February 11, 1899.
THE ESTATES GAZETTE
216
apparently treated the order as binding on the puisne incumbrances, but not on the first mortgagees. Section 70 cannot cover such cases as where the Courts sells property per incuriam.
Mr. Justice Romer observed that is was diffi-cut to get over the explicit language of section 70 and the decision of the Appeal Court in “Mostyn v. Mostyn.” The case was the most important which had come before the Court for some time, and he should certainly call the attention of his brother Judges to it. Unless the Judges should take some care with reference to conditions of sale, etc., on sales by order of the Court frauds must inevitably spring up. On the facts no question arose as to the parties being purchasers for value without notice. On the question under the statute he should reserve his judgment.
(Before Mr. Justice Stirling.)
February 4.
COMMON LAND : EIGHTS OP OWNERS OP MINERALS
HAYLES AND OTHERS v. PEASE AND PARTNERS, LIMITED.
This was a special case raising an important question as to the rights of owners of minerals lying under a common to use the surface of the common for the purpose of working the minerals. The plaintiffs were the owners of a piece of land allotted under the Enclosure Act, 4 George III., c. 45, to׳ one William Campbell in respect of an ancient freehold estate, the owners of which were entitled to a right of common over Crook and Billy Row-common, in the parish of Brancepeth, in the county of Durham. The defendants were lessees of the mines and minerals underlying the common, and entitled to exercise the rights conferred by the Act on one Farrer Wren, therein described as the owner of the soil and inheritance of the common, to whom ther* was directed to be awarded as compensation for his right and interest in the ,soil of the said common one full 16th part, quantity and quality considered, and to whom• an allotment was made accordingly. By an agreement of February 12, 1881, the plaintiffs leased the coal under their ancient freehold to the defendants, together with full power and authority to use the Surface of their allotment for winning, working or leading away the minerals leased ■or the minerals out of any other adjoining royalty. This agreement was, however, determined on May 13, 1896. The defendants, or their predecessors in title, had at different times sunk pits or shafts on the plaintiffs’ allotment, and had erected thereon engine houses, engines, shops, a reservoir, and other works for winning and working coal. Since May 13, 1896, the defendants had made arrangements to work coal underlying other parts of the common not being a' part of the plaintiffs’ allotment, and they claimed by virtue of the provisions of the Enclosure Act the right to go upon the surface of the said allotment at all times for all purposes incidental to the using of and to use the pits or shafts and works on the surface¡ of the said allotment to win, work and carry away coal and other minerals lying and being under and within ■the said allotment, and also lying and being under and within other parts of the common. The plaintiffs contended that the Enclosure Act did not give to the defendants the right to use the surface of the said allotment for any of the purposes aforesaid, and that the right of the defendants, if any, to use the surface of the said allotment for colliery purposes was limited to purposes connected with getting coals or other minerals lying under the said allotment, and not for the purpose of winning, working or carrying away coal or other minerals lying within or under land other than the said allotment. The defendants, on the other hand, contended that they were entitled under the Enclosure Act to use the surface of the said allotment for all purposes incidental ■to the mining of coal lying under any par,t of the common. The question mainly turned upon the construction of the 15th section of the Enclosure Act, which provided that nothing in the Act contained should prejudice, lessen or defect the right, title and interest of the said Farrer Wren of, in or to the royalties incident or belonging to the said common; but that the said Farrer Wren, his heirs and assigns, and all and any every person and persons claiming under or in trust for him or them as owner or owners of the royalties of such common, and all succeeding owners thereof for the time being, should and might at all times for ever thereafter hold and enjoy all rents, perquisites, profits, mines, quarries, waifs, estrays and other royalties and jurisdictions whatsoever to the owner of the royalties of the said common, incident, appendant and belonging or appertaining as could or might be claimed by him or them respectively as owner or owners of the soil and inheritance of the said common or otherwise in and upon the said common so to be enclosed as aforesaid, in as full, ample and beneficial manner to all intents and purposes as he or they could or might have held and enjoyed the same in case the Act had not been made. The 16th section provided that in case the said Farrer
