[BYLES, J.-My Brother Blackburn referred to Cuthbertson v. Irving (8)—see 37 Law J. Rep. 245-as shewing that so long as the lessee continued in possession, he cannot set up any defence founded on the fact that the lessor has no interest in the premises.]

It is submitted that case is very different from the present.

Further, it is submitted that as Brown appears to be tenant to Horn and the trustees, he cannot attorn to the defendants, the mortgage never having been forfeitedsee 11 Geo. 2. c. 19. s. 11; nor can he be liable to be distrained upon by them. In the Court below the judgment proceeded very much upon the authority of Dancer v. Hastings (9) and Jolly v. Arbuthnot (10); but it is contended that too much weight was given to those cases. In Dancer v. Hastings (9) the defendant was a receiver in Chancery, to whom the attornment was valid, and the plaintiff was rightly held to be estopped from disputing his right to distrain. That case is quite different from the present case, where the legal estate is in Horn and in the trustees. Evans v. Matthias (11) was decided upon the same grounds, and Saunders v. Merryweather (12) gets rid of much of the effect of Dancer v. Hastings (9) and Jolly v. Arbuthnot (10).

[KELLY, C.B.-Is there anything to shew that the relation of landlord and tenant was created between Horn and Brown? It may be that a man cannot be tenant of the same property to two persons at once, but I do not find that Brown was tenant to Horn.]

He must have been tenant to Horn. [BYLES, J.--The 11 Geo. 2. c. 19. s. 11. seems to apply to fraudulent attornments, and not to cases which arise between the lessor and the lessee. If Brown had paid the

(8) 4 Hurls. & N. 742; s. c. 28 Law J. Rep. (N.S.) Exch. 306.

(9) 12 B. Moore, 34; 8. c. 5 Law J. Rep. C.P. 3.

(10) 4 De Gex & Jo. 224; s. c. 28 Law J. Rep. (N.S.) Chanc. 547.

(11) 7 E. & B. 590.

(12) 3 Hurls. & C. 902; s. c. 35 Law J. Rep. (N.S.) Exch. 115.

rent of 8007. to the defendants, would he not have been estopped from denying their title? If so, would he not be equally estopped by the attornment?]

Even if this Court should think that Jollyv. Arbuthnot (10) was exactly in point, still it would not be conclusive. It was a reversal by Lord Chelmsford of a decision of the Master of the Rolls, and is at most a decision simply of a Court of co-ordinate jurisdiction. If it had been intended that there should be a power to distrain, it would have been expressly given.

Next, if the estoppel authorizes a distress, it is opposed to public policy, as the deed would have the effect of a bill of sale, and under the 17 & 18 Vict. c. 36. s. 7. would be invalid unless registered. It is a "licence to take possession of personal chattels" within section 7.

[CHANNELL, B.-That section must be read with the preamble and the 1st section. It would be going a long way to lay down that such a deed as this must be registered as a bill of sale.]

Kemplay, contra, was not heard.

KELLY, C.B.-The question to be decided in this case is, whether the distress can be supported. It has been contended, on the part of the plaintiffs, that the defendants were not entitled by law to distrain, inasmuch as they were not seised of the legal estate, and the relation of landlord and tenant, out of which the right of distress must have arisen, was never created between the parties; and that proposition is sought to be supported on two grounds, first, that it appears from the instrument itself that if there be any tenancy at all, it is a tenancy for ten years, a lease for ten years; and secondly, that the lease not being under seal, the mortgage-deed not being executed by the defendants, there is no such tenancy. It is said further, that the power of re-entry, which follows upon the attornment, does not convert the supposed or intended lease for ten years into a lease or tenancy at will, and, consequently, that there is, in effect, no tenancy, and so no right of distress. Although these are objections of a highly technical nature, we are bound to give effect to them if they are sustained by law, and

