff's messuage, continuing therein, and taking and converting the issues and profits, &c. Plea 3. That, before the first of the times when, &c., to wit on, &c., George Taylor was seized in his demesne as of fee of the close on which the said messuage is, and at the, times when, &c., was standing, and, being so seised, demised the close to Charles Berners, his executors, administrators and assigns, from 29th September 1804 to the (b) 2 T. R. 18, 23. See Rex v. Stone, 1 East, 639, 648, note (a). 1112 EOGEES V. GRAZEBROOK 8 0-B. 896. full end, &c. of ninety seven years thence next, &c.: and Berners entered and was possessed, and demised the close to Kerrison for sixty-one years, and Kerrison to Redd ell for twenty-one; that Reddell became bankrupt, and his assignees accepted bis lease and assigned the residue of his term (twenty-one years, from December 25th, 1835,) to Freeman, who demised to Eeuben Hunt for seventeen years (wanting fourteen days) from December 25th 1839 ; that Hunt entered and built the messuage upon the said close; that he afterwards became bankrupt, and the defendants were chosen assignees by the creditors; and they, and Carman, the of-[896]-ricial assignee, before any of the times when, &e., accepted Hunt's lease, and elected to become assignees of his term, and by reason thereof they, with Caiman, became lawfully entitled to and possessed of the said messuage as forming part of Hunt's estate at the time when he became bankrupt. Averment, that, while defendants and Cannan were so entitled and possessed, the plaintiff, claiming title to the possession of the premises under colour of a certain fraudulent and void lease to him thereof made by Hunt with intent to cheat the creditors and assignees, whereas nothing of or in the said messuage ever passed to plaintiff by such lease, afterwards, and before the first of the times, &c., and while defendants and Cannan were entitled, &c., to wit on, &c., entered into the messuage and was possessed thereof; and thereupon, &e.: justification by defendants in their own right as assignees of Huut, am] also as servants to Cannan. Verification. Replication to plea 3. That, after the demise by Freeman to Hunt, and before Hunt's bankruptcy, and while he was possessed, &c., to wit on March 6th, 1840, Hunt, by indenture between him and plaintiff of that date (profert), demised the messuage, &0. to plaintiff for all the residue, except the last day, of Hunt's term, which term so granted to plaintiff was in full force at the times when, &c.; by virtue of which demiie, and while the same was in force, and, after Hunt's bankruptcy, and after defendants and Cannan had become, and while they were, possessed of the messuage, &c., and before the times when, &c., to wit on, &c., plaintiff entered into and was possessed of the messuage for the term granted to him, whereof defendants had notice; and that afterwards, and while plaintiff was so possessed, to wit at the times [897] when, &&, defendants of their own wrong committed the trespasses, &c. Verification. Rejoinder, craving oyer of the last mentioned deed, which was then set out. The material parta were as follows. The indenture, dated 6th March, 1840, between Hunt of the oue part and Rogers, the plaintiff, of the other part, recited the lease by Freeman to Hunt; that Hunt was indebted to Rogers in 5001. for money lent, and, for securing that sum and all such other...
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