trust, &c. in law and equity, subject to the reserved rent, and to the performance of covenants on the part of W. to be performed: and the purchaser also covenanted with W. to pay the said rent, and to indemnify and save him harmless: held, that the purchaser took the estate by the appointment of, and not by conveyance from W.: the instruments (a lease and release) though more commonly and properly adapted to pass an interest, and containing words of grant for that purpose, yet professing in terms to be an appointment; and the trustee having joined in it by the direction of W., which was unnecessary if it had been intended that the purchaser should take an estate derived only out of the interest of W.; and it being obviously for the benefit of the purchaser to take by appointment, and such appearing upon the whole to have been the intention of the parties and held in consequence, that the defendant (the heir, devisee, and executor of the purchaser) was not liable in covenant for rent in arrear, either as executor or assignee of the land, which was not bound in the hands of W.'s appointee by W.'s covenant.

THESE were actions of covenant by the plaintiffs, the one against the defendant as executor of John Wadham deceased, for certain arrears of a rent charge alleged to be due from the testator in his lifetime in respect of a certain messuage and other hereditaments called the "Blackmoor's Head"; and the other against the defendant as assignee for other arrears of the said rent charge, alleged to have become due from him since the assignment to him. The first count of the declaration against the defendant as executor, after stating an indenture of the 24th of June, 1791, hereafter set forth, conveying the said messuage and hereditaments subject to the said rent charge, averred that all the estate, right, title, interest, property, profit, claim, and demand whatsoever of Wm. Watts, of and in one undivided moiety of the said hereditaments, by appointment and conveyance thereof, legally came to and vested in John Wadham deceased, whereby he was seised thereof, and continued so seised until his decease: and then charged that 107. 10s. was due in his lifetime, viz. on the 21st December, 1796, for a moiety of the rent charge for three quarters of a year, contrary to the covenant of William Watts. There was a similar count as to an undivided third part, for which rent was due from Wadham to the plaintiffs, &c. The defendant pleaded to the first count, 1. Non est factum, and that all the estate, right, title, and interest of W. Watts in one undivided moiety, &c. did not by appointment and conveyance vest in J. Wadham, deceased, in manner in that count mentioned. And pleaded in like manner to the second count as to one undivided third part; on which issues were joined. And there were similar counts and pleas in the other action against the defendant as assignee of the premises. These causes were afterwards, by an order of Nisi Prius, referred to Mr. Puller to decide

ROACH

v.

WADHAM.

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ROACH

ተ.

WADHAM.

[ *291 ]

between the parties as if they had been tried at law and he afterwards made his award; wherein, after stating the deed of the 24th of June, 1791, and also deeds of lease and release of the 25th and 26th of September, 1792, after mentioned, and that Wadham the testator accepted the last-mentioned conveyance, and that the moieties of the rent charges mentioned in the said declarations were due and unpaid, awarded that the defendant was not liable in the one action of covenant against him as executor of John Wadham, deceased; nor in the other action, as assignee of the said J. Wadham, (of whom he was heir and devisee); J. Wadham the deceased, as appointee under the deed of 26th of September, 1792, of the estate of W. Watts in the premises described in the indenture of the 24th of June, 1791, not being liable in law upon the covenant made by W. Watts with the plaintiffs. A rule nisi having been obtained for setting aside the award as contrary to law, the Court, when cause was to be shown, directed the facts. to be stated in the form of a case, and that extracts from the deeds, so far as they were material to the question, should be set forth; which were as follows.

