Smith v Capron
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1849 |
| Date | 01 January 1849 |
| Court | High Court of Chancery |
English Reports Citation: 68 E.R. 75
HIGH COURT OF CHANCERY
S. C. 18 L. J. Ch. 135; 13 Jur. 147; 19 L. J. Ch. 322; 14 Jur. 686. See Hyde v. Warden, 1877, 3 Ex. D. 80; Reeve v. Berridge, 1888, 20 Q. B. D. 527; In re White & Smith's Contract [1896], 1 Ch. 641.
[185] smith v. capkon. Feb. 12, 13, Nov. 23, 24, 26, 1849. ;[S. C. 18 L. J. Ch. 135 ; 13 Jur. 147 ; 19 L. J. Ch. 322; 14 Jur. 686. See Hyde v. Warden, 1877, 3 Ex. D. 80; Reeve v. Berridge, 1888, 20 Q. B. D. 52-7; In re White & Smith's Contract [1896], 1 Ch. 641.] 'The vendor's bill, in a suit for specific performance of an agreement to take an assignment of a lease, stated a covenant in the lease not to assign without the license of 76 SMITH V. CAPRON 7 HARE, 186. the lessor, but did not aver that the Plaintiff had or could obtain such a license. Held, upon demurrer, that the Court, at the hearing of the cause, upon such facts, would not dismiss the bill, but would refer it to the Master to inquire whether the vendor could make a good title; and that the demurrer must, therefore, be overruled. During a treaty for an assignment of a lease the Plaintiff produced the lease to the Defendant, and the Defendant looked at the lease and the indorsement by which the original lessee had assigned the lease to the Plaintiff, and in which it was stated that the assignment was made with the license of the lessor. The Defendant afterwards requested the Plaintiff to cause the proposed assignment to be indorsed on the lease totidem verbis, with the assignment thereon to himself. Upon a bill for specific performance the Defendant denied, by his answer, that he had seen the covenant against assignment without license; but the Court concluded, upon the circumstances, that the Defendant had notice of that covenant. An agreement, signed by A. and B., for the sale by A. and purchase by B. of the fixtures in a lease at a certain price, and that A. shall execute an assignment of his interest in the house to B., to bear date on a certain day: Held to be a contract by B. to take such assignment when executed; and, B. having inspected the lease and the assignment to A., and subsequently directed A. to cause an assignment to him, B., to be indorsed totidem verbis, it was held that B. was precluded from calling for the lessor's title. Demurrer for want of equity to a vendor's bill for specific performance. The bill stated that, by an indenture of lease of the 17th of March 1845, Lord Monteagle and Lady Lucy Standish demised a messuage, numbered 51 in Great Ormond Street, to Thomas Wakefield, his executors, administrators and assigns, to hold the same unto the said Thomas Wakefield, his executors and administrators, for the term of fourteen years from midsummer then next, subject to the payment of the rents and the performance of the covenants therein reserved and contained; one of which covenants was that the said Thomas Wakefield, his executors or administrators, should not at any time, during tbe continuance of the said term, assign or under-let the same premises without the license of the lessors in writing first had and obtained for that purpose; and it was agreed that such license, if obtained, should not extend to any future assignment or demise of the said premises, or be construed as a waiver of the said covenant for restraining or disposing of the said...
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