1875

PHILLIPS

V.

MILLER,

year to year, and although that was created by parol, it was, when supplemented by the custom of the country, complete as to rent and all usual terms, including the payment by the landlord at the expiration of the tenancy for hay and straw at fodder value.

The agreement of the 11th of May is in writing, and, therefore, its construction is wholly for the Court, and, having carefully studied its language and object, the conclusion at which I have arrived is that it well expresses and carries out that which the parties doubtless intended, namely, to give the tenant who forewent his supposed right to demand a lease, a pecuniary benefit by remission of rent, by a payment of money, and by the landlord purchasing at the end of the term his hay, straw, &c., at a valuation more favourable to him than that which he would, under the terms of his tenancy, have received.

It contains no words of demise, no reservation of rent, or terms of holding, nor any language adapted to, or suggesting, the creation of a new tenancy, or the continuance of an existing tenancy, and nothing from which I can infer an intention to import into the written agreement any of the terms under which the tenant held; and where this is so, I cannot, contrary to the legal import, and contrary to what appears to be the object and intention of the parties, assume that an existing tenancy is terminated and a new one created.

It was truly said by Parke, B., in Lyon v. Reed (1), that in certain cases a surrender is not the result of intention, because there can be no question of intention; but the cases to which he refers are those in which acts have been done by or to the owner of a particular estate, the validity of which he is estopped from disputing, and which could not have been done if the particular estate continued to exist. "The law there says that the act itself amounts to a surrender." In the present case I find not only that there is no such act, but that to presume such an act would be contrary to the intention of the parties.

It was strongly pressed upon us by Mr. Herschell, in arguing for the defendants, that unless the new terms contained in the agreement of the 11th of May were held to be a part of the tenancy, (1) 13 M. & W. a at p. 306.

1875

v.

MILLER.

they would not be binding upon anyone who should become landlord by death or assignment, and that the tenant could not bring PHILLIPS an action against his new landlord for any breach of its terms. It seems to be clear, however, that even could we properly hold that the new terms were a part of the tenancy, no such action would lie. At common law, rent is an incident of the reversion, and a reversioner may sue for it as a debt; but contracts with a lessor relating to the mode of enjoyment or of quitting the premises demised, did not, before the statute of Henry VIII., pass with the reversion, but were merely personal contracts; and this is so still where there is no lease under seal, and in such a case the assignee of the reversion cannot sue the lessee upon the contracts contained in the lease between the lessee and the assignor. This was so decided in Standen v. Chrismas (1), and by parity of reasoning it was held in Bickford v. Parsons (2) that the lessor, where there is only a parol lease, by assigning his reversion does not lose any of his rights of action against his lessee.

There are cases in which a reversioner may become entitled to the benefit and liable to the obligation of terms identical with those which were contained in a parol lease with the original landlord; but to effect this there must be a new contract supported by its own consideration. Thus in Buckworth v. Simpson (3) it was held that where there is a tenancy from year to year, if the then new landlord and tenant allow the time for giving notice to quit to elapse without giving such notice, a new contract may be implied to the effect that the new landlord and tenant will adhere to the terms of the tenancy, and on this new contract either party may sue the other; but the necessity for this implication shews that there must be a new contract, and here there is none.

For the decision of this case, however, it is necessary to look at the facts in a broader and less technical manner, and to deal with it by considering what it was that the defendants undertook to convey to the plaintiff. The judgment of the Court of Common Pleas proceeds on the ground that the plaintiff was not entitled to have the farms conveyed free from any claim of the tenants to be paid on the termination of their tenancies at a higher rate than (1) 10 Q. B. 135; 16 L. J. (Q.B.) 265. (2) 5 C. B. 920; 17 L. J. (C.P.) 192. (3) 1 C. M. & R. 834.

1875 PHILLIPS

บ.

MILLER.

fodder value; there being, it is said, no words in the contract, nor facts found in the case, from which it can be gathered that such a condition is to be incorporated into the contract. To this proposition I cannot assent. Taking Parker's farm as an illustration, what is it that the defendants agreed to sell, and the plaintiff to buy, in respect of that farm? It was described as "a farm in the occupation of Mr. Parker till Michaelmas, 1869, at the low annual rent of 5807." The contract is dated the 18th July, 1868, and its subject matter was a farm which Mr. Parker was to occupy till Michaelmas, 1869, and by the 11th condition the plaintiff was to take the rents or possession at Michaelmas, 1868.

Conditions of sale are not necessarily nor indeed usually expressed in the technical language of conveyancers; the expression,

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a farm in the occupation of Mr. Parker till Michaelmas, 1869," at a certain rent, appears to me clearly to mean that Mr. Parker was entitled to hold as tenant till that time, and at that rent, and that consequently the subject matter of the contract was the rever sion subject to Mr. Parker's tenancy.

