burrow lant esquire versus norris Wednesday that may see Henry Bl covenant to  leave demise premise with all new erection well repair extend to the new  erection only p g Rotlo the court full dictum approve Moneypenny v Moneypenny  de g I h l c this be a action of covenant by Robert Lant Esq son and heir of  Thomas Lant Esq against William Norris administrator of John Norris Esq his  late father which John Norris be assignee of Thomas Wilson and it be upon a  indenture of lease make on d January by the say Thomas Lant decease who be  seize of certain message ground and premise mention in the indenture of the  one part and the say Thomas Wilson on the other part whereby in consideration  of to be lie out in upon or about rebuilding upon the ground and premise  thereby demise and other covenant the say Thomas Lant do demise to the say  Thomas Wilson all that piece of ground and all the message tenement house c  thereon stand in Suffolk place in the parish of saint George the martyr c butt  and bind c from Christmas for fortythree year at per annum rend a he may have  be a party notwithstanding his infancy for though he do not execute that will  be no objection as it be not necessary that a grantee shall execute it be a  settle rule that none can take a estate of freehold in possession by a  conveyance at commonlaw if he be not a party to the deed hob though he may  take by limitation over of a use and by way of remainder a person not party to  a deed may take even though the conveyance be a conveyance at commonlaw burrow  er p Thomas Wilson the lessee covenant to lie out the say sum of within  fifteen year in erect and rebuilding of message or tenement or some other  building upon the ground and premise and from time to time and at all time all  a id singular the say message or tenement so to be erect with all such other  house edifice c as shall at any time or time thereafter be erect c to repair c  and the say demise premise with all such other house c so well repair c at the  end or other soon determination of the say term to deliver up c Wilson the  lessee enter though Lant die that may seize and the reversion descend to John  Lant his son and heir on that march Wilson assign the term to John Norris who  enter on the that march John Lant die seize and the reversion descend to the  plaintiff brother and heir the breach assign be first that after the term come  to I Norris and after the plaintiff become seize burrow of the reversion and  while the say I n be possess videlicet on first may the say I n in his  lifetime permit all the say demise message to be uncover c by reason whereof  the wall of the same demise premise be out of repair and go on to other damage  still call they all along the say demise premise dly that the say I n do  permit six message parcel of the say demise premise to be prostrate and to  remain so till his death dly that the say I n on first march do pull down six  other message then erect and build on the say demise premise plea as to the  first breach that the say t Wilson or his executor do not within fifteen year  or at any other time lie out or any part thereof in erect or rebuilding of any  message and that the say message have never be rebuild as to the d breach the  same plea as to the d breach non to break off assembly to all the breach the  same plea as above to the first and d over again that t W never lie out and  that the message never be rebuild and that I n after he become assignee and  after the plaintiff become seize of the reversion first march die intestate so  possess and administration be grant to the defendant by virtue of which he  enter and be so possess before exhibit the plaintiff bill videlicet that June  assign the demise premise to one John townsend for the residue of the term who  enter and be possess the plaintiff demurrer general to the first plea to the  first breach and also to the first plea to the d breach especial a to the  first plea to the d breach general to the d plea to the d breach and general  to the last plea to all the breach there be also a plea of non to strew before  and a demurrer to it the defendant join in demurrer to all the demurrer Mr win  for the plaintiff urge that the plead be no answer and that they neither  confess and avoid t he charge in the declaration nor deny it Mr gold contrafor  the defendant give up the plead but he object to the declaration videlicet  that the intention of the party be to confine the repair to the building  thereafter to be erect as it appear that there be no building of any  consideration upon the land at the time of the lease nor be there any averment  in the declaration that the lessee Wilson ever do erect any such which  averment ought to have be make in order to have maintain this action for  burrow without such erection the defendant can not be oblige to repair and a  plaintiff must show every thing in his declaration that be necessary to  maintain his action the word the say demise premise must relate to those in  the beginning of the covenant and therefore only mean and intend that he shall  leave they videlicet the new erect and rebuild edifice in repair at the end of  the lease a this plea be bad if as I suppose the cause assign for the demurrer  be that this plea be too general though it will have be good if issue have be  join upon it and there have be a verdict for the plaintiff lev Siderf pale  yellow hist of c p Edward p and it seem by the stat and Ann c S it will have  be good on a general demurrer however the other plea non to strew before be a  good plea and be admit by the demurrer and therefore that must have be the  reason Mr win in the next page give up the d breach because issue be offer on  it burrow er p the covenant be future and the lessor can not have any action  upon it till the end of the term it appear by Rep a sir anthones mai S case  that if a man let we a manor for year and the lessee covenant to keep the  house of the manor and whatsoever be within the manor in as good a state as he  find they during the term and the lessee make waste in the house and in cut  oak the lessor may bring a action of covenant before the end of the term for  the oak for for they it be impossible that the covenant can be perform but it  be otherwise of the house and with this agree Fitzherbert nat short catalog vo  edition letter I the same law though if he fall timber c if he do waste in  wood he may have a action of covenant during the term for that say the book  can be repair he likewise cite salk the case of Grescot v green where the  lessee covenant for he and his assign to rebuild and finish a house within  such a time and after the time expire the lessee assign over the premise the  house not be then build and finish accord to the covenant and per holt Ch just  this covenant shall not bind the assignee because it be break before the  assignment aliter if break after the assignment as if the lessee have assign  before the time have be expire which case be cite to prove I that the action  do not lie in the present case because the assignment be make after the  fifteen year be expire Mr win the record be now to be consider as upon a  general demurrer to the whole declaration and shall rely on the first and d  breach and not on the d which have I own receive a proper answer by issue be  offer covenant be to be construe for the benefit of the covenantee not of the  covenanter burrow these be building demise and be agree to be lie out in  repair of they or in erect new one then there be a covenant to repair the  building to be erect on the demise premise and the say demise premise and  other so to be erect so be well and sufficient repair c to leave c this  intimate that the demise building as well as the new erection be to be keep in  repair here be sufficient from whence to collect the intention and meaning of  the party to be so which will amount to a covenant and upon this general  demurrer the court will not intend that the be lie out only on the other  building new to be erect Lord MansfieldI choose to look into it and consider  it a little No particular technical word be requisite towards make a covenant  Mr just denison the question only be whether the word demise premise be omit  by mistake in the former part of the covenant or superadd by mistake in the  latter for there appear to be a mistake in either one or the other in the deed  itself the lease be a buildinglease now the premise then stand be to be pull  down therefore it can scarce be intend to covenant to repair they the covenant  to repair be confine to the tenement to be erect the covenant to leave in  repair extend to the demise premise together with all such other as shall be  thereafter erect Mr just FosterIt be a building and repair lease in order to  look into the lease it stand over with a curian advisare vult and now have  consider it till the next day only Lord Mansfield say we be extreme clear that  not only the word of the covenant but also the intent of the party manifest  show that it be not mean that any of the money shall be lie out on the old  building but that they be to be pull down and that whatever he shall erect  with the or otherwise for his own convenience shall be keep in repair the word  demise premise be put in opposition a to the building that weretobe  erectedthereupon with the burrow and the covenant to deliver up be agreeable  to this construction that covenant be to leave the demise premise together  with all such other house c as shall be afterward erect c so well repair a  lege reference instead of oppositionand see lev skin burrow er p it be  therefore clear against the plaintiff upon the first and d breach and Mr win  acknowledge it to be against he on the three therefore the court give  judgement for the defendant