and that Isaac Jones was one of the legatees named in the will and was indebted to Philip Jones in the sum of £350, and had agreed to assign to the plaintiff all his share, right, title, and interest under the said will, he, the said Isaac Jones, thereby assigned unto the said Mary Jones and the said Philip Jones, thereby confirmed all the share, right, title, and interest to which the said Isaac Jones in his right was then, or should, or might thereafter be entitled under the said will to Mary Jones absolutely. Subject to a question as to whether the words of the grant operated to pass more than a life interest to a plaintiff in the freeholds, the property included a reversion expectant on the death of a life tenant in a leasehold shop and two freehold cottages at Aberavon, near Swansea. On February 26, 1895, the defendant obtained judgment against the said Isaac Jones for £450 in an action in the Queen’s Bench Division of “ Barnett v. Jones,” and on March 14, 1895, by an order in this action, one receiver was appointed of Isaac Jones’s reversionary interest in the above-mentioned freehold and leasehold property. On July 10, 1895, a petition was presented on behalf of Barnett before Mr. Justice Chitty entituled in the matter of Isaac Jones and the Judgments Act, 1864, praying a sale of the interest of Isaac Jones in the property of which the receiver had been appointed. By an order made on this petition on July 24, 1895, accounts were ordered to be taken of what was due to the petitioner under the said judgment of February 26, 1895, of what interests of Isaac Jones had been delivered in equitable execution by the said appointment of a receiver, an inquiry whether there were any, and, if any, what liens, charges, or incumbrances on the interest in land of the said Isaac Jones, their amounts and priorities, and of those which were prior and which, subsequent to the said receivership order, and which, if any, created subsequent to such order, were before the registration of such order created in favour of a purchaser for value ; and it was ordered that Isaac Jones should pay what should be certified to be due within one month after the chief cleric’s certificate, and it was ordered that in default of the said Isaac Jones paying the amount eo certified that his said interests in land should be sold, with the approbation of the Judge, free from all liens, charges, or incumbrances, created subsequent to the said order of March 14, 1895, except any such created in favour of a purchaser for value before the registration of such order. On January 20, 1896, the chief clerk certified that £509 19s. was due, that the property consisted of the leasehold shop and freehold cottages above mentioned, and that there were no charges or incumbrances on Isaac Jones’s interest therein. Isaac having paid no part of his debt. Barnett subsequently obtained an order authorising him to bid for the property, which was put up for auction on December 16, 1896. Barnett was the highest bidder for £375, and by an order dated February 19, 1897, it was ordered that a person should be appointed to convey the said interest of Isaac Jones in the said houses to Barnett. The tenant for life died on March 16, 1897, and Barnett took possession, and the deeds relating to the property were subsequently handed over to him by the executors of the will of the said John Williams. Neither Barnett nor his solicitors had any notice or knowledge of the assignment to the plaintiff until a letter came from the plaintiff’s solicitor to Barnett’s solicitor on April 15, 1897, claiming that the plaintiff, Mary Jones, was entitled to the property under the said assignment of May 31, 1894. Section 70 of the Conveyancing and Law of Property Act, 1881 (sub-section 1), is as follows: —An order of the Court under any statutory or other jurisdiction shall not, as against a purchaser, be invalidated on the ground of want of jurisdiction or of want of any concurrence, consent, notice, or service, whether the purchaser has notice of any such want or not.
Mr. Neville, Q.C., Mr. W. F. Phillpotts, and Mr. R. B. Phillpotts, for the defendant, contended that the defendant was a purchaser for value without notice, and that section 70 of the Act operated to give the defendant a good title free from the claim of the plaintiff under the deed of May 31, 1894. (“Be Hall Dare,” L.R. 21, Oh. D., 41; “Mostyn v. Mostyn,” L.R., 1893, 3 Oh., 376.)
