Young and Another v Raincock

JurisdictionEngland & Wales
Judgment Date14 February 1849
Date14 February 1849
CourtCourt of Common Pleas

English Reports Citation: 137 E.R. 124

IN THE COURT OF COMMON PLEAS

Young and Another
and
Raincock

S. C. 18 L. J. C. P. 73; 13 Jur. 539.

[310] yotjng and another . eainoook. Feb. 14, 1849. [S. C. 18 L. J. C. P. 73; 13 Jur. 539.] On the sale of a messuage, &c., the vendor,-by a deed, reciting that his wife was the heir of A. H., deceased, that A. H. had died intestate, and that the vendor and his wife, or one of them, were or was seised in fee, and after further reciting a settlement made on the marriage of the vendor and his wife, giving them a power of appointment, the power was executed in favour of H. S. Y. in fee,-covenanted " that, for and notwithstanding any act, matter, or thing by them the vendor and his wife, or either of them, or the said A. H., made, done, &c., to the contrary," they, the vendor and his wife, or one of them, were or was lawfully and rightfully seised of the messuage, &c., and had lawful and absolute authority to appoint, &c., and that it should be lawful for H. S. Y., his heirs, &c., peaceably and quietly to hold the messuage, &c., without any lawful let, suit, &c., by them the vendor and his wife, or either of them, their or either of their heirs, &c., or from or by any other person or persons whomsoever lawfully or equitably claiming or to claim by, from, or under, or in trust for him, them, or either of them, or the said A. H. ; and that, free and clear, &c., of, from, and against all gifts, grants, incumbrances, &c., already or thereafter to be had and made, &c., by the vendor and his wife, or either of them, or the said A. H. deceased, or by any other person or persons lawfully or equitably claiming or to claim by, from, or under, or in trust for them or any or either of them, or by their or any or either of their acts, deeds, means, defaults, or procurement.-The declaration, in an action by the executors of the covenantee, after setting out the covenant for quiet enjoyment, assigned a breach of that covenant as follows : -"that the said H. S. Y., during his life-time, was not permitted, nor was he able, peaceably and quietly to hold the said messuage, &c., without the lawful let, &c., of the defendant and his wife, and of, from, and by all other persons whomsoever, lawfully and equitably claiming and to claim by, from, and under, and in trust for him and them and the said A. H. deceased; but, on the contrary thereof, after the making of the indenture, and during the life-time of the said H. S. Y., one P. H., who then claimed, and from thence hitherto hath claimed, and still doth claim from, under, and as heir-at-law to the said A. H. deceased, lawful right and title to the said messuage, &c., caused a declaration in ejectment to be served on the said H. S. Y." The declaration then set out a recovery in ejectment by P. H., claiming as above, and an eviction of the said H. S. Y. by due process of law.-To this declaration, the defendant pleaded, inter alia, that A. H. died intestate, leaving the defendant's wife her only child and heir-at-law, and that the said H. S. Y., intending, &c., instigated P. H. to claim right and title to the messuage, and to bring ejectment; and so the defendant said that the said H. S. Y., of his own wrong, and by and through his own act and procurement, was evicted, &c.-The plaintiffs replied de injuria :-Held,-first, that, assuming that the recital in the deed- that the vendor's wife was heir of A. H.-would have operated as an estoppel against the plaintiff's testator, after eviction by title paramount, if properly pleaded and relied upon, such estoppel was waived by joining issue upon a replication which put in issue the fact of the wife's heirship alleged in the plea, instead of rejoining the estoppel:-Secondly, that, excluding such allegation of the heirship of the defendant's wife, the plea afforded no answer to the- action:-Thirdly, that the 7C.B.311. YOUNG V. KAINCOCK 125 allegation in the declaration that P. H. claimed, as heir to A. H., lawful title to the premises, though possibly objectionable on special demurrer, on the ground of uncertainty, must, after being pleaded over to, be understood to mean, not merely that he claimed, but that he had lawful title :-Fourthly; that the generality of the terms of the covenant for quiet enjoyment was not restricted by the introductory words,-for and notwithstanding, &c.,-of the covenant for title. This was an action for the breach of a covenant for quiet enjoyment. The cause was tried before Patteson, J., at the Suf-[311]-folk summer assizes, 1847. The plaintiffs were the executors of one Henry Shadow Young, who died in 1846. The defendant, in 1832, married Martha Ann, the only child of Ann Hopley, who purchased a small estate, consisting of the house and premises which were the subject of the present action, and died intestate (as to this estate) in 1827. Martha Ann'Hopley, her only child, then entered into possession. In 1841, the defendant and Martha