SUPREME COURT.-IN BANCO.

New Zealand Times, Volume XXXIII, Issue 5288, 7 March 1878, Page 3

SUPREME COURT.-IN BANCO.

The following is the fall reporl of the jo Jb jnent.of the Supreme Court in the cob ) n Ht-iiare Tomoana and others v. Ormond, deli vend on the 27th ultimo : HJtNARE TOMOANA V. ORMOND.

lu this case the plaintiffs are seven aboriginal natives. They seek to recover from the defendant, as their tenant, seven-tenths of an animal rent of £i/0 16s. Bd., accruing during a period of eight years ending 3rd■ Pebruary, 1377. 'Hie declaration set out a deed of leas** expressed to be made between six of the plaintiffs, together with four others, namely, Arihi to Naha, Matiaha, Apera Pahoro, and Tareha Moananni, of the one part,—(these persons the deed says being a hereinafter called parties of the first part”)—and the defendant of th« other part. The seventh pldnt ff is Rata te Houi, the legal representative of Matiaha, who is dead. The d* ed purports to be a joint demise by the parties of the fir-*t part to the de- ‘ "fendant of 1*231 acres of laud, part of the Heretaunga Block, for the te r m of nineteen years, at the yearly rent of £9O 16-*. Bd. for the,first eight years, and an increased rent for the residue of the terra. The reservation is general, the reddendum naming no person t > whom the rent is t«> be payable. The deed * contains a covenant by thedefendant expressed to be made “ with the said parties hereto of the first part, their heirs and assigns,” for p iy- . - ment of the rent,' together with other provisions to which it is unnecessary to refer. The declaration avers that by this deed of lease “the.said plaintiffs, except the said Rata te Honi, together with one - Arihi te Nairn, Ap*ra Pahoro, and Tareha Moahanui, leased to the defendant the land therein named” There is no averment that Matiaha executed, and in * fact it seems he did not, as his name does not appear among the signatures to the lease, which are set out. The declaration goes on to - aver that the defendant entered and has con-, tinned in ‘ occupation ; that. Arihi te Naha, at the time of the making of the deed, was a minor, and also a married woman, being the -- •wife of one HirakM, and th t her interest in the rent is one-tenth ; that Tareha Moanauui, sold and conveyed his interest in the said laud to the defendant on or about the 20th July, 1869—such interest being one tenth part of the ,• whole ; that Matiaha died in January, 1870, and the plaintiff. Rata te Honi, was duly appointed by an order of the Native Lauds Court as his successor to and in the laud leased ; that Pahoro died In 1874, and no sue ce-sor has been appointed to him, and his in- . terest in the land is one-tenth ; and that the defendant has never paid the rent, or any,part ‘ thereof, to the plaintiffs. The defendant has demurred, the first and principal ground being that the declaration discloses only a joint cause of action in thf plaintiffs, and others not joined as plaintiffs. The. action may be considered as brought either upon the covenant to pay rent, or upon the reservation. In either view it is of importance to ascertain in the first place whether the lessors are to be taken, on the,' statements of the declaration, to be joint tenants or tenants in common. - On the face of the* lease the lessors appear to. be joint tenants, since the demise is joint, and the tenants* covenants are with all lessors. • But there is no estoppel created where an actual estate passes; Co. Litt. 45a; Cuthbertspu v. Irving, 28 L.J., Ex.. 306; therefore, if it appear on the face of the declaration^-that the lessors were actually tenants in common, the lease must be taken %, to enure accordingly. Considering the allegations respecting the shares of Matiaha and Pahoro, which are inconsistent with the existence of the Jus accrescendiy we think that the’ declaration must be taken to show a tenancy in common. It is, indeed, pretty ..plain that, the declaration is fr tined on the assumption of a tenancy in common; otherwise the pleader wonld not have joined the representative of, Matiaha, but would have .claimed his share of the rent, and also that of Pahoro as belonging to the six plaintiffs by survivorship such’ rent at least as has accrued since the respec tive deaths of those -two natives. But if the’ lessors were tenants in common, they must : necessarily be taken to demise as such. : We, Shall presently have to refer more to the authorities on this point. Next, what is the effect of the non-execution of the lease by Matiaha, and of the infancy and coverture of Arihi. It is clear on the face of the declaration that there has been no * demise of the share of either of these natives,

