[Kay, J.: Lord Coke's words only include permissive waste where there is an obligation to repair. He says in effect that where the grantor imposes the obligation to repair, it is waste to allow the property to go out of repair.]
Lord Coke's meaning is that the obligation is imposed by the statutes. In Harnett v. Maitland, 16 M. & W. 257, Parke, B., Ibid. 262, referred to the notes to Greene v. Cole as an authority that by the statute of Gloucester the action was given against a lessee for years. It is true that in Gibson v. Wells, 1 B. & P. N. R. 290, Sir James Mansfield, C. J., expressed in general language the opinion that at common law an action for permissive waste was not maintainable, but that was a case of tenancy at will, and has no application to tenancy for life or years. Herne v. Bembow, 4 Taunt. 764, and Jones v. Hill, 7 Ibid. 392, are also usually cited as authorities to the like purport, but those three cases were commented on and explained by Parke, B., in delivering the judgment of the court in Yellowly v. Gower, II Ex. 274, 294, where he observed that in the first two the court seemed to have contemplated the case only of a tenant at will, and that in the last no such proposition was stated as that a tenant for years was not liable for permissive waste; and he added: " We conceive that there is no doubt of the liability of tenants for terms of years, for they are clearly put on the same footing as tenants for life, both as to voluntary and permissive waste, by Lord Coke, 1 Inst. 53, Harnett v. Maitland; though the degree of repairs required for a tenant from year to year, by modern decisions, is much limited." Yellowly v. Gower, 11 Ex. 274. was decided expressly on the ground that a tenant for life is liable for permissive waste, and that there is no distinction in this respect between tenant for life and tenant for years.
[Kay, J., referred to Powys v. Blagrave, 4 D. M. & G. 448, and in particular to the statement of the Lord Chancellor, Ibid. 458, to the effect that in the case of a tenant for life even legal liability for permissive waste was very doubtful.]
That is a mere dictum, and his Lordship cites the very cases which are disapproved in Yellowly v. Gower. The recent case of Barnes v. Bowling, 44 L. T., N. S. 809, was decided on purely equitable grounds, having no reference to the right of a legal remainderman in fee to maintain an action for waste. Still more recently in
Davies v. Davies, 38 Ch. D. 499, Kekewich, J., has followed Yellowly v. Gower, and expressly held that a tenant for years is liable for permissive waste.
Kay, J. (Without calling upon counsel for the plaintiff): - I am much obliged to you, Mr. Druce, for your argument, to which I have listened with very considerable interest. The result appears to be this: Sir James Mansfield was clearly of opinion that an action for permissive waste would not lie even against a tenant for years. That is clearly shown in the case of Gibson v. Wells, 1 B. & P. N. R. 290, which was followed at later dates in Heme v. Bembow, 4 Taunt. 764, and Jones v. Hill, 7 Ibid. 392, and in the recent case of Barnes v. Dowling, in the Law Times reports; and when the point was brought before the Lord Chancellor (Lord Cranworth) in the case of Powys v. Blagrave, his Lordship, 4 D. M. & G. 458, said this: " Then it was argued, independently of the trust, that it is the duty of a tenant for life to repair - 'Equitas sequitur legem.' But even legal liability now is very doubtful." And he referred to Gibson v. Wells, 1 B. & P. N. R. 290, and Herne v. Bembow, 4 Taunt. 764. His Lordship there decided most certainly that in equity no interference whatever would be made on the ground of permissive waste by a tenant for life. Now, in that state of the authorities, this consideration is to be added. Since the statutes of Marlbridge and of Gloucester there must have been hundreds of thousands of tenants for life who have died leaving their estates in a condition of great dilapidation. Not once, so far as legal records go, have damages been recovered against the estate of a tenant for life on that ground. To ask me in that state of the authorities to hold that a tenant for life is liable for permissive waste to a remainderman is to my mind a proposition altogether startling. I should not think of coming to such a decision without direct authority upon the point. Such authority as there is seems to me to be against the contention, and in opposition to the positive decisions in Gibson v. Wells, Heme v. Bembow, and Jones v. Hill, 7 Taunt. 392, there are only to be found certain dicta of Baron Parke and the late Lord Justice Lush which seems to amount to this, that the words of the statutes of Marlbridge and Gloucester are sufficient to include the case of permissive waste, at any rate where there is an obligation on the person who has the particular estate not to permit waste, whether that obligation does or does not exist at the common law in the case of a tenant for life. But at the present day it would certainly require either an act of Parliament or a very deliberate decision of a court of great authority to establish the law that a tenant for life is liable to a remainderman in case he should have permitted the buildings on the land to fall into a state of dilapidation; I therefore think that this claim must be disallowed.
33 New Jersey Law, 284. - 1869.
Action on the case in the nature of waste to recover damages for permissive waste. Verdict for the plaintiff. A rule to show cause why a new trial should not be granted was allowed. The following reasons were assigned, for setting aside the verdict: 1. Because an action on the case will not lie against a tenant for years for permissive waste. 2. Because the law between the parties measures and limits the liability of the tenant in the matter of repairs.