share, beneficial estate, and interest of Brown, of and in the said rivet manufactory, and all other the real estate devised by the will of the said testator, and also the entirety of the machinery, both fixed and moveable, and all engines, boilers, cranes, and other fixtures, articles, and plant in and upon the said rivet manufactory, then or thereafter to be in the occupation of Brown. To have and to hold the said land, hereditaments, puddling furnaces, rolling mills, machinery, manufactories, and all other the premises thereinbefore described, and thereby intended to be granted, assured, or otherwise conveyed with their appurtenances unto the defendants, their heirs, executors, administrators, and assigns, according to the different natures or tenures thereof respectively, upon trust, that they (the defendants) should either immediately, or at any time or times thereafter sell and absolutely dispose of the said several hereditaments and all other the premises therein before described and granted, assured, or otherwise conveyed, and should apply the purchase-money to arise from such sale in manner therein mentioned; and as a further security for the principal and interest moneys for the time being due from Brown under or by virtue of the present indenture, Brown did thereby attorn and became tenant to the defendants, their heirs, and assigns, as and from the late thereof, of such of the said hereditaments and premises thereby granted or otherwise conveyed as was or were in his occupation for and during the term of ten years, if that security should so long continue, at and under the yearly rent of 8007., to be paid yearly on every first day of October in every year, the first yearly rent to be paid and payable on the first day of October then next. Provided that notwithstanding anything therein contained, and without any notice or demand of possession, it should be lawful for the defendants, their heirs, executors, administrators, or assigns, before or after the execution of the trusts of sale therein contained, to enter into and upon the said mortgaged premises, or any part thereof, and to eject the said John Brown, junior, and any tenant or person claiming or to claim under him therefrom, and to determine the said term of ten years, notwithstanding any lease or leases that might have been granted by Brown. 11. The indenture of the 12th of September, 1866 (the recitals of which are to be taken as true so far as the facts stated therein 1869 MORTON V. WOODS. 1869 MORTON บ. WOODS. are not in this case shewn to have been varied), was executed by Brown on the day of the date thereof, but it was at the date of making the distress hereafter mentioned, and still is, unexecuted by or on behalf of the said Woods & Co., nor has it ever been registered as a bill of sale, or otherwise. The said indenture of the 12th of September, 1866, was executed by Brown, in pursuance of the said memorandum of the 8th of September, 1866, and on the execution thereof the defendants made him further advances, amounting, with the advances so made by them between the giving of the memorandum and the execution of the indenture, to a sum exceeding the said sum of 18007. mentioned in the memorandum. 12. After his execution of the said indenture of the 12th of September, 1866, until and at the time of the making of the distress hereafter mentioned, Brown continued his exclusive occupa tion both of the rivet manufactory and of the rolling mills. In the beginning of October, 1866, Brown found himself in such pecuniary difficulties as to be unable to carry on his business any longer, and suspended payment. 13. On the 15th of October, 1866, the defendants, by their bailiff, distrained certain goods and chattels which at the time of such distress were on the rivet works and the rolling mills respectively for 8007., being one year's rent, which under the indenture of the 12th of September, 1866, accrued due on the 1st of October, 1866. At the time when this distress was made there was due to the defendants from Brown, on the security of the said indenture, a sum considerably exceeding the sum for which the distress was made. 14 and 15. On the 25th of October, 1866, Brown filed a declaration of insolvency, and on the 23rd of November, 1866, he was adjudicated a bankrupt on a creditor's petition, and the plaintiffs have been appointed creditors' assignees under such bankruptcy. 16. The plaintiffs paid to the defendants the sum of 9397. 11s. 2d. for rent and costs of distress, under protest. 17. On payment of the said sum the defendants withdrew from possession of the distrained chattels, and the plaintiffs have since sold them. The question for the opinion of the Court was, whether the distress made by the defendants was legal and valid. The Court of Queen's Bench held that it was. (1) Joshua Williams, Q.C. (with him Manisty, Q.C.), for the plaintiffs. The plaintiffs contend: First, that, on the terms of this mortgage deed, the parties did not intend to create a tenancy at will only, but an estate or term for ten years, determinable in a particular manner: that this term was not created, because by the Statute of Frauds a writing signed by the party creating the estate was necessary, and by 8 & 9 Vict. c. 106, s. 3, a deed would now be necessary, whereas the defendants did not execute the deed. Secondly, that there was no legal estate, by estoppel or otherwise, to support the distress. Thirdly, that the deed was an evasion of the Bills of Sale Act, 17 & 18 Vict. c. 36, s. 7, as a "licence to seize" the goods, and is therefore void for want of registration. First, the terms of the clause of attornment clearly create a tenancy for ten years, and the proviso as to the power of the mortgagees to enter and