Baber v. Harris, 9 Ad. & E. 532; and the other cases cited in the passage in Mayne on On the demurrer to the 2nd plea.-If the plea means that there was no entry, it is immaterial, for actual entry is not a condition precedent to the right to sue on a covenant for quiet enjoyment. If it means legal possession of an interesse termini, then the plea is good, but disproved by the facts, Took v. Glasscock, 1 Wms. Saunders, 250, g, (n. 1). Also as to the 4th plea, to constitute a breach of a covenant for quiet enjoyment, actual eviction is un necessary. During the argument, there were also cited, Flureau v. Thornhill, 2 Sir W. Blackstone, 1078. Bovill, Q.C., and Garth, in support of rule, contended, that the measure of damages was the same as in the case of a contract for the sale of land which goes off for defect of title. They cited, Sikes v. Wild, 4 B. & S. 421; 32 L. J. Q. B. ERLE, C.J. In my opinion this rule must be discharged. This action was brought by the plaintiff and defendant for a breach of contract, and the covenant on which the plaintiff relies is a covenant for quiet enjoyment of the premises for twenty-one years, without the lawful let, suit, trouble, denial, interruption, or disturbance of or by the lessor, or any person claiming under him. Of this covenant there was a complete breach when Vickers, who with a good title claimed under the lessor, claimed and demanded the said premises from the plaintiff, and threatened to oust him therefrom, whereby the plaintiff could not quietly enjoy the demised premises. The claim and breach were proved. The deed containing the covenant was duly executed and proved at the trial. The second plea, pleaded by the defendant, was to the effect that the plaintiff had never had possession under the lease. Now the lease was granted in 1860 of a term to commence at Christmas, 1864, and the plaintiff, under a prior lease, had possession down to Christmas, 1864. Therefore the lease was a reversionary lease, and, until entry, merely an interesse termini, and the plaintiff never did have, in one sense of coporeal possession, possession under the The fourth plea alleges that the said F. Vickers did not claim or demand the said premises from the plaintiff, nor threaten to oust him from the possession or enjoyment thereof as alleged. Now, on the facts, it is clear that Vickers had a title, and had a right to say that the lease was a nullity, and that Vickers did say so, and did claim the premises, and that the plaintiff acknowledged Vickers's right, and did lose the interesse termini. The verdict, therefore, on the fourth plea should stand for the plaintiff. Then comes the main issue: the defendant paid 4177. into Court, and the question arises, what is the amount of damages that the plaintiff is entitled to recover? It is contended by the defendant, that the covenant should be treated like a contract of sale, subject to the rule in actions by vendee, where the sale goes off by defect of title, as to which the rule of law is, that the vendor is bound to pay back the sum received and the expenses of the vendee, but that the vendes can recover nothing further, and cannot recover the value of the premises. I am of opinion that this It is a known contention cannot be maintained. rule of law, upon several decided cases, that in the case of a contract of sale of land going off for defect in title, that nothing is recoverable beyond the money paid, and the expenses. This is a known rule of law, and it is not for the Judges who have to administer established rules of law, to be bound to give reasons showing that that ought to be the law. There are several decided cases upon it, and if it were necessary to go into the question, the rule is justified by the convenience of mankind, but the rule is confined to contracts of sale of land; and a line must be drawn between a covenant in a lease, and a conveyance of an estate. In the case where there is a lease of land in possession, and the lessee under the lease enters, and is afterwards ousted by any one claiming under the lessor, supposing there is a covenant for quiet enjoyment, it is perfectly clear that he is entitled to the value of the term he has lost. In Williams v. Burrell it was held, that where there was a covenant in a lease for quiet enjoyment, and there had been entry, and afterwards the lease turning out void, the lessee was turned out by the lessor's successor, that the lessee might recover against the executors of the lessor the value of the term. Williams v. Burrell is the only decided case on this point that has been adduced before us in argument, and it is contended, that, as in the present case, there is only a reversionary lease, a mere interesse termini, that the party does not stand in the position of a lessee in possession, but of a vendee under a contract of sale. I am of opinion, however, that this distinction cannot be maintained. The granting of the reversionary lease conveyed an interesse termini to the party to whom the conveyance was made. The interest was vested in him as a matter of right, and was conveyed to him by a legal document containing the covenant sued upon. It was assignable, and bore a value in the market. It is, therefore, clear to my mind, that there is a perfect analogy with a document conveying a present term under which the lessee has entered; and wherever that is the case, Williams v. Burrell decides that the ordinary rule, that a party who makes a contract and breaks it, must pay the damages proximately arising from the breach. This rule seems to me to apply just as much in the present case, as it does in the case of an existing term. The American authorities cited by the defendant's counsel, are of a neutral quality, and do not sustain the defendant's contention that the mere restoration of the price paid and the expenses, are all the damages that can be recovered. There