"default;"

"neglect or default;"

" permitted or suffered;"

" party or privy to."

As to covenants against known defects.

(d) See a note to 9 Jarm. Conv. by S. 380, where the learned editor, coming to a different conclusion, contends that for this purpose acts and defaults are identical, as to which, query; and see Sug. 751, where the decision in Stanley v. Hayes is approved of.

(e) Lady Cavan v. Pulteney, 2

Ves. J. 544.

(f) See Howes v. Brushfield, 3 East, 491.

(g) Sug. 750.

(h) See Woodhouse v. Jenkins, 9 Bing. 431.

(i) Hobson v. Middleton, 6 B. & C. 295.

(k) See 6 B. & C. 303.

(l) See Butler's note to Co. Litt. 384. a.

The ordinary covenant to do all "reasonable" acts for further assurance, or all such acts, etc. as the purchaser shall reasonably require, is not broken by a refusal to do an unnecessary act (o); or by a refusal occasioned by the act of God; e. g., the insanity (p), death, or severe illness of the party whose further assurance is required (q); or by a refusal to give a bond for quiet enjoyment (r); or, according to the general opinion, a covenant for production of title deeds (s); or, perhaps, to enter into fresh covenants for title (t).

But such covenant will be broken by a refusal to convey any interest acquired in the estate, even by purchase for valuable consideration (u); or to execute a duplicate of the conveyance, if the original has been burnt (v), or (semble) handed over to a sub-purchaser of part of the estate (w); but, in such cases the conveyance should bear an indorsement expressing that it is a duplicate (x).

Covenant for further assurance- what acts not comprised in.

What are comprised in.

(m) Ibid.; Sug. 702; and 9 Jarrn. by S. 381.

(n) See 1 Sim. & Stu. 445.

(o) Warn v. Bickford, 9 Pri. 43.

(p) Pet and Catty's ease, 1 Leon. 304.

(q) See Nash v. Aston, Sir T. Jones, R. 195; and Anon. Moore, 124, where sickness was held a valid reason for a married woman not levying a fine, and the Court agreed that the case would be the same, " si la feme soit grosement enseint sic ut ne poit traveller."

(r) Staynroyde x. Locock, Cro. Jac. 115.

(s) See Hallett v. Middleton, 1 Russ. 243; Sug. 461.

(t) Coles v. Kinder, Cro. Jac. 571, but the point is not clear; see Sug. 769; and 9 Jarrn. Conv. by S. 401, n.

The party called upon to execute the further assurance may claim a reasonable time in which to procure professional assistance (y); and, according to modern practice, which the Courts would doubtless recognize, a draft of the proposed assurance is furnished to him, that he may submit it to his legal advisers (z).

A vendor's covenants for title are, as we have seen, generally limited to the acts of himself, his ancestors and testators, (if he have taken the estate otherwise than by purchase,) and persons claiming by, through, under or in trust for him or them respectively; it, however, frequently happens either that some of the covenants are general and others limited, or that the limited covenants are not consistent in their restrictions; in such cases questions arise as to how far the restrictions in one covenant affect another.

A covenant, general in terms will be so construed, unless a contrary intention clearly appear (a): this, however, may be evidenced by any part of the instrument (b).

Before considering the effect of restrictive words in the covenants themselves, we may remark, that the five usual covenants may be divided into three classes, having distinct objects; viz., first, the covenants for seisin and right to convey, which are strictly covenants for title; secondly, the covenants for quiet enjoyment, and that free from incumbrances, (not a covenant that the estate is free from incumbrances, but merely that there shall be no disturbance by incumbrancers); and thirdly, the covenant for further assurance: and that the first class may be broken without there being any breach of the second or third; for the purchaser, although not acquiring a marketable title, may be undisturbed in the possession, and may never require any further assurance, or may obtain what he does require: also that, if either of the second class be broken (unless it be so worded as to extend to wrongful disturbances), there must have been a breach of the first class: and lastly, that the covenant for further assurance may be broken without there being any breach of either of the other classes.

Time allowed to party-required to execute further assurance.

Covenants for title, how restricted.

Only by clearly expressed intention.

Covenants for title, how classified.

(u) Taylor v. Debar, 1 Ch. Ca. 274.

(v) Sug. 460.

(w) Napper v. Lord Allinglon, 1 Eq. Ca. Ab. 166.

(x) Ibid.

(y) Bennet's case, Cro. Eliz. 9.

(z) See Sug. 769.

(a) See Sug. 755.

(b) See 2 Bos. & P. 22, 25.

Upon this subject the four following propositions are laid clown by Sir E. Sugden; viz., first, that "where restrictive words are inserted in the first of several covenants having the same object, they will be construed as extending to all the covenants, although they are distinct" (c); secondly, that "where the first covenant is general, a subsequent limited covenant will not restrain the generality of the preceding covenant, unless an express intention to do so appear, or the covenants be inconsistent" (d); thirdly, that "as on the one hand a subsequent limited covenant does not restrain a preceding general covenant, so, on the other hand, a preceding general covenant will not enlarge a subsequent limited covenant" (e); and fourthly, that "where the covenants are of divers natures, and concern different things, restrictive words added to one shall not control the generality of the others" (f).

Of the above propositions, the first, if read in connection with the above classification of the covenants and of their separate objects, seems to be warranted by the authorities (g): the second proposition, (which together, or rather as connected, with the first, is disputed by the learned Editor of Mr. Jarman's work on conveyancing) (h), is, perhaps, hardly accurate; for, although a prior general covenant, will not, it appears, be restrained by a subsequent limited covenant having a different object (i), yet where two covenants relate to the same object, restrictive words in the second may, it seems, control the generality of the first (k): the third and fourth propositions seem to be unimpeachable.