In a writ of waste
Danby. Judgment of the writ for the writ supposes the waste to have been committed in terris, domibus, boscis et pratis and he has counted among other things of waste committed in knocking down a fence that surrounds a house and this cannot be adjudged waste; judgment of the writ.
And by the whole of the Court this was adjudged no waste; nor is a wall uncovered waste but a wall roofed in thatch or a fence covered with timber can be waste, but here is no such matter shown; and no waste can be shown in the breaking down of a hedge.
Danby. We now ask that all the writ be abated because it appears by his own acknowledgement that this writ is defective in part and when he acknowledges that it is defective in any part the whole writ abates.
NEWTON, J. If this is by the acknowledgment of the party then that is true but it is different when it is a surmise from the writ or declaration; so answer to what remains.
Danby. Again, judgment of the writ because it appears from the writ that the lease was made by the wife and one T. then her husband in which case during the coverture she can make no lease but it will be adjudged the lease and the deed of the husband. So, judgment of the writ.
NEWTON, J. We cannot adjudge this the deed of the husband alone because she can assent to the lease if she wishes and then it will be said to be a lease of the husband and of the wife. So the court adjudged the writ good.
Danby. Again judgment of the writ because we tell you that the wife and her then husband T. held only in parcenry with R.K. and his wife A. as of the right of A. Judgment of the writ.
NEWTON, J. AND THE WHOLE COURT. That is not a plea unless you wish to show that A. is still living and it is still not a plea because if there are two joint tenants and one makes a lease of the whole that is a disseisin committed against her companion in respect of the moiety and so the reversion belongs only to the one who made the lease of the entirety.
Danby. We tell you that the woman who is now plaintiff and T.H. then her husband and R.K. and A. his wife were seised as of the right of their wives and made the lease jointly for the terms of their lives and R. is still living, and that T.H. and his wife did not make the lease alone as the plaintiffs have suggested; so judgment of the writ.
NEWTON, J. AND THE WHOLE COURT. That is still no plea without showing that A. is still alive or that A. had issue which is still living or else that R. had issue with the said A. and so he is tenant by the curtesy at least, for you cannot abate this writ unless you are willing to give the claimant a better writ.
Danby. It is not right that the tenant be charged jointly against those who made the lease and also severally and the said R. Kend’ has an action of debt for the arrears.
And THE COURT said that Robert would have an action of debt for the arrears accrued during his wife’s lifetime, otherwise not. So etc.
Danby says (as before) that the lease was made jointly and that R. had issue with the said A., one John, and this R. is still living and that the lease was not made by T.H. and his wife alone; judgment of the writ.
On another day
NEWTON, J. It seems that the plea is good because there is enough privity to make the husband and wife and the said R. privy in an action, because a writ of partition lies against the tenant by curtesy and it is not inappropriate that one who has the fee simple in reversion should join in an action of waste with one who has in reversion only a life interest, for suppose that the reversion of a tenancy for life is granted to two people and the heirs of one of them, then they ought both to join in an action of waste and it will be supposed by the writ that the waste was committed to the disinheritance of the one, namely the one who has the fee simple. Suppose also that a husband makes a lease for life of his wife’s right: does he have the reversion in his own right or in right of his wife?
Danby. In right of his wife.
NEWTON, J. That is right because such estate as he had in the land before the lease he has now in the reversion (but query because this is surprising to me)
Citations:
[1443] [Co. Litt. 53a (b); Viner 446, no. 12]
Jurisdiction:
England and Wales
Cited by:
Cited – Dayani v London Borough of Bromley TCC 25-Nov-1999
LA Tenant liable for permissive waste
The local authority was tenant of properties which it sub-licensed to homeless persons for three years was liable for having allowed the properties to deteriorate. It was claimed that they were liable for permissive waste as tenants for a fixed . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 06 May 2022; Ref: scu.196984