Ann his wife sold and conveyed the estate to Henry Shadow Young, who entered into possession thereof. In 1845, one Peter Hopley, who claimed to be the heir of the said Ann Hopley, brought an action of ejectment against Henry Shadow Young, and obtained possession of the premises. Henry Shadow Young was evicted, and the present action was brought for a breach of the covenant for quiet enjoyment in the deed of conveyance on the sale in 1841. The deed on which the action was brought was set out on oyer. By that deed,- after reciting a grant to Ann Hopley, in fee, and that the defendant's wife was the heir of Ann Hopley, deceased, and that Ann Hopley had died intestate, and that M. A. Eaincock was seised in fee; and after further reciting a settlement made [312] on the marriage of the defendant and his wife, giving them a power of appointment, -the power was executed in favour of H. S. Young, in fee; and the defendant covenanted as follows:-That, for and notwithstanding any act, matter, or thing by them, the said G-. D. Eaincock and Martha Ann, his wife, or either of them, or the said Ann Hopley, deceased, made, done, omitted, committed, executed, or knowingly or willingly suffered to the contrary, they the said G. D. Eaincock and Martha Ann, his wife, or one of them, are or is at the time of the sealing and delivery hereof, law-fully, rightfully, or absolutely seised of and in, or well and sufficiently entitled to, the said messuage or tenement, land, hereditaments, and premises hereby appointed, granted, and released, or intended so to be, and every part thereof, with their and every of their appurtenances, for a good, sure, perfect, absolute, and indefeasible estate of inheritance in fee-simple in possession, without any manner of condition, trust, power of revocation, equity of redemption, remainder, or limitation of any use or uses, or restraint, cause, matter, or thing whatsoever, to alter, change, defeat, incumber, revoke, or make void the same ; and that, for and notwithstanding any such act, deed, matter, or thing as aforesaid, they, the said G. D. Eaincock and Martha Ann, his wife, some or one of them, now have or hath good right, full power, and lawful and absolute authority to appoint, grant, bargain, sell, release, and convey the said messuage or tenement, land, hereditaments, and premises hereby appointed, granted, and released, or intended so to be, with their appurtenances, to the uses, upon the trusts, and for the intents and purposes hereinbefore expressed and declared, and in manner aforesaid, and according to the true intent and meaning of these presents; and that it shall and may be lawful to and for the said Henry Shadow Young, [313] his heirs, appointees, and assigns, from time to. time, and at all times hereafter, peaceably and quietly to enter into, hold, occupy, possess, and enjoy the said messuage or tenement, land, hereditaments, and premises. hereby appointed, granted, and released, or intended so to be, with their appurtenances, and to have, receive, and take the rents, issues, and profits thereof, and of every part thereof, to and for his and their own use and benefit, without any lawful let, suit, trouble, denial, .claim, demand, interruption, or eviction whatsoever of or by them the said G. D. Eaincock and Martha Ann his wife, or either of them, their or either of their heirs, executors, administrators, or assigns, or of, from, or by any other person or persons whomsoever lawfully or equitably claiming or to claim by, from, or under, or in trust for him, them, or either of them, or the said Ann Hopley, deceased; and that free and clear, and freely and clearly and absolutely acquitted, exonerated, released, and for ever discharged or otherwise by the said G. D. Eaincock and Martha Ann, his wife, their heirs, executors, and administrators, 126 YOUNG V. RAINOOCK 7 0. B. 314. well and sufficiently saved, defended, kept harmless, and indemnified of, from, and against all and all manner of former and other gifts, grants, bargains, sales, dowers, and all rights and titles to dower, uses, trusts, entails, wills, mortgages, leases, statutes-merchant, or of the staple, recognisances, judgments, executions, extents, rents, arrears of rents, annuities, legacies, sums of money, yearly payments, forfeitures, re-entry, debts of record, debts due to the Queen's Majesty, and of, from, and against all other estates, titles, troubles, charges, debts, and incumbrances whatsoever, either already or hereafter to be had and made, executed, occasioned, and suffered by the said Gr. D. Eaincock and Martha Ann, his wife, or either of them, or the said Ann Hopley, deceased, or by any other person or persons lawfully [314] or equitably claiming or to claim by, from, or under, or in trust for them or any or either of them, or by their or any or either of their acts, deeds, means, defaults, or procurements: and, further, that they, the said G-. D. Eaincock and Martha Ann, his wife, and their heirs, executors, and administrators, and all and every...

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