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que trust under A.'s will, cannot set up the want of the legal estate to an action for use and occupation by cestui que trust, though the fact is disclosed by the plaintiff's evidence. Dolby v. Iles, 11 Ad. & E. 335. The assignee of the landlord of A., who holds under a parol lease, may sue A. in this action, although there has been no recognition of tenancy or promise as between him and the assignee ; at least where the grant by the assignor
" for himself and assigns.” Standen v. Chrismas, 10 Q. B. 135. There is a distinction between the case where a person has actually received possession from one who has no title, and the case where he has merely attorned by mistake to one who has title ; in the former case the tenant cannot, except under very special circumstances, dispute the title; in the latter he may. Per Bayley, J., in Cornish v. Searell, 8 B. & C. 475 ; Rogers v. Pitcher, 6 Taunt. 202; Gravenor v. Wood house, 1 Bing. 38; and see the cases cited post, sub tit. Replevin--Tenancy of Plaintiff. Thus, where a tenant took premises from " A. and B., for and on behalf of the trustees of the joint estate of C. and D.," and it appeared at the trial, on the evidence of the plaintiffs (who described themselves in the declaration as joint trustees), that they were trustees of C. only; it was held that the tenant was estopped from taking advantage of this variance. Fleming v. Gooding, 10 Bing. 549. So, where A. hired apartments by the year from B., and B. afterwards let the entire house to C., who sued A. for use and occupation, it was held that A. could not impeach C.'s title. Rennie v. Robinson, 1 Bing. 147. But, a payment on a mistaken supposition that the claimant was personal representative of the tenant's deceased landlord will not estop the tenant. Knight v. Cox, 18 C. B. 645. And where land, belonging to a parish, was occupied by A., and he paid rent to the churchwardens, who executed a lease of the same land for a term of years to B., and gave A. notice of the lease ; in an action for use and occupation by B. against A., it was held that A. was not precluded from disputing B.'s title, for that B. could not derive a valid title from the churchwardens. Phillips v. Pearce, 5 B. & C. 433.
An estoppel must be mutual; therefore if the landlord is not estopped, neither is the tenant. Bac. Abr. Leases (O.); Brereton v. Evans, Cro. Eliz, 700. Thus, where a husband and wife joined in leasing, by deed, land to the defendant, of which the husband alone was seised, it was held that, in an action of debt for rent, brought by the wife after her husband's death, the defendant was not estopped from showing that the plaintiff had no interest in the land, because the wife could not be estopped by the lease. id. So, where husband and wife demised land, the legal estate of which was in trustees for the wife, it was held that the husband could not, after his wife's death, distrain for the subsequent rent, as there was no estoppel. Howe v. Scarrot, 4 H. & N. 723; 28 L. J., Ex. 325.
In general, the title of the plaintiff is established by the production of a writing or agreement, which is proved in the usual manner, &c.; but if there be no actual lease or agreement, the plaintiff's title may be established by evidence of the defendant having paid rent to him, or submitted to a distress by him. Panton v. Jones, 3 Camp. 372. Notice to produce the receipts for rent, or the notice of distress, if any, should in such cases be given by the plaintiff. Where the defendant occupied the plaintiff's land under the
powers of a local act, and, upon a dispute respecting the right of the plaintiff to demand rent, a decree for payment was made in an amicable suit in Chancery, in which the defendant acquiesced for several years, it was held that he could not afterwards dispute his liability to rent in an action for use and occupation. Allason v. Stark, 9 Ad. & E. 253. Payment of an annual sum by defendant and his predecessors, occupiers, to the overseers of the parish for a century, as for “rent of common lands," is evidence of a rent-service, and not a rent-charge, especially if the defendant have his title deeds in court and decline to produce them. Hardon v. Hesketh, 4 H. & N. 175; 28 L. J., Ex. 137. See, however, Doe d. Whittick v. Johnson, Gow, 173, in which Holroyd, J., held that such payment is evidence only of a right to the rents, and not to the land, and that the presumption is that they were quit rents; this case was not cited in Hardon v. Hesketh, supra. If it appear from the plaintiff's witnesses that the defendant holds under a written agreement not produced, or which, when produced, cannot be read for want of a stamp, the plaintiff will not be allowed to give oral evidence of the holding. Brewer v. Palmer, 3 Esp. 213; Ramsbottom v. Mortley, 2 M. & S. 445. But, if the plaintiff have made out a primâ facie case, and the defendant seek to show that he holds under a written agreement, he must produce the instrument duly stamped, or his objection is untenable. Fielder v. Ray, 6 Bing. 332; R. v. Padstow, 4 B. & Ad. 208. A parol demise for all the residue of the lessor's term, it being the intention of the parties to create the relation of landlord and tenant, will operate as a lease, so as to enable the lessor to maintain an action for use and occupation, or debt for rent. Poulteney v. Holmes, 1 Str. 405; Baker v. Gostling, 1 N. C. 19; Pollock v. Stacy, 9 Q. B. 1033. Such, demise, however, operates as an assignment. Beardman v. Wilson, L. R., 4 C. P. 57. Where A. lets land to B. as tenant from year to year, and B. by deed assigns his interest in the land to C., and A. assigns his reversion to D., who does not accept C. as his tenant, D. cannot sue B. for the rent, there being no privity of estate or contract between them. Allcock v. Moorhouse, 9 Q. B. D. 366, C. A. One joint tenant, or tenant in common, can demise his interest at a rent, to another joint tenant, or tenant in common. Cowper v. Fletcher, 6 B. & S. 464 ; 34 L. J., Q. B. 187; Leigh v. Dickeson, 12 Q. B. D. 194; 15 Q. B. D. 60, C. A.
