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Owner's Rights revive.

TRUSTEES AND AGENCY CO. v. SHORT. [1888]

(58 L. J. P. C. 4 ; 13 App. Cas. 793 ; 59 L. T. 677 ; 37 W. R. 433 ;
53 J. P. 132— P. C.)

The plaintiff company brought this action in ejectment to
recover fifty acres of land which was situated in Botany Bay,
New South Wales.



LEASEHOLDS. 201

The land in question was some open bush land of which the
plaintiff company had obtained a grant from the Government in
1810. In 1848 one William Meredith entered into possession
of the land, but abandoned the same five years later.

In 1883 the defendant took possession of the land, claiming"
the same as a purchaser from William Meredith.

The defendant contended that, as the plaintiffs had not
entered upon the land for more than twenty years, nor exercised
any of the rights of ownership, they were debarred under the
Statute of Limitations (3 & 4 Will. 4, c. 27), which was adopted
in New South Wales, from claiming the land.

Held, the plaintiffs were entitled to the land.

If a person enters upon the land of another, and holds
possession for a time, and then, without having acquired title
under the Statute of Limitations, abandons possession, the
rightful owner on the abandonment is in the same position in
all respects as he was before the intrusion took place.



LEASEHOLDS.



A Person in Possession under an Agreement for a Lease of which
Specific Performance would be granted, holds under the same
terms as if the Lease had been granted.

WALSH v. LONSDALE. [1882]
(52 L. J. Ch. 2 ; 21 Ch. D. 9 ; 46 L. T. 858 ; 31 W. E. 109.)

In 1879 the defendant agreed in writing to grant the plaintiff
the lease of a mill for seven years, with a stipulation that each
year's rent was to be payable in advance on demand.

The plaintiff went into possession and paid rent at the end
of each quarter to the 1st January, 1882.

In March, 1882, the defendant demanded payment of 1,005/.,



202 REAL PROPERTY AND CONVEYANCING.

partly for the rent already due and partly for one year's rent in
advance, and put in a distress.

The plaintiff thereupon brought this action for illegal distress,
upon the ground that he did not hold under a lease, but merely
an agreement for a lease, which in law only constituted a
tenancy from year to year ; and that there could be no distress
unless there was a legal tenancy and the rent in arrear.

Held ', per Jessel, M. R., that there had been no illegal
distress.

" There is an agreement for a lease under which possession
has been given.

" Now j since the Judicature Act the possessio?i is held
under the agreement. There are not two estates as there
tvere formerly , one estate at common law by reason of the
payment of the rent from year to year, and an estate in
equity under the agreement. There is only one Court, and
the equity rules prevail in it, and the tenant holds under an
agreement for a lease. He holds, therefore, under the same
terms in equity as if a lease had been granted, it being a
case in which both parties admit that relief is capable of
being given by specific performance. That being so, he
cannot complain of the exercise by the landlord of the same
right as the landlord would have had if a lease had been
granted. On the other hand, he is protected in the same
way as if a lease had been granted ; he cannot be turned out
by six months' 1 notice as a tenant from year to year. He
has a right to say, i I have a lease in equity, and you can
only re-enter if I have committed such a breach of covenant
as ivould, if a lease had been granted, have entitled you to
re-enter according to the terms of a proper proviso for re-
entry? That being so, it appears to me that, being a lessee
in equity, he cannot complain of the exercise of the right of



LEASEHOLDS. 203

distress merely because the actual parchment has not been
signed and sealed. 1 ''



What constitutes good Tenantable Repair depends on the age and

locality of Premises and the class of Persons likely to require

them.

PEOUDFOOT v. HAET. [1890]

(59 L. J. Q. B. 389 ; 25 Q. B. D. 42 ; 63 L. T. 171 ; 38 W. E. 73U ;

55 J. P. 20.)

The action was brought to recover damages for breach of an
agreement between the plaintiff and the defendant, whereby the
defendant agreed to rent a house at 551. per annum, and to keep
the demised premises in good tenantable repair and so to leave
them at the expiration of the term. The question that had to
be decided was, what constituted good tenantable repair.

Held, u good tenantable repair'' 1 in an agreement by a
tenant to keep and leave demised premises in good tenantable
repair means such repair as, taking into account the age
and character of the premises and the locality in which they
are situated, a reasonable tenant of the class of persons who
would be likely to require such premises might reasonably
require in order to fit the premises for occupation.

A tenant tvho agrees to " keep " premises in good tenant-
able repair is not excused from doing so by reason that the
premises were not in good tenantable repair at the time of
the demise. He must in that case put the premises in good
tenantable repair.



