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.
How usually restricted.
Maybe qualified, without express words.
(a) Gray v. Briscoe, (1607) Noy, 142 ; the word "not" in the report is evidently a clerical error; see context.
(b) Turner v. Moon, sup.
(c) Nash v. Aston, (1683) T.Jones, 195.
(d) Coates v. Collins, (1871) L. R. 7Q. B. 144; 41 L. J. Q. B. 90.
(e) Per Lord Eldon, in Browning v. Wright, (1799) 2 B. & P. 13, 22.
(/) See May v. Platt, 1900, 1 Ch. 616 ; 69 L. J. Ch. 357, and cases there cited.
Purchaser may sue before eviction.
The common covenant for quiet enjoyment, though not broken until some entry or other actual disturbance is made upon the title (i), is apparently broken by a decree in a suit in Equity, though equitable disturbances are not specified (k), or by the obstruction of a necessary right of way (/), or by structural injury to a house (m), or a notice to tenants to pay rent to the adverse claimant (n), or a claim in respect of subsequent arrears of a quit rent incident to the tenure of the property (o). It is in every case a question of fact whether the quiet enjoyment of the land has or has not been interrupted; and where the ordinary and lawful enjoyment of the demised land is substantially interfered with by the acts of the lessor, or those lawfully claiming under him, the covenant is broken, though neither the title to the land nor the possession of the land may be otherwise affected (p); but a temporary inconvenience, which does not interfere with the estate, title, or possession, does not amount to a breach (q).
Covenant for quiet enjoyment and freedom from incumbrances.
(g) Sug. 14th ed. 610.
(h) See King v. Jones, (1814) 5 Taun. 418, 428.
(i) Shep. T. 170.
(k) Hunt v. Darners, (1680) T. Raym. 370; and see Morgan v. Hunt, (1G90) 2 Ventr. 213; Sug. 14th ed. 600. But see and distinguish Howard v. Maitland, (1883) 11 Q. B. D. 695.
(/) Andrews v. Paradise, (1724) 8 Mod. 318; Morris v. Edgington, (1810) 3 Taun. 24 ; Man. S. & L. R. Co. v. Anderson, 1898, 2 Ch. 394; 67 L. J. Ch. 568 ; and see Sutton v. Baillie, (1891) 65 L. T. 528 ; Turner v. Moon, 1901, 2 Ch. 825 ; 70 L. J. Ch. 822.
(m) Man. S. § L. It. Co. v. Anderson, sup.
(n) Edge v. Boileau, (1885) 16 Q. B. D. 117; 55 L. J. Q. B. 90; Hunt v.Danvert, sup.; but ef. Witch-cot v. Nine, (1611) Brownl. 81.
(o) Hammond v. Hi!/, (1709) Com.
Iso (the covenant specified rents and rent-charges).
(p) Sanderson v. Mayor of Berwick,
(1884) 13 Q. B. D. 547; 53 L. J. Q. B. 559. The covenant is independent of the performance of the other covenants, and can be sued upon though the plaintiff is at the time guilty of breaches of other covenants: Dawson v. Dyer, (1833) 5 B. & Ad. 584 ; Edge v. Boileau,
(1885) 16 Q. B. D. 117; 55 L. J. Q. B. 90
(q) Per Lindley, M. E., in Man. S. § L. R. Co. v. Anderson, sup. at p. 401 ; see also Jenkins v. Jackson, (1888) 40 Ch. D. 71 ; 58 L. J. Ch. 124 ; Robinson v. Kilvcrt, (1889) 41 Ch. D. 88; and Tebb v. Cave, 1900, 1 Ch. 642; 69 L. J. Ch. 282, where erection of buildings by covenantor causing covenantee's chimneys to smoke was held a breach.
The covenant, if general, is not broken by a wrongful claim or eviction (r), unless it is the act of the covenantor himself or his heirs or executors (if named) (s) ; in which case the wrongful act, if intended as a claim to title (t), is a breach even of a covenant against lawful disturbances (11) ; and a covenant in terms extending to pretended claims (x), or a general covenant against disturbances by specified individuals (y), or by claimants in general (with a specified exception) (z), is broken by a wrongful disturbance. It was held in one case (n), that covenants for seisin in fee, and good right to convey free from incumbrances, were not broken when parties were, at the date of the conveyance, in actual possession of part of the estate under leases made by a stranger under a mistake : but the decision seems to be of very doubtful authority (b). The ordinary covenants for title and quiet enjoyment have been held not to be broken by the subsistence of a mining lease, where the purchaser, when he took his conveyance, knew that the minerals were substantially worked out, or by a subsidence of the surface, caused by the previous workings, though the party suing on the covenants, who was an assignee of the purchaser, did not know of the existence of the lease, or that the minerals had been worked (c). The covenant does not extend beyond an interruption which is caused by the direct act of the covenantee or those lawfully claiming under him or by some act the consequence of which, it either was foreseen, or ought, if reasonable care had been exercised, to have been foreseen, would be an interruption (d) ; thus an interruption caused without any direct act, and which was quite unforeseen, by the breaking in of water on a mine, was held not to be a breach (c).
(r) See Kirby v. Hansaker, (1612) Cro. Jac. 315; Dudley v. Folliott, (1790) 3T. R. 584.
(s) See 5 Jarm. Conv. 4th ed. 238 ; Forte v. Vine, (1618) 2 Rol. R. 21.
(t) See Fenn v. Glover, (1595) Cro. El. 421; Morgan v. Hunt, (1690) 2 Vent. 213 ; Lloyd v. Tomkies, (1787) 1 T.R. 671; and Lord Ellenborough's remarks in Seddon v. Senate, (1810) 13 Ea. 63, 72.
(u) Lloyd v. Tomkies, sup.
(x) Chaplain v. Southgate, (1717) 10
(y) Foster v. Hopes, (1590) 1 Cro. El. 212 ; Ferry v. Edwards, (1721) 1 Str. 400; Nash v. Palmer, (1817) 5 M. & S. 374 ; Fowle v. Welsh, (1822) 1 B. & C. 29; 1 L. J. (O. S.) K. B. 17.
(z) Woodroff v. Greenwood, (1596) Cro. El. 518.
(a) Jerritt v. Weare, (1817) 3 Pr. 575.
(b) See Sug. 14th ed. 601.
(c) Spoor v. Green, (1874) L. R. 9 Ex. 99 ; 43 L. J. Ex. 57, sed qucvre.