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lease in

A lease in writing, to come within the meaning of the l'ART V. 8th section, must be an instrument in writing which operates as a lease and passes an interest; it is not suffi- What is a cient that there is a writing which is evidence of the writing? terms of the holding or which binds the tenant; it must be also of such a nature as to be binding on the lessor. This was decided in Doe d. Lansdell v. Gower (1). In that case B., being in possession of a cottage belonging to the parish of P., signed in 1824 an agreement which purported to be a demise of the cottage to him by the churchwardens and overseers at a rent of 1s. 6d.

per week, B. to quit on one month's notice being given.

. This agreement was only signed by one of the overseers ; neither of the church wardens signed it, and there was nothing to show that the one overseer who had signed it did so as agent for the other parties by whom the lease was expressed to be made. B. never paid any rent or made any acknowledgment; the defendant purchased the cottage from him. In 1851 the church wardens and overseers for the time being brought an action of ejectment to recover the property. It was held that, as the agreement above-mentioned did not bind the churchwardens and overseers or pass any interest to B., although it might be binding on him, it was not a lease in writing within the meaning of the 8th section, and therefore that the action was barred.

The correctness of this decision has been questioned by ord St. Leonards (2). He observes :—" This may lead to much inconvenience. The statute speaks of a person holding as a tenant, etc., without any lease in writing, and where a man has entered and enjoyed under what purports to be a lease in writing, and has executed the instrument in the character of lessee, it might well have been held that the case did not fall within the 8th section. The decision points out the necessity of

66

(1) 17 Q. B. 589.

(2) Prop. Stat. 2nd ed. p. 61.

CH, S.

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Part V. enforcing the actual payment of small rents; the house

which the rent represented was no doubt considered by
the parish as part of the relief afforded to the pauper
tenant; this decision may have an important operation
on the statute (1) requiring all leases to be by deed.”
It should be recollected that, under the joint operation
of the Statute of Frauds (2) and the statute (1) referred
to, a lease not exceeding the term of three years, in
order to be valid at lav, must be by deed if the rent

reserved is less than two-thirds of the improved value. Payment of

In Bunting v. Sargent (3) Jessel, M.R., held that when lapse of

a tenant from year to year without a lease in writing had statutory

occupied land for more than twenty years without payperiod.

ment of rent, but paid some arrears of rent in 1873, after
the twenty years had expired, the reversioner's title was
not barred by 3 & 4 Wm. IV.c. 27. His Lordship said, in
commenting on the 8th section, “ There are two periods
mentioned when the right of the reversioner can first
accrue: if no rent is paid, then it accrues at the end of
the first year or other period; if rent is paid, then it
accrues at the last time when any rent shall have been
received. Therefore the plaintiff is right in saying that
he has only to prove a payment within twenty years of
the commencement of the action.” This view, it is sub-
mitted, cannot be supported. In 1873, when more than
twenty years had elapsed since the last payment of rent,
the title of the plaintiff was extinguished by the 34th
section, and he had become an absolute stranger to the
property. The payment of a sum of money as rent in that
year could not give him a new title against which the
statute would commence to run afresh (4). If the facts
were doubtful, payment of rent in 1873 might have been
evidence that rent had been paid, or some other act done

1

(1) 8 & 9 Vict. c. 106, s. 3.
(2) 29 Car. II. c. 3, s. 2.
(3) 13 Ch, D, 330.
(4) See post, Ch. XXV. Sanders v. Sanders, 19 Ch. D. 373.

