« EelmineJätka »
shall be recovered; and in every action where compensation is demanded, by way of damages only, accord executed is a good bar.
The plaintiff being seised in fee of a messuage and landsc, one parcel of which, consisting of about one-third, lay contiguous to the land of one E. P. in consideration of a sum of money, and the covenant hereinafter mentioned, by indenture released the said parcel of land to E. P. in fee, who thereupon covenanted, for herself and her assigns, that she would, from time to time, and at all times thereafter, pay onethird part of all the taxes and assessments that should be imposed on the said messuage and land; the parcel of land came to the defendant by assignment, who neglected to pay the one-third part of the taxes for several years. The plaintiff having declared for a breach of covenant, in the years 1759, 1760, 1, 2, 3, 4, 5, and 6, the defendant pleaded, that in Michaelmas Term, 1766, he commenced an action against the plaintiff, and one R. J., for certain trespasses committed by them upon the lands and goods of the defendant; and thereupon, afterwards, to wit, on the 22nd January, 1767, it was agreed (not saying by deed,) that the defendant should put an end to his suit, and that plaintiff and R. J. should pay a certain sum of money, and costs; and that the plaintiff should relinquish all damages and demands which he then had against the defendant ; the plea then averred, that the defendant did not further prosecute his suit against the plaintiff and R. J., and prayed judgment of the action. On general demurrer to this plea, it was objected, that a covenant to pay money, which was by deed, could not be discharged without deed: and of this opinion was the court, and gave judgment for plaintiff. Blake's case, 6 Rep. 44. a. was cited.
Covenant by the heir in reversiond against executor of tenant for life, for breach of covenant in testator, in not repairing the house demised; plea, that the testator, tenant for life, died on such a day, and that afterwards it was agreed, between the plaintiff and defendant, that defendant should qui. etly depart and leave possession to the plaintiff, and, in consideration thereof, the plaintiff agreed to discharge lim from the breach; and averred, that within five days from the day of agreement, he left the house. On demurrer, the plea was holden to be bad; for the time was not fixed by the terms of the agreement, when the executor should depart; and, although it was averred that he departed within five days, yet
c Rogers v. Payne, MSS. 2 Wils. 276. d Samford v. Cuteliffe, Yelv. 124. S. C. briefly stated.
Russell v. Do. 3 Lev. 189.
that would not aid the first uncertainty ; for the agreement was the foundation of the whole, which ought to be certain, when it should be performed.
To covenant for rent arrear, the lessee may pleade, that he was evicted, by the lessor, from the demised premises, and kept out of possession until after the rent in question became due; for an eviction occasions a suspension of the rent; but a mere trespass will not: for where to covenant for rentarrear for a dwelling-housef, the defendant pleaded that the lessor had taken away a pent-house, fixed to the dwellinghouse, and part of the demised premises; on demurrer, the court held that the fact stated in the defendant's plea being a mere trespass, for which the defendant might have a remedy by action, would not operate as a suspension of the rent. Although rent is suspended by an entry into parts, yet on a demise of a messuage with the appurtenances, the covenant to repair is not suspended by an entry into the back yard, the lessee remaining in possession of the messuage. Snelling v. Stag, Bull. N. P. 165.
It is to be observedh, that if a tenant would excuse himself from payment of rent upon an eviction by a stranger, he must shew that such stranger had a good title to evict him : and, in order to give the plaintiff a proper opportunity of controverting such title, the defendant must shew particularly how it arises; for, if it were sufficient to allege that the stranger had a good title, a single issue could not be taken on it; and as the legality, as well as the fact of the title, would be complicated together, the jury would be entangled with questions of law, which are proper for the consideration of the court only. To avoid this inconvenience, it is necessary that the title should be specified.
At the common law, infants are not bound by covenants which operate to their disadvantage. Hence a defendant may insist on his non-age, as a defence to an action of covenant: but this defence must be pleaded specially, and cannot be given in evidence on non est factum. The stat. 5 Eliz. c. 4, whereby infants are enabled to bind themselves apprentices, has not altered the common law as to the binding force of covenants entered into by infants, at least where the covenants are collateral covenants. This point appears to have been doubted formerly, but was fully established in the following case:
e Dalston v. Reeve, Lord Raym. 77. g Dorrell v. Andrews, Hob. 190, f Roper v. Lloyd, T. Jones, 148, cited h Per Lord Hardwicke, C. J. in Jordan
by Dunning, in Hunt v. Cope, Cowp. v. Twells, B. R. M. 9 Geo. 2. MSS. 242.
and Ca. Temp. Hardw. 172.
In covenant against an apprentice for departing from the plaintiff's servicek without license, within the time of his
apprenticeship; the defendant pleaded, that at the time of making the indenture he was within age. On demurrer, judgment was given for the defendant; the court being unanimous that, although an infant might voluntarily bind himself an apprentice, and if he continued an apprentice for seven years, might have the benefit to use his trade; yet, neither at the common law, nor by stat. 5 Eliz. C. 4, did a covenant or obligation of an infant, for his apprenticeship, bind him; nor did any remedy lie against an infant, upon such covenant. See a dictum to the same effect, with the exception of special custom, in Whittingham v. Hill, Cro. Jac. 494. By the custom of London, an infant may bind himself by covenant in an indenture of apprenticeship. 2 Rol. R. 305. Code v. Holmes, Palm. 361. Anon. 1 Lev. 12. Horn v. Chandler, 1 Mod. 271.