Mr. Farwell, Q.C., and Mr. Napier, for the plaintiff, submitted that the construction put on the statute by the defendant was far too wide. It was difficult to suppose that a section (section 70) in “an Act for simplifying and improving the practice of conveyancing, etc., and for amending the law of property,” and under a heading “ Court Procedure Orders,” was an enactment making every order of the Court absolutely unimpeachable. In “In re Hall Dare ” Lord Justice Lindley apparently thought that there was to be some limit to such extraordinary generality. [Mr. Justice Romer: I think he meant that if it could be shown that the order was one of the High Court there was an end of the matter.] The point in “ Mostyn v. Mostyn ” was what was the bargain between the parties and whether the sale was one free from in«umbrances. Moreover, the Court
which were then called 17 and 18, Esplanade. In 1876, he entered into an agreement with the defendants for converting the premises into a family hotel, and in 1877 he took a new lease of them for that purpose, by which lease the defendants demised, inter alia, all ways, lights, easements, and appurtenances belonging to the premises. In 1892 the defendants under statutory powers commenced a new harbour, and they had since then continuously proceeded with its construction, and the plaintiff alleged that in so doing they eaused a serious nuisance to him and damaged him in his business by interfering with the free access to the hotel, blocking the view from the windows, putting up a staging with a travelling crane and steam engine, from which some of the bed room windows were overlooked by workmen, making and storing concrete cement blocks, laying down rails on which locomotives were employed, and causing by their working dust, smoke, and noise, the ■working usually commencing at sunrise and continuing far into the night. The plaintiff complained that the defendants by these acts had committed a nuisance, violated their implied covenant for quiet enjoyment, and derogated from their grant to the plaintiff, and he claimed damages and an injunction, or alternatively damages in respect of the acts complained of and the threatened continuance thereof. The defendants relied mainly on the Acts of Parliament under which the works were being executed. By the Dover Harbour Act, 1891, they were authorised to make certain piers and works for the purpose of making a deep-water harbour. By section 11 they were authorised, within the limits of deviation shown on the deposited plans for the purposes of the works to be made under the statutory powers, to make, execute, maintain, enlarge, or alter temporarily or permanently, inter alia, such landing stages, wharves, sheds, graving docks, warehouses, cranes, lifts, roads, approaches, and other works and conveniences as they might think fit; and by section 21 they were vested with all such powers and rights over all piers and works and lands reclaimed under the Act as were provided in virtue of and for the purposes of the former Harbour Acts including 9 Geo. IV., c. xxxi., as extended by 24 and 25 Viet., c. xlvii. By these earlier Acts the defendants were empowered to make, erect, and maintain all such piers, jetties, or other works and conveniences^ as they should think fit and necessary for the improvement and maintenance of the harbour, not only within the same and upon the land adjoining thereto, but also upon the beach of the sea one mile to the east and one mile to the west of the mouth or entrance of the harbour. At the trial the jury returned a verdict for the plaintiff for £800 damages. After hearing further argument, Mr. Justice Wills apportioned these damages (the parties having agreed to leave the apportionment to him after his judgment upon the questions of law involved), and gave judgment for the plaintiff for £200 in respect of that part of the acts complained of which consisted in storing and unstoring cement in a cement shed at the back of the hotel, being of opinion that the defendants had been negligent in the way in which they did that part of the work; but, with regard to the rest of the acts complained of, he held that the defend ;Sits were protected by their statutory powers. The plaintiff appealed, and asked for judgment for the whole £800. The defendants gave notice of cross-appeal.
Mr. Dickens, Q.C., and Mr. F. M. Abrahams appeared for the plaintiff ; Mr. Lawson Walton, Q.C., and Mr. J. E. Bankes for the defendants.
Lord Justice A. L. Smith said that it was clear that the plaintiff had suffered serious damage owing to the execution of the works. His Lordship went through the law and facts of the case at length, and concluded by saying that as the parties had left the matter to this Court to decide, and as they had agreed that in regard to the amount the decision should be final, looking at all the facts the Court would increase the £200 to £350. There would be no costs of the appeal.
Lord Justice Chitty and Lord Justice Collins delivered judgment to the same effect.
HIGH COURT OF JUSTICE.
CHANCERY DIVISION.
February 2.
(Before Mr. Justice Romer.)
CONVEYANCING ACT, 1881: BONA FIDE PURCHASERS FOR VALUE.
JONES V BA.RVETT.
This was a case raising the question as to the extent of protection given to bona-fide purchasers for value by section 70 of the Conveyancing and Law of Property Act, 1881, when they have purchased under an order of the Court■. The facts, which were as to this question undisputed, were as follows : —On May 31, 1894, one Isaac Jones, being indebted to Philip J ones, the husband of the plaintiff, Mary Jones, executed a deed whereby, after reciting the will and death of an uncle, one John Williams,
!*gal ^vomb'mp.