are just as many Judges on the other side who decide by a different rule. Mayne expressly limits his statement to cases where nothing passed under the instrument containing the covenant, Sedgwick on Damages contains a statement, that in many of the Courts in America the rule is as contended for by the defendant, yet on the whole the impression on the writer's mind is against there being such a rule. There is no direct authority against the judgment I am giving, and it is supported by the almost universal rule, that the party who makes his contract and breaks it, must pay for the damages proximately arising from the breach. In my opinion, the plaintiff is entitled to the value of the term and expenses. At the trial the jury gave the value of the term and expenses as damages, and we think that some reductions in this amount ought to be made. Mr. Garth's argument was convincing, that nothing ought to be added to the value of the term as for a compulsory sale. Now it is clear, that the jury found the value of the term by the 67. per cent. tables, and added 107. per cent. as for a compulsory sale. This is an incontestable fact, and if this is so, we cannot say that the jury were right, and plaintiff must lose that 1377. Then as to the 657. for expenses. It is agreed, that 257. should come off for counsel and surveyor's fees; that leaves 407. for the expenses of the new lease. The expenses of the old one were 177. Mr. Garth has convinced me that the plaintiff is not entitled to the expenses of both leases. I am not clear of which lease he is entitled to have the expenses. I am inclined to think of the new lease; therefore, so that he will have the 407. for the new lease, minus the 177. paid into Court for the old lease, that is, 237. The BYLES, J.-I am of the same opinion. The main question in this case is, as to how the damages for a breach of a covenant for quiet enjoyment are to be computed. It is plain that in an ordinary contract for the sale of land, silent as to title, the law implies a warranty of title; but in the case of the sale of land this may often operate as a hardship. Take, for instance, the case of a sale of lands, four or five years ago, say in Northamptonshire; it turns out that there is no title, the land has greatly increased in value, and compensation is claimed at the rate of 10007. per acre for that is the value of the land you sold me, says the vendee; I claim to be put, not as if there had been no contract, but as if the conveyance had been valid. This would be a great hardship, and the rule in such cases is now firmly established. sum paid, and the expenses, are recoverable, and nothing more. This is an anomalous rule; in all other cases a man has a right to be put in the same position as he would have been if the contract had been performed. It is attempted to apply this anomaly to the present case-to apply this rule, not to the implied contract which the law raises in the case of an ordinary sale of land, but to a case where there is an express covenant running with the land, and going to the end of the term. I think this anomalous rule inapplicable here. There is no authority except Williams v. Burrell, but in that case the eminent Chief Justice said that the plaintiff was entitled to the value of the term, and treated it as being too clear for argument; and the defendant's counsel, Wilde and Channell, did not dispute the point. Therefore the English authorities seem clear, and I agree with my Lord that the American authorities do not apply. The only question, therefore, is, does the fact of the interest in this case being a mere interesse termini take it out of the ordinary rule by which the lessor is bound, the lessee having entered into actual possession. I conceive that an interesse termini is a valuable interest assignable at law. It bears a marketable value. I see no substantial difference between a reversionary lease and a lease in reversion. Both may have to wait. An interesse termini falls within the common rule, in the case of a breach of contract, just as does a term under which the lessee has entered. There is a point on which possibly the plaintiff might be entitled to recover, that is, upon the doctrine laid down in Hopkins v. Grazebrook, but the doctrine does not apply here. Hopkins v. Grazebrook is to the effect that if a man knows that he has no title, the ordinary rule applies, even in the case of a sale of lands. I may make two observations on Hopkins v. Graze brook. In the first place, it is spoken of with some degree of dissatisfaction by Lord St. Leonards; and, secondly, if it be law, it may possibly only apply to cases of fraud, omnia præsumuntur contra spoliatorem. Upon the other branches of the case I entirely agree with my Lord. KEATING, J.-I am of the same opinion. The main question in this case is one of great importance, never having been expressly decided. The nearest decided case is Williams v. Burrell. There is, however, this distinction, that, in that case, there was actual entry on the premises; whereas, in the present case, the interest, of which the plaintiff has been deprived, was a mere interesse termini. An interesse termini, however, is a well-defined interest: it was defined in the note to Tooke v. Glasscock, being described in pleading as an interest of which a party becomes possessed by virtue of the conveyance to him, and which is assignable. An interest which is assignable, is very different from a mere contract of sale not carried into execution. This establishes a distinct line, upon which we can act in this case. There is no distinction, in my opinion, between an interesse termini and the case where there has been one day's possession: and, of course, the length of possession can make no difference. I rest my judgment on this ground only. I may say, as to my remarks during the argument on Hopkins v. Grazebrook, that I do not decide by it. That case, as was pointed out by my Brother Byles, has been remarked upon with dissatisfaction by a very great authority; and also, upon consideration, it seems to me, that the facts here do not raise the principle upon which, I think, originally, the case of Hopkins v. Grazebrook must have been decidednamely, a suppression or misleading, amounting to something like legal, if not moral, fraud. Upon these grounds, I entirely agree with the rest of the Court. I also agree as to the reductions. MONTAGUE SMITH, J.