Purchaser agreeing to observance of restrictions on the use of the land bought must enter into an absolute covenant to that effect.

(k) Sug. V. & P. 573; Davidson, Prec. Conv. vol. ii. pt. i. pp. 379, n., 381, 4th ed.

(l) See above, pp. 493, 648.

(m) See Pollock v. Rabbits, 21

Ch. D. 466, decided on an express condition; but it is thought that the stipulation implied bylaw is the same.

(n) Above, pp. 491 - 493, 648.

When the vendor is bound under any covenant or contract to pay any money or do or observe any other act or thing in respect of the land sold or as the condition of retaining his interest therein, and the land is sold to be held by the purchaser on the same terms as the vendor held it, but the vendor will remain personally liable for any future breach of the covenant or contract, which may occur after the sale and conveyance of the land, the purchaser is bound on completion to enter into a covenant with the vendor promising to observe all the conditions on which it is intended that he shall hold the land and to indemnify the vendor against all liability in respect of any future breach of these conditions; and it is not necessary for the vendor to stipulate expressly in the contract for sale that the purchaser shall enter into such a covenant (p). For example, on the sale of Leaseholds, which are subject to the payment of rent and the performance of onerous covenants, the purchaser must, if the vendor will remain under any liability in respect of the rent and covenants, covenant in the deed of conveyance thenceforth to pay the rent and perform the covenants and to indemnify the vendor against all liability by reason of any future omission to pay the rent or keep the covenants. The purchaser must therefore give this indemnity, where the vendor is the original lessee, or an assignee who has entered into a similar covenant on the assignment to himself, or the executor or administrator of such lessee or assignee (q). But in all such cases the sole object of the covenants so to be given by the purchaser is to secure the vendor's indemnity against any future breach of the conditions on which the land sold is held; and (except on the purchase of leaseholds the purchaser is entitled to require that his covenant to observe these conditions shall be so expressed as not to impose on him any greater liability than this (r). On the sale of leaseholds the vendor can oblige the purchaser to covenant in the above-mentioned form, which has been established by long conveyancing practice: but such covenants will be construed as having been given by way of indemnity only, and not so as to confer on the vendor any further or other right to insist on the observance of the covenants in the lease than is necessary for the purposes of his own indemnity (s). If the vendor of leaseholds will not remain liable, after the assignment of the leaseholds to the purchaser, for any future failure to pay the rent or keep the covenants, as where he is the original lessee's trustee in bankruptcy or is an assignee of the lease who did not covenant to indemnify his assignor generally against the rent and covenants, he cannot require the purchaser to covenant to indemnify him (t). Where on a sale of leaseholds the vendor is bound to pay the rent and perform the covenants in the lease up to the proper time for completion, as is the case under an open contract (u), it is thought that the purchaser cannot be required to enter into such a covenant as would extend to indemnify the vendor against past breaches of covenant (x). And it is submitted that in such case the purchaser cannot safely enter into a covenant of indemnity in the common form, which has been hitherto usual (y); for this, it seems, might be held to oblige him to indemnify the vendor against past breadces of covenant (z): but he should insist on his liability being expressly limited to indemnity against future omission to pay the rent and keep the covenants. If, however, the purchaser bought with notice of some breach of covenant and agreed to take the property subject to the breach, then, it is thought, his covenant to indemnify the vendor ought to include indemnity against the consequences of that breach. For example, where buildings held under a repairing lease are out of repair and are sold to a purchaser, who has notice of the actual condition of the premises, on the terms that he shall take them as they are and the vendor shall not be obliged to put them in repair before completion, the purchaser must, it is submitted, covenant to indemnify the vendor against all liability for the existing breach of the covenant to repair (a) as well as against any future omission to pay the rent or keep the covenants (b).

In what cases the purchaser is bound to indemnify the vendor.

On sale of leaseholde.

(o) Bee Renals v. Gowlishaw, 9 Oh. D. 125, 129, 11 Ch. D. 866; Spicer v. Martin, 14 App. Cas. 12, 21: Rogers v. Hosegood, 1900, 2 Ch. 388, 396, 403 - 408.

(p)See Pember v. Mathers, 1 Bro. C. C. 52, 64; Waring v. Ward, 7 Ves. 332, 337; Staines v.

Morris, 1 V. & B. 8; Wilkins v. Fry, 1 Mer. 244, 263 266; Vox-hay v. Inderwick, 1 De G. & S. 708: Sug. V. & P. 37, 38, l Dart. v. & P. 557 sq., 5th ed. . 628 sq., 6th ed.: 579 sq., 7th Re Poole and Clark's Contract, 1904, 2 Ch. 173.

(q) See previous note. Harris v. Boots, etc. Ltd., 1904, 2 Ch. .376, 382: above, p. 80.

(r) Re Poole and Clarke's Contract, 1904, 2 Ch. 173.

(s) Harris v. Boots, etc. Ltd., 1904, 2 Ch. 376.

(t) See Wilkins v. Fry, 1 Mer. 244, 263 - 266; Sag. V.'& P. 37, 38; 1 Dart, V. & P. 558, 5th ed.;

630, 6th ed.: 581, 7th ed.: Davidson, Prec. Con v. vol. ii. pt. i. 217. 1th ed. Note that the assignee's liability independent of express contract to indemnify the original lessee to which see Burnett v. Lynch, 5 B. & C. 589; Moule v. Garrett, L. R. 5 Ex. 132, 7 Ex. 101) extends only bo omission to pay the rent or keep the covenants during his own tenancy, and not to any such omission occurring after he has assigned over: Sug. V. & P. 38.