This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
The covenants for title are a part of the draft upon which disputes not infrequently arise: they are of considerable, though perhaps of over-estimated, importance. To the solicitor, however, they are important, as he will be responsible to his client for permitting him to enter unknowingly into improper covenants (x); or for not securing to him those to which he is entitled from the other party.
Covenants for title.
Solicitor's liability in respect thereof.
Under the L. P. Act, 1925, s. 76 (1), and 2nd Schedule (taking the place of the Conv. Act, 1881, s. 7), covenants for title in certain statutory forms are implied in conveyances in which the conveying parties are expressed to join in certain capacities, and by s. 64 of the L. P. Act, 1925 (taking the place of s. 9 of the Conv. Act, 1881), acknowledgments and undertakings, having the effect prescribed by the Act, may be substituted for the old covenants for production and safe custody. And further covenants are implied by s. 77.
No precise form of words is necessary to constitute a covenant, if only there is an agreement by deed (y); and if the covenantor adopts the deed in other respects, his non-execution of it is not material for the purpose of binding him by his covenant (z). If the covenant is contained in a deed poll, the covenantee should be named or defined therein; and if the covenant was contained in an indenture, it was formerly necessary for the covenantee to be made a party. But under s. 56 (1) of the L. P. Act, 1925, a person may take an immediate or other interest in land or other property, or the benefit of any condition, right of entry, covenant or agreement respecting land or other property, although he may not be named as a party to the conveyance or other instrument (a), but he must be existent at the date of the execution of the deed (b). Covenants may, of course, be entered into by reference to those in another instrument (c).
Covenants, how constituted, etc.
(x) Stannard v. Ullithorne, (1834) 10 Bing. 491; 3 L. J. N. S. C. P. 307. Probably he would be protected by an opinion of counsel; see Cordery on Solicitors, 3rd ed. 130.
(y) Carr v. Roberts, (1833) 5 B. & Ad. at p. 82; Wood v. Copper Miners' Co., (1849) 7 C. B. 906, 936; 18 L. J. C. P. 293; Rigby v. G. W. R. Co., (1845) 14 M. & W. at p. 816; 15 L. J. Ex. 60; Re Cadogan, (1895) 73 L. T. 387.
(z) Archard v. Coulsting, (1843) 6 Man. & G. 75; Norton on Deeds, 2nd ed. 26, 27.
A vendor, if the absolute beneficial owner, enters into the usual covenants that he has good right to convey, assign, or surrender (as the case may be), for quiet enjoyment, free from incumbrances, and for further assurance (d). In deeds executed after 1881, these covenants are implied in every conveyance of freeholds, for valuable consideration by a person who conveys, and is expressed to convey, as beneficial owner (e).
What covenants entered into by absolute beneficial owner.
The covenants of a vendor who is absolute beneficial owner, if he has acquired the estate by purchase for valuable consideration, are extended to the acts of himself (f) and parties claiming under him: it is conceived that marriage is for this, as it is for other purposes, a valuable consideration, even as in favour of collaterals (g); but, in practice, it is usual for a vendor claiming under a marriage settlement to covenant against the acts of the settlor and his representatives (h); and the advisability of inserting such a covenant is not removed by e. 76 of the L. P. Act, 1925, a conveyance in consideration of marriage not being a purchase for value within the section (i).
To whose acts his covenants extend.
The covenants implied by s. 7 of the Conv. Act, 1881 (since repealed), and now by s. 76 of the L. P. Act, 1925, extend to the acts of all persons through whom the vendor derives title otherwise than by purchase for value.
(a) This section replaces and extends the provisions of s. 5 of R. P. Act, 1845, which section is repealed by the L. P. Act, 1925. As to whether the repealed section was confined to covenants running with the land, see Dyson v. Forster, 1909, A. C. 98.
(b) Kelsey v. Dodd, (1882) 52 L. J. Ch. 34, 39.
(c) Be Strafon, (1852) 1 D. M. & G. 576; 22 L. J. Ch. 194.
(d) See Church v. Brown, (1808) 15 Ves. at pp. 263, 264.
(e) See inf. p. 661 et seq.
(f) Browning v. Wright, (1799) 2 B. & P. 13, 22; Sug. 14th ed. 599, 605.
(g) Davenport v. Bishopp, (1846) 1 Ph. 698; 12 L. J. N. S. Ch. 493; see post, p. 778.
(h) See 5 Jarm. Conv. 4th ed. 216.
(i) Wolst. k Cherry, 11th ed. vol. i. p. 521.
The owner of an estate sold by order of the Court enters into the same covenants as if he himself were selling (k), and the trustees or person appointed to convey will give the statutory covenant implied by the L. P. Act, 1925, s. 76 (1) (F), and Sched. II., Part III.
Ah to covenants by owner, on sale by Court or by trustees.
In the case of a sale by the committee of a lunatic under an order of the Court, the Court has jurisdiction, under s. 124 of the Lunacy Act, 1890, to authorise a committee to enter into usual and proper covenants, including the ordinary covenants for title (l).
Covenants by committee of lunatic.
The liability of landowners, agreeing to sell land to railway and other similar companies, to enter into the usual covenants for title can hardly be questioned in respect of land which the company has no power to take compulsorily; such as land required for extraordinary purposes (m), or in respect of land taken under an ordinary agreement with the owner; but as respects land which the company has power to take compulsorily, the landowner's contract, though apparently voluntary, is scarcely so in fact; and his liability to enter into covenants may be considered doubtful in principle. In Re the London Bridge Acts (n), there was the important fact - though not noticed in the judgment