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goods, chattels, and effects then were, or any breach as in the next preceding to remove the said goods, chattels and proviso mentioned, it should and might effects, and to sell the same whenever and be lawful for the mortgagee to enter wheresoever they should think proper, by and come into, and upon all and singuprivate contract or public auction,

lar the premises, and to take and receive 19. By indenture of the 22nd of April, the rents, issues and profits thereof, and 1867, made between Candler of the one to apply the same in payment of any part, and the defendant, Reed, of the other principal, interest, or other moneys, costs, part, Candler, pursuant to the license, de- charges or expenses which might be due mised by way of underlease, the premises and owing to the mortgagee under or by to the defendant, Reed, for the term of virtue of those presents. years mentioned in the license, by way of 20. On the 30th of April, 1867, Candler mortgage to secure the sum of 3001., the duly executed an assignment of all his whole of which is still unpaid. Provided estates and effects to James William Clethat if the mortgagor should, on or before ments Aylett, George Frank Keed, and the 22nd of July next following the date Thomas Carr Acland, absolutely, to be thereof, pay unto the mortgagee the said applied and administered for the benefit *sum of 3001., together with interest, then of the creditors of Candler in like manner the mortgagee would at the request and as if he had been adjudicated a bankrupt, costs of the mortgagor, surrender, yield up, and the same deed was registered under re-assign, and re-convey to him, or as he or the 194th section of the Bankruptcy Act, they should appoint, all and singular the 1861. premises thereby demised and assigned ; 21. The defendant, Portbury, was the and provided that if the principal sum occupier of a portion of the demised preand interest should be paid by certain in- mises, at the times of the service of the stalments on the days therein mentioned ; writs of ejectment hereinafter mentioned. and provided that the mortgagor should 22. On the 23rd of May, 1867, Edgley, not become bankrupt, or enter into any as acting under the bill of sale, sold by deed of trust, composition, or arrange- public auction in and upon the said prement, or otherwise for the benefit of his mises certain goods, chattels, and effects creditors, and should keep, observe, and in the bill of sale mentioned. Previously perform all and singular the covenants, to the sale, bills announcing the same were provisoes and conditions therein, and in posted on the premises. the two thereinbefore recited indentures of 23. The plaintiff did not give her conlease respectively contained (one of which sent to the said cr any sale by auction on was the indenture of the 23rd of March, the demised premises, nor did she know of 1860), on his part to be kept, observed, the sale until some time afterwards. and performed, then and in such events 24. It was also proved at the trial that the said sum of 3001., or the residue thereof, Candler, who had previously remained in which might for the time being be due possession of the premises, had left the with all interest should not be called in premises before the said auction, and was together, but should be taken and accepted at that time at Bath. by the mortgagee by instalments at the 25. The defendant, Reed, did not assent times and in manner hereiubefore ex- to the sale, and was not in possession of pressed. And provided that until default

the premises. in payment, as aforesaid, and no breach

26. In the year 1867 the plaintiff of the covenants, clauses and conditions brought two actions of ejectment against therein contained, should have been made the now defendants for the recovery of by the mortgagor, the mortgagor should the possession of the said premises by have full and free enjoyment of the said reason of a forfeiture of the lease for the premises without any molestation, inter- said sale by auction. In both those actions ruption or eviction by the mortgagee, or the plaintiff was nonsuited (2). any person claiming under him. And provided also that on and after default

(2) 39 Law J. Rep. (p.s.) Q.B. 136; s. c. Law should be made in such payment or Rep. 5 Q.B. 288.

27. The jury found that the sale by auction took place on the premises, with the permission of Candler. The learned Judge then directed a verdict to be entered for the plaintiff, reserving leave to the defendant to move to enter a verdict for him on the point of law mentioned in the first and second paragraphs of this case.

The questions for the opinion of the Court of appeal were—

First. Whether the facts disclosed a ground of forfeiture by reason of the sale by auction, and, if so, whether such forfeiture was not waived.