SUPREME COURT OF JUDICATURE.
COURT OF APPEAL.
February 1.
(Before Lord Justice A. L. Smith, Lord Justice Chitty, and Lord Justice Collins.)
A QUESTION OF ESTOPPEL.
JUSTICE V. JAMES.
This was an appeal by the plaintiff from the judgment of Mr. Justice Ridley. The action was brought against the receiver and manager of the business of a limited company, appointed by the Chancery Division in a de benture holder’s action, to recover the rent of certain stables, or for use and occupation. By an indenture dated April 12, 1886, the plaintiff demised the stables to Charles Shurey for 13 years, and in April, 1892, Shurey assigned the lease to Purkess and Co., Limited. This last-named company had issued debentures, and on March 30, 1894, in a debenture holder’s action, the defendant was appointed by the Chancery Division receiver and manager of the business of the company. In August, 1894, the plaintiff wrote to the׳ company asking, for the half-year’s rent due at the previous midsummer, and the defendant replied by a letter written on the company’s notepaper and signed “ A. A. James, receiver and manager,” enclosing the rent. The plaintiff sent to the defendant a receipt, in which the words “ Received of A. A. James (Purkess and Co׳.)” occurred. The defendant having refused to pay the rent accruing due subsequently, this action was brought to recover it. The learned Judge held that the defendant was not liable and gave judgment for him. The plaintiff appealed.
Mr. Lush Wilson, Q.C1., and Mr. George Wallace, for the plaintiff, contended that the defendant by his conduct was estopped from denying that he was• the assignee of the lease. A. receiver and manager appointed by the Court had some kind of property in the assets of which he was put in possession. Payment of rent estopped the person paying from denying that he was tenant, except in two cases— namely, where he paid as agent for another person who was liable, or where he paid by mistake. T'he defendant in sending the rent ought to have made it plain that he did not intend to make himself liable as tenant, and ought not merely to have added the description “ receiver and manager ” to his signature. He referred to “ Burt v. Bull” (1895, 1 Q.B., 276).
Mr. Bosanquet, Q.C., and Mr. D. F. Pennant (Mr. R. B. D. Acland with them), for the defendant, were not called upon.
The Court dismissed the appeal.
Lord Justice A. L. Smith said that in his opinion the judgment of the learned Judge was right. It was said that the letter from the defendant enclosing the amount of the׳ half-year’s rent estopped him from denying that he was tenant for the remainder of the term. He could not agree with that contention. The receiver and manager, having funds in hand, paid the plaintiff a half-year’s rent. The plaintiff was not in any way induced by the letter enclosing the rent to think that the defendant was the tenant■, because in the receipt he wrote, after the name “ A. A. James,” the words “Purkess and Co.” in brackets. In a subsequent letter the defendant made it clear that he was not the tenant. There was, therefore, no estoppel. The case of “ Burt v. Bull,” relating to a contract by the receiver and manager for the purchase of goods, was quite a different case.
Lord Justice Chitty concurred. An order for the appointment of a receiver and manager vested no property in him. If he had to distrain upon a tenant lie must distrain in the name of the person in whom the right to distrain was. In the case of goods a person appointed by the Cburt receiver and manager on behalf of debenture holders, was an officer of the Court, and as such he would take possession of the goods. The debenture holders only had a charge upon the: goods, and it was by virtue of that charge that a receiver and manager took possession of the goods, and might sell them under the charge. If, however, a receiver and manager of a business ordered goods and did not take care to limit his personal liability, he might be personally liable. That was a very different case from the present. In his opinion there was no estoppel here so as to prevent the defendant from denying that lie was assignee of the lease.
Lord Justice Collins concurred.
February 3.
AC1ION FOR DAMAGES : INJURY TO HOTEL.
CESSFORD V. THE DOVER HARBOUR BOARD.
This was an appeal from the judgment of Mr. Justice Wills at the trial of the action with a jury. The plaintiff was the proprietor and tenant of the Esplanade Hotel at Dover, and the defendants were his landlords. Between the years 1865 and 1877 the plaintiff had conducted a private lodging-house on the premises,