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1900.

GLENNY

12.

"executors, administrators, and assigns," all the coal and minerals lying under the land. The deed was not enrolled in accordance with the statutes. After the date of the deed RATHBONE Holroyd entered into possession by beginning to work the minerals. Holroyd, in 1855, granted to the trustees of the plaintiffs all the seams of coal and minerals, and the plaintiffs entered. In 1856 Frank Sykes bought certain property that belonged to Dixon, subject to such right and interest of any of the said coals, &c., as Holroyd, his heirs or assigns, then had. At that time Holroyd was in possession of part of the coal-seams. In 1857 Holroyd was ejected from the surface part of the land, but not from the coal, &c. In 1857 certain of the land was conveyed to Frank Sykes, but subject as to coal-beds conveyed to Holroyd. In the same year Dixon's heir-at-law conveyed all his lands to Anderton and Mellor, and they, in 1875, conveyed them to Sykes. Sykes leased all the coal to the defendants. Holroyd died in 1861. It was admitted that Holroyd had only an equitable estate conveyed to him in the case, as the deed was not enrolled. The Lord Chancellor (Lord Cairns) said, "There are two views— (a) that it operated to give Holroyd a life estate, which is the view the appellants contend for; (b) that this indenture, and the possession under it, created in Holroyd a tenancy at will. In my opinion the latter is the result of "the deed, and the possession taken under it. It is an elementary proposition that where a purchaser is let into possession of iands, the sale not having been carried out by a proper instrument of conveyance, at common law the purchaser is enant at will, in equity he is regarded as the real owner of the property. Numerous cases which I have "before me go to show this. Now, was Holroyd let into "possession of these mines? In my opinion he was. Mr. "Williams has argued very properly and ably that there is a "distinction between the possession of mines and the other property." Then, further, he says, In my opinion, there being a tenancy at will, the Statute of Limitations began to run from the first year of the tenancy, and had given a "good title to the Low Moor Company when the trespasses

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C.A.

1900.

GLENNY

V.

were done." He also decides on another ground that the plaintiffs must succeed, but it is on this first ground that Coleridge, C.J., agreed with him, and the only doubt that Mellish, L.J., had was not that the statute would not in such RATHBONE. a case give a good title, but whether the statute would run because the grant was of an incorporeal hereditament. Now, if the test of the running of the statute is that the person in whom is the legal fee could sue in ejectment and not be estopped from doing so by a Court of equity, then in this case Holroyd could have, if sued in ejectment, asserted his equitable title against Dixon, and have got the legal title by proper proceedings.

The distinction I have contended for has been recognised in America. I have not seen a report of the case, but in The American and English Encyclopedia of Law(1) there is a note of a case. I quote the note: "In Ormond v. Martin(2) the "Court, by Walker, J., said, Where a party enters into the 'possession of land under a bond conditioned to make title "when the purchase-money is paid, his possession, so long as "the purchase-money remains unpaid, is held to be in subordination to the title of the vendor, and in an action by "the latter for the recovery of the land the vendee cannot claim the protection of the Statute of Limitations on the "ground of adverse possession under colour of title. But when the vendee has complied with the terms of the con"tract on his part by paying the purchase-money, such a "bond is colour of title, and if he thereafter remain in pos"session, claiming the land as his own, for the period pre"scribed by the Statute of Limitations, the legal title will be "barred." It will be observed that this case draws a clear distinction between a purchaser who has fulfilled his contract and a lessee who is in possession in pursuance of a contract for a lease.

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If, however, full effect is to be given to the reasons used in the various judgments of the Lords Justices in Warren v. Murray(3), still the facts of this case show that the reasons there given for saying the title could not be barred are inapplicable

(1) Vol. xxviii., p. 128. (2) 37 Ala. 602.

(3) [1894] 2 Q.B. 648.

C.A.

1900. GLENNY

V.

