CANTERBURY.

Wellington Independent, Volume XVI, Issue 1682, 5 November 1861, Page 5

CANTERBURY.

(From the Canterbury Standard.) On Saturday last, Ootober the 6th, His Honor Mr. Justice Gresson sat in Banco, when the following important case was argued which wo publish for general information : — SUTCLIFFE v. ROWLEY AND LODGE. Special case for the decision of His Honor Mr. Justice Giesson, by consent of plaintiff and defendant, and by consent and by order of His Honor Mr. Justice Gresson, dated twentyseventh day of September, one thousand eight hundred and sixty-one. A certain deed of lease dated the eighteenth day of March, one thousand eight hundred and fifty-six, and made between James Field and Thomas Atkinson was duly executed by the said James Field and Thomas Alkiuson, and is in the words and figures following (take lease 18th March, one thousaud eight hundred aud fifty-six." A certain deed of assignment dated the twenty-third day of May, one thousand eight hundred and fifty-eight, and made between the said Thomas Atkinson and Richard Sutcliffe, the plaintiff in the present action, was duly executed by the said Thomas Atkinson and the plaintiff, uud is iv the words and figures following. (Take it deed of assignment to Sutcliffe, dated 23rd May, 1858). A certain deed of underlease, dated tbe fourth day of February, one thousaud eight hundred and fifty-nine, and made betweeu the plaintiff of the one part, and the defendants of the othei part was duly executed by all the parties thereto, and is in the words and figures following (take it deed of .underlease Sutcliffe to Rowley and Lodge, 4th February, 1859). That, iv pmsunuce of the said underlease, the defendants took possession of the said premises, and carried on their trade as butchers, and paid their rent to the said Richard Sutcliffe up to the fourth day of November, 1859. That, io consequence of alleged breaches of covenant on the part of Atkinson or his Assignee, Sutcliffe, tbe lessor, Field claimed a right to re-enter, and gave to Rowley and Lodge a notice to that effect. That, on or about the thirtieth day of January, one thousand eight hundred and sixty, and after the receipt by them of the said notice, a certain deed of lease, and made between i the taid James Field of the one part, and the said John Rowley in trust for the defendants of | the other part, was duly executed by tJte -Mid I James Field and John Rowley, which said lease, is in the words and figures following, take it (lease James Field to John Rowley, dated SOih January, I860.) That, under the said lease, the defendants paid to the said James Field, the sura of one hundred pouuds rent fov the said premises com prised thereiu up to tbe thirtieth day vf January, one thousand eight hundred aud sixty. That the last mentioned dead of lease was registered pursuant to the Registration Ordinance at Christchurch, on or about the thirtieth day of January, one thousand eight hundred and sixty. That, on or about the twenty-sixth day of February; one thousand eight hundred and sixty-one, the said James Field executed a Conveyance in fee to the plaintiff, which said Conveyance is in the words and figures follow ing; take it (Conveyance Field to Sutcliffe dated 26th day of February, 1861, and Registered 26th February, 1861.) The plaintiff therefore contends that the defendants have, by taking the fresh lease from James Field, dated tlie thirtieth day of Jauuary, one thousaud eight hundred and sixty, disavowed and disclaimed the plaiutiffa (the said Richard Sutclifie) title to the said premises, and consequently have incurred a forfeiture of | the said underlease. The defendants contend that the lease from Mr. Field to them dated the thirtieth day of January, ono thousand eight hundred and sixty, and which was duly registered in pursuance of the provisions of the Conveyancing Ordinance, is a valid and subsisting lease, as agaiust the plaintiff, and that the defendants are in lawful possession by virtue of the said lease. The questions for the opinion of the Court are — " 1-t. Whether the said lease, dated the thirtieth day of January, one thousand eight hundred aud sixty from the said James Field to the defendants, is under the circumstances a valid and subsisting lease. 2nd. Whether the defendants having taken such lease fiom James Field, dated the thirtieth day of January, one thousand eight hundred and sixty, is a disclaimer of the landlord, Richard Sutcliffe's title as lessor in the underlease, and consequently a forfeiture of the said underlease." If the court should be of opinion that the said lease of the 30th January, 1860, ia uot a

