C. A. 1910 PERRY v. NATIONAL BANK OF consequences to which he would have been exposed if there had been no such arrangement. The two cases of Cowper v. Smith (1) and Union Bank of Manchester v. Beech (2) seem to me to be perfectly consistent with Commercial Bank of Tasmania v. Jones. (3) They were dealing with a different state of facts PROVINCIAL and are perfectly good law. The state of facts here is similar ENGLAND. to the facts existing in the two cases in the Court of Exchequer. I think there is here reserved a right against the property of the mortgagor surety for such balance of the debt as has not been paid by the debtor by accord and satisfaction. The surety having elected to redeem, an order for redemption was made on the above footing; the costs of the action to be added to the defendants' security; no costs of the appeal. Solicitors: Francis Miller & Steele; Wilde, Moore, Wigston & Co. (1) 4 M. & W. 519. (2) 3 H. & C. 672. (3) [1893] A. C. 313. H. B. H. Buckley L.J. C. A. 1909 JOYCE J. COX v. HARPER. [1909 C. 725.] Nov. 25, 26. Landlord and Tenant-Execution-Judgment Creditor—Arrears of Rent“Landlord ”—“ Rent"-Landlord and Tenant Act, 1709 (8 Anne c. 18), 1910 C. A. Feb. 4. 8. 1. In 1896 a brewery company who were lessees of a public-house granted an underlease of the same to I., who mortgaged his interest to the plaintiff and gave a second mortgage to the company. In 1901 I. became bankrupt, and the defendant was appointed his trustee in bankruptcy. In 1902 the company went into possession as second mortgagees and let the public-house to a tenant who agreed to pay a rent of 150. a year for the premises and an additional yearly sum of 12507. in lieu of premium for goodwill. On March 8, 1909, the company obtained judgment against their tenant for 9601. and gave him a month's notice to determine his tenancy. On March 9, 1909, before the tenancy expired, the plaintiff commenced a foreclosure action against the defendant and the company, and on March 12 a receiver and manager was appointed, to whom the company was directed to give up possession. Later on the same day the sheriff levied execution in respect of the company's judgment debt : Held by Joyce J., that the receiver was "landlord" of the premises within the meaning of s. 1 of the Landlord and Tenant Act, 1709, and as such was entitled to be paid by the execution creditor one year's arrears of the rent; and held by Joyce J. and the Court of Appeal, that the rent comprised the 1507. only, the 12507. not being rent within the meaning of the statute. ADJOURNED SUMMONS. By an indenture of underlease dated September 24, 1896, Barclay, Perkins & Co., Limited, demised a public-house called the Ranelagh Arms, Roman Road, Bow, to L. W. S. Innocent for a term of forty years from September 29, 1896, at a rent of 3501. reducible to 150l. upon the lessee trading with the com. pany for all malt liquors, and the lease contained the usual covenants of a "tied" lease. The lease was expressed to be granted in consideration of a premium of 41,0001. By an indenture also dated September 24, 1896, Innocent mortgaged his term to the plaintiff Cox to secure the sum of 20,000l. and interest. The mortgage provided that the power of leasing given by the Conveyancing Act, 1881, should not be exercisable by the mortgagor or any person deriving title under him. By another indenture executed on the same day Innocent mortgaged the term by way of second mortgage to the company to secure the sum of 18,000l. and interest. On August 26, 1901, Innocent was adjudicated bankrupt, and the defendant Harper was appointed trustee in his bankruptcy. He subsequently sold the tenant's fixtures and stock in trade to the company, disclaimed all interest in the lease, and was dismissed from the action. By arrangement with Cox the company then entered into possession as second mortgagees and on May 29, 1902, let the Ranelagh Arms together with the fixtures thereto belonging to L. W. Innocent (the son of the bankrupt) upon a yearly tenancy at "the rent of 150l. a year for the said premises, and the additional yearly sum of 1250l. in lieu of premium for the goodwill of the business and for the use of the fixtures and fittings upon the premises, such several rents or yearly sums to be paid weekly." By the agreement a power of re-entry was reserved to the company "in case the rents hereby reserved or any part thereof shall at any time hereafter be in arrear and unpaid for the space of fourteen days." By a subsequent memorandum the tenancy was to be determinable upon one month's notice in writing on either side. On February 19, 1909, the company gave the tenant notice to determine his tenancy on March 19. On March 8, 1909, the company obtained judgment in the King's Bench Division against the tenant for a sum of 9601. owing by him to them. On March 9, 1909, foreclosure proceedings were commenced by Cox as first mortgagee against Harper and the company, and on March 12, 1909, a receiver and manager of the Ranelagh Arms was appointed. The order appointing the receiver did. not direct the tenant