Bradburne v Botfield
| Jurisdiction | England & Wales |
| Judgment Date | 09 July 1845 |
| Date | 09 July 1845 |
| Court | Exchequer |
English Reports Citation: 153 E.R. 597
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 14 L. J. Ex. 330. Referred to, Palmer v. Mallet, 1887, 36 Ch. D. 422.
[559] bradburne v. botfielu. July 9, 1845.-A declaration in covenant stated, that, by indenture of lease, Sir E. W. and J. A. A., (who were seised in fee of an undivided fourth part of the premises in trust for E. M. F.) E. F. and E. M. F. his wife (the cestui que trusts), M. W., who was seised in fee of another undivided fourth part, W. T., who was seised in fee of half, and Q. T. and S. T., who had equitable interests in that half, jointly demised, according to their several estates, rights, and interests in certain coal-mines, to the defendant and two others, yielding and paying certain rents to the said E. F., E. M. F., Sir E. W., J. A. A., M; W., IS. T., G. T., and W. T. respectively, and to their respective heira and assigns, according to their several arid respective estates, rights, and interests iti the premises; that the defendant and the two other lessees covenanted with all the above parties, and each and every of them, their and e;ieh and every of their heirs, executors, administrators, and assigns, to repair the premises, and to surrender them in good repair to the lessors, their heirs and assigns, respectively, at the end of the term, and to work the mines properly. The declaration then deduced to the plaintiff a title to the moiety of the said W. T., and alleged as breaches the non-repair of the premises, and the improper working of the mines. Plea, that J. A. A. was the survivor of all the covenautees :-Held, that the covenants were joint, and not several, and that the surviving covenantee ought to have brought the action.-Quwre, whether one of several tenants in common, lessors, can sue on a covenant to repair made with all. [S. C. 14 L. J. Ex. 330. Referred to, Palmer v. Mallet, 1887, 36 Ch. D. 422.] Covenant. The declaration stated, that, at the time of the demise thereinafter mentioued, Sir E. Wilmington and J, A. Addenbrooke were seised in their demesne as 598 BBADBURNE V. BOTFIELD HM.&W.560. of fee of one undivided fourth part of the demised premises ; that Mary Whitby was seised of one other undivided fourth part, and that W. Townsend was seised of two other undivided fourth parts; and thereupon, by an indenture of lease, of the 1st ol October, 1801, made between the Honourable E. Foley find Eliza Maria his wife, of the first part; the said Sir E. Wilmington and J. A. Addenbrooke, of the second part; Mary Whitby, of the third part; Sarah Towosetid, widow, relict of Gilbert Townsend, deceased, of the fourth part; G-eorgc Townsend, only son and heir-at-law of the said Gilbert Townsend, of the fifth part; the defendant and Thomas Botfield and Beriah Both'eld, of the sixth part; after reciting, that, by virtue of an indenture of bargain and sale, dated the 13th of August, 1793, and made between the said Edward Foley and Eliza Maria his wife, one of the three co-heirs of Thomas IIoo, Esq., deceased, of the one part, and Sir E. Wilmington and J. A. Addenbrooke, of the other part, and also by virtue of a fine levied in pursuance thereof, one fourth part or share of the premises thereinafter stated to be demised stood limited unto and to the use of the said Sir E. Wilmington and J. A. Addenbrooke, their heirs and assigns for ever, in trust (inter [560] alia) for such persons and for such estates, &o., as the said Eliza Maria Foley should by deed or will appoint; and also reciting that the said Mary Whitby was seised in fee of one other undivided fourth part of the same premises ; and further that, by indenture dated the 23rd of January, 1784, and a Hue levied pursuant thereto, one undivided moiety of the same premises were limited unto and to the use of Gilbert Townsend and William Townsend, their heirs and assigns for ever, in trust, as to the estate of the said William Townsend, for the said Gilbert Townsencl, his heirs and assigns for ever : it was witnessed, that the said Sir E. Wilmington, J. A. Addenbrooke, E. Foley, Eliza Maria Eoley, Mary Whitby, William Townsend, Sarah Townsend, and George Townsend, according to their several and respective estates, rights, and interests in the tenements thereby demised, did demise to the defendant, and to the said Thomas Botfield and B. Botfield, a certain messuage, buildings, and several closes of land, with all and every the mines and veins of coal and ironstone lying and being under the said several closes, with full power for the defendant and the said T. Botfield and B. Botfield, their and each of their executors, administrators, and assigns, their and each of their agents, &c., to work the said mines aiid veins of coal and ironstone, &c. : to hold the said messuage and buildings and closes of land, and to hold, use, exercise, and fully enjoy all and every the said mines, iSc., unto the defendant and the said Thomas Botfield and Beriah Botfield, their executors, &c. for the term of sixty years, yielding and paying unto the said Edward Foley and Eliza Maria Foley his wife, Sir E. Wilmington, J. A. Addenbrooke, Mary Whitby, Sarah Townseud, George Townsend, and William Townsend respectively, aiid to their respective heirs and assigns, according to their said several and respective estates, rights, and interests in and to the said premises, the yearly rents and reservations therein mentioned. And it was by the said indenture further witnessed, [661] that, In consideration of the said demise, the defendant and the said T. Botfield ajid Beriah Botfield, and every of them, did thereby for themselves and himself, and their arid his joint and several heirs, executors, &u., covenant and agree to and with the said E. Foley and E. M. Foley his wife, Sir E. Wilmington, J. A. Addenbrooke, Mary Whitby, Sarah Townsend, George Townsend, and William Townsend, and each and every of them, their and each and every of their heirs, executors, administrators, and assigns, in manner following, viz. to keep the said messuage and buildings, and all and every the furnaces, tire-engines, iron works, dwelling-houses, and other erections and buildings, in good and sufficient repair, and the same, so repaired, to deliver up at the end or other determination of the said lease to the said lessors (naming them), and their heirs and assigns respectively. There were also covenants to work the mines, &c., in a proper and workmanlike manner. There was also a proviso, that if the defendant and the said T. Botfield and B. Botfield should be desirous of determining the;lease at the expiration of any one year, and should signify such their intention btf notice at least one year before the expiration of any...
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