CH. Ix.

such.

within the preceding twenty years, sufficient to keep the. Part V. landlord's title alive. But the decision was not given on any such ground. Where a certain sum is due periodically from a tenant Rent must

be paid as from year to year by way of rent, and it is proved that a similar sum has been paid from time to time, it becomes important to consider whether such payments were made for rent or on some other account. In the AttorneyGeneral v. Stephens (1) the property claimed had been originally let on lease from year to year at a rent of £6; the occupier of the land had paid that sum annually, always believing it to be a rent-charge, and he did not know that the land had been originally held as leasehold by his predecessors in title, while on the other hand the claimants had always received the £6 as rent reserved, and had entered it in their books as such. The claimants failed on another ground, but Cranworth, L.C., in delivering judgment, said (2):" Where the tenancy is, as in this case, disputed, the circumstances connected with the annual payments are evidently most important, for if the person paying made the payment expressedly or impliedly on account of something else than rent of land of which he was the tenant, this would not be a payment of rent within the meaning of the clause to which I have referred. It is therefore manifestly most important to know all the circumstances which have attended the annual payments of £6, which have been made for the last twenty years, in order to enable us to come to a fair conclusion on the points whether they have been payments of rent in respect of the tenancy now insisted on (3); for, if not, the defence founded on the Statute of Limitations is a complete bar.” Payment of rent to a person who originally receives as Payment to

an agent. agent is receipt by the true owner until it is proved that

(1) 6 De G. M. & G. 111, 136.
(2) 6 De G. M. & G. pp. 146, 147.
3) See also Doe d. Newman v. Gods.ll, 5 Jur. 170; 4 Q. B. 603n.

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Part V. the character in which such person received the rent was

changed, even although such person has for more than twenty (now twelve) years paid over nothing to the true owner (1). If such person receive the rents while the real owner is unascertained, the real owner will not be barred if he ratifies the act of the agent within a reasonable time after it is ascertainell who the real owner

is (2).

Possession by undertenant.

Equitable right to a term.

Where in ejectment it was proved that rent had within the twenty years been paid in respect of the premises in question to the lessor of the plaintiff by a third party, and that the defendant within the twenty years had admitted that he held as tenant to such third party, but there was no evidence of payment of rent to any one by the defendant himself, the lessor of the plaintiff was held entitled to recover, on the ground that an under-tenant cannot be permitted to dispute a title which is valid against the person of whom he holds (3).

) Before the Judicature Act, 1873, where a person occupied land for more than twenty years in such circumstances that he was at law a tenant from year to year without any lease in writing, while he had a right in equity to a long term of years, and no payment of rent or acknowledgment was made during all that time, the right of the landlord in law was barred by the statute at the end of twenty years; but, as in equity the landlord had been only entitled throughout to a reversion expectant on a subsisting lease, the landlord's equitable title was not barred, and he only lost the right to recover arrears of rent which accrued more than six years before action (4). It has been said that now, since the Judi

(1) Smith v. Bennett, 30 L. T. N. S. 100; Attorney-General v.
Corporation of London, 2 Macn. & G. 247. See Lyell v. Kennedy, 14
App. Cas. 437. In re Hobbs. Hobbs v. Wade, 36 Ch. D. 553;
McAuliffe v. Fitzsimons, 26 L, R. Ir. 29.

(2) Lyell v. Kennedy, 14 App. Cas. 437.
(3) Doe d. Spencer v. Beckett, 4 Q. B. 601.
(4) Archbold v. Scully, 9 H. L. 360.

сн. Іх.

cature Act, 1873, a tenant holding under an agreement Part V. for a lease of which specific performance would be decreed, stands in the same position as to liability as if the lease had been executed; he is not a tenant from year to year, but holds under the agreement, and every branch of the Court must now give him the same rights (1).

If a person enters into possession of land under a lease which is void ab initio and pays rent, he becomes a tenant from year to year, and the statute will not run in his favour so long as he pays rent (2). But, if no rent is paid, the statute begins to run in favour of a person in possession under a void lease from the date when the possession begins (3).

(1) Walsh v. Lonsdale, 21 Ch. D. 9, p. 14. See Lowther v. Heaver, 41 Ch. D. p. 264; Foster v. Reeves (1892), 2 Q. B. 255.

(2) Webster v. Southey, 36 Ch. D. 9; Bunting v. Sargent, 13 Ch. D. 330.

(3) President, &c., of Magdalen Hospital v. Knotts, 4 App. Cas. 324.

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