the more so, as they have been supported by a very learned argument, in which all the authorities, ancient and modern, bearing on the question have been fully brought before us, on the part of the learned counsel for the plaintiffs. And, first, as to the objection that, the defendants not having the legal estate in them, they could have no right of distress. It is perfectly clear that they had not the legal estate, but then that may be said of all lessors where there is a lease, or a tenancy by way of estoppel, who have no title at all. Here the defendants had an equitable estate; they certainly had no legal estate. As that, standing alone, would have no effect, this being a lease or tenancy by way of estoppel, it becomes of primary importance in the present case, because it is contended that this being a tenancy by way of estoppel, and only available to the defendants by the law of estoppel, such law is inapplicable where the truth against which the estoppel is to operate appears on the face of the instrument itself. It may be taken that it appears on this mortgage of September, 1866, that the defendants were not seised of the legal estate, but that the legal estate was outstanding in the first mortgagee, Horn. Now, in support of this proposition, a number of cases have been cited, but when we look with attention to the facts of those cases, and to the ratio decidendi in one and all of them, we find that none are directly in point. They are cases either of actions upon covenant where, unless the covenantor can under the terms of the instrument enforce the covenant by action at law, it is clear no such action is maintainable; or where an action of ejectment having been brought on a clause of re-entry, it was perfectly clear that in order to maintain the action there must be the legal estate or title in the plaintiff, and it appeared on the face of the instrument and the evidence in the case, that the plaintiff in ejectment had not the legal estate, but that it was outstanding in another person, and the action was held not to be maintainable. But even if any of the dicta to be found in one or more of the numerous authorities referred to by Mr. Williams, were to lead to the conclusion that where the truth against which the estoppel is

directed appears upon the face of the deed, no estoppel arises, that doctrine must be taken to have been overruled in the case of Jolly v. Arbuthnot (13), and that by the Lord Chancellor sitting on appeal, by a Court of co-ordinate jurisdiction with that before which this case is now being decided. Even, therefore, if we were to find that which is binding on us by authority for the proposition contended for by the learned counsel, we should be bound to defer to the higher authority of the Lord Chancellor in Jolly v. Arbuthnot (13), which was an appeal from a decision of the Master of the Rolls, and which is therefore binding even upon the Court of Exchequer Chamber. Now, when we look to that case we find that there was a mortgage, and an agreement between the parties, by way of attornment, or a sufficient clause in itself to constitute a tenancy, that the tenancy should subsist, not between the mortgagor and mortgagee, but between the mortgagor and a receiver, who is named in the instrument appointed by the Court of Chancery. It is perfectly manifest that the receiver having been so appointed, he had no interest whatever in the premises, either legal or equitable. It appears from the instrument itself that there was no legal estate in him; he claimed the power of distress by virtue of a tenancy of this nature, and in his character of receiver, and the absence in him of any interest whatever likewise appeared on the face of the deed. The Master of the Rolls certainly took a view of the case in accordance with that contended for here by the plaintiffs. That case was very elaborately argued, and Lord Chelmsford, as Lord Chancellor, reversed the decision of the Master of the Rolls, and there being there a tenancy by way of attornment, or by reason of a clause sufficient in itself to constitute as between the mortgagor and mortgagee a lease or tenancy at will, or for years, he held that though it appeared on the face of the same instrument which contained the clause creating the tenancy, that it was a tenancy between the mortgagor and the receiver, and that the receiver had no interest legal or otherwise in the premises,

(13) 4 De Gex & Jo. 224; s. c. 28 Law J. Rep. (N.S.) Chanc. 547.

that did not do away with the tenancy or right of distress, which arose by implication of law from the relation of landlord and tenant, thus created between the mortgagor and the receiver. And his Lordship, after stating that it was contended that the clause as to the receiver had no operation by estoppel, said, "It appears to me that the circumstance of the truth of the case appearing upon the deed is a reason why the agreement of the parties, which it embodies, should be carried out, either by giving effect to their intention in the manner which they have prescribed, or by way of estoppel to prevent their denying the right to do the acts which they have authorized to be done." Then his Lordship refers to the cases of Cornish v. Scarell (14) and Dancer v. Hastings (15), as supporting the conclusion at which he had arrived. There is a distinction between Jolly v. Arbuthnot (13) and the case now before us; there the mortgagor and mortgagee, as well as the receiver, were parties to the transaction and to the creation of the tenancy to which the distress was incidental, while it appears in the present case that there was a first mortgagee, who is not a party to this transaction or to the instrument in question. That is relied on by Mr. Williams, but when we consider the causes of the law and the true reason of the law which led to the creation of the doctrine in question, it will appear manifestly that the creation of the tenancy, and the arising of an estoppel out of a tenancy thus created, is the sole cause of the legal estate being superfluous and unnecessary, and that it is the relation of landlord and tenant, subsisting between the parties to the instrument, which creates the tenancy in question, and not the consent of any third party, not a party to the instrument. Therefore, the two cases may be said to be identical. If we had any doubt, which we have not, on the question, we should feel ourselves bound to defer to this authority. Under these circumstances, although the defendants have not the legal estate in the lands in question, although that fact appears by reference at least to