Had Mr. Parker held under an indenture of lease for a term to expire at Michaelmas, 1869, and the particulars of sale had so stated, and that the subject-matter of the sale was the reversion from Michaelmas, 1868, there can be no doubt that a vendee would be considered as purchasing all the rights of the reversion as from Michaelmas, 1868. If in such a case the lease should contain a covenant by the tenant to leave the fodder on being paid fodder value, the right to have the fodder so left would be one of the rights which the vendee contracted to purchase.

It is not necessary that the vendee should know the terms of the lease. By buying the reversion described as expectant on a particular ascertained lease, he contracts for the rights and liabilities which that lease attaches to the reversion. Possibly if the lease were to contain extraordinary or onerous covenants to be performed by the reversioner, they would, if not disclosed, entitle the vendee to some relief in equity, or to resist a bill filed for specific performance. No such question arises, however, in the present case, as the terms are the ordinary terms of an agricultural tenancy. With respect to the rights which the vendee of a reversion purchases, I see no difference between the case of a

reversion expectant on a term created by a lease under seal, and one created by parol. The vendee in either case purchases the reversion with the rights which the terms of the existing tenancy give to the landlord. One of these terms in the present case was that the tenant should leave the hay, &c., at fodder value for the benefit of the landlord.

Assuming the conclusion I have thus far arrived at to be correct, the next question which arises is, can the plaintiff recover from the defendants the amount paid by the plaintiff to the tenants at the expiration of their tenancies in September, 1869, as the market value of the hay, straw, and manure, which considerably exceeded the fodder value of the same?

It was argued that the plaintiff paid this in his own wrong, for that if it is conceded that the agreement of May, 1868, was personal only with the landlord, and did not affect the terms of the tenancy, any right acquired under it would be binding only on the original landlord, and not on the plaintiff as his vendee and assignee. It seems to me, however, unnecessary for the decision of this case to further consider this part of it, for it is clear that the plaintiff would be in great practical difficulty had the tenants insisted on carrying away their hay, &c., unless they were paid market value, and that this would be in derogation of the rights which as between vendor and vendee the latter was entitled to, and was a matter which ought therefore to have been disclosed, and failing this, the vendor ought in all fairness to make good any loss which the purchaser might sustain thereby. Hence a question arose between the solicitors of the plaintiff and defendants, and, after some correspondence, the agreement of the 6th of January, 1869, was drawn up and signed, whereby it was agreed that the plaintiff should settle the purchase without prejudice to the claim made by him for an indemnity. Further, in June, 1870, one of the tenants, Mr. Parker, having brought an action against the plaintiff to recover the market value of hay, &c., left by him on his farm, it was arranged that if the plaintiff paid the amount claimed and taxed costs, the defendants would regard it as if it had been recovered by verdict.

The result of all this, in my opinion, is that the plaintiff and defendants agreed in substance that the purchaser's rights were

1875

PHILLIPS

v.

MILLER.

1875 PHILLIPS

v.

MILLER.

not to be in any way prejudiced by the completion of the purchase and the settlement of the action, and that if the defendants as vendors ought to bear the difference between fodder and market value, they would do so. Ought they, then, to bear this difference? The tenant's right to market value was a special and unusual right beyond what arose from the custom of the country, and therefore one which the vendee was not bound to know of; and that right being created by the vendor for his own benefit, he ought to have disclosed it, and not having done so, the result of the arrangement between the plaintiff and the defendants was, that the latter were to make good to the former any loss that might arise from the existence of that right.

For these reasons the plaintiff's cause of action is, in my opinion, well founded, and the judgment of the Court below ought to be reversed, and judgment entered for the plaintiff.

BLACKBURN, J., delivered the judgment of himself, Mellor, J., and Cleasby, B.:

As this is a Court of error, and the decision will be binding till reversed by a higher Court, I wish to confine my judgment to the one point on which I think the Court below were wrong. At present I am not prepared to differ from the Court below on any other point, but it is not necessary, in the view I take of the case, to decide more than this one. I therefore desire, as far as my judgment goes, to leave the judgment below neither affirmed nor shaken by the decision of the Court in error, on any point but that one; and for the same reason I wish neither to express assent to, nor dissent from, the other points discussed by my Brothers Pollock and Amphlett, whose judgments I have perused and considered.

The point on which I differ from the Court below is as to the construction of the three agreements of the 11th of May, 1868, made between the vendors and the tenants of the property, afterwards sold to the plaintiff. Before the time for completing the purchase the plaintiff became aware of the existence of those agreements, and required security against any loss which he might sustain in consequence of their existence, if he completed the purchase. The result was an agreement set out in the 12th paragraph of the case.