The London and Westminster Loan and Discount Company Ltd v Drake
| Jurisdiction | England & Wales |
| Judgment Date | 16 June 1859 |
| Date | 16 June 1859 |
| Court | Court of Common Pleas |
English Reports Citation: 141 E.R. 664
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 28 L. J. C. P. 297; 5 Jur. N. S. 1407; 7 W. R. 611. Followed, Saint v. Pilley, 1875, L. R. 10 Ex. 139. Se Moss v. James, 1877-78, 37 L. T. 717; 47 L. J. C. P. 162; 38 L. T. 595. Referred to, Clements v. Matthews, 1883, 11 Q. B. D. 819. Adopted, In re Glasdir Copper Works, [1904] 1 Ch. 824.
[798] thj london and westminster loan and discount company, : limited, D. drake. June 16th, 1859. [S. G. 28 L. J. C. P. 297; 5 Jur. N. S. 1407 ; 7 W. ft. 611. Followed, tiaint v. PUley, 1815, L. R. 10 Ex. 139. See Mow v. Jaims, 1877-78, 37 L. T. 7l7; 47 L. J. C. P. 163; 38 L. T. 595. Referred to, (Jlem&iix v. Matthews, 1883, 11 (.}. B. I). 819. Adopted, In r* Glasdir Copper Works, [1904] 1 Ch. 824.] A lessee mortgaged tenant's fixtures, and afterwards surrendered his lease to the lessor, who granted a fresh term to the defendant:-Held, that the mortgagees fl C. B. (tf.S.)m THE LONDON LOAN AND DISCOUNT CO. V. DRAKE 665 bad a right to enter and sever the fixtures,-it not being competent to the tenant, to defeat his grant by a subsequent voluntary act of surrender. The first count of the declaration was trover for goods; the second was for wrongfully depriving the plaintiffs of the use and possession of divers goods and fixtures of fche plaintiffs in and affixed and fastened to a certain dwelling-house and premises in St. Mary Axe ; and the third was for seizing and taking certain goods and fixtures of the plaintiffs in and affixed and fastened to the said house and premises in the said second count mentioned. The defendant pleaded, not guilty, and a traverse that the several goods and fixtures in the several counts mentioned were the goods and fixtures of the plaintiffs. Issue thereon. The cause was tried before Crowder, J., at the sittings in London after last Trinity Term, when the folio wing facts appeared in evidence :-One Robinson, who was tenant of the premises in question (an eating-house in St. Mary Axe) under a lease of which seven years were unexpired, on the 4th of September, 1857, borrowed a sum of money of the plaintiffs, giving them by way of collateral security a bill of sale upon all his furniture arid effects upon the premises, including certain tenant's fixtures. The bill of sale contained an absolute assignment of all the goods and effects therein comprised, subject to a proviso making the same void if Robinson should repay the money borrowed by certain instalments ; and also an agreement, that, in case default should be made in payment of the money, or if, amongst other things, the said goods and effects should be distrained for rent, it should be lawful for the plaintiffs to enter into and upon the premises, or [799] wherever else the said goods and effects should be, and to receive and take into their possession and thenceforth to hold to the same, &c. Default having been made by Robinson, the plaintiffs, by one Priest, on the .'30th of March, 1858, entered upon the premises for the purpose of making a seizure, but found that the landlord had already distrained for arrears of rent, and that his broker was in possession. Priest, however, claiming the fixtures, left a man also in possession ; but the fixtures were not severed. On the 8th of March, 1858, Robinson had given his landlord an authority to distrain the fixtures; and on the 5th of April he made a formal surrender of the term to him. A fresh lease was afterwards granted by the landlord to Drake,-the tenant's fixtures which had formerly belonged to Robinson still remaining upon the premises unsevererl from the freehold. The plaintiffs made a formal demand of the fixtures upon the defendant, who declined to give them up, saying that he had purchased them from Robinson. Upon these facts being proved, the learned judge directed a verdict to be entered for the defendant, reserving leave to the plaintiffs to move to enter a verdict for them for 1231. '2s., if the court should be of opinion that they were under the circumstances entitled to recover in respect of the fixtures. Atherton, Q. C., in Michaelmas Term last, obtained a rule nisi accoidingly. He submitted that it was not competent to Robinson by surrendering his term to his landlord to derogate from the grant he had previously made to the plaintiffs. Day shewed cause. Fixtures have no legal independent existence whilst attached to the freehold : consequently, the defendant, who is in possession of [800] the premises as tenant^ and has bona fide purchased the fixtures without notice of the plaintiffs' claim, is 'entitled to retain them : (Jolegrare v. Dias Santos, 2 B. & C. 76, 3 D. & R. ò255; Ex'parle Gawnti, In re Barclay, 25 Law J., Bankruptcy, I. There is no such thing kniwn to the law as a grant of fixtures independently of the possession of the premises to which they are annexed. The only way such an instrument could operate would be by way of licence to enter and remove them. [Cockburn, C. J. The tenant assigns the fixtures to the plaintiffs before he surrenders his lease to the landlord. Supposing he had not surrendered, he would have had an undoubted right to remove the fixtures, and so would his assignees. Et may be that it was not competent to the grantor by the surrender to derogate from his grant.] The first count is clearly not sustainable, because it will be conceded that trover will not lie for fixtures (a). The second count is also in substance a count in trover. And there is no evidence to sustain...
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