1822. PARTRIDGE against BERE. mortgagor without the consent of the mortgagee, the payment of interest is a recognition of the title of the mortgagee, and evidence of an agree ment that the mortgagor, or person deriving title from him, shall hold at will, and a strict tenancy at will commences. Holland v. Hatton. (a) If the land is in the occupation of tenants, and the mortgagor is permitted to receive the rents, he has been considered to be a receiver for the mortgagee, Muss v. Gallimore (b), but without liability to account. Coote's Law of Mortgages, p. 327, 8. (a) Carth. 414. & 10 Vin. Ab. 118. pl. 19. (b) 1 Doug. 283. Vide Ex parte Wilson, 2 Ves. & Bea. 252. Saturday, April 27th. A deed contain release of all debts, &c., recited that the releasee had previously agreed to pay to the releasor the sum of 401. for the posses. LAMPON the younger against CORKE. ing a general ASSUMPSIT against the defendant, as the maker of the following promissory note, dated Edenbridge, April 11th, 1821, "Two months after date I promise to pay Mr. Thomas Lampon, junior, or order, the sum of 40l., value received this day, in things appraised by Mr. Doubell, and in having possession given to me of sion of certain the premises lately held under me by Thomas Lampon, senior, afterwards by the sheriff." The declaration con premises, and that in "con sideration of the said sum of tained, also, counts for goods sold and delivered, and 401. being now so paid as here- the usual money counts. Plea, general issue. inbefore is mentioned," and also in consideration of the sum of 10s. a piece, well and At the trial, at the last London sittings, before Abbott C. J., it appeared, that the defendant was the landlord of certain premises occupied by the plaintiff''s father, and that the the said releasor plaintiff having taken possession of the premises, and the truly paid to and J. S., the receipt of which crops growing thereon, under a writ of execution against said several sums of money they did thereby acknowledge, did release, &c. There was also a receipt for the sum of 401. indorsed on the release. But it appeared on action afterwards brought for this sum that, in fact, it had never been paid: Held, that this deed of release was no estoppel, inasmuch as the general words of release were qualified by the recital, which stated only an agreement to pay, and not an actual payment of the sum of 40%. his father, the defendant, in order to get possession of the premises and crops, gave the note in question, which, when originally signed by him, did not contain the words" or order." These words were inserted on the 14th April, 1821, without his knowledge. Under these circumstances, the Lord Chief Justice thought the count on the note could not be sustained, and the plaintiff then proceeded on the other counts in the declaration. The defendant, in answer to the plaintiff's case, put in a deed, executed by the plaintiff, dated 14th April, 1821, which recited that Thomas Lampon the elder, was in possession of certain Hereditaments and premises, as tenant to the defendant, but which tenancy would have expired on the 29th day of September, 1821, had it not been otherwise determined; and that the plaintiff had recovered a judgment against the said Thomas Lampon the elder, for the sum of 450l., besides costs of suit; and thereupon all the estate, term, and interest of the said Thomas Lampon the elder, of and in the said hereditaments and premises, together with the crops growing thereon, were taken in execution, by virtue of a writ of fieri facias, and the warrant grounded thereon, at the suit of the plaintiff; and that the defendant, being desirous of obtaining possession of the premises, applied to, and prevailed on, the plaintiff, as such judgmentcreditor, to give him possession of the same, which the plaintiff accordingly did, on the 11th day of April, instant, he, the said defendant, having then agreed to pay unto the plaintiff the sum of 401. for such possession; and that the defendant had requested the said Thomas Lampon the elder and the plaintiff, to execute an assignment of all their estate, title, and interest in the said hereditaments, which they had agreed to do; and then proceeded 1822. LAMPON against CORKE. 