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.
Whether real or personal representative of covenantee may sue for breach.
The customary heir of a copyholder in fee might, it is conceived, sue upon the covenants before admittance: "being a complete tenant against all persons but the lord " (o) : but this probably would not be so where the admittance is in terms merely for the life of the tenant, with a mere customary right of renewal in the heir (p).
Customary heir may sue before admittance, semble.
Where the title is defective, and an action is brought upon the covenants before eviction, there seems to be no general rule by which the amount of damages should be determined. "Where the purchaser has acquired an indefeasible estate, but of a less extent than that which he contracted for, the amount (if he choose to retain the estate) would seem to be, the difference between the purchase-money paid for the property, and its value as conveyed - in other words, the difference between the value of the property as purported to be conveyed and that which the vendor had power to convey (q), and also costs reasonably and properly incurred in litigation consequent on the defect (r) ; as if, for instance, the land prove to be copyhold instead of freehold (s). Lord St. Leonards seems to have considered (t) that where the title is defective within the covenant, the purchaser, before eviction, may offer to re-convey the estate and claim the entire purchase-money; hut no authority is cited for this proposition, which appears to be untenable; the extent of the damnification being the difference between that which the covenantee has and that which he ought to have: but possibly such an action might lie, if the alleged breach consisted in a refusal by the defendant to perfect the title (u) ; and if the defect in title is so complete that nothing passes from the grantor to the grantee, it is conceived that as the grantee has lost no land by the breach of covenant, but only the consideration which he paid for it, the measure of damages is the amount of the consideration with interest (x).
Damages, what amount of, recoverable where no eviction.
(m] Lucy v. Lexington, (1671) 2 Lev. 2G ; Ricketts v. Weaver, (1844 13 L. J. Ex. 195.
(n) Kingdon v. Nottle, (1815) 4 M. & S. 53; King v. Janes, (1814) 5 Taun. 418 ; Jones v. King, (1815) 4 M. & S. 188 ; Turner v. Moon, 1901, 2 Ch. 825, 829 ; 70 L. J. Ch. 822 ; and consider now effect of
L. T. Act, 1897.
(o) Scriven, 7th ed. 127.
(p) See Doc v. Thompson, (1849) 13 Q. B. 670; 18 L. J. Q. B. 326.
(q) Turner v. Moon, 1901, 2 Ch. 825, 829 ; 70 L. J. Ch. 822, case of undisclosed right of way.
(q) Sutton v. Baillic, (1891) 65 L. T. 528.
Where a reversionary lease was granted to a lessee in possession by a tenant for life who had no power to make such a demise, the lessee was held entitled, under the covenant for quiet enjoyment, to recover, not merely the premium paid and the costs of the void lease, but also the difference between the value of the lease which was professed to be granted, and that of a lease which he actually obtained from the reversioners for a shorter term and at an increased rent (y).
(s) Gray v. Briscoe, (1607) Noy, 142; Bee Wace v.Bickerton, (1851) 3DeG.& S. 751; 19 L. J. Ch. 254; and Guthrie v. Pugsley, (1815) 12 Johnson's Rep. 126, a case in New York, where, on a similar covenant, the grantors having in fact the fee in two-sixths only of the premises, and a life estate in the remainder, it was held that the damages were to be assessed upon the principle that the title to four-sixths had failed, except as to the life estate of the vendor therein, the value of which must therefore be deducted, and no interest allowed during the existence of the life estate.
(t) Sug. 14th ed. 611.
(u) See 5 Taun. 428.
(x) See Bickford v. Page, (1807) 2 Mass. 455, 461. The amount stated in the deed as the consideration is conclusive ; see Mayne on Damages, 7th ed. 230.
(y) Lock y. Furze, (1866) L. R. 1 C. P. 441 ; 35 L. J. C. P. 141, in the Exch. Ch. ; see comments in judgment on Flureau v. Thornhill, (1776) 2 TV. Bl. 1078 ; Hopkins v. Grazebrook, (1826) 6 B. & C. 31 ; Sikes v. Wild, (1863) 4 B. & S. 421; 30 L. J. Q. B. 325; 32 L. J. Q. B. 375 ; and see now Bain v. Fothergill, (1874) L. R. 7 H. L. 158 ; 43 L. J. Ex. 243; Bay
Where there has been actual eviction, the purchaser may, under the name of damages, recover interest or mesne profits for the time during which he has been out of possession (s) ; also consequential damages (a). Upon the same principle, he would be entitled to interest upon any charge on the estate which he has been compelled to satisfy: it seems, however, to be doubtful whether he could recover it for such period as he had, without reasonable excuse, neglected to sue upon the covenant (b).
What amount of, recoverable where there is eviction.
So if he, without communicating with the vendor, compromise an adverse claim or suit, he may recover the amount paid by him, and his costs of suit as between attorney and client, subject only to the right of the vendor to show, either that the claim was wholly, or in part, unfounded, or that better terms might have been procured (c) ; and it seems that, if the vendor, upon notice given to him of a suit within the terms of his covenant for quiet enjoyment, refuse to defend it, he could not, as against the purchaser, dispute the validity of the claim (d) : it does not, however, appear that the latter could safely defend an action without giving notice to the vendor or the party liable upon his covenants (e), and obtaining his directions, if the defence is apparently hopeless (/) ; and if he disregards the notice, and the purchaser, acting on his own judgment, defends the action and has to pay damages and costs, the latter has been held entitled to recover in an action on the covenant the amount so paid, and also the expenses which he had himself incurred in defending the action (g).