It does not appear by the plea that the assignee could evict. PARTINGTON The case, as stated, is like that of a lease made before mortgage. (PATTESON, J.: Where the mortgagor has demised before the mortgage, there is a good lease subsisting at the time of the notice by the mortgagee. The case of a demise after the mortgage is different. In Pope v. Biggs (1) there might be a new tenancy created, if the proceedings of the mortgagee there can be considered equivalent to an ejectment; but I do not see how it could be said that the old rent continued. LORD DENMAN, Ch. J.: If you say here that the assignee could not evict the tenant, the case is so far unlike Pope v. Biggs (1); for there an eviction, or something equivalent, is assumed.) It is not necessary here to say what effect might have been given to the notice, because no actual proceeding took place; there was only a threat, upon which the rent was paid to the assignee. Supposing that, in this plea, the words in a parenthesis, from "the said plaintiff having been authorised," to "premises to the said defendant," were omitted, the plea would still be good. The title averred to have vested in the assignee in 1818 will be deemed to have still subsisted when the notice was given. The assignment of itself carried the property; and the presumption will be in favour of an outstanding title in the assignee, till proof is given to take it away: Carr v. Burdiss (2). (PATTESON, J.: The plea here states that the assignee gave the defendant notice to pay him all the rent that should accrue "in respect of the said demised premises, and under and by virtue of the said demise" in the declaration mentioned, thus treating the previously mentioned demise by the plaintiff as still subsisting. Now, if that demise was made by the insolvent in his own name, I do not see how the assignee could come in as landlord, except by putting an end to the demise and commencing a new tenancy. I do not see how the rent claimed by the assignee could be rent under "the said demise." Unless (1) 32 R. R. 665 (9 B. & C. 245). (2) 1 Cr. M. & R. 782; 5 Tyr. 309. v. WOODCOCK. [ *697 ] PARTINGTON the previous demise is put an end to, you make the assignee or WOODCOCK. mortgagee constructively party to a demise between others.) [ *698 ] [ *699 ] At all events the words included in a parenthesis may be left out, and "under and by virtue of the said demise" treated as surplusage. Unless the present defence can be made available, the defendant may be held liable to pay the rent twice, to the plaintiff, and to the assignee as superior landlord. (LITTLEDALE, J. If the words in a parenthesis are omitted, it will at most appear only that the plaintiff demised to the defendant, and that some one else, having the legal title, called on him to pay the rent.) BAYLEY, J., says, in Pope v. Biggs (1), "I have no doubt that, in point of law, a tenant who comes into possession under a demise from a mortgagor, after a mortgage executed by him, may consider the mortgagor his landlord so long as the mortgagee allows the mortgagor to continue in possession and receive the rents; and that payment of the rents by the tenant to the mortgagor, without any notice of the mortgage, is a valid payment. But the mortgagee, by giving notice of the mortgage to the tenant, may thereby make him his tenant, and entitle himself to receive the rents." (PATTESON, J.: That must mean that the mortgagor may make him his tenant under a new tenancy.) The learned Judge continues, "It is undoubtedly a well-established rule, that a lessee cannot dispute the title of his lessor at the time of the lease, but he is at full liberty to show that the lessor's title has been put an end to." That must be by notice from a party having superior title, to pay the rent to him. Such notice had been given by such a party in the case then before the Court. Then, according to the doctrine of BAYLEY, J., the present plea would be sufficient if the words in a parenthesis were omitted; and, if retained, they do not vitiate, for, (1) 32 R. R. 665 (9 B. & C. 251). by showing that the assignee was cognizant of the demise, they PARTINGTON do not alter his right in point of law. If, however, the Court think the defence informally pleaded, the defendant prays leave to amend. Per CURIAM (1): Defendant to have leave to amend forthwith on pay- GLAHOLM v. ROWNTREE AND MATCHETT, EXECUTORS OF CLARK. (6 Adol. & Ellis, 710-717; S. C. 2 N. & P. 557; 7 L. J. (N. S.) Q. B. 23.) A testator, being indebted to R., deposited with him a policy of insurance on testator's life, as security for the debt, and for a further advance then made by R.; and died, leaving R. and M. his executors. R., still holding the policy, applied to the insurers for the amount due on it (2007.), which they refused to pay unless R. and M. gave a receipt for it as executors. They did so, R. making protest that he signed as executor, merely to satisfy the insurers. In an action by a judgment creditor, to which the executors pleaded plene administraverunt except as to 47. (the surplus out of the 2007. after payment to R.): Held, that the executors were not chargeable with the 2007., as assets, but only with the surplus after payment to R. DEBT, against the defendants as executors of John Clark, deceased, on a judgment recovered by the plaintiff against Clark in his life time. Plea, plene administraverunt, except