Edward Badeley and William Nanson Lettsom against Louis Vigurs
| Jurisdiction | England & Wales |
| Judgment Date | 30 June 1854 |
| Date | 30 June 1854 |
| Court | Court of the Queen's Bench |
English Reports Citation: 119 E.R. 28
IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER
edward badeley and william nanson lettsom against Louis vigurs, Executor of John Vigurs. Friday, June 30th, 1854. Declaration by B. and L. against the executor of V., alleged that (jr., holding premises under lease for 99 years expiring in December 1849, underlet them to V. and S. for a term ending in March 1849, V. and S. jointly and severally covenanting with G. to repair during the term, and to deliver up the premises to G., or his assigns, in repair at the end of the term ; and V. and S. entered and became possessed as joint tenants :-That during the continuance of the Lease to V. and S., G. granted his reversion to S., B. and L. :-That afterwards V. assigned his interest in the under-lease to S. :-That afterwards S. died, before the determination of the under-lease made to V. and S. :-Breach : That V. did not deliver up the premises in repair, at the expiration of the under-lease to V. and S.-On demurrer to the plea : Held, that the declaration shewed a good cause of action,-For that the whole reversion existing at the time of the breach was then in B. and L. alone ; either from the grant of the reversion by G. to IS., B. and L. operating so as to cause one undivided third of the interest to coalesce with so much of S.'s interest in the term (which semble was the legal effect), or from one sixth then coalescing and another sixth on the subsequent assignment by V. to S.-That B. and L,, being solely interested in the whole existing reversion, could sue alone on the covenant, though the damages they could recover must be commensurate with their interest.-That, supposing (which semble was riot the case) that, during the interval between the grant by G. to S., B. and L. and the assignment by V. to S., S. was interested in the covenant both as covenantor and coveuantee, this, though it might have suspended and so destroyed the right of action for any breach happening at that time, did not affect the right to sue on the covenant for a breach happening after S. ceased to be so interested.-That the right of action on such a covenant, by virtue of privity of contract under stat. 32 H. 8, c. 34, s. 1, is apportionable: but in this case the plaintiffs would recover without apportionment, since the covenantee was bound to leave the whole of the premises in repair, though the plaintiffs B. and L. would be entitled to only two thirds of the damages.-Defendant pleaded : That J. had demised the premises for the 99 years to a party who assigned to G., with covenants to keep and leave in repair :- That after G. had demised to V, and S., and before V. assigned to S., V, and S. demised to T. for a term ending in June 1848, T. covenanting to keep and leave in repair:-That T, died, and his estate came to M.-That after the death of S. and T., and during the continuance of all the terms, J. sued B. and L. for not keeping in repair.-That afterwards, in July 1844, J., B. and L., and M., without the consent of V., made an agreement: by which M. was to pay J. one sum, and B. and L. to pay J. another sum ; M. was to pay J. the costs of the action he had commenced, and all rent up to June 1844 ; M. was to deliver up possession to J. : B. and L. were to deliver up to one F. the lease for the 99 years, in trust for J., but to be produced by F. to support any claim by B. and L. upon V. or any other person for recovering rent due or to become due to B. and L., or for indemnity in respects of payments by V. and L. under the agreement, or liabilities (a) See stat. 17 & 18 Viet. c. 104, part. 3, s. 243. Stat. 7 & 8 Viet. c. 112, is repealed by stat. 17 & 18 Viet. c. 120, from 1st May, 1855. See sect. 3, and stat. 17 & 18 Viet. c. 104, s. 3. 4EL.6BL.7a. BADELEY V. VIGORS 29 of B. and L. under the lease, or in respect of covenants contained in any underlease ; when, all such claims were satisfied, F. was to deliver the lease to J.; and M., at the request of J. or the person entitled to the remainder, was to procure the execution of a legal surrender or assignment of the lease ; and B. and L. were to concur in surrendering or assigning their interest in the lease, as J. or the person entitled to the reversion might require ; J. was to accept the sums in satisfaction of all claims for dilapidations or rent under the lease.-That the action was settled on the terms of the agreement.-That, in pursuance of the agreement, with the privity of B. and L., and without the consent of V., before any of the terms had expired by efflux of time, possession was given up by M. to J., who entered without V.'s consent, and kept possession, till after the expiration of the lease to V. and S.-That V. died before the expiration of the lease to V. and S.-That, by means of the premises, V. in his life time, and defendant (his executor) since V.'s death, had been prevented from entering on the premises and repairing them ; and defendant had been prevented from yielding them up in repair.-Held, on demurrer, a bad plea.-For that the allegation of V. and defendant having been prevented from entering &c. must be considered to be stated merely as a conclusion of law from the facts previously stated; so that the question was whether those facts shewed such a prevention. And that no such prevention appeared.-That V., or his representative, might have entered after the expiration of the lease to T. and before the expiration of the lease to V. and S.-That the agreement, and acts done in pursuance thereof, did not operate aa a surrender of the interest of B. and L., the apparent intention being only to concur in the surrender of the interest of M., even supposing that the interest of B. and L. could be surrendered at that time without deed : and semble that it could not. [S. C. 2 C. L. R. 1627 ; 23 L. J. Q. B. 377 ; 1 Jur. N. S. 159.] Declaration on a covenant. The defendant pleaded two pleas ; to the second of which the plaintiffs demurred. The plaintiffs joined in demurrer. [72] The demurrer was argued in Easter Term (a), 1853, by Willes for the plaintiffs, and Hugh Hill for the defendant; and again, in Easter Term (b), 1854, by Bramwell for the plaintiffs, and Hugh Hill for the defendant. The pleadings and arguments will sufficiently appear from the judgment. Cur. adv. vult. [73] Wightman J. now delivered the judgment of the Court. This was an action of covenant for non-repair of leasehold premises during the term, and for leaving them out of repair at the end of the term, contrary to the covenants of the lease under which they were held by the defendant's testator. The declaration stated that Sir William Garrow held the premises in question, under a lease for ninety nine years, which expired on the 25th December 1849. That, during the time he so held the premises, he granted an under-lease of them to the defendant's testator, John...
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