1847.

Dog dem. Lord DowNE

V.

THOMPSON.

THOMPSON.

point will not be made.] The estoppel, if it exist, ought Queen's Bench to be mutual. But, if Lord Downe were to sue this defendant on the covenants in the lease, he would have to shew, in pleading, first, the title of Burton against the defendant; secondly, that Burton's title had come Lord DowNE to him, Lord Downe. The first he could probably shew by estoppel: but, when he came to the second, he could only set up his title by referring to the deed, of which the defendant would crave oyer; and the deed would shew that Burton' had conveyed no legal title; and there is no estoppel by a deed which shews the true facts. Whitton v. Peacock (a) will probably be considered as overruled, and therefore is not relied upon. A decision in favour of the defendant would be an extension of the doctrine of estoppel whereas it is a recognised principle that estoppels are not to be favoured.

Next, supposing Lord Downe to be bound by the lease, he may still recover in debt for use and occupation, though, the lease being by deed, he could not have brought assumpsit. (On this point he cited Gibson v. Kirk (b), Atty v. Parish (c), and Tilson v. The Warwick Gas Light Company (d): but the judgment of the Court renders it unnecessary to report this part of the argument.)

Hugh Hill, contrà. The defendant is entitled to consider Lord Downe as taking from the mortgagor: that this is effected by a conveyance to which the representatives of the mortgagee, as well as those of the mort

!

(a) 2 New Ca. 411. See Webb v. Austin, 7 M. & G. 701.: note (e) to Walton v. Waterhouse, 2 Wms, Saund. 418 c.

(b) 1 Q. B. 850.

(d) 4 B. & C. 962.

(c) 1 New R. 104.

See Edwards v. Bates, 7 M. & G. 590. 600.

Volume IX. 1847.

DoE dem.

V. THOMPSON. Lord DowNE

V.

THOMPSON.

gagor, are parties, can make no difference. "Si A. mortgage terre in fee al B. sur condition de reenter sur Lord DowNE payment de deners, et puis il esteant en possession ceo demise per indenture al C. et puis performe le condition, et fit feffment al D. D. serra lie et estopp d' avoider le leas tam bien comè A. mesme, pur ceo que il clayme desouth A. que fuit estopp;" 1 Roll. Abr. 876. tit. Estoppell (V), pl. 5. That a lease by a mortgagor may be made good by the concurrence of the mortgagee is decided in Webb v. Austin (a). In Weale v. Lower (b), cited and relied upon in the judgment there, a lease, originally good only by estoppel against the lessor, was held to bind the lessor's heir upon the legal interest afterwards vesting in him. Similar instances are given in Com. Dig. Estoppell (B). Trecivan v. Lawrance (e) also shews that a party who leases without having an interest is bound by estoppel; and that, if he afterwards obtain the legal interest, that is bound by the lease; and that this estoppel binds all who take a conveyance from him. Therefore, if Lord Downe had first purchased from the mortgagor, so as to be estopped, and had afterwards bought the legal estate, he would have been bound, just as the mortgagor himself would have been if he had bought the legal estate. The same result must follow where all is done by one conveyance. Priority of words can make no difference, any more than priority of execution by the parties. The difficulty suggested on the other side, as to the pleading, in the case of an action on the covenants by Lord Downe, does not arise: it would be enough to aver that all the lessor's interest passed, which the deed would prove.

1847.

Then, Lord Downe, being estopped by the lease Queen's Bench. which is by deed, cannot sue for use and occupation. (He referred to Beverley v. The Lincoln Gas Light and Coke Company (a): but the argument is omitted, for the reason before given.)

Cur. adv. vult.

Lord DENMAN C. J., in this term (January 14th), delivered the judgment of the Court in both cases.

DoE dem. Lord DowNE

V. THOMPSON. Lord DowNE

V. THOMPSON.

Doe dem. Viscount DowNE V. THOMPSON.

The facts of this case are as follows. (His Lordship then stated the facts as antè, p. 1037.)

The question is whether Lord Downe is estopped by the lease for thirty one years, or whether he is entitled to recover, having given a regular notice to quit after receiving rent for two years.

The lease was good against Thomas Burton by estoppel only he had not the legal estate when he granted it; nor did he acquire it afterwards; nothing passed to his assignees but the equity of redemption; and they could pass nothing else to Lord Downe. The legal interest has passed to Lord Downe wholly and entirely from Messrs. Swann, who were not privies to, nor in any way estopped by, the lease; neither can Lord Downe be estopped in respect of the interest which he took from them. Doubtless, if Lord Downe had taken the legal interest from Burton, he would have been estopped in the same manner that Burton would,

(a) 6 A. & E. 829. 839.

Volume IX. 1847.

DoE dem. Lord DowNE

v.

THOMPSON.

v.

THOMPSON.

as was held in Trevivan v. Lawrance (a) and other cases; and particularly see the case of Right dem. Jefferys v. Bucknell (b), in which the doctrine of estoppel was fully considered. But, as he took nothing in the land from Lord DowNE either Burton or his assignees, no estoppel could affect him through them. And, as those from whom he did take the land were not estopped, neither is he. We think that the fact of the assignees joining in the conveyance cannot place him in a different situation from that in which he would have stood had the Messrs. Swann alone conveyed. This rule for a nonsuit must therefore be discharged.

Rule discharged.

Viscount DoWNE V. THOMPSON.

This rule for a nonsuit must also be discharged. If Lord Downe is not bound by the lease for thirty one years, it follows that the defendant was tenant from year to year only; and an action of debt for use and occupation is well brought.

(a) 1 Salk. 276.

Rule discharged.

(b) 2 B. & Ad. 278.

END OF HILARY TERM.

AN

INDEX

ΤΟ

THE PRINCIPAL MATTERS.