1903

GOUGH

AND

ASPATRIA,

SILLOTH AND

DISTRICT

I cannot think that I am bound to hold in this case that there is no special adaptability value merely because it is impossible to put one's hand upon people who could compete for it at any given moment. I think that the existence of an area which would naturally receive the use of the water can JOINT WATER be regarded as enough, and I do not think that any case to which I have been referred precludes me from taking that view.

I therefore answer that question in the affirmative.

Solicitor for Water Board: T. R. Hargreaves, for F. Richardson, Aspatria.

Solicitors for claimant: Metcalfe, Birkett & Rowlatt, for Mounsey, Bowman & Graham, Carlisle.

A. P. P. K.

BOARD,

In re.

Wright J.

[IN THE COURT OF APPEAL.]

ZIMBLER AND ANOTHER v. ABRAHAMS.

Landlord and Tenant-Agreement for Tenancy-Failure as Present Demise-
Operation as Agreement for Future Lease-Specific Performance.

The agent of the owners of a house signed a document by which he purported to "have let" the house to the defendant at a weekly rental, and which continued: "I agree not to raise Mr. Abrahams any rent as long as he lives in the house and pays rent regular. I shall not give him notice to quit. Any time Mr. Abrahams wishes to move out, I promise to return to him the 67. he has paid me on taking possession of the house." The plaintiffs, treating the defendant as a weekly tenant, gave him notice to quit, and brought this action to recover possession of the house :

Held, that the document could not, having regard to its terms, be treated as creating a weekly tenancy, and that whether it purported to be an attempt to create an immediate demise for the life of the defendant, which was void at law as not being by deed, or an agreement to grant a lease for the life of the defendant, he was entitled to specific performance.

Browne v. Warner, (1807) 14 Ves. 156, 409; 9 R. R. 259, and Parker v. Taswell, (1858) 2 De G. & J. 559, followed.

Cheshire Lines Committee v. Lewis, (1880) 50 L. J. (Q.B.) 121, considered.

APPEAL from a judgment of Darling J. at the trial of the action without a jury.

C. A. 1903

Jan. 28.

C. A.

1903

ZIMBLER

V.

ABRAHAMS.

The action was brought to recover possession of a house. The defendant had been a weekly tenant of the house, and in October, 1896, one Beron, as agent for the owners of the house, signed a document in the following terms:

"London, Oct. 5, 1896.-I the undersigned, S. Beron, have let to Mr. Abrahams" (the defendant) "the house situate at 24, Morgan Street, Commercial Road, E., at a weekly rental of 23s., and I agree not to raise Mr. Abrahams any rent as long as he lives in the house and pays rent regular. I shall not give him notice to quit. Any time Mr. Abrahams wishes to move out, I promise to return to him the 67. he has paid me on taking possession of the house.-S. Beron."

On September 30, 1901, notice to quit was given to the defendant on behalf of the plaintiffs, and as he refused to go out this action was brought. An application was made by the plaintiffs under Order XIV., and the action was directed to be tried as a short cause.

The learned judge gave judgment for the defendant, on the ground that he was not satisfied that there had been any breach of the condition as to the payment of rent as alleged by the plaintiffs.

The plaintiffs appealed.

Tindal Atkinson, K.C., and E. T. Holloway, for the plaintiffs. This document is a memorandum of a completed transaction between the parties, and not an agreement relating to the future. If the tenancy created by it was a weekly tenancy, proper notice to quit has been given. If the memorandum does not create a weekly tenancy, it purports to create a tenancy for life, which is equivalent to a freehold, and that can only be created by deed: Doe d. Warner v. Browne (1); Cheshire Lines Committee v. Lewis. (2) Specific performance cannot be granted and has not been claimed. In In re King's Leasehold Estates (3) all that was decided was that the tenant's interest was not a yearly one, but was to continue as long as the lessor's interest continued. Doe d. Warner v. Browne (1) (1) (1807) 8 East, 165; 9 R. R. 397. (2) 50 L. J. (Q.B.) 121. (3) (1873) L. R. 16 Eq. 521.

C. A.

1903

ZIMBLER

V.

was considered by Lord Eldon in Browne v. Warner (1); but the decision was on a demurrer, and left open the question whether the document in that case was an agreement for a lease, in respect of which, though it could not be enforced at ABRAHAMS. law, equity would give relief. But Lord Eldon said that, had the document been an actual lease, the question had been decided rightly at law in Doe d. Warner v. Browne. (2)

Edgar Foà, for the respondent. The defendant is entitled to specific performance, and can claim an estate for life conditional on regular payment of the agreed weekly rent.

