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counsel for the grantors, Mr. Weldon, together with Mr. Lane, objected to the draft, and gave their opinion that Mrs. Webb was not bound to enter into any covenants for the title. The draft was again referred to Mr. Booth, who supported his former opinion; and contended that where a person devised an estate to trustees, upon trust to sell and pay over the money to J. S., and the trustees contracted with a purchaser for the sale of the estate; there J. S., the devisee of the money, who had the real beneficial interest in the estate, must covenant for the title: and that this was every day's practice. The Master, to whom the draft of the conveyance was referred, reported, that Mrs. Webb was not bound to enter into covenants for the title.

Upon exceptions being taken to this report, Lord Hardwicke made the following order :

"Let the exception be allowed, and let the Master alter the draft of the conveyance, by inserting therein proper covenants from Mrs. Webb, against her own acts, and the acts of Mr. Thomas Lloyd her devisor, as to so much as she would be benefited by the estate."

Dss. of Rut

8 Bro. Parl.

87. In a modern case, where an estate was devised Wakeman v. to trustees, upon trust to sell the same for payment land, 3 Ves. of debts, and the interest of the residue of the money 233. 504. was given to several persons for life, and after their Ca. 145. deaths, the principal to go totheir children; it was held that the purchaser was not entitled to covenants for the title from the persons who took life estates; but still it may be laid down, that where the money to arise from the sale of an estate, is absolutely given to two or more persons, they are bound to enter into the usual covenants for the title.

88. Where all the money to arise from the sale of an estate is to be applied in payment of debts, a

Remedies

under these Covenants.

Bree v.
Holbeach,
Doug. 654.

purchaser can only require a covenant from the trustees or devisees, that they have done no act to incumber. It is the same where a purchase is made from the assignees of a bankrupt.

89. With respect to the remedies to which purchasers are entitled under these covenants, they are of three kinds: 1°. Where the estate is evicted. 2°. Where it is incumbered. 3o. Where the defect in the title may be supplied by some further act. As to the first, where a purchaser is evicted by any person claiming under the vendor, or any of those against whose acts the covenants extend, he may maintain an action at law for the restoration of his money. But if the express covenants be not broken, he cannot get back his money.

90. An administrator having found, among the papers of the deceased, a mortgage for 12007., assigned it over to a stranger, in consideration of the said sum of 12007, which was paid to him; and in the deed of assignment the administrator covenanted that neither the deceased, nor himself, 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 assumpsit 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, inasmuch as there never was any indenture of mortgage, and that by fraud and imposition the plaintiff was induced to pay the said sum of 12001. To this replication the defendant demurred generally.

Lord Mansfield." The basis of the whole argument is fraud, and the question is, whether fraud is any where asserted in this replication. There may

be many cases where the assertion of a false fact, though unknown to be false to the party making the assertion, will be fraudulent; as in the case of Sir Crisp Gascoyne, who insured a life, and affirmed 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 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 the mortgage deed amongst the papers of his testator, without any arrears 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 incumbered the estate. It was incumbent on the plaintiff to look to the goodness of it."

Read,

91. But if the purchaser be evicted before any con- Cripps v. veyance to him is executed, having paid the purchase 6 Term R. money, he may recover it back in an action for 606. money had and received; even though the covenants Johnson, in the intended conveyance do not extend to the 3 Bos. & Pull. title under which the estate was recovered.

92. A court of equity proceeds, in cases of this 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.

93. William Davy devised certain estates to his son William for life, remainder to his first and other sons in

tail male, remainder to Sir Robert Ladbroke and Lyde Browne, their heirs and assigns, as tenants in common; and devised all the residue of his real estate to his brother William Pate, his heirs and assigns for ever. Sir

Johnson v.

162.

v.

Urmston Pate, in 1794. MSS.

Chan. 1 Nov.

Robert Ladbroke died in the lifetime of the testator. William Davy, the son, entered on the estates, upon the death of his father, and died without issue; having devised his estates to John Minnyer, Robert Pate, and Thomas Butler, in trust to sell. William Pate, the residuary devisee in the will of William Davy, the father, devised his reversion expectant on the death of William Davy junior, to Robert Pate in fee. Barwell Browne, the heir of Lyde Browne, and Robert Pate, (who conceived himself, as residuary legatee in the will of William Davy, the father, to be entitled to the moiety devised to Sir Robert Ladbroke, and which became lapsed by his death in the lifetime of the testator), sold the estate for a valuable consideration to Urmston the plaintiff. The convey. ance recited the will of William Davy the father, the death of Sir Robert Ladbroke in the lifetime of the testator, the death of William Davy the son without issue; and that William Pate, the residuary devisee in the will of William Davy the father, had made his will, reciting, that in case of the death of William Davy the son, without issue, he would become entitled to the moiety of the estate devised to Sir Robert Ladbroke, and had, by his said will, given the reversion of his said moiety to his son (the defendant), in fee. And there was inserted in it a covenant, that notwithstanding any act done by the defendant or his ancestors, or any person claiming under him or them, he was seised in fee of the premises. The purchaser afterwards discovering that Robert Pate had no title to the moiety conveyed to him, it having descended to William Davy the son, as heir to his father, and belonging to his devisees; filed a bill in Chancery against Pate, praying that his purchase money might be restored to him. The defendant demurred to

the bill for want of equity; and the demurrer was 3 Ves. Jun. allowed.

235.

94. Where any fraud or concealment is practised by the vendor, by which the estate is evicted, though by a person not claiming under the vendor, or any of those against whose acts the covenants for the title extend, the purchaser may bring an action on the case, in the nature of an action of deceit, against him but a bill in Chancery will in most cases be found a better remedy; as 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. And where the Court cannot satisfy itself of the fact, Harding v. an issue will be directed to try whether the vendor did Nelthorpe, know of the incumbrance, at the time of the sale.

95. With respect to incumbrances, if any are discovered after the execution of the conveyance, the purchaser has the same remedies as in cases of eviction.

Nels. 118.

96. With respect to defects in the title which may be supplied by the vendor; where any such are discovered, after the execution of the conveyance, the vendor may be compelled in equity to do whatever is necessary to supply such defect, by a bill for a specific performance of the covenant for further assurance. The transaction must however be free from Johnson all objection, otherwise the Court of Chancery will v. Nott, not compel the performance of a covenant for further

assurance.

1 Vern. 271.

476.

97. It is laid down by Lord Cowper that a cove- Prec. in Cha. nant for further assurance will not help the case, where the original conveyance itself is void, so that if a man covenanted to stand seised to the use of a mere stranger, and covenanted to make further as

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