Merrill and Another, Assignees of the Effects of Biggs, a Bankrupt, v Frame
| Jurisdiction | England & Wales |
| Judgment Date | 02 May 1812 |
| Date | 02 May 1812 |
| Court | Court of Common Pleas |
English Reports Citation: 128 E.R. 357
Common Pleas Division
MERRILL AND ANOTHER, Assignees of the Effects of Biggs, a Bankrupt, v. FRAME. May 2, 1812. If a lease contain a covenant for quiet enjoyment against the lessor and those who claim under him, the lessee cannot, upon an eviction by a paramount title, recover under the implied covenant for general title implied in the word "demise." The Plaintiffs declared in eoveuant upon a lease made by the Defendant to Biggs, since a bankrupt, whose assignees they were, whereby the Defendant "demised, leased, and to farm let," to the bankrupt, a measuage and land in the parish of Hillingdon, for a term of 17 years and a half, wanting 10 days, under the yearly and other rents therein expressed. The declaration then stated a covenant by the Defendant, with the bankrupt, his executors, administrators, and assigns, " that the bankrupt, hie executors, administrators, or assigns, some or one of them, paying the said rents, and performing, and keeping all the covenants, provisoes, and agreements in the said indenture contained, should and might peaceably and quietly occupy aud uujuy the premises without the lawful let, suit, or eviction of the Defendant, or any claiming or to. claim, by, from, or under him. The Plaintiff then assigned as a breach, an eviction by a title paramount to the title of the lessor. The Defendant demurred, and the Plaintiff joined in demurrer. Rough Serjt. was to have argued in support of the demurrer, but be was stopped by the Court, who called on [330] Shepherd Serjt. to support the declaration. He contended that although under the express covenants for quiet enjoyment against the lessor and all claiming under him, the Plaintiff could not recover upon an eviction by a paramount title, yet the latter covenant did not restrain or destroy the implied covenant for an absolute good title, which was contained in the words "demised and leased ;" and be cited Gainsford v. Griffith, 1 Saund. 69, to shew that there might be a distinct general covenant, not restrained by the subsequent particular covenant. The Court expressed a decided opinion against the possibility of applying that doctrine to the present case, The rule of law was, that expressum tacit taciturn cessare. But the argument of the Plaintiff would make expressum and taciturn to mean the same thing. Judgment for the Defendant, ' LANOHORN V...
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