MONTAGUE V MORRIS.

Waikato Times, Volume XXI, Issue 1732, 11 August 1883, Page 2

MONTAGUE V MORRIS.

The following is the full text of the judgment delivered by His Honor Mr Justice Gillies in the case Montague (respondent) v Morris (appellant) on Wednesday last :— This is an appeal by che defendant from' the decision of a Resident Magistrate, in an action for the tecovery of possession of land, under .sections 82 and 83 of the Resident Magistrate's Act, 1867, together with mesne profits. The essential facts, as set out in the case stated, are, these : On the 22th » of March, 18S2, one O'Brien, the?then owner of the property in question, /made an agreement in writing Avith "one Johns, ,™ as follows: — "Cambridge, March 25, J 1882.— 1 have this ' day 'sold half the stock in my store, Cambridge West, to Mr W. Johns, and received a deposit of £10 on account, the balance to be paid on i its value being ascertained, by a;bill at three months, bearing T. Wells' ..endorse- 4 ment, value to be Auckland invoice cost ; stock to be taken on Monday, the 27th instant— the remainder, viz., half grocery and half drapery,, I will remove. I further agree to lease the house and; acre to the said W. Johns for three years rent to be 10s per week for first year, 12s 6d per week for second year, and 15s per week third year, payable quarterly. Tenant authorised to improve - the property to the extent of £35, and deduct same from rent. The tenant to have the right to purchase the, said property, either dm ing the currency of or at the expiration of the leaso, for the sum of £240.' J. O'Bkies. Witness, T. H. W. Morris." Under this agreement Johns received possession, and gave over (how is not stated, but I must presume by a legal transfer, as that question is not raised in the case) his interest in the agreement and possession of the property to the defendant, the witness to the agreement now the appellant. The appellant thereon, and iv pursuance, of the agreement, expended £35 on the property. Subsequently OBrien conveyed to'the plaintiff, now respondent, , his interest m tlie property, but apparently 4 did not inform him of this agieement. Appellant, on being applied to, refused to show the agreement, merely asserting that he had a lease, whereupori'the|plaintiff brought his action, virtually in action of ejectment, founded on his legal title. It is clearfhat'prior to the passing j of the Law Amendment Act, 1882J the I agreement set out, not being a deed, would, by "virtue of the conveyancing ordinance,- be invalid, to create a tenancy for three years. But when a person is let into .possession under an agreement v for a lease, or under a void lease,' and pays part of the agreed rent, he thereby ' becomes tenant from year to year upon the terms of such intended'leaseso far as they are applicable to a yearly tenancy. (Cole on Ejectment, 443, arid cases there cited ; Woodfall. Sth edition, 145 ; Tress v. Savage, 4, E and B 36 ; Hartin'vrSimith, L R 9, ex. 50.) And actual payment of rent is essential, though that perhaps is the clearest proof, anything equivalent to payment of rent being sufficient. Per L. Ch. Cramworth in Vincent v. Godson, 24,,L.J.N.5. 121. In Cox , v. , Bent, 7, L.R.U.P. 68, norent was paid, but only an account stated between the parties charging rent, thus evidencing the establishment of the relationship of landlord and tenant between the parties. In the present case the defendant was let into possession .under 'the agreement;?, aifd had actually expended in pursuance of the agreement £35, which 1 he was entitled by the agreement to treat as rent,, and this was, I think, equivalent to the actual payment of so much -rent ,in advance. The defendant, therefore, although riot a lessee for three years by virtue of the agreement, would be'a tenarit ir6nf year ] •year entitled to the usual notice to" quit, / and not liable to ejectment without such \ nbtice. The argument that even a'yearly tenancy must in New Zealand be created by deed is conclusively dealt jrith by Young v. McKinnon,, Mac. Rep|j|N.Z., 164. But the question" which has given me most difficulty in t the, effect of the Law Amendment Acii, 1882, which provides {section 11) that in, all, masters "in which there is. any conflict or variance between the rules of equity and the rules of the common law, with, inference to the same matter, ithe i ru,les of equity shall prevail." Now, the rule of equity-is that what? is agreeiKto^be done shall be .looked; upon asjf done : that a lease agreed to be given shall be looked upon as if, executed. On the other-hand, the,rules.of the common law; recognise no estate in land to have passed until all necessary , instruments I b&ve.lbeen duly executed. And. it occured to me that the;, application of .the., defofrine <6t the Law Amendment Act. to the present case " would be making 'the rules of- equity over-ride jnpfc pnly /the ijules of the com- -- ' mon law, but' also to over-ride, the stake „* law — the , conveyancing .ordinance. But, * £find,that ,the language of affenon Jl of • the Law' Amendment 'JLop-ja identical' with that used in section 2& of the Eng"> « J lish Judicature Act.' % And in thejeaae in * ->«? 'the'EKgfish 1 'Court of ' Appeal of' Walsh vl '& Lqnsdale, 52'yL. J t . Ch, %, whjch,was an s "**% action; forsdamajges for* aninwoper. dio- y ?** tress] * and praying" for ''specific?' perfprm-^jf s ance-of' an.agfeementifof'a'l^V'dfa'niUl^l^ forßieV^en #ears 1! (whibhTfeVe'tf.'-if ifc^con-^il M t tajxnc(i i% '\voros or*i)i*6 j s6nu ci6Miis6 wonici pyf--^^^}

