Or by his Default. Howes v $ 52. Where a perfon conveyed an eftate, and covenanted with the vendee for quiet enjoyment, without any eviction or interruption by the vendor, or any per3Eaft. 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 poffeffion, but was in arrear at the time of the fale, 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 confequence of law that it was by his default, that is, by his default in refpect of the party with whom he covenanted, to leave the estate unincumbered. Covenants for Fearne Id. 114. $ 53. Where the title-deeds of an estate are retained Title-Deeds. by the vendor, which frequently happens, either be cause they relate to a larger eftate than that which is fold, or for other reafons, the purchafer is entitled to a covenant for the production of them. And this covenant, being real, will run with the land, and extend to all future purchasers of it. But, if the deed, containing fuch covenant, be not delivered to a future purchafer, then he will be entitled to a new covenant from his vendor for the production of the titledeeds. Napper v. What Covenants where the Title is defective. 1 Inft. 384 a. n.i. S 54. Where there is a defect in the title, the purchafer has a right to covenants against all perfons, claiming a lawful title to the eftate. And Mr. Butler has justly observed, that, where a purchaser confents to o take a defective title, relying for his fecurity on the vendor's covenant, this fhould be particularly mentioned to be the agreement of the parties: for, otherwife, as the defect was known, it may be contended, that the covenants for the title fhould not extend to warrant it againft fuch particular defect. under thefe Covenants. $ 55. Where a purchafer, whofe title is fecured by Remedies covenants of this kind, is evicted by any perfon claiming under the vendor, or any of his ancestors, the purchafer may maintain an action at law upon the covenants, for the restoration of his purchase-money. And, where a defect is difcovered in the title, which may be fupplied by the vendor, he will be compelled, in equity, to do whatever is neceffary to amend fuch defect. § 56. Where a husband covenants that his wife fhall join with him in levying a fine, the Court of Chancery will decree the husband to do it; because it must be prefumed, that the husband has first obtained his wife's confent for that purpose: and the intereft in fuch covenant has been taken to be an inheritance defcending to the heir of the covenantee. But Mr. Cox obferves, that if it can be made appear to have been impoffible for the husband to procure the concurrence of his wife, it cannot be fuppofed that the court would decree an impoffibility; efpecially, if the husband offers to return all the money, with intereft and cofts, and to answer all the damages. 3 P. W. 189. Note (B.) I Inft. 384 a. n. I. Treat. of Eq. Nelf. Cha. Rep. 118. 2 Ab. Eq. 678. pl. i. Johnfon v. Nott. 1 Vern. 271. $ 57. Where there is any fraud or concealment practifed by the vendor, the purchafer may bring an action on the cafe, in the nature of an action of deceit. But Mr. Butler obferves, that a judgment, obtained after the death of the vendor, in an action of this kind, can only charge his perfonal property as a fimple contract debt, and will not, except under very particular circumflances, affect his real affets. A bill in Chancery will, therefore, in most cafes, 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 truft in favour of the injured purchaser. § 58. Mr. Fonblanque obferves, that the circumstance of a court of equity requiring the vendor, in fuch case, to be affected with fuch fraudulent concealment, raises a strong prefumption, that, without proof of it, the purchafer could not have been relieved. And, in the cafe of Harding v. Nelthorpe, fuch proof was required, and an issue was directed, to afcertain 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 affurance, unless the tranfaction be free from all objection. § 60. An heir fold the reverfion of a house, in the lifetime of his father, at an under value; but, being only only tenant in tail, he covenanted to make farther af furance. Upon a bill in Chancery for a specific performance of this covenant, the court refufed to interfere, and left the plaintiff to his remedy at law. § 61. If the exprefs covenants for the title be not broken, the purchafer's money cannot be recovered back at law. § 62. An adminiftrator, having found among the papers of the deceased a mortgage for 1,2001, affigned it over to a stranger, in confideration of the faid fum of 1,200 1., which was paid to him: and, in the deed of affignment, the adminiftrator covenanted, that neither the deceased, nor the administrator, had done any act to incumber the mortgaged estate. The mortgage-deed turned out to have been forged; and, after fix years had elapfed, the affignee brought an action of affumpfit against the administrator, for money had and received to the plaintiff's ufe. The defendant pleaded the general iffue, and the ftatute of limitations. The plaintiff replied, and stated, that the recitals in the indenture of affignment were falfe, inafmuch as there never was any indenture of mortgage; and that, by fraud and impofition, the plaintiff was induced to pay the faid fum of 1,200 l. To this repl cation, the defendant demurred generally. Lord Mansfield." The bafis of the whole argu"ment is fraud; and the question is, whether fraud "is any where afferted in this replication. There cc may Treat. of Eq. ઃઃ may be many cafes, where the affertion of a falle "fact, though unknown to be false to the party mak ing the affertion, will be fraudulent; as, in the cafe "of Sir Crifp Gafcoyne, who infured 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 cafes too, which fraud will take out of the statute of limitations. But, here, every thing alleged "in the replication may be true, without any fraud "on the part of the defendant. He is administrator "with the will annexed, who finds a mortgage deed "amongst the papers of his teftator, without any ar"rears of intereft, and parts with it bonâ fide, as a "marketable commodity. If he had discovered the forgery, and had then got rid of the deed as a true fecurity, the cafe would have been very different. "He did not covenant for the goodness of the title, but only, that neither he, nor the teftator, had incum"bered the eftate. It was incumbent on the plaintiff to look to the goodness of it." § 63. A court of equity proceeds, in cafes of this Vol. 1. 364. kind, upon the fame principle the fame principle as a court of law: for, unless there is fraud in concealing the defect in the title, the court will not interfere. Urmfton v. ift Nov.1794. $ 64. William Davy devifed certain eftates to his fon, William Davy, for life, remainder to his first and other fons in tail male, remainder to Sir Robert Ladbroke and Lyde Browne, their heirs and affigns for ever, as tenants in common; and gave and devised all the |