Wyse v Myers

• Jurisdiction: Ireland
• Judgment Date: 05 December 1854
• Date: 05 December 1854
• Court: Queen's Bench Division (Ireland)

Queen's Bench

WYSE

and

MYERS.

Hughes v. BucknellENR 8 C. & P. 566.

Downe v. Thompson 9 Q. B. 1037.

Turner v. Cameron's Steam Co.ENR 5 Ex. 932.

Higginbotham v. Barton 11 A. & E. 307.

Buckworth v. Simpson 5 Tyr. 344.

Cobb v. carpenter 2 Camp; 13, note.

Lumley v. HodgsonENR 16 East, 99.

Gibson v. Kirk 1 Q. B. 850.

Mayor of Newport v. SaundersENR 3 B. & Ad. 411.

Waddilove v. BarnettENR 2 Bing. N. C. 538.

Pope v. BiggsENR 9 B. & C. 45.

Hull v. VaughanENR 6 Price, 157.

Keech v. Hall 1 Dough. 21.

Blakeney v. Higgins 4 Ir. Jur. 17.

Litchfield v. ReadyENR 5 Exch. 939.

Pope v. BiggsENR 9 B. & C. 245.

Rogers v. HumphreysENR 4 Ad. & El 299.

Evans v. ElliottENR 9 Ad. & El. 342.

Brown v. StoreyUNK 1 M. & G. 117.

Wilton v. Dunn 17 Q. B. 294.

Watts v. OgnellENR Cro. Jac. 192.

Brich v. WrightENR 1 T. R. 378.

Brich v. WrightENR 1 T. R. 387.

Lessee Blackeney v. Higgins 4 Ir. Jur. 17.

Lessee Hobson v. Donnelan 4 Ir. Jur. 19, n.

Right v. BeardENR 13 East, 210.

Doe v. Jackson 4 Bar. & Cres. 448.

Doe v. BartonENR 11 Ad. & El. 315.

Church v. Impperial Gas Light CompanyENR 6 Ad. & El. 854.

Gibson v. Kirk 1 Q. B. 856-7.

Hull v. VaughanENR 6 Price, 169.

Pope v. Biggs 9 B. & Cres. 21.

Waddilove v. Barnett 2 Scott. 766.

Doe v. BartonENR 11 Ad. & E1. 314.

Partington v. WoodcockENR 6 Ad. & El. 690.

Evans v. ElliotENR 9 Ad. & El. 342.

Watts v. OgnellENR 1 T. R. 385.

