Application for relief, how made. and an undertaking to complete within a limited time, and if not to redeem possession (b). (c) Where the breach was non-repair :-Security to the satisfaction of the master to put the premises in repair; in four months to put the premises in repair to the satisfaction of a third person; pay ment of all arrears of rent and costs (c). In a case of a breach of covenant to repair, the court granted relief upon the defendant paying the costs, as between solicitor and client, of the action and of the proceedings for relief and surveyors' fees in respect of the service of the notice and preparation of the specification incurred before action brought. The payment of these costs and expenses may be made a condition of granting relief, though they cannot be demanded as compensation in the notice to be given before proceedings to enforce a forfeiture (d). When application is made for relief in the lessor's action, or for a vesting order, it may be made by way of counter-claim (e), or by an application by summons at chambers (f). In one case it was granted upon application at the trial, though not asked for by the pleadings (g). When not made in the lessor's action the application for relief must be made in the Chancery Division (h), and by an action commenced in the ordinary way, not by originating summons (i). The lessee can only apply in the lessor's (b) North London Freehold Landed Co. v. Jacques, 49 L. T. 659. (c) Mitchison v. Thomson, 1 C. & E. 72. Other cases, Bond v. Freke, W. N. (1884) 47. (d) Bridge v. Quicke, 67 L. T. 54, distinguishing Skinners Co. v. Knight, supra. (e) Cholmeley's School v. Sewell, [1893] 2 Q. B. 254. (ƒ) S. 69, sub-s. 3. (g) Mitchison v. Thomson, 1 C. & E. 72. (h) S. 69, sub-s. 1; Lock v. Pearce, [1893] 2 Ch. 271. (i) Lock v. Pearce, supra. action when that action is brought in the High Court (¿); if the lessor is proceeding in a county court, the lessee must himself bring an action in the Chancery Division for relief (i). 3. Equitable Relief in other Cases. In the cases excepted from the provisions of sect. 14 of the Conveyancing Act the equitable jurisdiction of the High Court of Justice still remains. excepted In such cases equity will relieve where the breach has Jurisdiction of equity in been occasioned by fraud (k), misleading () on the part of the lessor, accident, surprise (m), or mistake (n), but cases. even then, only when there can be complete compensation, or where there is no injury which requires any compensation (o). Equity will not relieve where the mistake arises from the negligence (p) or the mere forgetfulness (q) of the suitor who seeks its help; nor will it relieve where the breach has been wilful (r); nor against gross improvidence (s); nor on the sole ground that full compensation can be made (t). (k) Burke v. Prior, 15 Ir. Ch. Rep. 106. (1) Meek v. Carter, 4 Jur. N. S. 992; Hughes v. Metropolitan Rlwy. Co. 1 C. P. D. 120, 2 App. Cas. 439. (m) Bargent v. Thomson, 4 Giff. 473; Bamford v. Creasy, 3 Giff. 675. (n) Barrow v. Isaacs, [1891] 1 Q. B. 417. (0) Green v. Bridges, 4 Sim. 96; Barrow v. Isaacs, [1891] 1 Q. B. 417. (p) Barrow v. Isaacs, at p. 428, [1891] 1 Q. B. See, however, (q) Barrow v. Isaacs, at p. 421. (s) Beaufort v. Neeld, 12 Cl. & F. 248. (t) Hill v. Barclay, supra; Gregory v. Wilson, 9 Hare, 683; Nokes v. Gibbon, 26 L. J. Ch. 433; Job v. Banister, 2 K. & J. 374; Barrow v. Isaacs, [1891] 1 Q. B. 417. Tenant may recover pos. session immediately after demise; without having entered. Interesse termini. Agreement for lease. Where lessor no estate in possession. CHAPTER XI. BY TENANT. A TENANT for lives, for years, or from year to year, is during the existence and continuance of the term generally entitled to actual possession of the demised premises (a), and he or any person claiming through or under him (b) may eject the lessor or any person claiming through or under the lessor by title subsequent to the demise (c). A tenant can recover possession of the demised premises immediately upon the making of the demise whether he has actually entered under it or not (d). The interesse termini, which a lessee under a present demise has before entry, is a sufficient title upon which to maintain ejectment (d); but where there was only an agreement to demise, the proposed tenant could not maintain ejectment until he had actually entered (e). He cannot, however, sue for trespass to the land unless he has actually entered (ƒ). If the lessor had no estate in possession at the time of the demise, the lease operates by estoppel as soon as the lessor does acquire such an estate, and the tenant may (a) Doe v. Lewis, 1 Burr. 614. 