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[AFKIS]
THE HONG KONG DAILY PRESS, THURSDAY, MAY 31st, 1928.
LEGAL RIGHTS OF A MORTGAGEE.
AN IMPORTANT POINT SETTLED IN TENANT'S FAVOUR.
BANQUE DE L'NDO" CHINE'S CLAIM FAILED.
THE ACTING PUISNE JUDGE'S
DECISION.
The case concerning the legal rights of a mortgagee and the position of a tenant of mortgaged property which aroused rauch interest among house occupiers and property owners was decided yesterday by Mr. Justice P. Jacks at the Summary Court."
The action was brought by the Banque de l'Indo Chine against Mr. J. H. Witchell, manager of the King Edward Hotel, in respect of a claim of $1,000 as meene profits, during the defendant's term of occupation of a house known as, the Budree Villa.
The facts of the case were that the property was mortgaged to the Bank by the rightful owner. Mr. Witchell rented the premises from the mortgagor on the understanding that certain repairs had to be done. The monthly rental was $125, and as the owner was not in a position to pay for the repairs at the moment, Mr.. Witchell undertook to do the work on the understanding that any money spent for that purpose would be set-off against the monthly rental. The owner agreed. Mr. Witchell alter spending 81,641 for repairs took occupation under a tenancy created between himself and the owner.
About two months before the tenancy ran out, Afr." Witchell was approached by the Bank to pay his rent. They, however, did not tell defendant that they were mortgagees, neither did they in any way annul the tenancy. Mr. Witchell was allowed to complete his term of occupation, when the Bank filed the claim for mesne profits, holding that the defendant had been trespassing. on their property.
In the course of his judgment, delivered yesterday afternoon. “ Mr. Justice Jacks said: "The point which has arisen in this case is an important" one for tenants, for even monthly tenants may suffer inconvenience if peremptorily told to go by a mortgagee who is enforcing his rights. A tenant for years of valuable business premises may suffer heavy loss by the voidance of his lease by the mortgagees, whilst a tenant who has paid his rent or any part of it in advance may find himself obliged to pay over -again to the mortgagee who acts decisively."
Judgment was given in favour of the defendant with costs. Mr. D. L. Strellett appeared in this case for the defendant, and Mr. M. M. Watson was for the plaintiffs.
THE JUDGMENT.
defendant on several occasions in February and March but got the same reply or something to the same effect.
The following is the judgment given by Mr. Justice Jacks:-
The plaintiffs in this action are Early in March, 1928, the defen- mortgagees and they claim meine dant, having recouped himself out profite from the tenant of their of the rent for the cost of the re- mortgagor under a tenancy agree-pairs left the premises and shortly ment made after the mortgage. after the plaintiffs took possession, Much legal argument has been put locked up the house and retained forward by both sides and there the keys. can be but few aspect of the caẹo to which my attention was not been drawn, but the evidence given in the case has been meagre.
I have listened to the argument with careful attention on acoquat of the serious consequences a case like this might have for mortgagees and tenante.
tenancies.
TWO BANISHEES IN A QUARREL.
SEQUEL TO LENDING OF MONEY.
The Mortgagess' Rights. Did the mortgagees interfere in this case and, if so, did they inter- tere effectually? Wo have been told by the defendant what "took FIGHT AT BOARDING HOUSE, place at the interview with the plaintiffs manager in November' Inst. If the manager was fully Requainted with the particulars of the tenancy prior to that interview I should have expected him to tell the defendant exactly what attied at the Yuct, Wah Boarding tude the plaintifs were going to House appeared before Major. C. adopt. They had two alternatives, Willson at the Central Magistracy either to tell the tenant he must as complainant against Chin Hung. go or they would eject him, or else also a "runner" of the same new tenancy with boarding house, whom he accused of stealing 895.00 from his person during a fight at the Hotel on the 29th instant.
to arrange him.
A
If the manager was not fully acquainted with the particulars of the tenaney before the interview took place. I should not have been eurprised had he then refused to state what course he proposed to take, but I should expect him to inform the defendant that he would
consider the position and left him know as soon as possible what he would do is the matter.
What did the manager do after learning full particulars of the tenancy He did not tell the de- fendant he must go and the defen dani was told that there was no euggestion that he should pay rent to the mortgagees. The defendant was asked if he would stay -- on longer at the same rent which he refused to do unless further repairs were done.
Tong Yuen a "runner
19
employ-
Detective Sergeant Fitches WAS in charge of the case, had Mrs. A. E. Hall appeared on behalf of the defendant and entered a plea of **not guilty."
The complainant told the Court that he brought his aunt to Hong Kong from the country and they stayed at the boarding house in question.. She had given him 825 to buy her passage to Singapore. He was sitting in the room with his aunt when the defendant came. running up the stairs carrying an iron rod. The defendant rushed
into the room, and seized him by his cont, and accused him of being an "informer." He snatched the
825 from his coat pocket, and said that if he (witness) did not give
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him $100 before that night he would S. Moutrie & Co., Ltd.
