Stannard against Forbes and Wife
| Jurisdiction | England & Wales |
| Judgment Date | 26 April 1837 |
| Date | 26 April 1837 |
| Court | Court of the King's Bench |
English Reports Citation: 112 E.R. 219
IN THE COURT OF KING'S BENCH
S. C. 1 N. & P. 633; W. W. & D. 321; 6 L. J. K. B. 185.
[572] stannard against forbes and wife, Executor and Executrix of Lock. Wednesday, April 26th, 1837. Declaration, in covenant, stated that C., by indenture, demised premises to L., for the term of eleven years if C. should so long live, at a rent payable to C., which L. covenanted to pay ; that L. entered, and was possessed for the term ; that afterwards L., by indenture between himself and plaintiff, reciting that C. had demised to him L. for eleven years (not stating it to be determinable on C.'s death), did grant, bargain, sell, assign, transfer, and set over to plaintiff, habendum for the residue of the said term of eleven years, subject to L.'s covenants in the indenture between C. and L. ; and that L. covenanted to plaintiff that, notwithstanding any act by him done or knowingly suffered or omitted, the recited lease was, at the time of sealing, &c., the indenture between plaintiff and L., a good, valid, and effectual lease, and that the same, and the term of eleven years therein expressed, were respectively in full effect, and in no wise forfeited, surrendered, assigned, determined, or otherwise become void or voidable, or prejudicially affected, in any manner howsoever, than by effiuxion of time, and that the rents, &c., had been paid, and the tenant's covenants performed, and also that, for and notwithstanding any such act, &c., L. had in himself full power to bargain, &c., for the residue unexpired by effluxion of time in the said term of eleven years; with covenants for quiet enjoyment during the residue of the said term without disturbance, &c., by L., or any one rightfully claiming through him, and that indemnified by L. against all assignments, charges, &c., by L., except the rent reserved, and the tenant's covenants contained in the indenture between C. and L.; and with a covenant 220 STANNAHD V. FORBES 6 AD. ft E. SIS. for further assurance by L., and all lawfully claiming under him. The declaration then alleged that plaintiff afterwards (during the residue of the eleven years) assigned to J., and covenanted that the indenture between C. and L. then was and continued a good and subsisting lease, and not surrendered, forfeited, or become void or voidable, in any manner howsoever, and that plaintiff then had good right to grant, &c. Averment that, before the making of the indenture between L. and plaintiff, C. died, whereby the lease to L. ceased, and that G., who became thereon entitled, evicted J., whereon J. sued plaintiff in covenant, and recovered damages and costs. Averment, that L., before making the indenture between L. and plaintiff, had, and the plaintiff had not before then, knowledge of C.'s death. Breach, that the indenture between C. and L. was not, at the time of the sealing, &o., the indenture between L. and plaintiff, good and valid, and that the same and the said term therein were not in full effect and in no wise forfeited, &e., and that L. had not in himself full power, &c., and that plaintiff did not, nor could, enjoy, &c. Issues being joined on the breaches, the above facts were proved ; and it appeared that, after C.'s death, L. had paid rent to G. Held, that plaintiff could not recover: for that, 1. L.'a express covenants for title were only against the acts, &c., of himself and those claiming under him, and that therefore the determination of the term by the death of C. was not a breach of the covenants. 2. Nor the payment of rent by L. to G., L.'s title having previously expired, and therefore no prejudice thereto arising from such payment. 3. That no absolute covenant for title could be implied from the words of grant, there being an express qualified title. [S. C. 1 N. & P. 633 ; W. W. & D. 321; 6 L. J. K. B. 185.] Covenant. On the trial of this cause at the Middlesex sittings in Michaelmas term, 1834, a verdict was taken for the plaintiff, subject to the opinion of this Court on the following case. [573] The declaration stated that, whereas heretofore, to wit 26th February, 1825, by a certain indenture then made between George Scott, guardian of Georgiana Scott, of the first part, Seariah Stoe Clement, of the second part, and John Lock (the testator) of the third part, George Scott as to one undivided moiety of the messuage and premises, &c., thereinafter mentioned, &c., did demise unto John Lock, and the said S. S. Clement as to the other undivided moiety thereof did also demise unto J. Lock, the said messuage, &c., to hold one undivided moiety thereof, that is to say the moiety of the said Georgiana Scott, from 25th December then last past, for the term of eleven years, if Georgiana Scott should so long live, at and under a certain rent to her payable, and to hold the other undivided moiety for the same term, provided S. S. Clement should so long live, at and under a certain rent to her payable ; and J. Lock covenanted, amongst other things, to pay the said rents, &c.; by virtue of which indenture J. Lock entered into, and was possessed of, the aaid messuage, &c., for the term therein mentioned, and according to the tenor and effect thereof; and, after the making of the same indenture, and in the lifetime of J. Lock, to wit 21st September, 1826, by a certain indenture then made between J. Lock of the one part, and the plaintiff of the other part (profert), reciting, amongst other things, that, in and by the said indenture, George Scott had, as to the moiety of Georgiana Scott, and S. S. Clement had, as to the other moiety, demised and leased unto J. Lock, his executors, &c., the premises in the said indenture mentioned, to wit, &c. to hold the moiety of Georgiana Scott unto J. Lock, his executors, &c., for the term of eleven years, from the 25th December then last past, at [574] and under a certain yearly rent clear of all, &c., and to hold the other moiety, belonging to S. S. Clement, from the same 25th December, for the same term of eleven years, at and under the further yearly rent of 251.; and also reciting that, by a memorandum of agreement bearing date 26tb day of August then last, between J. Lock and the plaintiff, J. Lock had agreed to sell unto the plaintiff the said messuage, &c., with the appurtenances, demised by the said indenture, for the residue of the said term of eleven years, together with the good will of a certain trade, &c., and that J. Lock had thereby further agreed to assign over the said lease and good will to the plaintiff; J. Lock, for the considerations, &c., did then and there grant, bargain, sell, assign, transfer, and set over, unto the plaintiff, his executors, &c., the said messuage, &c., 6 AD. & E. 575. STANNARD V.FORBES 221 to have and to hold the said messuage, &c., unto the plaintiff, his executors, &c., from 29th September next ensuing the date, for arid during all the rest, residue, and remainder, which should be then to come and unexpired, of the said term of eleven years therein, subject to payment of the yearly rents, and...
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