Covenant upon an indenture of apprenticeship? by the master against the father ; breach, that the apprentice absented himself from the service; plea, that the son faithfully served until he came of age, and that he then avoided the indenture; it was holden, that this was no answer to the action.
4. Limitations, Statute of.
By stat. 3 and 4 W. 4, c. 42, s. 3, “ All actions of debt for rent upon an indenture of demise, all actions of covenant or debt upon any bond or other specialty, shall be commenced and sued within ten years after the end of this present session (1833,) or within twenty years after the cause of such action or suit." Covenant for rent arrear may be brought within the time limited by the foregoing section, and is not limited to six years by 3 and 4 W. 4, c. 27, s. 42, (which last has a prospective and not a retrospective operation. Paddon v. Bartlett, 3 Ad. and El. 884; 5 Nev. and Man. 383. S. C.]
i Fleming v. Pitman, Winch, 63, Hutt. k Gylbert v. Fletcher, Cro. Car. 179. 63. $. C. E. T. 21 Jac.
Lilly's case, 7 Mod. 15. S. P. 1 Cuming v. Hill, 3 B. and A. 59.
5. Nil habuit in tenementis.
If a lease be by indenture, the lessor and lessee are concluded from avoiding the lease : and if an action be brought, and the plaintiff declare on the indenture”, and the defendant pleads that the lessor nil habuit in tenementis, the plaintiff, instead of replying the estoppel, may demur; because the estoppel appears on the record.
Covenant was brought by the assignee of a reversion for non-payment of rento: it was stated in the declaration, that J. P., on a certain day, was seised in fee, and on the same day demised by indenture to the defendant ; that J. P. afterwards assigned the reversion in fee to the plaintiff. Plea, that before the demise and assignment of the reversion to the plaintiff, J. P. conveyed the premises to J. S. in fee, and traversed, that at any time after that conveyance J. P.
was seised in fee. On general demurrer it was holden, that this plea was a special nil habuit in tenementis, which was no more to be allowed, where the demise was by indenture, than a general plea of that kind; and although the plaintiff was an assignee, yet he might take advantage of the estoppel, because it ran with the land.
In covenant by lessor on an indenture of lease for not repairingP, the lessee pleaded, that the lessor had an equitable estate only in the thing demised: on special demurrer, the plea was holden bad.
It is an universal rule that a tenant shall not be permitted to set up any objection to the title of his landlord, under whom he holds: this is not a mere technical rule, but one founded in public convenience and policy. Hence a lessee of land in the Bedford level9 cannot object to an action by his landlord for a breach of covenant, in not repairing, that the lease was void by the stat. 15 Car. 2, c. 17, for want of
m Paget v. Foley, 2 Bingh. N. C. 679. o Palmer v. Ekins, ubi supra. n Palmer v. Ekins, Str. 818; 11 Mod. p Blake v. Foster, 8 T. R. 487.
411. Leach's ed. Lord Raym. 1550. 9 Hodson v. Sharpe, 10 East, 350. $. C.
being registered. The act meant, for the protection of titles, that leases and conveyances, within this district, should be registered, that every person interested in the inquiry might know in whom the title to such land was; and, therefore, as against persons who have been deceived by the omission to register, or even as against those who, without being deceived, knew that the act had not been complied with, and relied on it, the legal objection might prevail at law; but not as between the parties themselves to the lease, between whom the act was not meant to operate.
Covenant for rent was brought on an indenture of lease", by the assignees of a lessor (a bankrupt); the defendant pleaded, that the lessor nil habuit in tenementis ; it was holden bad, on general demurrer. In like manner, it has been adjudged ", that an assignee of lessee under a lease by indenture cannot plead that the lessor did not demise.
It may be observed that, in the preceding cases, the want of title did not appear on the face of the declaration; and it seems that, in order to give a party the benefit of an estoppel, in all cases where it is necessary to set forth a title, a good title must appear on the face of the declaration ; for in Nokes v. Awder, Cro. Eliz. 373. 436., it was resolved, by all the judges, that although they would not intend a lease to be good by estoppel only, yet where it appeared on the face of the declaration to be so, the assignee of such a lease could not maintain an action for the breach of any of the covenants contained in the lease. So where covenant was brought against a lessee for years ť, on an indenture of lease, and it appeared on the declaration, that the lease was executed by a tenant for life; that the plaintiff, the reversioner, who was then under age, was named in the lease, but that the lease had not been executed by him until after the death of the tenant for life, judgment was given for the defendant, on the ground that the lease was void by the death of tenant for life : Buller, J. observing, that the court could not proceed on the doctrine of estoppel in this case, because it was admitted by the plaintiff, on the pleadings, that he did not execute until after the death of the tenant for life. So where the plaintiff declared, that by deed made between her as attorney for J. S.u on the one part, and the defendant on the
r Parker and others, assignees of Steel, s Taylor v. Needham, 2 Taunt. 278.
(a bankrupt) v. Manning, 7 T. R. t Ludford v. Barber, 1 T. R. 86. 537.
u Frontin v. Small, Ld. Raym. 1418.
Str. 705, S. C.