1822. LAMPON against CORKE. proceeded to state, that, in pursuance of such agreement, "and in consideration of the said sum of 401. being now so paid to the plaintiff, as hereinbefore is mentioned;" and also, in consideration of the sum of 10s. a-piece to the said Thomas Lampon the elder and the plaintiff, in hand well and truly paid by the defendant, immediately before the execution of those presents; the receipts of which said several sums of money they did severally and respectively acknowledge; and from the same sums respectively and every part thereof, did thereby severally and respectively release the defendant, his heirs, &c. the plaintiff bargained, sold, &c.; and Thomas Lampon the elder bargained, sold, ratified, and confirmed unto the defendant, his heirs, &c. all the messuages or tenements, &c. and it was further stated, that for the con-siderations thereinbefore mentioned, and also of the sum of 10s. to the plaintiff, in hand paid by the defendant," immediately before the execution of those presents, the receipt whereof was thereby acknowledged, he the plaintiff, generally released the defendant, his heirs, &c. from all dues, sums, claims, and demands whatsoever, both at law and in equity. There was also indorsed on the deed a receipt by the plaintiff for the sum of 401., dated April 14th, 1821. The Lord Chief Justice thought this deed not a sufficient answer to the plaintiff's case, it being clearly proved and admitted, that, in fact, the sum of 401. above mentioned, had never been actually paid. The plaintiff accordingly had a verdict and now, Puller, by leave of the Lord Chief Justice, moved to cnter a nonsuit. Here the release was a complete" answer to the plaintiff's demand, and he cannot be allowed, after an admission, by deed; of the fact of pay ment ment of the 40%., to prove, by parol evidence, that it had not been so paid. Rowntree v. Jacob (a), Co. Litt. 512. The plaintiff's remedy, if he has any, is in equity; but at law the release is a good defence; for he has, in terms, distinctly admitted the receipt of the 40%. ABBOTT C. J. It appears to me, that in this case the release does not operate to prevent the plaintiff from recovering. The deed is, indeed, inaccurately worded; but the Court ought to give such an effect to it as may best consist with what appears to have been the manifest intention of the parties, and what may best conduce to the real justice of the case. In the recital it speaks, in the first place, of an agreement to pay, and not of the actual payment of the sum of 401. And then the consideration for the release is stated in these words: "In consideration of the said sum of 40%. being now so paid to the said Thomas Lampon the younger, as hereinbefore is mentioned." These latter words shew, that the parties meant to refer to the former part of the deed, where it speaks of an agreement to pay this sum; and that we ought to read the whole sentence thus: "In consideration of the said sum of 401. being now so agreed to be paid as aforesaid." If that were not so, this absurdity would follow; that the deed would recite an agreement to release in consideration of the payment of 401.; and then would proceed to release the defendant from the payment of that very sum itself. We have been pressed with the difficulty arising out of the words immediately following; "the receipt of which said several sums of money they, the said Lampon the elder and plaintiff, admit, &c." But these may and do refer, most properly, to the payment of 10s. a-piece to those persons VOL. V. (a) 2 Taunt. 144. S s mentioned 1822. LAMPON against CORKE. 1822. LAMPON against CORKE. mentioned immediately before. And by so construing the deed, the whole becomes intelligible, and consistent with the justice of the case, and the obvious intention of the parties. I think, therefore, that the operation of this deed was not to release this sum, inasmuch as the release, though in general terms, must be controlled by the previous recital. The verdict is, therefore, right. BAYLEY J. The true question is, whether there is any thing in this deed which clearly shews, that this sum of 401. has been paid to the plaintiff, and that not by a security, but in money. It must necessarily be admitted, that this release would have been an answer equally to the action on the note, if the note had remained unaltered. Then, are the words so clear as to leave no doubt? It first recites, that the 407. had been agreed to be paid. The recital does not go on to say, in addition to this, that the 40l. had been paid; but when we come to the operative part, we find it stated that, in consideration of the sum of 401. being now so paid, as hereinbefore is mentioned," &c. Now, the words "so paid," and "as hereinbefore is mentioned," obviously do not refer to a new payment, but to some former payment, mentioned in the deed. Then, if we look back, we find no actual payment there stated, but only an agreement to pay. The words of the deed, therefore, are ambiguous; and let us in to enquire, whether there was an actual payment or not. And, on the facts stated, there is no doubt as to that point. The Court is not, therefore, prevented from deciding according to what appears plainly the justice of the case; for although the note, as a security, is invalid; yet the debt for which it was given, not being paid, remains still due to the plaintiff. HOLROYD J. |