Thorn, surviving Executor of Peter Paige, against Woollcombe
| Jurisdiction | England & Wales |
| Judgment Date | 08 May 1832 |
| Date | 08 May 1832 |
| Court | Court of the King's Bench |
English Reports Citation: 110 E.R. 213
IN THE COURT OF KING'S BENCH
Inapplicable, Baker v. Gostling, 1834, 1 Bing. N. C. 19.
[586] thorn, surviving Executor of Peter Paige, against woollcombe. Tuesday, May 8th, 1832. A lease was granted in 1759 for ninety-nine years, if certain parties should so long live. The lessees in 1818 demised the premises to P. for sixty-two years, from the 25th of March 1821, if their interest should so long continue, subject to a rent of 421. and various covenants, with a proviso for re-entry in ease of default. P. had already the reversion in fee, subject to a mortgage granted by him before the last-mentioned demise. By lease and release executed in 1820, to which the mortgagee was a party, P. in consideration of a sum of money (part of which went to discharge the mortgage,) conveyed the premises in fee to a purchaser, to whom the mortgagee also assigned his term; and it was stipulated that the purchaser should retain 3001. of the purchase-money, upon trust, that, if P. should pay the 421. rent, and perform the covenants contained in the lease of 1818, the purchaser should pay over to him the 3001. at the expiration of the term or extinguishment of the lease of 1759, and interest in the meantime: Held, that the deed of 1818 was an assignment of all the interest of the then lessees to P., and that by the conveyance of 1820, that interest, as well as the reversion in fee, passed to the purchaser, and (the mortgage being at the same time put an end to) the term became merged in the inheritance ; and consequently, that as soon as the term became vested in the purchaser, P. was discharged from the rent and covenants, and entitled to the 3001. [Inapplicable, Baker v. Gostling, 1834, 1 Bing. N. C. 19.] Covenant. The declaration stated that by indenture made between Peter Paige^ the testator, of one part, and the defendant of another, it was agreed that the defendant should retain in his hands a certain sum of 3001. in the indenture mentioned during a certain term created by lease of the 16th of July 1818; and that if P. P. should during that term pay the rent reserved by the lease, and fulfil the covenants therein, the defendant would pay interest on the 3001. to P. P,; and after the expiration of the said term, or the extinguishment of a certain indenture of lease of the 1st of December 1759 by surrender or otherwise, and the payment by P. P., his executors, &c., of the before-mentioned rent, down to the time of such extinguishment, he, the defendant, would pay over to P. P., his executors, &c., the said sum of 3001. Averment, that before any of the rent became due, to wit, on, &c. all the residue of the term granted by the lease of 1759 legally came to the defendant, who was then seised in fee of and in the reversion of the premises demised by that lease ex-[587]-pectant on the determination of the term thereby granted, whereupon and whereby the residue of the said term became merged in the said inheritance of the defendant, and utterly extinguished; and that until that time P. P. kept all the covenants in the indenture of 1818 on his part to be performed. Breaches, that the defendant did not pay the interest, and that although the residue of the term granted by the lease of 1759 became merged and extinguished as aforesaid, the defendant did not pay the 3001. There was another count stating particularly the manner in which, as it was. 214 THORN V. WOOLLCOMBE 3 B. & AD. 588. alleged, the residue of the term became merged in the defendant's estate in fee. Pleas, non est factum, and a special plea, among others, denying that the residue of the term in the lease of 1759 became merged or extinguished as stated in the declaration. There was also a plea of set-off for monies paid, &c. At the trial before Park J., at the Exeter Spring Assizes 1831, a verdict was found for the plaintiff, subject to the opinion of this Court on the following case :- By...
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