JOB Fox, Administrator of THOMAS FOX, T. FRANCIS and Monday, June 1st. A declaration in covenant, against execu tors for a breach of covenant for quiet enjoyment of an estate for life, against all having lawful title from the testator, alleged that the defendants having lawful title entered. The plea traversed that the covenant of testator was broken during the continuance of the said term: -Held, that, although the plea was demurrable for making such a general traverse, yet, as the declaration was also bad, for not alleging that the defendant entered, having lawful title from the testator, it must be taken that the plaintiff had alleged a sufficient breach in his declaration, and that the averment of lawful title meant mesne title derived from the testator, and that this being so, the plea put the title in issue. To shew the lawful title of the defendants, the plaintiff proved that they had taken possession of the estate, and also proved admissions by one of them, that they held it under a deed of gift from the testator prior to the covenant declared upon:-Held, that, as the allegation that the defendants having lawful title entered was not divisible, plaintiff was bound to prove a joint title in the defendants, and that the admission by one, as to their holding under the deed of gift, was not evidence against the other:-Held, also, that, although the admission was made by one of two co-executors, it was not made by him quâ executor, and therefore did not admit a breach of covenant by the testator. Quare, whether, if the admission of the deed of gift had been made by a sole defendant, this would have dispensed with further proof of the deed. 1840. Fox v. WATERS. Thomas Waters and Elizabeth his wife, of the one part, and Robert Willis and Thomas Fox, of the other part, the said Thomas Waters did bargain, sell, assign, transfer, and set over unto the said Thomas Fox and Robert Willis, their heirs, executors, administrators and assigns, certain messuages or tenements, &c., in the indenture mentioned, to have and hold the same unto the said Robert Willis and Thomas Fox, their heirs, executors, administrators and assigns for and during all the rest, residue, and remainder then to come therein, of certain terms therein expressed, &c., for and upon the certain uses, ends, trusts, intents and purposes in the indenture declared. Averment, that Thomas Waters did, by this indenture, covenant for quiet enjoyment against himself, his heirs, executors or administrators, or any other person or persons whomsoever, lawfully claiming or to claim by, from, or under him, them, or any of them, or by or through his or their acts, means, consent, default, privity or procurement &c. Avernient of entry by Robert Willis and Thomas Fox, and of the death of Willis during the lifetime of Thomas Fox, whereby, and till the time of his death, Thomas Fox then became solely possessed of the said premises. Averment, that after the respective deaths of the said Thomas Waters, Willis, and Thomas Fox, and during the continuance of the terms and estates by the indenture granted and created, the said messuages or tenements &c. were not suffered to remain, or to be to, or for, or upon the several uses, trusts, nor subject to the several provisions or agreements in the said indenture mentioned, &c.; but, on the contrary thereof, after the making of the indenture, and after the respective deaths of Thomas Waters, Willis and Thomas For, and during the said terms &c., to wit, on the 1st April, 1825, the defendants, who, at the time of the making of the said indenture herein before mentioned, had, and continually from thence hitherto have had, and still have lawful right and title to the said messuages &c., did enter into and upon the possession of the said messuages &c., and ejected, expelled and removed the plaintiff, admi nistrator to Fox, from the possession thereof, and the defendants kept and held, and still keep and hold possession of the said premises, and every part thereof, from the plaintiff, as administrator as aforesaid &c. And so the plaintiff in fact says, that the defendants, executors as aforesaid, after the death of the said Thomas Waters, have not nor hath either of them kept the said covenants so made by the said Thomas Waters as aforesaid, but have broken the same &c. Plea: 2. That heretofore, and long before the commencement of this suit, to wit, on 1st January, 1830, the said terms and estates in the said declaration mentioned were, and each and every of them was ended and determined, and that the said covenant of the said Thomas Waters was not in any manner broken during the continuance of the said terms and estates. Verification. Replication to the 2nd plea: That the said covenant of the said Thomas Waters was broken during the continuance of the said terms and estates, to wit, at the time and in the manner in the declaration mentioned. Issue thereon. At the trial of this cause, before Coltman J., at the Somersetshire summer assizes, 1838, it appeared that the action was brought to recover damages for a breach of covenant for quiet enjoyment, contained in a settlement made by Thomas Waters, in 1796, on Elizabeth, his second wife, by which he had settled certain estates, pur autre vie, on himself for life, remainder to his wife for life, with power of appointment by will. The defendants were the executors of Thomas Waters, and his sons by a previous marriage. Thomas Waters, the settlor, died in August, 1805, and after his death his widow, Elizabeth Waters, continued in the undisputed possession of the property till her death in March, 1825, having first made her will, by which she devised the property in question to her niece and sister. Upon the death of Mrs. Waters the defendants obtained possession of the property, and the defendant, Francis Waters, continued in possession up to action brought. It appeared that in 1827, on the attorney for the plaintiff, and for the 1840. Fox v. WATERS. 1840. Fox v. WATERS. parties beneficially interested under Mrs. Waters' will, applied to Francis Waters to give up possession, when he said that the property belonged to him and his brother (the other defendant), under a deed of gift, which his father had made long before the settlement. The same witness afterwards met Francis Waters in 1831, on this business, at the residence of the attorney of the latter, when the settlement of 1796 was produced, and Francis Waters again asserted that his father had made over the property to him and his brother by a deed of gift, and he repeated the assertion on several occasions before action brought. It was contended for the defendants that, if this evidence was relied upon to shew that the defendants entered the premises with lawful title, the deed of gift should be produced, and that at all events, the declarations of one defendant, as to the contents of the deed, could not bind his co-defendant. His lordship reserved the point, and the verdict passed for the plaintiff. Crowder, in the ensuing Michaelmas term, having obtained a rule nisi for a nonsuit, Bompas Serjt. and W. H. Watson now shewed cause. It was not necessary, on the issue joined in this action, to prove that the defendants had lawful title when they entered. The plea alleges that "the covenant of Thomas Waters was not broken during the continuance of the said terms," not traversing that it was broken modo et formâ; it therefore does not put in issue the title of the defendants, which must be taken to be admitted on the pleadings. The plea is besides bad. [Patteson J. If the plea is bad (a), the declaration is also bad, for it does not allege that the defendants entered with lawful title derived from Thomas Waters, they may therefore have entered by title paramount, which would be no breach.] Supposing then that it was necessary to prove that the defendants entered with title, the finding them in possession, coupled with the declaration that they held (a) See Com. Dig. Pleader, 2, (V 5). |