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Colonial Cases

Brown v. Meller, 1872

[landlord and tenant]

Brown v. Meller

Supreme Court of China and Japan
13 January 1872
Source: The North-China Herald, 18 January 1872




Shanghai, 13th Jan.

Before C. W. GOODWIN, Esq.


Claim for Tls. 400, rent of plaintiff's premises in defendant's occupation.

   Mr. Harwood for the plaintiff.

   Defendant in person.

   The above was a case heard in Chambers, and arose through the following circumstances.  Defendant held the premises for rent of which for four months the claim was made, on a two years' lease from Mr. F. A. Groom.  The agreement was partly verbal, and the rent Tls. 100 per mensem, payable in advance.  Mr. Groom subsequently mortgaged the premiers to plaintiff, subject to a certain equitable mortgage, which was afterwards also assigned to him.  Plaintiff notified the defendant, in the end of February last, that having acquired a right over the property, the rent was payable to him, and should not be paid by defendant to the mortgagor or to any one on his behalf.

   This intimation was made on account of the payment of interest on the mortgage being in arrears, but these arrears having been paid up by the trustee on the mortgagor's estate it was withdrawn, and defendant continued to pay his rent to the trustee.  On 14th August, the mortgagee again notified the defendant, and at an interview between them on the same day, he promised to hold the defendant indemnified of the consequences of his refusal to pay the trustee as he had done.  The defendant held this as a mere conversation upon which he might not have a hold; and refused to pay either party until the one or the other of them had proved his right to the rent.

   On the 1st September he received a private note from the plaintiff requesting him to pay the rent due on that day.  Defendant took no notice of it.  He had been in the habit of receiving debit notes properly drawn up instead of private chits. It might turn out hereafter that it was some other Brown that had made the demand. Defendant waited for over two months for the claimant to establish his rights - time which he considered ample for the purpose - and then receiving a note from the trustee requiring payment to him, under threat of legal proceedings, of the rents due, and being advised by persons he considered of some authority to comply with the demand, he paid the trustee, whose receipt he now held.

   Mr. Harwood adduced several authorities to show that a tenant in possession, upon receiving notice from the mortgage (and the one served upon defendant was in the prescribed form) became liable to him for rent due, as well as that in arrear, as that accruing on the lease.  This principle likewise bore on premises in the use and occupation of the tenant by verbal agreement.

   His Lordship held that defendant was liable to the plaintiff for the rents he had wrongly paid to the trustee, and gave judgment accordingly with costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School