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Or by his . $ 52. Where a person conveyed an estate, and cov" Default.

venanted with the vendee for quiet enjoyment, withoué Howes v any eviction or interruption by the vendor, or any perBrushfield, 3 Eaft. R.491. fon claiming under him, or by, through, or with, his,

their, or any of their acts, means, default, or procurement, and a quit rent was payable out of the lands, which became due before the vendor came into posselfion, but was in arrear at the time of the sale, it was held to be a breach of the covenant; and Lord Ellenborough faid, that if it were in arrear in the vendor's lifetime, it was a consequence of law that it was by his default, that is, by his default in respect of the party with whom he covenanted, to leave the estate unincumbered.

CO

Ver

114.

Covenants for S 53. Where the title-deeds of an estate are retained
Production of
Title.Deeds. by the vendor, which frequently happens, either be.

cause they relate to a larger estate than that which is

fold, or for cther reasons, the purchaser is entitled to Fearne Id.

a covenant for the production of them. And this covenant, being real, will run with the land, and ex

tend to all future purchasers of it. But, if the deed, Allington, 1 Ab. Eq.165. containing such covenant, be not delivered to a future

purchaser, then he will be entiiled to a new covenant from his vendor for the production of the titledeeds.

Napper v.

What Cove

S 54. Where there is a defect in the title, the purnant where chaser has a right to covenants against all persons, the Title is defective. claiming a lawful title to the estate. And Mr. Butler .... 384 a. has justly observed, that, wlicre a purchaser consents

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to take a defective title, relying for his security on the vendor's covenant, this should be particularly mentioned to be the agreement of the parties : for, otherwise, as the defect was known, it may be contended, that the covenants for the title should not extend to warrant it against such particular defect.

Covenants.

S 55. Where a purchaser, whose title is secured by Remedies covenants of this kind, is evicted by any person claim- under thele ing under the vendor, or any of his ancestors, the pur. chaser may maintain an action at law upon the cove. nants, for the restoration of his purchase-money. And, where a defect is discovered in the title, which may be supplied by the vendor, he will be compelled, in equity, to do whatever is necessary to amend such defect,

S 56. Where a husband covenants that his wife shall 3 P. W. 189.

Note (B.) join with him in levying a fine, the Court of Chancery will decree the husband to do it ; because it must be presumed, that the husband has first obtained his wife's consent for that purpose : and the interest in such co.. venant has been taken to be an inheritance descending to the heir of the covenantee. But Mr. Cox observes, that if it can be made appear to have been impollible for the husband to procure the concurrence of his wife, it cannot be supposed that the court would de. cree an impossibility ; especially, if the husband offers to return all the money, with interest and costs, and to answer all the damages.

S 57. Where

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57. Where there is any fraud or concealment practised by the vendor, the purchaser may bring an action on the case, in the nature of an action of deceit. But Mr. Butler observes, that a judgment, obtained after the death of the vendor, in an action of this kind, can only charge his personal property as a simple contract debt, and will not, except under very particular circumstances, affect his real assets. A bill in Chancery will, therefore, in most cases, be found a better remedy : it will lead to a better discovery of the concealment, and the circumstances attending it; and may, in some cases, enable the court to create a trust in favour of the injured purchaser.

Treat. of Eq.
B. 1, c. 5. f. 8.

Nelf. Cha.

Rep. 118. - 2 Ab. Eq. 678. pl. i.

$ 58. Mr. Fonblanque observes, that the circumstance of a court of equity requiring the vendor, in such case, to be affected with such fraudulent concealment, raises a strong presumption, that, without proof of it, the purchaser could not have been relieved. And, in the case of Harding v. Nelthorpe, such proof was required, and an issue was directed, to ascertain whether the vendor did or did not know of the incumbrance, which affected the land, but to which his covenant did not extend.

$ 59. The court of chancery will not, however, compel the performance of a covenant for farther assurance, unless the transaction be free from all oba jection.

Jolinson v.

60. An heir sold the reversion of a house, in the Nutt. i Vern.

· lifetime of his father, at an under value; but, being 27.

only

only tenant in tail, he covenanted to make farther afsurance. Upon a bill in Chancery for a specific performance of this covenant, the court refused to interfere, and left the plaintiff to his remedy at law.

$ 61. If the express covenants for the title be not broken, the purchafer's money cannot be recovered back at law.

$ 62. An administrator, having found among the Bree v. Hol

i bech, Doug papers of the deceased a mortgage for 1,2001., assigned by it over to a stranger, in consideration of the said fum of 1,200 l., which was paid to him : and, in the deed of assignment, the administrator covenanted, that neither the deceased, nor the adminiitrator, had done any act to incumber the mortgaged estate.

The mortgage-deed turned out to have been forged; and, after six years had elapsed, the assignee brought an action of asumpsit against the administrator, for money had and received to the plaintiff's use. The defendant pleaded the general issue, and the statute of limitations. The plaintiff replied, and stated, that the recitals in the indenture of assignment were false, inas. much as there never was any indenture of mortgage; and that, by fraud and imposition, the plaintiff was induced to pay the said sum of 1,200 l. To this repl:cation, the defendant demurred generally.

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• Lord Mansfield.“ The basis of the whole argu“ ment is fraud ; and the question is, whether fraud ” is any where asserted in this replication. There

66 may

“ may be many cases, where the assertion of a false
6 fact, though unknown to be false to the party mak-
“ ing the assertion, will be fraudulent; as, in the case
“ of Sir Crisp Gascoyne, who insured a life, and af-
“ firmed it was as good a life as any in England, not
“ knowing whether it was or was not. There may
“ be cases too, which fraud will take out of the sta.
“ tute of limitations. But, here, every thing alleged
“ in the replication may be true, without any fraud
“6 on the part of the defendant. He is administrator
“ with the will annexed, who finds a mortgage deed
“ amongst the papers of his testator, without any ar-
“ rears of interest, and parts with it bona fide, as a
“ marketable commodity. If he had discovered the
“ forgery, and had then got rid of the deed as a true
“ security, the case would have been very different.
“ He did not covenant for the goodness of the title, but
“ only, that neither he, nor the testator, had incum-
“ bered the estate. It was incumbent on the plaintiff
“ to look to the goodness of it.”

Treat. of Eq. S 63. A court of equity proceeds, in cases of this Vol. 1. 364 n. 1

kind, upon the same principle as a court of law : for, unless there is fraud in concealing the defect in the title, the court will not interfere.

S 64. William Davy devised certain estates to his Pate, in fon, William Davy, for life, remainder to his first and Chan. aft Nov.1794. other sons in tail male, remainder to Sir Robert Lad

broke and Lyde Browne, their heirs and afligns for ever, as tenants in common; and gave and devised all

the

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