Covenants for title on sale of copyholds.

2 Key & Elph. Prec. Conv. 461, a., 662, 663, 704, 710, 4th ed.: 457, a., 553, 554, 674, 680, 8th ed.; Davidson's Concise Precedents, 511 and n.. 521, 17th ed. Sug. V. & P. 574: 9 Jarm. Conv. by Sweet, 375 Davidson, Prec. Conv. vol. ii. pt. i. 192, 237. n., 243, n., 254, n., 261, n.. 4th ed.

(u) See 1 Dart. V. & P. 545, 5th ed.; 616, 6th ed.; 568, 7th ed.

(x) Wms. Real Prop. 484 sq., 21st ed.

(y) Above, pp. 659 - 661; Rid-dell v. Riddell, 7 Sim. 529; Davidson, Prec. Couv. vol. ii. pt. i. 205 - 207, 364, 367, 4th ed.

Stat. 4 1 & 45 Vict. c. 41. s 7 (5); above, p. 668, and n. (q).

Payment of price on sale of copyholds.

As has been already mentioned (d), where land is sold subject to some definite incumbrance, legal or equitable, whether it be a mortgage, charge, lease, easement, profit a prendre, restrictive covenant or other liability, it is proper to express in the conveyance that the land is conveyed subject to the incumbrance. And the vendor must be particularly careful to see that this is done, where the incumbrance was created by himself or some one, against whose acts he is bound to covenant for title (e), and it is proposed to incorporate the statutory covenants for title. For these include covenants for right to convey, quiet enjoyment, and freedom from incumbrance, subject only to estates or interests subject whereto the conveyance was expressly made (f). So that in such cases unless the incumbrance, subject to which the land was sold, be expressly mentioned, the statutory covenants for title will in terms extend to guarantee indemnity against it; although the conveyance will only pass the vendor's actual interest in the land (g). The incumbrance diminishing the estate granted to the purchaser must therefore be exactly specified in the conveyance. If this were inadvertently omitted, the vendor would have no remedy against an action on the covenants but to claim rectification of the conveyance (h). On the other hand, if laud, to which the vendor's title is defective, be sold, or accepted by the purchaser, with the stipulation that the vendor shall by his covenants for title guarantee indemnity against the risk of the defect, and the defect appear on the face of the conveyance, it must be plainly shown, where the statutory covenants for title are applicable and are relied on, that they are intended to cover the defect; otherwise it might be contended that the defect, being an incumbrance subject to which the conveyance was expressly made, did not come within the terms of the covenants. Of course, if in this or any other case the usual qualified covenants for title do not cover defects or possible defects of title, against which the vendor is by the contract of sale bound to guarantee indemnity, the statutory covenants for title must be modified accordingly or else, which is the better plan, the required covenants for title must be given in express terms duly showing the intention of the parties Where covenants for title are particularly intended to guard against a known defect of title, which is not necessarily apparent, it is better that they should be contained in a deed separate from the conveyance; as it would not generally be desirable to show the defect on the face of the conveyance (k). In such case express covenants must be given, as the statutory covenants can only be incorporated in a deed of conveyance: but the statutory covenants might be given in the conveyance to prevent attention being attracted by their absence, and it might be provided in the separate deed that the covenants thereby given were intended to be additional.

Where the land sold is to be conveyed subject to any incumbrance.

(a) Above, p. 661.

(b) 1 Key & Elph. Prec. Conv. 475 and n., 4th ed.; 474 and n., 8th ed.

(e) See Davidson, Prec. Conv. vol. ii. pt. i. p. 1206, 4th ed.;

Wms. Real Prop. 485, 4X6, 21st ed.

(d) Above, p. 643.

(e) Above, pp. 652, 662.

(f) See stat. 44 & 45 Vict. c. 41, s. 7 (1); above, pp. 652, 658, n. (r).

Covenants for title intended to cover an apparent defect.

(g) Above, p. 645. (h) Above, p. 644.

(i) See Page v. Midland Rail Co., 1894, 1 Ch. 11. 20: May v.

Platt, 1900, 1 Ch. 616: 2 Dart, V. & P. 786. 5th ed.; 886, 887, 6th ed.: 791. 795, 7th ed.

In certain circumstances the vendor can require the purchaser to enter into some covenant with him by the deed of conveyance. Thus, if the contract for sale provide for the observance of certain restrictions on the use of the land sold, the purchaser is bound, on completion, to enter into a covenant to observe the restrictions (l); and in the absence of stipulation to the contrary, this covenant must be absolute, and the purchaser cannot insist that his liability thereunder shall be limited in any way, as by a proviso that he shall be released from liability if he re-sell the land and procure the new purchaser to enter into a similar covenant (m). If the parties intend that the benefit of any such restrictive covenant shall run with some particular land retained by the vendor, he should be careful that the covenant is so expressed that no doubt can arise as to the persons who will be entitled to enforce the covenant. It is, as we have seen (n), a question to be decided on consideration of all the circumstances and conditions of the sale whether the intention of the contracting parties was that the benefit of such a covenant should run with some particular land belonging to the vendor, or whether this benefit was meant to be confined to the vendor himself, his personal representatives, and his assigns of the benefit of the covenant. The purchaser can of course only be called upon to covenant as intended by the contract. If the contract do not in effect provide that the benefit of the covenant shall run with some particular land of the vendor's, the purchaser cannot be obliged to covenant in such a manner that the vendor's heirs and assigns of that land will be entitled as such, and not merely as assignees from the vendor of the benefit of the covenant, to enforce the covenant (o).