Eleanor Thomas against Benjamin Thomas
| Jurisdiction | England & Wales |
| Judgment Date | 05 February 1842 |
| Date | 05 February 1842 |
| Court | Court of the Queen's Bench |
English Reports Citation: 114 E.R. 330
IN THE QUEEN'S BENCH
S. C, 2 G. & D. 226; 11 L. J. Q. B. 104; 6 Jur. 645. Discussed, Gardiner v. Gardiner, 1861, 12 Ir. C. L. R. 573; Lee v. Mathews, 1880, 6 L. R. Ir. 534.
eleanor thomas against benjamin thomas. Saturday, February 5th, 1842. Declaration for non-performance of an agreement stated to be, that defendant, when required, should convey a certain house and premises to plaintiff for her life, and that plaintiff, at all times during her possession thereof, should pay defendant and S. T. (since deceased), their executors, &c., 11. yearly towards the ground rent payable in respect of the said house and other premises, and keep the house in repair. Pleas: 1. Non assumpsit; 2. That there was not the consideration alleged. Issues thereon. The agreement was between plaintiff, who was the widow, and defendant and S. T., the executors, of J. T. After reciting that J. T., shortly before his death, had verbally expressed his desire that plaintiff, in addition to his other provision for her, should have the house, &c. during her life, and reciting that defendant and S. T. were desirous that such intention should be carried into effect, it was witnessed that, " in consideration of such desire and of the premises," the executors would convey the house, &c. to the plaintiff for 3Q.B.8B. THOMAS V. THOMAS 331 her life; " provided nevertheless, and it is hereby further agreed and declared," that the plaintiff should during her possession pay to the executors 11. yearly towards the ground rent payable in respect of the said house and adjoining premises, and should keep the said house, &e. in repair. Held, that the agreement so to pay, and to keep the premises in repair, was a consideration for the agreement by the defendant and S. T.; and that respect for the wishes of the testator was no part of the legal consideration for their agreement, and need not be stated in the declaration. [S. C. 2 G. & D. 226 ; 11 L. J. Q. B. 104; 6 Jur. 645. Discussed, Gardiner v. Gardiner, 1861, 12 Ir. C. L. R. 573; Lee v. Mathews, 1880, 6 L. E. Ir. 534.] Assumpsit. The declaration stated an agreement between plaintiff and defendant that the defendant should, when thereto required by the plaintiff, by all necessary deeds, conveyances, assignments, or other [852] assurances, grants, &c., or otherwise, assure a certain dwelling house and premises, in the county of Glamorgan, unto plaintiff far her life, or so long as she should continue a widow and unmarried, and that plaintiff should, at all times during which she should have possession of the said dwelling house and premises, pay to defendant and one Samuel Thomas (since deceased), their executors, administrators or assigns, the sum of 11. yearly towards the ground rent payable in respect of the said dwelling house and other premises thereto adjoining, and keep the said dwelling house and premises in good and tenant-able repair: that, the said agreement being made, in consideration thereof, and of plaintiffs promise to perform the agreement, Samuel Thomas and the defendant promised to perform the same: and that, although plaintiff afterwards and before the commencement of the suit, to wit, &c., required of defendant to grant, &c., by a necessary aiid sufficient deed, &c., the said dwelling house, &c. to plaintiff for her life, or whilst she continued a widow, and though she had then continued, &c., and still was, a widow and unmarried, and although she did, to wit on, &e., tender to the defendant for his execution a certain necessary and sufficient deed, &c., proper and sufficient for the conveyance, &c., and although, &c. (general readiness of plaintiff to perform), yet defendant did not nor would then or at any other time convey, &c. Pleas. 1. Non assumpsit. 2. That there was not the consideration alleged in the...
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