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WHITTON

his will, bearing date the 25th of March, 1760, gave and 1836. devised the same unto Maria, the wife of Baker John Littlehales, to hold to her, her heirs and assigns, for ever.

Релсоск. At a court holden for the said manor on the 13th of April 1762, the said Maria Littlehales was admitted tenant, to hold the premises unto the said Maria Littlehales, her heirs and assigns for ever, at the will of the lord, according to the custom of the said manor. And at the same court, the said B. J. Littlehales and Maria his wife surrendered the premises to the use of the said B. J. Littlehales, his heirs and assigns, for ever; whereupon the said B.J. Littlebales was admitted tenant. By an indenture of lease, bearing date Indenture of the 2nd of August 1762, made between the said B. J. August, 1762. Littlehales and Maria his wife of the one part, and Philip Keys, builder, of the other part, it was witnessed, that the said B. J. Littlehales and Maria his wife, in pursuance and in part performance of a prior : agreement, and by virtue of the aforesaid licence by the said B. Martyn obtained of the lord of the said manor for that purpose, demised to Keys, his executors, administrators and assigns, a piece of ground, parcel of the said premises, to hold the same to Keys, his executors, administrators, and assigns, from Lady-day, 1761, for ninety-eight years then next ensuing, paying to Littlehales,, his heirs and assigns, the yearly rent of 5l. And by the said lease Keys did for himself, his executors, administrators, and assigns, covenant with Littlehales, his heirs and assigns, that Keys, his executors, administrators, and assigns, should pay to Littlebales, his heirs and assigns, the said yearly rent of 51. on the day and in the manner therein appointed for payment; and that Keys, his executors, administrators, and assigns, should finish, fit for habitation, within six months from the date thereof, the messuage and tene. ment, erections and buildings, then standing on the premises thereby demised, and sufficiently repair and uphold the same during the said term; and the same premises so well and sufficiently repaired and upheld at the end or

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РЕАсоск. Indenture of August, 1762.

other sooner determination of the term aforesaid, should surrender and yield up unto Littlehales, his heirs and assigns. By another indenture of lease of the same date, made between Littlehales and Maria his wife of the one part, and Keys of the other part, Littlehales and Maria his wife, in pursuance of the said licence, demised another piece of ground, parcel of the said premises, to Keys, for a similar term, under the rent of 5l., and under covenants similar to those in the last stated lease. By an indenture of assignment, bearing date the 20th of August, 1762, and made between Keys of the one part, and David Main therein described of the other part, Keys assigned the several pieces of ground comprised in the said indentures of lease of the 2nd of August, 1762, and the messuages or tenements built thereon, to Main, for the residue of the said term of ninety-eight years, by way of mortgage, and subject to redemption on payment of 4001. and interest on the 20th of February then next ensuing. By an indenture bearing date the 31st of March 1766, and made between Main of the first part, Keys of the second part, and John Carter therein described of the third part, Main at the request of Keys, and Keys, did assign the same pieces of ground and the two messuages built thereon to Carter, for the then residue of the said term of ninety-eight years, subject to a proviso for redemption of the said premises on payment by Keys to Carter of the principal sum of 3071. 10s, and interest on the 30th of September then next ensuing At a court holden for the said manor on the 23rd of May, 1770, it was found by the homage, and was entered and appeared in the Court Rolls of the manor, that the said Elizabeth Benett then some time since died seised of the premises to which she had been admitted at the Court held on the 27th of April, 1753, without having made any surrender to the use of her will; and that Martha Leigh, wife of Peter Leigh, who was the niece and customary heir of the said Elizabeth Benett, was admitted tenant, to hold the premises unto the said Martha

At

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Leigh, her heirs and assigns, for ever, at the will of the 1836. lord, according to the custom of the said manor. à court held for the said manor on the 13th of February,

