Vivian v Cochrane
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1844 |
| Date | 01 January 1844 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 605
HIGH COURT OF CHANCERY
S. C. affirmed 4 De G. M. & G. 818; 43 E. R. 728.
[167] vivian v. cochrane. Nov. 20, Dec. 21, 1844. [S. C. affirmed 4 De G. M. & G. 818; 43 E. E. 728.] The Act for tithes in London (37 Hen. 8, c. 12) provided that the inhabitants of London should pay 2s. 9d. in the pound for tithe upon the rent reserved; or if a less rent was reserved by reason of any fine, or if the owners were also occupiers, then the tithe to be paid at the same rate upon the rent at which the premises were last letten for, without fraud or covin. A house and premises in London were let for a term of sixty years at a reserved rent (including insurance) of £102, 10s., in consideration of the lessee laying out £2000 in building thereon. The improved annual value of the property, after the building was completed, was £250. Held that, under the statute, the tithe was to be paid at 2s. 9d. in the pound, not on the reserved rent alone, but on the full annual value of £250. The Plaintiff was the Eector of the parish of St. Peter le Poor, in the City of London. The Defendant was the public officer of a joint stock banking company, called the National Bank of Ireland; and the National Bank of Ireland were, fop upwards of two years before the filing of the bill, occupiers of a house, No. 13, in Old Broad Street, in the parish of St. Peter le Poor. By an agreement, dated in 1802, between the treasurer of Christ's Hospital, on behalf of the hospital of the one part, and James Stewart of the other part, the said treasurer agreed to grant to Stewart a lease of the site of two houses, Nos. 12 and 13, for sixty years from 1803, at £84 rent, and £3 for insurance; and Stewart agreed within two years to lay out £2000 in the substantial rebuilding of two houses on tha said site. By another agreement of the same date, the said treasurer agreed to grant a lease to Stewart of the cite of certain houses in Adam's Court, Broad Street, for sixty-one years, from 1803, at £76, 10s. a year ; and Stewart agreed to lay out £2000-in rebuilding the houses as therein mentioned. Stewart assigned the benefit of these agreements to Lee, and Lee assigned it to Harman. By a lease, dated in December 1807, reciting the said agreements, the governors of Christ's Hospital, in consideration that Stewart, Lee and Harman, or some of them, had expended more than the £2000 in the substantial rebuilding of the premises therein comprised, and also in consideration of the rent and covenants thereinafter reserved and contained, demised No. 13-Broad Street to Harman, his executors and administrators, for the term of fifty-seven years from Michaelmas then last, at the yearly rent of £92, 10s., and £10 for insurance, making together [168] £102, 10s. per annum. After some mesne assignments the lease and premises were, by an indenture, dated in August 1838, in consideration of £1950 paid to the assignor by.the National Bank of Ireland, assigned (1) See, on the practice as to this subpoena, 1 Smith Pr. 534, 3d. ed. 606 VIVIAN V. COCHRANE 4 HARE, 169. to certain trustees on behalf of the bank, for the residue of the term, subject to the rent and covenants. The National Bank of Ireland paid the Plaintiff £12 per annum for tithe of the house up to Lady Day 1843, which was the yearly sum that had been paid to the former rector. The premises were assessed to the poor rate at £250 per annum. The bill prayed that it might be referred to the Master to inquire and state the true annual value of the house and premises, and take an account of what was due to the Plaintiff for tithes thereof from Lady Day 1843, computed after the rate of 2s. 9d.(l) in the pound upon such annual value; and that the Defendant, or the National Bank of Ireland, might be decreed to pay to the Plaintiff the amount of what should so be found due, the Plaintiff waiving all right to penalties in respect thereof. The Defendant, by his answer, said that he believed the premises had not been at any former period let at a higher rent than £102, 10s.; but that it was probable they might let at a higher rent. Mr. Boteler and Mr. White, for the Plaintiff. The statute 37 Hen. 8, c. 12,(2) has always received a liberal construction, and tithes have been decreed to be [169] paid upon the general intent in cases not within the letter of the statute. The general intent of the Act was to impose upon all houses the payment of tithe, to be computed upon their true annual value, except only where an ancient customary rent had been reserved. In this case there was no such customary rent. The mode in which the lessor of a building lease adjusts the consideration of his demise amounts in fact to the reservation of a rent or income partly made up of the sum received as rent (properly so called) by the lessor, and partly of the increased rent, income or other sum which the lessee derives from the improvements. If the effect of the transaction