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 word "acts " means something done by the person against whose acts the covenant is made; and the word "means" has a similar meaning, viz., something proceeding from the person covenanting (f) or the person against whose acts, etc. the covenant is made. Where A. procured a fine to he levied to himself and his wife and his own heirs, an entry by the widow was held to be a breach of his covenant with a lessee for quiet enjoyment against himself (A.) and all persons claiming by his " means " (g).
Meaning of particular expressions, "acts" ; "means " ;
So, a covenant for quiet enjoyment against all persons claiming " under " the covenantor, is broken by an entry by his widow (h), or by a person claiming under the prior exercise by the covenantor of a power of appointment, though the estate was never vested in the covenantor (i), or under a joint appointment by the covenantor and A. B. (k), or by mortgagees of a term which was created with his concurrence, though the estate did not move from him (/). But a covenant for quiet enjoyment against persons claiming " by, from, or under" him, does not extend to persons claiming by title paramount in respect of his mere default, even though the paramount title is brought into operation by his "acts" (m).
" claiming under" ;
(d) Harrison, Ainslie § Co. v. Lord Muncaster, 1891, 2 Q. B. 680, C86 ; but see Kelly v. Rogers, 1892, 1 Q. B. 910, 912, 913 ; 61 L. J. Q. B. 604.
(e) Harrison, Ainslie § Co. v. Lord Muncaster, sup.
(f) Percur. in Spencer v. Marriott, (1823) 1 B. & C. 459 ; 1 L. J. (O. S.) K. B. 134 ; and see Dennett v. At her-ton, (1872) L. R. 7 Q. B. 316; 41 L. J. Q. B. 16") ; and ef. Harrison, Ainslie & Co. v. Lord Muncaster, sup.
(g) Butler v. Swinerton, (1622) Cro.
(h) Anon., (1623) Godb. 333.
(i) Hurd v. Fletcher, (1778) Doug. 43 ; Evans v. Vaughan, (1825) 4 B. & C. 261, 267 ; 3 L. J. (0. S.) K. B. 217.
(k) Calvert v. Sebright, (1852) 15 Beav. 156.
(I) Carpenter v. Parker, (1857) 3 C. B. N. S. 206 ; 27 L. J. C. P. 78.
(m) Stanley v. Hayes, (1842) 2 G. & D. 411 ; 3 Q. B. 105, ease of distress for land tax; Kelly v. Rogers, 1892, 1 Q. B. 910; 61 L. J. Q. B.
The ordinary covenant for quiet enjoyment is a covenant for title and possession, not an absolute warranty that the land is capable of being used by the covenantee for any purpose not expressly excluded (n), nor is it a warranty that no event shall happen to interfere with the quiet enjoyment of the covenantee, if such event is capable of being traced to the covenantor or those claiming under him (o). Thus, where A., on taking a conveyance in fee, covenanted with B., his vendor, not to carry on the trade of a beer-seller on the premises, and afterwards leased part of the property without any restriction as to this particular trade, though other specified trades were expressly prohibited, and the lease was assigned to C, who, without notice of A.'s covenant, carried on a beer-shop, until he was restrained by injunction at the suit of B., it was held, in an action by C. against A. for breach of the covenant for quiet enjoyment, that the covenant did not amount to a warranty to the lessee that he might use the premises for any purpose not falling within the prohibited trades.
General effect of the covenant.
A covenant for quiet enjoyment against persons claiming "by or through his default," would, it appears, be broken by an entry by parties whose title he had it in his own power to bar; - e.g., if he were tenant in tail in possession, and the entry were made by remaindermen (p) ; - and such a covenant has been held to extend to claims in respect of
604, case of re-entry for non-payment of rent; and see Cohen v. Tannar, 1900, 2 Q. B. 609, a similar case, but where the covenant was held to apply on the ground of there being an act of commission by the covenantor in consenting to a judgment for possession in an action in which no judgment could have been obtained.
(n) Dennett v. Atherton, (1872) L. R. 7 Q. B. 316; 41 L.J. Q. B. 165 ; Robinson v. Kilvert, (1889) 41 Ch. D. 88; 58 L. J. Ch. 392; Harrison, Ainslie & Co. v. Muncaster,
1891, 2 Q. B. 680, 689 ; Spurting v. Bantoft, (1891) 60 L. J. Q. B. 745, 751 : Tebb v. Cave, 1900, 1 Ch. 642 ; 69 L. J. Ch. 282; and Porter v. Brew, (1880) 5 C. P. D. 143; 49 L. J. C. P. 482.
(o) Harrison, Ainslie § Co. v. Muncastcr, sup. at p. 689; and see Jenkins v. Jackson, (1888) 40 Ch. D. 71 ; 58 L. J. Ch. 124 ; as to a clause of warranty being equivalent to the covenant, see Williams v. Burrell, (1845) 1 C. B. 402.
(p) Lady Cavan v. Bulteney, (1795) 2 Ves. 544.
"neglect or default" ;
A covenant that the covenantor has not knowingly or willingly "permitted or suffered" (t) any act, etc, does not extend to a defect in title occasioned by the act of God, e.g., the death of the cestui que vie (it); or to an act by others which the covenantor was a party to, but had no power to prevent; e.g., a mortgage in which he (as trustee to bar dower) has concurred (x) : but, of course, in such a case, the covenant would have been broken had it proceeded in the usual form, " or been party or privy to " (y).
"permitted or suffered " ;
" party or privy to."
"Where a house was sold with all easements, &o., and certain lights which had been actually used for more than the statutory period were apparently subsisting easements at the time of sale, it was held that the fact of the vendor having signed a memorandum which prevented the Statute from running, did not amount to a breach of the ordinary covenant: inasmuch as such covenant referred only to actual and not to apparent easements (z).
Acknowledgment which has prevented apparent from becoming real easement.
The fact of the purchaser having notice of a defect, whether it appears on the face of the deed or not, does not prevent the covenants for title from extending to it; if it is intended that such a defect shall not be covered by the covenants, care must be taken that the covenants are not so worded as in terms to cover the defect, or some clause must he inserted in the deed clearly explaining and controlling the covenants: where, however, the purchaser consents to take a defective title in reliance on the covenant for title, as a matter of prudence and precaution it is usual to make the matter plain by inserting words to show that even defects known to the purchaser are intended to be covered (a). If, however, the defect does not appear on the deed, and it is generally desirable that it should not, either the covenant should be entered into by a separate instrument, or, and it is conceived this would be sufficient, a memorandum should be signed by the covenantor admitting the defect is known, and that it is intended to be provided for by the covenants : for as the covenantor, seeking to escape the general terms of the covenant, must then, by evidence, outside the deed, show that the covenantee had notice of the defect, so the covenantee might, in like manner, show that the defect, though known, was not intended to be excepted (b). In an action, however, to rectify the covenant, knowledge of the defect might be admissible as evidence of the intention of the parties (c).