Baker and Wife, Executrix of Hutchins, v Gostling
| Jurisdiction | England & Wales |
| Judgment Date | 07 November 1834 |
| Date | 07 November 1834 |
| Court | Court of Common Pleas |
English Reports Citation: 131 E.R. 1024
IN THE COURT OF COMMON PLEAS
S. C. 4 Moo. & Sc. 539; 3 L. J. C. P. 292, Referred to, Baynton v. Morgan, 1888, 21 Q. B. D. 105; 22 Q. B. D. 74.
bakek and wife, Executrix of Hutchins, v. gostung. May 27, 1834. [S. C. 4 Moo. & Se. 539 ; 3 L. J. C. P. 292, Eeferred to, Baynton v. Morgan, 1888, 21 Q..B. D. 105; 22 Q. B. D. 74.] Lessee for a term of years underleased for a term longer than his own, the under-lessee covenanting to pay rent to lessee: Held, that the executor of lessee might sue the under-lessee for rent accruing during the continuance of lessee's term. The declaration stated, that John Hutchins deceased, in his lifetime, at the time of making the indenture thereinafter mentioned, was lawfully possessed of a certain messuage or dwelling-house and tenement, situate at, &c., with the appurtenances, for the residue and remainder of a certain term of thirty-one years, commencing from the 25th of December 1823, then to come and unexpired therein; and the said John Hutchins being so possessed thereof, by a certain indenture, made in his lifetime on the 17th of December 1825, between [20] the said John Hutchins of the one part, and the Defendant on the other part, the counterpart of which indenture, sealed with the seal of the Defendant, the Plaintiffs brought into Court, the date whereof was the same day and year last aforesaid, the said John Hutchins for and in consideration of the sum of 1001. to the said John Hutchins in hand paid, and also in consideration of the yearly sum of money, covenants, and agreements, thereinafter mentioned and contained, by and on the part and behalf of the Defendant, his executors, administrators, and assigns, to be paid, kept, done, and performed, assigned unto the Defendant, his executors, administrators, and assigns, the said messuage or dwelling-house and tenement, situate and being as aforesaid, to have and to hold the said messuage and premises thereby assigned, and every part thereof (except as before exeepted), unto the Defendant, his executors, administrators, and assigns, from the 29th of September then last past, for and during the residue and remainder of the said term of years then to come and unexpired, yielding and paying therefore yearly and every 1 BING. (N. C.) 21. BAKER V. GOSTLING 1025 year, during the said residue and remainder of the said term, unto the said John HutchinSj his executors aud administrators, the yearly sum of 751., by equal quarterly payments, on the 25th of December, the 25th of March, the 24th of June, and the 29th of September, in every year, without any deduction or abatement whatsoever, the first payment to be made on the 25th of March 1826. And the Defendant did thereby for himself, his heirs, executors, administrators, and assigns, covenant, promise, and agree, to and with the said John Hutchins, his executors and administrators, amongst other things, that he, the Defendant, his executors, administrators, and assigns, should and would pay unto said John Hutchins, his executors and administrators, the said yearly sum of 751., in the propor-[21]-tions and on the days thereinbefore appointed for payment thereof, without any deduction or abatement whatsoever. By virtue of which assignment, the Defendant afterwards, to wit, on the said Nth of December 1825, entered into and upon all and singular the said assigned premises with the appurtenances, and became and was possessed thereof, for the residue and remainder of the said term, so to him thereof assigned. The Plaintiffs then averred, that after the making of the said indenture, and during the continuance of the term thereby assigned, and after the death of John Hutchins, to wit, on the 25th of December 1833, a large sum of money, to wit, the sum of 2431. 15s. of the said yearly sum of 751. in the indenture mentioned, for divers, to wit, thirteen of the said quarterly payments therein mentioned, according to the form and effect of the said indenture and of the said covenant of the Defendant, became and was due and payable from the Defendant to the Plaintiffs James and Mary Baker, as executrix as aforesaid, and still was in arrear and unpaid, contrary to the form and effect of the said indenture and of the covenant of the Defendant in that behalf. That the Defendant, although often requested, had not kept his said covenant, so by him made with John Hutehins in his lifetime, but had broken the same; and to keep the same with the Plaintiffs, James and Mary Baker, as executrix as aforesaid, bad hitherto altogether refused, and still refused, to the damage of Plaintiffs, James and Mary Baker, as executrix, of 3001., and thereupon they brought their suit, &c. And brought into Court the letters testamentary of John Hutchins deceased, whereby it fully appeared that the said Mary was executrix of the last will and testament of said John Hutchins deceased, and had execution thereof, &c. After setting out on oyer the deed declared on, the Defendant pleaded that all the estate, interest, right, title, [22] term of years to come and unexpired, property, profit, claim, and demand whatsoever, which the said John Hutchins, at the time of making the supposed indenture in the declaration mentioned, or at any time afterwards, had of and in the premises with the appurtenances in the declaration mentioned, were derived by him under and by virtue of a certain indenture, made the 1st of August 1824, between Sir Richard Sutton of the one part, and John Hutchins of the other part, and sealed with the seal of the said Sir Kichard Sutton : by which indenture Sir Richard Sutton demised and let to John Hutchins, all the premises with the appurtenances mentioned in the declaration, (except as therein excepted,) to have and to hold the same unto the said John Hutchins, his executors, administrators, and assigns, from the 25th of December then last past, for and during and unto the full end and term of thirty-one years from thence next ensuing, and fully to be complete and ended, at and under a certain yearly rent, to wit, the yearly rent of 351. thereby reserved and made payable to the said Sir Richard...
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