his purchase deeds will entitle the vendee to the benefit thereof, when produced. Such a covenant cannot ensure the production of them, which may be prevented by accidents, for which the vendor, in whose custody the deeds are, ought to be the sufferer, rather than the vendee; who, by not having such possession, could not in any degree be accessary to the occasion of their loss, or by any means or care have prevented it. There seems more reason on the other side to say, it is sufficient for the vendor that, when called upon by the covenants entered into by him to the vendee, for enjoyment, &c., he has his remedy over to the same extent, upon his grantors; of which, as he retains the means in his custody, he is bound to look to the preservation of those means, and liable to the resort to, and due enforcement of them, and to bear the consequence of their loss." 77. It would be impossible to lay down such a general rule on this subject, as would be applicable to the variety of cases that may occur in practice: but it follows, from the principles stated by Mr. Fearne, that where the vendor makes his title by descent, and his ancestors have been in possession of the estate for upwards of sixty years, he ought to covenant, not only against his own acts (which every vendor is bound to do), but also against the acts of all his ancestors. Where the estate has been purchased by an ancestor of the vendor within sixty years, who obtained proper covenants for the title from the person of whom he purchased, the vendor (giving up the title deeds) is only bound to covenant against the acts of such purchasing ancestor, and of those interme diate ancestors through whom the estate has been transmitted to him. And where the vendor has himself purchased the estate, and has obtained proper covenants for the title, he is only bound (giving up the title deeds) to covenant against his own acts; for in each of those cases the purchaser will, by the possession of the title deeds, have a regular series of covenants to protect his title, up to that period when the statutes of limitations will secure him against all claims whatever. 78. Where the vendor derives his title under a Lloyd v. Griffiths, will, or a voluntary conveyance, without any cove- infra. nants for the title, he is bound to covenant against the acts of the devisor or grantor. And where an estate is sold by persons who have no beneficial interest, such as trustees, or assignees of a bankrupt, they are only bound to covenant, that they have done no act to incumber the estate. But where there is a defect in the title, a purchaser has a right to covenants against all persons, claiming a lawful title to the estate. And where a purchaser consents 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 might be contended that the covenants for the title should not extend to warrant it against such particular defect. held to claim Palm. 339. Cro. Ja. 657. 79. With respect to the persons who are held to Who are claim through the vendor, or any of those against under the whose acts the vendor covenants, or by their default, Vendor, &c. it was resolved in 20 Ja. I. that if a person pur- Butler v, chases lands to himself and his wife, and to his heirs Swinnerton, in fee; and then makes a lease for years of them to J. S., and covenants that the lessee shall quietly hold and enjoy the premises, without the let of the lessor, his heirs or assigns, or of any other person, by or through his or their means, title, or procurement; and after the lessor dies, and his wife enters and dis Palm. 340. Anon. Godb. turbs the lessee; the covenant is broken. For her claim is by means of her husband. 80. In this case Mr. Justice Doddridge said, if a tenant in tail, to whom the estate tail was made, created an estate, and covenanted as before, and the issue ousted the covenantee, the covenant was broken; because being his purchase, the descent to his issue was by his means, though not by his title. But if the issue made an estate, and covenanted in the same manner, and the issue of the issue entered, it was not broken, because they were in not by his means, but by descent. So if there was a lessee for life, with a remainder over, and the lessee made an estate, and covenant, and died, and the person in remainder entered, the covenant was not broken, because he was in by the feoffor, not by the lessee. But if a person enfeoffed another, upon condition to be reenfeoffed for life, with remainder over, there it would be otherwise, because by his procurement and means. 81. A person made a lease for life, and covenanted for himself and his heirs, that he would save the lessee harmless from any claiming by, from, or under him, The lessor died, and his wife brought a writ of dower against the lessee, and recovered; the lessee brought an action of covenant against the heir. It was adjudged against the heir, because the wife claimed under her husband, who was the lessor. But if the woman had been mother of the lessor, who demanded dower, the action would not have lain against the heir; because she did not claim by, from, or under the lessor. And so it was adjudged. 82. A person whose title is derived under a deed of revocation and appointment of new uses, must be considered as a person claiming by or through the appointor. Fletcher, 83. Sir John and Lady Astley levied a fine of Lady Hurd v. Astley's estate, to the use of Sir John for life, re- Doug. 43. mainder over; with a power to Sir John to make leases, and a joint power of revocation. They afterwards revoked the uses, subsequent to the estate for life and power of leasing to Sir John Astley, and appointed new ones, to Lady Astley for life, with intermediate remainders, remainder to Lord Tankerville in tail. Sir John Astley afterwards made a lease, not warranted by his power; and covenanted that the lessee should enjoy the premises, without any interruption from him, or any person or persons claiming or to claim, by, from, or under him. When Lord Tankerville's estate came into possession, he took advantage of the defect in the lease, and evicted the lessee; who brought his action upon the covenant against the executors of Sir John Astley: they pleaded that Lord Tankerville, at the time of his entry into the premises, and evicting the plaintiff, did not claim, nor was entitled to the premises by, from, or under Sir John Astley. Lord Mansfield said, justice was strongly with the plaintiff: that as Sir John Astley was a necessary party to the second declaration of uses, by which the estate was limited to Lord Tankerville, his Lordship certainly claimed under him, within the meaning of this covenant. That undoubtedly Sir John had covenanted against his own acts, and the new limitations were created by one of his acts. Judgment was given for the plaintiff. 84. Where a person conveyed an estate, and cove- Howes v. nanted with the vendee for quiet enjoyment, with- Brushfield, out any eviction or interruption by the vendor, or 3 East, 491. Who are bound to the Title. any person 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 possession, but was in arrear at the time of the sale; it was held to be a breach of the covenant. And Lord Ellenborough said, if it were in arrear in the vendor's lifetime, it was a consequence of law that it was by his default, in respect of the party with whom he covenanted to leave the estate unincumbered. 85. All persons who convey lands, in their own covenant for right, and for a valuable consideration, are bound to enter into the usual covenants for the title. And when the practice of conveying or devising lands to trustees, upon trust to sell, became frequent, it was laid down as a rule among conveyancers, that the persons entitled to the money to arise from such sale, were bound to enter into the usual covenants for the title. For as they had the beneficial interest in the land, they ought to be considered in equity as the Lloyd v. owners. 86. T. Lloyd devised certain estates in the Isle of Anglesea, and county of Caernarvon, to trustees; upon trust, out of the rents and profits thereof, or selling or mortgaging the same, to raise such sums as should be sufficient to discharge a mortgage affecting an estate which the testator had settled by deed on Mrs. Hester Webb, as also all his just debts. Upon a bill for carrying the trusts of the will into execution, the estates in Anglesea and Caernarvon were sold for 27,000l. and a draft of the conveyance was prepared by Mr. Booth, as counsel for the purchaser, to which Mrs. Webb was a party, and made to enter into the usual covenants for the title. The 1 |