Burton v Barculay and Perkins
| Jurisdiction | England & Wales |
| Judgment Date | 13 June 1831 |
| Date | 13 June 1831 |
| Court | Court of Common Pleas |
English Reports Citation: 131 E.R. 288
COURT OF COMMON PLEAS
S. C. 5 Moo. & P. 785; 9 L. J. C. P. (O. S.) 231.
burton v. barclay and perkins. June 13, 1831. [S. C. 5 Moo. & P. 785; 9 L. J. C. P. (0. S.) 231.] L. being seised in fee, demised to B. for twenty-one years from June 1814 : B. demised to M. for twenty-one years from June 1814 wanting twenty-one days; and then by deed poll granted to L. the indenture of lease to M., the premises thereby granted, and the rent reserved, to hold to L., his executors, &e. for the term mentioned in the demise to M.; L. by lease and release conveyed the premises, the reversion and reversions, rents, issues, and profits, and all his interest, in fee to Plaintiff by way of mortgage; M. assigned his term to Defendants by way of mortgage, but Defendants never entered : Held, 1. That Plaintiff might sue Defendants on the covenants in M.'s lease; 2. That the deed poll from B. to L. did not merge the chattel interest in the fee, or suspend the right to sue on the lease to M.; 3. That the conveyance in fee from L. to Plaintiff passed the chattel interest created by B. as well as the fee, and that it was well described in the declaration as an assignment of the chattel interest. Covenant. The declaration stated that David Bates, being possessed of a messuage or tenement for a term, whereof 20 years and 233 days were unexpired, by indenture of 3d of November 1814, demised the premises to James Meek for twenty-one years [746] wanting twenty-one days, to be computed from June 24th 1814, at a rent of 501. a year payable quarterly: that Meek covenanted to pay rent, and to repair; and entered. That Bates, on the 12th of February 1816, by deed poll indorsed on the counterpart of the lease to Meek, granted the premises to John Langdon and his executors, &c. to have and hold for all the time in the counterpart of lease mentioned. That by indenture of 15th of July 1822, Langdon granted, sold, assigned, and set over the premises to the Plaintiff for one year; and by indenture of 16th July 1822, Langdon granted, sold, assigned, and set over to the Plaintiff all his interest, to have and to hold for all the time or term of years in the said counterpart of lease mentioned, subject to a proviso for redemption upon payment of 7001. with lawful interest, upon the 15th of July then next ensuing. That on the 19th of October 1816, all the estate and interest of Meek came to and vested in the Defendants by assignment thereof; that, on the 29th of September 1828, 5001. was due for ten years' rent, reserved on the lease from Bates to Meek; and that the Defendants did not repair the premises after the assignment and during the continuance of the demise. The Defendants pleaded, first, non est factum; ninthly, that all Meek's interest 7BING.747. BURTON V.BARCLAY 289 did not by assignment legally vest in the Defendants; tenthly, that the rent was paid ; and, eleventhly, that the premises were not out of repair. Upon which pleas issue was joined. The second and following pleas, to the eighth inclusive, upon which various issues of fact were taken, stated matters in bar of the action, which in substance amounted to this : that John Langdon, being seised in his demesne as of fee in the premises ia question, by indenture of the 5th of July 1814, demised them for twenty-one years from June 24th, 1814, to Bates, who [747] entered and was possessed; that Bates, being so possessed of the premises, by indenture of the 3d of November 1814 (set out on oyer), demised them to Meek for the residue of his term therein, excepting the last twenty-one days. That at the time of the execution of the deed poll of the 12th of February 1816 (also set out on oyer), Langdon still continued seised in fee of the reversion, expectant on the determination of Bates's lease; and that Bates did, by the deed poll last referred to, surrender up to Langdon, who accepted the same, the next immediate reversion, expectant on the determination of Meek's under-lease (to which the covenants in his lease were incident); whereby, as it was alleged upon the pleadings, the said immediate reversion became merged in Langdon's fee. In the fourth plea, the deed poll was stated according to its terms, and not according to the legal effect which the Defendants contended it bore; and it was alleged in that plea, as a legal inference, that all rights of action upon the covenants in the lease of 3d of November 1814 became thereby suspended. By that deed Bates granted, sold, assigned, transferred, and set over to Langdon, his executors, administrators, and assigns, the indenture of the 3d of November 1814, and the premises thereby granted, and all his estate, right, title, interest, time, and term of years then to come and unexpired, possession, property, benefit, claim, and demand whatsoever of, in, and to the same premises, or any part thereof, and the rent reserved by virtue of the said indenture, or otherwise howsoever, to have and to hold the said messuage or tenement and premises unto the said John Langdon, his executors, administrators, and assigns, from thenceforth for all such time and term therein as in the said indenture of the 3d of November 1814 is mentioned. To that plea there was a demurrer, and a joinder in such demurrer. [748] The demurrer was first argued by Scriven Serjt. for the Plaintiff, and Taddy Serjt. for the Defendants, in Easter term 1829, when the Court took time to consider, and ultimately ordered a further argument. In Easter vacation 1829, the cause went to trial on the ten issues of fact, when a special verdict found, and set out in hsec verba, the deeds of the 15th and 16th of July 1822, under which the Plaintiff derived title in the declaration, and which appeared to have been a mortgage in fee by bargain and sale for a year, and release from Langdon to the Plaintiff; by the release, Langdon granted, bargained, sold, aliened, released, and confirmed to Burton the premises in the occupation of Meek, together with all easements, profits, commodities, emoluments, advantages, and appurtenances whatsoever to the same belonging, and the reversion and reversions, remainder and remainders, yearly and other rents, issues, and profits of the same, and of every part and parcel thereof, and all the estate, right, title, interest, use, trust, possession, property, claim, and demand at law and in equity of him, Langdon, in the same, to have and to hold to Burton, his heirs and assigns for ever. There was a proviso for reconveyance to Langdon if he should pay Burton 7001., and interest, on the...
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