Second. Whether a rule upon those points reserved at the trial, on which it was refused, ought to have been refused, as above mentioned; and also whether the said rule of the 13th of June, 1870, ought to have been discharged or ought to have been made absolute on the grounds therein stated.

The Court of Appeal to make such rule or order upon this appeal as it should think fit, and to proceed thereon pursuant to the provisions of the Common Law Procedure Act, 1854.

Baylis (Prentice with him), for the appellant.-The jury have found that the sale by auction took place with the permission of Candler. But the bill of sale contains no license for an auction on the premises. The final words of the proviso for sale, "by public auction," would apply only when the goods were previously removed. And if there were such a license it was impliedly revoked by the subsequent indenture of mortgage. Having, by that instrument, parted with his estate, Candler was in the position of a stranger and could not "permit" a sale on the premises when he had neither the power to allow nor to prevent it. The permission, if any, in the bill of sale was a mere personal license, which was, on the execution of the mortgage deed, revoked by operation of law.

[BRETT, J.-How could the subsequent acts of Candler injuriously affect the permission given to the grantees of the bill of sale?

As Reed, the mortgagee, could enter and prevent a sale by them, Candler was not able to permit it.

[KEATING, J.-But the mortgagor, for

aught that appears from the case, remained in possession, although he was away from the premises when the auction was held.]

In Hobson v. Middleton (3) the defendant had covenanted that he had not done, nor permitted, nor suffered to be done, any act whereby an estate was encumbered; and it was held that his assenting to an act which he could not prevent was not a breach of the covenant. Bayley, J., said that the words, "permitting and suffering,' do not bear the same meaning as knowing of and being privy to;' the meaning of them is, that the defendant should not concur in any act over which he had control," p. 303. Moreover Candler had assigned all his estate to trustees.

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served at the trial, the defendant raised two the latter part of the proviso, and not to questions. First, whether forfeiture could the first branch of the license as to the be incurred by reason of the grant of a disposition of the goods on the premises license to sell certain goods by auction on in question; but when we read the the premises demised, and upon that point whole sentence the words become insenthe Queen's Bench refused a rule nisi. sible unless we treat it as a grant or Secondly, the question upon which a rule license, first to sell and dispose of the was granted and subsequently discharged, goods on the premises, or to remove them viz., whether the plaintiff was disentitled and sell them wherever the grantee should to recover by reason of his having given think fit, and then follow the words, particulars in an action of ejectment which necessarily must apply both to the wherein (besides the forfeiture alleged to original license and to the alternative, have been incurred by the permission given “ by private contract or public auction." for a sale by auction on the premises), he This, therefore, was clearly a license to insisted on a forfeiture for non-payment sell goods and chattels on the premises by of rent.

public auction, a grant to do that which As to the first question, we must refer the covenantor had bound himself by his to the terms of the covenant relied upon, covenant not to do, and was, in conseby which the said Robert William Candler quence, a breach of covenant. At all for himself, his heirs, executors, adminis- events it would be a breach of the covetrators, and assigns, covenants with the nant, followed as it was by a sale of goods plaintiff and her assigns, " that the said and chattels on the demised premises. Robert William Candler and his assigns On the 22nd of May in the same year, will not permit any sale by public auction default having been made, Edgeley, acting to take place on the said premises without under the license in the bill of sale, sold the consent in writing of the said Eliza by public auction on the premises. Here Toleman, her executors, administrators, there is a complete case of forfeiture, and, and assigns."

