CH. X. Leases in writing. CHAPTER X. LEASES IN WRITING (3 & 4 wм. IV. c. 27, s. 9). PART V. WHERE land has been demised for a term of years at a rent reserved, the title of the landlord to the reversion expectant on the lease is, as we have seen, unaffected by the mere fact that the tenant omits to pay rent for any number of years during the existence of the lease (1). But the 9th section of 3 & 4 Wm. IV. c. 27 provides a limitation for the case where a tenant holding under a lease in writing at a rent of twenty shillings a year or upwards pays the rent, not to the person rightfully entitled to the reversion, but to a wrongful claimant. The section is as follows:: Sect. 9 of 3 & 4 Wm. IV. c. 27. When any person shall be in possession or in receipt of the profits of any land or in receipt of any rent by virtue of a lease in writing by which a rent amounting to the yearly sum of twenty shillings or upwards shall be reserved and the rent reserved by such lease shall have been received by some person wrongfully claiming to be entitled to such land or rent in reversion immediately expectant on the determination of such lease, and no payment in respect of the rent reserved by such lease shall afterwards have been made to the person rightfully entitled thereto, the right of the person entitled to such land or rent, subject to such lease, or of the person through whom he claims, to make an entry or distress or to bring an action after the determination of such lease (1) See ante, Part V. Ch. V. p. 329. shall be deemed to have first accrued at the time at which the rent reserved by such lease was first so received by the person wrongfully claiming as aforesaid; and no such right shall be deemed to have first accrued upon the determination of such lease to the person rightfully entitled." In this section the word rent where in italics means rent-charge existing as an inheritance, in the rest of the section the word means rent reserved (1). The section is confined to the case of a reversion expectant on a lease in writing, reserving a rent of not less than twenty shillings per annum. It was, no doubt, intended to apply to all cases not provided for by the 7th and 8th sections of 3 & 4 Wm. IV. c. 27, except the case where there is a lease in writing at a smaller rent. PART V. CH. X. the statute. Before the passing of the statute 3 & 4 Wm. IV. c. 27, Law before if a valid lease was subsisting, the receipt of the reserved rent by a person claiming the reversion adversely to the rightful landlord, did not take away the right of the latter to enter at the determination of the lease (2); at least, if the lessor had not knowledge of the tenant's act, or did not acquiesce therein. But if the lessor had notice of the lessee's disavowing his title and attorning to a wrongful claimant and yet took no step to assert his own title, the lessor was, it seems, barred by statute from recovering the land at the end of the lease (3). A lease that was in law absolutely void or that only subsisted as a trust to attend the inheritance could not prevent the statute from running to protect the adverse possession or give the reversioner any new right of entry at the end of the term (4). Even now, where there is a valid lease in writing and there is not an annual rent, amounting to twenty shillings, reserved (1) See Shaw v. Keighron, 3 Ir. R. Eq. 574. (2) Doe v. Danvers, 7 East, 299, 320; Bushby v. Dixon, 3 B. & C. 298, 307. (3) Hovenden v. Annesley, 2 Sch. & Lef. 624, 625. (4) Taylor v. Horde, 2 Sm. L. C. 9th ed. p. 632. See President, &c., of Magdalen Hospital v. Knotts, 4 App. Cas. 324. CH. X. PART V. thereon, neither the receipt of rent by a person wrongfully claiming the reversion, nor his obtaining actual possession of the land, will prevent the reversioner's right of entry from accruing at the expiration of the lease. It was observed by the Real Property Commissioners that, where no rent or only a nominal rent is reserved, very slight negligence can be imputed to the reversioner in merely not requiring a recognition of his title from the tenant. Any rent less than twenty shillings a year may, for this purpose, be considered nominal (1). Receipt must be wrongful. When land is subject to such a lease as is spoken of in this section, the reversioner's right to recover possession accrues, and therefore the statute begins to run against him, not at the time when any person gets possession and claims to be entitled to the fee, but at the time when the lessee first pays rent to a person claiming wrongfully in reversion immediately expectant on such lease (2). Where, however, an estate has been on lease, and within twelve years of the expiration of the lease, the rent has been received by a person wrongfully claiming the immediate reversion, so that the statute has begun to run against the rightful reversioner, if the person who so wrongfully received the rent obtain possession