and therefore no valid reservation of rent in - respect of those shares. However, there is ; authority for saying that the lease may nevertheless enure as a good lea-e for eight-tenths of the land, subject to a reservation of eighttenths of the rent mentioned in tha reddendum. (2 8011. Abr , 453, 1.35; Cartwright’s case, cited by the Chief Justice in Putt v. Nosworthy, 1 Ventris, 135). and such we shall take it to be. It is clear also that a covenant . to pay rent is not obligatory if the lessor doe* ‘ not execute. Pitman v. Woodbury, 3 Exeh. Bep. 4. In regard to the purchase by the defendant of Tareha’s share, we see no reason to dodbt that an apportionment of the rent ■would take place in consequence. We have not found or been referred to any direct authority on this point. But Litt § 222 shows that rent-service is apportionahle on the purchase by the reversioner of parcel of theland outof which ■ the rent is issuing, according to the value of the land. A fortiori must the rent be apportionable where the purchase is of an undivided part of the whole of the lands demised ; for in such case no valuation is required, and though neither Littleton nor Coke puts the case of a . purchase by the tenant, it is within the reason of the rule stated by Littleton in s ction 222. There is nothing in the objection that by his purchase of Tareha’s share the defendant became co-tenant in common with the other lessees. It is settled that a tenant in common, or even a joint tenant, may be lessee of the undivided shares of his companions; Co. Litt, 186 a; Gowper v. Fletcher, 34 L.J.Q 8., 187. . We shall therefore assume that the purchase of Tareha’s one-tenth left payable seven-tenths of the specified rent. Of these seven-tenths six were payable in respect of the shares of the six plaintiffs who were lessors, and the remaining one-tenth was payable, not in respect of the share of Matiaha, who did not execute, but in respect of the share of Pahoro. Thus we reach the specific question which appears to us to be raised by the demurrer, viz., whether the declaration is demurrable by reason of the non joinder of Pahoro’s representati e. The misjoinder of Matiaha is plainly within the 42nd section of the Supreme Court Practice and Procedure Amendment Act, 1866. The non-joinder of any person in re- . spectof Pahoro’s share is not met in the same way, either by that Act, or by the rules of procedure. Kale No. 118 provides for the nonjoinder of a plaintiff, but only in the case where this appears at the trial—that is where it appears on the evidence only, when it is to be amendable as a variance. Where on the face of the declaration the joinder of some other person as plaintiff appears to be requisite, we are of opinion that the case falls witoic the rule of the common law upon the subject, and that the defect is a ground of demurrer. Kccleston v. Clipaharn, 1 Win. Saunders, 153, note (1); Cabell v, Vaughan, id. 290, note ;4). Hole No. 124, providing that “ all objections on the ground of mis-joiuder or non-joinder of parties shall be made by notice in writing as aforesaid and not otherwise,” may at first sight seem to include even cases where the defect appears upon the face of the declaration. But that rule must be construed in connection with the series of rules relating to the joinder of parties ; when it becomes apparent, especially if the rules are collated with the corresponding sections of the English statute from which they are taken, that nothing more is intended than to substitute a roti eo fora plea in abatement. This is confirmed by the concluding words of rule 124 itself—“lf such notice have not been given, the defendant shall either plead in bar of the action or demur.” These words show that it was n it meant to supersede demurrer - where applicable. Practically demurrers to;a declaration in our procedure are little different from notices requiring the plaintiff to amend. To say that the declaration discloses only a joint cause of action, is to put the objection in a somewhat equivocal form. If we could consider that the cause of action was, in the proper sense of the word, a joint one—that is to say, if we could regard the covenantees as joint ■ tenants of a covenant in gross, the declaration might bo unobjectionable, always sup-