to attorn to the receiver. Later on the same day, but before the order appointing the receiver was drawn up, the company levied execution upon the premises in respect of their judgment. On April 8 the sheriff sold the goods and chattels seized in the execution to the receiver for 7001. On April 15 the sheriff issued an interpleader summons in the C. A. 1910 Cox v. HARPER, action in the King's Bench Division, and on May 19 an order on the summons was made by consent directing that the sheriff's costs should be taxed and paid and that the balance of the 7001. should be paid to the receiver to abide the determination of the questions raised by the present summons. This was a summons taken out by Barclay, Perkins & Co., Limited, in the foreclosure proceedings for the determination, inter alia, of the following question :-Whether at the date of the execution the receiver was entitled to be paid any and what arrears of rent as the landlord of the premises within the intent of the Landlord and Tenant Act, 1709, s. 1. (1) The summons came on for hearing before Joyce J. on November 25, 1909. Hughes, K.C., and Sebastian, for the applicants. The first question is whether the plaintiff Cox or the receiver is the "landlord" of the premises within the meaning of the statute. It will be contended that the first mortgagee by adopting the lease created by the second mortgagees became the landlord. There is a further question as to the amount which is recoverable as rent by the landlord, whoever may be held to be in that position. Before March 12 the applicants were certainly in the position of landlords of the premises, and the execution was levied before the receiver was in possession. Where the execution creditor is himself the landlord the Act does not apply. Unless (1) Sect. 1 of the Landlord and Tenant Act, 1709, provides as follows: "No goods or chattels whatsoever, lying or being in or upon any messuage, lands or tenements which are or shall be leased for life or lives, term of years, at will or otherwise, shall be liable to be taken by virtue of any execution on any pretence whatsoever, unless the party at whose suit the said execution is sued out, shall, before the removal of such goods from off the said premises, by virtue of such execution or extent, pay to the landlord of the said premises or his bailiff, all such sum or sums of money as are or shall be due for rent for the said premises at the time of the taking such goods or chattels by virtue of such execution; provided the said arrears of rent do not amount to more than one year's rent; and in case the said arrears shall exceed one year's rent, then the said party, at whose suit such execution is sued out, paying the said landlord or his bailiff, one year's rent, may proceed to execute his judgment, as he might have done before the making of this Act." the plaintiff can shew that at some time before the taking of the goods in execution he was in possession he could not be the landlord within the Act. He never was in possession except by the receiver who was appointed by him in order to avoid the responsibility of going into possession himself. Then as to the amount of the rent, that is limited to the rent which would be recoverable by distress. The only rent for the premises which could be distrained for was 150l. a year. The 1250l. is not rent at all, but an additional yearly payment in lieu of premium: Hancock v. Austin (1); Selby v. Greaves. (2) Rent is defined in Co. Litt. 47a. The plaintiff cannot be in a better position than the company, and the company, being themselves the execution creditors, could not take advantage of the statute: Taylor v. Lanyon. (3) The receiver is not "landlord" unless the tenant has attorned: Towerson v. Jackson (4); Evans v. Mathias. (5) Norton, K.C., and Timins, for the plaintiff. The plaintiff is entitled to the whole of the money in the hands of the receiver. Suppose it had been an outsider who had put in the execution, then Barclay, Perkins & Co. as second mortgagees would have come in with the plaintiff and claimed the rent under the statute. The receiver being the "bailiff" of the "landlords," i.e., the mortgagees as a whole, is entitled to the rent under the statute as against the execution creditor. It is immaterial who is really the "landlord." The statute provides that the execution creditor before removal of the goods seized shall "pay to the landlord or his bailiff" the arrears of rent. The receiver on his appointment became the "bailiff" of the landlords whoever they were. In Colyer v. Speer (6) the mortgagee of a satisfied term was held to be the landlord. Anybody who can bring ejectment is the landlord within the statute: Foà on Landlord and Tenant, 3rd ed. p. 161. On March 11 Barclay, Perkins & Co. were the landlords. Upon the appointment of the receiver they were ordered to give (1) (1863) 14 C. B. (N.S.) 634. (2) (1868) L. R. 3 C. P. 594. (3) (1830) 6 Bing. 536; 4 Moo. & P. 316. (4) [1891] 2 Q. B. 484. (5) (1857) 7 E. & B. 590. (6) (1820) 2 Brod. & B. 67; 4 Moo. C. P. 473. C. A. 1910 Cox C. HARPER. |