1847. POLLOCK v. STACY. Volume IX. thereby reserved to the assignor. In Preece v. Corrie (a) the above doctrine was confirmed; and it was held that the lessee held of the lessor although there was no reversion. In Baker v. Gostling (b) this doctrine was again confirmed, and Poultney v. Holmes (c) cited and acted on. The defendant has relied on Barrett v. Rolph (d) overruling Poultney v. Holmes (c). But the case is not decided on this point: a compromise is recommended and adopted, to prevent a new trial: also the parties there probably intended an assignment, and not a lease; and, if so, the doctrine would not apply. Also, throughout the argument, this doctrine is mentioned with approval by the Court, although it is doubted in the conclusion. Upon this review of the authorities, we do not consider that the case of Poultney v. Holmes (c) has been overruled. As to the other cases cited, viz. Parmenter v. Webber (e) and Smith v. Mapleback (g), they decide that such a lessor cannot distrain, not having any reversion. This is not disputed: but the negation of the right to distrain does not at all imply a negation of a right to sue for use and occupation. Therefore the rule is refused. Queen's Bench. 1847. 1 DOE on the demise of Viscount DOWNE against THOMPSON. Viscount DowNE against THOMPSON. THESE two actions were tried before Wightman J., at the Yorkshire Spring assizes, 1845, when verdict was found for the lessor of the plaintiff in the a first case, and for the plaintiff in the second, with liberty, in each case, to move for a nonsuit. A., seised in fee, mortgaged in fee to B., leased to de and afterwards fendant. D. purchased the legal estate from B., and In the ejectment the facts were as follows, according also the equi table estate to the statement of Lord Denman C. J., in delivering from a party, the judgment of the Court. who derived it from A., which the party also joined in the to conveyance of the legal estate. rent from de not bound by 4's lease to him, but might In 1828, recover against “In 1819, Thomas Burton, being seised in fee of premises in question, conveyed them, inter alia, John Bromet, his heirs and assigns, subject to redemption on payment of 1000. In 1827, Thomas Burton demised to the defendant, by indenture for thirty fendant, was one years. In the same year, part of the mortgaged premises were sold, and 900l. paid off. Thomas Burton became bankrupt, and afterwards died. In February 1834, Messrs. Swann paid Bromet 100l., and took from him a conveyance in fee (a). On the 22d May 1834, the assignees of Thomas Burton sold the premises to Lord Downe for 245l., 100l. of which was paid to Messrs. Swann: and they, by direction of the assignees, conveyed to Lord Downe in fee, the assignees also being parties and joining in the conveyance (V).” (a) Subject to the equity of redemption then subsisting. (b) This conveyance recited the conveyances to Bromet and Messrs. Swann, the bankruptcy, and the assignment: and it described the premises as formerly in the tenure and occupation of Burton, but now of Thompson, his undertenants or assigns, but did not refer to the lease. Messrs. Swann bargained, sold, and released; and then the assignees of Burton released, ratified, and confirmed. defendant in ejectment after expiration of a notice to quit, or sue him for use and occupation after the pay ment and re ceipt of rent. Volume IX. 1847. Doɛ dem. Lord DowNE V. THOMPSON. Lord Downe, after receiving rent for two years, gave notice to quit, at the expiration of which he brought the ejectment. Viscount Downe v. Thompson was an action against Lord Dows Thompson for an occupation of the same land for a period subsequent to the last payment and receipt of rent by Lord Downe. V. THOMPSON. In Easter term, 1845, Hugh Hill, pursuant to the leave reserved, obtained, in each case, a rule nisi for entering a nonsuit. The two rules were argued together in last Trinity vacation (a), when Rew shewed cause. First, without reference to the fact of Burton's assignees having joined in the conveyance to Lord Downe, the question as to his title is, whether the party claiming through the mortgagee is estopped by the lease of the mortgagor in possession, made after the mortgage. The authorities shew that he