Williams v Sir C. M. Burrell, Bart., and Another
| Jurisdiction | England & Wales |
| Judgment Date | 06 February 1845 |
| Date | 06 February 1845 |
| Court | Court of Common Pleas |
English Reports Citation: 135 E.R. 596
IN THE COURT OF COMMON PLEAS.
S. C. 14 L. J. C. P. 98; 9 Jur. 282. Followed, Locke v. Furze, 1866, L. R. 1 C. P. 454. Applied, Child v. Stenning, 1879, 11 Ch. D. 86. See Baynes v. Lloyd, [1895] 1 Q. B. 825; [1895] 2 Q. B. 610.
[402] williams v. sir C. M. burrell, bart., and another. Feb. 6, 1845. [S. C. 14 L. J. C. P. 98; 9 Jur. 282. Followed, Locke v. Furze, 1866, L. E. 1 C. P. 454. Applied, Child v. Stenning, 1879, 11 Ch. D. 86. See Baynes v. Lloyd, [1895] 1 Q. B. 825; [1895] 2 Q. B. 610.] A., being tenant for life, with a leasing power, by indenture of lease bearing date in March, 1805, demised to B. for ninety-nine years, if three persons therein named should so long live: this indenture contained the following clause:-"And A., for himself, his heirs and assigns, the demised premises, unto B., his executors, administrators, and assigns, under the rent, covenants, conditions, exceptions, and agreements, before expressed, against all persons whatsoever lawfully claiming the same, shall and will, during the said term, warrant and defend." This lease having, upon the death of A., been held to be void as against the remainder-man by the judgment of a court of law, on the ground that it was not made in due conformity with the leasing power :-Held, that the clause in question operated as an express covenant for quiet enjoyment during the whole term granted by the lease; and consequently that B., or his assignee, and the executors, &c., of such assignee, might recover against the executors of A. the value of the term, the costs of defending an action of ejectment brought by the remainder-man, and also the sum recovered by . him for mesne profits. This was a case sent by the Master of the Eolls for the opinion of this court. The Eight Hon. Charles, Earl of Egremont, by his will, bearing date the 31st of July, 1761, gave and devised all his manors, messuages, lands, advowsons, rents, and hereditaments, parts and shares of manors, &c., in the several counties of Somerset, Dorset, and Cornwall, comprising, inter alia, the premises demised by the two several indentures of lease hereinafter stated, with their respective rights, members, and appurtenances, unto his the testator's eldest son, George, Lord Cockermouth, and his assigns, for and during the term of his natural life, without impeachment of waste; with divers remainders over. And in the said will was contained a power for the several and respective persons to whom any estate for life was thereinbefore devised, when and as they should respectively be in the actual possession of the premises by virtue of the limitations thereinbefore contained, by indenture or indentures under their respective hands and seals, to demise, lease, and grant, in possession or reversion, for one life, or for two or three [403] lives, or for any term or number of years determinable upon one life, or two or three lives, any part of the said premises usually so leased, so that all the leases to be made by virtue thereof which should be in force at the same time should be determinable on the dropping of one life, or the dropping of two or three lives at the most; and so that there should be reserved in every such lease, during the continuance thereof, the antient and accustomed rents and heriots for the premises therein contained, or more ; and so that, in every of the leases to be made and granted by virtue of the several powers aforesaid, there should be contained usual and reasonable covenants, and a condition of re-entry for non-payment of the rent or rents thereby to be reserved, in case the rent or rents should fee behind or unpaid by the space of twenty-one days, and for non-performance of the covenants therein to be contained; and so as no clause and clauses should be contained in any of the said leases, giving power to any lessee to commit waste, or exempting him, her, or them from punishment for committing the same; and so as the respective lessees should execute counterparts of all such leases. ' The testator, Charles, Earl of Egremont, departed this "life in or about the year 1763, leaving his eldest son, George, Lord Cockermouth, him surviving, who thereupon became George, Earl of Egremont. , -,. 