288. (d) Doe v. Day, 2 Q. B. 147, 156; Doe v. Ries, 8 Bing. 178; Ryan v. Clarke, 14 Q. B. 65, 73; Williams v. Bosanquet, 1 B. & B. 238; Doe v. Walker, 5 B. & C. 111, Shep. Touch. 269, Co. Lit. 46 b. (e) Doe v. Ries, 8 Bing. 178; Price v. Birch, 4 M. & Gr. 1 ; Doe v. Powell, 7 M. & Gr. 980. See post, p. 129. (f) Ryan v. Clark, 14 Q. B. 65; Turner v. Cameron, 5 Exch. 932; Wheeler v. Montefiore, 2 Q. B. 133, 156; Litchfield v. Ready, 5 Exch. 939. mence on a then recover possession (g). When the term is to com- Term to commence in futuro, the tenant cannot recover possession future day. until the date (h) when the term is to commence (h). Tenant under void or void able lease. If a lease is absolutely void, as, for instance, by statute, the tenant cannot bring ejectment upon it against the lessor or a stranger (i); but if it is only voidable, as for fraud, a tenant can bring ejectment upon it until it has been cancelled by a Court of Equity (). A lease of copy- Copyholds. holds, which is void as against the lord of the manor for being contrary to the custom, is valid against everyone but the lord, and the tenant may bring ejectment upon it against the lessor (1). Term taken in execution, but not assigned. must prove. After the term had been taken in execution by the sheriff, the tenant could recover possession from a purchaser from the sheriff, if a proper assignment had not been executed (m). Since the Judicature Acts the purchaser's equitable title would be a good defence (m). If a tenant seeks to recover possession from a stranger, What tenant he must prove that the term is vested in him, and the title of his landlord; but in an action against his landlord, he need only prove the creation of the term and that it is vested in himself. A mere agreement for a lease, where no term has arisen by operation of law, as by entry or lease. payment of rent, was not a sufficient title at law upon which to recover possession of the land agreed to be leased, but perhaps the Judicature Acts have the effect of making it so (n). Where mere agreement for Position of mortgagor after mortgage. Re-demise to mortgagor CHAPTER XII. MORTGAGOR AND MORTGAGEE. 1. By Mortgagee against Mort- 2. By Mortgagor, 137. 1. By Mortgagee against Mortgagor and Tenants. IMMEDIATELY upon the execution of the mortgage deed the estate of the mortgagor passes to the mortgagee, and, unless there is in the mortgage deed, or in a separate deed, a proviso or stipulation amounting in law to a re-demise by the mortgagee to the mortgagor, the mortgagor who remains in possession is at the most a tenant at sufferance, and may be ejected at any time by the mortgagee without notice or demand of possession (a). If there be no such proviso or stipulation, but the mortgagee either expressly or impliedly consent to the mortgagor remaining in possession, the latter becomes tenant at will to the former (b). There is usually in the mortgage deed some proviso or until default. stipulation providing for the possession of the mortgagor until default. Such proviso or stipulation will not operate (a) Keech v. Hall, 1 Sm. L. C. 546 (9th ed.); Thunder v. Belcher, 3 East, 449; Hitchman v. Walton, 4 M. & W. 409, 415; Birch v. Wright, 1 T. R. 378; Jolly v. Arbuthnot, 4 De G. & J. 224; Doe v. Maisey, 8 B. & C. 767 ; Partridge v. Bere, 5 B. & Ald. 604; Smartle v. Williams, 1 Salk. 245; Doe v. Giles, 5 Bing. 421; Doe v. Mayo, 7 L. J., K. B. 84 (0. 8.). ̧(b) Evans v. Elliott, 9 A. & E. 342; Keech v. Hall, 1 Sm. L. C. 565 (9th ed.). |