Court of Common Pleas

COURT OF COMMON PLEAS

		February 10, 1810

The Plaintiff declared that by indenture between himself and H. Saxelby, he had demised to Saxelby and his assigns a certain messuage, habendum for five years, and he stated a covenant by Saxelby to repair during the term. He then averred Saxelby's entry and possession, and that on the 1st January 1808, all his estate and interest, by assignment thereof legally made, came to and vested in the Defendant, and averring performance of all that was to be done by the Plaintiff, he assigned for breach, that the Defendant, as such assignee, did not nor would after the assignment, repair, but on the contrary thereof permitted the premises to be ruinous, &c.; and so the Defendant had not kept the covenant so made by Saxelby for himself and his assigns with the Plaintiff, but had broken the same.

The Defendant pleaded, first, that the Plaintiff did not demise the premises to Saxelby in manner and form, &c. Secondly, admitting the demise and assignment in the declaration mentioned, that he the Defendant did not break or neglect to keep the covenant so made by Saxelby with the Plaintiff in manner and form, &c. The Plaintiff demurred, and assigned for causes, that the Defendant had not by his first plea denied the indenture to be the deed of Saxelby, nor confessed, or in any manner avoided the same, and that it was only argumentative, and no direct answer to the matter contained in the declaration; and that no apposite or proper issue could be taken thereon; and that the second plea was only argumentative, and no direct answer to the declaration; nor was it therein alleged, whether the Defendant had or had not, since the assignment, and during the continuance of the demise, and whilst he was possessed of he premises, sufficiently repaired and kept the same; nor was it therein set forth how or in what manner the Defendant had kept and performed the covenant.

Best Serjt. in support of the demurrer, was at first stopped by the Court, who desired Shepherd Serjt. to support his pleas: as to the second plea he admitted, and the Court held, that according to Walsingham v. Coomb, 1 Leving's King's Bench and Common Pleas Reports 183, the substantial breach was assigned in the not repairing, and though the declaration concluded,

"and so the Defendant bath not kept his covenant,"

yet that the pleas

"that the Defendant hath not broken his covenant,"

although the defect would be cured by verdict, could not be supported if the objection was pointed out by a special demurrer.

Upon the first plea, Best contended that the Defendant was estopped from pleading that the Plaintiff did not demise. It was clear that Saxelby would have been estopped by his indenture to plead this plea. Com. Dig. Pleader, Croke's King's Bench Reports (James) 73, Style v. Herring. Count upon a demise by indenture, and a plea traversing that the Defendant was possessed by virtue of the lease, was held bad; and if the plea would have been bad for the lessee, it is equally bad for his assignee. In 7 Durnford & East's Term Reports, King's Bench 537, Parker v. Manning, it was held that in an action of covenant brought by the assignees of a bankrupt, nil habuit in tenementis could not be pleaded. And the principles on which Lord Kenyon C. J. and Grose J. declared their opinions in that case, are equally applicable to this. The same doctrine has prevailed in Kemp v. Goodal, 1 Salkeld's King's Bench Reports 277, Heath v. Vermeden, 3 Leving's King's Bench and Common Pleas Reports 146, and several other cases; and if nil habuit in tenementis be a bad plea because the Defendant is estopped, A fortiori he must be estopped from pleading non dimisit to an indenture. The Defendant admits on the record that the lessor executed the indenture, and the indenture states a demise : if this plea is equivalent to denying the effect of the indenture, it amounts to a demurrer, and is therefore bad; if it denies the execution by either party, it is a circuitous way of pleading non est factum, and must not be allowed. It is true that in some cases of demise, not by indenture, the plea might be good.