of the land at the expiration of the lease, and retain it till the period of twelve years is completed from his first receipt of rent, the title of the rightful reversioner would be barred. For the right of the latter to recover possession is deemed to have accrued at the time of the first receipt of rent by the wrongful claimant, and twelve years from that period have elapsed without its being enforced. The law was the same in this respect before the passing of the statute (3). The receipt of rent by a person other than the reversioner will not have the effect of setting the statute running for the protection of such person, unless his claim (1) First Report of Real Property Commissioners (1829), p. 47. (3) Cholmondeley v. Clinton, T. & R. 107. CH. X. to be entitled to the reversion is wrongful, and in pleading PART V. a defence under this section it is necessary to state that the person by whom the rent was received claimed the reversion wrongfully (1); otherwise he might have made his claim as a mortgagee or lessee or in some other capacity not adverse to the rightful reversion. For instance, in the case of Shaw v. Keighron (2), property had by a marriage settlement been conveyed to trustees on trust for the husband for life and on his death to be charged with the wife's jointure of £6 a year, and there was an ultimate trust in favour of the children of the marriage; power was given to the husband and his wife to lease the property, and they leased it, reserving a rent of £10 16s. to them, their heirs and assigns. After the death of the settlor the widow received the whole of the rent of the demised property until her death. It was held by Walsh, M.R., that the receipt of the rent by the widow was not a receipt by a person "wrongfully claiming" within the meaning of the 9th section, and that, as the widow was entitled to receive the greater part of the rent in her own right as her jointure, she must be presumed to have received the balance for her children and by their authority. If a tenant assert a claim to the reversion expectant on his lease, and on the ground of such claim discontinue to pay rent to his lessor, time will not run under the section against the right of the lessor. To bring a case within the provisions of this section there must be payment to a third party (3). Where the reversion expectant upon a lease was severed in 1872 and a small part of the land out of which the rent under the lease issued was conveyed to the plaintiff, and the rent was never apportioned and no rent was ever paid to the plaintiff in respect of the piece of land conveyed to him, but the whole of the rent was paid as before to the (1) Sloane v. Flood, 5 Ir. C. L. R. 75. (2) 3 Ir. R. Eq. 574. (3) Archbold v. Scully, 9 H. L. 360. CH. X. PART V. original reversioner till 1875, when the original rever sioner conveyed his reversion to the defendant who had occupied as lessee the whole of the land comprised in the lease, it was held, on the expiration of the lease in 1891, that the payment to the original reversioner after 1872 was not a payment to a person wrongfully claiming to be entitled to plaintiff's part of the land within sect. 9 of 3 & 4 Wm. IV. c. 27, and that time did not begin to run against the plaintiff until the lease expired (1). Receipt of rent from sub-lessee, The words "wrongfully claiming " in sect. 9 are not to be confined to an intentional and improper claim of the rent, and do not exclude the case of a claim made by mistake, but refer to any person not entitled who makes a claim to the rent against the person who is entitled. Thus, where a person received the rents of property to which he was entitled, but by mistake accounted for them to his mother who was not entitled, it was held that the receipt of the rent by the mother was a receipt by a person wrongfully claiming to be entitled (2). Where land is in the occupation of a tenant, holding at a reserved rent from the immediate reversioner who, in his turn, is a lessee at a head rent under a reversioner in fee, if the sub-lessee pays the head rent to the superior landlord, but nothing is either received or paid by the mesne lessee, it seems that the receipt of rent by the superior landlord from the sub-lessee may be, but is not necessarily, adverse to the immediate reversioner's title. Whether it is so or not, must be determined from the other circumstances of the particular case (3). But it seems that the presumption is rather in favour of the fact that the payment of the head rent by the tenant to the ultimate reversioner is made under an arrangement with the mesne lessee (4). And if the sub-lessee purchase the (1) Laybourn v. Gridley, 61 L. J. Ch. 352. (2) Williams v. Pott, L. R. 12 Eq. 149. (3) Drew v. Earl of Norbury, 3 Jo. & Lat. 267. See also Doe d. Newman v. Godsill, 4 Q. B. 603n.; 5 Jur. 170. (4) Hayes v. Woodley, 3 Ir. Ch. R. 142. See Twiss v. Noblett, 4 Ir. Eq. R. 80. |