CARDALE.

PENNINGTON always periodically received and accepted the rent or sum of 14. a year, reserved to them by the building lease of the 26th of June, 1786, made to Thomas Clutton, under which the defendants claim title. This lease, although not the same as that in question in Doe v. Taniere, is of the same date, between the same parties, and in the same form, and subject to the same. objections..

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The plaintiffs claim title under a lease, which was, in the argument, called the manor lease, bearing date the 18th of September, 1849, made between the Dean and Chapter of Canterbury of the one part, and the plaintiffs of the other part, and is for twenty-one years from Midsummer, 1848, and will therefore expire at Midsummer, 1869. It is the now existing lease, after a long series of renewals, of the manor of Walworth, made by the Dean and Chapter to the plaintiffs and their predecessors. The defendants claim title, as has been before stated, under the lease to Thomas *Clutton, dated the 29th of June, 1786. This lease was made in supposed pursuance of the powers conferred by an Act of Parliament passed in 1774, and was made between the Dean and Chapter and Henry Penton of the one part, and Thomas Clutton of the other part. It is in the same form as the lease to Thomas Clutton set out in Doe v. Taniere (1). The premises demised were different; and the yearly rents respectively reserved to the Dean and Chapter and Henry Penton were 14l. It was admitted by the learned counsel for the defendants, as was done in the argument of Doe v. Taniere, that the lease was not in accordance with the power, being dated in June, 1786, but to commence and continue for 99 years from Michaelmas, 1786, and therefore did not take effect in possession; but it was argued, first, that, the present Dean having received the rent reserved to the Dean and Chapter, the lease became confirmed during his life; and secondly, that the plaintiffs had no power, by notice to quit, or otherwise, to determine this lease. By the lease to Clutton of the 26th of June, 1786, there was reserved to the Dean and Chapter and their successors, during the last 97 years of the lease, the yearly rent of 14., and to Henry Penton, his executors, &c., the like yearly rent. The rent reserved to Penton became extinguished in 1801; but, as has been already stated, that reserved to the Dean and Chapter has been regularly paid to, and accepted by them, up to the time of the bringing this ejectment. It seems quite clear, from the authorities cited upon the argument, that this lease was not void, but voidable only. At common law the Dean and Chapter had the fee

(1) 76 R. R. 450 (12 Q. B. 998).

v.

CARDALE.

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simple absolute; and the effect of the disabling and restrain- PENNINGTON ing statutes is to render leases granted not in conformity with them voidable, but not void. In 1849, therefore, when the last renewal was granted, the defendants, or persons then entitled under the lease to Clutton, held under a lease voidable by the Dean and Chapter. All previous interest of the plaintiffs had been put an end to and determined by their surrender of the preceding lease.

At the time of making the lease to Clutton, H. Penton held under a manor lease, dated the 25th of June, 1785, for twentyone years from Midsummer Day then past. In the year 1805 a renewal of the manor lease was made, and there was inserted in it as follows: "And also except and reserved out of this present demise unto the said Dean and Chapter, and their successors, all such rents and sums of money, and other right and interest, benefit and advantage, which hath been, or are, or shall be reserved to them in and by any building leases, for long terms of years, of any part of the several lands and hereditaments hereby demised, heretofore granted by them in conjunction with the said Henry Penton," or in conjunction with persons named Brandon, "or which have been, or shall be hereafter, granted by them the said Dean and Chapter in conjunction with Brandon or other the tenants or lessees of the said Dean and Chapter for the time being of the said estate in Walworth aforesaid." In the existing manor lease there are the same words; and the habendum is, "to have, hold, occupy and enjoy the site and courtlodge and all other the premises, with the appurtenances, except as before excepted and subject to the building leases so thereof granted or to be granted as aforesaid."

It was argued, on behalf of the plaintiffs, that the words in the habendum, "subject to the building leases," must be construed to mean subject to the interests lawfully created by them; but we think it extends to all leases de facto granted.

