Harrold against Whitaker

147] harrqld against whitakkr. [Friday, May 29th, 1846.] Declaration, in covenant for nonpayment of rent, alleged : that, Y. being tenant of premises for a term of 5000 years (from June 1815), by indenture made between Y., and S., and one L. under whom defendant claimed, after reciting a previous mortgage of the residue of the said term to S. subject to redemption on payment by Y. to S. (not stating covenant to pay, or any day named for payment) of 12001. with interest, which was still due, and reciting that Y. had requested S. (the mortgagee) to join in the present indenture of demise; it was witnessed that S. thereby demised, and Y. (the mortgagor) confirmed, to L., his executors, &c., and assigns, the said premises for 4000 years, a portion yet unexpired of the term of 5000 years, yielding, &c. to S. (the mortgagee), his executors, &c. and assigns, daring the continuance of the recited mortgage, and, after payment and satisfaction thereof, to Y. (the mortgagor), his executors, &c. or assigns, the yearly rent of, &c. payable on 25th March and 29th September in each year. The declaration then stated a covenant by L. to S., his executors, &c., and also to Y., his executors, &c., to pay the rent as reserved : assignments by deeds under the seal of S., to one G. of all S.'s interest: and assignments afterwards from G. to the plaintiff by two deeds under the seal of G., conveying successive moieties of the whole : the first deed executed to wit 18th February, 1835; the second, to wit 15th December 1843: whereby plaintiff " became and was and is possessed " of the demised premises for all the residue of the term of 5000 years, subject to the demise. The declaration then alleged an assignment of all the interest, &c. of L., the lessee, to defendant. Breach, that after the making of the demise, and during the term of 4000 years, and while defendant was assignee, to wit on 25th March 1844, a sum, to wit, &c., of the said rent for two years of the said term of 4000 years then last elapsed became due and in arrear to plaintiff, and the same was not paid to plaintiff or any other person. Plea : that, before any part of the arrears of the rent became due, and during the continuance of the mortgage, to wit on, &c., S. (the mortgagee) was paid and satisfied all the principal and interest due to him under the mortgage, amounting, &c., out of money arising from the absolute sale of part of the premises, and, when paid to the mortgagee, equal to the amount of such principal, &c.: and that afterwards, to wit, &c., by indenture to which the mortgagor and mortgagee were parties, S. (the mortgagee) acknowledged that he had been paid the whole principal and interest due to him on the mortgage, out of moneys arising from such sale, and released Y. (the mortgagor) from all claims under the mortgage. On special demurrer to the plea: Held, by the Court of Queen's Bench, that the plea, by its first averment, set up such a payment as would put an end to the continuance of the recited mortgage within the meaning of the indenture of demise ; so that S. the mortgagee (from whom alone the Court considered the plaintiff's title to be deduced) could no longer demand the rent. But that, a distinct answer being offered by the averment, in the plea, of a release by deed, it was bad for duplicity. That the action was properly brought by the party claiming through the mortgagee, without joining the mortgagor. That, the alleged mortgage being for an ascertained term of years, it was not necessary to aver in the declaration that 432 HARROLD V. WHITAKER ll J. B. 148. the mortgage term continued : but semble that, if the averment were necessary, it was sufficiently made, the objection being taken us on general demurrer. That it was not necessary to aver in the declaration continuance of the mortgage debt, for that payment of the debt was a condition subsequent, and in defeasance of the mortgagee's right to recover the rent. That the declaration sufficiently shewed (there being no special demurrer) that the rent sued for accrued after plaintiH' became assignee of the term of 5000 years. The Court of Exchequer Chamber, on writ of error, affirmed the judgment (Whiloker v. Harrold, post, 163), and Held, that the plea was bad for duplicity, the payment and release being distinct answers; for, the record not shewing any covenant to pay the mortgage debt, it did not appear that a release was necessary to complete the discharge by payment. That the plea was also bad for not shewing with certainty that the original mortgage debt had been paid ; or that the release had not been executed by S., the mortgagee, after he had assigned the premises. That the action was brought by the right party, the covenant to pay rent not becoming a covenant in gross till after payment of the mortgage debt. That the payment was a condition subsequent, and the plaintiff not bound to aver non-performance of it. That the rent sufficiently appeared to have become due after the assignment to plaintiff, because the dates, being material, must be deemed correct, though laid under a videlicet; and by them the plaintiff appeared entitled to some rent for two years since the assignment; and the Court of Error could not inquire whether the Court below had awarded as damages more than the precise amount of rant flue. [S. C. 15 L. J. Q. B. 345 ; 10 Jur. 1004. Affirmed in Exchequer Chamber, 11 Q. B. 163; 17 L. J. Q. B. 343; 12 Jur. 395.] Covenant on an indenture of demise. The declaration stated that, before and at the time of the making of the demise and confirmation after men-[148]-tioned, viz. 17th August, 1820, James Eyre Salmon was lawfully possessed of the tenements and premises, with the appurtenances, hereinafter mentioned to have been demised, that is to aay, for the residue of a term of years more than sufficient to enable him, Salmon, to make the demise hereinafter mentioned to have been made by him, and which said term hath not yet expired ; that is to say, for the residue of a certain term of 5000 years, commencing, to wit on 24th Juna, A.D. 1815, then to come and unexpired therein. And, being so possessed thereof, by...