Moneys paid by way of compromise, arid costs, when recoverable.

V. Singleton, 1899, 2 Ch. 320 ; G8 L. J. Ch. 593. See further on this subject, inf. pp. 991 et seq.

(z) King V. Jones, (1814) 5 Taun. 418 at p. 422.

(a) Grosvenor Hotel Co. v. Hamilton, 1891, 2 Q. B. 83G; G3 L. J. Q. B. 661.

(b) Anderton v. Arrowsmith, (1839) 2 B. & D. 408.

(c) Smith v. Compton, (1832) 3 B. & Ad. 407.

(d) See Duffield v. Scott, (1789) 3 T. R. at p. 377; Sutton v. Baillie, (1891) 65 L. T. 528.

(e) See Smith v. Compton, (1832) 3 B. & Ad. 408; Lewis v. Peake, (l816) 7 Taun. 153; and see Smith v. Howell, (1851) 6 Ex. 730; 20 L. J. Ex. 377.

(f) See Gillett v. Rippon, (1829) 1 M. & M. 40G; Short v. Kallovcay, (1839) 11 A. & E. 28.

(g) Bolph v. Crouch, (1867) L. R. 3

It has been considered doubtful whether, in any ease, the purchaser could recover the expenses of improvements, though stated as special damages in his declaration (h) : but a difference has been taken between improvements, consisting in additions to the property, - e.g., expensive buildings erected upon the land, - and mere improvements of the land itself (/). A distinction may also, it is conceived, be made between the amount recoverable in an action on the covenants for seisin or right to convey - which in their terms refer merely to things as existing at the date of the conveyance, and if broken at all are broken immediately - and the amount recoverable in an action on the covenant for quiet enjoyment, which is, in its very terms, prospective : in the latter case, it seems difficult to understand why the full value of the property as existing at the time of the breach of covenant, should not be recoverable; especially when (k) the property has been professedly bought for the purpose of being improved by building on or otherwise. In one case, it was laid down that the measure of damages in the event of eviction includes the amount expended in converting the land to the purpose for which it was bought; and that the purchaser may recover, not merely the value of the land, but also the amount spent in the erection of houses subsequent to his conveyance (/).

Whether the value of improvements.

A mortgagee cannot, in Equity, without the consent of the mortgagor, release covenants for title entered into by the vendor from whom the mortgagor purchased (m).

Mortgagee cannot release

Ex. 44 ; 37 L. J. Ex. 8 ; and see cases there cited.

(h) Lewis v. Campbell, (1819) 3 J. B. Mo. 35 ; 8 Taun. 715.

(i) See 3 J. B. Mo. 52, 54, 57; and see Bunny v. Hopkinson, (1859) 27 Beav. 565 ; 29 L. J. Ch. 93 ; and inf. p. 991.

{k) See Hadley v. Baxendale, (1854) 9 Ex. 341, 354; 23 L. J. Ex. 179; and see Hochster v. Be Latow, (1853) 2 E. & B. 678 ; 22 L. J. Q. B. 455 ; Walker v.Broadhurst, (1853) 21 L. T. (0. S.) 68 ; Fletchers. Tayleur, (1855) 17 01 B. 21; 25 L. J. C. P. 65 ; Cory v. Thames Shipbuilding Co., (1868) L. R. 3 Q. B. 181 ; 37 L. J. Q. B. 68.

(1) Bunny v. Hopkinson, (1859) 27 Beav. 565 ; 29 L. J. Ch. 93 ; and see and consider Duckworth v. Ewart, (1864) 10 Jur. N. S. 214, and the judgment of Blackburn, J. ; Rolph v. Crouch, (1867) L. R. 3 Ex. 44 ; 37 L. J. Ex. 8, where the grantee, a florist, recovered the value of a conservatory which he had built ; and in America; Hale v. City of New Orleans, 18 Louisiana, 321, where costs of paving in front of building lots were recovered.

If the covenantor died before the 16th July, 1830, when the Debts Recovery Act, 1830, came into operation, no action for a breach of covenants for title, or of any other covenant, would lie against his devisee (n); whether the breach occurred before (o) or after the decease : but if the covenant had been for payment of a sum by way of liquidated damages, and "heirs " were named in the covenant, the devisee would have been liable, jointly with the heir, in an action of debt, in respect of a breach occurring in the lifetime of the covenantor (p) ; though, if there were no heir, no action would have lain against the devisee alone (q). The heir, if named in the covenant, is liable to the amount of descended assets, whether the breach occur before or after the death of the covenantor (r).