(14) 8 B. & C. 471.

(15) 12 B. Moore, 34; s. c. 5 Law J. Rep. C.P. 3.

the instrument now before us, we think that does not disentitle the defendants to the distress in question, and does not at all affect the relation of landlord and tenant, or the incidents of that relation created by and arising out of the terms of the instrument.

We come now to the instrument itself, and have to consider the question whether there is a tenancy at will; if so, whether it was a tenancy to which this right of distress was incident. We find on looking at the instrument itself that after the usual language of a mortgage-deed the deed proceeds to state, "and as a further security for the principal and interest moneys for the time being due from the said J. Brown under and by virtue of the said indenture, the said J. Brown did thereby attorn and become tenant to the defendants, their heirs and assigns, as and from the date of the said last-mentioned indenture for and during the term of ten years, at the yearly rent of 8001." Then follows the proviso that, notwithstanding anything therein contained, it should be lawful for the defendants at any time to enter on the premises, and seize and take possession. Now, it is insisted on the part of the plaintiffs that here there is no tenancy at will; and the ground on which it is put is, that this is, if anything, a lease for ten years, and, that being so, that it was the intention of the parties to grant a lease for ten years, and that the lease not being under seal is void under the Statute of Frauds. But the answer on the part of the defendants is, that by the terms of the Statute of Frauds a lease for ten years or the creation of a tenancy for ten years, not under seal, is not void if it be made only in writing or by parol. I will consider hereafter the effect of the Statute of Frauds, which is not the ground upon which the Court of Queen's Bench decided this case. It is likewise contended on the part of the plaintiff that it was the intention of the parties to grant a lease for ten years, and that it would be contrary to their intention to hold it to be a tenancy at will. Now, in the first place, in support of that proposition, there is the high authority of Brooke's Abridgment, recognized and repeated in Bacon's Abridgment, of a case which shews

that where there is an express lease for ten years, and then a proviso that the landlord or the lord may enter and determine the lease at his pleasure, that does not convert the lease for ten years into a tenancy at will, but such a proviso shall be construed to be repugnant to the instrument, and void. And perhaps that might be so in the ordinary case which one could suppose of a mere lease for ten or twenty or twenty-one years between landlord and tenant; but in order to consider whether that has any application to the present case we must look to the whole of the instrument. If we find the instrument in effect a deed of mortgage, and the tenancy, or the relation of landlord and tenant, the liability to pay rent, and the power of distress reserved to the landlord, all arising in a mortgage-deed, which appears to be a mere security for the re-payment of the principal sum advanced, and the interest, then the authority of those cases and of others to the same effect is no longer applicable; and we must look to the real intention of the parties to be collected, as we are bound to collect it, from the whole of the instrument taken together. When we look at the whole of the instrument there is nothing repugnant in it at all. The parties may have contemplated that the relation of mortgagor and mortgagee, and of landlord and tenant, might subsist for ten years, or for probably more; that the money should remain unpaid and the interest be regularly paid in the mean time. They probably thought that ten years was a reasonable time to assign for the duration of the term thus created and intended to subsist between them. And accordingly we find in the first instance that there is the grant of a lease for ten years; but when we proceed and see that there is a power to enter at any time and take possession of the premises without demand and notice, when we remember that the whole instrument is only a security for the repayment of money advanced on mortgage or the payment of interest, it is quite manifest that what was intended was this: that whatever might be the nominal duration of the tenancy thus created, the nominal contrivance of the relation of landlord and tenant, it was to be in the power of the landlord, at