1C.B.404. WILLIAMS V. BTTRRELL 597 The said George, Earl of Egremont, immediately upon the decease of the testator, entered upon the said estates, including the said demised premises, as devisee for life under the said will of the testator. The said George, Earl of Egremont, afterwards assumed the name of O'Brien. On the 24th of March, 1805, an indenture of lease in the following words, was duly executed by the said George O'Brien, Earl of Egremont:- " This indenture, made the 24th day of March, 1805, [404] between George O'Brien, Earl of Egremont, of the one part, and John Williams, of the other part, witnesseth that, for and in consideration of the yearly rent hereby reserved, and the covenants herein contained, he the said earl doth hereby demise and lease unto the said John Williams, his executors, administrators, and assigns, all that messuage, converted into two dwellings, and garden in Broad Street, in Williton aforesaid, and adjoining Francis Hale's house, being part of Manwell's tenement, which said two dwellings are in the occupation of the said John Williams and William Wyne, excepting out of this present demise unto the said earl, his heirs and assigns, all quarries, mines, and ores, timber-trees, pollards, and saplings, and trees likely to become timber, and lops and tops of maiden trees, coppices, woods, and underwoods, now or hereafter growing upon the said demised premises, with free liberty to fell and carry away the same, to have and to hold the said demised premises unto the said John Williams, his executors, administrators, and assigns, for the term of ninety-nine years, if James Farthing, aged twenty-eight years, Mary Farthing, aged twenty years, and Ann Farthing, aged seventeen years, or any of them, shall so long live; the said John Williams, his executors, administrators, and assigns, yielding and paying therefore, yearly and every year during the said term, unto the said earl, his heirs and assigns, the rent of 11. a year, free from all taxes and incumbrances, at Lady-day, Midsummer; Michaelmas, and Christmas, by equal portions; and also yielding and paying for a heriot on the several deaths of the said James Farthing, Mary Farthing, and Ann Farthing (whether they die in succession or otherwise), the sum of Is. And the said John Williams, for himself, his executors, administrators, and assigns, doth covenant with the said earl, his heirs and assigns, that the said John Williams, his executors, administrators, [405] and assigns, shall and will pay or cause to be paid unto the said earl, his heirs and assigns, the said yearly rent and other payments in manner aforesaid, and shall and will repair and keep the premises hereby granted, with the appurtenances, in and with all necessary reparations during the said term, and the same at the end thereof, so well and sufficiently repaired and kept at his and their charges, will leave and yield up, and shall and will perform suit to the courts of the manor of Williton Kegis ; and shall and will, within six months next after notice to him or them given, or left at his or their place of abode for the time being, or on the said premises hereby demised, produce unto the said earl, his heirs and assigns, or to his or their agent, all the said lives, if living, or otherwise make it appear to him or them, within the" time aforesaid, or within a reasonable time if they or either of them should happen to be in foreign parts, by a sufficient certificate, that all such persons or person so abroad be living. And, if it happen the said yearly rent or other payments aforesaid, or either of them, shall be unpaid, in part or in all, after either of the days of payment aforesaid, then it shall be lawful for the said earl, his heirs and assigns, into the said premises, to enter, and distrain, and the distress there found to dispose of according to law; and in default of such sufficient distress for satisfaction of the rent and other payments, with all costs and charges thereon, or, if the said John Williams, his executors, administrators, and assigns, shall suffer the said premises, or any part thereof, to be ruinous to the value of 40s., and the same shall not repair within six months next after notice to him or them given, or left at his or their place of abode for the time being, then, for all or either of the causes aforesaid, it shall be lawful for the said earl, his heirs and assigns, into the said premises, or any part thereof in the name of the whole, to re-enter, and the same to [406] repossess as in his or their former estate. And the said earl, for himself, his heirs and assigns, the said demised premises, with the appurtenances, unto the said John Williams, his executors, administrators, and assigns, under the rent, covenants, conditions, exceptions, and agreements before expressed, against all persons whatsoever lawfully claiming the same, shall and will during the said term warrant and defend." A counterpart of the same lease was duly executed by the said John Williams. The lease was invalid as an. execution of the power, by reason that it did not 598 WILLIAMS V. BUBEELL 1 C. B. 407. contain the same covenants as were .contained in the antient leases of the same premises. Williams had not, at the time of accepting the said lease, any notice of the said antient leases or any of them. Williams entered upon the said demised premises under and by virtue of the lease to him thereof, and enjoyed and possessed the term so granted as aforesaid, until the eviction of his tenants as hereafter stated. One of the lives in the said lease is still living. By a certain other indenture of lease, bearing date the 25th of March, 1805, and made...
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