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By public such trustees as aforesaid ; that is to say (amongst other things), trustees to recover pos
certain banks and foreshores, in the said county lying on the session of
east side of the said river, and bounded on the east by certain foreshores.
4. The devisee's own admittance. Where de. In the case of devise of leaseholds, the plaintiff must provevisee of 1. The title of the devisor, unless the defendant is estopped from disleaseholds
puting it. (See ante, 515--516.) is plaintiff. 2. The probate of the will.
3. The assent of the executor to the bequest or devise. Where exe
In the case of executors and administrators, the plaintiff must showcutors, &c.,
1. The leasehold title of his testator. are plain
2. The testator's death. tiffs.
3. The probate or grant of administration,
The term vests in an executor at the death of the testator, and the executor may therefore recover on a claim dated between the time of the testator's death and the probate. Com. Dig. Adm. (B. 10).
Administration, when granted, relates back for some purposes to the intestate's death. In Ireland the doctrine of relation was established for the purpose of ejectment. (Patten v. Patten, Alc. & Nap. 493.) By 3 & 4 Wm. 4, c. 27, administration is made to relate back to death for the purposes of the Act. (See also title Executors and Administrators.)
The following are the usual defences to suits for the recovery of land
by devisees, viz. :Common 1. A disclaimer by the devisee. defences to
2. Fraud and undue influence exercised over the testator. actions by
3. Incapacity of the testator from infancy or coverture. devisees. 4. Incapacity from idiocy, insanity, or such mental aberration as
would deprive the testator of the testamentary capacity. See judgment of Sir J. P. Wilde in Smith v. Tebbit, L. R. 1 Prob.& Div.
398. 5. Revocation of will by cancelling, burning, tearing, or destroying
animo rerocandi. 6. Revocation by subsequent will, making a disposition of the pro
perty to another person. Suits for recovery of possession by mortgagees.]—Where the mortgagor is in possession after default, and the action is brought against him, the mortgagee has only to prove the execution of the mortgage, a demand of possession being in such case unnecessary. (Doe d. Roby v. Mainy, 8 B. & C. 767 ; and see note to Keech v. llall, 1 Sm. L. Cas. 7th ed.
579.) Mortgagee If a third person is in possession by a title prior to the mortgage, then suing to re. the mortgagee is in the position of an assignee of the reversion, and must cover the show a title to oust him, as in the case of a tenant from year to year it mortgaged must be shown that he received a regular notice to quit. premises. A railway company having power to mortgage the undertaking with
all tolls, does not enable a mortgagee under that power to recover the railway. (Myat v. St. Helen's Rail. Co., 2 Q. B. 364 ; and see Gardner T. Lond., Chat., f. Dorer Rail. Co., L. R. 2 Ch. 201, 385.) A mortgagee of turnpike tolls cannot recover in ejectment, unless the power to mortgage includes land such as toll-houses and gates. Mytton v. Gilbert, 2 T. R. 169.) As to suits for recovery such property under 3 Geo. 4, c. 126, see Thompson v. Lediart, 4 B. & A. 137 ; Watton v. Penfold, 3 Q. B. 757.
Suit by execution creditor for recovery of land.]—The plaintiff must prove the judgment, the elegit, and the inquisition or return thereon, (B. N. P. 104.) If a third person be in possession of the land extended,
lands of the defendant, being certain old inclosures or lands By public
trustees to and grounds specified in the schedule annexed to an award recover posmade under and in pursuance of the said Act, and numbered in session of
foreshores, the said schedule as follows
3. The defendant has taken and retains possession of the banks and foreshores specified in the last paragraph hereof, and wrongfully withholds the same from the plaintiffs. The plaintiffs (as such trustees) claim possession of the said
banks and foreshores.
Statement of Defence. 1. The defendant does not admit the 1st paragraph of the Defence. statement of claim.
2. As to the 2nd paragraph of the statement of claim the defendant denies that the foreshores and banks specified in the said 2nd paragraph, or any part thereof, became or are or is vested in the plaintiffs as such trustees as in the statement of claim mentioned, or otherwise.
3. The defendant does not admit that he has or that he retains possession of the banks and foreshores specified in the said 2nd paragraph of the statement of claim or of any part thereof.
4. The defendant says that even if the said foreshores and Statute of banks or any part thereof were or was at any time heretofore Limitation. vested in the plaintiffs, or in any person under whom they claim
it is sufficient on the part of the plaintiff to prove a primâ facie title in Where exethe debtor, and it then lies on the defendant to show a title anterior to cution crethe judgment. (Evans v. Owen, 2 C. & J.71.) But by the 27 & 28 Vict. ditor is c. 112, s. 1, since the 29th of July, 1864,“ no judgment shall affect any plaintiff. land until such land shall be actually delivered in execution."
Suits by trustees of bankrupts. !--- See Bankruptcy.
Suits by parsons.]-If the plaintiff does not claim in his character of Where a landlord, he must deduce in his statement of claim his title, by stating parson is that he was duly presented, instituted, and inducted, unless the de- plaintiff. fendant is estopped from disputing his title; and he need not show the title of his patron. (Heath v. Prynn, 1 Vent. 14.) Presentation by a corporation aggregate must be under the common seal. (Gibson's Codex, 794.) The parson cannot now eject a tenant at rack-rent under his predecessor, as by 14 & 15 Vict. c. 25, s. 1, such a tenant is entitled to hold until the expiration of the current year of the tenancy, and then quit without notice. Semble, a sentence of suspension, while in force, will prevent a parson maintaining this action. (Morris v. Ogden, L. R. 4 C. P. 687, 702, 703.) A defendant in such circumstances should, in his statement of defence, allege the suspension.