if the matter rested there, no doubt the Now, no consent in writing has been plaintiff would be entitled to the verdict. given by the plaintiff, and therefore we But then the defendant objects that the have to consider whether that covenant power of the covenantor to grant any has been broken. By a bill of sale dated such license was at an end before the sale the 11th of April, 1867, Candler appears took place, and insists, therefore, that the to have mortgaged certain goods, chattels, latter had no power to grant the license, and effects on the premises in question to or that the power had ceased, and the Edgeley, and two others, as security for license become void by means of one or the sum of 501., and the instrument con- the other of two conveyances which were tains a provision that in case default afterwards made; the first being an unshould be made in payment (which derlease by way of mortgage of the 22nd default we must assume to have been April, 1867. made, and which clearly was made), Now first let us consider whether there “it should be lawful for the said mort- was anything in the grant of the undergagees, ini mediately anl whenever they lease which operated as a revocation of should think fit, to sell and dispose of the the license. There is nothing to be found said goods and chattels, or any part thereof, in the instrument itself having any such on or at the said therein-before mentioned effect, but the question submitted to us house or premises where the said goods, is, whether by means of this grant the chattels and effects, then were, or to re- power to the licensee to act in pursuance move the said goods, chattels and effects, of the license by effecting a sale by aucand to sell the same, whenever and where- tion on the premises was not determined, soever they should think proper, by private and at an end. I think it was not. The contract or public auction.” The first instrument was in effect a mortgage ; but objection raised on the terms of that we find there is a condition that as long authority is, that the words,“ by private as the mortgagor should continue to pay contract or public auction," refer only to the interest at the times fixed, he should be entitled to redeem, and should be and the assignment itself, which is said to remain in full enjoyment of the premises have put an end to the title of Candler without any molestation, interruption, or altogether, also put an end to the license, eviction by the mortgagee, or any person

and rendered it invalid and void, and on claiming under him, and under this in- the authority cited by Mr. Baylis, prestrument, notwithstanding the mortgage; vented its being a sale under the preand whatever may be the power that it sumption of the covenantor. I am clearly conferred on the mortgagee, the mortga- of opinion it had no such effect. By the gor remained in actual possession of the assignment to trustees, Candler might premises in undisturbed and full enjoy- have enabled them—if not prevented by ment of them, until after the sale by auc- the mortgagee—to enter on the premises tion took place, and therefore the first and dispossess Candler himself, but no question is whether the license itself was such right was exercised, and whatever determined by the mere grant of this right might have existed it was not used, mortgage on the part of the covenantor. there was nothing that de facto interfered As between the parties, viz., Candler with the possession, and consequently and Edgeley, the license continued in nothing to prevent the exercise of the operation, Candler remained in actual license by sale by auction, which was a possession of the premises, and there was breach of covenant, and a cause of forfeitnothing to prevent Edgeley entering on I think, therefore, that neither the the premises, exercising the license, and lease by way of mortgage nor the assigndoing as he actually did in May, viz., ment to trustees, had the effect of preentering and making sales by auction. venting the lawful entry under that As between Candler and Edgeley, I re- license of Edgeley and the sale, and that peat, the license continued in full force, there was clearly a breach of covenant by and Candler did not object to Edgeley granting this license under seal, followed exercising it. There may be a donbt by continued possession on the part of

ure.

a whether under the circumstances the Candler, and a sale by his permission by mortgagee could have interfered so long auction on the premises (whatever might as the interest on the mortgage money have been the power of the mortgagee or was paid, and it does not appear from the trustees to interfere). So the defendant's case that default was made. It is by no attempt to sustain this objection altogether means clear that the mortgagee could fails. have entered and dispossessed Candler. The other objection is of a totally difIt is said, however, that he might have ferent character. It is whether the statedone so by reason of the subsequent as- ment in the particolars of non-payment signment under the Bankruptcy Act, of rent as one ground of forfeiture in 1861, made for the benefit of creditors. effect disentitled the plaintiff to insist on Whether this at once and by itself ope- that which we may now take to be a forrated as a determination of the right to feiture enabling him to maintain ejectment. continue in enjoyment of these premises I am of opinion that it did not. First, it on the part of Candler is, as it seems to may well be contended (although it is me, quite unnecessary to decide, because, unnecessary to lay down the law on the assuming that the mortgagee had power point) that the actual bringing of an to take advantage of this, he did not action of ejectment, and taking it down do so, and Candler continued in posses- to trial, claiming a forfeiture by reason sion without any objection on the part of of a sale by auction, put an end to the the mortgagee. Therefore, even suppos- lease, and that it was not competent to ing there was power to dispossess Candler, the landlord to undo the act which he that power not having been executed, he bad done or to treat the lease as afterremained in possession, and there was a wards subsisting, and therefore that the clear breach of covenant by Edgeley claim for rent as rent, although made, entering-lawfully entering—and effect- would have no such effect as to disentitle ing a sale by auction on the premises. him to maintain the action. But all that Next comes the further question whether took place, in fact, was that the defendant

