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.
(a) Gokuldoss v. Rambnx, (1884) 11 Ind. Ap. 126. And see Re Cork Harbour Bocks Co., (1885) 17 L. R. Ir. 515.
(b) Cracknall v. Janson, (1877) 6
Ch. D. 735; 46 L. J. Ch. 652.
(c) Bell v. Sunderland Bldg. Soc., (1883) 24 Ch. D. 618; 53 L. J. Ch. 509.
(d) Otter v. lord Vaux, (1856) 6 D. M. & G. 638 ; 26 L. J. Ch. 129 ; see Platt v. Mendel, (1884) 27 Ch. D. 246, 251.
(e) Lockhart v. Hardy, (1846) 9 Beav. 349; 15 L. J. Ch. 347.
(f) Coote on Mortgages, 7th ed. 890, n. (z).
(g) Haynes v. H., (1857) 3 Jur. N. S. 504 ; Seton, 6th ed. 1997.
A person who, having contracted with a mortgagee for the purchase of the property under his power of sale, entered into a subsequent agreement with the mortgagor to allow him to redeem, and then took a conveyance of the property, has been held bound by such agreement (h).
Purchaser from mortgagee bound by his agreement with mortgagor.
Where a judgment creditor, having become tenant by elegit, buys part of the lands extended, this will discharge the residue of the lands, and satisfy the judgment (i). So, in the case of a rent-charge, the purchase of part of the land by the grantee discharges the residue; but it is otherwise in the case of a rent-service (k).
Purchase of part of land by judgment creditor; owner of rent-charge; of rent-service.
Where several persons were seised of a manor as tenants in common in fee, and one of them purchased copyholds of the manor, and was admitted thereto, with the concurrence of the other lords, it was held that his copyhold interest in the lands was, to the extent of his undivided interest in the manor, extinguished or merged in the freehold (/).
Purchase of copyholds by one of several lords of a manor.
The conveyance puts an end to a parol licence from the vendor to a stranger, to enjoy an easement over the estate ; and if he afterwards enter on the land, his ignorance of the sale is no defence to an action of trespass at the suit of the purchaser (m) ; and though the licensee may have incurred expense upon the faith of the licence, this does not destroy its revocable character (n).
Conveyance determines parol licence.
(h) Orme v. Wright, (1839) 3 Jur. 19, 972.
(i) Hoss v. Tope, (1550) Plow. 72 ; Shep. T. 366 ; 3 Bac. Ab. Execution, B. 370; Handcock v. II., (1850) 1 Ir. Ch. R. 467; Hele v. Lord Bexley, (1853) 17 Beav. 11 ; 20 Beav. 127; 22 L. J. Ch. 1007.
(k) Co. Litt. 147 b, 148 a.
(/) Cattley v. Arnold, (1858) 4 K. & J. 595; see judgment and cases cited.
(m) Wallisv. Harrison, (1838) 4 M. & W. 538 ; and see Wood v. Leadbitter, (1845) 13 M. & W. 838 ; 14 L. J. Ex. 161 ; Coleman v. Foster, (1856) 1 H. & N. 37 ; and see Frogley v. Lord Lovelace, (1859) John. 333, 339; Taplin v. Florence, (1851) 10 C. B. 744; 20 L. J. C. P. 137.
(n) Adams v. Andrews, (1850) 15 Q. B. 284 ; 20 L. J. Q. B. 33 ; as to the licensee being entitled to reasonable notice of the revocation of the licence, see Cornish v. Stubbs, (1870) L. R. 5 C. P. 334 ; 39 L. J. C. P. 202 ; Mellor v. Watkins, (1874) L. R. 9 Q. B. 400; Aldin v. Latimer, 1894, 2 Ch. 437; 63 L. J. Ch. 601.
A rent-charge may be divided without the consent of the owner of the lands charged; and it would appear that, if conveyed to several purchasers, each may distrain upon the tenant before attornment (o) ; but if the rent-charge is severed there can be no distress for arrears (p).
Purchaser of part of rent-charge may distrain.
Formerly a release of any part of lands charged with a rent-charge necessarily operated as a release of the rent-charge on the whole of the lands charged (q). "Various ingenious contrivances were adopted by conveyancers to evade this rule (r), until it was abolished by the Law of Property Amendment Act, 1859 (s), which provides that the release from a rent-charge of part of the hereditaments charged therewith shall not extinguish the whole rent-charge, but shall operate only to bar the right to recover any part of the rent-charge out of the hereditaments released, without prejudice, nevertheless, to the rights of all parties interested in the hereditaments remaining unreleased, and not concurring in or confirming the release. The effect of the latter part of this section has been held to be neither, on the one hand, to extinguish the whole rent-charge, nor, on the other hand, to make the whole rent-charge payable out of the unreleased portion of the lands ; but to make the unreleased portion of the lands chargeable with such part of the whole rent-charge as is proportionate to its value (t). Where the owner of the land out of which the rent-charge issues is evicted from part of the land by title paramount only an apportioned part of the rent-charge is payable out of the remainder of the land according to its value (u).
Effect now of release of part of lands from rent-charge.
Upon a question of boundaries between purchasers of adjoining lots who have obtained their conveyances, the advertisement of sale under which they bought may, under special circumstances, be received as evidence of reputation (x).
Advertisement of sale evidence of reputation as to boundaries. Purchaser, when liable for nuisance.
