John Smith against Compton and Others, Executors of Southwell
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1832 |
| Date | 01 January 1832 |
| Court | Court of the King's Bench |
English Reports Citation: 110 E.R. 71
IN THE COURT OF KING'S BENCH
S. C. 1 L. J. K. B. 43. For subsequent proceedings see 3 B. & Ad. 407. Referred to, Canavan v. Bruton, [1900] 2 Ir. R. 364.
john smith against compton and others, Executors of Southwell (5). 1832. By indenture, reciting a power vested in A. B. to dispose of certain premises, and that C. D. had contracted to purchase them, A. B. appointed and conveyed them to the use of C. D., his heirs, &c. and covenanted that the power in A. B. was then in force and not executed ; and also that he, A. B., then had in himself good right, title, power, and authority to limit and appoint, and to grant, bargain, sell, &c. the premises to the said uses; and further, that the premises should be held and enjoyed to the said uses, without the let or interruption of A. B. or any claiming under or in trust for him; and also for further assurance by A. B. and all so claiming : Held, that the second covenant was absolute, for good title against all persons, and not to be qualified by reference to the other covenants, inasmuch as there were no words, either in the second itself, or in preceding or subsequent ones, to connect it with them. [S. C. 1 L. J. K. B. 43. For subsequent proceedings see 3 B. & Ad. 407. Referred to, Canavan v. Srutm, [1900] 2 Ir. B. 364.] Covenant. By indenture made between the testator, John Southwell, of the first part, the plaintiff of the second, and T. S. of the third, after reciting certain former indentures of lease and release, by which [190] the premises after mentioned were conveyed to such uses and for such estates as Southwell should by deed appoint, and reciting also that the plaintiff bad contracted with Southwell for the absolute purchase of the said premises in fee simple, and had desired that they might be limited and appointed to T. S. and his heirs to certain uses; it was witnessed, that Southwell, in pursuance of the agreement, and of the said power, and of every other power vested in him, did limit, declare, direct, and appoint that the said premises should remain and continue, and that all other conveyances therefore should enure, to the uses after mentioned; and it was further witnessed, that Southwell in pursuance of such power and powers did grant, bargain, sell, dispose of, alien, release, and confirm to T. S. and his heirs (in his possession then being by a previous bargain and sale) all that messuage, tenement, &c. (described in the deed) habendum to T. S., his heirs and assigns, to such uses as the plaintiff should appoint; and in default of such appointment, to the use of the plaintiff and his assigns for his life, &c. and ultimately to the use of the plaintiff's heirs and assigns for ever. The declaration, after stating the indenture thus far, set forth a covenant by Southwell, that he, Southwell, then had in himself good right, &c. to appoint, and to grant, bargain, and sell, &c. the premises to T. S. and his heirs, to the uses before mentioned; and the breach complained of was, that Southwell at the time of executing the indenture had not such right, but had only an estate for certain lives ; that the lives afterwards expired ; and that one E. D., thereupon claiming to be entitled, and being lawfully entitled, to the premises, brought a plea of formedon in remainder against the plaintiff for recovery of the same, and he, to prevent [191] being dispossessed, and to perfect his title, was obliged to pay the said E. D. 5501., and incur other expenses. The deed declared upon was set out on oyer. The covenants were as follows: " And the said John Southwell, for himself, his heirs, executors, and administrators, doth covenant, promise, grant, and agree, to and with the said J. S., bis heirs and assigns, by these presents, in manner and form following; that is to say :" the first covenant was, that the power enabling Southwell to appoint was then in full force and unexecuted, and not suspended or extinguished. The deed then proceeded as follows : " And also that the said John Southwell now hath in himself good right, true title, full power, and lawful and absolute authority, to limit and appoint, and to grant, bargain, sell, dispose of, release, and convey all the said hereditaments and premises hereby limited and appointed, granted and released, or intended so to be, with their (a) See...
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