A married woman may, under the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), s. 1 (2), sue alone, for the use and occupation of land to the rents of which she is, under sects. 1 (1), 2, 5 of that Act, separately entitled. See post, Part III., Actions by married women.
Where the estate of the lessor determined by his death or any other cause, before, or on the rent day, the tenant was not, at common law, liable to pay any rent for his occupation from the last rent day to the day of such cesser of his landlord's estate. This has been remedied by stat. 11 Geo. 2, c. 19, s. 15, extended by 4 & 5 Will. 4, c. 22, s. 1, in all cases where the lessor's estate ceases by his own death or that of another person, before or on the rent day; these sections enable the personal representatives of the lessor, or the lessor, as the case may be, to recover from the tenant a proportional part of such rent in respect of the time which elapsed since the last rent day. The Apportionment Act, 1870 (33 & 34 Vict. c. 35), seems not to affect the liability of the tenant; see sect. 4; notwithstanding the decision in Swansea Bunk v. Thomas, 4 Ex. D. 94.
The stat. 14 & 15 Vict. c. 25, s. 1, enacts that where a lease or tenancy of any farm or lands held by a tenant at rack rent determines by the death or cesser of the estate of any landlord, entitled for his life or for any other uncertain interest, instead of claims to emblements, the tenant shall hold the lands under the succeeding owner on the same terms and conditions as he would have held the same of the previous landlord, till the end of the current year of tenancy, and shall then quit without notice; the succeeding owner may recover and receive a proportional part of the rent reserved for the time between the cesser of the previous landlord's estate and the tenant's quitting. As the privilege given to the tenant by this section is expressly given in lieu of his right to emblements, the section only applies to those tenancies in which the right to emblements would arise. Haines v. Welch, L. R., 4 C. P. 91. It applies to the tenancy of a cottage on a close containing more than an acre of land, which was partly cultivated as a garden and partly sown with corn and planted with potatoes. S. C.
Defendant's occupation.] There must be an occupation or holding actual or constructive; therefore a tenant who has agreed to take premises, but has not entered, is not liable to an action for use and occupation. Edge v. Strafford, 1 C. & J. 391 ; Lowe v. Ross, 5 Exch. 553; Towne v. D' Heinrich, 13 C. B. 892; 22 L. J., C. P. 219.
But it is primâ facie sufficient for the plaintiff to prove that the defendant did occupy the premises; and the continuance of the occupation will be presumed till the contrary appears. Harland v. Bromley, 1 Stark. 455; Ward v. Mason, 9 Price, 291. Where there has been an actual demise, a constructive occupation of the premises by the defendant during the time
nted is sufficient; an occupation which he might have had, if he had not voluntarily abstained from it. Per Gibbs, C. J., Whitehead v. Clifford, 5 Taunt. 519; Pinero v. Judson, 6 Bing. 206; Atkins v. Humphrey, 2 C.B. 654, 659, per Cresswell, J. But there does not appear to be any authority for the proposition that use and occupation can, in the absence of an actual demise, be maintained on a constructive occupation after the tenant has in fact ceased to occupy, and has offered to surrender the premises to the landlord. As to what creates an actual demise, see Replevin–Tenancy of Plaintiff, post. Where there has been an actual demise to the defendant, to which he has assented, he is liable in debt for rent, even before entry. See Co. Litt. 270 a ; Bac. Abr. Leases (M.).
