The Gazette 1911-12

JUNE, ign]

The Gazette of the Incorporated Law Society of Ireland.

and interest, which tender has been im

properly refused, the mortgagor is liable to

pay interest for a farther period of six months, j

although he has been all along ready and

willing to pay the principal.

It appeared that on December 9, 1909, the j

defendant, the mortgagee, gave notice to the '

mortgagor's Solicitors to pay off the mort

gage ;

the notice was in the ordinary form,

and would expire on March 9, 1910. Before

the arrival of that date correspondence took

place between the Solicitors of the parties

with reference to the draft re-assignment and

its execution, and in the result the matter

was not completed on March 9. On March

16, 'however, the mortgagor and his solicitor

attended at the office of the mortgagee's

Solicitor and formally tendered the mortgage

money and interest to date.

The tender was not accepted, the mort

gagee's Solicitor setting up the contention

that as repayment was not made on March 9,

1910,the mortgagor was not entitled to pay off

without giving a further six months' notice

or paying six months' interest in lieu of such

notice. As this was insisted upon on behalf

of the mortgagee, the mortgagor, on May 18,

1910, took out an originating summons for

redemption. On July 8 the common order

was made. On January 27, 1911, the Master

made his certificate, finding what was due

upon the mortgage on March 16, 1910, and

that a legal tender of the sum named was

made on that date by the mortgagor and

refused by the mortgagee,, and fixing

February 27, 1911, as the time for payment

at the Royal Courts of Justice. On January

31 the defendant took out a summons to-vary

the certificate by adding to the sum found

due by the Master a further six months'

interest, and by reversing the finding of the

Master that a legal tender had been made on

March 16, 1910.

This was the. application now before the

Court, and it was arranged at the hearing

that his Lordship should by his judgment

finally dispose of the action.

Mr. Justice Joyce held that where such a

notice was given or demand made as in the

present case, the mere failure to pay within

or on the day of the expiration of the three

months did not render the mortgagor liable

to pay an additional six months' interest or

anything of the kind. His Lordship also, held

that, -in order' to a_void: payment of interest.

after tender improperly rejected, the mort

gagor must either pay the money into Court,

if there was any proceeding in which that

could be done, or keep the money ready, and

either make no profit of it, or if he had made

a profit—

e.g.,

by getting interest from a

banker—he must account for such profit to

the mortgagee.

(Reported

The Times Law Reports,

Vol.

xxvii., p. 446).

COURT OF APPEAL (ENGLAND).

(Before Cozens-Hardy, M.R. ;

Buckley and

Kennedy,

L.JJ

West

Gwynne.

May

10, 1911.—

Landlord and Tenant—Lease

—Licence to assign—Exaction of fine—Con

veyancing and Law of Property Act,

1892.

THIS was an appeal from a decision of Mr.

Justice Joyce. The question for decision

related to the operation of Section 3 of the

Conveyancing Act, 1892, viz.: whether it

applies to leases executed before as well as

after the passing of the Act. The plaintiffs

were assignees of certain leasehold premises

demised by the defendant by lease dated

July 31, 1874, for a term of 94-J years from

March 25, 1874-.

The lease contained a

covenant by the lessees against assigning or

sub-letting without the written consent of

the defendant, and also the usual proviso for

re-entry on breach of any of the lessees'

covenants and the usual lessor's covenant for

quiet enjoyment. The plaintiffs had applied

to the defendant for his consent to a proposed

underlease for 21 years of part of the demised

premises, but the defendant was only

prepared to grant a licence to underlet on

condition that he should receive for himself

one-half of the surplus rental to be obtained

by the plaintiffs in respect of the demised

premises over and above the rent payable

under the lease. The plaintiffs claimed a

declaration that the defendant was not

entitled to impose the condition, and a further

declaration that in the circumstances the

plaintiffs were entitled to grant the proposed

underlease on the terms approved by the

defendant other than the said condition.

The defendant contended that Section 3 of

the Conveyancing and Law of Property Act.