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the lives were still in existence; and if so, it is equally plain that the covenant must mean what Lush, J., says it does.
*[KEATING, J. The covenant for further assurance “at (146 all times” is in the same terms as to the three lives; but how could the assignor be able to assure for the three lives after one had fallen? ]
The covenant must be taken reddendo singula singulis.
[WILLES, J. Are there any precedents in the books, in conveyances of leases for lives, of a covenant that the lives are still in existence? Is it not a matter of fact for inquiry and requisition rather than for a covenant in the deed? I have been able to find only one instance, in 2 Roll. Abr., p. 249 (), of anything like such a covenant.]
There are certainly no precedents to be found in the books. But why may not the assignee look to a covenant for security, instead of making inquiry? For that no inquiry was made is clear from the fact that the life had dropped. The judgment of Lush, J., in the court below, as well as of Lord Ellenborough, C.J., in Barton v. Fitzgerald (%), show that effect ought to be given to what the parties must have intended. The plaintiffs must be taken to have contracted to purchase a lease for three lives, and the defendant to sell that; but one of the lives, it is
(1) 2 Roll. Abr., p. 249, Parols (D), otherwise this last part will be void pl. 2: The placitum is thus translated and to no effect. Trin. T. 11 Car. B. R., in 16 Viner, p. 205, Parols (D), pl. 2: between Baskett and Scott, adjudged If a lease for years be made to A., de- upon a demurrer, in which the breach terminable upon the lives of B., C., and was assigned, because C. was dead at D., and after B. dies, and then A. as- the time of the assignment made to signs to E., and after E. by indenture him, and the word “that” was added reciting the said lease, and the death of to the other words in the declaration, B., and the assignment to him by this and the defendant demanded oyer of indenture, now assigns the term to F., the indenture, which was entered in and covenants with him that he himself hæc verba, in which the said word is lawfully possessed of all the premises, "that” was not; yet, because it was of a good and sufficient estate for the no more than the law implied, it was residue of the said term then to come, adjudged good. Intratur P. 11 Car. 1, “If the said C. and D., or either of B. R. Rot., 221. [This appears to be them, shall happen so long to live, and the case referred to as “P., 11 Car., 1, they, the said C. and D. are yet in full 221,” in Lord Nottingham's MS. notes life;" though the words are not “and of the argument in Holles v. Carr (3 that the said C. and D. are yet in full Swanst. at p. 649). See also 2 Freem life,” yet it is implied by the words, and at p. 4.] it ought to be a several covenant, or (9) 15 East, at p. 541.
admitted, had dropped. Would the plaintiffs have so contracted unless they had the security of the defendant's covenant? 147] * Manisty, Q. C. (Lord with him), for the defendant. The words throughout are mere words of description. Had the plaintiffs intended to rely on a covenant of the defendant, they would have taken care that it should be express that the three lives were in being in so many words, and would not have left it to mere implication. All the defendant assured by his deed was a valid assignment of the original estate, which remains the same, and is aptly described as a subsisting lease for the three lives and the life of the survivor as long as one of the lives exists.
J. Brown, Q. C., in reply.
KELLY, C. B. But for the opinion expressed by my Brother Lush,- and every opinion of that learned judge is entitled to the utmost respect,— I should have had no hesitation in saying that this was a case entirely free from doubt. The covenant in question is an express covenant that the lease is a good, valid, and subsisting lease in the law for the three lives named; and no doubt it was a good and subsisting lease, though one of the lives had dropped. That this is the meaning is plain to my mind, and the introduction of the lives is simply matter of description; and this is made still plainer by the words which follow : “and is not forfeited, surrendered, or became void or voidable.” It appears not to be the practice of conveyancers in assignments of leases for lives to introduce an express covenant that the lives are still in being; and no instance has been found (beyond the single case which the learning and research of my Brother Willes have brought to our notice) of a covenant of this sort. Here the plaintiffs are driven to contend that there is an implied covenant to that effect; but this is shown to be an unusual covenant, and surely, if the parties had intended such a covenant at all, they would not have left it to mere implication, but would have, in express terms, both recited and covenanted that the lives were in being. It has been suggested that, when we look at the habendum, which is for the three lives and the survivors or survivor of them, the language amounts to an undertaking that the lives were all in existence at the time of the assignment; but it merely means that the assignee
Marshall v. Ulleswater Company.
is to hold the whole estate of the assignor, that is, for all or for such of the lives as do survive. As I have said, had the parties intended *a covenant that the lives were all still in being, 148] there would have been a recital and covenant to that express effect, as in the case referred to by my Brother Willes.
WILLES and KEATING, JJ., and CHANNELL, PIGott, and CLEASBY, BB., concurred.
Attorneys for plaintiffs : Stocken & Jupp.
Nov. 27, 1871. *MARSHALL V. THE ULLESWATER STEAM NAVIGATION (166
Law Reports, 7 Queen's Bench, 166.