-I agree with the rest of the Court, upon all the points. It is not intended by this decision to throw the slightest doubt on Flureau v. Thornhill, and all those cases which followed it, to the effect that the vendee, where the contract goes off for want of title, is not entitled to recover more than what he has paid, and his expenses; but they have no weight in the present case. Parke, B., in Robinson v. Harman, speaking of Flureau v. Thornhill, says, that "that case qualified the rule of Common Law. It was there held, that contracts for the sale of real estate are merely on condition that the vendor has a good title so that, when a person contracts to sell real property, there is an implied understanding that, : if he fail to make a good title, the only damages recoverable are the expenses which the vendee may be put to in investigating the title"; but here the conveyance was not on the condition that the vendor had a good title, but the conveyance actually took place: the lease was made, and passed the estate, as far as the lessor had right and title. There is nothing more to be done by the lessor. The lessee might, at any time, by entering, have turned his interesse termini into an estate. In contracts for the sale of real property, the Courts have defined what the contract is, and what is the consequence of a breach of it; but here we are not dealing merely with the grant of an interest, but with an express covenant that the plaintiff should peaceably and quietly enjoy the demised premises, without let, suit, trouble, denial, interruption, molestation, or hindrance from the lessor, or any claiming by or under him. Now in the former case there is merely an executory contract to which the Courts have annexed certain implied conditions, but here where the contract is fully executed and an express covenant, the case is very different, and when a covenant of this description is broken the covenantee is entitled to full compensation for the loss he thereby sustains. It is admitted that if the lessor had lived till the 5th of December that this case would have been precisely the same as Williams v. Burrell, in which it was held that the value of the term was recoverable. It has been said that the consequences would be serious if we came to the decision the Court has arrived at; but covenants for quiet enjoyment are limited to acts which parties are able to guard against-viz., to the acts of the lessor and those claiming under him. Here is an express covenant that the lessee shall enjoy without let or molestation from the lessor or those claiming under him, and the lessee is molested by some one claiming under the lessor, and is entitled to compensation. I agree with the rest of the Court that this case does not fall within Hopkins v. Grazebrook. As to the other points, it is clear that the jury at the trial first found the saleable value of the term, and then added 101. per cent. as for a compulsory sale. It does not seem to me that this case can be likened to a compulsory sale. It is not a wilful act on the part of the defendant, he is in equal misfortune with the plaintiff. In the case of a railway company they come in for their own interests, and voluntarily interfere to take possession of the property. I also agree with the rest of the Court that the plaintiff is entitled to judgment on the demurrer to the 2nd plea. Rule discharged, judgment for the plaintif on the demurrer. Lords Justices. 3, 4 JULY, 1865. EQUITY. Injunction- Mining Lease-Forfeiture-Substituted Performance-Acquiescence. A mining company, admitting the forfeiture of their lease at Law, sought relief in Equity, on the ground of accidental stoppage of works, substituted performance of certain covenants, and implied acquiescence on the part of the lessor's agent. There appearing reasonable grounds for the exercise of equitable jurisdiction, an interim injunction was granted, the plaintiffs undertaking to abide by any order the Court might make at the hearing, and to allow judgment to go at Law. In April, 1864, the North Stafford Steel, Iron, and Coal Company took possession of an estate, known as the Rushton Grange Estate, in the county of Stafford, held under a mining lease (which had been granted by Lord Camoys to Martin, and assigned by him to the company) for a term of forty-four years from the 25th of March, 1864. Early in October the company sank shafts, and made preparations for erecting a powerful engine at the Upper Grange, and incurred considerable expenditure in carrying on works there, in substitution for the works at the Lower Grange, which had been suspended, and were in fact from that time abandoned. They made no formal communication to Mr. Bate as to their intention, but there was (they contended) an implied understanding and consent on his part to the alteration of the site. Such understanding, and consent, the company alleged was to be inferred from the fact that Mr. Bate, who resided near the mines, had frequently visited the works at the Upper Grange, and on two or three occasions had inspected the shafts and site for the engine, without making any remonstrance or objection. The only complaint ever made by Mr. Bate was in a letter of the 24th of October, in which, referring to the pits having been sunk too near to the principal farm-house, he said, "I am sorry you have