.1883.

session has ibeen- taken. Now-a-days, since the Judicature Act, the possession is uudcr the agreement. There are no - longer two estatep-^bjle at law, a tenancy from_year to-year^ and the other in equity itlider tjhe agreement. There is only one ©duvtr'and r the equitable law prevails ; tjie tenant holds now under the agree- ' ment, to grant the lease on the same terms the I^lBB r,had_ bpen .granted. That , being so, tlfejeuartt cannot complain of the exercise by the landlord of the same right as the landlord would have had uUdfef the lease. On the other hand, ho ia protected as much ns if the lea^-e had been granted. The landlord cannot eject him in virtue of his legal estate, unless he could do so under the lease." The report of this case in LR 21, Ch. l)iv. !), gives the language of the Master of the Rolls thus : "A tenant holding under an agreement, fora lcase^of which specific performance would be "Hecreud, stands in the same position as to liability as if the lease had been executed, lie is not, since the Judicature Act, a tenant from year to year ; he holds under the agreement, and every branch of the Court must now give him the same rights. . . The question is one of some nicety. There is an agreement for a lease under which possession has been given. Now since the Judicature Act the possession is held under Hie agreement. There are not two estates as there were formerly, one estate at common law by reason of the payment of the rent fiom year to year anil an estate in equity under the agreement. There is only one Court, and the equity rules prevail in it. The tenant holds under an agreement for a lease ; he holds therefore under the same terms in equity an if a lease had b"en granted, it being a case in which both putics admit that relief is capable of being given by specific performance. That being so, lie cannot complain of the exercise by the landlord of the same lights as the landlord would have had if a lease had been granted. On the other hand, he is protected in the same way as if a lease had been granted ; he cannot be turned out by si\ month's notice, as a tenant from year to year. He has a right to say " 1 have a lease in equity, and you can only re-enter if I have committed such a breach of covenant as would, if a lease had been granted, have entitled you to re-enter according to the terms ot a proper proviso for re-entry.' That being so, it appeal-, to me that being <v lessee in equity he cannot complain of the p\ercise of the light of distiess, merely because the actual patchtnent has not been signed and sealed." The dicta of so great a lawyer as the late Master of the Rolls, especially as they aie concurred in by L. J. J. Cotton and Lindley, -eem to me to be of great weight, and to have an impoitant beating on thepicscnt case. If the law so laid down be coriect, as it appeals to me to be, then, notwithslandthe Conveyancing Oulinance, the jigiceWent for a lease enforceable in equity followed by possession under it, and payment, or equivalent to payment of rent gives to the paities all the lights which an actual lease by deed would give them. In the present case all these conditions concur, and theicfoic the landloid (the plaintifl) was not entitled to eject the defendant, in virtue of Ins legal estate. I must theicfoic thus a:ib\\ci tlm Mi fit question put by tlih case : That the agi cement of the "iotli Maich. 1882, is good in law (the rules of equity being now law ), and gives the defendant, through Johns, a right to untlistuibed possession ot the propel ly for tluee yeais fiom thu date ot the document. As the second question put by the case, regarding the edect of .stamping the doeuni'-nt, was not relied on or aigued on either s>tde. I need not notice it. Judgment will thcicforo be for the appellant, | with costs,