COMMON LAW REPORTS. 101 M. T. 1854. Queen's Bench WYSE v. MYERS.* (Queen's Bench.) Jan. 21, May 29, Dec. 5. DEBT, for use and occupation-tried before LEFROY, C. J., at the Sittings after last Michaelmas Term. The defendant pleaded nil debet. It appeared from the evidence that the lands in question were the estate in fee of the Earl of Kingston. In 1752, those lands were mortgaged in fee, and this mortgage was then, and had been for some time previous, vested in the plaintiff ; but there was no evidence that the mortgagee had ever been in possession. On the 27th of August 1829, the then Earl of Kingston, who then repreÂÂsented the mortgagor, executed a lease, under seal, of the lands to the defendant at a certain rent, which lease was still subsisting. In the year 1840, a suit was instituted in the Court of Chancery against the Earl of Kingston, and a receiver was appointed in that suit, not at the instance of the mortgagee, and the defendant paid the rent reserved by the lease to the receiver, as did also the other tenants, and the mortgagee was from time to time paid his interest by order of the Court, out of the rents so received. There was no evidence that prior to the commencement of the action the defendÂÂant knew of the existence of the mortgage of 1752. On this state of facts, the defendant contended that this action was not maintainable, there being no privity shown to exist between him and the plaintiff; and that the fact of the plaintiff being the mortgagee prior to the lease did not establish such a relation between them as to enable the plaintiff at once to bring his action for use and occupation. The CHIEF JUSTICE, being of a contrary opinion, directed a verdict for the plaintiff. A conditional order having been obtained to set aside this verdict, on the ground of mis-direction, the case was twice argued by * PERRIN, J., absente. 102 COMMON LAW REPORTS. M. T. 1854. J. D. Fitzgerald and Lefroy, for the plaintiff, and D. Lynch Queen's Bench and Mackey, for the defendant. WYSE V. MYERS. The following cases were relied on : Doe d. Hughes v. BuckÂÂnell (a) ; Doe d. Downe v. Thompson (b) ; Turner v. Cameron's Steam Co. (c) ; Doe d. Higginbotham v. Barton (d) ; Buckworth v. Simpson (e); Cobb v. Carpenter ( f) ; Lumley v. Hodgson (g); Gibson v. Kirk (h); Mayor of Newport v. Saunders (I); Waddilove v. Barnett (k) ; Pope v. Biggs (1); Hull v. Vaughan (m). Cur. ad. vult. MooRE, J., having stated the facts, proceeded to say :- The application now before the Court is to set aside the verdict found for the plaintiff. The declaration in debt, for use and occupaÂÂtion, always states that the defendant occupied the lands at his own request, and by the sufferance and permission of the plaintiff. It appears to me that these allegations are matters of substance and not of form; and that in order to sustain the action, there must be ,evidence to go to the jury of a permission to occupy on the one hand, and a request, either express or implied, on the other : and the question in the present case resolves itself into this-whether the mere fact of the plaintiff being a mortgagee prior to the lease under which the defendant holds, and as such having a prior legal title, is sufficient to establish these allegations, and to create a privity between him and the defendant holding by lease under the mortgagor ? In considering this question, it is necessary to inquire into the (a) 8 C. & P. 566. (c) 5 Ex. 932. (e) 5 Tyr. 344. (g) 16 East, 99. (1) 3 B. & Ad. 411. (1) 9 B. & C. 45. (b) 9 Q. B. 1037. (d) 11 A. & B. 307. ( f) 2 Camp. 13, note. (h) 1 Q. B. 850. (k) 2 Bing. N. C. 538. (m) 6 Price, 157. COMMON LAW REPORTS. 103 relation that exists between the mortgagor and mortgagee, and into M. T. 1854. ueen' s Bench the legal rights of the latter over the tenants of the former. If the Q lease be under seal, and made before the mortgage, the rights of WYSE v. the mortgagee are clear. The mortgagee becomes by the mortgage MYERS. the assignee of the reversion, and as such is, under the-statute of 32 Henry 8, clothed with all the rights and remedies incident to that reversion. The necessity of an attornment is taken away by another statute ; and the mortgagee is entitled at once to sue for any rent reserved by the lease that may be due when the action is commenced. I only refer to the case of a lease made before the mortgage, to show that the mortgagee could not at Common Law have sued upon the lease, and was only enabled to do so by the operation of the statutes to which I have referred. Neither of the statutes have any operation in the case where, as in the present one, the lease was made after the mortgage ; and there is no possible way by which the mortgagee could connect himself with that lease, or be entitled to sue upon it for the rent reserved. It is perfectly clear that the mortgagor can sue on the lease made after the mortgage, for the rent reserved by it; and even if the setting was not by indenture, but by parol, the mortgagor could equally sue for his rent, because the tenant is bound by his contract with the mortgagor, from whom he got the possession, until some adequate step is taken by the mortgagee to dissolve the contract. It appears to me to be contrary to principle to hold that the tenant is at one and the same time liable to the mortgagor on his express contract, and also liable to be sued on an implied contract by the mortgagee, of whose rights or of whose existence he was never apprised, except by the bringing of the action. What then are the legal rights of a mortgagee ? It is quite setÂÂtled by the case of Keeck v. Hall (a), that a mortgagee may, without notice, or even demand of possession, bring an ejectment on the title against the mortgagor, or any tenant of his, who became so subsequent to the mortgage : and it was decided in the case of Blakeney v. Higgins (b), that the payment of interest to the mort (a) 1 Doug. 21. (b) 4 Ir. Jur. 17. 104 COMMON LAW REPORTS. gagee by a receiver appointed in a cause, where the mortgagee Was a party, over the mortgaged premises, was not a recognition of the tenancies created by the mortgagor, and was no bar to an ejectment by the mortgagee. It was argued on the part of the plaintiff, that as the mortgagee could in the present case have brought an ejectment on the title, the defendant was a trespasser, and that the plaintiff might waive the trespass, and recover in this action for use and occupation. That arÂÂgument is completely met by the case of Turner v. Cameron's Steam Co. (a). That was an action of debt, for use and occupation, against a tenant of the mortgagor, subsequent to the mortgage-plea nil de-bet. On the trial, the Judge told the jury that the mortgagee might waive the trespass, and maintain an action for the use and occuÂÂpation; and on this direction the jury found for the plaintiff. The Court above set aside the verdict, deciding that a mortgagee out of possession could not maintain trespass, and therefore had no trespass to waive, and the verdict was set aside. The same point was decided in the case of Litchfield v. Ready (b). That was an action of trespass for mesne rates up to the 15th of November 1849. The plaintiff was a mortgagee-the defendant was a tenant to the mortgagor, under a letting subsequent to the mortgage. In September 1849, the plaintiff gave notice to the defendant of the mortgage, and required payment of the rent then due. In October 1849, the plaintiff brought his ejectment, and obtained possession on the 15th of November 1849, and then brought his action of trespass for the mesne rates previous to and up to that day ; and the Court decided that he was not entitled to recover, because he had not, at any time before that 15th of November 1849, any possession to maintain an action of trespass. In the case now before the Court, the plaintiff never had possession, was unable to maintain an action of trespass, and had, therefore, no trespass to waive. It has been considered by some eminent Judges, that a mortÂÂgagee could, by the service of a notice on the tenant of a mortgagor, acquire a right to the rents then due. This was decided in the case (a) 5 Exch. 932. (b) 5 Exch. 939. COMMON LAW REPORTS. 105 of Pope v. Biggs (a). That was an action of debt, for use and occupation, brought by the assignees of the mortgagor, a bankrupt, to recover rent from the defendant, who had become tenant after the mortgage. The plea was nil debet. On the trial the mortgage was proved, and also a notice served by the mortgagee on the defendant, requiring him to pay him all rent...