Taylor v Ellis
| Jurisdiction | England & Wales |
| Date | 1960 |
| Year | 1960 |
| Court | Chancery Division |
Mortgage - Leasing, power of - Express provision - Statutory power of leasing excluded except with written consent of mortgagee - Grant of tenancy - No evidence of consent - Onus of proof of consent - Knowledge of lease by mortgagee - Non-payment of mortgage interest - Whether lease binding on mortgagee.
A mortgage dated October 27, 1924, excluded the mortgagor's statutory power of leasing unless the mortgagee should consent in writing to the lease. By an agreement dated September 19, 1940, the surviving mortgagor purported to grant a monthly tenancy to W. H. The surviving mortgagor, who granted the tenancy, died on July 11, 1943, and the original mortgagee died on July 21, 1957. There was no evidence that the mortgagee did give written consent to the grant of the tenancy, but there was no positive evidence that he did not, and it was possible that he had: it was admitted that the mortgagee knew of the tenancy. No mortgage interest was paid after October, 1950, and, on August 5, 1959, the mortgagee's personal representative issued an originating summons claiming possession of the property subject to the mortgage:—
Held, (1) that the onus was on the tenant to prove that the mortgagee gave written consent to the grant of the tenancy and, therefore, in the absence of any evidence of such consent, the tenancy was not, to begin with, binding on the mortgagee.
(2) That the tenancy had not become binding on the mortgagee by reason of the events subsequent to the grant of the tenancy, for it would be wrong to infer merely from the facts that the mortgagee, having knowledge of the tenancy, allowed the tenant to remain in possession, and that no interest had been paid for nine years, that the mortgagee had consented to take the tenant as his tenant. The plaintiff, accordingly, was entitled to possession against the tenant.
ORIGINATING SUMMONS.
By a mortgage dated October 27, 1924, William John Ellis and Albert Edward Ellis, the legal personal representatives of William Ellis, deceased, granted a mortgage on a property known as “Killarney,” at Etchingham, Sussex, to Thomas Taylor, to secure the repayment of a sum of £250 with interest. The mortgage provided, inter alia, that it was expressly agreed and declared that no lease made by the borrowers of any of the property or any part thereof during the continuance of the security should have effect by force or virtue of the
On April 15, 1936, William John Ellis died. On September 19, 1940, Albert Edward Ellis, the surviving mortgagor, granted a tenancy of the whole of the property to William Thomas Hayler who, since about 1928, had been in possession of part of the property as a sub-tenant of Barclays Bank Ltd., it appearing that Barclays Bank Ltd. held the whole of the property under a lease which came to an end in 1940. The tenancy was determinable by a month's notice on either side; and there was nothing in its terms to prevent it from being an exercise of the statutory power of leasing.
On July 11, 1943, Albert Edward Ellis died. His legal personal representatives were Edith Miriam Jeffery and Lionel Charles Ellis. Edith Miriam Jeffery died on June 6, 1947, leaving Lionel Charles Ellis the legal personal representative by representation of the surviving mortgagor.
No interest under the mortgage was paid to the mortgagee after October 5, 1950. On July 21, 1957, the mortgagee died and on August 5, 1959, the plaintiff, his legal personal representative, issued an originating summons against Lionel Charles Ellis, as the person entitled to redeem the mortgage, and the tenant, as the person in possession of the property, claiming possession of the property.
N. Browne-Wilkinson for the plaintiff.
Bryan Clauson for the tenant.
The first defendant, Lionel Charles Ellis, did not appear and was not represented.
The following case, in addition to those referred to in the judgment, was cited in argument: Iron Trades Employers Insurance Association Ltd. v. Union Land and House...
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Ken Fennell v Gilroy
...at para. 2.03:- “A tenant, unlike many other users of land, has an estate or interest in the land in question.” 24 . Taylor v Ellis [1960] 1 Ch. 368 is authority for the proposition that there is a positive onus on a person claiming that he is a tenant to prove that the mortgagee waived his......
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Singapore Finance Ltd and Another v Matterhorn (Pte) Ltd and Another
...the building society, and that the society is entitled to succeed. Lastly, there was also a decision of Cross J in Taylor v Ellis & Anor [1960] 1 Ch 368 in which he reached the same conclusion as Danckwerts J. In that case, the mortgage contained a provision to the effect that no lease gran......
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...made by the mortciagor. Universal Permanent Building Society v. Cooke [1952] 2 All E.R. 893; Hughes v. Waite [1957] 1 All E.R. 603; Taylor v. Ellis [1960] 1 All E.R. 549. A lease that is void between the mortgagee and lessee is void against a purchaser on the mortgagee exercising his pow......