1844.-Nouaille v. Flight.

In 1840, the plaintiffs put up the property for sale by auction, and by the sixth condition of sale it was provided, that the receipt for the ground rent due on the last day of payment for the same, as reserved by the original lease, should be considered as a waiver of any forfeiture of such lease. The defendant Flight became the purchaser at the sale.

This bill having been filed for the specific performance of the contract, the usual reference as to title was made to the master.

The master, by his report, found, that all thirty-four addi tional houses mentioned in the lease had not been built pursuant to the covenant. That the defendant had insisted, that the covenant to deliver up thirty-four additional houses, to be built according to the covenant, was an objection to the title; but that the sixth condition of sale having provided, that the receipt for the ground rent, due on the last day of payment for the same as reserved by the original lease, should be considered as a waiver of any forfeiture of such lease, and having regard to the length of time which has elapsed since the date of the lease, without any advantage having been taken on account of the

breach of such covenant, and of the plaintiffs being as[*524] signees, under a title acquired subsequent to the expiration of the period limited by the covenant for building the additional houses, the master stated his opinion to be, that the objection was not a valid objection to the title, and he found in favor of the title.

To this report the defendant took exceptions which now came on to be heard.

Mr. Turner and Mr. Rogers, in support of the exceptions. These covenants run with the land, and are binding upon the assignees of the term, Sampson v. Easterby ;(a) and although the covenant to build within the five years may have been waived by the subsequent receipt of rent, still the covenants to keep the whole fifty houses in repair, and to deliver them up at the end of the term, are still subsisting. The covenants are in their nature continuous and cannot, by the receipt of rent, be

(a) 9 B. &. C. 505.

1844.-Nouaille v. Flight.

permanently waived. The lessor still remains entitled to all his remedies against the lessee and the assignees of the term under the covenants.

The title is therefore bad. The purchaser is not bound to accept an indemnity, and as to compensation the amount cannot be ascertained; for, until the expiration of the lease, the extent of the lessee's liability cannot be ascertained.

Mr. Kindersley and Mr. Heathfield, contra.-The covenant to build the thirty-four additional houses ought to have been performed previous to Lady-day, 1797, and since that time, the landlord has continued in the receipt of the rent, and has thereby waived the covenant. This covenant was not continuous, and the principal *part of the obligation being [*525] waived, the accessary, namely, to keep these houses in repair, is waived also. It would be absurd to hold that the lessee is absolved from the obligation to build the twenty houses, and yet liable to keep those non-existing houses in repair, and deliver them over at the end of the term. The covenant to repair and deliver over at the end of the term, therefore, applies only to the houses already built.

Secondly, if there be any liability, the purchaser may, immediately before the expiration of the term, assign it to a pauper and thus relieve himself therefrom. Rowley v. Adams.(a) Again the plaintiffs having entered into no covenant to indemnify will require none from the purchaser.

Thirdly, no forfeiture or liability can accrue till the end of the lease, when the purchaser will have had the enjoyment of the property for the whole term, with the exception of the last day, which he may assign and thus get rid of all liability on the covenant. Earl of Derby v. Taylor.(b)

July 31.-THE MASTER OF THE ROLLS:-The covenant in question consists of three parts, 1st. That the lessee will build thirty-four additional houses within five years; 2dly, that he will keep the premises in repair; and 3dly, that at the end of the term,

(a) 4 Mylue & Craig, 534.

(b) 1 East, 503.

1844.-Nouaille v. Flight.

he will deliver up the houses then built or thereafter to be built, in good and sufficient repair. The covenant to build thirty-four additional houses in five years was broken; the lessor might have re-entered for the breach, but did not, and continued to [*526] receive rent from the *lessee. The master has not stated his opinion, whether the covenant to deliver up the houses covenanted to be built is or is not in force; but has merely stated his opinion, that because the lessor did not take advantage of the breach of covenant to build in five years, and the plaintiffs are assignees, and acquired their title subsequently, the covenant to deliver up, at the end of the term, the houses stipulated to be built, was not an objection to the title.[1]

It was argued at the bar first, that the covenant only affects the houses actually built at the time of the demise, and not the houses then only covenanted to be built, and that the only obligation is, to deliver up in repair the houses which shall actually be then built; secondly, that if the covenant be of any validity, the purchaser may relieve himself from it by assigning the lease to a pauper; and thirdly, that supposing the covenant to be in force, nothing is to be done upon it till the end of the term, after the purchaser shall have held the land during the whole term, and had the full enjoyment of it; and, therefore, that the covenant cannot be an objection to the title.

Having carefully read the deed, I am of opinion, notwithstanding some ambiguities of expression, that, the covenant extends to the thirty-four additional houses which were to be built, as well as to the sixteen houses which were built at the date of the demise; and that it cannot be confined to such houses only as shall actually be found upon the land at the end of the term.