1872. MAY V. THE GREAT WESTERN Jan. 23. J RAILWAY COMPANY.

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Lands Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 18), s. 127-Superfluous Land unsold Owners of adjoining Land.

had taken out a summons under the statute to set aside the ejectment on payment of the rent, which was resisted by the plaintiff, who has not accepted the money paid; there it remains still in Court, she has done no act to appropriate it to her own use, and therefore the effect of the forfeiture by sale by auction remains unimpaired.

It is said that it would be great injustice if the plaintiff could take this money out, and yet claim forfeiture by sale; but I do not see the injustice if she can possess the money so paid into Court, in one shape or another. She is entitled to the rent, and whether it is obtained by way of rent or by way of mesne profits does not signify. But it is clear that, on the grounds so very clearly and ably stated in the Court of Queen's Bench, the mere claim of forfeiture by non-payment of rent does not of itself preclude the plaintiff from insisting on the sale by auction as a forfeiture. When the rent was paid into Court there was an end of the part of her particulars by which she claimed a forfeiture for non-payment of rent, but the other cause of forfeiture remained, and I do not see on what ground it can reasonably be contended that, because the landlord brings ejectment claiming a forfeiture for non-payment of rent, she should lose the benefit of the other forfeiture by reason of her having claimed some other but different forfeiture. Therefore I am of opinion that the plaintiff is entitled to retain the verdict on both points, and that the rule must be discharged, and the judgment of the Court below aflirmed.

The other learned judges concurred.

Julgment for plaintiff.

Attorneys-John Ellerton, for appellant; Reed & Lovell, for respondent.

By s. 127 of the Lands Clauses Consolidation Act, 1845, it is provided that within the prescribed period, or if no period be prescribed, then within ten years after the expiration of the time limited for the completion of the works, the promoters of the undertaking shall sell and dispose of such superfluous lands as they had acquired under the provisions of that Act or their special Acts, and in default thereof all such superfluous lands remaining unsold shall vest in and become the property of the owners of land adjoining thereto," &c.

The B. & H. railway company was incorporated for the purpose of making a railway, which was to be completed on or before the 30th of June, 1850. The rights and powers of the B. & H. Company became vested in the year 1846 in the defendants. The plans and book of reference deposited with the clerk of the peace included a field in the parish of B. The defendants gave to the owners of the field notices to treat with them for the purchase of the field for the purposes of the railway. The price of one part was settled by arbitration, and of the remainder by agreement between the parties; the field was conveyed to the defendants, and the defendants took possession. Upon a portion of the field they constructed, in part, the line of railway, together with a station and other works connected therewith; and upon part of the remainder of the field they deposited chalk and other spoil, which, in making the railway, was excavated from a cutting near the field, in order to provide a place for depositing which the defendants had purchased the whole of the field, instead of only a portion thereof. After the chalk and spoil were deposited, the defendants allowed the people employed by them to occupy the portion of the field not used for the station, as gardens, and for other purposes, and, in one or two instances, persons not so employed occupied parts of the field, and paid small rents in respect thereof to the station master, who received them for his own use. The land so occupied was productive to the persons who occupied it.

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