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1866.

MILES

V.

MILES.

is given is the messuage itself, and that the words "partly freehold and partly leasehold" are merely descriptive of the parcels; it means, I give the whole of the messuage No. 3, Cannon Street. The words, "so long as the term and interest in the said leasehold premises should exist," means any interest in that part which is described as leasehold. He has since increased this from a term to a perpetuity, and I think the intention still subsists.

The opposite conclusion would tend to the incongruity pointed out by counsel, viz. that having, in his will, expressed his wish that this particular messuage should not be sold, he directs that his residuary real and personal estate shall, with all convenient speed after his decease, be sold, which would include the reversion of this messuage unless the whole passed by the specific devise of it. This, I think, shews that the intention of the testator was, that the whole messuage should so pass.

It is scarcely possible that the testator should have intended to devise the freehold portion of the premises, so as to go in a particular way to persons in succession, and the remainder of the messuage, being leasehold, should go in a different way, by being sold and divided between the children as tenants in common.

I treat the word "messuage" as I did the word "estate" in the case of In re the Midland Railway Company v. The Oxley and Ilkley Branch (a), where an addition was made to the estate after the date of the will, and I held that the whole passed. Here, I think the messuage is described, and an addition has been made to it. Suppose he had renewed the lease, or had obtained an extension of the term for 100 or 1,000 years, still it would have passed; here the question only arises because the term is merged.

But

(a) 34 Beav, 525.

But I think that the will shews that the gift is to operate, and that not only no contrary intention appears by the will, but that an intention in favor of its passing is to be found in the will. The facts I have mentioned distinguish this case from Emuss v. Smith (a), and reconcile it with the other cases cited.

I will make a declaration accordingly.

(a) 2 De G. & Sm. 722.

1866.

MILES

v.

MILES.

MOSS v. BARTON.

A.

Jan. 12.

BY a memorandum of agreement, dated in November, 4. agreed to

1857, Alderman Wire agreed to let some premises

let some pre

mises to B. for

and, at the ex

him a lease for

in Moorgate Street, London, to the Plaintiff Mr. Moss, three years, at a rent of 1117., for a term of three years, to be com- piration of that puted from Christmas-day, 1857. Alderman Wire also term, to grant agreed" at the request of" the Plaintiff "to grant him an extended term. A. died, a lease of the said premises for five, seven, fourteen or and, three twenty-one years, from the expiration of the aforesaid years having three years' occupancy, at the same rent." The Plain- continued to expired, B. tiff, on his part, agreed, during his occupancy, to keep the premises in good, substantial and ornamental repair.

The Plaintiff was in possession at the date of the agreement, and he continued in the occupation and paid

hold on under

A.'s executors

four years for without asking for a lease.

He then reHeld, that B.'s quired a lease.

determined, The and that he

his rent to Alderman Wire until the Alderman's death, option had not which occurred on the 9th of November, 1860. three years expired on the 24th of December, 1860, and

the Plaintiff still continued in occupation as before, and paid his rent to the Defendants, the executors of Alderman Wire. The Defendants appeared to have been, for some time, ignorant of the Plaintiff's right of option to

was entitled to

the extension

of the term.

take

1866.

Moss

v.

BARTON.

take an extended term, which he, for some time, never attempted to exercise, and they seemed to have treated him as a tenant from year to year. The Plaintiff entered into a negotiation with the Defendants for the purchase of the premises, and, in February, 1862, in a letter to them, he stated that he had the option of quitting the premises at the end of the year, or of taking a lease for a lengthened period, and he proposed taking a lease for seven, fourteen or twenty-one years at his option, " if the rent were very considerably reduced." Nothing came of this. It appeared also, that, in September, 1863, the Plaintiff had called on the Defendants to pay for the repairs of the front wall, which was falling, and that they had consequently paid the builder 167. 8s. for them, and that through the hands of the Plaintiff.

The Defendants having, in September, 1864, given the Plaintiff notice to quit, he in October, 1864, claimed a lease for the extended term. This the Defendants refused to grant, and the Plaintiff instituted this suit, in February, 1865, for the specific performance of the agreement of November, 1857.

Mr. Baggallay and Mr. Rigby for the Plaintiff. The agreement of November, 1857, is not a lease at law, but an agreement for occupancy for three years, with an option of extending it to seven, fourteen or twenty-one years, and such an agreement this Court will enforce; Parker v. Taswell (a). The Plaintiff's right to have a lease continued until his tenancy had been put an end to; Hersey v. Giblett (b). In that case, the yearly tenancy commenced in 1845, and the option was not exercised until 1852, but it was held valid. The Plaintiff's letter of February, 1862, was no waiver of his right, it stated

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stated that he was entitled either to a lease or to give up possession, and the Plaintiff, before he exercised his option, asked the executors if they would grant him a lease at a reduced rent; this was no waiver or abandonment. Neither did the claim for the repairs determine the right of option, it was made under a mistake of law, for whether holding over or not, the tenant was bound to do the repairs; Richardson v. Gifford (a); Digby v. Atkinson (b). There has been no abandonment or waiver of the right; Clarke v. Moore (c); Price v. Dyer (d); and the tenant, who has laid out money on the faith of his agreement, is entitled to have it performed; Dann v. Spurrier (e).

Mr. Southgate and Mr. Surrage for the Defendants. The Plaintiff has waived and abandoned any right he ever had. An option like the present ought to be exercised within a reasonable time, especially after the death of the lessor. Here the Plaintiff has thought fit to remain in possession as tenant from year to year, instead of binding himself for a term. His conduct has been quite inconsistent with having a continued right to take a lease. He proposed to take a different lease at a very considerable reduction of rent, and he insisted that the Defendants were bound to repair, though, by the agreement, he had contracted to do so, and he forced the Defendants to pay for them. All this is inconsistent with a continuing right to have a lease of a different description. This case differs from Hersey v. Giblett (f), for there, the Plaintiff, from the first, was a mere yearly tenant. and he was allowed to continue and his right therefore to an extended term continued. But here, the Plaintiff's tenancy was for three years certain, which expired nearly four

(a) 1 Adol. & Ellis, 52.
(b) 4 Camp. 275.
(c) 1 Jones & Lat. 723.

(d) 17 Ves. 356.
(e) 7 Ves. 231.
(f) 18 Beav. 174.

1866.

Moss

V.

BARTON.

1866.

Moss

v.

BARTON.

four years before he made his claim, and more than five
years
before the bill was filed.

The MASTER of the ROLLS.

I think the Plaintiff is entitled to a decree. In the first place, the document of 1857 is a clear agreement to grant a lease for five, seven, fourteen or twenty-one years, and the Plaintiff is entitled to call upon the Court for its specific performance, unless he has done something to deprive himself of that right. The only facts relied on by the Defendants are these: the Plaintiff had continued to occupy the premises to the death of Wire, which was a month prior to the expiration of the three years, and from that time he was entitled to call on the executors for the performance of their testator's agreement to grant him a lease. There was no time specified in the agreement within which he was to call for it, and both parties may have considered that he was afterwards holding over as tenant from year to year. But if the executors thought fit to allow him to hold the property from year to year, there was nothing to prevent him from insisting on the lease; his right to take a lease would exist at any time, unless he gave it up. They might have called on him either to go out or take a lease; but they did nothing of the sort. They say that they had no notice of the document; but the letter of February, 1862, gave them full notice of it. Why did they not then call on him to exercise his option? If they knew of its existence, they also knew that the right continued until positively waived; but they did nothing.

The case of Hersey v. Giblett (a) shews, that a person having such an option may exercise it at any time while he

(a) 18 Beav. 174.

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