Shepherd contra. It is not contended that either lessee or assignee can plead nil habuit in tenementis; nor, that on a covenant executed by both parties, either can plead non dimisit; there the plea must be non est factum. But where the Defendant is not party to the deed, this is the proper plea. Br. Ab. Estraunger al fait. Pl. 4. In quare impedit, it was said by Kirton, and not denied, that a privy to a deed which is pleaded, shall say non est factum, but not a stranger: but he shall say that the Plaintiff did not grant by the deed, or did not release by the deed, or did not enfeoff by the deed, or did not charge by the deed, and the like. Pl. 6. A stranger to the deed shall not say non est factum; but he did not give by the deed, or nothing passed by the deed. Pl. 22. Trespass for cutting trees. Rolfe pleaded in bar: the Plaintiff made title by a deed to which the Defendant was a stranger : Rolfe pleaded, that nothing passed by the deed. Strange J. A stranger to the deed shall not say non est factum, nor nothing passed by the deed, because he is not privy thereto : wherefore respondeat ouster; whereon Rolfe said, that he did not enfeoff by the deed. Quod nota. 10 H. 6, 7. Bro. Ab. Estraunger. Pl. 13, & Pl. 16, acc. The cases on nil habuit in tenementistherefore, are not applicable, for the plea is not, that the deed is not the deed of the lessor, but that it is not the deed of the lessee; it therefore can only be pleaded in cases where the Defendant can deny the deed to be his own. [Chambre J. That is denied by the general issue in almost all actions of covenant: non est factum is hardly ever omitted.] It is admitted that a party is charged by the execution of his own deed, and it is admitted that an action may be sustained against the assignee in respect of the privity of estate, if the lease be not by indenture : but in covenant on indenture the Defendant is charged in respect of the specific execution of the indenture.

Best in reply. This plea puts in issue the demise stated in the deed set out in the declaration, and is therefore bad. All the cases cited where the plea has been held good, are cases of deeds poll. There is the distinction : in debt for rent by lease, not indented, the Defendant may plead nil habuit in tenementis. Lewis v. Willis, 1 Wilson's Chancery Reports 314. Besides, the authorities cited, are only that a stranger may so plead, but an assignee is not a stranger. No authority is cited to shew that an assignee may not plead non est factum. The Defendant might as well plead at once that the premises did not come to him by assignment; for if there was no deed, there was no assignor, and if there was no assignor, then there was no assignment.

The Court will now consider.

The judgment of the Court was now delivered by

MANSFIELD C. J. The question on this demurrer is, whether the plea non dimisit be good, when pleaded by an assignee, who has the estate of the lessee conveyed to him, which estate is created by indenture. There is nothing more clear than that where a lessee takes an estate by indenture, he is not at liberty to plead nil habuit in tenementis, nor in any way to dispute the title of his lessor. Now this plea puts in issue, amongst other matters, the title of the lessor. It is truly stated for the Defendant, that in cases of a grant or feoffment, a stranger may plead, "did not grant, or did not enfeof," and that plea denies not only the existence, but the efficacy of the supposed grant or feofment. It brings in issue therefore the title of the grantor, as well as the operation of the deed, and that plea would be a proper plea to bring in issue the execution, construction, and efficacy of any deed of demise. Then the question comes, whether the assignee of the lease may be allowed to controvert the title of the lessor, when the lessee, under whom he derives, could not controvert the title of the lessor; so that the assignee should have a better right than he from whom he derives it. Exclusive of all the dicta, it would be a very odd thing in the law of any country, if A. could take, by any form of conveyance, a greater or better right than he had who conveys it to him; it would be contrary to all principle. But it does not rest merely on the general principle; for if you look into all the books upon estoppel, you find it laid down, that parties and privies are estopped, and he who takes an estate under a deed, is privy in estate, and therefore never can be in a better situation than he from whom he takes it. I cannot distinguish Parker v. Manning from this case, though it is the converse. In a late case in this court (see post), Williams Serjt., by an able argument for a devisee, endeavoured to convince us that a recovery was void because there was no tenant to the proaecipe; but it was answered for the heir, that the devisor was tenant on the record, and therefore estopped from disputing the recovery, and the devisee consequently was estopped. In the case of Trevivan v. Lawrence, 1 Salkeld's King's Bench Reports 276, cited by Williams in that argument, a judgment in scire facias against the tenants, which recited the original judgment as of the wrong term, was held to be an estoppel. For these reasons the Defendant is as much estopped from pleading this plea as if he had been the original lessee, and consequently the judgment on these demurrers must be

For the Plaintiff.