Holgate and Others v Kay
| Jurisdiction | England & Wales |
| Judgment Date | 29 March 1844 |
| Date | 29 March 1844 |
| Court | High Court |
English Reports Citation: 174 E.R. 838
IN THE COURTS OF KING'S BENCH, COMMON PLEAS, AND EXCHEQUER, AND ON THE NORTHERN AND WESTERN CIRCUITS.
[341] March 29th, 1844. holgate and others v. kay. (Where premises are demised by indenture at an entire rent, and there is a covenant by the lessor to pay such rent, no action for rent arrear can be brought on such covenant, unless the lessee has been let into full possession of the premises demised. Where, in such an action, the defendant in hia plea, sets forth the lease, and then avers that "he entered and was possessed " of the premises thereunder, this will not estop him from proving, that, when he so entered, he found some part of the said premises in the possession of a third party under an adverse title.) This was an action on a covenant to pay rent for certain parcels of land and water-privileges, demised by a certain indenture of lease to the defendant ; and the breach alleged was the non-payment of such rent. The defendant pleaded two pleas, namely, first, a plea which set out the indenture of lease on which the action was brought, and which concluded by alleging, in substance, as follows :-that part of the demised premises was, at the time of the granting of the said lease, in the possession of a third person who had lawful title thereto, and that the defendant had been kept out of possession of the said part of the said demised premises by such third person ; and secondly, that certain persons had obtained rights of way in and over the premises in question, and that by the exercise of such rights of way the defendant had been and was deprived of the use of the water-privileges demised to him by the said indenture of lease. On these pleas issue was joined. The following were the material facts of the case :-On the 1st of May, 1801, a lease was granted by one Lomax to one Hay, for a term of 999 years, of several parcels of land, known as the Mill-card, the Cross-meadow, and the Cross-field, and also of a atream called the Spottm-river The lease likewise gave liberty to the lessee to cut goits or drains into part of the Cross-field ; and there was a covenant by Hay to erect a mill on the premises On the death of Hay his widow became possessed of the term in question ; and on her death it came into the possession of a (a) Which consisted of Tindal, L. C. J , and Coltman and Cress\vell, Js. 1 CAB. * K. 343. LILLEY V. BARNSLEY 839 person named Stock, who was the devisee...
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