here. In this case Davern, not Glenny, became tenant at will to Daniel. At Davern's death this tenancy at will ceased. Glenny was not his assignee, and there was no privity of conRATHBONE. tract between him and Daniel. In such a case, if Daniel had sued to eject Glenny, Glenny could not have counterclaimed for specific performance of his agreement to sell. He was but a sub-purchaser. In Dyer v. Pulteney(1) it was held that a sub-purchaser could not sue for specific performance unless he was placed in the position of assignee, liable on the whole contract which his vendor had entered into. See also Anon. v. Walford (2), Chadwick v. Maden(3), Fenwick v. Bulman(4), Aberaman Ironworks v. Wickens(5) (and see also Fry on Specific Performance(6) and Daniel's Chancery Practice (7) as to sub-purchasers being parties to actions for specific performance). Nor would notice to Daniel that Davern had sold and agreed to convey to Glenny have prevented Daniel conveying to Davern. His conveyance would, as stated in Anon. v. Walford(2), be not to the prejudice but to the promotion of the agreement between Davern and Glenny. See also McCreight v. Foster(8) and Sub. nom. Shaw v. Foster(9). And Glenny never became tenant at will to Daniel, nor could he, as has been said, by himself, and without the intervention of Davern or Davern's assignees, have sued Daniel. He might, if sued by Daniel, have begun an action, joining Davern or his representatives and Daniel, asking for specific performance, but of himself he had no equity against Daniel. Assuming, then, that a vendor and vendee are in some respects like a lessor and lessee, this is quite different from the position in Warren v. Murray(10) or Drummond v. Sant(11). And in Drummond v. Sant(11) it is said that Doe v. Rock(12) was properly decided, as Mrs. Woolrick never became tenant at will. Lessees also who onter under an agreement to lease are holding under the agreement under an equitable lease, and their holding is

C.A.

1900.

GLENNY

consistent with their contract. Glenny did not enter by Daniel's permission. There was no privity of contract between them, nor privity of estate; and, though Davern was a cestui que trust, it cannot be said Glenny was, and if he was not RATHBONE the proviso of the 7th section does not apply to him.

In Melling v. Leak(1), decided in 1855, there is an illustration how title can be barred against trustees. Isaac Melling, the father of the plaintiff, owned certain real estate, which he devised to trustees. One of them, John Leak, went into possession. After occupying for a short time, he gave up possession to a Mr. Clarke. The plaintiff married Clarke's daughter, and occupied jointly with Clarke. Then Clarke went out of possession. The plaintiff remained in possession, without paying rent or acknowledging tenancy, till the 7th of June, 1854. In November, 1853, John Leak, the surviving trustee, died, the other trustees having died a few months before. Isaac Leak, heir-at-law of John Leak, entered, and turned the plaintiff out. The plaintiff sued for possession, and it was held he could recover, as he had occupied for more than twenty years, and thus he barred the cestui que trust, and the trustees were also barred. The Court said (2), "But, although "it may be well argued, on general principle as well as "on the authority of Garrard v. Tuck(3), that a cestui que "trust who is in possession with the consent, or even the

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mere acquiescence, of the trustee, must be regarded as his 'tenant at will, yet this doctrine applies only to the case "where the cestui que trust is the actual occupant."

Neither Davern nor his assignee was the occupant. The test that was put in argument, that Daniel could not enter, as Glenny could have counterclaimed for specific performance or have pleaded an equitable plea, I have incidentally referred to. So far as counterclaim is concerned, he could not have pleaded a counterclaim before 1883; and as to an equitable plea, see Daniel v. Cartwright (4). Law and equity were amalgamated by "The Law Amendment Act, 1878." This argument, however, assumes that no bare legal title could ever

(1) 16 C.B. 652. (2) p. 669.

(3) 8 C.B. 242.

(4) 3 N.Z. Jur. N.S. S.C. 37.

C.A.

1900. GLENNY

be barred. But if the statute could ever, in such a case, run, it began to run in 1874, at all events.

Keeping in view, then, the distinction between vendor and RATHBONE. Vendee and lessor and lessee pointed out by Marshall, C.J., and that when a purchaser who has fulfilled his contract enters there is no condition of his going out of possession as in the case of a lease, and, further, that Glenny was not an assignee of any contract between Daniel and Davern, I am of opinion that the cases relied on in the argument on behalf of the respondent do not conclude this case. Further, in my opinion, The Low Moor Company v. The Stanley Coal Company(1) is not distinguishable from this case. The case is one of difficulty, because of the remarks of the learned Judges in the Court of Appeal in Warren v. Murray(2); and the learned Judge in the Court below is one who has a great knowledge of real-property law. I have, however, been compelled to come to the conclusion that when Rathbone made his entry the title was barred.

Coming to this conclusion, it is not necessary to consider the second branch of the case, though I may state that it does not seem to me that the evidence shows that the defendant had such notice as would have deprived him of his priority that the Deeds Registration Act gives to a purchaser of land against which no deed or contract is registered.

The appeal must be allowed, with costs on the middle scale, and as from a distance. Judgment should be entered for the plaintiff for £10 damages, and for a perpetual injunction against the defendant, with costs according to scale on £250, £15 15s. for the second day of trial, £7 178. 6d. for the third day, and witnesses' expenses and disbursements.

WILLIAMS, J.:

[After shortly stating the facts, His Honour proceeded as follows.]

By "The Deeds Registration Act, 1868," the prior unregistered contracts are void against the person claiming for valuable consideration under the subsequent registered deed. The only

(1) 34 L.T. 186.

(2) [1894] 2 Q.B. 648.