Morse v Tucker
| Jurisdiction | England & Wales |
| Judgment Date | 16 February 1846 |
| Date | 16 February 1846 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 835
HIGH COURT OF CHANCERY
S. C. 15 L. J. Ch. 162; 10 Jur. 173.
SHAKE,79. MOUSE V. TUGKEB 835 [79] morse v. tucker. Jan. 21, 22, 23, 28, Feb. 16, 1846. [S. C. 15 L. J. Ch. 162; 10 Jur. 173.] A lessor covenanted with his lessee for quiet enjoyment of the demised premises, and afterwards devised his real estate, subject to and charged with the payment of his debts. After the death of the lessor, the lessee was evicted, and brought his action of covenant against the executors of the lessor, who pleaded plene administravit; whereupon the lessee took out judgment of assets, quando, &c., and procured the damages to be assessed upon a writ of inquiry. He then filed his bill against the devisees of the lessor, for satisfaction of the damages and costs out of the real estate of the lessor devised by his will. Held that, although damages recovered in an action of covenant, brought in respect of breaches of covenant happening after the death of the testator, were not a debt within the Statute of Fraudulent Devises (3 & 4 Will. & M. c. 14), yet they were a debt payable out of the real estate of the testator, under the charge of debts thereon created by his will. That the devisees were not bound by the action brought, or the inquiry as to damages had against the executors, but were entitled to have the question of the liability of the estate of the testator on the covenant tried in an action defended by the devisees themselves. The lessee having recovered damages upon the covenant in the action directed by the Court, to which the devisees were parties, was held entitled, as against the devisees, to the amount of such damages, to his costs of the ejectment, of the action brought against the executors, of the action on the convenant to which the devisees were parties, and of the suit, and also to interest on the damages and costs, to be computed from the time the amount was ascertained and judgment entered up in the action to which the devisees were parties. John Owen Edwardes, by indenture, dated in January 1783, demised a farm in the county of Pembroke to Morris Adams, his heirs and assigns, for the lives of three persons therein named, and the life of the survivor of them. The lease contained a covenant by John Owen Edwardes, for himself, his heirs, executors, administrators and assigns with Morris Adams, his heirs and assigns, that by, under and subject to the rents, charges and agreements therein contained, he, Morris Adams, his heirs and assigns, should peaceably have, hold, occupy, possess and enjoy the said premises, for and during the term thereby granted and demised, without molestation or interruption by John Owen Edwardes, his heirs and assigns, or any other person or persons lawfully claiming, or to claim, any right or interest from, by or under him or them, or any or either of them. J. O. Edwardes died in 1825, having, by his will, devised all his unsettled real estate to his wife, Catherine Edwardes, for her life, subject to and charged with the £80] payment of his just debts; and, after her decease, he devised the same unto his three daughters, Anna Maria, Charlotte and Jane, and their respective heirs as tenants in common. And the testator bequeathed his personal estate to his wife, and appointed her sole executrix of his will. Catherine Edwardes, the widow, died in 1826, having, by her will, appointed Thomas Edwardes Tucker and her three daughters, Anna Maria, Charlotte and Jane, her executor and executrixes. The lease of January 1783 had become vested in Thomas Morse and Jane, his wife. In 1827 William Edwardes Tucker, the eldest son of John Owen Edwardes, who was entitled as tenant in tail, under a settlement made on the marriage of John Owen Edwardes, to the reversion of the lands comprised in the lease, brought ejectment against Morse to recover the demised lands, on the ground that the lease was not a due exercise of the power of leasing given to John Owen Edwardes by the settlement. The Court held that the lease was not authorized by the terms of the power, and Morse was evicted.(1) In December 1836 Morse brought his action of covenant against the executors (1) See the report of the case Doe d. Harries, W. J. Tucker and J. Symmons v. Morse, ò2 Cr. & Mee. 247. 