is not; even by receiving rent he does not set up the lease, but only creates a new interest in the party paying, whịch, if the rent be paid yearly, will be a tenancy from year to year; Rogers v. Humphreys (b), Evans v. Elliot (c), Partington v. Woodcock (d), Brown v. Storey (e), Doe dem. Higginbotham x. Barton (g). Then is the case altered by the mortgagor's assignees having joined,? Lord Downe took from them only the equitable estate. [Patteson J. If the conveyance had been from the assignees only, I suppose you admit that he would (a) June 20th, 1846. Before Lord Denman C. J., Palleson and Wightman Js. (b) 4 A. & E. 299. (g) 11 4. & E. 307. (c) 9 A. & E. 342. (e) 1 M. & G. 117. 1847. DoE dem. Lord DowNE V. THOMPSON. V. THOMPSON have been estopped: does he get rid of the estoppel Queen's Bench. by taking a conveyance of the legal estate also?] The assignees could only have conveyed subject to the mortgage. Suppose the mortgagor had made a second mortgage for a thousand years: could that estop a party Lord DownÉ who purchased the legal estate of the first mortgagee from insisting on such legal estate? In respect of the legal estate, Lord Downe is neither party to the lease, nor privy in blood (as in Weale v. Lower (a) ) or estate. › · He could not, in law, have insisted on the covenants in the lease which run with the land; Webb v. Russell (b), Pargeter v. Harris (c). On the face of the conveyance to Lord Downe, it appears that the assignees of the mortgagor 'had no legal interest; and the lease to the defendant is not mentioned; it is only said, by way of description, that the premises are in the occupation of the lessee. There is therefore no estoppel. [Patteson J. The defendant, according to your argument, would be a trespasser; yet the conveyance seems to recognize the lawfulness of his possession.] It does not follow that, because he was not in possession under the lease, he could be treated as a trespasser by those claiming under the mortgagee: in one case (d) Lord Denman C.J. carefully guarded himself against adopting such a conclusion. In Pargeter v. Harris (e) this Court pointed out that Gouldsworth. Knights (g) had been misunderstood. But, in any view, the latter case could not apply to this: for there the title by estoppel was grounded on the fact, that the party (trustees) insisting upon it had taken the legal title from the party (former trustees) to whom rent 1847. DOE dem. Lord DowNE V. THOMPSON. Lord DowNE V. THOMPSON. Volume IX. had been paid by the party estopped; here Lord Downe claims under a legal title altogether independent of any title which Burton had at the time of making the lease. The doctrine of estoppel in this respect is explained in 4 Bac. Abr. 855, 856. (7th ed.), tit. Leases and Terms for Years (O), whence it appears that Lord Downe, if he had been enfeoffed by Burton after the lease, would have been estopped: but he claims through a conveyance of the fee made before the lease. [Patteson J. The defendant would be estopped, by your purchase of the title of the lessor, the equitable owner, from disputing your title: it seems strange that you should not be estopped too.] The deed conveying to Lord Downe gives the legal estate before the conveyance by the assignees comes in the order of two acts may not unreasonably determine their effect. But suppose there had been two contemporaneous deeds conveying, one the legal estate, the other the equitable: could not Lord Downe have sued on the legal estate alone? Webb v. Austin (a), which may be cited, shews that a mortgagee may, in some instances, set up the lease of the mortgagor; but it does not shew that this is done by merely accepting a conveyance of the legal title to which the mortgagor is a party. The lease, according to the doctrine in Bacon, would be set up by the mortgagee conveying to the mortgagor: then the mortgagee, who before would be bound only by way of estoppel, would have his legal interest bound; and so would any one taking from him after the lease was made. Perhaps it will be argued, on the authority of the class of cases to which Partridge v. Bere (b) belongs, that the mortgagor retained a legal interest after the mortgage. [Hugh Hill, contrà. That (b) 5 B. & Ald. 604. (a) 7 M. & G. 701. |