This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Remarks on Maguire v.
2 B. & B. 538, 548 ; and see Blake-ney v. Bagott, (1829) 3 Bl. N. S. at pp. 248, 257.
(g) Sug. 14th ed. 752.
(A) L. & G. temp. S. 215, 216 ; Wood v. Marquis of Londonderry, (1847) 10 Beav. 465 ; 16 L. J. Ch. 460.
(i) Muskerry v. Chinnery, (1835) L. & G. temp. S. 185 ; 7 C. & F. 1; 1 H. L. C. 576.
(k) L. & G. temp. S. 219. See, as to the confirmation of voidable leases, the Leases Acts, 1849 and 1850 ; Hallett to Martin, (1883) 24 Ch. D. 624 ; 52 L. J. Ch. 804 ; Gas Light Co. v. Touse, (1887) 35 Ch. D. 519.
539 ; 56 L. J. Ch. 889 ; Sutherland (Dowager Duchess of) v. Sutherland (Duke of), 1893, 3 Ch. 169, 194; 62 L. J. Ch. 946, as to the scope of the Statute.
(/) L. & G. temp. P. 196.
(m) "I apprehend that this Court can never enter into the question whether the covenant 'which binds the assets of the executors and trustees of W. P. is or is not an equivalent for the original covenant by W. P.," per V.-C. Shadwell, (1848) 16 Si. 320 ; and see Ridguay v. Gray, (1849) 1 M. & G. 109 ; Fare-brother v. Gibson, (1857) 1 D. & J. 602.
But it seems clear, on principle, that if a vendor possess any such right, the substituted security for the rent and covenants should be given to the purchaser before the commencement of litigation against the tenants; and should be binding whatever may be its result: for, " the very litigation might unsettle and ruin the tenant and after all prove unsuccessful" (p).
"Where the consent of a person is essential to the validity of a lease agreed to be granted, and he himself purchases the inheritance with full notice, yet he will not be bound by it " (q) : but where land subject to a lease of a way-leave at a reserved rent determinable by the lessee, was sold apart from the rent, and the purchaser of the land agreed with the lessee to determine the lease, and entered into a different one, in order to defeat the right of the purchaser of the rent, the latter was held entitled to have it made good out of the new contract (r). So, a purchaser buying a lease, with notice of a charge upon it, cannot in Equity, as against the incumbrancer, merge the lease in the reversion (s).
Purchaser, when able to avoid lease.
Where a person, having mortgaged in fee, demised the property without the concurrence of the mortgagee, it was
Purchaser of estate in mortgage, held that a purchaser of the fee-simple, who by one deed took a conveyance of the legal estate from the mortgagee, and of the equity of redemption from the representative of the mortgagor, was not estopped at Law, though he received rent from the tenant; but might eject him after the expiration of the usual notice to quit (t) : he would, however, have been estopped, if the mortgagor had got in the legal estate prior to the conveyance, and the want of title had not appeared on the face of the lease (w). And, in a later case, where a mortgagor in possession granted a lease, which did not disclose the fact of the mortgage, or that the legal estate was outstanding in a trustee for the mortgagor; and subsequently, by apt words of conveyance, granted the reversion by a deed which showed the want of legal title, it was held that the assignee had the reversion by estoppel, and could sue the lessee on covenants running with the land (a?) ; and, conversely, the assignee of the equity of redemption is liable to the lessee on the lessor's covenants (y). It was treated by the Court as well established, that where a lessor without any legal estate or title, demises to another, the parties themselves are estopped from disputing the validity of the lease on that ground; and it is immaterial that it appears on the face of the deed that the lessor has only an equitable title (z). If the lessor subsequently acquires a title, the lease and reversion then take effect in interest, and not by estoppel; and an action will lie, either way, for breach of the covenants in the lease. And the Court also laid down the doctrine that the assignee of a lessor, who has no estate in the land, has the reversion by estoppel as against the lessee (a).
(n) See Maguire v. Armstrong, (1814) 2 B. & B. 538, 548.
(o) Sheehy v. Muskerry, (1837) 7 C. &F. 1.
(p) L. & G. temp. S. 218.
(q) Sug. 11th ed. 751. citing
Lufkin v. Nunn, (1805) 11 Ves. 170.
(r) Wood v. Marquis of Londonderry, (1847) 10 Beav. 465 ; 16 L. J. Ch. 460.
(s) Haig v. Homan, (1830) 4 Bl. N. S. 380; But/edge v. It., (1828) 2 ib. 352.
When able to dispute voidable leases.
Assignee of reversion on voidable lease entitled by-estoppel.
On a demise of an estate in mortgage, the lessees' covenants are usually entered into with the mortgagees, in order that they may run with the reversion at law : and where a leasing power is expressly reserved to the mortgagor, it is generally made a condition of its exercise, that the appointee shall covenant with the mortgagees by name, and that the right of re-entry shall be limited to them. But it seems the sounder view that, where the lease operates under a power, the benefit of the covenants devolves with the legal reversion, whether the reversioners at Law be named as covenantees or not (b). In cases coming within the Conveyancing Act, 1881 (c), it is now beyond question that the benefit of the covenants does devolve with the reversion both legal and equitable (d).
Where a leasing power is reserved to the mortgagor.
(t) Doe v. Thompson, (1847) 9 Q. B. 1037.
(u) See Right v. Buehnell, (1831) 2 B. & Ad. 278 ; 9 L. J. (O. S.) K. B. 304 ; Cuthbertson v. Irving, (1859) 4 H. & N. 742 ; 6 ib. 135 ; 28 L. J. Ex. 306 ; 29 ib. 485 ; Onward Bldg. Soc. v. Smithson, 1893, 1 Oh. 1; 62
L. J. Ch. 138.
(x) Cuthbertson v. Irving, sup.
(y) Hartcup v. Bell, (1883) C. & E. 19.
(z) Morion v. Woods, (1869) L. R. 4 Q. B. 293 ; 3S L. J. Q. B. 81.
(a) See cases cited in Cuthbertson v. Irving, sup.