as to 47. Replication, assets ultra. Issue thereon. On the trial before Tindal, Ch. J., at the Newcastle Summer Assizes, 1835, the following facts appeared. Clark had effected a policy of insurance on his life for 2007. Being indebted to one Price in the sum of 16l. 9s., he deposited the policy with him as a security. Afterwards, Clark being indebted to the defendant Rowntree in a larger amount, Rowntree agreed to pay off Price, and take the policy as a security. Clark thereupon signed a memorandum as follows. "19th September, 1833. To Mr. William Rowntree. Sir, I hereby agree to deposit with you my life policy with the Leeds and Yorkshire Insurance Company for the sum of 2001., as a security for any sum or sums (1) Lord Denman, Ch. J., Littledale, Patteson, and Coleridge, JJ, V. WOODCOCK, 1837. May 3. [710] v. [ 711 ] GLAHOLM of money that I am or may be indebted to you." Clark gave ROWNTREE. notice to the Insurance Company that he had transferred his interest in the policy to Rowntree; and their agent, in reply, informed Clark that they had noted the "intended transfer" in their books, but were advised that a regular legal transfer was requisite. About the end of 1833, Clark went to prison, intending to take the benefit of the Insolvent Debtors' Act; but, before this could be done, he died. During his imprisonment, Rowntree, having prepared a regular assignment of the policy, proposed that Clark should execute it; but he did not. By his will, dated January 31st, 1834, Clark left Rowntree and Matchett his executors. On the 17th of February they proved the will, and Rowntree gave notice to the Insurance Company as follows. "I hereby require you to pay over to me the sum of 2001., secured by you on the life of John Clark, formerly of " &c., "by your policy, No. 140, bearing date" &c., "which policy was assigned to me by the said John Clark in the month of December last, according to the notice already given to you, and entered on your books; and is now in my possession," &c. "W. ROWNTREE." The Company declined to pay except to a party showing title as executor; and, in consequence, another notice was given, in the names of both the defendants, beginning, "We, being the executors" &c., and accompanied by the probate. The Company's agent then offered, in payment of the 200l., bills indorsed to "Rowntree and Matchett, executors of John Clark;" but, the defendants objecting, they gave bills generally indorsed. The Company insisted that a receipt should be signed by the defendants. "as executors;" and they, in consequence, gave a receipt so worded; but Rowntree delivered a written protest to the Company's agent, stating that he signed as executor solely for the purpose of satisfying the Company and keeping them clear of litigation, and that he should not thereby compromise his claim to the money secured to him on the policy. It appeared on the trial that Rowntree had a just claim upon Clark to the amount secured, which would exhaust the proceeds of the policy, within 41.; and that there were no assets beyond *that amount, if Rowntree was entitled to take credit for the sum so secured. A verdict was taken for the plaintiff, but leave given to move to enter a nonsuit. [ *712] In the next Term, Cresswell moved accordingly, and cited 2 Williams on Executors, 1179 (1), part 4, book 1, c. 1 (where it is said that "chattels, whether real or personal, mortgaged or pledged by the testator, and redeemed by the executor, shall be assets in the hands of the executor, for so much as they are worth beyond the sum paid for their redemption"), and the authorities there referred to. A rule nisi was granted. Alexander and Bliss now showed cause: The passage cited from 2 Williams on Executors, 1179, refers to dicta in Hawkins v. Lawse (2) and Alexander v. Lady Gresham (3), and to the case of Harecourt v. Wrenham (4). These authorities, so far as they bear upon the present case, can show only that, where executors have redeemed a pledge of the testator with their own monies, they are entitled to the amount by way of retainer. The case in Year Book, 20 Hen. VII. (5), cited in Alexander v. Lady Gresham (3), puts the executor's right upon this ground. But executors cannot retain for their own debt against a debt of superior degree. The plaintiff here sues upon a judgment; the defendants seek to retain money in effect paid by Rowntree and Matchett to Rowntree in redemption of the testator's policy. And, further, the defendants here, by receiving the 2001. expressly as executors, have precluded themselves from *alleging that they took it in any other right. Not only has Rowntree accepted it in the character of executor, but the other defendant, who had no lien, has done so likewise. They are now, therefore, estopped from insisting upon Rowntree's lien, according to the principle laid down in Heane v. Rogers (6). By claiming as executors they led creditors to look upon this fund as assets; they cannot now alter the situation of such parties. Boardman v. Sill (7) also shows that the defendants cannot now claim in a new character. (LORD DENMAN, Ch. J.: I cannot see what your client has to do with the character in which they first claimed this money. He (1) 2nd ed. (2) 1 Leon. 154. (3) 1 Leon. 224. (4) Moore, 858. See Harwood v. Wraynam, cited, 1 Roll. Rep. 56; Hurcock v. Wrenham, 1 Brownl. & G. 76. (5) Year B. Mich. 20 Hen. VII. |