any time when it was necessary for security, to enforce the instrument into which they had entered, and put an end to whatever tenancy was created and to receive and take possession of the whole of the premises. Therefore, we think that the Court of Queen's Bench was perfectly right. Taking those two portions of the clause together, the attornment by the mortgagor as tenant, and for a term of ten years, but with a power to the mortgagee at any time and without demand or notice to enter, seize and take possession of the premises, we think that that converted the tenancy or term of ten years into a mere tenancy at will, because, by means of the exercise of the power thus conferred on the mortgagee, he had the means at his mere will and pleasure, without more, to determine the tenancy in question. And we think, therefore, considering the whole instrument together, that the mortgagor having attorned tenant in respect of these premises to the defendants, without going through the useless form of walking out of the premises and into them again, having in fact derived and acquired possession and the right to the continuation of possession under the mortgagee as his landlord, that he became the tenant, and that the tenancy for years was converted into a tenancy at will. It is said that a tenancy at will cannot be created to continue beyond the lives of the party or of the lessor. When we come to consider the whole of the law on this question we find that it is based on very fine distinctions, and it would rather appear that a tenancy at will may continue to subsist after the death of one of the parties, unless the heir way should do something to testify in some his intention to discontinue the tenancy. It is enough to say that the mere circumstance of this power being reserved to the lessor and his heirs, does not necessarily prevent the estate in question becoming a tenancy at will or for a term.

But even if any doubt could remain as to the effect of this instrument, as to whether there was, strictly speaking, a tenancy at will created by this deed, when the clauses belonging to it are all taken together, the operation of the Statute of Frauds puts an end to the question, because, supposing, as

Mr. Williams contended, but for the nonexecution by the mortgagee, that he was to be the tenant under a lease for ten years, yet as it was not executed by the lessor therefore it must be said to be a term or lease created by parol only, by the express terms of the Statute of Frauds it is not absolutely void, but may be taken to be a tenancy at will. It remains, therefore, from the time of the execution of the instrument, or the attornment by the tenant, until the rent shall be paid, strictly a tenancy at will. As soon as the rent is paid under it, it becomes a tenancy from year to year. In the mean time it is a tenancy at will, and a distress by the landlord would be lawful. I do not enter into the other points raised by the plaintiffs.

In the first place, we hold with the Court of Queen's Bench that this is a tenancy at will on the true construction of the instrument as entered into between the parties. I say between the parties, because, though there has been an objection, in one form or other, that the defendants have not executed this deed, it is quite enough that Brown, the mortgagor, the alleged tenant, did execute the deed, and that it was assented to by the defendants. And we find that the deed was executed by Brown, and that the defendants proceeded to advance very large sums of money, in addition to further advances, and they must be taken to have accepted the deed, although it was not formally executed. We think it is a tenancy created by these parties, in much the same way as if Brown had written a letter containing all these terms, the contract for the payment of rent and everything else which is in the instrument, and that the proposal had been assented to without being signed on the part of the defendants. That would have constituted a tenancy between them, notwithstanding the introduction of the term for ten years, either by estoppel, or under the operation of the Statute of Frauds, as has been already stated, a tenancy at will until the payment of rent; and after the tenant has come into possession and remained in possession, and on payment of rent,-from and after that a tenancy from year to year. We are, therefore, of opinion that under this instrument a tenancy was created on the one ground or the other,

being a tenancy at will as long as there should be no payment of rent.

With regard to the point made in reference to the Bills of Sale Act, we have no power to draw inferences of fact; therefore, if it could possibly be contended that the mortgage-deed was a bill of sale, and was in effect an evasion of that act, we have no power so to determine; we are not sitting as a jury, and can only look to the facts found in this case. If, looking at the instrument itself, we were to say this was a bill of sale within the act, we must hold every mortgagedeed in which premises are mortgaged with a power of distress or re-entry to be a bill of sale. But no such doctrine can possibly be supported; and even if the question had arisen, we should hold that this deed is not an evasion of the act, and is not a bill of sale requiring registration within the meaning of the act; consequently that objection likewise fails. Under these circumstances we are all of opinion that the Court of Queen's Bench was right, and its decision must be affirmed.