Words which in themselves imply a covenant for quiet enjoyment.
Grant, bargain and sell, in bargain and sale of lands in Yorkshire.
(l) 3 & 4 Will. IV. c. 27,8.39; 3 & 4 Will. IV. c. 74, s. 14.
(m) Spencer's case, 5 Rep. 17 a; Bae. Ab. tit. Covenant (B).
(n) Noke's case, 1 Rep. 80 b. (o) See Co. Litt. 384 a, a. (1).
(p) Bustard's case, 1 Rcp. 121a.
The absence of a warranty is principally supplied in modern times by a strict investigation of the title of the person who is to convey; although, in most cases, covenants for title, as they are termed, are also given to the purchaser. On the sale or mortgage of copyhold lands these covenants are usually contained in a deed of covenant to surrender, by which the surrender itself is immediately preceded (t), the whole being regarded as one transaction (u). By these covenants, the heirs of the vendor are always expressly bound; but, like all other similar contracts, they are binding on the heir or devisee of the covenantor to the extent only of the property which may descend to the one, or be devised to the other (v). Unlike the simple clause of warranty in ancient days, modern covenants for title are five in number, and few conveyancing forms can exceed them in the luxuriant growth to which their verbiage has attained (w). The first covenant is, that the vendor is seised in fee simple; the next that he has good right to convey the lands; the third, that they shall be quietly enjoyed; the fourth, that they are free from incumbrances; and the last, that the vendor and his heirs will make any further assurance for the conveyance of the premises which may reasonably be required. At the present day, however, the first covenant is usually omitted, the second being evidently quite sufficient without it; and the length of the remaining covenants has of late years somewhat diminished. These covenants for title vary in comprehensiveness, according to the circumstances of the case. A vendor never gives absolute covenants for the title to the lands he sells, but always limits his responsibility to the acts of those who have been in possession since the last sale of the estate; so that if the land should have been purchased by his father, and so have descended to the vendor, or have been left to him by his father's will, the covenants will extend only to the acts of his father and himself (x); but if the vendor should himself have purchased the lands, he will covenant only as to his own acts (y), and the purchaser must ascertain, by an examination of the previous title, that the vendor purchased what he may properly re-sell. A mortgagor, on the other hand, always gives absolute covenants for title; for those who Lend money are accustomed to require every possible security for its repayment; and, notwithstanding these absolute covenants, the title is investigated on every mortgage, with equal, and indeed with greater strictness, than on a purchase. When a sale is made by trustees, who have no beneficial interest in the property themselves, they merely covenant that they have respectively done no act to encumber the premises. If the money is to be paid over to A. or B. or any persons in fixed amounts, the persons who take the money are expected to covenant for the title (z); but, if the money belongs to infants, or other persons who cannot covenant, or is to be applied in payment of debts or for any similar purpose, the purchaser must rely for the security of the title solely on the accuracy of his own investigation (a).
Act to amend the law of real property.
Covenants for title.
(q) Stat. 6 Anne, c. 35, ss. 30, 34; 8 Geo. II. c. 6, s. 35.
(r) As in conveyances by companies under the Lands Clauses Consolidation Act, 1845, stat. 8 & 9 Vict. c. 18, s. 132; and in conveyances to the governors of Queen Anne's Bounty, stat. 1 & 2 Vict. c. 20, s. 22. Conveyances by joint stock companies registered under the Joint Stock Companies Act, 1856 (now repealed), also implied covenants for title. Stat. 19 & 20 Vict. c. 47, s. 46.
0) Stat. 8 & 9 Vict. c. 106, s. 4, repealing 7 & 8 Vict. c. 76, s. 6.
(t) By the Stamp Act, 1870, stat. 33 & 34 Vict. c. 97, such a deed of covenant is now charged with a duty of 10s., and if the ad valorem duty on the sale or mortgage is less than that sum, then a duty of equal amount only is payable.
(u) Riddell v. Riddcll, 7 Sim. 529.
Covenants for title by a vendor.
Covenants for title by a mortgagor.
(r) Ante, pp. 77, 79.
(w) See Appendix (D).
(x) Sugd. Vend. & Pur, 463, 13th ed. (y) See Appendix (D).
The period for which the title is investigated is the last sixty years (b); and every vendor of freehold property is bound, at his own expense, to furnish the intended purchaser with an abstract of all the deeds, wills and other instruments which have been executed, with respect to the lands in question, during that period; and also to give him an opportunity of examining such abstract with the original deeds, and with the probates or office copies of the wills; for, in every agreement to sell is implied by law an agreement to make a good title to the property to be sold(c). The proper length of title to an advowson is, however, 100 years (d), as the presentations, which are the only fruits of the advowson, and, consequently, the only occasions when the title is likely to be contested, occur only at long intervals. On a purchase of copyhold lands, an abstract of the copies of court roll, relating to the property for the last sixty years, is delivered to the purchaser. And even on a purchase of leasehold property, the purchaser is strictly entitled to a sixty years' title (e); that is, supposing the lease to have been granted within the last sixty years, so much of the title of the lessor must be produced as, with the title to the term since its commencement, will make up the full period of sixty years. If the lease is more than sixty years old, the lease must be produced or its absence accounted for, and evidence given of the whole of its contents (f). But intermediate assignments upwards of sixty years old need not be produced.