If the Plaintiff in covenant assigns as a breach, that the Defendant did not repair, a plea that the Defendant did not break his covenant is bad on special demurrer. Although the declaration concludes by averring that so the defendant hath broken his covenant. But it would be good after verdict. An assignee of a lease by indenture is estopped by the deed which estops his assignor. Therefore he cannot plead non dimisit. But if an estate be created by deed poll, ne lessa, ne grants, ne charges, ne enfeoffa, 116 dona, and co. are good pleas for a stranger to the deed.
Mansfield CJ said: ‘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.’
Mansfield CJ
[1810] EWHC CP J104, 127 ER 1084, (1810) 2 Taunt 278, [1810] EngR 119, (1810) 127 ER 1084
Bailii, Commonlii
England and Wales
Cited by:
Cited – Alan Wibberley Building Ltd v Insley CA 12-Nov-1997
Where adjoining fields are separated by a hedge and a ditch, who owns the ditch?
Held: The old presumption as to the location of a boundary based on the layout of hedges and ditches is irrelevant where the conveyance was by reference to an OS . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2021; Ref: scu.270752 br>