commenced sinking the pits at the Grange so near to the homestead," adding certain directions as to the removal of the surface soil, but in nowise conveying any warning as to the forfeiture of their lease. The correspondence as to their taking this farm, continued up to the 6th of January, 1865. On the 22nd of November, Mr. Bate recommended them to take a farm, forming part of the Grange estate, The lease contained certain covenants, by which the and adjoining their mines, as "comprising most of the lessee covenanted to commence and carry on the work-land they would require to use for their works," &c., ing of the mines with all convenient speed (accidents and he made them an offer in writing to that effect. by fire or water, fault or failure of mine, or other cause over which the lessee had no control, excepted), and to raise and dispose of the coals, iron-stone, and other minerals in the most advantageous manner, and within one year from the commencement of the term to set up upon some suitable part of the lands, to be fixed upon or approved of by the lessor's agent, a powerful steam engine, with all proper machinery and appliances for mining purposes, and within a like period to sink two shafts of the diameter of eleven feet, and not to sink any shafts within a radius of one hundred yards from the principal farm-house, as marked on the lease. The mines consisted of two distinct parts, separated from each other by a fault, and known as the Upper Grange and Lower Grange. It appeared that in June or July, 1864, a site for the engine was fixed and agreed upon at the Lower Grange by Mr. Bate, Lord Camoys' agent, and Mr. Martin, the resident director of the company, and there the company commenced their works, but had not proceeded far when they were stopped by water in the shafts. VOL VI. At the time of making that offer, Mr. Bate, it was alleged, must have known from the state of the work sthat it would be impossible for the company to erect an engine at the Lower Grange according to the covenant; he also must have known, from his inspection, that the shafts at the Upper Grange were only eight or nine feet, instead of eleven feet, in diameter. The company's works were again interrupted by the frost in the winter, which prevented them from having the engine erected within the covenanted time. It appeared that the engine was ready for erection, and could have been set up within three weeks after the expiration of the year. On the 25th of March, 1865, Lord Camoys served the company with notice of the forfeiture and determination of their lease incurred by breaches of the above-mentioned covenants. The company, admitting that they had no defence at law, sought relief in equity, and immediately filed their bill for an injunction. R In the Court below, Vice-Chancellor Kindersley refused the motion with costs, without calling upon counsel on the part of the lessor. The Vice-Chancellor considered: That the works at the Upper Grange were no substitution for the works at the Lower; that the fact that the lessees might sink shafts where they pleased, did not dispense with their obligation to erect an engine on the original spot fixed; that it was well settled, that if parties chose to make a bargain, the Court had no right to interfere, or say they should not that there had been clear forfeiture on the part of the company, and no abandonment by Lord Camoys of his right to TURNER, L.J., said: He was inclined to agree with the opinion of the Vice-Chancellor, as to the substitution of the Upper Grange for the Lower; he was also inclined to concur with the argument of the defendant, that the lessor was not bound to look after the interests of the lessees, or give them any warning. But looking closely to the conduct of the lessor's agent, he thought that the plaintiffs had ground for contending that they had not only never been forewarned, but that they had been encouraged by him in carrying on their works at the Upper Grange. The letter of the 24th October, might be read as condoning the breach as to the distance of the shafts from the homestead, and particularly acquiescence might be inferred from the correspondence concerning the taking the Grange Farm. Altogether, he thought that the conduct of Mr. Bate so far affected all the breaches of covenant as to entitle the plaintiffs to some relief in Equity. Minute.-Injunction granted; the plaintiffs undertaking to prosecute the hearing of the cause with diligence, to abide by any order the Court might make as to damages, and to allow judgment to go at law. } Re DAWSON. BARBER v. DAWSON. Lords Justices. 7 JULY, 1865. Practice-Lunatic Trustee-Trustee Act, 1850. Where stock is standing in the name of a trustee, who is of unsound mind, but not found so by inqui silion, and it is desired to bring such stock into Court to the credit of a cause, the proper course is for the cause to be heard by the Judge to whose Court the cause is attached, and then to present a petition in Lunacy, to be heard before the Lords Justices. This was a suit for the administration of a sum of Bank Annuities, standing in the name of James Dawson, a person of unsound mind, not found so by inquisition, as the surviving trustee of the will of Mr. Eaton. The suit was, in accordance with leave granted by the Lords Justices, brought before their Lordships on motion for decree, together with a petition presented in Lunacy, asking that James Dawson might be declared a trustee within the meaning of the Trustee Act, 1850, and that the proper officer of the Bank of England might be directed to transfer the Bank Annuities into Court, to the credit of the cause. of the cause and petition were brought on together W. R. Ellis, for the plaintiff, stated that the hearing upon the authority of, Jeffryes v. Drysdale: Re Drysdale, 7 Jur. (N. s.) 667; Bardswell and Methold, for the different defendants. |