By indentures of lease and release, dated the 23rd and 24th of June, 1791, the release being made between John Russ of the first part, the plaintiffs of the second part, Rachael the wife of John Punter of the third part, William Watts of the fourth part, and Thomas Coates of the fifth part; Russ being seised in fee of one undivided third part of the said messuage and hereditaments, and the plaintiffs being seised in fee of the other two undivided third parts, according to their several and respective shares and interests therein, did grant, release, and convey the said messuage, &c. unto Thomas Coates, his heirs and assigns for ever, "habendum the same unto the said Thomas Coates, his heirs and assigns, to the use of such person and persons, for such estate and estates, by such parts, shares, and proportions, and in such manner and form as the said W. Watts by any deed or deeds, writing or writings under his hand and seal, to be by him duly made and executed in the presence of and attested by two or more credible witnesses, or by his last will, &c. shall limit, direct, or appoint, give, or devise the same; and for want of such limitation, and as soon as such limitation, &c. shall cease and determine; and as to such part and parts thereof whereof no such limitation, direction, or appointment shall be made, to the only proper use and behoof of the said William Watts, his heirs and assigns for evermore, absolutely discharged from the several uses,

trusts, limitations, provisoes, and agreements, in the said indenture of settlement contained; to be holden of the chief lords of *the fee of the said premises, &c. by the rents and services therefore due and of right accustomed." Reddendum as follows: "Yielding and paying, and the said W. Watts, and by his direction the said T. Coates, do, and each of them doth grant out of the said messuage and hereditaments hereby granted and released unto the plaintiffs, their heirs and assigns for ever, the yearly fee farm rent or rent charge of 281. &c. (payable quarterly) on certain days." And W. Watts for himself, his heirs and assigns, did thereby covenant and grant to and with the plaintiffs, their heirs and assigns (amongst other things), that he, Watts, his heirs and assigns would pay, or cause to be paid to the plaintiffs, their heirs and assigns, the said yearly rent of 281. on the days and times, and in manner and form aforesaid. By this deed a rent charge of 141. was in like manner reserved to Russ. The deed also contained a clause of distress, and proviso for re-entry in case of non-payment of the said rent charge of 281. By indentures of lease and release, dated the 25th and 26th of September, 1792, the release being made between the said W. Watts of the first part, James Shoopholme (a trustee for Watts as to other hereditaments comprised in the deed now stating) of the second part, the aforesaid T. Coates of the third part, the defendant's testator J. Wadham (but who did not execute the deeds), and one T. Stevens of the fourth part, J. Powell (a trustee to bar dower named by J. Wadham the testator, and the said Stevens) of the fifth part, T. Jones (a mortgagee for a term of 1,000 years created by said Watts in the hereditaments conveyed to him by the indenture before stated) of the sixth part, and R. Bolger (a trustee named on behalf of said Wadham the testator, and the said Stevens as to the remainder of the said mortgage term intended to be thereby assigned to attend the inheritance) of the seventh part. After reciting the indentures of lease and release before stated, and the mortgage of the said hereditaments granted by the said Watts to the said Jones for 1,000 years, for securing 500l. and interest, by indenture dated the 12th of April then last; also reciting a contract dated the 18th of May then last, whereby the said Watts covenanted with the said Wadham the testator, and the said Stevens, on or before. the 18th of June then next to convey to them, their heirs and assigns, as tenants in common (inter alia), the aforesaid messuage and hereditaments; and whereby in consideration thereof the said Wadham and Stevens covenanted each for himself, his heirs,

ROACH

v.

WADHAM.

[ *292 ]

[ *293 ]

ROACH

r.

WADHAM.

[ *294 ]