| .•using’ tiiat the naie b y Tareba. muroly extinguished lai.-* interest in the covenant, and di.. not wholly destroy the right of action thereon; which perhaps is hardly, consistent with ; its being a covenant in gross. Upon such a view of the case the cause ofaction would to the surviving except Tareha, and the six plaintiffs the levse would now be entitled by survivorship to the whole rent—that is, to eight-tenths of he sum mentioned in the .reddendum, less the one-tenth extinguished by Tareha’ssale to the defendant. We have, as is very clearly p it iu the judgment of the Court of Common I'leas, in Thompson v. Hakevvill (35 hJ, C.P. 18) to choose between four possible views of the. nature of then ht of action, It may be (1) a strictly joint right, as just explained ; or (2) a separate right in each covenantee to sue for his own share of rent, running with his own share in the reversion; or (3) a joint right in all. to sue for the whole rent running with what has been called , “ the entire rerer.no V’; or (4) a joiut and several right in a:l ami each running as to each share of rant. with each separate reversion, and also as to, the whole rent with the entire.reversion. Unless it can be.shown that the right is of the kind first mentioned, the plaintiffs must fail, for they are suing jointly for the whole rent — i.e., for, the whole as reduced by Tareba’s sale—and do not represent the entire reversion. .. . It appears to us perfectly clear upon principle, whatever difficulty may he thought to exist upon the authorities, that the c mse of action is not of the first kind., That would be t» regard the covenant to pay rent as a covenant in gross, b which construction the right to sue on it would be detached f mu t-e reversion, and from the rights of distress arid reentry; and every intendment ghoul I, we conceive, be madi against such a construction as contrary both to the, probable intent of the parlies, arid to the well-estabUshe i presumption of Uw, tiiat the rent is incident to the rever-sibn-r-for, as Lord Hale says: “ Thelaw uses all industry imaginable to conform the reservation to the estate; and the covenant ii Incident to the rent.” Sicheverel v. Frogate, 1 Veiitris 161, S.G, U. Saunders, 367 a. It,istrue that Littelton says (sec 316) tnat “if two tenants in common make a lease of