204 HEAL PROPERTY AND CONVEYANCING.



COVENANTS WHICH II UN WITH THE LAND.



Covenants running with the Land are those under which the
Benefits and Liabilities pass to the Assignee of the Land.

SPENCER'S CASE, SPENCER v. CLARK. [1584]
(5 Coke, 16; S. L. C. i. 55.)

Spencer by deed demised land to one S. for twenty-one
years, the lessee covenanting on behalf of himself, his executors
and administrators, to build a brick wall on part of the demised
land. The lessee assigned the lease to J., who in turn assigned
it to the defendant. The wall not having been built, the
plaintiff brought this action against the defendant, claiming
damages for breach of the covenant.

Held, that the defendant tvas not liable, for the original
lessee had not covenanted for himself and his assigns; and
as the covenant was for something to be done, the assignee
not being bound by express toords was not liable.

The Court unanimously laid down the following rules ivith
regard to covenants which run with the land : —

(1) Where the covenant extends to a thing in esse, parcel
of the demised, the covenant runs with the land, and binds
the assignee although he be not bound by express words,
e.g., where the lessee covenants to keep the demised premises
in repair.

(2) Where the covenant concerns a thing not in esse at
the time of the demise, but to be built on the land demised,
the assignee is only liable where bound by express terms.

(3) The assignee, though named, is not bound by a cove-
nant to do something which is merely collateral, and which
in no manner loaches or concerns the thing demised and



COVENANTS WHICH RUN WITH THE LAND. 205

assigned over. Thus, for instance, the assignee is not bound
ivhere the lessee covenants J or himself and his assigns to
build a house on the lessor's land.

(4) Where the lessor leases any personal goods and the
lessee covenants for him and his assigns at the end of the
time to deliver the same in as good condition as when he got
/hi'in, such covenant is but a personal contract and does not
bind the assignees.

Note. — A covenant running with the land is one in which the
liabilities or benefits under it pass to the assignee of that land.



Restrictive Covenants bind a Purchaser of Land who buys with

Notice.

TTTLK v. MOXHAY. [1848]

(18 L. J. Ch. 83 ; 2 Ph. 774 ; 1 Hall & Tw. 105 ; 13 Jut. 89.)

In 1808 the plaintiff sold to one Elms the square plot of
garden which is still to be seen in Leicester Square. Elms
covenanted on behalf of his heirs, executors and assigns to pre-
serve the garden in the same condition as it was then in, free
from buildings. Subsequently Elms sold the property to the
defendant, who, although he knew of the covenant, promptly
started building operations.

Held, the defendant was bound by the covenant not to
build, for it zvas inequitable that Elms, who had purchased
subject to restrictions for a lower price than he could other -
ivise have obtained it for, should, by being able to sell it free
of restrictions, receive full value from a third party, and
that such third party should then hold it unfettered by the
restriction under which it zvas granted.



206 REAL PROPERTY AND CONVEYANCING.



Positive Covenants do not bind a Freeholder even though he buys
the Land with Notice.

AUSTERBERRY v. CORPORATION OF OLDHAM. [1885]
(55 L. J. Ch. 633; 29 Ch. D. 750; 53 L. T. 543; 33 W. R. 807.)

The plaintiff's predecessor in title conveyed a certain piece of
land to trustees for valuable consideration for the purposes of
making a road, and the trustees covenanted with the vendor,
his heirs and assigns, that they, their heirs and assigns, would
make the road and at all times keep it in good repair.

The trustees sold the land to the defendant corporation,
which took it with notice of the covenant which, if binding,
made the corporation liable to make up the road. The defen-
dants denied that they were liable to make or maintain the road,
whereupon the plaintiff brought this action to enforce the
covenant.

Held, that this covenant did not run ivith the land, and
could not be enforced against the purchasers from the
trustees although they took it with notice of the covenant to
repair.

The doctrine in Tulk v. Moxhay (supra, p. 205) is
limited to restrictive stipulations, and will not be extended
so as to bind in equity a purchaser taking with notice of a
covenant to expend money on repairs or otherwise which does
not run with the land at law.



MORTGAGES. 207



MORTGAGES.



Once a Mortgage always a Mortgage. Equity does not permit
a clog on the Equity of Redemption.

BEADLEY v. CAEEITT. [1903]

(72 L. J. K. B. 471 ; (1903) A. C. 253 ; 88 L. T. 633 ;
51 W. E. 636— H. L. (E.).)

