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1812.

GOODTITLE,

Lessee of LUXMORE,

against SAVILLE.

now dead, which paper he heard read, but could not tell whether it was now in existence or not (a). Soon after he and his brother went by invitation to Lord Courtenay at Powderham Castle, and staid there two days; during which time there was much conversation between his brother and Lord Courtenay, as to what Mr. Holland meant to do with the timber and with the park. Mr. Holland said he had had the wood surveyed, and had been deceived in the value; that a great deal of it was fit for little else than burning limestone. Lord Courtenay said it was an odd purpose to apply timber to: and acknowledged having received a notice of Mr. Holland's intention to cut down all the timber and other wood in the park : all that he had granted to him by his lease: adding, that he (Lord C.) had not the means to purchase it, and that Mr. Holland was at liberty to cut down every stick that was in the park, hollies, and every thing else. Another witness also proved that Lord Courtenay was at Okehampton in 1799 or 1800, after or during the time of a fall, when the timber was lying on the ground; and shortly after on his return to Powderham Castle, his lordship

(a) Notice was proved to have been given to the lessor of the plaintiff to produce a written notice, sent by Mr. Holland to Lord Courtenay at this time, of liis intention to cut down and sell and dispose of all the timber and other trees, coppice, and other wood, &c. in Okehampton Park. The plaintiff's counsel disavowed having or knowing of any such notice; and objected that before parol evidence could be given of it, the defendant should at least have shewn, that notice had been given to Lord Courtenay's agent at Powderham (his lordship having quitted the kingdom) to search for and produce the paper in question, said to have been sent to him by Mr. Holland. The learned Judge, however, was of opinion that the paper in question, being a document relating to the reversionary estate, must be presumed, if in existence, to have been handed over with the title-deeds of the estate to Mr. Luxmore, the purchaser of the reversion; and therefore, upon the non-production of it in pursuance of the notice served upon him, he let in the parol evidence of its contents. This objection was repeated again upon the motion for a new trial, and over-ruled by the Court.

mentioned

1812.

GOODTITLE,

Lessee of LUXMORE,

against SAVILLE.

mentioned to the witness the quantity of timber that Mr. Holland had thrown in the park, and said that he was sorry to hear that Mr. Holland had determined to clear the park of timber. Within two years afterwards, the witness, being again at Powderham, was asked by Lord Courtenay what was going on in Okehampton Park, when the witness answered, that Mr. Holland was continuing to clear the park as fast as he could.

Lord Courtenay said, he had heard that Mr. Holland had complained of his bargain; but he hoped that now he had thrown so much timber, his bargain would not turn out a bad one at last. That in other conversations Lord Courtenay had also expressed to the witness that Mr. Holland was proceeding to clear the park as fast as he could: and this was not confined to a particular fall, but referred generally to clearing the park. To another witness, who was regretting to Lord Courtenay in 1799 that so much of the timber was cut down as would spoil the picturesque beauty of the park, his lordship answered that he had disposed of the place to Mr. Holland, and had nothing to do with it. The defendant also proved the notoriety and extent of the fall in 1804, when the timber was previously advertised, and some of it sold by auction. That it took two seasons to cut. And that there was the like notoriety of other cuttings in 1805 and 1806. That the cuttings were all of timber that had arrived at maturity, and some were past it. The learned Judge, on summing up the evidence, told the jury that if they were satisfied that Mr. Holland before his assignment to the defendant had given a written notice to Lord Courtenay the then reversioner, as required by the agreement in the lease, of his intention to cut down and dispose of the wood; and that such notice was not partial, extending only to particular parts of the wood,

but

1812.

