M’Mahon v Burchell, 67 E.R.
936 (1846)
*935 M’Mahon v. Burchell
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11 June 1846
(1846) 5 Hare 322
67 E.R. 936
1846
Analysis
*936 [322] June 5, 11, 1846.
[S. C. on appeal, 2 Ph. 127; 41 E. R. 889.]
A tenant in common occupying the premises held in
common not excluding his co-tenants in common is not
chargeable by such co-tenants with an occupation rent.
Where a debt to the estate of a testator may be set off
by the executors, against a legacy bequeathed by the
testator to the debtor, such debt may also be set off
against a legacy bequeathed by the testator to the wife
of the debtor, subject to her equity (if any) in the
legacy.
This case is reported on the original hearing, 3 Hare,
97; and upon appeal, in Mr. Phillips’ Reports, vol. 2, p.
127. 1
The Master reported that the Plaintiff, William
M’Mahon, occupied the “Lower House” during the
time he was engaged in the administration of the estate
of Terence, the father, and ought not to be charged with
any rent for such time; and that he had occupied the
house at other times for which he ought to be charged
with rent; that he had paid certain sums for outgoings
and repairs; and that there was nothing in his hands in
respect of the occupation of the house applicable to the
legacies.
The Plaintiffs did not except to the report. The
Defendants took exceptions; and among others, that
William ought not to be allowed in his discharge the
repairs and outgoings which had been allowed by the
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Master; and that the Master ought to have found assets
in the hands of William applicable to the legacies.
The Court, overruling several of the exceptions,
declared that the Plaintiff William ought to be
considered and treated as tenant in common of one
undivided seventh part of the “Lower House,” and
referred it to the Master to inquire whether any and
which of the [323] sums found by his report to have
been paid by the Plaintiff William, since the death of
Terence, in respect of repairs and outgoings, or
otherwise, on account of the said Lower House, ought
to be allowed to him during such time, having regard to
the declaration. On this reference the Master reported
the sums which ought to be allowed to William for
repairs and outgoings, but did not find any monies to be
in his hands. This report was not excepted to.
The case came on for further directions.
Mr. Romilly and Mr. Bagshawe, for the Plaintiff.
Sir F. Simpkinson, Mr. Hislop Clarke and Mr. Rolt, for
the Defendants.
June 11. The Vice-Chancellor [Sir James Wigram]
(after stating the proceedings which had been had in the
cause, before the report of the 4th of February 1845).
The Plaintiffs, by their state of facts, as in their
amended bill, insist on the fact that William never had
any exclusive occupation of the Lower House; that
such of the children of Terence as lived on the island
resided in the house as well as himself, and that all
might have done so if they had thought fit; and they
insisted that such occupation as William ever had, must
be referred to his rights as tenant in common with the
other children, and that in that character he had not
become liable to any rent. Now, the effect of the
Master’s first report, as I understand it, is that the
Master has not charged William with any rent during
one period, because he was then engaged in the affairs
of the whole family; that he has not charged him with
any rent during the intervals of his absence from the
island; [324] and that he has charged him with a
proportionate part of the rent only for those periods
during which other members of the family resided in
the Lower House as well as himself, as suggested by
the answer, charging those other members with rent
also. [His Honor then stated the exceptions which had
been taken, and the decision of the Court thereupon.] It
1
M’Mahon v Burchell, 67 E.R. 936 (1846)
did not at first appear, by the Master’s first report, in
what *937 character he had considered William as
occupying the Lower House, and I pointed out what
appeared to me to be the inconsistency of the finding. If
he considered William in the light of an ordinary lessee
of the entire property, why should he be excused from
paying rent, when, for his own purposes, he was
occasionally absent from the island? And why, if the
Plaintiff had to pay rent as lessee, should he be excused
from paying rent during the time that the other
members of the family visited him; and I concluded
that such occupation as the Master found William to
have had was not inconsistent with the character of a
tenant in common. I was of opinion upon the case in
evidence before the Master, whatever the grounds
might be on which the Master’s opinion was founded,
that the Plaintiff William was entitled to be considered
as tenant in common, occupying the Lower House
under that title, admitting some, and not excluding any
other members of the family from residing there if they
thought fit; and that, in that character, he was not
chargeable to them in respect of his occupation of the
Lower House. I remain of the same opinion now. I do
not state what my opinion might have been if William
had been a mere stranger; but he was not a stranger; his
position as tenant in common was sufficient to explain
his occupation without either trespass or contract. The
Defendants, however, under the order of 1843,
succeeded in persuading the Master to charge the
Plaintiff as an occupying tenant; [325] and the
Plaintiffs, from not excepting to that report, precluded
me from investigating the truth of the case, or from
disturbing the Master’s finding. The correctness of that
part of the case cannot therefore now be looked into.
No exceptions have been taken to the last report. The
Footnotes
1
On appeal to the Lord Chancellor, the original decree was altered by excluding the inquiry whether any sums were
due by the Plaintiff in respect of his occupation of the premises; but, on the point raised as to the liability of a
tenant in common to be charged with an occupation rent, the principle of the above decision was confirmed. (See 2
Phillips, 134.)
2
See 3 Hare, 99, and marginal note, Id. 97. And see Hall v. Hill , 1 Dr. & Wa. 109, per Sir Edw. Sugden.
67 E.R. 936
End of Document
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further directions were, therefore, plainly a matter of
course. The Defendants, however, have attempted in
argument to open the whole case, alleging as their
excuse, first, that there was inconsistency, and therefore
error, apparent on the report, in treating the Plaintiff as
occupying the Lower House in different characters
during different periods; and, secondly, that I had
erroneously supposed the Master to have treated him as
tenant in common. I do not think there is any such error
apparent in the report; nor did my former decision
proceed upon any hypothesis, but upon my own
judgment of the case and evidence then before me. I
should come to the same conclusion now. Even if I
thought the case was one in which the later proceedings
ought to be opened, in justice to the Plaintiff I could not
do otherwise than open all that has been done from the
month of June 1843. I could not hold him bound if I
opened the proceedings in the way desired by the
Defendant. From nothing which is now before me can I
see any ground for changing the opinion I had come to
before. The Plaintiffs are entitled to a decree for the
payment of their legacies.
I observe, by the report of this case on the original
hearing, that I am apparently reported to have said that
a legacy to a wife could not be set off against the debt
of the husband. 2 I wish that inaccuracy to be [326]
corrected. My meaning must have been that there could
be no such set-off in this case to the prejudice of the
wife’s equity (if any) to a settlement.
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2
M’Mahon v Burchell, 67 E.R. 936 (1846)

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