Bradley, who held a number of shares in a tea company,
mortgaged them to Carritt and undertook to use his best
endeavours to secure that the plaintiff " shall always hereafter
have the sale of all the company's teas as broker" ; and in the
event of any of the company's teas being sold otherwise than
through Carritt, Bradley personally agreed to pay Carritt the
amount of the commission which Carritt would have earned if
the teas had been sold through him.

Carritt having called in the loan, Bradley repaid it and
transferred the shares in the company into his own name.

Carritt brought this action claiming damages from Bradley
for not continuing to buy his teas through him.

Held, Carritt was not entitled to damages, as such a
stipulation constituted a clog on the equity of redemption,
and was therefore invalid.



Where several Mortgages become vested in one Mortgagee, the
right of Consolidation can be enforced not only against the
Original Mortgagor, but also against the Assignee of the
Equity of Redemption.

PLEDGE v. WHITE. [1896]

(65 L. J. Ch. 449 ; (1896) A. C. 187 ; 74 L. T. 323 ; 44 W. E,
589— H. L. (E.).)

James Bank was the owner of seven different properties,
which he mortgaged to several different persons.



208 REAL PROPERTY AND CONVEYANCING.

Brockraan had all these mortgages except one transferred to
him in his lifetime, and after his death the remaining mortgage
was transferred to his executor, White, who thus became the
mortgagee of all seven properties.

In the meantime James Bank had transferred the equities of
redemption of all these properties to the plaintiff, who claimed
to be entitled to redeem one of the properties by paying off the
amount secured on that property only.

The defendant claimed to be entitled to consolidate all the
mortgages.

Held, the defendant was entitled to consolidate all the
mortgages, and have them all paid off.

Where several mortgages originally vested in several
persons for distinct sums become united in one holder, the
right of consolidation can be enforced not only against the
original mortgagor, but also against the assignee of the
equity of redemption, notwithstanding that the mortgages
which it is sought to consolidate were not united in title in
the mortgagee ivith the mortgage which it is sought to redeem
until after the assignment of the equity of redemption.



Where a Charge is paid off by one other than the Mortgagor, it
is a question of Intention of the Payer, express or implied,
whether he meant to keep it alive. Where the Payer would
be prejudiced by the Merger the Court will presume that it
was intended to keep the Charge alive.

ADAMS v. ANGELL. [1877]
(46 L. J. Ch. 352 ; 5 Oh. I>. <i;)i ; 36 L. T. 334.)

The plaintiff was the first mortgagee of certain property
belonging to the defendant, of which J. E. Newsome was a



MORTGAGES. 209

subsequent incumbrancer. The plaintiff obtained judgment in
a foreclosure action against Angell and Newsome.

1,380/. was due to the plaintiff on the security of the mort-
gage, and on the bankruptcy of Angell the plaintiff obtained
from the trustee in bankruptcy an assignment of the whole
property, including the equity of redemption, subject to the
claim of Newsome, in consideration of the full release of the
debt and the payment by the plaintiff of the sum of 20/. to the
trustee in bankruptcy. The deed did not, however, in terms
keep alive the first mortgage as a protection against the second
mortgagee.

The value of the property did not exceed the 1,380/. due to
the plaintiff.

Newsome now contended that, the plaintiff's claim as mort-
gagee being satisfied by his having purchased the equity of
redemption, nothing was due to him, but that there was owing
to Newsome, as first incumbrancer, what, upon taking the
account, should be found to be due to him.

Held, that the intention being apparent upon the deeds
not to let in the second mortgagee as first mortgagee, such
second mortgagee could only foreclose on terms of paging off
the amount secured by the first mortgage.

The question whether a charge which is paid off is kept
alive is one of the intention of the payer, and where he would
be prejudiced by the merger the Court will presume that it
ivas intended to keep the charge alive.

Note. — An owner who " has paid off a prior incumbrance can
never set it up against his own mortgage," per Chitty, J., Phitt v.
Mendel, 27 Ch. D. 251.



210 REAL PROPERTY AND CONVEYANCING.

CONTRACTS FOR THE SALE OF LAND.



Where, by reason of a defect in Title, the Vendor of Real Estate
is unable to convey the Property, the would-be Purchaser, in
the absence of Fraud, is not entitled to Damages beyond his
Deposit with Interest and Costs.

BAIN v. FOTHERGILL. [1874]
(43 L. J. Ex. 243 ; L. R. 7 H. L. 158 ; 31 L. T. 387 ; 23 W. R, 261.)