tbeir tenement* to another for term of year*, rendering to them a certain rent yearly (luring the term, if the rent be behind, &c., - the tenants in common sha'l have one action of debt against the lessee, and not divers actions, for that the action, is in the personalty.” From this it seems to have been inferred in the case of Wallace,v. Maclaren, 1 Man. and Ry. 510, that the right of action would in the case supposed by Uittelton vest in the surviving tenant in common. But Littelton says nothing of the kind, nor is it to be inferred from what he says. It is quite consistent with' what he says that the heir of one of the les-ors should succeed to the rights of his ancestor. To hold otherwise implies that on a demise, purporting to be a joint demise by tenants in common, they become joint tenants quoad the rent, which is an impossible contention. True also it is that the demise, being by persons who are actually tenants in common, ap pears on the face of it to be a joint demise ; but this nowise affects the right to sue for the rent, whether on the covenants or on the reservation. A demise by tenants in common, though joint in its terms, operates as a separate demise by each tenant in common of his own share, and a confirmation by each of the demise made by hi* companions. Bac. Abr. .eases (0); Co. I.itt. 45a; Thompson -v Hakewill, 35 L.J.C.P. 18. Speaking of such a lease, Lord Coke says: “Albeit, the reservation of rents severable be in joint words, yet in respect of the several reversions the law maketh thereof a severance.” Co. Litt. 197 a. By “rents severable” he means something devisable as a money rent, in opposition to the reservation of an entire thing as a horse or a hawk ; and though ha is speaking of a lease for lives, that makes no difference for the present purpose. So absolute is the principle that it is repeatedly laid down that tenants in common cannot make a joint lease ; Heatherly v. Weston, 2 Wils. 232 ; Doe dem Poole v. 'Brrington, 3 L.J. (n a.), K.B. 215. Nor dv.es it make any difference that the nature of the estates of the lessors does not appear on the face of the lease. There is no estoppel created by such a demise, for an interest passes and the reservation enures according to the true estates of the lessors. This is shown by the above cited authorities, ami very clearly by Trepots’ case, 6 Rep. 14b There A, tenant for life, and B, remainder man in fee, joined in a lease, by deed indented, which it is evident did not disclose the nature of their respective interests, and was an instrument capable of creating an estoppel; yet on its being found by verdict that the one lessor was tenant for life, and the other re-mainder-man in fee, it was held that there was no estoppel, and that the deed, though purporting to be a joint demise, was not such, but enured as the lease of A during his life, and after the deith of A as the lease of B. From the case finally put by Popham, C.J., it is manifest that the rent on such a lease would follow the estates, so that the tenant for life would take the whole during his life. Several modern cases have been decided in entire accordance with the principles we have stated. In Beer v. Beer, 21 Law Journal, C P. 124, the Court had before it what purported to be a joint demise by two tenants in common. Mr. Justice Williams said: “ We are not estopped from looking beyond the instrument in order to ascertain the relation of the parties to it, when considering what is the consequence of the death of one of the lessors. . . . . This, therefore, being in point of fact a lease of land by two tenants in common, with a reddendum of rent, generally, on the death of Thomas Beer, the reversion was split and a share of it descended to his heir, who became entitled to the rent.” In the case of Thompson versus Hakewill, already cited, there was a lease by tenants in common whereby they demised according to their several estates ; but apparently the lease did not disclose the nature, of their estates, and the Court speaks of the demise as purporting to be a joint one. The lease contained a covenant to r pair, entered into by the tenant with the lessors and their respective heirs and assigns. The representatives of the surviving tenant in common sued upon this covenant, but it was held that the covenant was indivisible and ran with the entire x-oversion, and that the owners of the share of the deceased tenant in common ought to have joined as plaintiffs. It is to be observed that on the part of the plaintiffs it was contended that the covenant ran with their share of the reversion, and by no means that the entii'e right of action vested in themselves as representing the surviving covenantees. In the earlier case of Foley v. Addenbrooke, 12 Law Journal, Q.B , 163, there had been a similar decision. In that case Mary Whitby, one of the original covenantees, had survived her co-tenant in common, and was still living ; and the action was brought by the representatives of the deceased tenant in common. It was held that Mary Whitby should have joined in the action. But it was neither argued by counsel nor held by the Court that the entire right of action vested in Mary Whitby. Contrasted with these cases is that of Bradburno v. Botfield, 14 M. and W., 559, where it was held that/ the right of action vested solely in the surviving covenantee. In this case the covenant sued on was entered into with the lessors and with four other persons, who had equitable interests, but were at law to be considered as strangers to the reversion. The covenant therefore was in gross, and could not run either with the entire reversion or with the several reversions. That this was the ratio decidendi appears ; from the remarks of Baron Parke during the first argument, as reported in 14 Meeson and Welsby, at pages's64 and 565. It is the result of the cases of Foley v. Addenbrooko and Thompson v. Hakewell, that upon what purports to be a joint demise made by tenants in common, the right to sue on a covenant to repair with the lessors does .not survive, but devolves in part bn the heirs of a deceased lessor. Notwithstanding, the joint terins of the demise, the covenant runs with the true reversion. Pari ratione it should be tho.same with a covenant to pay rent reserved upon such a demise. Whether in the case of rent the covenant inns with' the entire reversion wo need not consider. There is, notwithstanding what Littleton says in section 316, some authority that tenants