"I'd have you to know," exclaimed Biown, ''tluit I'xeamind of my own." "I'm sine it; docs 3 on much ciedifc to acknowledge it," rcm.ukcd Fogg. '"It would have been cieul to accuse anyone else with being the owner of it " Tije Asim:s or Con mishs.— lt .appears that a Pittsbuig glass in;inuf,ietiuer lias taken the contract for making an urn of plated-nhiss for the ashes ot Coluinbu«. He was huiicd at the Convent of St Ftaneis, in Seville, but only tempoianly, and after several funerals, with an intei \ al of some years between each, bis remains were conveyed across tlie Atlintic and deposited in American soil Finally his bones were removed to the Cathediat of St Domingo. The cu&todian of the remains sent a communication to a Pittsbuig linn requesting .1 design for an urn, with th<i estimate ot tho cost. The latter stipulated th.it the urn must be large enough to hold the casket w ith the lid open, so that the uisciipticm may, bo visible ; tho nrn must bo omiiniontu] yet nothiiiic in the design must inteif* ie with a clear view of the casket, w hile it Was particularly stipulated that the urn, when completed, must be giaeeful and attractive hi appeal ance. The casket is Dot large. The space within the irtn must be 17 94 inches in length, 8 19 in width, and 13 5 inches m depth ; and within these, dimensions the casket and the ilu-t can be held. These conditions have been accepted, aud the work is beiut' i)io -ceded with. A Baciikloii"-! Hoj'-rKi:i:i'iv<s. — " Bachcloiising," b.iys one who has some expciiencc, "'usually degenerates into saidinesand whisky.' 1 Usually, it may be, but not necessarily, for a bachelor in ' Hawke's Bay has proved the contiary. Some time ago he wiote to the Jlcmfd complaining that he could not keep his house clean, and cook and do all the domestic work. Since then he appears to have studied the matter, he lias " lead the subject up," and nowwiitcs in the following amusing and not unin&tructive style to tho If d aid :—" Tlicie is no difficulty in the matter, except so far as theie exists no treatise, and everyone has absolutely to discover <ib uiitto the whole science and practice of domestic economy. I would suggest that a clever woman •with sufficient scientific knowledge might secuic an income for life by writing a really practical book on the whole art to house management. For instauce I have only just discovered that the way to clean pots is not to dirty them. To boil a piece of salt beef, you gradually raise it to 212deg in .your billy, and then transfer to a clean saucepan and keep near the hre at about ISOdeg. The billy is then used for potatoes. In this way you have only one vessel to clean, and that a light tin one. Similar precautions should be used to pi event fate with a high melting point being placed on plates. In plain words use butter for frying rather than suet. If you mv.st use suet, as for potato chips, drain your chips on waste paper in the oven. I have in my employ « boy eight years old, who comes every - ■ evening to tea with me, so that he may up while I do a smoke and read my By carefully putting * Him tip to a variety of little dodges I have got him to observe scrupulous elean1 liness in his person ;he never breaks a nythjug': and as for the dirt and grease observable in ordinary kitchens, they are unknown to him. Yet we have gqod dinners. A salmi of pigeon with potato chips, cayenne and lemon, followed by an omelette souflloe made (of course) with cream, is not to be despised after a day spent in the recesses of the Ruahine ranges. I have no patience with the hundreds of men I have met who have a wife and family and yet oan't mend a clock, or do painting and papering or glazing ; they complain that they are poor on £120 a year, and it seems to me it is their own fault. Worse still is the state of a young wife who cannot teach her scullery-maid how to work without making herself and her surroundings dirty and malodorous. It is childish to sit still and say "Be clean, be clean.." The difficulty of doing a lot o| greasy, dirty jobs without making a mess is very great indeed.. J am only maintaining ihat a woman of fair education and pergeyefeqCift 9» n surmount it,