Barton against Fitzgerald
| Jurisdiction | England & Wales |
| Judgment Date | 05 May 1812 |
| Date | 05 May 1812 |
| Court | Court of the King's Bench |
English Reports Citation: 104 E.R. 944
IN THE COURT OF KING'S BENCH
Referred to, Canavan v. Burton,[1900] 2 Ir. R. 364.
944 BARTON V. FITZGERALD 15 EAST, 531. barton against fitzgerald. Tuesday, May 5th, 1812. The assignor in a deed of assignment of a lease, after reciting the original lease granted to another for the term of ten years, which by mesne assignments had vested in him, and that the plaintiff had contracted for the absolute purchase of the premises, bargained, sold, assigned, transferred, and set over the same to the plaintiff, for and during all the rest, &c. of the said term of ten years, in as ample manner as the assignor might have held the same, subject to the payment of rent and performance of covenants; and then covenanted that it was a good and subsisting lease, valid in law, in and for the said premises thereby assigned, and not forfeited, &c. or otherwise determined, or become void or voidable: Held that the generality of this covenant for title, which was supported by the recital of the bargain for an absolute term of ten years, was not restrained by other covenants which went only to provide for or against the aets of the assignor himself, or those who claimed under him; such as, 1st, a covenant against incumbrances, except an under-lease of part by the assignor for three years; 2dly, for quiet enjoyment; 3dly, for further assurance: and therefore where it appeared that the original lease was for ten years, determinable on a life in being, which dropped before the ten years expired, though not till after the covenant of the assignor, Held that the assignee might assign a breach upon the absolute covenant for title. [Referred to, Canavan v. Burton, [1900] 2 Ir. R 364.] The plaintiff declared in covenant on an indenture of "the 26th of October 1808 between the defendant and the plaintiff; reciting that by indenture of lease, dated the 16th of September 1807, Ann Roekall demised to James Smith a messuage, &c. and premises in the parish of St. James, Westminster, to hold from Michaelmas 1807 for the term of ten years, at the yearly rent of 501.: and also reciting that by divers mesue assignments, and ultimately by an assignment dated the 26th of August 1808, the said messuage, &c. had become vested in the defendant for the remainder of the said term of ten years then to come and unexpired; and reciting that the plain-[531]-tiff had contracted with the defendant for the absolute purchase of the said messuage, &c. comprized in the said thereinbefore in part recited indenture of lease, for 1301.; the defendant, in pursuance of the said agreement, and in consideration of 1301. paid to him by the plaintiff, did bargain, sell, assign, transfer, and set over to the plaintiff all that the said messuage, &e. therein before mentioned to be demised by the said in part recited indenture of lease, and thereby assigned or intended so to be, together with the said recited indenture of lease itself, and all benefit thereof, to have and hold the same to the plaintiff from Michaelmas last, for and during all the rest, residue, and remainder of the said term of ten years, in and by the said recited indenture of lease granted, and from thence to come and unexpired, in as full, large, ample, and beneficial a manner, to all intents and purposes, as the defendant might, could, or ought to have held or enjoyed the same, if the said indenture of assignment had not been made: subject nevertheless to the payment of the yearly rent and to the performance of the covenants reserved and contained in the said therein-before in part recited indenture of lease, on the part of the lessee or assignee of the said premises thereby assigned, to be paid and performed. And the defendant by the said indenture of assignment did covenant with the plaintiff that the said therein-before in part recited indenture of lease was a good "and subsisting lease valid in the law of and for the said premises thereby assigned, and not forfeited, surrendered, or otherwise determined, or become void or voidable. By virtue of which said indenture of assignment the plaintiff entered upon the said premises so assigned, and became possessed thereof until the said before-[532j-mentioned indenture of lease was avoided and determined, as after mentioned. The plaintiff then, after alleging performance of all things in the indenture of assignment contained on his part to be performed, &c. averred that the said indenture of lease in part recited in the said indenture of assignment thereof to him, was not a good and subsisting lease valid in the law, of and for the said premises by the last-mentioned indenture assigned, in this, that the said indenture of lease, and the term thereby demised at the time of making of such lease, and also at the time of the making of the defendant's covenant in that behalf as aforesaid, were severally voidable and determinable by the death of one Henry de la Touche the Elder, who during the said term granted by the said indenture of lease as aforesaid, viz. on the 15 EAST, 533. BARTON V. FITZGERALD 945 1st of September 1808, at, &c. died; and thereupon afterwards in Trinity term, 49 G. 3, one Henry de la Touche, who, by means of the death of H. de la Touche the Elder, had become and then was entitled to the possession of the said messuage and premises, brought his ejectment in the Court of K. B. for the recovery of the said premises, and obtained judgment, &c. Whereupon the plaintiff, in order to prevent his being turned out of possession of the said premises, afterwards on the 17th of December 1810, was obliged to yield them up to the said H. de la Touche, &c. The defendant, after craving oyer of the indenture, set it out at length, whereby, after the recitals before stated in the declaration, the defendant bargained, sold, assigned, transferred, and set over to the plaintiff all that the said messuage thereby assigned, together with the said in part recited indenture of lease itself, and all benefit thereof, "and all the estate, right, title, interest, term and [533] terms of years therein to come, and unexpired benefit, property, profit, claim, and demand whatsoever of the defendant in the thereby assigned premises by virtue of the said in part recited indenture of lease or otherwise howsoever, to hold, &c. (as before). And then it set out the covenants of the defendant in order; (1st.) That he (the defendant) hath not at any...
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