See Order XIX. r. 15, and ante, pp. 71-2, for rule dispensing with necessity of defendant in possession of land pleading his title in an action against him for the recovery of the land.
Recovery of the plaintiffs' right to maintain this present action, is barred by possession of fore
the Statute 3 & 4 Wm. 4, c. 27. shores. Claim by Lessor against Lessee to re-enter on the demised Land
for Breaches of Covenant. By lessor 1. On the day of the plaintiff, by deed, let to the against defendant a house and premises, No. 52, — Street, in the city lessee for breaches of of London, for a term of twenty-one years, from the day covenant.
of —, at the yearly rent of £120, payable quarterly.
2. By the said deed, the defendant covenanted to keep the said house and premises in good and tenantable repair.
3. The said deed also contained a clause of re-entry, entitling the plaintiff to re-enter upon the said house and premises, in case the rent thereby reserved, whether demanded or not, should be in arrear for twenty-one days, or in case the defendant should make default in the performance of any covenant upon his part to be performed.
4. On the 24th June, 187—, a quarter's rent became due, and on the 29th of September, 187, another quarter's rent became due ; on the 21st October, 1874, both had been in arrear for twenty-one days, and both are still due.
5. On the same 21st of October, 187—, the house and premises were not, and are not now in good or tenantable repair, and it would require the expenditure of a large sum of money to reinstate the same in good and tenantable repair, and the plaintiff's reversion is much depreciated in value.
The plaintiff claims :-
the 29th of September, 187–, to the day of recovering
possession. Action by Lessor against Assignee of the Lease to recover Posses
sion on Account of Forfeiture of Lease by Defendant. By lessor 1. The plaintiff is the owner in fee simple and lessor of ceragainst as
tain premises in St. G., being the premises demised in the lease signee of the lease hereinafter mentioned. for breaches of covenant.
2. By indenture, dated — September, 185-, the plaintiff (then Sir J. H.) demised to P. M. for the term of thirty-one years, By lessor from the – December, then next ensuing the following signee of
the lease [Here introduce a description of the premises.]
of covenant. 3. The rent reserved was £105, payable on the usual quarter days.
4. The said lease contained, among others, the following covenants material to this case :
(a) A covenant by the lessee, his executors, administrators, and assigns to pay the rent at the proper time.
(6) A covenant by the lessee, his executors, administrators, and assigns that he would pay all costs, expense, &c., for sewers and drains executed by order of the local authority, and pay all taxes and assessments; and also so far as the premises might be subject to the operation of the M. L. M. Act, the C. L. H. Act, &c., or the bye-laws of the Board of Works for the district in which the premises or any of them are situate, conduct, and maintain the same in all respects in conformity with the provisions of the said Acts and bye-laws, and at all times keep the said premises in a cleanly and wholesome state and condition, and cause the same and every of them to be well supplied with pure water during the same term.
(c) A covenant by the lessee, his executors, administrators, and assigns to repair and amend within three months after notice.
5. The said indenture also contained a clause of re-entry authorising the plaintiff to re-enter on the demised premises in case the rent thereby reserved should be in arrear for twentyone days, whether demanded or not, or on breach of any of the covenants hereinbefore mentioned.
6. In or about the year 187—, the defendant took possession of, and, save as hereinafter mentioned, has since occupied the premises. At some time between that date and the grievances hereinafter mentioned the said indenture and term thereby created was assigned to and vested in him, and the defendant from 1870 to March, 1874, paid rent to the plaintiff according to the terms of the lease.
7. Since the 25th March, 1874, no rent has been paid by the defendant or any other person, and the rent from that date is still due and unpaid.
8. The said tenements, so far as they have been subject to
the operation of M. L. M. Act, the C. L. H. Act, and the byelaws of the Board of Works for the district in which the premises are situate, have not been maintained and conducted, nor are they now maintained and conducted in conformity with the provisions of the said Acts of Parliament or the said bye-laws. Nor have the premises been kept at any time, nor are they now, in a cleanly and wholesome state.
9. The defendant has not kept the said premises in a proper state of repair, and they are now in a dilapidated condition.
10. The plaintiff caused to be served on the defendant a notice calling upon him to put into a state of repair the said premises within a term of three months from the date of the said notice, yet the defendant neglected to put the said premises into a state of repair within the said term of three months, and they are now in a dilapidated condition.
The plaintiff claims :-
above set forth.
of the plaintiff's recovering possession.
By lessee of an eyot to recover possession of the same.
Action by Lessee of an Eyot, for Recovery of the same. 1. On the 1st of August, 1874, one J. F. was seised in fee of an eyot or osier bed situate in the parish of C., in the county of 0., and adjacent to the river Thames.
2. On the said Ist of August, 1874, the said J. F., by an indenture of that date, demised the said eyot or osier bed to the plaintiff for a term of twenty-one years from the 2nd of August, 1874 ; and the plaintiff' on the said 2nd of August, 1874, entered into possession of the same.
3. On or about the 5th of May, 1875, the defendant unlawfully entered the lands so demised to the plaintiff as aforesaid, and ejected him therefrom, and has ever since excluded the plaintiff from the possession thereof.
The plaintiff claims :-