Howell against Thomas Richards
| Jurisdiction | England & Wales |
| Judgment Date | 27 November 1809 |
| Date | 27 November 1809 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 1150
IN THE COURT OF KING'S BENCH.
[633] howell against thomas eiohards. Monday, Nov. 27th, 1809. Eeleasors covenanted that for and notwithstanding any act, &c. by them or any or either of them done to the contrary, they had good title to convey certain lands in fee; and also, that they or some or one of them, for and notwithstanding any such matter or thing as aforesaid, had good right and full power to grant, &c.; and likewise that the releasee should peaceably and quietly enter, hold, and enjoy the premises granted, without the lawful let or disturbance of the releasors or their heirs or assigns, or for or by any other person or persons whatsoever, and that the releasee should be kept harmless and indemnified by the releasors and their heirs against all other titles, charges, &c. save and except the chief rent issuing and payable out of the premises to the lord of the fee. Held that the generality (a) 1 Bos. & Pull. 316. 11 EAST, 634. HO WELL V. RICHARDS 1151 of the covenant for quiet enjoyment against the releasors and their heirs, and any other person or persons whatsoever, was not restrained by the qualified covenants for good title and right to convey, for and notwithstanding any act done by the releasors to the contrary. But if the covenant for quiet enjoyment were to be restrained to the acts of the releasors by any qualifying context, then the declaration in covenant, stating it by himself in its own absolute terms; without such qualifying context belonging to it, seems to be an untrue statement of the deed in substance and effect, which the defendant may take advantage of upon the general issue of non est factum, as a variance and ground of nonsuit or of a verdict for him. [Referred to, Baynes v. Lloyd [1895], 1 Q. B. 824; 2 Q. B. 610; Cancmm v. Burton [1900], 2 Ir. B. 364.] The plaintiff declared, as heir of one Ed. Howell, upon a covenant in an indenture of the 30th of May 1783, made by the defendant, and also by Joseph Eichards, Anne his wife, and D. Eichards, to the said Ed. Howell, for the quiet enjoyment of a certain tenement,;which was thereby conveyed to the said Ed. Howell and his heirs; upon which covenant the defendant was thus impleaded. And the defendant did by the said indenture above brought into Court here covenant in manner following, viz. that he, the said Ed. Howell, his heirs and assigns, should and might from time to time and at all times thereafter peaceably and quietly enter into, hold, occupy, possess, and enjoy the premises thereby granted, &c. without the lawful let, suit, trouble, denial, claim, or demand, entry, eviction, &c. interruption, or disturbance whatsoever of or by the said J. Eichards, Anne his wife, the defendant, and D. Eiehards, or any or either of them, their or any or either of their heirs or- assigns, or of or by any other person or persons whatsoever; and that freely and clearly and absolutely acquitted, exonerated, released, and discharged, or otherwise by the said Jos. Eichards, Anne his wife, the defendant, and D. Eichards, and each of them, their and each of their heirs, &c. well and sufficiently [634] saved, defended, and kept harmless and indemnified of, from, and against all former and other gifts, grants, &c. jointures, dowers, right and title of dower, &c. uses, trusts, &c. wills, statutes merchant, of the staple, refeogniz-ances, judgments, executions, &c. rents, arrears of rent, annuities, &c. forfeitures, re-entries, cause of forfeiture and re-entry, debts, .&e. and of, from, and against all other estates, titles, troubles, charges, and incumbrances whatsoever, save and except the chief rent issuing out of or payable for the said premises to the lord of the fee of the same, if any such should be due. The plaintiff then proceeded to assign a breach, that since the death of Ed. Howell, whose heir he Was, he had not been permitted nor was able to hold, occupy, possess, and enjoy the premises, &c.; but that after the death of Ed. Howell he was evicted, upon an ejectment brought by one Mary Howell, widow, who at the time of making the said indenture, and continually from thence until and at the time of the eviction after mentioned, had and still has lawful right and title to the premises. The defendant pleaded that the indenture in the declaration mentioned was not his deed; and also pleaded several special pleas, not material to the question; which arose upon the production of the deed in evidence; whether the variance between that and the covenant declared on were so material in substance and legal effect, as to be available for the defendant upon the plea of non est factum. The covenants in question in the deed ran thus : And the said Joseph Eichards doth for himself and for the said Anne his wife, and for their and each of their heirs, &e. and the said...
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