The Mortgagees' Intentions. What interence must be drawn kill him. The defendant then rush- from this? There is no evidence ed out of the room, and the witness that the mortgagees intended to reported the matter to the police. interfere then but rather that they intended to allow things to go on as they were and I think that is the impression the tenant took away with him.
make
the defendant in Singapore and Witness admitted that he knew
had spoken to him on several oc- casions. They worked together at
Victor Distributors.
an hotel in Singapore, and later MYSTERY GIRL DROWNED. the defendant had been banished,
OUGHT TO HAVE BEEN À Questioned by Mr. Hall the witness also admitted that he had been banished for fighting. Mr. Hall inti-
BOT."
A verdict of Found Drowned was
Had the mortgageee intended to adopt a different attitude after this interview, I should look for a more deligite intimation than the send ing of a Chinese accountant from mated that he had bech banished OPEN VERDICT AT INQUEST. the compradore's department to for robbery, but the witness chal-
amere verbal demand for lenged him to inspect the deporta-» the rent in view of what had tion certificate. He denied that he taken place at the interview the owed the defendant money. mortgagees should have expressly
Mr. Hall then called a Chinese informed the defendant either brak of the Boarding Hotel, who,
solicitor said, "had seen letter or at a further interview of
the fight." any change of intention.
Complainant: I have never seen
him.
Defendant: I only know him as Uncle"
The defendant, quite naturally I think, did not regard the visit of
Mr. Hall then called upon a men the zerountant as a change of in- in Court to stand up and asked tention on the mortgagees' part. complainant if he knew him as the le tout the accountant that he had Manager of the Yuet Wah Board- 11 the manager had authorised this already seen the manager about it.ing House.
demand for rent by the accountant I should have expected, in view The complainant's aunt confirm The plaintiffs now seek to recover of what he had been told at the ed the evidence given by the last mesne profits from the defendant. interview, that on non-compliance witness and said that she gave him Now an action for, mesne profits is he would at least have written to the Sas to buy a passage to Singa an action for damages for trespass possession or mentioned ejectment, and called the complainant a the defendant and demanded pore. Defendant entered her room (Dunlop v. Macedo, 8. T.L.R.43). even though, as I believe was the scoundrel," accused him of being Has the defendant committed a case, he may have been advised an "informer and assaulted him. trespass against the mortgagees I that ejectment proceedings were He then snatched the 825 from her
not worth while. do not think he had for reasons
nephew's pocket. which will appear in the course of this judgment.
The Law On This Question, I will now consider the law on
this
Cross-examined by Mr. Hall the witness finally admitted that the of swing him money which he had defendant had accused her nephew lent him in Singapore.
returned at the Ealing inquest on Mable Emily Colbourne, the 20-year- old shop assistant, of St. Helen's- gardens, North Kensington, whose body was found in the Grand June- tion Canal at Greenford, Middlesex.
Miss Colbourne's body was covered from the canal, at Fisher's Bridge near a spot where a stolen motorcycle had been found."
The girl had been missing from ber home since April 15th, when she left at about 8 am, apparently to go to a tobacconist's shop where she was employed.
Ealing, stated that there were in- Dr. George Thomson, of Wast juries on the body, apparently caused by a barge's propeller.
of identification. His daughter, ke A coffee stall keeper gave evidence did, had no particular sccupation. On the morning of her disappear- ance she was going to take up work La assistant to a tobacconist.
company with any man?
The Coroner: Was she keeping
Mr. Colbourne No. In my The Defendant's Story.
opinion she ought to have been a boy, instead of a girl. The opposite ness box and said that he had been
The defendant went into the wit-sex had no particular attraction.
Coroner: Have you ever heard" employed at the Yuet Wah Board of her going for pillion rides with
House for over 10 years. He friends i had worked with the complainant
in Singapore and had lent him speak of motoring. I gather it had Mr. Colbourne: I have hered-her"
the tenant should carry out certain of the mortgaged property, it is oftion of the tenancy. If there has and to give him back his watch and / the girl was dressed in a jazz jumper
remedies.
༢་
The Tenancy Would Continue. In the absence of effective inter- The main facts are these:-In
ference on the part of the mort In April, 1924, one Wong Maag Wai
gagacs the tenancy agreement mortgaged Inland Lot No. 1721
would continue to subsist between |the mortgages and his tenant 'unțil together with the buildings stand-this question. It has long been at expired and the tenant would ing thereon known as Budree Villa settled that "when a legal mort remain liable to the mortgagor to the plaintiffs to secure banking facilities, the mortgage deed did Bage is executed the mortgagee until he gave up possession.
