Browing v S. Wright and Others, Executors of J. Wright
| Jurisdiction | England & Wales |
| Judgment Date | 13 November 1799 |
| Date | 13 November 1799 |
| Court | House of Lords |
English Reports Citation: 126 E.R. 1128
IN THE COURTS OF COMMON PLEAS AND EXCHEQUER CHAMBER AND IN THE HOUSE OF LORDS
Referred to, Budd v. Fairmaner, 1831, 8 Bing. 53; David v. Sabin, (1893) 1 Ch. 532.
browning v. S. wkight and others, Executors of J. Wright. Nov. 13th, 1799. [Referred to, Sudd v. Fairmaner, 1831, 8 Bing. 53; David v. Sabin, [1893] 1 Ch. 532,] A. after granting certain premises in fee to B. and after warranting the same against himself and hi* heirs, covenanted, that notwithstanding any act by him done to the contrary he was seised of the premises in fee, and that he had full power, &o. to convey the same; he then covenanted for himself, his heirs, executors, and administrator*, to make a cart-way, and that B. should quietly enjoy without interruption from himself, or any person claiming under him; and, lastly, that he bis heirs, and assigns, and all persons claiming under him, should make further assurance. Held, that the intervening general words, " full power, &c. to convey," were either part of the preceding special covenant; or, if not, that they were qualified by all the other special covenants against the acts of himself and his heirs (a)1. Covenant against the representatives of James Wright. The declaration stated, that the said J. Wright by indenture in his life-time, fully, clearly and absolutely granted, bargained, sold, enfeoffed, and confirmed to the Plaintiff, his heirs and assigns a certain piece or parcel of arable land (describing it), and all ways, waters, &c. and all his estate, right, title, &c. in law or equity, to have and to hold to the Plaintiff, his heirs and assigns, absolutely and for ever; that he warranted it against himself and his heirs, and for himself and his heirs, and covenanted that he was, notwithstanding any acS by him done to the contrary, lawfully and absolutely seized in fee simple, and that he had a good right, full power, and lawful and absolute authority to convey ; that by virtue of this conveyance the Plaintiff entered and was possessed and fulfilled all his covenants and agreements. "Yet protesting that J. Wright did not in his lifetime well and truly observe, &c. and that the said Defendants have not nor have any of t6em since the death of the said J. Wright well and truly observed, &c. any of the covenants, clauses and agreements in the said indenture contained on their part and behalf respectively to be observed, &c.; in fact the said Plaintiff says that the said J. Wright had not at the time of making the said indenture nor at any time before or since good right, full power, and lawful and absolute authority, or any right, power, or authority whatsoever to convey or assure the said piece or parcel of arable land or any part thereof to the said Plaintiff his heirs and assigns in manner [14] aforesaid or in any manner whatsoever (a)!: by reason whereof afterwarda and after the making (a)1 Vide TattersaM v. Groote, post, 253. Howdl v. Richards, 11 East, 633. Seddon v. Senate, 13 East, 63-71. Barton v. Fitzgerald, 15 East, 530. Hesse v. Stevenson, 3 B. & P. 565. Nind v. Marshall, 1 B. & B. 319. Foord v. Wilson, 8 Taunt. 545, 546. (a)3 As the Plaintiff in this case meant to rely on the covenant by J. Wright that he had good right, full power, and lawful authority to convey, it seems that after negativing the Defendant's title to convey he need not have proceeded to state an eviction; for, on a general covenant, the breach may be as general as the covenant. Sradshavfs ca$et 9 Co. 60 b. Co. Eiit. 117 a. Cro. Jac. 304. S. C. Muscat v. Ballett, Cro. Jac. 369. Glinester v. Audley, Sir T. Raymond, 14. Wooton v.Hele, 1 Mod. 292, agreed, Per Cur. Balder v. Taylor, Hob. 12. Indeed, it may be questionable whether the averment, that E. Child and Mary his wife claimed to be lawfully seised of the premises, aad required the Plaintiff to deliver up possession or to become tenant to them, and ;that unless he had accordingly become their tenant, he would have been evicted, and that be did become their tenant, without shewing any entry by E. Child and his wife,, or any actual disturbance by them to authorize him in so doing, can be said to be such an averment of eviction as the law requires in cases where any averment of 2 BOS. fc POI,. 