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![handle is hein.slavery/ssactsengr0315 and id is 1 raw text is: SIBTHORP V. BRUNEL
it does not, it is contended, that though the allegation of the tenancy was not proved
as alleged, enough was proved to entitle the plaintiffs to recover as reversioners, and
that the whole or part of the allegation as to the tenancy might be struck out, and that
the remainder being proved was sufficient to maintain the action. We think the plaintiffs
cannot recover on this ground. It is clear the whole of the allegation as to the tenancy
cannot be struck out, for then the defendant would not appear on the face of the declara-
tion to b'e a person who, according to the terms of the statute, was bound to pay double
value, for the statute only applies to tenants, and those claiming under or in collusion with
the tenants. But it is said only the words to the said plaintiffs in the allegation
of tenancy, might be rejected, and the allegation would be simply as tenant for years,
the reversion, that is, the immediate reversion, during all that time belonging to the
plaintiffs. Admitting these words only could be struck out, still it would be necessary
to prove the immediate reversion was in the plaintiffs, that is, in the husband and wife
during the term. This fact was disproved : the husband, having himself an interest
in his wife's real estate during their joint lives, was capable of creating a term out of
that interest, and did so, and during that term the reversion of it, that is, the right
to the possession at the end, or sooner determination of the term, was in the husband
only. He was the person to whom, by the contract contained in the lease with the
plaintiffs, the tenant for the term was bound to deliver up the land on its determina-
tion. He alone could distrain, the right of distress being incident to the reversion,
as was held by Lord Chief Justice Mansfield, in the case cited in the argument, Parry
v. Hindle. We therefore think the award right in this respect.
Rule discharged.
[826] SIBTHORP v. BRUNEL. April 24, 1849.-A deed executed by the plaintiff
and defendant, after reciting that a Company had been formed for the purpose
of constructing a railway which would pass through the plaintiff's estate, and that
an application to Parliament for an Act of incorporation was then pending, con-
tained a covenant by the defendant, that within six months from the time of the
passing the proposed bill, and before the Company should enter upon, take, or
use the estate, except for the purpose of setting out and ascertaining the land
required, the defendant should pay to the plaintiff the sum of 40001. for the
purchase of the estate as thereinafter described. There was also a covenant,
that, on payment by the defendant of the said sum of 40001. and interest, after
the expiration of six months after the passing of the said bill to the day of pay-
ment of the said sum, the plaintiff should convey to the defendant so much of
the estate as should be required for the construction of the railway :-Held, in
an action on the covenant, for the non-payment of the purchase-money after six
months from the passing of the bill, that the covenant to pay the purchase-money,
and that to convey the property, were independent covenants.
Covenant on an indenture of the 22nd of April, 1847, executed by the plaintiff
and defendant respectively (profert). The deed, after reciting that a Company had
been formed for the purpose of constructing a railway from Cheltenham to Oxford,
and that the Company was then applying to Parliament for an Act of incorporation,
and that the plaintiff was then the owner of an estate in the county of Oxford, which
would be intersected by the said railway, and injuriously affected thereby, and that the
plaintiff had petitioned Parliamentagainst the said bill, &c., and that he had been requested
by the defendant to desist from such opposition ; it was thereby covenanted by the
defendant, that within six months from the passing of the proposed bill into a law,
and before the said Company shall enter upon, take, or use any part of the said estate,
&c., except for the purpose of setting out and ascertaining the land required to be
taken, the said I. K. B. (the defendant) shall and will pay to the said C. D. S. (the
plaintiff) the sum of 40001. sterling for the purchase of such part of the said estate as
hereinafter described. Then followed covenants by which the Company were to
erect proper stations, &c. on the estate, and bridges, &c., and other matters with
respect to the costs of the opposition to the bill, &e. Then followed this covenant by
the plaintiff with the defendant, to withdraw from the said opposition: and that,
on payment by the said defendant to the plaintiff of the said sum of 40001. and interest
after the rate of 51. per cent. per annum after the expiration of six months after the
passing of the said bill into a law to the day of payment of the said sum of 40001., he
1079
3 EX. 826.](ViewImageLocal?handle=hein.slavery/ssactsengr0315&div=1&collection=&method=preview&ext=.png&size=3)