Trespass — Navigation of Lake, Obstruction of. The plaintiff was the owner of the soil forming the bed of a navigable lake, and also of a pier which had been thereon erected wrongfully by a third person. The defendants, in common with the public, had the right of navigating the lake, and were the lessees, from the person who erected the pier, of the land adjoining that part of the lake where the pier was erected, and therefore had a right to embark and disembark, at the land leased by them, passengers using the defendants' boats on the lake. The pier was maintained by the plaintiff, and from its position prevented the defendants from getting with their boats to the land leased by them when landing and taking on board passengers:
Held, that the defendants were justified in causing passengers to pass and repass over the pier between their boats and the land leased by them.
CASE stated by a judge's order, without pleadings.
Trespass to a pier or jetty of the plaintiff, and causing persons to go, pass, and repass over and upon the pier or jetty, and there to embark or disembark from steamboats or other boats and vessels.
1. In April, 1859, H. W. Askew, the owner of some land adjoining Ulleswater Lake, and within the manor of Glenridding, entered into the following agreement with the defendants :
Marshall v. Clleswater Company.
“I do hereby on behalf of myself, my heirs, and assigns grant to the Ulleswater Steam Navigation Company through my field a right of way parallel to the River Glenridding, connecting the public road with the Beckfoot and with the pier (which is about to be erected), for the term of twenty-three years, the company paying me for the same 10l. per annum during the years ending April, 1860 and 1861, and 201. per annum for the 167] remaining twenty-one years of *the above term; the rent to be paid at the expiration of each current year from date hereof. The above-named right of way and pier are granted on the above terms, to the company upon the distinct understanding that they are to be used by the company exclusively for purposes in connection with the steamers, such as conveying, landing, and shipping passengers and light luggage only, but to the entire exclusion of lead, ore, coal, lime, minerals, or other heavy goods; and if such are conveyed on the above-named road, the annual rent will be 1001. during the remainder of the lease from the date at which such heavy goods are so conveyed. I also undertake to construct upon the above-named right of way a good and sufficient road (to connect the public road with the pier), and also a proper and commodious pier for shipping and landing passengers and goods, to the satisfaction of the secretary to the company by the 10th of June, 1859, for the sum of 2001.–1001. of which is to be paid to me by the Ulleswater Steam Navigation Company on the 20th of May, and the remaining 1001. when the road and pier are completed.” 2. Askew afterwards made and constructed the road and pier.
By a lease, dated the 18th of July, 1859, and made for the carrying out of the agreement, Askew, for the considerations therein mentioned, granted and demised to the defendants all that parcel of ground situate in the parish of Barton, in the county of Westmoreland, adjoining the Lake Ulleswater, as then marked out and intended for a pier and road then in progress of formation by the lessor, provided always, and it was by the lease expressly agreed and declared that the pier should be used by the lessees, their officers and servants exclusively, for traffic in light goods, or for the landing and departing of passengers from and to the boat of the lessees with or without passengers' luggage, and with or without the carriages of passengers and the horses or other animals used for drawing the same, and not
Marshall v. Ulleswater Company. for any other use or purpose whatsoever. This lease is still subsisting; the road and pier therein mentioned were and are the road and pier agreed to be constructed by the agreement of April, 1859.
4. The pier or jetty was made and constructed by Askew, and paid for by the defendants, pursuant to the agreement. Part of the pier was made upon land belonging to Askew and leased to *the defendants; the remainder of it was made (168 on the bed of the lake, which was and is the soil and freehold of the plaintiff. The foundations of that portion of the pier which extends into the lake, and which is 27 ft. 6 in. long, consist of piles driven into the soil or bed of the lake. The defendants from the time of the making of the pier or jetty in the year 1859, up to the present time, have used, and still use it, for the purposes mentioned in the agreement and lease of 1859.
5. In June, 1860, the plaintiff commenced an action against the defendants for breaking and entering land of the plaintiff covered with water, being a part of Ulleswater Lake, and with steamboats of the defendants coming into, and upon, and sailing upon, and over the land covered with water, to and from a certain pier or jetty of and belonging to the plaintiff, and wrongfully causing persons to go upon the pier or jetty, and there to embark on, or disembark from the steamboats, and wrongfully causing the said persons to sail in the steamboats upon and over the land covered with water. The defendants pleaded in that action a plea of “not guilty;" and also a plea that the land, &c., was not the land of the plaintiff; and, thirdly, as to the whole declaration except so far as it related to the acts complained of in respect of and as to and concerning the pier or jetty, the defendants pleaded that there was a common and public highway for all the liege subjects of Our Lady the Queen to sail, navigate, pass, and repass upon the waters of that part of the lake in the declaration mentioned, with boats, vessels, and steamboats, at all times of the year, at their free will and pleasure, and that the acts complained of, and therein pleaded to, were an use by the defendants of the highway. The defendants, by a 4th plea, traversed that the pier or jetty was the plaintiff's. The plaintiff joined issue upon all the pleas, and also new assigned as to the 3d plea, as to which new assignment