Brewster v Kitchell
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1795 |
| Date | 01 January 1795 |
| Court | Court of the King's Bench |
English Reports Citation: 91 E.R. 177
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER.
Hill. 9 Will. 3, B. R. 1 Ld. Raym. 317, S. C.
See S. C. 1 Ld. Raym. 317 (with note).
[1981 4. bbewster versus kitchell. fc J [Hill. 9 Will. 3, B. R. 1 Ld. Raym. 317, S. C.] [See S. C. 1 Ld. Raym. 317 (with note).] Garth. 438. 5 Mod. 368. Covenant to discharge from taxes, extends to subsequent taxes of the same nature; not of different nature. Post, 615, S. C. Comb. 424, 466. 3 Salk. 340. Cases B. R. 166. Holt 175, 669. 2 Lev. 68. This was a feigned action on the case upon a wager, in order to settle a difference about the deduction of taxes out of a rent-charge. Upon non assumpsit pleaded, tha jury found a special verdict, viz. that A. being seized of lauds in fee, by deed dated 178 COVENANT 1 SA1KELD, 199. 1649, granted a rent-charge to one Brewster and his heirs, and covenanted for farther assurance; and on the same deed there was an indorsement, that the rent was to he paid clear of all taxes. Afterwards A. confirmed the grant, and covenanted to pay the rent-charge clear of all taxes. By the land-tax 3 W. & M., 4s. per pound is laid upon land, and power given to the tenant to deduct 4s. in the pound, with a proviso not to alter covenants or agreements of parties. Etper Cur. Such a covenant, if made in the year 1640, would not have freed the rent-charge from the taxes imposed by these Acts; because there was no Parliamentary tax in being, or known at that time; but because there were such taxes in the year 1645, which was before the grant, therefore this covenant must be construed to extend to-them ; for otherwise it would signify nothing (a): and Holt, C. J. held in this case, 1st, That the heir of the grantee could not maintain an action of covenant against the assignee or lessee of the grantor; but only against the grantor and his heirs; for a warranty, though a covenant real, does not bind the land till judgment had in a wan'antia chartce, much less that which is only a personal covenant. An assignee of land may have covenant against the covenantor and his heirs, where the covenant runs with the land. 42 E. 3, 5. 5 Co. Spencer's case ; but covenant will not lie merely against one as assignee of land. Hard. 87, pi. 5. 2dly, Where the question is, whether a covenant be repealed by Act of Parliament ? this is the difference, viz. where H. covenants not to do an act or thing which was lawful to do, and an Act of Parliament...
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...is anything in Lord Buckmaster's judgment in the case of ( Matthey v. Curling 1922 2 A.C. 180), or in the cases of ( Brewster v. Kitchell 1 Salk. 198) or ( Baily v. de Crespigny L.R. 4 Q.B. 180) inconsistent with the view that the doctrine of frustration cannot apply to a lease of land, ......
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