66

The document of letting in this case is not an actual lease within the meaning of Lord Eldon's words in Browne v. Warner (1), but a mere memorandum of a past agreement. But, even assuming that it is an actual lease, this makes no difference in the claim to specific performance. The dicta of the judges in Cheshire Lines Committee v. Lewis (3), which profess to be directly based on Browne v. Warner (1), were not necessary for the decision and ought not to be followed. All that Lord Eldon meant in Browne v. Warner (1) was that (livery of seisin not having been made) an estate for life could not have been conveyed without a deed of some kind, operating as a release, and not that the document of letting, which was executed before possession was given (4), could have passed such an estate if it had been made by deed: see Co. Litt. ss. 59, 459. But, however this may be, the attention of the Court in Cheshire Lines Committee v. Lewis (3) was never called to the fact that the law had been altered since Lord Eldon's time, and the statute 8 & 9 Vict. c. 106 had been passed, which (by s. 3) required a deed in all cases for the conveyance of a freehold. That statute, however, only says that a feoffment not evidenced by deed shall be "void at law"; and this expression must receive the same construction as in the other part of the same section, which deals with leases required by law to be in writing and henceforth declared to be void at law unless made by deed.

(1) 14 Ves. 156, 409; 9 R. R. 259.

(2) 8 East, 165; 9 R. R. 397.

(3) 50 L. J. (Q.B.) 121.

(4) See Doe d. Warner v. Browne, 8 East, 165; 9 R. R. 397.

-C. A.

1903

ZIMBLER

v.

ABRAHAMS.

It was well established both at law and in equity before the Judicature Acts that a lease so avoided is only void as a lease, but is good as an agreement. The only effect of the statute is that such a document creates no estate and passes no interest: per Blackburn J. in Bond v. Rosling. (1) Moreover, Courts of Equity were always willing to grant specific performance of such an agreement, and this quite irrespective of the question whether the instrument of letting was an actual lease or a mere agreement: Parker v. Taswell (2), per Lord Chelmsford L.C. [He also cited Mardell v. Curtis. (3)]

Tindal Atkinson, K.C., in reply, referred to Wood v. Beard. (4)

VAUGHAN WILLIAMS L.J. I think that the judgment of Darling J. must be affirmed, but that the terms of it must be somewhat varied.

If one takes the case of an attempt to create an interest in land which for some reason or other fails, and, in the same document in which the interest in land was attempted to be created, there is to be found an agreement by the grantor that he will not, for the duration of the life of the grantee, take any steps to enforce his, the grantor's, right to have possession of the land, then, in my opinion, unless the agreement creates a leasehold estate, or some estate beyond that, the agreement cannot be enforced at law. It may be as plain as possible that the grantor and the grantee did not intend that any steps should be taken by the grantor to recover possession of the land during the life of the grantee. However plain that may be, unless the agreement creates in the grantee in some way or other an effective interest in the land, the grantor has a right to recover possession, and the grantee has no right to defeat an action of ejectment by the grantor, but has only a right to recover damages for breach of covenant. To my mind, therefore, the question in this case is whether this document either created an immediate interest in land in the grantee, or gave him a right to have the grantor execute such a document as would

(1) (1861) 1 B. & S. 371; 30 L. J. (Q.B.) 227.
(2) 2 De G. & J. 559; 27 L. J. (Ch.) 812.

(3) W. N. (1899) 93.
(4) (1876) 2 Ex. D. 30.

give the grantee an interest, consonant with the agreement,
which would defeat the grantor's claim to recover possession.
To my mind it is plain that the document of October 5,
1896, did not create as between Beron and the defendant an im-
mediate interest in land; indeed, it did not vest in the defendant
any interest in land whatever. That is so, among other reasons,
because of the statute 8 & 9 Vict c. 106, which requires a
conveyance of an interest in land (subject to certain exceptions)
to be by deed. It is said that though this is so, and the docu-
ment not being under seal cannot be construed as an effective
present demise, yet it may be treated as an agreement to let
the premises, and the defendant may come to a Court of Equity
and ask for specific performance of that agreement. It is said
that is equally so whether on the face of the instrument it
appears to be an agreement to grant a lease or to be a present
demise which fails through not being under seal. For the first
proposition the decision of Lord Eldon in Browne v. Warner (1)
is relied on, and in support of the second reference is made to
the judgment of Lord Chelmsford in Parker v. Taswell. (2)
The particular passage relied on is at p. 570 of the report:
"But the instrument now in question could not amount to a
lease, because it was not signed by an agent lawfully authorized
by writing, nor was it signed in the name of the principal, so as
to render it a lease binding upon the lessor. Assuming, how-
ever, that it had been signed in the name of the lessor, and
would, therefore, have amounted to a lease, as containing words
of present demise, yet there is nothing in the Act to prevent its
being used as an agreement, though void as a lease because not
under seal." On those authorities I suppose that I am bound
to take it that, unless there is something to be found in the
document itself which renders it impossible that specific per-
formance should be granted, the defendant is entitled to ask for
specific performance whichever of the alternative views that I
have mentioned is applicable to the document. It is not
material to state whether I approve of those decisions or not,
though I must say that I feel strongly that the result of Lord
Chelmsford's decision is to neutralize the effect of the statute
(1) 14 Ves. 156, 409; 9 R. R. 259.
(2) 2 De G. & J. 559.

C. A.

1903

ZIMBLER

v.

ABRAHAMS.

Vaughan Williams L.J.