PEACOCK 1772, Martha Leigh, and on the 19th of the same month, Peter Leigh, surrendered the premises to the use of Littlehales, his heirs and assigns, for ever, according to the custom of the said manor; whereupon Littlehales was admitted to the premises, to hold unto him, his heirs and assigns, according to the custom of the said manor. By an Indenture of indenture of lease, bearing date the 3rd of July, 1773, July, 1773. made between the said Littlehales and Maria his wife of the one part, and Keys of the other part-reciting the said two indentures of lease of the 2nd of August, 1762, and reciting that the said parties to the said indentures of lease and to the now recited indenture had come to a a further agreement respecting the said field called Hornsey Lane Field, whereby they had agreed that Keys should have the whole of the said field leased to him, at the yearly rent 'of 101. only, and no more; but, instead of cancelling the two several leases already granted of part thereof, and therein before recited, the same leases should remain, and another lease be granted of the residue of the said field at the yearly ground rent of 101, which rent should be considered the same as the two several rents of 51. each so reserved by the said two leases as aforesaid; and that, notwithstanding such several reservations, no more than to the amount of the yearly rent of 101. in the whole should be payable for the said field and the messuages and tenements erected and built thereon it was witnessed, that, in pursuance of such last-mentioned agreement, and by virtue of the said license, and in consideration of the yearly rent and covenants thereinafter reserved, they, Littlehales and Maria his wife, did lease * to Keys, his executors, administrators, and assigns, the said close or field called Hornsey Lane Field, except such parts of the said field as had already been demised to Keys

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PEACOCK.

by the two several indentures therein before recited: to hold the said close or field (except as aforesaid), and all and singular other the premises thereby demised, with the appurtenances, unto Keys, his executors, administrators, and assigns, from Lady-Day, 1761, for the term of ninetyeight years from thence next ensuing; yielding and paying for the first two years of the said term the rent of a peppercorn; and also yielding and paying to Littlehales, his heirs and assigns, for the residue of the term the yearly rent of 101.: And Keys did thereby, for himself, his executors, administrators, and assigns, covenant with Littlehales, his heirs and assigns, to pay the rent during the term, and keep the premises in repair." The indenture contained a proviso, that, if the said yearly rent of 101. should be unpaid by the space of thirty days next after any of the days of payment, it should be lawful for Littlehales, his heirs and assigns, to re-enter. There was a covenant on the part of Littlehales, his heirs and assigns, for quiet enjoyment; and a proviso that the yearly rent of 101. thereby reserved was meant and intended to be and was the same as the two several yearly rents of 51. each so respectively réserved by the said two several indentures of lease thereinbefore recited; and that no more than the yearly rent of 101. should be paid or payable for the whole of the said field called Hornsey Lane Field.

By various surrenders and admittances, the customary estate of Littlehales and Maria his wife in the said

premises became vested in the plaintiff in this cause, who, at a court holden for the said manor on the 6th May, 1833, was admitted to the same, to hold to her, her heirs and assigns, according to ihe custom of the manor.

The question for the opinion of the court was- whether the plaintiff could maintain an action of covenant against the Keyses for breach of the covenants contained in the above stated leases of August, 1762, or either of them.

The case was argued in 1'rinity Térm last.

Question.

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Talfourd, Serjeant, for the plaintiff.- The plaintiff is in a situation to maintain an action for breaches of the covenants contained in the deeds of August, 1762. Two questions arise in this case, the affirmance of either of which will entitle the plaintiff to judgment-first, whether the plaintiff, being assignee of Littlehales, can under the circumstances sue the defendants—secondly, whether the recital in the lease of July, 1773, which declares that the two leases of the 2nd August, 1762, shall remain, and by which one entire rent is to be paid in respect of the whole premises, does not amount to a covenant on the part of the lessees in that lease to keep the covenants contained in the recited leases. 1. No doubt, the original lessee would be estopped from disputing the title of the lessor. But the question is, whether that estoppel so binds the land as to entitle the assignee to sue in respect of it: and if it does not bind the land, whether the leases of 1762 did not become good leases in interest when the lessor acquired the legal estate, so as to entitle the assignee to sue thereon. That the assignee of the lessor is estopped, is clear from the authorities : and it is equally clear that the original lessee would be bound by the estoppel. The confusion in the cases has arisen from considering this as a question of pleading. In Palmer v. Ekins, 2 Ld. Raym. 1550, Str. 817, it was held that a lessee by indenture cannot plead, even against an assignee, anything which is tantamount to pleading that the lessor had no interest in the premises when he made the lease. That case proceeded upon the ground that the estoppel bound the land. The same point was determined in Parker v. Manning, 7 T.R. 537, where it was held, that, in an action of covenant for rent on an indenture brought by the assignees of the lessor (a bankrupt), the lessee cannot plead that the lessor nil habuit in tenementis. There is in principle no distinction between that case and the present, which is the very converse of it, Estoppels are mutual. Thus, in Omelaughland v. Hood,

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