Lessee of

but expressed a general intention to cut down and dispose of the whole, as seemed to be admitted in the conversa

GOODTITLE, tions by Lord Courtenay, in such case, as Lord Courtenay had declined to avail himself of that notice by complying LUXMORE,

against with the terms on his part; he thought the defendants SAVILLE. were entitled to a verdict. That the price of the wood being included in the consideration of 12,5001. paid for the lease by the lessee, it appeared to him that such notice entitled the lessee to be repaid the whole estimated value within the stipulated period, if the lessor chose to purchase : and that Lord Courtenay having waved the purchase, he thought that at the expiration of such limited period the lessee's interest in the wood became absolute, and the lessor's option was at an end, and consequently that no forfeiture had arisen. The jury found a verdict for the defendant.

Lens, Serjt. in the last term moved for a new trial, on the ground that the construction put upon the proviso in the lease was erroneous; for that though the lessee might have cut down the whole of the timber at one continuing fall, if he had given notice of such his intention; yet if he did not cut down the whole, but stopped his cutting, he could not commence a new and distinct cutting again, without first giving a new notice and option to the lessor. The words of the proviso, that “when and so oftenas Mr. Holland intended to sell the timber, he should immediately thereupon give notice in writing of it to Lord Courtenay, strongly pointed to this construction. But here there had been a considerable interval between the cuttings in different years, without any new notice. It could not vary the construction of

the

1812. the deed, that this was the case of a forfeiture, if the

verdict were wrong. GoodtitLE,

Lessee of
LUXMORE, Best, Serjt., Jekyll, and Burrough, shewed cause against

against
SAVILLE. the rule, and contended that one notice was sufficient

within the meaning of the proviso, if it were co-extensive with the cutting which ensued ; and the terms “ when and so often,&c. were adapted to the case where a part only being intended to be cut down at one time, and other parts at other times, limited notices only were delivered, and not a general notice extending to the whole. They relied on the consideration that Mr. Holland had, in the first instance, purchased and paid for the whole of the growing timber ; and therefore any proviso restricting his general power of disposition ought to be construed very strictly. Nothing but a power of preemption was meant to be reserved to the lessor. But if the construction were even doubtful, the defendant would be entitled to the advantage of it in an action for a forfeiture. There is no limitation of time for cutting down the timber after a notice given ; it is not required to be done in the same season. But there is nothing to shew that the intention to cut down the whole, of which notice was once given, was ever abandoned : on the contrary, portions of it were cut down almost every year, as the wants of the market required. They also contended that a general notice having been once given, there was an end of the proviso, and it could not be recalled or set up again by any intermission in the cutting : and cited Dumpor's case, 4 Rep. 119 b.

Lens, Serjt., Pell, Serjt., Gaselee, and Gifford, contrà, insisted that the intention of the deed was to give the

lessor

1812.

GOODTITLE,

Lessee of LUXMORE, against SAVILLE.

lessor the option of purchasing from time to time as the tenant thought fit to exercise his power of cutting; but a general notice to cut the whole, when the tenant only meant to cut a part at the time, was illusory and a fraud upon the covenant. The operation of the notice was to be measured by the execution of it which ensued, and which, like all other acts, must be done within a reasonable time according to the subject-matter. Every time the lessee stopped his hand and suspended his cutting, the deed meant to give the lessor a new chance of preemption before the axe could be laid to the root again. [Lord Ellenborough, C. J. You did not attempt to impeach by any evidence the lessee's intention to cut the whole when the notice was given.] That question was not left to the jury. (Le Blanc, J. No such question was made at the trial to go to the jury.] But supposing him to have had the intention, yet if he afterwards in fact relinquished it, the argument still holds good. [Lord Ellenborough, C. J. The lessee could not have cut down at once the whole of what he was entitled to cut during his term, because he was entitled to all the timber, &c. which should grow during the term.] The parties could never have meant to enter into a covenant which one of them could put an end to immediately, by giving a general notice. If the lessee pondered upon it, the lessor was to have the like benefit of his option: if it remained for the benefit of the one, it ought to remain for the benefit also of the other.

Lord ELLENBOROUGH, C. J. In the construction of covenants of this sort, they are neither entitled to favour or disfavour, whether they are to create a forfeiture or to continue an estate; but we are to put the fair construc

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