Where the defendant entered a house under an agreement to take it and pay a half-year's rent in advance, Lush, J., held that that sum was recoverable only on a special count on the agreement. Angell v. Randall, 16 L. T., N. S. 498. The assignee of the reversion cannot, as it seems, maintain this action for rent in part incurred before the assignment; for there was then no occupation of the plaintif's property by his permission, but debt for rent would lie. Mortimer v. Preedy, 3 M. &W.602. An adverse occupation by the defendant will not entitle the owner to sue in this form of action. T'ew v. Jones, 13 M. & W. 12. Indeed, the stat. 11 Geo. 2, c. 19, contemplates the relation of landlord and tenant. Hence, where a trespasser entered on land after a mortgage of it to the plaintiff, who had never taken possession nor got a judgment in ejectment, it was held that the latter could not recover rent in this form of action. Turner v. Cameron's Coal Co., 5 Exch. 932. But a tenancy at sufferance is enough to support this action; as where a lessee under a lease from the plaintiff continues to hold adversely to him, after the expiration of it, as tenant to a stranger whose title is not shown. Bayley v. Bradley, 5 C. B. 396 ; Hellier v. Sillcox, 19 L. J., Q. B. 295. If A. agrees to let lands to B., who permits C. to occupy them, B. may be sued by A. for use and occupation. Bull v. Sibbs, 8 T. R. 327; Conolly v. Baxter, 2 Stark. 525. So, if B. assign all his interest in the premises to D., A. may maintain an action for use and occupation against B.,
provided A. has never recognized D. as his tenant. Shine v. Dillon, I. R., 1 C. L. 277, Ex. After an agreement between the plaintiff and defendant for a lease, the receipt by the defendant of the rents and profits, or an attornment from an under-tenant, is proof of use and occupation by the defendant. Neal v. Swind, 2 C. & J. 377. If the premises are in possession of an under-tenant, the landlord may refuse to accept the possession, and hold the original lessee liable during such time as the under-tenant retains possession, for the lessor is entitled to receive the absolute possession at the end of the term. Harding v. Crethorn, 1 Esp. 57; Ibbs v. Richardson, 9 Ad. & E. 849; see Levy v. Lewis, 6 C. B., N. S. 766; 28 L. J., C. P. 304; 9 C. B., N. S. 872 ; 30 L. J., C. P. 141, Ex. Ch.; Henderson v. Squire, L. R., 4 Q. B. 170. But it may be proved that the lessor had accepted the undertenant as his tenant, as by his having accepted the key from the original lessee, while the under-tenant was in possession: by his acceptance of rent from him, or by some act tantamount to it. Harding v. Crethorn, supra, per Ld. Kenyon.
A tenant who has quitted in pursuance of an oral surrender to his landlord, without having given or received a notice to quit, remains liable; Mollett v. Brayne, 2 Camp. 104; Matthews v. Sawell, 8 Taunt. 270; or, after an insufficient notice to quit, although first acquiesced in by the landlord; Johnstone v. Hudlestone, 4 B. & C. 922; Bessell v. Landsberg, 7 Q. B. 638; even though the landlord, on the tenant's quitting, puts up a bill in the window for the purpose of getting another tenant for the premises. Red path v. Roberts, 3 Esp. 225; Johnstone v. Hudlestone, supra. But, not so, if the landlord have, with the assent of the tenant, accepted another person as tenant, and he have entered, for this operates as a surrender in law of the first tenant's term. Thomas v. Cook, 2 B. & A. 119; Nickells v. Atherstone, 10 Q. B. 944. And, the operation of such acceptance as a surrender applies even where there was a lease under seal; Davison v. Gent, 1 H. & N. 744; 26 L. J., Ex. 122; and possession of the premises by the new tenant, and the fact of a new lease having been granted and the old one delivered up and cancelled, is evidence of the assent of the first tenant. S. C.; Walker v. Richardson, 2 M. & W. 882. If the landlord have accepted the key of the premises, this in itself is a surrender, and the acceptance of another tenant is immaterial; Dodd v. Acklom, 6 M. & Gr. 672; so, if after refusal of the key which the tenant leaves behind, the landlord make use of it and enter the premises and puts up a board" to let.” Phené v. Popplewell, 12 C. B., N. S. 334; 31 L. J., Ü. P. 235; see Lyon v. Reed, 13 M. & W. 285, and the notes to Ds. of Kingston's case, 2 Smith's Lead. Cases, 9th ed. 917 et seq. * Anything which amounts to an agreement on the part of the tenant to abandon, and on the part of the landlord to resume, possession of the premises, amounts to a surrender by operation of law.' Phené v. Popplewell, per Erle, C. J., 12 C. B., N. S. 340 ; 31 L. J., C. P. 236. But, unless the landlord intends to resume possession, the fact that the key has been left with him, and he has tried to let the premises, does not constitute a surrender, and after he has let them there is no relation back beyond the time of letting. Oastler