in common may either* joiri ; or sever in debt or covenant for rent. (See Midgley y Lovelace, Carthew, 2S9t; Martin y. Crompe, 1 L >rd Raymond, 340.) - But as already observed this will, not help the plaintiffs, who must, .to succeed, make out their title to sue for the whole - rent, . All must join, or each must sue separately. Thoro is no;other alternative. We should have thought it unnecessary to. reason this matter at so great; length, but for the case of Wallace v. Maclaren, already adverted to (1 Man. and Ry. 516). This case was not cited on* the argument. It there appears to have been -decided that upon a demise by tenants in' common, the survivor may sue iu covenant for the whole rent accruing due after the death of his corripanion, although reservation was tc the lessors according to their respective interests. The reasons given,, viz., that the demise was a joint one, and that -the;action for rent by tenants in common is a joint action (for which Litt., section 3 1 6, is cited), are, vre venture to think, on the grounds already stated, insufficient arid mistaken. The case has been rarely cited, arid, 1 so far as we know, never followed. As the decision appears to ns contrary to principle, and opposed to the general current of authority, ancient and modern, we feel Justified in disregarding!!;. It is proper, however, to- notice that there are certain dicta, to be found in the class of cases to which we have been , referring, which may at first sight seem to warrant the decision in Wallace r. Maclaren. The most pointed reference to the subject. is found in what fell from Baron Parke in Wooton v. Sfceffenoni, 12 M. and VV.129. That was an action on a covenant to repair contained in a lease by tenants in common, which ou the face of it was a joint 'demise. .In the course of the , argument ••his’ Lordship said Again, this

{< a demise of two 1 undivided ; interests, - of the parties are tenants in, common, and is a joint covenant with both ; ! will that run with the reversion ? Tt does nob appear ori the face of the lease th it they have separate interests, otherwise the covenant might be construed to he a se 'rirkte covenant with each in respect of his separate interest. Therefore this is a joint cm tract with two ; am 1 though their estates are separate, we caririot look out of the lease for that fact;” Perhaps by these expressions the learned Judge meant only to suggest that such a covenant would not, run with the separate reversions in each share so as to create two distinct rights of action. If his Lordship really intended to deny that the covenant would run, with the entire revers : ou, the dictum is contrary to the case of Thompson v. Hakewill, and also to hat of Foley v. Addenbrooko. Such a covenant may well be joint in the sense that all the reversioners join in one suit, yet not joint in the sense that the right of action vests in the surviving covenantee. Then as to what is said by the learned baron (and the same doctrine appears in some other modern cases), respecting the inability of the Court to look put of the lease in order to ascertain the real interest of the lessors, this seems directly contrary to Treports* case, arid to the judgment of Mr.: Justice. Williams in Beer v. Beer. However thismay be (and it is a serious thing to contest , the authority even of an obiter dictum by Barori Parke), the doctrine has never been applied to the reservation of rent, which, it is beyond doubt, iu such a case, must enure according to the true estates of the lessors (Whitlock’s case, 8 Rep., 71a) ; nor! can it be supposed that, the covenant for payment of rent, if entered into with the persons legally entitled du reversion, and with them only, would not run with the reversion so long as any right of action exists upon it. It is not allowable to'adopt, a construction which would’detach the right to the rent from the remedy for its recovery, nor possible that any remedy should exist apart from the right. The result is that the plaintiffs are suing for the whole rent reserved cm the lease, less Tareha’s share, that Is seven-tenths of £9O 16s 8d per annum, whi'st they do nob show a title to m re than six-tenths, and the defendant is justified in his objection that all the necessary plaintiffs have not been joined. Posdbly, as we have already said, the six plaintiffs may be entitled to sue separately each for his own tenth part ; on that we give ho opinion ; but they are not, in onr judgment, en'itled to club together six several actions each for oue-tenth. They may choose, perhaps, between a joint action for the whole seven-tenths, and separate actions for each tenth. There is no mid lie course.

The plaintiffs, it is evident, never meant to sue for Pahoro’s share of the rent. They demanded seven-tenths, conceiving that in respect of Matiaha’s share one-tenth was due It is plain that this was a mistake. Had we been of opinion that they had been entitled to sue. for Pahoro’s share it would, however, have supported the declaration. But for the reasons above given we think they are not so entitled, and that the demurrer must be allowed.