(0) Rivis v. Watson, (1839) 5 M. & W. 255; and see 4 & 5 Anne, c. 3 (Ruff. 4 Anne, c. 16), s. 9.
(p) Stately v. Allcock, (1851) 16 Q. B. 636; 20 L. J. Q. B. 320.
(q) Co. Litt. 147 b.
(r) Shep. T. 345.
(s) S. 10.
(t) Booth v. Smith, (1884) 14 Q. B. D. 318 ; 54 L. J. Q. B. 119 ; see also Pertwee v. Townsend, 1896, 2 Q. B. 129; 65 L. J. Q. B. 659 ; Carson R. P. Stats, p. 528.
(u) Hartley v. Haddocks, 1899, 2 Ch. 199 ; 68 L. J. Ch. 496.
In Rex v. Redly (y), Littledale, J., laid it down that if a man purchases premises with a nuisance upon them, though there be a demise for a term at the time of the purchase, so that he has no opportunity of removing the nuisance, yet, by purchasing the reversion, he makes himself liable for the nuisance. But if, after the reversion is sold, the nuisance is erected by the occupier, the reversioner incurs no liability. If, however, there were only a tenancy from year to year, or any short period, and the landlord chose to renew the tenancy after the tenant had erected the nuisance, that would make the landlord liable. He is not to let the land with a nuisance upon it. But in one case (s) the Court of Common Pleas held that though a man may be liable for demising premises when the nuisance exists, or for reletting them after their user has created a nuisance, or for not doing that which he had undertaken to do, and which would have prevented the nuisance, yet he is not responsible for the acts of his tenant in creating a nuisance by the manner in which he uses the premises, they being such as may or may not become a nuisance (a).
(z) Murley v. M'Dermott, (1838) 3 N. & P. 356, 360.
(y) (1834) 1 A. & E., at p. 827; 3 L. J. N. S. M. C. 119 ; and see Rosewell v. Prior, (1701) 2 Salk. 460 ; Woodfall, Landlord and Tenant, 17th ed. 794 ct seq.
(z) Rich v. Basterficld, (1847) 4 C. B. 783, 805 ; 16 L. J. C. P. 273, 279.
(a) As to what is a nuisance, see Walter v. Selfe, (1851) 4 De G. & S. 315, 322, and the definition there given: Sollau v. De Held, (1851) 2 Si. N. S. 133; and see St. Helen's Company v. Tipping, (1865) 11 H. L. C. 642; Crump v. Lambert, (1867) 3 Eq. 409; Jenkins v. Jackson, (1888) 40 Ch. D. 71 ; 58 L. J. Ch. 124 ; Woody. Cooper, 1894, 3 Ch. 671; 63
L. J. Ch. 845; Sanders-Clark v. Grosvenor Mansions Co., 1900, 2 Ch. 373 ; 69 L. J. Ch. 579 ; Att.-Gen.v. Cole, 1901, 1 Ch. 205 ; 70 L. J. Ch. 148 ; and see Harrison v. Good, (1871) 11 Eq. 338 ; 40 L. J. Ch. 294, where the establishment of a national school was held not to be a nuisance within the meaning of the ordinary restrictive covenant ; but ef. Tod-Heatley v. Benham, (1888) 40 Ch. D. 80; 58 L. J. Ch. 83 ; Wanton v. Coppard, 1899, 1 Ch. 92 ; 68 L. J. Ch. 8. Noise, noxious vapour and smoke, though not injurious to health, have been held to be a nuisance to an adjoining owner ; see Inchbald v. Robinson, (1869) 4 Ch. 388, and cases there cited ; and see Kerr, Inj. 4th ed. Chap. VI.
A lessee, though he may have sold and assigned away the term, continues liable for the performance of the covenants as well as for the payment of the rent (b) during the continuance of the term; but a person who claims merely as assignee, as there is no privity of contract between him and the reversioner, is liable only for such breaches of covenant and such rent as occur or accrue due during his individual ownership ; and for these, he may be sued at law even after having assigned over (c) ; but, of course, he remains liable under such covenants for indemnity, etc. as he may have entered into with the party from whom he himself purchased. And each successive assignee of a lease is under an implied obligation to indemnify the original lessee against all breaches committed during the continuance of his own interest; and this implied contract is not negatived by an express covenant to indemnify the immediate assignor (d) ; this does not, however, apply to a sub-lessee or a mortgage by sub-demise of an assignee (e).
As to liability of leaseholder for rent and covenants after sale.
(b) As to the effect on the liability for rent of a surrender of a portion of the premises by the assignee of the lessee, see Baynton v. Morgan, (1888) 22 Q. B. D. 74 ; 58 L. J. Q. B. 139.
(c) See Harley v. King, (1835) 2 C. M. & R. 18 ; Pitcher v. Tovey, (1692) 1 Salk. 81 ; 2 Platt, 417, 418 ; but see Fagg v. Dobie, (1838) 3 Y. &
C. 96, 103 ; Moule v. Garrett, (1870) L. R. 5 Ex. 132; (1872) 7 ib. 101 ; 39 L. J. Ex. 69 ; 41 ib. 62.
(d) Moule v. Garrett, slip.
(e) Bonner v. Tottenham, &e. Bldg. Soc., 1899, 1 Q. B. 161 ; 68 L. J. Q. B. 114; distinguishing Moule v. Garrett, sup. ; see also Johns v. Pink, 1900, 1 Ch. 296 ; 69 L. J. Ch. 98.