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.
Only by clearly expressed intention.
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. The first class may be broken without there being any breach of the second or third ; for the purchaser, though 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: but if either of the second class is broken (unless the covenant is so worded as to extend to wrongful disturbances), there must have been a breach of the first class: and lastly, the covenant for further assurance may be broken without there being any breach of any of the other covenants.
Covenants for title, how classified.
(r) See note (q) sup.
(s) Bennetts case, (1582) Cro. El. 9.
(t) See Sug. 14th ed. 614.
(u) Heron v. Treyne, (1701) 2 Raym. 750.
(x) Conv. Act, 1881, s. 7.
(y) See Sug. 14th ed. 605 ; Cooke v.
Founds, (1661) 1 Lev. 40 ; Barton v. Fitzgerald, (1812) 15 Ea. 530, 541.
(z) See Browning v. Wright, (1799) 2 B. & P. 13, 22, 25 ; Brown v. B., (1662) 1 Lev. 57 ; and see Delmer v. McCabe, (1863) 14 Ir. C. L. R. 377 ; May v. Blatt, 1900, 1 Ch. at p. 620 ; 69 L. J. Ch. 357.
Restrictive words, effect of; Lord St. Leonards' propositions respecting':
Upon this subject the four following propositions are laid down by Lord St. Leonards: 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, though they are distinct" (a) ; 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 are inconsistent " (b); 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 " (c) ; 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 " (d).
(a) Sug. 11th ed. 605.
(b) lb. p. 607.
(c) lb. p. 608.
(d) lb. p. 609 ; see Cray ford v. ft, (1G27) Cro. Car. 10G; Hughes v. net, (1637) ib. 495, where the covenants were for seisin notwithstanding any act, etc, and that the lands were of a stated value ; contra, where the covenants were that the lands were of a stated value, and should so continue, notwithstanding any act, etc. ; Lady Rich v. Lord R., (1685) Cro. El. 43; Young v. Main-cock, (1810) 7 C. B. 310; 18 L. J. C. P 193; Crossfield v. Morrison, (1849) 7C. B. 286; 18 L. J. C. P. 135.
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 (e). The second proposition (which together, or rather as connected, with the first, has been disputed (f)) is, perhaps, hardly accurate; for, though a prior general covenant will not, it appears, be restrained by a subsequent limited covenant having a different object (g), yet where two covenants relate to the same object, restrictive words in the second may, it seems, control the generality of the first (h). The third and fourth propositions seem to be unimpeachable.
And, of course, restrictive words occurring in one covenant may extend to another, if the grammatical connection of the two require, and no inconsistency would result from, such a construction (7) : "and the Court will endeavour to ascertain the intention of the parties from an attentive consideration of the whole deed, and construe the covenants either as independent or as restrictive of each other, according to such apparent intention " (k) : and Equity will relieve against general covenants entered into contrary to the intention of the parties (/).
Grammatical construction generally determines connection of covenants.
(e) See Nervin v. Munns, (1682) 3 Lev. 46; Browning v. Wright, (1799) 2 B. & P. 13; Foord v. Wilson, (1818) 2 J. B. Mo. 592 ; as controlled by Howell v. Richards, (1809) 11 Ea. 633; Stannard v. Forbes, (1837) 6 A. & E. 572.
(/) See 9 Jarm. Conv. 3rd ed. 383 ; 5 ib. 4th ed. 235.
(g) Barton v. Fitzgerald, (1812) 15 Ea. 530; Gainsford v. Griffith, (1667) 1 Saund. at p. 58 ; Smith v. Complon, (1832) 3 B. & Ad. 189.
(h) See Nind v. Marshall, (1819) 1 Br. & B. 319; but not necessarily, see Hesse v. Stevenson, (1803) 3 B. & P. 565; Saward v. Anstey, (1825) 10 J. B. Mo. 55; affirmed 4 L. J. (0. S.) K. B. 1 ; see also Martyn v. M'Namara, (1843) 4 D. & War. 411, where Sugden, C, appears to have considered that a general covenant with A. might be cut down by restrictive words in a covenant entered into upon the same subject-matter with B. upon the same instrument.
(i) Broughton v. Conway, (1565) Dy. 240; Feles v. Jervies, (1597) Dy. 240, n.; and see 6 A. & E. 587; Lady Rich v. Lord R., (1585) Cro. Eliz. 43.
(k) 1 Saund. 60, n. (I); and see generally as to the effect of qualifying words in one covenant only, Elphinstone on Deeds, Chap. 30, and cases there cited.
(l) Coldcot v. Sill, (1662) 1 Ch. Ca. 15 ; Feilder v. Studley, (1673) Finch, 90, cited by Lord Eldon, 2 B. & P. 26 ; and by Lord Alvanley, 3 ib. 57b.
Upon the death of a covenantee, or other person entitled to the benefit of covenants for title which run with the land, and have been broken in his lifetime, the right of action, so far as any actual damage has been sustained by him, belongs to his executors or administrators (m) ; but, except to the extent of such actual damage, the right to sue descends with the land, if freehold or copyhold, to the heir or devisee (n) ; or, if leasehold, to the executors or administrators ; or (if specifically bequeathed) to the legatee (after the assent of the personal representative to the bequest).