determine the term at any time, i.e., at the will of the lessors, must be rejected as repugnant. In Bac. Abr., tit. Leases and Terms for Years, (L) 3, vol. 4, p. 836 (7th ed.), it is laid down :—“ If one makes a lease for ten years at the will of the lessor, this is a good lease for ten years certain, and the last words void for the repugnancy, by Bro. ;" and Bro. Ab., tit. Lease, par. 13, is cited for the proposition. If there were a tenancy at will only, this would determine on the death of the lessor: Co. Litt., 57 b.; but the attornment is to the mortgagees and their heirs; so again it would be determined by assignment: Dinsdale v. Iles. (2) See also Newport's Case (3), that by the assignment of a mortgage the mortgagor becomes tenant at sufferance. Again, the proviso for entry is inconsistent with a tenancy at will, for it contemplates the possibility of the tenant granting an underlease; but a tenant at will, by giving up possession, terminates the will. Any alienation of the lessee terminates the estate (Watkins' Conveyancing, p. 2), if known to the lessor: Pinhorn v. Souster. (4) [CLEASBY, B. It would appear from Blunden v. Baugh (5) that, (1) On the grounds stated in the head-note, ante, p. 293; see Law Rep. 3 Q. B. 658. (2) 2 Lev. 88; 1 Vent. 247. (3) Skin. 423. (4) 8 Ex. 763; 22 L. J. (Ex.) 266. 1869 MORTON v. WOODS. 1869 MORTON T. WOODS. on alienation by a tenant at will, the lessor might treat it as a disseising or not, at his option.] Again, a tenancy at will must be determinable at the will of either party, but here the tenancy is determinable by entry of lessor only. These reasons shew that it was intended to create a term of ten years, and, if so, this term was not created by reason of there being no deed executed by the lessors, and so the rent incident to, or reserved on the term, did not attach, and there can at all events be no distress. [CLEASBY, B. By the express words of the Statute of Frauds, a lease for more than three years, if not in writing, shall create a tenancy at will.] The 8 & 9 Vict. c. 106, s. 3, enacts that a lease required by law to be in writing shall be void at law unless by deed. Assuming, however, a tenancy at will to have been created, it is not a tenancy at will at the rent reserved on the term of ten years. [CLEASBY, B. The mortgagor attorned at this rent.] Not if the intention was to create a term of ten years. He attorned to the defendants as tenant for a term of ten years at that rent. Swatman v. Ambler (1), following Pitman v. Woodbury (2), shews that, inasmuch as the term did not pass, the lessee is not bound, as he did not get what he had stipulated for as the consideration for the reddendum of the rent. In West v. Fritch (3), Parke, B., says, “the deed not having been executed by the mortgagee, it cannot operate as a lease." But as the mortgagor had acted under it, and paid rent, the Court held that a tenancy at that rent was created. [CHANNELL, B. Blackburn, J., points out that the payment of rent was not relied on by the Court, but simply the occupation. (4)] In Cole on Ejectment, p. 450, it is laid down, that on entry of a tenant under a void lease, he becomes tenant at will, and if rent be paid, then a tenancy from year to year is created at the rent; and on a bare tenancy at will there can be no distress, as there is no rent reserved. [BYLES, J. An attornment is quite as strong as payment of rent can be.] (1) 8 Ex. 72; 22 L. J. (Ex.) 81. (3) 18 L. J. (Ex.) 50; 3 Ex 216. No doubt, if the attornment be as a tenant at will at the rent. Secondly: The distress cannot be sustained for want of a legal reversion, as there was no express power given to distrain. There was here no legal reversion in fact, and none by estoppel, as the truth appeared: Co. Litt. 352 b. Pargeter v. Harris (1), is irreconcilable with the judgment of the Court below. In the judgment of the Court, it is said: "The declaration is not in the usual form in actions of covenant for rent; but it states, purposely, so much of the lease as shews that the plaintiffs had only the equity of redemption in the premises; and that the defendant knew that circumstance from the recitals in the lease. That recital is of itself sufficient to prevent either party being estopped from denying that the plaintiffs had a legal reversion; in truth, it estopped them from asserting it." That case is expressly recognized in Cuthbertson v. Irving (2), and the judgment of the Exchequer is adopted in the Exchequer Chamber. (3) So again, in Saunders v. Merryweather (4), it was held that the assignee of a lease when the title appeared on the assignment, was not estopped from taking advantage of the fact that the mortgagor had not the legal reversion, and so could not take advantage of a condition of re-entry: Dancer v. Hastings (5), and Jolly v. Arbuthnot (6), were much relied on in the Court below; but here the mortgagor was tenant of the rolling mills to Horn, and of the rivet manufactory to the trustees, under the will; and 11 Geo. 2, c. 19, s. 11, prevents the attornment to the defendants having any effect, which was not the case in the other two cases, as the statute excepts an attornment under a judicial order, as in Dancer v. Hastings (5), or with the assent of the lessor or the owner, as in Jolly v. Arbuthnot (6), for there the mortgagee assented to the attornment. [BYLES, J. That statute only prevents a fraudulent attornment by a tenant to a stranger having any effect on the lessor's title or possession; but if Brown had paid the 8007. as rent to the (1) 7 Q. B. 708, 727, 728. (2) 4 H. & N. at p. 754; 28 L. J. (Ex.) at p. 308. (3) 6 H. & N. 135; 29 L. J. (Ex.) 485. (4) 3 H. & C. 902; 35 L. J. (Ex.) 115. (5) 12 B. Moo. 34; 4 Bing. 2. 1869 MORTON V. WOODS. VOL. IV. 2 E 1 |