Willmott v Barber
| Jurisdiction | England & Wales |
| Date | 1879 |
| Year | 1879 |
| Court | Chancery Division |
Specific Performance - Discretion of Court - Inconsistent prior Agreement - Lease - Covenant not to assign without written License of Lessor - Mistake of Title - Outlay of Money on another Person's Land - Acquiescence.
The Court will not compel a Defendant specifically to perform an agreement when the result would be to compel him to commit a breach of a prior agreement with another person.
The lessee of three acres of land agreed in January, 1874, to let one acre to the Plaintiff for the whole of the residue of his term, and he agreed also to sell to the Plaintiff his interest in the whole three acres at any time within five years from the date of the agreement. The leave contained a covenant by the lessee not to assign the property, or to part with the possession of it or any part of it, without the written consent of the lessor. The Plaintiff was not, in fact, aware of this covenant. He was let into possession of the one acre, and he laid out money upon it, and also upon adjoining property of his own with the view of occupying the two together. The lessor was aware of this expenditure. In October, 1877, the lessee, without the Plaintiff's knowledge, surrendered the lease to the lessor, in exchange for a new lease for a longer term of the three acres together with other property. The new lease contained a similar covenant by the lessee not to assign, &c., without license. In November, 1877, the Plaintiff gave the lessee notice of his desire to exercise his option to purchase his interest under the original lease in the three acres. The lessee declined to perform his agreement, on the ground that the lessor refused to give his license to an assignment. The Plaintiff brought the action against the lessee and the lessor, claiming specific performance of the agreement by the lessee, and to compel the lessor to give his license, on the ground, inter alia, that he had acquiesced in the Plaintiff's expenditure knowing that he was acting in the mistaken belief that the lessee was able to assign the property to him. It appeared that the lessor was not, when the Plaintiffs expenditure was incurred, aware of the existence of the lessee's covenant not to assign without license:—
Held, that the lessee could not be compelled to perform his agreement, inasmuch as his doing so would involve a breach of his prior covenant not to assign without license, for that, as the Plaintiff was seeking to treat the original lease as still subsisting for one purpose, he must treat the covenant not to assign contained in it as still subsisting:
Held, also, that inasmuch as the lessor was ignorant of his own rights, and there was nothing to shew that he knew that the Plaintiff had been acting in ignorance of his legal rights, the lessor could not be compelled to give his license to assign to the Plaintiff.
Mistake of fact is not the less a ground for relief because the person who has made the mistake had the means of knowledge.
THIS action was brought for the specific performance of an agreement for the sale of some leasehold property.
In the year 1874 the Plaintiff, Joseph Willmott, was the proprietor of a saw-mill and premises at Bow Bridge, Stratford, Essex, adjoining the River Lea, and next to a piece of marsh land, which was occupied by the Defendant John Barber under a lease granted to him by the Defendant William Bowyer on the 17th of September, 1869, at a yearly rent of £100, for the term of ninety-nine years from the 25th of March, 1869. The land comprised in the lease contained nearly three acres. The lease contained a covenant by the lessee that he, his executors, administrators, or assigns, would not, without the previous written license of the lessor, his heirs or assigns, assign, underlet, or part with the possession of the demised premises or any part thereof, and a proviso for re-entry exerciseable by the lessor, his heirs or assigns (inter alia), if and whenever the lessee, his executors, administrators, or assigns, should assign or underlet or part with the possession of the demised premises or any part thereof without such license as aforesaid.
On the 5th of January, 1874, the Defendant Barber and the Plaintiff entered into the following agreement:—
“John Barber hereby agrees to let to Joseph Willmott one acre of his field adjoining the River Lea and the saw-mill premises, Bow Bridge, Stratford, being 350 feet deep from the river, and sufficiently wide to make up the acre of land, for the whole of his term, being ninety-four years from Christmas last or thereabouts, for the yearly rental of £100. And John Barber hereby further agrees to sell his right, title, and interest in the whole of the said field and premises now occupied by him for the sum of £1500, at any time within five years from this date. And the said Joseph Willmott agrees to rent the said one acre of land at £100 per annum from Christmas last on the condition that he has the option of purchase of the whole of John Barber's right, title, and interest in the whole of the said field within five years from the present date for £1500, and Joseph Willmott now pays the said John Barber £25 as deposit money, to bind the bargain, the same being considered to be the first quarter's rent in advance. And Joseph Willmott further agrees to pay John Barber any further sum that he may lay out in buildings to the extent of £500, and any further sum that the said Joseph Willmott and John Barber may agree upon in writing together. The ground referred to to be fenced in within twelve months.
