The Master of the Rolls faid, he was clearly of opi nion, that this covenant was a contract for a valuable confideration affecting the land, and would affect the heir.

And, by the decree, it was decla: ed, that the covenant in the mortgage deed bound the land de scended to the defendant.

ftrained to

the Acts of

§ 46. Covenants for the title have been reftrained Ufually re for upwards of a century to the acts of the vendor and his ancestors, and of all perfons claiming under them: the Vendor. and, although where covenants are feveral and of dif tinct natures, it has been held, that reftrictive words annexed to one of the covenants, will not be applied to the other covenants; yet, where all the covenants have the fame object, and reftrictive words are inferted in the first of them, they will be conftrued fo as to extend to all the others.

§ 47. In a conveyance of an eftate in fee, the vendor, after warranting the lands to the vendee and his heirs, against himself and his heirs, covenanted that, notwithstanding any act done by him to the contrary, he was feised in fee, &c. and that he had good right, full power, and lawful authority, to convey and affure the same to the vendee, and his heirs and affigns, in manner aforefaid. The vendee was evicted by a perfon, claiming under a title paramount to that of the vendor. An action of covenant was brought by the vendee against the representatives of the vendor. And it was contended on the part of the plaintiff, that the words "good right, full power, &c." extended to all perfons whatever, and, confequently, that the vendee was enVOL. IV.

G

titled

Gainsford v. Griffith,

I Saund. 58.

Pofth. Works,

10.

titled to recover his purchase-money. But it was determined, that these words were either a part of the preceding special covenants, or, if not, that they were qualified by all the other special covenants, which reftrained the covenants to the acts of the vendor and his heirs, and those claiming under him.

§ 48. Where the vendor has himself purchased the eftate, the covenants are restrained to his own acts. The principle of this doctrine is thus ably stated by Mr. Fearne :

Regularly, a vendor who purchafes lands himself, "with proper covenants from thofe who convey to "him, cannot reasonably be required to covenant fur"ther than against himself, and thofe claiming under “him. This is a practice founded in reafon, where "the vendee obtains the full benefit of all the cove"nants in the conveyance to the vendor, to the fame "extent as his vendor had them, by obtaining the

66

poffeffion of the deeds containing those covenants. "When the vendor has parted with his means of "claim or remedy against his grantor, for breach of "his covenants, and transferred them to the pur"chafer, by delivery of the deeds, and fuch vendee "comes into the vendor's place in that refpect, by the

acquifition of fuch deeds, it would be unreafonable "that the vendor fhould make himself liable for any fuch breach. He, by departing with the means of

remedy or compenfation, must be understood to "have discharged himself from, and the vendee, by 66. accepting thofe means, to have taken upon himself

"the

the peril or risk of fuch breach, and the duty of enforcing its remedy or compenfation."

S 49. There are fome exceptions to this rule: for, where the title-deeds are not delivered to the vendee, the covenants should extend to the acts of the perfon, from whom the vendor purchased the eftate. Thus, Mr. Fearne, in the opinion of which, a part has been transcribed in the laft fection, proceeds in these words: "But this principle, I think, does not apply to those "cafes where the vendor does not depart with, nor "the vendee acquire, the deed containing the cove"nants for the title, against the acts of fuch grantors. "Whilft the vendor retains in his own hands the im

mediate means of indemnity, which he thought proper to require of his grantor, it seems but rea"fonable that he fhould engage for the like indemnity 66 to his own vendee, and rely upon the indemnity he "has obtained for his own counter fecurity. It is not, "I think, fufficient to fay, that the covenant to pro"duce his purchase-deeds will entitle the vendee to "the benefit thereof when produced. Such a covenant "cannot infure the production of them, which may be

prevented by accidents, for which the vendor, in "whofe cuftody the deeds are, ought to be the fufferer, " rather than the vendee; who, by not having fuch

poffeffion, could not in any degree be acceflary to "the occafion of their lofs, or by any means or care "have prevented it. There feems more reafon, on "the other fide, to fay, it is fufficient for the vendor, "that, when called upon by the covenants entered "into by him to the vendee for enjoyment, &c. he

Who are held to claim

through the Vendor.

"has his remedy over to the fame extent upon his

66

grantors, of which, as he retains the means in his "cuftody, he is bound to look to the prefervation of "those means, and liable to the refort to, and due "enforcement of them, and to bear the confequence "of their lofs.

"Upon the whole, therefore, the prefent cafe does "not appear to me to fall within the general rule, "where the vendee acquires the cuftody or poffeffion "of the vendor's purchase-deeds; and that it is but "reasonable that a vendor, retaining in his own cuf"tody the only means of indemnity against the acts "of his grantors, fhould engage to indemnify his "vendee to the like extent. He cannot, I think,

66

fairly object to his vendee's requiring an indemnity

against the acts of the fame perfons, and to the "fame extent, as he himfelf required; nor, whilst "he retains the means of enforcing fuch indemnity,

deny his reliance upon, or refuse to subject himself "to, a refort to thofe means. Withholding his own "indemnity from the poffeffion of the vendee, it is "but fair he fhould give him the poffeffion of an "equivalent one."

§ 50. With refpect to the perfons who may be faid to claim by or through the vendor, and to whofe acts all modern covenants extend, it was determined by the Court of King's Bench, in a modern cafe, that a perfon, whose title was derived under a deed of revoca tion and appointment of new uses, must be con

fidered

fidered as a perfon

appointor.

claiming by or through the

§ 51. Sir John and Lady Astley levied a fine of Lady Astley's estate, to the use of Sir John for life, remainder over, with power to Sir John to make leases, with a joint power of revocation. They afterwards revoked the ufes, and appointed new ones, to Lady Aftley for life, remainder over; remainder to Lady Tankerville. Sir John Aftley afterwards made a leafe not warranted by his power, and covenanted that the leffee should enjoy the premises without any interruption from him, or any perfon claiming under him. When Lord Tankerville's estate became vefted in poffeffion, he took advantage of the defect in the leafe, and evicted the leffee, who brought his action of covenant against Sir John Aftley's executors.

Hurd v.

Fletcher,

Doug. 43.

The queftion was, whether Lord Tankerville claimed under Sir John Aftley, or only under Lady Aftley. Lord Mansfield faid, that justice was ftrongly with the plaintiff. That it was true, a fine and a deed to lead the uses, were to be confidered as one conveyance; but that, as Sir John Aftley was a neceffary party to the fecond declaration of ufes, by which the estate was limited to Lord Tankerville, his Lordfhip certainly claimed under him, within the meaning of this covenant. That, undoubtedly, Sir John had covenanted Vide Butler against his own acts, and that the new limitations were created by one of his acts.

v. Swinrerton, Palm. 339.