As to the second point, if it requires any argument, it may be found in this, that the purchaser ought not to be forced to adopt any such expedient, and that he has a right to the en[*527] joyment of the land during the whole *term, and to be ex

[1] "This court never on light grounds interposes against the legal effect of a covenant on the ground of acquiescence; there must be fraud, such as acquiescing for a benefit to arise from taking advantage of the breach, or giving reason to suppose that there would not be any interference." Sugden, Ld. Ch. Gerrard v. O'Reilly, 2 Conn. & Law. 174.

empt from any obligation or inducement, imposed upon him by the state of the title or property, to assign the smallest part of the term, for the purpose of relieving himself from any responsibility.

Upon the third point, the question is, whether a liability of this sort can be the subject of compensation. An indemnity the purchaser would not be bound to take, if in such a case it could be given, and I am of opinion, that such a liability as this is not a fit subject for either compensation or indemnity. It is, I conceive, impossible to ascertain, with any reasonable accuracy, the amount or value of any such liability, and it cannot be said, that a purchaser of a leasehold estate enjoys the property which he has purchased, in any reasonable sense of the word "enjoyment," although he may have had the possession of it during the whole term, such possession being constantly attended by a liability to be enforced at the end of the term, and not admitting either of indemnity or of compensation.[2] I am therefore of opinion, that a title subject to such a liability is not a good title.[3]

Having formed this opinion, I must allow the first, fifth, and sixth exceptions. The second exception appears to have been filed in mistake, and I apprehend that the third and fourth, after the decision upon the fifth, have become immaterial, I will observe upon the third, that I am doubtful whether there was sufficient proof of the counterpart underlease being lost, and that if it were now material, I should refer it back to the master.

[2] As to compensation, see Scott v. Hanson, 1 Russ. & M. 131; Hepburn v. Auld, 5 Cranch, 262; Winne v. Reynolds, 6 Paige, 407, 412; Besant v. Richards, Taml. 509; Wiswall v. McGowan, 1 Hoff. Ch. Rep. 126; 2 Kent's Commi. 475, 476; 2 Story's Eq. § 777, 778; Thomas v. Dering, 1 Keen, 729.

[3] As to the general rule that a purchaser is not bound to accept a defective or doubtful title, see Bryant v. Busk, 4 Russ. 1; Sharp v. Adcock, id. 374; Brown v. Huff, 5 Paige, 235; Winne v. Reynolds, 6 Paige, 407; Spring v. Sandford, 7 Paige, 555; Ten Broeck v. Livingston, 1 Johns. Ch. Rep. 357; Sebring v. Mersereau, 9 Cow. 344; Chamberlain v. Lee, 10 Sim. 444, 450; Piers v. Piers, Sausse & Sc. 379, 414; Coster v. Clarke, 3 Edw. Ch. Rep. 428; 2 Kent's Comm. 475, 476; Peers v. Lambert, post, 546.

The 17th order of August, 1841, was intended to apply to cases in which there are several defendants answering separately.

The only two defendants required to answer, joined in one answer. It was found insufficient, and the plaintiff obtained an order to amend, and that the defendants might answer the exceptions and amendments together. Some of the original interrogatories were altered, and new ones added; but the note to the amended bill required the defendants to answer all the interrogatories, without excepting those previously answered. Held, that there was no irregularity.

A plaintiff, unless he specifically offers to do so by the bill, or is required to do so by a cross-bill, is not bound to produce, previous to the defendant being compelled to put in his answer, documents admitted to be in his (the plaintiff's) possession and alleged as proving his case.

THIS bill was filed for the settlement of disputed partnership matters, against three defendants, Thomas Bate, William Robins, and Frances Bate. The interrogatories were properly numbered from one to twenty-two, according to the exigency of the 17th order of August, 1841.(a) By the note at the foot, the defendants Thomas Bate and William Robins "were respectively required to answer all the above interrogatories." No subpœna was asked against nor answer required from Frances Bate, but it was prayed, that she being served with a copy bill, might be bound by all the proceedings. The two defendants Thomas Bate and William Robins put in a joint answer, which having, upon exceptions taken thereto, been found insufficient, the plaintiff obtained an order to amend, and that the defendants might answer the exceptions and amendments together. The plaintiff accordingly amended the bill to such an extent as to require a new engrossment, and he paid to the defendants 20s. for the costs of such amendment. Several of the old interrogatories had been slightly altered, and some entirely new ones introduced, thereby increasing the number of interrogatories from twentytwo to thirty-seven. The division of the old interrogatories was left without any variation in the amended bill, but their

(a) Ord. Can. 169.