It was argued that the plaintiffs, being lessees of the reversion, had all the reversionary rights, and among them that of avoiding this lease. Now, it is manifest that it was the intention of the parties, the Dean and Chapter and the plaintiffs, that the Dean and Chapter were to have, and continue to be entitled to, during the continuance of this manor lease, the rent of 147. a year, and every other right and interest reserved to them by the building lease to Clutton of the 26th of June, 1786. But if the plaintiffs be right in their present contention, the consequence would be that the Dean and Chapter would be entirely deprived of their rent and every other right and interest reserved to them, and the plaintiffs would have possession of the

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58

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CARDALE.

PENNINGTON premises now in dispute free from the obligation of the lease of 1786. This would entirely defeat the clear intention expressed in the existing manor lease. We think, therefore, that no such right as the plaintiffs claim was granted or assigned to them by the manor lease. If, as Mr. Brown contends, the right to avoid the lease of 1786 is annexed to and inseparable from the reversion, it would properly follow that the premises in question are not comprised in the manor lease; as otherwise the intention of the parties to it would fail. It is true that the premises in question are within the ambit of the parcels in the plaintiffs' lease; but that lease contains the exception of the rent of 147. a year, and of every right, remedy, benefit, &c., including therefore rights of distress, rights of entry, rights of action for non-payment of rent and non-repair. It is clear that the plaintiffs could not, consistently with the terms and intent of their lease, accept a surrender from the defendants. It may be asked then what is granted to the plaintiffs in regard to the premises in question. Substantially nothing; for their term will expire before Clutton's. The way to make the exception sensible (if Mr. Brown is right, that with the reversion the power to avoid the lease of 1786 must pass) is to hold that the premises in question are excepted; and this is consistent with other parts of the plaintiffs' lease; as, for instance, the covenant to repair, which also excepts these premises. It is not possible to suppose that the plaintiffs were to take these premises free from the obligation to repair. Indeed, that it was meant that the plaintiffs should have a power to avoid this lease, cause the rent reserved by it to cease, take the premises themselves, and pay no rent for them, cannot be pretended. At most it can be urged as a legal consequence of what has been done, though a consequence contrary to the intention of the parties. We think, however, for the above reasons, that it is not so, and that the defendants are entitled to judg ment. This will secure to the Dean and Chapter the rent of 14. a year, and will carry out the clear and manifest intention expressed by the parties, and effect real and substantial justice to all.

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We express no opinion as to the other points argued before us, or as to the right of the Dean and Chapter at the expiration of the existing manor lease, assuming the present Dean to be then alive and in possession of the deanery.

Verdict to be entered for the defendants.

IN THE EXCHEQUER CHAMBER.

DENISON v. HOLIDAY.

(3 H. & N. 670–674 ; S. C. 28 L. J. Ex. 25; 4 Jur. N. S. 1002; 6 W. R. 719; 31 L. T. O. S. 250.)

S. D., being seised in fee of four closes of land under which were mines of coal, in June, 1805, mortgaged in fee the lands and mines to T. T. to secure 550l. and interest. S. D. by her will, dated the 15th September, 1809, devised to her seven children, as tenants in common in fee, all the mines under the said lands, and all her real estates (except the said mines) to J. S., W. W. and W. D., their heirs and assigns, upon trust to sell the said real estates (except as before excepted). On the 26th December, 1812, S. D. demised to J. S. and W. W. two seams of the coal under the said lands for a term of fifty years at a rent of 105l. S. D. died in 1814, and the rent was paid to her seven children. T. T. the mortgagee, by his will, dated the 17th October, 1810, devised all freehold estates held by him in mortgage to J. H. and J. J., their heirs and assigns, and soon after died. By indentures of lease and release, the latter dated 10th June, 1815, between J. S., W. W. and W. D., devisees and trustees named in the will of S. D., of the first part, J. H. and J. J., trustees and executors named in the will of T. T., of the second part, J. T. (a mortgagee of other premises) of the third part, and B. K. of the fourth part after reciting (inter alia) the mortgage by S. D. to T. T., and that J. S., W. W. and W. D., in execution of the trusts of the will of S. D., had put up for sale by auction the lands comprised in the said mortgage, at which sale B. K. was declared the purchaser of the said lands (except the mines and beds of coal under the same) for the price of 1,1497. 158.; it was witnessed that J. H. and J. J. (at the request and by the direction and appointment of J. S., W. W. and W. D.) did bargain, sell, release, &c., unto B. K. the said closes of land, "together with all and singular the out-houses, buildings, gardens, &c., waters, watercourses, &c., quarries" (omitting the word "mines "), except and always reserved unto the said J. S. and W. W. during the term of thirty years, all the mines and beds of coal under the said closes of land with liberty to dig and sink pits, &c., for working the coal: to hold the said closes of land (except as before excepted) unto the said B. K., his heirs and assigns for ever: Held, by the Court of Exchequer Chamber, affirming the judgment of the Court of Exchequer, that the mines and seams of coal did not pass under the conveyance to B. K.