18. BKOWNING V. WRIGHT 1129 of the said indenture and the death of the said J. Wright, to wit on, &c. one Edward Child and Maty his wife then being and claiming to be lawfully and rightfully seised of and in the said piece or parcel of arable land wkh the appurtenances in their demesne aa of fee in right of the said Mary, and having a lawful right of entry into the same in right of the said Mary by a lawful (b) and rightful title not derived by from under or by means of the said indenture or by from or under the said Plaintiff, required the said Plaintiff to deliver up the possession of the said piece or parcel of arable land to them the said Edward and Mary, or to become tenants thereof to and to hold the same of the said Edward arid Mary at and under a certain yearly rent, to wit the yearly rent of thirteen pounds to be therefore paid by the said Plaintiff, and would than [15J and there, unless the said Plaintiff had so delivered up the possession thereof or become such tenant of and so held the same, have ejected, evicted, expelled, put out and amoved the said Plaintiff from and out of the possession thereof, whereupon the said Plaintiff to prevent his being obliged so to deliver up the possession thereof or being so ejected, evicted, expelled, put out and amoved, then and there was forced to and did become such tenant thereof to and so held the same of the said Edward and Mary, whereby," &c. alleging the Plaintiff's loss in baing deprived of his feet-simple, and being obliged to hold as tenant; his having laid out money on the premises previous to his knowledge of the badness of J. Wright's title, and his having paid a large sum to E. Child and Mary his wife for the mesne profits. The Defendants prayed oyer of the indenture, and it was read to them in these words, to wit, "This indenture made, &e. witnesseth, that the said J. Wright, for and in consideration of the sum of 1801. of lawful money of Great Britain, to him in hand paid by the said Plaintiff, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, bath granted, bargained, sold, enfeoffed, and confirmed, and by these presents doth fully, clearly, and absolutely grant, bargain, sell, enfeoff, and confirm unto the said Plaintiff and to hia heirs and assigns, all that piece or parcel of arable land (describing it) with the appurtenances and the reversion and reversions, remainder and remainders, rents, issues, yearly, and other profits of the said premises, and every part and parcel thereof ; and all the estate and estates, right, title, interest, use, trust, claim and demand whatsoever, in law or equity, of him the said J. Wright, of, in, to, or out of the said premises, every or any part or parcel thereof; To have and to hold the said piece or parcel of arable land, hereby granted, bargained, sold, enfeoffed, and confirmed, or mentioned, or intended so to be, and every part and parcel thereof, unto the said Plaintiff, his heirs, and assigns for ever, to and for the only proper use arid behoof of the said Plaintiff, his heirs and assigns, absolutely and for ever, without any condition, redemption, trust, or revocation whatsoever, and to and for no other use or uses, intents, trusts, or purposes this kind is necessary. In Foster v. Pierson, 4 Term Rep. 620, u. (a) it was admitted that the eviction need not be alleged to have been by legal process ; but some eviction must be shewn; for Shepherd's Touchstone, c. 7, p. 170, speaking of a covenant for quiet enjoyment, and disturbances lawful and unlawful, says, "and in all caaes where any person hath title, the covenant is not broken until some entry or other actual disturbance be made by him upon his title." So in Hunt v. Cope, Cowp. 243, where the Plaintiff, to an avowry for rent, pleaded certain acts of the lessor, " whereby he was deprived of the use of the premises," without averring eviction, Lord Mansfield said, that the lessee certainly should have pleaded eviction, and the facts stated might have been sufficient for the jury to have found a verdict in his favour; and the plea was held ill. (b) The cases of Foster v. Pierson, 4 Term Rap. 617, and Hodgson v. The East India Company, 8 Term Rep. 278, have now completely settled that an allegation of "lawful title" is sufficient, without setting out that title. But the Plaintiff must shew in some manner thai the title of the person entering upon him is not derived from himaelf ; and a mere averment that he had "lawful title," without this qualification, would be bad after verdict. Kirby v. Hansaker, Cro. Jao. 315. Woolen v. Hele, 2...
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