836 MOUSE .V. TUCKER 5 HARE,81. of John Owen Edwardes for the damages of his eviction. The Defendants pleaded plene administrdvitj'-a'ad the Plaintiff, Morse, took judgment of assests, :quando, &c., and executed a writ of inquiry, in,/which the damages he sustained by his eviction from the farm were assessed by the jury at £2194, and with the costs amounted to £2277. Morse then filed his bill against the executors and devisees of John Owen Edwardes, for payment of the damages and costs [81] out of the personal estate; and if that should be insufficient, to have the same raised and paid out of the real estate of John Owen Edwardes, devised by his will. The case came on to be heard before the Lord Chancellor in July 1841, when it was ordered to stand over, that a personal representative of Morris Adams, the original lessee, might be made a party. Letters of administration of the estate of Morris Adams were afterwards obtained, and the administrator was brought before the Court by supplemental bill. The cause came again to be heard in May 1845, when liberty was given to the personal representative of Morris Adams to bring an action upon the covenant against the personal representatives of John Owen Edwardes; and the devisees of the .real estate of John Owen Edwardes were to be at liberty to defend the action in the names of the personal representatives. Certain admissions were directed to be made on both sides, and it was ordered that no evidence of damage should be given except evidence of the value of the lease at the time of the notice to quit, in September 1831, and evidence of the value of the crops on the ground, if any, at the time of the execution of the writ of possession ; and the judgment was to be dealt with as the Court should direct, both as to damages and costs. The action was tried, and judgment recovered by the representative of the lessee, for £1465, 15s. damages. The case came on for further directions. Mr. Tinney and Mr. Stinton, for the Plaintiffs. - Mr. Komilly, Mr. Pitman and Mr. Bevir, for the Defendants. [82] The arguments and authorities cited are all mentioned and considered in the judgment. Jan. 28. the vice-chancellor [Sir James Wigram] (after stating the proceedings which had been had in the cause). The Plaintiff claims, first, the amount of the damages, and the costs of the action which has lately been brought under the direction of the Court. To these damages he insists he has a right to add the costs of the ejectment of 1833, which are made up of two parts: the .costs paid by him to the Defendant, which amount to £109, 14s. 6d.; and, secondly, his own costs, to be taxed. He then seeks to add to the amount of damages the costs sustained by him in the action for mesne profits, which require the same subdivision as the others; namely, the costs paid by the Defendant in the action to the Plaintiff in the action, and the costs of the Defendant, to be taxed. The Plaintiff seeks to add also the costs of the action of covenant against the executors; and he claims interest upon the aggregate amount of those sums in this Court. Lastly, he claims to be paid the costs in equity of the suit to recover the debt, and also the costs of the cross-suit. The Plaintiff puts his claim in a two-fold way: first, he claims payment of his demand as a debt within the meaning of the charge in the will; and if not entitled to that, then he claims a right to marshal the assets of John Owen Edwardes, so as to take out of the real estate whatever amount of the personal estate has been applied in payment of debts to the payment of which the real estate was unquestionably liable. The Defendants, the devisees, of the real estate, insist that the claim in question is not a debt within the meaning of the will, and they deny the right of the Plaintiff to [83] marshal the assets, under circumstances which I shall not at this moment refer to. If that point be also decided against them, then the Defendants resist the claim which is made of interest and costs. The principal question is whether damages for a covenant broken after the death of the testator is a debt of the testator within the meaning of the word "debt," as used in the will. Upon that question the Plaintiff relied upon the cases of The Earl of Bath v. The Earl of Bradford (2 Ves. 587) and Lomas v. Wright (2 Myl. & K. 769). The authorities cited on behalf of the devisees were Wilson v. Knubley (7 East, 128) and Jenkins v. Briant (6 Sim. 603). In Wilson v. Knubley it was decided that the devisee of the real estate of the covenantor was not liable in covenant in respect of a covenant entered into by the devisor for title, or for quiet enjoyment, and of which 5 HARE, 84. HORSE '.'V. TUCKER 837 covenant there was a breach after his death. The ground on which that decision rested was that the remedy given by the Statute of Fraudulent Devises (stat. 3 & 4 Will. & M. c. 14) was an action for debt only, and that, unless an action of debt would lie, the statute was inapplicable. The case did not, however, necessarily decide that every case in which an action of debt would lie would be within the statute. That question arose in the case of Farley v. Briant (3 Adol. & E. 839; S. C. 5 Nev. & Man. 42). There a surety entered into a covenant for the payment of rent of an ascertained amount by the principal. No breach of the covenant occurred during the life of the surety, but after his death the rent was unpaid; and it was held that the devisees of the surety were not liable for the amount. The Court, in giving [84] judgment, said that an action of debt would lie, because the amount due, though damages, was liquidated. The decision proceeded...
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