This action was brought by the plaintiffs to recover damages
for the breach of an agreement whereby the defendants agreed
to sell to the plaintiffs their interest in a mining royalty, called
Miss Watters' Royalty, and which they afterwards failed to sell.

The sale fell through owing to the inability of the defendants
to convey a good title.

Held, the plaintiff's in the circumstances were not entitled
to recover damages beyond, their deposit with interest and
costs.

If a person contracts to sell real estate and is unable to
complete from want of title, whether he be aware of the
defect at the time of entering into the contract and does not
disclose it, or not, and even if he never had the title, nor
possessio?i, nor any right to possession, yet in the absence of
fraud the intending purchaser cannot, in an action for breach
of the contract, recover damages beyond his deposit with
interest and costs.



A Purchaser or Lessee having notice of a Deed of Title to the
Property has Constructive Notice of its Contents.

PATMAN v. HARLAXI). [1881]
(50 L. J. Ch. 642 ; 17 Ch. D. 353 ; 44 L. T. 728 ; 29 W. R. 707.)

The plaintiff sold to one Herve two plots of land subject to a
covenant that only dwelling-houses should be erected thereon.



CONTRACTS FOR THE SALE OF LAND. 211

Herve in turn conveyed the same land to Harland subject to
the same covenants and conditions. Harland erected a private
dwelling-house on the two plots and let the same to Louisa
Jane Bennett, giving her express permission to erect in the
garden belonging to the premises a studio, with necessary rooms
connected therewith, of corrugated iron on a brick foundation.
This lease also contained a covenant by the lessee not to carry on
any trade, business or employment on the premises without the
consent in writing of the lessor, but to use the premises as a
private dwelling-house, " provided that the user of the said
premises for the purposes of a school of instruction in art or
otherwise shall not be deemed a breach of covenant."

Neither Miss Bennett nor her solicitor, who negotiated the
lease, had notice of the restrictive covenants. Miss Bennett
having commenced to erect a corrugated iron structure to be
used as an art studio in accordance with the terms of the proviso
contained in the lease, the plaintiff moved for an injunction to
restrain the defendants (Harland and Bennett) from continuing
to erect, and from permitting to remain, the art studio in
question.

Held, per Jessel, M. R., the plaintiff was entitled to an
injunction against the defendant Bennett to restrain the
further erection of the building, but not to a mandator})
order for the removal of the studio, as it might be altered so
as to be a reasonable adjunct to a private dwelling-house.

A lessee has constructive notice of his lessors title, such
notice being of the usual title deducible on a purchase, and
he will be fixed with constructive notice of any restrictive
covenant affecting the property, notwithstanding that he may
have an express contract with the lessor allowing a breach of
the restrictive covenant, and notwithstanding that a repre-
sentation may have been made to him that the properly is
not subject to any such restrictive covenant.

p2



212 REAL PROPERTY AND CONVEYANCING.

The above rule is not altered by sect. 2, sub-sect. 1, of the
Vendor and Purchaser Act, 1874, which provides that a
lessee shall not be entitled to call for the title to the freehold,
the effect of the section being simply to put a lessee into the
same position as if he had before the Act stipulated not to
inquire into the lessoi^s title.



EQUITABLE RIGHTS. 213



EQUITY.



EQUITABLE RIGHTS.



Equitable Relief will be granted though Property out of Jurisdic-
tion, for Equity acts in personam.

PENN v. BALTIMOEE. [1750]
(1 Ves. sen. 443.)

Disputes had arisen as to the boundaries of two American
provinces — Penn and Baltimore. An agreement was come to
in the matter which was contained in articles entered into
between the plaintiff and the defendant. The plaintiff sought
specific performance of this agreement. The defendant took
the objection that the Court had no jurisdiction to try the
matter.

Held, the Court had jurisdiction, and decreed specific
performance.

Although the Court has no original jurisdiction on the
direct question of the original right of the boundaries, that
did not matter, for the proceedings were based on articles
executed in England under seal for mutual consideration,
which gives jurisdiction to the King's Courts, both of law
and in equity, whatever be the subject-matter.

Although in the present case, the land being out of juris-
diction, the Court could not enforce their own decree in rem,
that was not a reason against making a decree in this case,
for the strict primary decree in this Court as a Court of
equity was in personam, and as the parties were in
England the decree of the Court could be enforced by process
of contempt in personam and sequestration.



214 EQUITY.

Where the Equities are equal the Law prevails. Notice, actual
or constructive, of the previous Equity prevents the Rule
applying.