valid and subsisting lease, and that the taking thereof by the defendants is a disclaimer of the landlord Sutcliffe's title as lessor in the underlease, judgment is to be entered up for the plaintifffor immediate possession of the premises disburdened of the lease and underlease, and cosi of suit, otherwise such judgment to be for the defendants with costs. Mr. Tr.ivers (instructed by Messrs. Johnstone and Williams for the plaintiff).— -It is submitted, your Honor, that iv tbis case, which has been brought before the court in a special form, there are three main points upon which to foaud the judgment of the court • — Ist. Whether the uuderlease from Sutcliffe to Rowlty and Lodge, dated the 4th day of February, 1859, was not forfeited hy the defendants in consequence of their disclaimer of their landlord's title in taking the new lease from the original landlord. James Field, without' ! any action in ejectment being taken by the landlord pievious to his granting such lease, in default of which legal course, it is obvious tbe fresh lease from him to to the under-tenant was so much waste paper. 2ndly. Whether the lease of 30th January, 1860, (being the wrongful lease above referred to), could be set up by tbe defendants against the title of their own landlord, Richard Sutcliffe, according to the doctrine of estoppel. 3rdly- What would the operation of the New Zealand Registration Ordinance be upon tbe claim of the plaintiff, and whether it would so operate as to create a good tenaucy under the fresh lease, notwithstanding that such lease was giveu by the original laudlord to tbe very persons who where then tenants by underlease to the assignee, no action of ejectment having ever been taken by thelandlord, so as to re-invent him with the legal estate. It is clearly laid down— and, indeed, it is almost unnecessary to mention it — that any act done by the tenant, so as to create or support an adverse claim to that of bis landlord, is of itself a disclaimer of his landlord s title, and, therefore, is a forfeiture of his own lease : (Doe dem. Davit v. Evans, 9 M. & W. page 48 ) Now here the defendants, in collusion with the original laudlord, take a fresh lease from him, notwithstanding their under-lease from Sutclifie, dated 4th February, 1859, without there having first been auy legal steps taken by the landlord to evict Sutcliffe. The only step taken was that in January, 1860, (as shown by defandant'e solicitor in reading it this moment). A letter was written by Mr. Field's solicitor to Sutcliffe, slating that, in consequence of certain alleged breaches of covenant, he had forfeited his lease, and that his landlord should ie-enter tbe premises. Thereupon, ou the 30th Jauuary, 1860, the landlord (Mr. Field) executed a fresh lease to tbe defendants of the premises, they being at the time actual tenants of the assignee Sulci WFe, under the under-lease from him previously referred to. Now, the fact of tbe defendants having done this is a disclaimer of their own landlord's (Sutcliffe"! title, and, therefore, a foifeiture of their lease from him. Nothing can be clearer so far, as it has been long clearly established that giving a simple notice to tbe under-tenants, without further proceedings in law and the attornment, and taking t fresh lease by the under-tenant, is not a sufficient entry in law so as to determine the original lease ; but, on the contrary, it is laid down that a landlord must bring his action in ejectment: (Chambers ou Landlord and Tenant; also Wood falls, ou s:ime). Secondly, as to the second point, there can be no doubt that the acceptance of the fresh lease by the defendants was collusive, aud, therefore, was a disclaimer of Sutcliffe's title; and, assuming that the under-lease still existed, the undertenants could not set up any question of forfeiture as against their immediate landlord ; tbat was a question that could ouly arise between the original landlord and his lessee. Tbe defendants here could not possibly rake, as between themselves and Sutcliffe, a question of forfeiture as between Sutcliffe and the lessor. There can be no question that the acceptance uf the lease of January, 1860, by tbe defendants from the lessor (Field) was a disclaimer (Doe dem. Grey v. Stanyon, 1 M. & W. P., 695) by the doctrine oi estoppel (vide the second vol. of Smith's Leading Cases, 651.) It is quite clear that the defendants cannot set up this lease against Sutclifie ; as, by so doing, tbey disclaim tbeir landlord's title, thereby creating a forfeiture of their own lease ; and, therefore, it must be obvious that the lease from Field to them is so much waste paper and cannot be cured, by beiug registered, as Kegistratiou cannot make valid a Ueed which is void upon the face of it, and which never had legal existence. Thirdly, as to the 17ih and 21st clauses of the New Zealand Registration of Deeds Ordi nance. The plaintiff here is suing in ejectment, for forfeiture, and therefore the question as to registration does not arise, this action would have been *aken whether tbe conveyance in fee from Field to Sutcliffe had been executed or not. This action is totally independent of tbat 1 deed. Field the landlord, and Rowley the 1 defendant here, joined in executing and taking a lease when Sutclifie was assignee to Field under a valid aud subsisting lease, without any steps whatever having 1 een taken to eject him ; Rowley was iv actual possession of the premises by virtue of an underlease from Sutciffe, and 'consequently by accepting the fiesh lease from Field, he forfeited his own from Sutcliffe. It is obvious that the fresh lease from Field to Rowley is illegal, in fao', is so much waste paper, and the Registration Act i caunot make it valid. By the Court— How do you get rid of the c)et.f construction to be put upon these clauses of the Registration Act Mi. Travers ? See 2 1st section. Your Honor, tbe Registration Act does not apply iv this case ; here, the deed refened to is bad upon the face of it, in fact it is a fraudu lent oue, and there is not in tbis case a question of priority betweeu that lease aud the conveyance to Sutcliffe. The conveyance to Sutcliffe has nothing to do with the case. This is a question of setting aside a fraudulent deed, and declaring a forfeiture of Rowley's lease from Sutcliffe in consequence of a disclaimer by him, by selling up an adverse title to that of his landlord. It was never iutended by the Legislature that this act should take effect where the deed was palpably the result of a collusion, as in this case. Supposing Rowley to have been a bona fide taker of this lease as a stranger, then we could uot get rid of the effects of the Ordinance, but would have to recover by way of damages from the landlord. Here, however, there is no such effect, as Rowley, as has been stated before, being the actual tenant of Sutcliffe, under a lease, couid not have taken tbe fresh lease from Field without creating a forfeiture of his own, and tbe new lease being fraudulent nnd collusive, cauuot be set up by Rowley against his landlord by the doctriue of estoppel ; consequently the Registration Act does nut come iuto operation here, as it is not a question of priority belweu the said lease aud the conveyance in fee. Mr. Slate; for the defendants, merely relied

upon the I7th and 21st clauses of tbe Begistration of Deeds Ordinance, and simply submitted to His Honor that the lease from Field to Rowley, notwithstanding even its being fraudulent, was cured by the Registration Ordinance, and took priority of the conveyance in fee from Field to Sutclifie, which conveyance it was evident to bim, Mi. Slater, should never have been executed, if tbe Solicitor preparing the same had taken proper precaution.". , His Hocovsaid that the question was one of] so much importance tbat he sbouid reset re hia j decision uutil he communicated with his, brother Johnston or the Chief Justice on the! subject.