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.
Benefit of covenants apportioned with land and estate.
Where the estate is merely equitable, there can be no assignee at Law, and the covenants cannot be enforced at Law by an equitable assignee; so, if the conveyance, though intended to do so, does not in fact pass any legal estate, the assignee cannot sue (n); but, in either case, the assignee, though unable to sue in his own name, would probably be entitled to sue in the name of the original covenantee (o).
Remedy on covenants in conveyance of equitable estate.
Assignee may sue in name of covenantee.
Equity will assist a covenantee who has lost his legal remedy by the contrivance of the covenantor (p); but it will not, as a mode of enforcing the covenant for quiet enjoyment, interfere by injunction against an illegal distress by the vendor after conveyance (q).
Remedy in Equity.
A condition that the absence of covenants for title running with the land shall not be made the subject of objection or requisition by the purchaser is unnecessary; for there is not, it seems, any authority for holding that a purchaser who can obtain the legal estate can make the absence of a good string of covenants for title a valid ground for objecting to the title (>•).
Condition as to absence of covenants for title.
(k) See IDav. 116.
(1) See 9 Jarm. Conv. 3rd ed. 404 ; Noble v. Cass, (1828) 2 Si. 343.
(m) Badeley v. Tigurs, (1854) 4 E. &B. 71; 23 L. J. Q. B. 377.
(n) 9 Jarm. Conv. 3rd ed. 366 ; Onward Bldg. Soc. v. Smithson, 1893, 1 Ch. 1 ; 62 L. J. Ch. 138 ; and see and consider this case as to effect of conveyance, containing covenants for title, having been obtained by fraud.
(o) See Riddell v. JR., (1835) 7 Si. 529.
(p) Thornton v. Court, (1853) 3 D. M. & G. 293 ; 22 L. J. Ch. 361.
(q) Drake v. West, (1853) 22 L. J. Ch. 375.
The Y. & P. Act, 1874, s. 2 (3), provides that the inability of the vendor to furnish the purchaser with a legal covenant to produce and furnish copies of the documents of title shall not he an objection to title, in case the purchaser will, on the completion of the contract, have an equitable right to the production of such documents.
Inability to give legal covenant for production not an objection to title.
In considering what amounts to a breach of the several usual covenants for title, as respects the covenants for seisin in fee, (or, in the case of a lease, that the lease is valid,) and for right to convey, surrender, or assign, and also the usual trustee's covenants against incumbrances, the same, if broken at all, are necessarily broken immediately upon the execution of the assurance which contains them (s); so that the Statute of Limitations immediately begins to run in favour of the covenantor: and this, though the covenantee is ignorant of the breach (t) ; unless he is kept in such ignorance by the fraud of the covenantor (u). On the other hand, the usual covenants for quiet enjoyment (.r) free from incumbrances (y), and for further assurance, can only be broken by subsequent events; and the Statute does not begin to run until there is an actual breach, and then only in respect of that particular breach (s).
As to breach of covenants for title.
Statute of Limitations runs, from •what time.
(r) Me Scott and Alvarez, 1895, 1 Ch. 596, 606; 64 L. J. Ch. 376.
(s) See Salman v. Bradshaw, (1612) Cro. Jac. 304; Turner v. Moon, 1901, 2 Ch. 825; 70 L. J. Ch. 822. As to whether recitals of the vendor's title in the conveyance can estop the purchaser, see sup. p. 649.
(t) Short v. M'Carthy, (1820) 3 B. & Ald. 626.
(u) Gibbs v. Guild, (1882) 9 Q. B. D. 59; 51 L. J. Q. B. 313; formerly at law fraud was no defence to the
Statute, Imperial Gas Co. v. London Gas Co., (1854) 10 Ex. 39. And see Armstrong v. Milium, (1886) 54 L.T. 247, 723 ; Barber v. Houston, (1884) 14 L. R. Ir. 273 ; Thome v. Heard, 1895, A. C. 495 ; 64 L. J. Ch. 652 ; Bulli Coal Mining Co. v. Osborne, 1899, A. C. 351 ; 68 L. J. P. C. 49.
(x) Sec Ireland v. Bircham, (1835) 2 Sc. 207.
(y) Vane v. Lord Barnard, (1708) Gilb. R. 6, 8.
(z) See 5 Jarm. Conv. 4th ed. 309.
A covenant that the vendor is seised in fee of an estate, conveyed as freehold, is, of course, broken, if the estate is copyhold (a) ; or there is an undisclosed right of way (b) ; and a covenant that the vendor and another conveying party have good right to convey is broken, if such other party, though having the estate, is personally incompetent to transfer it (c).
Covenants for seisin and right to convey, how broken.
Where leaseholds were assigned for the lives of A., B. and C, and the survivors and survivor of them, and the assignor covenanted that the lease was valid and subsisting "for the three lives, and the survivors and survivor of them," and B. was dead at the date of the deed, this was held to be merely a covenant that the lease was subsisting, not that the three lives were still in existence (d).
The covenant for seisin or right to convey is usually restricted to the acts of the covenantor where he has acquired the estate by purchase, and to the acts of himself, his ancestors or testators, where he claims by descent or devise ; and, so qualified, is merely a warranty on his part " that he sells the estate in the same plight that he received it, and not in any degree made worse by him " (e). Even without express words of restriction, the form of the deed may show that the covenant was intended to be qualified ; but this is a question of construction to be decided on each particular case : where the vendor gave the statutory covenants by conveying as beneficial owner all his estate, term, and interest under the principal agreement in the piece of land coloured, etc, it was held that the covenants could not be limited in their application to the quantum of the estate by implying the words " if any " after the word "interest" (f).