THOENDIKE v. HUNT. [1859]

(28 L. J. (Jh. 417 ; 3 De G. & J. 563 ; 5 Jur. (N. S.) 879 ;
7 W. E. 246.)

Hunt was one of the trustees of two wills, i.e., Firstly, of
that of Mrs. Linzee, who by her will gave certain stock to her
three daughters for life with remainder to their children.

Secondly, of that of George Vinnecombe, who by his will
gave 8,000/. Consols to Mrs. Thorndike for her life, with
remainder to her children.

Hunt ultimately became possessed of both these funds, and
sold most of the former and all the latter, and applied the
proceeds to his own use.

Mrs. Thorndike was the first to take proceedings, and she
filed a bill against Hunt, and an order was made that he should
transfer into Court the amount suld out, and he accordingly
transferred into Court 3,253/. Consols (which, in fact, was part
of the trust estate of Mrs. Linzee), and the dividends of these
Consols were paid to Mrs. Thorndike for many years.

Several years later the parties interested under Mrs. Linzee's
will discovered what had happened, and presented a petition
praying that the 3,253/. and dividends might be handed over
to them.

Held, that Mrs. Thorndike was a purchaser for valuable
consideration without notice of the fraud, and, having the
legal title, was entitled to hold the fund against the parties
interested under Mrs. Linzee's will.



EQUITABLE RIGHTS. 215

A prior Legal Estate will be postponed to a subsequent Equitable
Estate where the Owner of the Legal Estate has connived at
the Fraud which led to the creation of a subsequent Equitable
Estate without Notice of the prior Legal Estate, or where the
Owner of the Legal Estate has constituted the Mortgagor his
Agent with authority to raise Money, and the Estate thus
created has by the Fraud of the Agent been represented as
being the first Estate. Mere carelessness on the part of the
Legal Owner will not, however, postpone the prior Legal
Estate to the subsequent Equitable Estate.

THE NORTHERN COUNTIES OF ENGLAND FIRE
INSURANCE CO. v. WHIPP. [1884]

(53 L.J. Ch. 629; 26 Ch.D.482; 51 L. T. 806; 32 W. R. 626— C. A.)

Crabtree, who was the general manager of the plaintiff com-
pany, executed a legal mortgage of certain freehold property to
the company to secure a sum of money advanced to him by the
company, and delivered up the title deeds to the company. The
deeds were kept in a safe, of which Crabtree had a key.
Crabtree subsequently mortgaged the same property to Whipp,
and, having abstracted the title deeds from the safe, handed
them over to Whipp, who had no knowledge of the plaintiffs'
charge.

Held, although there was great carelessness in the manner
in which the company kept their securities, there was no
evidence of fraud on their part, and they were entitled to
priority over Whipp, for the Court will not postpone the
prior legal estate to the subsequent equitable estate on the
ground of mere carelessness or want of prudence on the part
of the legal owner.

The Court will, however, postpone the prior legal estate
to a subsequent equitable estate (a) where the owner of the
legal estate has assisted in or connived at the fraud which
has led to the creation of a subsequent equitable estate.



216 EQUITY.

without notice of the prior legal estate, of which assistance
or connivance the omission to use ordinary care in inquiring
after or keeping title deeds may be, and in some cases has
been, held to be sufficient evidence, where such conduct cannot
be otherwise explained, or (b) where the owner of the legal
estate has constituted the mortgagor his agent with authority
to raise money, and the estate thus created has, by the fraud
or misconduct of the agent, been represented as being the
first estate.



Failure to require production of Title Deeds will sometimes affect
a Purchaser of the Legal Estate with Constructive Notice of
an Equitable Charge if one exists.

MAXFIELD v. BUETON. [1873]
(43 L. J. Oh. 46 ; L. E. 17 Eq. 15 ; 29 L. T. 571 ; 22 W. E. 148.)

Mr. Ladkin deposited the title deeds of an estate with his
bankers, and signed a memorandum charging the estate with
payment of a sum due from him to the bankers. He after-
wards married, and in consideration of such marriage he settled
the estate by articles, and shortly after marriage executed a
settlement conveying the legal estate to a trustee. During the
negotiations he told the lady's solicitor that he was entitled to
the estate free from encumbrances, and that the deeds were at
his bank for safe custody.

Held, that the solicitor ought to have inquired of the
bankers whether they had a charge upon the deeds, and that
as he omitted to do so, all persons claiming under the settle-
ment were fixed with constructive notice of the charge.



EQUITABLE RIGHTS. 217



Online LibraryPhilip Bertie PetridesStudent's cases : illustrative of all branches of the law → online text (page 17 of 29)