v. Henderson, 2 Q. B. D. 575. A., the tenant of a house, three cottages, and a stable and yard at an entire rent for a term of seven years, before the expiration of the term assigned all the premises to B. for the remainder of the term, the house and cottages being in the possession of under-tenants. The landlord accepted a sum of money as rent up to the day of the assignment, which was in the middle of a quarter. B. took possession of the stable and yard only. The occupiers of the cottages having left them after the assignment, and before the expiration of the term, the landlord relet them. A. paid no rent after the assignment, but the landlord received rent from the under-tenants. Before the expiration of the term the landlord advertised the whole of the premises to be let or sold. It was held that this was a surrender by operation of law of all the premises. Reeve v. Bird, 1 C. M. & R. 31; S. C., 4 Tyrw. 612. Where a tenant from year to year, at a rent payable half-yearly, quitted without giving notice to quit, and the landlord, before the expiration of the next half year, let the premises to another tenant; it was held that the landlord was not entitled to recover rent from the first tenant from the expiration of the current year when he quitted the premises to the time when the landlord relet the same to the second tenant. Hall v. Burgess, 5 B. & C. 332; and see Walls v. Atcheson, 3 Bing. 462. So, where rent is payable quarterly, if the tenant quits by consent in the middle of a quarter, the landlord cannot recover rent pro ratâ, either for the subsequent portion of the quarter or for that part of it during which the tenant occupied. Whitehead v. Clifford, 5 Taunt. 518; Grimman v. Legge, 8 B. & C. 324. Where a tenant, whose lease expired on Lady Day, paid a quarter's rent, after deducting a sum for repairs, on Midsummer Day, and was not afterwards seen on the premises, and a third person afterwards came into possession, and paid rent at irregular periods, a jury may presume that the landlord has accepted the latter as his tenant. Woodcock v. Nuth, 8 Bing. 170. Although the premises are burnt down and remain unoccupied, the tenant still continues liable in this action for the rent subsequently accruing; for the premises continue to be “held” by the defendant; Baker v. Holtpzaffell, 4 Taunt. 45; Izon v. Gorton, 5 N. C. 501; unless it be agreed that the liability shall cease after the fire; in which case the lessee will be liable in use and occupation, for a proportion of the rent during the time of actual occupation. Packer v. Gibbins, 1 Q. B. 421. And the fact of the premises having been insured, and the landlord having received the insurance money and not applied it to reinstating the premises, affords no equitable defence to the action. Lofft v. Dennis, 1 E. & E. 474; 28 L. J., Q. B. 168.
Under the old Bankrupt Acts it was held that an action for use and occupation lay against a lessee upon his agreement to pay rent during the tenancy, notwithstanding his bankruptcy and the occupation of the assignees during part of the time for which the rent accrued. Boot v. Wilson, 8 East, 311. But under the Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), ss. 43, 44, 54, 169, the bankrupts interest in land vests in the trustee on his appointment. Sect. 55 (1) provides that when any property acquired by the trustee consists of land of any tenure burdened with onerous covenants, the trustee, notwithstanding that he has endeavoured to sell or has taken possession of such property, or exercised any act of ownership in relation thereto, may, within three months of the first appointment of a trustee, or where the property shall not have come to the knowledge of the trustee within one month after such appointment, then within two months after he first became aware thereof, by writing under his hand, disclaim such property; (2) the disclaimer operates to determine, as from its date, the rights, interests, and liabilities of the bankrupt in or in respect of the property disclaimed, and to discharge the trustee from all liability in respect thereof, as from the date when the property vested in him, but does not, except so far as is necessary for this purpose, affect the rights or liabilities of any other person. By sect. 55 (3) and Bky. R., 1883, r. 232, the disclaimer of a lease without the leave of the court is void, except in the cases enumerated in that rule. Sect. 55 (4) imposes restrictions on the power of disclaimer. Sect. 55 is cited in extenso, and the cases thereon collected, post, Part III., sub tit. Actions against Trustees of Bankrupts. The above sections will set at rest most of the questions which arose under the former Acts, and which are discussed in the notes to Auriol v. Mills, 1 Smith's L. 6th ed.
Where a tenant, from year to year, assigned all his personal property to the defendant for the benefit of his creditors, and the defendant exe