“The right, title, and interest referred to is the lease of a field containing nearly three acres of land, with all buildings thereon and improvements appertaining thereto, rented by John Barber of William Bowyer for an unexpired term of ninety-four years or thereabouts from Christmas last, at a rent of £100 per annum, with no further conditions to be fulfilled by the tenant John Barber, and the buildings for the extra £500 referred to are to be substantial brick buildings, each of the value of £100 at least.”
The Plaintiff was let into possession of the one acre of land soon after the date of the agreement, and he fenced it in within twelve months. He laid out a considerable sum of money in carting materials to the land, and raising its level, and converting it into a timber yard, and he also laid out a large sum of money in enlarging and improving his saw-mill and premises. On the 16th of October, 1877, Barber, without the Plaintiff's knowledge, surrendered the lease of the 17th of September, 1869, to Bowyer, and Bowyer granted him a new lease of the same premises, together with some additional land, at an increased rent, for the term of ninety-nine years, from the 25th of March, 1877. This lease contained a covenant by the lessee not to assign, underlet, or part with the possession of the demised premises or any part thereof without the previous written license of the lessor, his...
To continue reading
Request your trial
-
Hopgood v Brown
...referred us to the formulation of requisites in the class of case with which he was dealing by Mr Justice Fry in the well-known case of Willmott v. Barber, 15 Chancery Division, at page 105. In my judgment, the formulation which I have stated was addressed to and limited to case where the p......
- Laksamana Realty Sdn Bhd v Yeo Tin Sang
- PRALMM Muthukaruppan Chettiar; The State of Perak
- Chia Ngen Yiok; Wah Loong (Jelapang) Tin Mine Sdn Bhd
-
Top 5 Civil Appeals From The Court Of Appeal (April 2014)
...of the equitable doctrine, from the traditional approach of the "five probanda" outlined in the 1880 case of Willmott v. Barber (1880), 15 Ch. D. 96 to the modern approach. The modern approach to proprietary estoppel was summarized as involving a consideration of whether: (i) the owner of t......
-
Preliminary Sections
...........15 Williams v. Snowden (1880) W.N. 124. .............................................................. 473 Willmott v. Barber (1880) 15 Ch.D. 96 at 105. ......181 Wobo v. A.G., 14 W.A.C.A. 133. 433 Woluchem & Ors v. Chief Gudi & Ors (1981) 5 S.C. 291 ......................................
-
Preliminary Sections
...Co. (1965) Ch. 508 at 515. 83 Wickins v. Wickins [1918] P. 265. 177 Williams v. Williams [1963] 3 W.L.R. 215. 177 Willmott v. Barber (1800) 15 Ch D 96 185 Woolfenden v. Woolfenden [1948] P. 27. 177 Yaya v. Mogoga (1947) 12 W.A.C.A. 132. 152 Yesufu v. 0;o [1958] 3 F.S.C. 106. 258 ...
-
Cases referred to in 1967
...Co. (1965) Ch. 508 at 515. 83 Wickins v. Wickins [1918] P. 265. 177 Williams v. Williams [1963] 3 W.L.R. 215. 177 Willmott v. Barber (1800) 15 Ch D 96 185 Woolfenden v. Woolfenden [1948] P. 27. 177 Yaya v. Mogoga (1947) 12 W.A.C.A. 132. 152 Yesufu v. 0;o [1958] 3 F.S.C. 106. 258 ...
-
Equity and Trust
...of Appeal in Shaw v Applegate[1977] 1 WLR 970, rejected a strict adherence to the five probanda set out by Fry J in Willmott v Barber(1880) 15 Ch D 96 as a prerequisite to setting up an estoppel by acquiescence. This conclusion has been decried as heretical by the leading Australian authori......