Trott v Smith, Executor of Richard Edwards, Deceased
| Jurisdiction | England & Wales |
| Judgment Date | 17 June 1842 |
| Date | 17 June 1842 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 548
EXCH. OF PLEAS.
S. C. 2 Dowl. (N. S.) 278; 12 L. J. Ex. 186. See further, 12 M. & W. 688.
[463] trott v. smith, Executor of Richard Edwards, Deceased. Exch. of Pleas. June 17, 1842.-Declaration in covenant stated, that by an indenture of assignment of certain leasehold premises, between the plaintiff', the defendant's testator, and W., the testator for himself, his executors, &e., covenanted with the plaintiff' to pay to W. the sum of 12001., and interest. By the indenture as set out in the plea on oyer, it appeared that the plaintiff' had mortgaged the premises to W., with a proviso that if the plaintiff, his executors, &c., six months after demand in writing, should pay the 12001. to W., W. would reconvey : that the assignment by the plaintiff to the testator was subject to the above indenture of mortgage to W., and to the payment to him of the said sum of 12001. There was then a general covenant for payment by the testator to W. of the said sum of 12001. ! The plea! then alleged, that no demand in writing of payment of the sum of 12001. was mad£ upon the plaintiff":-Held, on demurrer to the plea, that the declaration was bad, since, as no demand of payment had been made by W. on the plaintiff' pursuant to the proviso, the money was not due, and the defendant was not liable on his covenant. [S. C. 2 Dowl. (N. S.) 278; 12 L. J. Ex. 186. See further, 12 M. & W. 688.] Covenant. The declaration stated, that whereas theretofore, in the lifetime of the said Richard Edwards, to wit, on the 20th July, 1825, by an indenture then made between the plaintiff1 of the first part, the said R. Edwards of the second part, and one W. J. Wilton of the third part (which said indenture, sealed with the seal of the said R. E,, being in the possession of the defendant, the plaintiff' cannot produce to the court here), after reciting, amongst other things, that the plaintiff' had contracted and agreed with the said R. Edwards for the absolute sale to him of certain premises, particularly mentioned and described in the said indenture, at and for the price or sufn of £150Q sterling, out of which said sum of £1500 was to be deducted a certain principal sum: of £1 200, secured to the said W. J. Wilton as thereinbefore mentioned ; th£ said R. Edwards did for himself, his heirs, executors, administrators, and assigns, covenant, promise, and agree with and to the plaintiff, that he tho said 14. Edwards, his executors, &c., or some or one of them, should and would well and truly pay or cause to he paid unto the said W. J. Wilton the said principal sum of £1200, and all interest due, accruing, and growing due on the same; as by the said indenture, WM.1&W.4M. TROTT V. SMITH 549 reference being thereunto had, will, amongst other things, more fully appear. Nevertheless the plaintiff in fact says that although afterwards and after the making of the said indenture, and before the commencement of this suit, to wit, on the 20th day of November, 184 1, a large [454] sum of money, to wit, the sum of £1500, being the amount of the principal money and interest secured by the said indenture, became duo &nd loving under and by virtue of the same indenture, and still remains wholly due and unpaid; yet the said R. Edwards in his lifetime did not nor would, nor did nor would the defendant, as such executor as aforesaid, since the death of the said R. Edwards, well and truly pay or cause to be paid the same or any part thereof, according to the tenor, true effect, and meaning of the said indenture ; but on the contrary thereof, he the aaid R. Edwards in his lifetime wholly neglected and refused, and the said defendant as such executor as aforesaid since the death of the said R. Edwards wholly neglected and refused, and still doth neglect and refuse, to pay the same, or any part thereof, either to the said plaintiff or the said W. J. Wilton ; and;the said sum of £1500 still remains wholly due, owing, and unpaid, contrary to the tenor and effect, true intent and meaning of the said indenture, and of the said covenant of the said R. Edwards so by him in that behalf made as aforesaid, &c. First plea, non est factum. The second plea, set out the indenture in base verba, from which it appeared that the indenture declared or recited an indenture dated the 29th March, 1824, and made between H. C. Sturt of the one part, aud the plaintiff of the other part, by which the said H. C. Sturt demised the premises therein...
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