Richard Pargeter, Susan Pargeter, and Eliza Pargeter, against James Harris
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the Queen's Bench |
English Reports Citation: 115 E.R. 656
QUEEN'S BENCH
S. C. 15 L. J. Q. B. 119; 10 Jur. 260.
[708] richard pargetbr, susan pargkter, and eliza. pargeter, against james harris. 1845. Covenant. Declaration that, by indenture between plaintiffs and A., since deceased, of first part, B. therein described as guardian of C. and D. minors and devisees under the will of E., deceased, of second part, and defendant of third part, after reciting that the parties of the first part, and B. in right aforesaid, were the owners of the closes, &c. thereinafter described, subject to mortgage for 35001., the interest whereof was payable half-yearly at the office of W., and had agreed to let the same to defendant, it was by the indenture expressed and purported that plaintiffs and A., with the consent and approbation of B., did demise the closes to defendant, his executors, &c., for seven years, yielding and paying therefore yearly during the demise 1531. 11s., at the office of W. aforesaid, in part of the interest on the mortgage, by equal half-yearly payments: covenant by defendant with plaintiffs and A,, their heirs, &c., to pay the yearly sum at the place and in manner before mentioned : breach, nonpayment of parcel of a half-yearly sum, due since the death of A. ; averment, that plaintiffs and A., or any or either of them, never had any reversion in the premises purported to be demised. Plea, that the reversion of the demised premises, expectant on the determination of the demise, was, at the making of the indenture, and from thence to the death of A., in plaintiffs and A,, and, from her death until making of the after mentioned indenture, was in plaintiffs, who, before breach, assigned the reversion by indenture to S. : verification. Replication, that no reversion in the supposed demised premises, expectant, &c., was at the time, &c., or from thence, &c., in plaintiffs and A., or, from her death until, &c., in plaintiffs: conclusion to the country. Held, on general demurrer, that the recitals shewed the lessors to have had only an equitable title. That, the facts being disclosed on the face of the lease, neither party was estopped from denying that the lessors had a legal reversion. That the covenant for payment of an annual sum was a covenant in gross. That the declaration was not inconsistent or repugnant. That the plea was bad for passing over the averment in the declaration that the plaintiffs had no reversion, and, assuming that they had a reversion, averring that they assigned it. That the replication was not a departure. Qusere, whether the annual sum covenanted to be paid was a reservation. Seruble, that the lessee was estopped by the recitals in the lease, from averring that the lessors had a legal reversion. [S. C. 15 L. J. Q. B. 113 ; 10 Jur. 260.] Covenant. The declaration stated that, theretofore, and in the lifetime of Hannah Pargeter since deceased, to wit on, &c., by indenture between plaintiffs and the said Hannah Pargeter of the first part, Athaliah Harris, therein described as the legally constituted guardian of the persons and estates of John Pargeter and William Pargeter, minors and devisees under the last will and testament of Richard Pargeter deceased, of the second part, and defendant of the third part (profert), after reciting that the said parties thereto of the [709] first part, and the said Athaliah Harris in right aforesaid, were the owners of the closes of land and premises thereinafter deicribed, subject to a mortgage or mortgages thereon for 35001., the interest of which, amounting to 1571. 10a., was payable half-yearly at the office of Mr. Wratislaw, in Rugby, and that they had agreed to let the same to defendant on the terms thereinafter mentioned, it waa by the said indenture expressed and purported that the plaintiffs and the said Hannah Pargeter, with the consent arid approbation of the said Athaliah Harris, did, (b) Rex v. Garden, 4 Burr. 2279. 7Q.B.710. PARGBTER V. HARRIS 657 and each of them did, demise, lease, set, and to farm let certain closes, &c., in the said indenture described, habendum to defendant, his executors, &c., from 25th March 1835 for the term of seven years, yielding and paying therefore, yearly and every year during the continuance of the said demise, 1531. 11s. at the office aforesaid, in part of the interest due on the said mortgage or mortgages, by equal half-yearly payments on the days therein mentioned : and defendant did in and by the said indenture, for himself, his heirs, &c., covenant with the aaid plaintiffs and the said Hannah Pargeter, their hears, executors, administrators and assigns, that defendant, his executors, &c., should pay, at the place and in manner before mentioned, the said yearly sum of 1531. lls. on tha days mentioned for payment thereof: that, after the making of the indenture, and during the term, and after the decease of Hannah Pargeter, and before the commencement of the suit, to wit on, &c., 141., being parcel of the sum of 761. 15s, 6d. for half a year of the term (the residue of the said sum of 761. 15s. 6d. having been paid), became and was due, ,&c. Breach, nonpayment at the office of the said Mr. Wratislaw, or at any place, or in any manner, on, &c., [710] contrary to the covenant, &c.: averment that plaintiff and Hannah Pargeter had not, nor had any or either of them, at or since the making of the said indenture, any reversion of or in the said premises so purported to be demised as aforesaid, expectant on the said term, or otherwise. Plea, 2. That the reversion of and in the said demised premises, expectant on the determination of the aaid demise, at the time of making the said indenture and from thence to the death of Hannah Pargeter, was in the plaintiffs and Hannah Pargeter, and from tar death until the time of making the indenture next hereinafter mentioned was in the plaintiffs, who survived Hannah Pargeter; and that, after the making of the indenture in the declaration mentioned, and after the death of Hannah Pargeter, and before the committing of the breach, &c., to wit on, &c., by a certain indenture then made between the plaintiffs and John Salmon, the plaintiffs did assign all that the reversion of them the plaintiffs of and in the demised premises, and all other the estate, &c., to the said John Salmon, who thereby then became, &c., and still is, assignee of the said reversion, &c.: verification. Replication to the second plea, that no reversion of and in the said supposed demised premises, expectant on the determination of the said supposed demise, was, at the time of the making of the indenture in the declaration mentioned, or from thence to the death of Hannah Pargeter, in the plaintiffs and Hannah Pargeter, or, from the death of Hannah Pargeter until the making of the indenture in that plea mentioned, in the plaintiffs, in manner and form, &c.: conclusion to the country. General demurrer. Joinder in demurrer. [711] The points stated for argument by the defendant were : that the replication was a traverse of an immaterial allegation ; that the replication ought either to have denied: the alleged assignment of the reversion, or in some way avoided the effect of such assignment; that the plaintiffs were estopped as against the defendant from saying that they and Hannah Pargeter had no reversion of or in the demised premises ; and that the replication was a departure from the declaration, which, in alleging a demise to the defendant, must be taken as implying that there was a reversion expectant on such demise. On the part of the plaintiffs the plea was stated to be bad, aa it attempted to set up the title of an assignee to sue upon the covenant, when it appeared by the declaration that the covenant was a covenant in gross, and could not pass by the alleged assignment ; and, also, in assuming the existence of a reversion, though the declaration stated that there was no reversion, and shewed that the lessors had only an equitable interest. The case was argued in last Easter term (a). Alexander, for the defendant. Firat, the deed on which the...
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