THIS was a proceeding in error upon the judgment of the Court of Exchequer for the plaintiff on a special case. The case, and the judgment in the Court below, will be found 108 R. R. 754 (1 H. & N. 631).

The case was argued in Easter Term, May 12 (1), by

The Attorney-General (with whom was Cleasby), for the defendants (the appellants); and

Hayes, Serjt. (with whom was Kerr), for the plaintiff (the respondent).

Cur. adv. vult.

The judgment of the COURT was now delivered by WIGHTMAN, J.:

This is an ejectment to recover possession by Joshua Denison (1) Before Wightman, J., Erle, J., Williams, J., Crompton, J., and Willes, J.

1858.

June 19.

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(plaintiff in the action) of the mines and seams of coal under four closes of land, in Drighlington in Yorkshire, called the Upper Royd, the Middle Royd, the Low Royd and the Long Royd.

Joshua Denison is the heir-at-law of Sarah Denison, who, being seised in fee of those closes and of other lands in the immediate neighbourhood, mortgaged the four closes, in 1793, to one N. Nicholls for 550l., and by lease and release of the 7th and 8th June, 1805, to which Nicholls and Sarah Denison were both parties, the four closes were granted and assigned, by Sarah Denison and Nicholls respectively, to Timothy Topham in fee, discharged of the proviso for redemption in the mortgage to Nicholls, but subject to a similar proviso on payment to Topham of 550l. and interest at a day named. In effect, Topham was put in the place of Nicholls with respect to the mortgage of the four closes, and the mortgage money (5501. and interest) not having been paid at the day named, the estate of Topham in those closes became absolute at law.

Sarah Denison (the mortgagor), by her will, dated 15th September, 1809, devised "all the mines, veins, beds and seams of coal, lying within and under divers lands and grounds of and belonging to her in Drighlington, which she had demised to William Woodhead for a long term of years, subject to the payment to her, her heirs and assigns, of the yearly rent of 105l., unto and equally amongst her seven children (naming them), absolutely and for ever, as tenants in common; and she gave and devised all her messuages, *cottages, lands, tenements and hereditaments in Drighlington aforesaid (save and except the said mines, veins and beds of coal thereinbefore specifically devised and disposed of) unto and to the use of John Scholefield, William Woodhead and William Denison, their heirs and assigns, upon trust to sell and dispose of the same (except as aforesaid)."

In 1812 Sarah Denison granted and demised to John Scholefield and William Woodhead all those two seams of coal, called the Stone Coal and the First Black Coal, lying and being under the before-mentioned four closes, and under other closes, with liberty of raising and landing the coal &c.: to hold, from the 1st of January, 1813, for fifty years, at the yearly rent of 1051. for the first twenty-one years of the term, to be increased upon more than an acre being worked.

The lessees wrought the two seams of coal under the lease, but part of those two seams is still unwrought; and the lessees, after the death of Sarah Denison, who died in 1814, paid the rent to the seven devisees in her will.