executors, &c. with the said Watts to pay to him on the execution. of such conveyance 1,000l., viz. one moiety thereof by Wadham, his heirs, executors, &c. and the other moiety by Stevens, his heirs, executors, &c.; and also out of the first ground rents to be reserved out of all the said ground from any other grant to be made over and above (inter alia) the yearly sum of 421. payable out of the ground granted by Russ and Punter, to convey to Watts, his heirs and assigns, ground rents of a certain amount: reciting also that by lease and release, bearing date with the deed now stating, the whole of the said contract of the 18th of May had been carried into execution, except the conveyance of the hereditaments hereinafter conveyed: reciting also that there was then due to the said Jones on his said security 500l., which it had been agreed should be paid out of the said 1,000l. mentioned in the said contract: it is witnessed, that in full performance of the said contract of the 18th of May, and in consideration of 500l. paid to the said Watts by the said Wadham (being the same sum as in the said indenture of equal date is mentioned to be paid by Lockier to Watts), *and in consideration of 500l. to the said Jones paid by Stevens by direction of Watts, the said Coates, by direction of W. Watts, did according to his estate and interest bargain, sell, and release, and the said W. Watts did grant, bargain, sell, alien, release, ratify, and confirm, and also limit, direct, and appoint unto the said Wadham the testator, Stevens and Powell, and to their heirs and assigns for ever, the said messuage and hereditaments comprised in the indentures first before stated, and all the estate, right, title, interest, use, trust, possession, freehold, inheritance, property, benefit, and equity of redemption, challenge, claim, and demand whatsoever both at law and in equity, and otherwise howsoever of the said W. Watts and T. Coates respectively, and of each and every of them, of, in, to, and out of the said hereditaments and premises, &c., to hold the same unto the said Wadham, the testator, and the said Stevens and Powell, their heirs and assigns, to the use of the said Wadham, Stevens, and Powell, and the heirs and assigns of the said Wadham and Stevens for ever, as tenants in common; in trust, as to the estate of Powell, for Wadham and Stevens, their heirs and assigns, as tenants in common; subject nevertheless as to the said messuage and hereditaments called the "Blackmoor's Head," to the payment of the said yearly fee farm rent of 421. reserved by the said indentures of lease and release of the 23rd and 24th of June, 1791, and to the powers and remedies therein contained for enforcing the payment thereof

when in arrear, and to the performance of the covenants in the said indenture of release contained, which thenceforth on the part and behalf of the said W. Watts, his heirs and assigns, ought to be paid, observed, and performed. And in the said indenture is contained the following covenant: and the said John Wadham and T. Stevens for themselves *severally, and for their several and respective heirs, executors, &c. did covenant and agree with the said W. Watts, his heirs and assigns, “in equal shares and proportions well and truly to pay the said fee farm rent of 421. so reserved, &c. by the indentures of 1791, i.e. one moiety thereof by the said John Wadham, his heirs and assigns, and the other moiety thereof by the said T. Stevens, his heirs and assigns; and also to fulfil and keep all and every the covenants, clauses, provisoes, and agreements contained in the said indenture of release of 1791 on the part of the said W. Watts, his heirs or assigns, to be performed, &c.; and from the payment of the said yearly fee farm rent of 421., and the performance of the said covenants, &c. and all actions, &c. charges, damages, and expenses on account of the same rent, covenants, &c. and agreements, or otherwise relating thereto, to keep harmless, &c. and indemnify, &c. the said W. Watts, his heirs, executors, and administrators," &c. Wadham, the testator, died, not having parted with, sold, or in anywise aliened the above-mentioned premises, and left the defendant sole devisee in fee of all his real estates, messuages, lands, and hereditaments in possession, reversion, remainder, or expectancy, and of all his copyhold and personal estate and property, and appointed him sole executor thereof. The defendant proved the said will. The premises in question are not particularly mentioned in the will. After the death of Wadham the testator, one moiety of the said fee farm rent of 281. for three years, amounting to 421., became due, and still is unpaid to the plaintiffs. The question for the opinion of the Court was, whether the defendant, as executor or devisee of the testator J. Wadham, were liable in law to an action of covenant upon *the said covenant made by Watts under the conveyance before stated? If the Court should be of opinion that he was, the rule for setting aside the award was to be made absolute: if not, it was to be discharged.

Dampier for the plaintiffs, after stating the question to be, whether the indentures of lease and release of the 25th and 26th of September, 1792, were to be taken only as an execution of the

ROACH

v.

WADHAM.

[ *295 }

[ *296 ]