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Decisions of the Superior Courts of New South Wales, 1788-1899

Long v Levy (1835) NSW Sel Cas (Dowling) 706; [1835] NSWSupC 74

tenancy, assignment of right to rent - privity

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 19 September 1835

Source: Dowling, Select Cases, Vol. 4, Archives Office of New South Wales, 2/3463[ 1]

[p.132]

[Saturday

19th September]

[A landlord let a house for three years to A. & during the currency of that holding granted a lease to B. of the same premises for 7 years subject to A's tenancy & the rent due from the latter to be paid to B:  Held that although the reversion was in the landlord, B. might maintain use & occupation agt. A. for rent in arrear in his own name.]

In Banco

Coram

Forbes CJ.

Dowling J.

Burton J.

Long v Levy

Assumpsit for the use & occupation of a house & premises in Sydney from the 25th January to the 25th July 1834.  Plea non assumpsit.  At the trial before Dowling J. & two assessors, it appeared in evidence that one Underwood let the premises to the Deft for three years, from the 25th April 1831 reserving rent payable quarterly.  Underwood afterwards let the premises to the Plf for seven years "subject to the lease to present tenant & rent to be paid to the Plf".  The deft had paid rent to the Plf, the last quarter from the 25th October to the 25th January 1835.  He kept the premises locked up since February 1834; & in July 1834 he offered to let the premises to another tenant & gave the key for such purpose.  The Plf had a verdict for half year's rent to the 25th July 1834, subject to the question whether the action was well brought in the name of the Plf.  On a former the day the case was argued by Wentworth for the Plf &Foster for the Deft. 

[p.133]Forbes CJ. now delivered the Judgment of the Court:-  We are of opinion that the verdict must stand:-  On the discussion of this case it was argued that the action should have been brought in the name of Underwood; for there being no proof of the assignment of thereversion to the Plf, the reversion was still in Underwood, & he therefore should have sued.  Proof of payment of rent to the Plf it was argued was no proof of such assignment.  It was admitted not to be necessary to produce the lease from Underwood to Plf; but being produced, the Plf was concluded by it; & the deed proves that the reversion is still in Underwood.  But it is clear that the reversioner may sever the rent from the reversion, & grant it to a stranger, and an action of debt will lie, after notice, for rent.  In 1st Salk. 48. it was held that the assignee of a rent, without the reversion may maintain an action of debt for rent, if there was an attornment made, for by that and the assignment a [p.134] privity of contract passes.  There is a difference between remedies for rent, in debt & by distress.  The question then is, whether there has been a good assignment of the rent by Underwood to Long.  We think the words in the lease fromUnderwood to Long sufficient to operate as a grant or assignment of the rent, especially after the Deft has paid rent to the Plf.  This is an action on the contract, & the fact of paying rent to the Plf established privity of contract.  But in Doe v Parker Peake Ec. 286, the mere fact of paying rent was held sufficient evidence of assignment, & of the defts being tenant.  In the case of Rogers v Retohler 6 Taunt.202. & Greenside v Woodhouse 1 King.35, it was admitted that attornment prima facie was evidence of the Plf's title, although it was open to shew mistake.  But here the rent is equivalent to it, & subsequent attornment & payment of rent precludes deft from now disputing Plf's title.

Judgment for the Plf.

 

Notes

[1 ] See also Australian, 25 September 1835, under the name Long v. Stevens: ``This was an action for the use and occupation of a house in Sydney for six months, a verdict had been returned for the plaintiff, but it was contended on the part of the defendant, that plaintiff himself being only a tenant, the action ought to have been brought by the original landlord.  Their Honors, however, were of opinion, that an action would lie for rent, and therefore decided it was well brought, and confirmed the verdict."

Published by the Division of Law, Macquarie University