Covenants as against mortgagor.

Formerly no action of covenant against devisee.

Under the Debts Recovery Act, 1830 (s), devisees are, to the extent of the devised assets, rendered liable to be sued upon the covenants of their testators, jointly with the heir taking assets by descent, or solely if there be no such heir.

Alteration effected by 1 Will. 4, c. 47.

And it has been held (t), that damages upon covenants for title, in which the heir was named, for breaches happening after the covenantor's decease, will, even as against the devisee, be considered as within the meaning of a testamentary charge of debts: and it seems that a claimant for unliquidated damages in respect of a breach of covenant may himself institute an action for the administration of the covenantor's estate (u) ; but the devisee, or (it is conceived) the heir, in an administration action, is not bound by the result of proceedings by the covenantee against the personal representatives of the covenantor; but may have the question determined in an action to which he is himself a party (x) : nor can interest be claimed prior to the amount of damages being so determined : but where devisees, having insisted on this right, were unsuccessful in the action, the covenantee was allowed the amount of the damages assessed upon the trial, his costs of defending the ejectment upon which he had been evicted, and of an action brought by him against the personal representatives of the covenantor, and by the result of which the devisees had refused to be bound, of the action to which the devisees were parties, and of the suit in Equity, and also interest on the damages and costs, to be computed from the time when the amount was ascertained and judgment entered up in the action against the devisees (y).

Damages for breach of covenant, "when claimable as debt in administration suit.

Thornton v. Court, (1853) 3 D. M. & G. 293.

Wilson v. Knubley, (180G) 7 Ea. 128 ; and see Dilkes v. Broad-mead, (1861) 7 Jur. N. S. 56; 30 L. J. Ch. 268.

(o) s. c

(p) See Jenkins v. Briant, (1834) 6 Si. 603, 607 ; 3 L. J. N. 8. Ch. 1G9 ; Coope v. Cresncell, (186G) 2 Ch.

112; 3G L. J. Ch. 114.

(q) Bunting v. Sheldrake, (1841) 9 M. & W. 256.

(r) See Shop. T. 177.

(s) See ss. 2 - 4, 8 ; Carson, R. P. Stats. (1902) p. 388 el seq.

(0 Morse v. Tucker, (1846) 5 Ha. 79 ; 15 L. J. N. S. Ch. 162 ; Ber-mingham v. Burke, (1845) 2 J. & L. 699.

A remainderman has no equitable claim upon damages recovered by the tenant for life upon breach of covenants for title (z) ; as he himself can bring an action for the injury (if any) sustained by him as owner of the reversion.

No apportionment of damages in favour of remainderman.

A vendor selling, at a great undervalue, an estate with a title which proved bad, has been relieved in Equity against an action on the covenants for title, upon the terms of his refunding the price and interest and being charged with the mesne profits (a) ; but the contract is described as a "catching bargain " on the part of the purchaser; and it is conceived that no such relief would be afforded where the lowness of price could be referred to the known state of the title.

Covenants relieved against in Equity.

Where a bill was filed to set aside a conveyance as fraudulent, and the defendant, pendente lite, sold parts of the estate to parties who had no notice of the fraud, and died, and a supplemental bill was filed against his representatives and the purchasers; the latter, being evicted, were held entitled in the suit to repayment of the purchase-money by his representatives ; and, as against the plaintiff, to an allowance for lasting repairs and substantial improvements (b).

Conveyance set aside for fraud, on what terms as against innocent subpurchaser.

(u) Burch v. Coney, (1850) 14 Jur. 1009.

(x) Morse v. Tucker, sup. ; and see Cox v. King, (1846) 9 Beav. 530; Norman v. 8tiby, (1846) 9 Beav.

560

(y) Morse v. Tucker, sup.

(z) Noble v. Cass, (1828) 2 Si. 343.

(a) Zouch v. Swaine, (1685) 1 Vern. 320.

The rights arising under a vendor's covenants (other than covenants for title), appear to be subject to the same rules as have been already considered with reference to a purchaser's covenants (c).

Purchaser's remedies on vendor's covenants other than for title.

Where the conveyance contains covenants by the purchaser, his non-execution of the deed is not a defence to an action by him for breach of the vendor's covenants (d).

Need not execute conveyance before suing.