[land law, mortgage – law reporting]

Solomon v. Man

Supreme Court of Van Diemen’s Land

Montagu J., 8 May 1840

Source: True Colonist, 8 May 1840[1]

            Solicitor General moved for a new trial. The chief point on which this case turned was, whether a mortgage in fee, granted over land held under a location order, formed portion of real estate descending to the heir, or whether it was chattel property to be taken by executor. The second was, that the Judge should have directed a nonsuit, on failure of proof, in place of directing a verdict for defendant. On this second point, Mr. Justice Montagu said that it was the duty of the Counsel to have asked for a nonsuit. Third, that there had been a legal recognition by the defendant of the plaintiff as landlord, and therefore that the TITLE was not to be questioned by him. The motion was farther supported by Mr. Stephen - Rule nisi.

Montagu J., 15 June 1840

Source: Hobart Town Advertiser, 19 June 1840

            This was an action ot[sic] assumpsit, to recover compensation in damages for the use and occupation by the defendant of a certain mill and premises by permission of the plaintiff.

            The circumstances of this case were briefly as follows: In the year 1834, Mr. Mann, the defendant, took a lease of certain property, of which the mill formed a part, from one Rayner, for seven years. Subsequently an arrangement was made for the sale of some part of the property, leaving the mill in possession of Mann, but at the reduced rent of £200 per annum. In October, 1838, Mr. T Y Lowes, the trustee for Rayner’s estate, instructed Mr. Macmichael to dispose of the mill itself by auction, subject, as the conditions of sale expressed, to a lease in favor of Mr. Mann for seven years from February, 1834, at a rent of £200 a year. Mr. Solomon, the plaintiff, became the purchaser, and under the conditions of sale was to receive the rents from the 19th November, 1838. Mann it appeared, never paid any rent to Solomon; in September, 1839, he was applied to by Mr. Lowes for 12 months’ rent, and having paid certain sums to Mr. Butler on his account, and moreover having received in September 1839, a notice from Mr. Lowes not to pay rent to any other person than himself, after that time, positively refused to pay the rent to Solomon. It appeared also, that in August 1839, Mr. Mann in reply to a demand for three quarters’ rent, said “he did not know whether he had any right to pay Solomon” - but that previously, when applied to for the first quarter’s rent after the sale, said “he would call upon Solomon.” It was also in evidence that on one occasion Mr. Mann said to Solomon - “I suppose I am to pay the rent to you.” In August, 1839, Mann called at Solomon’s counting-house respecting the mill, which a Mr. Golding wished to take, and which he wished to get rid of, and said that if Solomon would forego a portion of the rent, he (Mann) would give it up. Solomon refused, and something was then said about bringing the matter before the court. On the 20th November, 1839, the writ of summons was issued in this case, and shortly after, Mann went with Golding to Mr. Butler’s office, with a view to making some arrangements about the mill. On this occasion Mann said he would pay Solomon the rent if allowed the expenses he had been put to in respect of the cutting off of the watercourse. Solomon would not consent to this, and Mann left the office in anger. It appeared from the evidence of Mr. Golding that he would gladly have given £200 a year for the mill with the water, but without the water it was worth nothing. Although Solomon made the purchase in October, 1839, it appears that the deed of conveyance was not drawn till July 1839, and not executed till October to the same year.

The Solicitor-General, with whom was Mr. Stephen for the plaintiff, contended that Mann had rendered himself liable to pay Solomon by acknowledging him as his landlord, notwithstanding no actual payment of rent, the usual evidence required in such cases, had not been proved.

Mr. Horne, for the defence, insisted that the acts of Mann were not any acknowledgment of tenancy under Solomon, and that even if they were, they were made in error and ignorance of Solomon’s real position, he not having any legal title to the property till October 1839. The learned gentleman also took an objection to the pleadings, inasmuch as the declaration claimed for a period after the action had been commenced, whereupon the plaintiff’s counsel abandoned all claim except for one year’s rent due in August, 1839.

His Honor, in summing up, observed that this action was brought under a Statute passed to prevent frauds upon landlords who might not have the legal estate. The plaintiff had not made out his case so well as he ought to have done, and the question for the Jury was whether Mann had actually or virtually acknowledged Solomon as his landlord. If they were satisfied of this fact they would find for the plaintiff the amount claimed £200; but, if they had any doubt upon this subject the safest cause would be to find for the defendant, of which the plaintiff could not complain having failed to adopt the necessary measures for his own protection, which any person of common caution would so.

The Jury, after a long consultation, returned with a verdict for the plaintiff - Damages £200.

Pedder C.J. and Montagu J., 7 August 1840

Source: Tasmanian, 14 August 1840[2]

            Mr. Horne, moved for a rule to show cause why the verdict in this case should not be reduced three parts, or a new trial granted, on the ground, that the verdict given, was for rent, accruing during a period in which the plaintiff had no legal possession of the property. This case has been already twice tried; on the first occasion, a verdict was given for the defendant, Mr. Mann, but a new trial was subsequently granted, on the ground of misdirection by the learned Judge, who presided, when a verdict of £200 was given for the plaintiff, being the amount of one year’s rent for the mill in Macquarie-street.

            Mr. Horne, now contended, that the plaintiff, having sued in use and occupation, had no right to recover rent for a period in which he did not hold legal possession; and it was in evidence in this case, that Mr. Solomon did not complete his purchase, till nine months after Mr. Mann became his tenant, consequently, if entitled to any rent, he was only so entitled to that of one quarter. His client had also received notice from the legal owner not to pay rent to Mr. Solomon. Mr. Horne exhibited great skill, learning, and perseverance in arguing the case, his argument occupying more than two hours. The learned Counsel contended, that if Mr. Mann had made an agreement with Mr. Solomon, the notice from the Grantee, who held legal possession, would destroy the contract. There was another point also - such an agreement to be binding, ought to have been reduced to writing, but such was not the case in the present instance.

            Mr. Justice Montagu said, that the plaintiff, having sued in use and occupation, was entitled to recover for the same. The Act of Parliament, under which he sued, had been passed for the purpose of preventing frauds committed by nefarious persons, who rented property from persons who had not a strictly legal possession, and when rent was demanded for use and occupation, they turned round and refused either to pay or give up possession. In this case, it was clear that Mr. Mann had agreed to continue the tenant of Mr. Solomon; this was done at the time of the sale, to Solomons, by the terms of which sale Mann knew that the buyer was not to complete his purchase till the expiration of nine months; there was a clear contract made, and, it was His Honor’s opinion, that justice had been done by the present trial. At all events there must be a verdict for one quarter.

            Their Honors appointed Tuesday for their decision.

            At the conclusion of this case, Mr. Justice Montagu said, that he had seen a long article in Mr. Murray’s Paper of Tuesday last, referring to the present subject, which he considered extremely wrong, and very improper, it being evidently written with a view of influencing the Judges. He should write officially to Mr. Murray to request the name of the writer, when he had no doubt that gentleman would comply with his request. It was extremely improper for a public writer to attempt to influence the minds of persons holding such a high and responsible office as a Judge; and, for his own part, such conduct had a contrary effect than that which was intended by the writer, whose own mind must be in a bad state to investigate such a proceeding. Having ascertained the author, he should then act as his duty dictated.

Both Mr. Horne and Mr. Young disclaimed any knowledge of the transaction.