On the evidence given in not reserve to the mortgagor the becomes the legal owner of the right to grant lenses or create mortgaged property and in the ab case i do not consider that the sence of express stipulation to the mortgagees did interfere effective In March, 1997, Wong Mang Wai, atrary is entitled to immediately. They did not treat the tenant his gold watch and chain Com no attraction for her. As far as I the mortgagor let the house Budrea Possession or receipt of, the rents as a trespasser neither did they plainant was subsequently banish know, she never went for a pillion
They ed from Singapore and the witness ride. Villa to the defendant. The terms demande possession or enters into allowed the tenancy to expire so next saw him in Hong Kong last
and profits, but until the mortgagee make him their tenant. of the tenancy agreement being that the receipt of the rents and profits that the tenant remained the tenant February, and asked him to repay
No Foul Play. of the mortgagor until the expire the money which he had lent him,
Police-sergeant Cowie stated that repairs as reasonably as possible the nature of the transaction that and recoup himself out of the rent the mortgagor should remain in been any failure on the part of the chain. The complainant said that and a black silk dress. There was at the rate of $125 per month. possession and such possession in
defendant to fulfill any of his he had no money, and finally per- ao suspicion of foul play, The mortgagor made default rightful (Heath Pugh, 1889, 6. obligations under the tenancy agree- suaded the defendant to lend him There were marks on the bank of under bia mortgage deed early lant | Q.B.D.)..
ment, it is for the mortgagor to another 85.00
“å motor-cycle' having fallen into the ~ year and the mortgagees then be-
take action. It has also long been settled that The point which has arisen in saw the complainant and a woman.
On the 29th instant the defendant } water. eame entitled to enforce their a mortgagor is not bound to so this case is an important one for enter the hotel, and followed him bourne, said: "You have heard the The coroner," addressing Mr. Col.
The defendant stated in his while in possession even although may suffer inconvenience if peremp said he had no money, and the de- much, does it?!!~
count for the rents and profite tenants, for even monthly tenants to ask for his money. Complainant evidence: It does not help us very. evidence:-(a) That the first com.] the Becurity prove insufficient torily told to go by a mortgagee fendant pulled him outside, with munication he had from the mort (Coote on Mortgages, 8th edition, who is enforcing his rights. A the result that a free fight ensued. to me.
Colbourne: It remains a mystery gagees (plaintiffs) was in Novem. p. 689).
tanaut for years of valuables busz- The defendant denied that he ber, 1997, when he received a let
In this case we have to consider ness premises may auter heavy loss took 826 from the complainant and ter asking him to call and see their a tenancy created after a mortgage on the voidance of his lease by tae said that after the fokie of the manager... (b) That he went at
1 which no right to grant leases, mortgagees, whilst a tenant who hotel had intervened and suggest once. (c) That at the internew the manager asked him what the terms served to the mortgagor. Such a it in advance may find himself day, he agreed and went away or create tenancies has been re- has paid his rent or any part of ed that he should return another of the tenancy were and was in reservation would appear to be obliged to pay over again to the quietly. formed what the position was. (d) i necessary here because mortgagora mortgages who acts decisively. That there was no suggestion that have no statutory powers of leas. la this case the tenant has been to the Magistrate that when the de-
Sergeant Fitches, the
then remarked. rent should be paid to the morting as they have now in England. fortunate is being allowed to com- fendant was charged at the Police gagees (e) That the manager ark- We have, therefore, to consider plete his tenancy for had the Station he made no report of lend- ed the defendant if he would stay further what is the position at mortgagees taken decisive action ing the complainant & further 80 on longer at the same rent, which common law. Thus
When a report was published last was decided during his tenancy his plea that in Hong Kong The police officer week, stating that the Earl at the defendant refused to de unless long ago in the case of Trente . he had paid his rent in advance also said that the defendant was Birkenhead will leave politics after further repairs were done.
Hunt (1833) 9 ex cases, when Baron would have been of little avail. given every chance to refund any the next General Election and zo This account of what took place Alderson said that "Where a man He would have had to give up money, including the $25 which he into the City, Lord Birkenhead at the interview was not disputed in actual possession of land mort powersion or continus as tenant of is alleged to have stolen.clared that there was nothing what- by the plaintiff nor was the mangages it and afterwards demises it the mortgagees at such rent and
The felt of the Boarding Housseter in the rumour. nger called, Nothing more seems to a tenant at a reat, the demies on ench terms as the mortgagees said that he had seen the fight, but This denial obviously settled the to have happened until the middle is absolutely void as against the saw fit to impose.
did not see the defendant carry say matter of Lord Birkenhead's inten-" of January, 1928, when an account mortgages, but nevertheless it The mortgagees, having failed to iron rod. He heard nothing about tions of going into the City, says ant from the compradore's depart is good as between the mortgagor set aside the tenancy whilst it was the defendant stealing the go from the London Morning Post. It is ment of the plaintiff a banque-call- and his tenant until the mortgages in operation the defendant never the complainant and remarked that still, however, persistently reported ed on the defendant and asked for interferes and the mortgagor is became a trespasser. He remained at his request the defendant walked that after the next General Election the rent when the defendant said entitled to receive the rest for his table to the mortgagor as tenant quietly downstairs after the fight. Ford Birkenhend is extremely like "That's all right, I have seen your own absolute use and dietrain for until he gave up possession. Their
The Magistrate remarked that ly to accept an 'oner, not in the manager about it. This account it in his own name if not paid claim for mesne pronti, therefore, the evidence was very conflicting City but from a grea; journalistic anf appears to have called on the when due,
and discharged the defendant.
combizie.
mut fail
LORD. BIRKENHEAD.
HIS CAREER AFTER THE
NEXT ELECTION:
JOURNALISM?
LONDON, May 2nd.
41
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