between the lessor and lessee would be to reserve a less rent than the improved annual value, by withdrawing any part of that value from the prima fade liability to tithe, the transaction would constitute " fraud and covin" within the meaning of the Act, and the annual value of the premises to be let would then become the measure of the tithe. Mr. Romilly and Mr. Lewis, for the Defendant, argued that tithe was payable only on the actual rent reserved, and denied that the statute ought to receive any construction which should relieve the Plaintiff from the necessity of proving his right strictly. The demise on a building lease was a common mode of dealing with such property ; and the existence of " fraud or covin " was wholly excluded in any sense in which those words could be used. The rent was reserved without fraud or covin, and upon that rent the tithe must be computed. The property could not be improved without that improvement being ultimately beneficial to the tithe owner. He would be entitled to the tithe on the increased rent which the premises would produce after the expiration of the term which had been created for the purpose of effecting the improvement. [170] The following cases were cited -.-Dunn v. Burrell (1 Gwil. 299; S. C. 1 Ea. & You. 270), The Warden and Minor Canons of St. Paul's v. Crickett (2 Ves. jun. 563; 5 Price, 14), The Warden and Minor Canons of St. Paul's v. The Dean of St. Paul's (4 Price, 65), Ivatt v. Warren (3 Gwil. 1054), Williamson v. Gossling (Id. 902), Antrobus v. The East India Company (13 Ves. 9), Ward v. Hilder (2 Gwil. 538; S. C. 1 Ea. & You. 576), Kynaston v. The East India Company (3 Swanst. 263, per Lord Eldon; see 4 Price, 84, n.), The Warden and Minor Canons of St. Paul's v. Morris (9 Ves. 155), The Warden and Minor Canons of St. Paul's v. Kettle (2 Ves. & Bea. 1), Green v. Piper (Cro. Eliz. 276), Skidmore v. Sell (2 Inst. 659), Sheffield v. Pierce (2 G-will. 503), Grant v. Cannon (Id. 541), Sayer v. Mumford (Id. 546), Bramston v. Heron (4 G-will. 1314), Denn d. Manifold v. Diamond (4 B. & C. 243), The King v. The Inhabitants of Barham (8 B. 6 C. 99), Cockburn v. Harvey (2 B. & Ad. 797). the ViCE-CHANCBLLOE said that the more satisfactory mode of determining the question would be by sending a case for the opinion of a Court of law, which he would (1) The material parts of the stat. 37 Hen. 8, c. 12, upon which the claim was founded, are stated in the judgment, infra, p. 172. (2) An Act for tithes in London. 4 HARE, 171. VIVIAN V. COCHRANE 607 do if either party desired it. If, however, both parties preferred that he should give his judgment upon the case, he should take time to consider it, Dec. 21. The counsel on both sides expressed it to be the wish [171] of the parties that the question should be determined in this Court without a case at law. the vice-chancellor [Sir James Wigram]. This is, I believe, a new question; and, as it is purely a question of law, depending upon the construction of a decree, and an Act of Parliament passed in the time of Henry VIII., I was desirous that the parties should have taken a case for the opinion of a Court of law on the construction of the decree. Both parties have, however, expressed a wish to avoid that course, and have requested that I would give my opinion upon the question. The facts of the case are these :-The Plaintiff is rector of a parish in the City of London, in which the house to which the question relates is situated. The Defendant is the public officer of, and represents, the National Bank of Ireland, and the National Bank of Ireland are lessees for years, and occupiers of a house, the tithes of which are claimed by the Plaintiff. The lease under which the Defendants hold was made in consideration of an annual reserved rent, and of a covenant by the lessees to expend £2000 in building upon the land demised. The £2000 has been expended, in performance of the covenant, in building the house in question. The right of Plaintiff to tithe, after the rate of 2s. 9d. in the pound, on the reserved rent is not in dispute. But the Plaintiff claims more than this : he insists upon a right to be paid 2s. 9d. in the pound on the improved value of the property, which has arisen by the expenditure of the £2000 in building the house. The issue, therefore, between the parties is upon how many pounds sterling the 2s. 9d. is to be paid, whether upon the reserved rent only, or upon an estimated rent measured by the improved value of the property. [172] The question depends upon the statute 37 Hen. 8, c. 12, and the decree made under that Act. By that Act it is provided- " That the citizens and inhabitants of the said City of London, and liberties of the same, for the time being, shall yearly, without fraud or covin, for ever pay their tithes to the parsons, vicars and curates of the said city, and their successors, for the time being, after the rate hereafter following; that is, to wit, of every 10s. rent by the year of all and every house and...
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