CHAP.

SEC.

I.

VII. then a previous recovery s necessary, and the tenant to the præcipe may be made by the husband alone, by lease and release, or bargain and sale enrolled, the freehold being in him by right of marriage. The fee simple of an estate is sometimes vested in several married women, as tenants in common; in such a case, to provide against the contingency of one of them dying and leaving an infant heir, by which the possibility of effecting a sale of the property, or a partition, might be postponed for upwards of twenty years, they should join with their husbands in conveying to trustees, in trust to sell with their consent and, that of their executors in case of any of them dying, and a fine should be levied to the trustees, for then a sale could be effected, whenever it might be deemed advantageous.

Covenants for

title.

Vendor's covenant that he is seised, &c.

When the vendor is the first purchaser, the usual covenants for title are:

1. That notwithstanding any act &c. by him, the said [vendor] and those under whom he claims, he is lawfully seised.

2. That he hath good right to convey.

3. AND THAT free from incumbrances, or otherwise, &c.

4. And that he will make further assurance.

Where the vendor has only a power of appointment, the first covenant is, that the power was well created, and is subsisting, and the other covenants are the same as those by a vendor seised in fee. Trustees, assignees &c. never enter into covenants for title, but only covenant that they have done no act to encumber. The purchaser is not entitled to covenants for title on conveyances by the crown, nor on conveyances under the trusts of a will, or on the order of the Court of Equity, for the payment

of debts,-nor, in general, are there covenants for title in conveyances under private acts of parliament.

CHAP. VII.

SEC. I.

covenant.

These covenants must be confined to his own act, if Against whose acts the purthe vendor have purchased the estate himself, or to his chaser shall own acts and those of the persons under whom he claims, if the premises have come to him by devise, descent or settlement; for it has been long clearly established, that a vendor is not obliged to enter into covenants against all the world, and for this plain reason, that the covenants of former owners run with the land, and may be taken advantage of by a purchaser, in the event of a claim being made by or through any of them.

Where an estate is conveyed by several persons, who take their shares from different ancestors or owners, each grantor should covenant for his own acts, and the acts of the ancestor or owner under whom he takes his interest, which may be done in the following form :-" And the " said A. B, C. D, E. F, [the vendors,] severally and apart, each for himself, his heirs, executors and ad"ministrators, and not jointly, or the one for the others

or the other of them, nor for the heirs, executors and "administrators, or acts of the others, or other of them, "but each of them for his own acts only, and the "said A. B, for the acts of the said [his father], "and the said C. D, for the acts of the said [his .6 brother], and the said E. F, for the acts of the said [settlor under whom he claimed], &c." By this mode, the covenants of each person are confined, in ordinary cases, to the title of the part he conveys, because the acts of his ancestor can concern nothing more.

title where

It is sometimes the practice, where several persons Covenants for join in a sale, for them to covenant for the title, "to the several persons "amount of, and according to, the sums respectively re- join in a sale.

CHAP. VII.

SEC. I.

Effect of the words " promise and agree."

Order in which

ancestors should be named.

With whom

covenants shall be entered

into.

Covenant for quiet enjoy

ment, and that free from incumbrance.

"ceived by them," or, in other words, as far as they severally have an interest.

In covenants, the words "promise and agree" refer to something future, and, consequently, are improper in covenants by trustees, assignees &c., that they have done no act to encumber, the proper words are CO"venant and declare."

66

In covenanting against the acts of ancestors named in a deed, they should be named in the order in which they were seised, and the last seisin first, in this form :-"that, “notwithstanding any act done by the said [father], by "the said [grandfather], &c." But in titles taken under long pedigrees, it is only necessary to covenant against the acts of those who have been in possession, and not against the acts of those through whom the estate has merely descended, without ever having been in their possession.

In covenants for title, care should always be taken, to find out the person in whom the legal estate is vested, and then the owner should covenant "that he and that person are lawfully seised, &c."

All covenants, which run with the land, should be entered into with the parties to whom the conveyance is made, even when they are only trustees or releasees to uses; but such covenants as do not run with the land, and such as respect personal property, should be entered into with the cestui que trust, unless the trustee is interested on the behalf of several persons who are to enjoy the property, or to receive the produce as creditors.

The covenants for quiet enjoyment, and that for freedom from incumbrance, are, properly speaking, one covenant; for it is obvious that the commencement of the

latter of them, " and that free, &c." has reference to something which precedes, and is, in fact, the commencement of the second member of an entire sentence, and not in itself a separate independent clause. The total import of these two clauses, or, strictly speaking, separate parts of one clause, is, " that the purchaser shall "not only enjoy the estate without any let, suit, trouble " or disturbance from the vendor, but also free and clear "from all incumbrances at any time before or after to "be made or suffered by the vendor, and those persons "for whom he covenants." This covenant does not import that the estate is free from incumbrances, but only that the purchaser shall enjoy it free from incumbrances (1). The consequence of this difference is, that the covenant is not broken, although it should turn out that there are incumbrances, provided the purchaser have the undisturbed enjoyment of the premises; whereas, if the covenant were absolute and independent that the estate was free from incumbrances, the covenant would be broken, and the vendor liable to damages, as soon as any incumbrances should be discovered, although the parties entitled to the benefit of them were to make no attempt to disturb the purchaser's enjoyment. The words "acts and means," in these covenants, import something done by the person against whom the covenant is made: The words "permit and suffer, import" that a party shall not concur in any acts over which he has a control:

CHAP. VII.

SEC. I.

The covenant for further assurance in mortgage- Covenant for further assurdeeds does not compel the mortgagor to release his equity of redemption, but only to do all acts necessary

(1) Vane v. Lord Barnard, Gilb. 7.

ance.

CHAP. VII.

2 SEC. II.

to confirm the mortgage (1). Whether, under this covenant, a purchaser is entitled to call on the vendor to covenant for the production of title-deeds, is a question which has recently undergone much discussion, but is still undetermined (2).

Part of the

SECTION II.

Of the conveyance on the purchase of an estate subject to a mortgage.

When, on the purchase of a freehold estate, part of purchase-mo- the money is permitted by the vendor to remain on the

ney to be se

cured by mortgage on

the estate sold.

security of the estate, or is borrowed of a third person, who is to be secured by a mortgage on it, the land may be conveyed by the vendor to the purchaser, "To "the use of the intended mortgagee for a term of years, "remainder to the purchaser in fee," or "to the use of "the intended mortgagee, subject to the usual proviso " for redemption." By either of these modes, the dower of the purchaser's wife, and judgments, crown debts, or other incumbrances of the purchaser, are prevented from attaching upon the estate, as it passes immediately from the vendor to the mortgagee, without having vested at all in the purchaser.

(1) Atkins v. Uton, 1 Ld. Raym. 36; S. C. Comb. 318.

(2) Hallett v. Middleton, 1 Russ. 243; Fain v. Ayers, 2 Sim, & Stu. 533.