Cripps v. Read, 6 Term R. 606. Johnson v. Johnson, 3 Bos. & Pul. 162. Urmston v. 1794. MSS. 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." 88. But if the purchaser be evicted before any conveyance to him is executed, having paid the purchase money, may recover it back in an action for money had and received; even though the covenants in the intended conveyance do not extend to the title under which the estate was recovered. he 89. 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. 90. William Davy devised certain estates to his son Chan. 1 Nov. 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 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 conveyance 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; 3 Ves. Jun. 235. and the demurrer was allowed.. 91. 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 more effectual remedy; as it will lead to a better discovery of the concealment, and all the circumstances attending it; and may in some cases enable the Court Harding v. to create a trust in favour of the injured purchaser. And where the Court cannot satisfy itself of the fact, Nels. R. 118. an issue will be directed to try whether the vendor did know of the incumbrance, at the time of the sale. Johnson v. Nott, 1 Vern. 271. Prec. in Cha. 476. Covenants in assignments of leaseholds. Staines v. Morris, 1 Ves. & Beam. 8. 92. With respect to incumbrances, if they are discovered after the execution of the conveyance, the purchaser has the same remedies as in cases of eviction. 93. 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 all objection, otherwise the Court of Chancery will not compel the performance of a covenant for further as surance. 94. It is laid down by Lord Cowper that a covenant 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 assurance, the covenant depending on the nature of the conveyance, if that were void, the covenant which was only auxiliary, and went along with the estate, must be also void. 95. The usual covenants in assignments of leasehold estates, are, that the lease is valid in law, not forfeited, surrendered, or determined, or become void or voidable; that the assignor has good right to assign; that the rent has been paid, and the covenants performed, up to the time of the assignment; for quiet enjoyment during the term; free from incumbrances, without any restriction; and for further assurance. 96. The assignee is also bound to covenant with the assignor, that he will pay the rent, and perform the covenants in future; and indemnify the assignor from payment and performance thereof; and the latter the covenant must be inserted, though the assignor, from his particular situation, is not bound to covenant for the title. 97. Where the title deeds of an estate are retained Covenants for by the vendor, which frequently happens, either be- title deeds. production of cause they relate to a larger estate than that which is sold, or for any other reason; the purchaser is entitled to a covenant from the vendor for the production of them, whenever it shall be necessary for the manifestation or support of the purchaser's title. And this covenant being real, will run with the land conveyed, and extends to all future purchasers of it. But if the Fearne's Post. deed containing such covenant be not delivered to a future purchaser, he will then be entitled to a new covenant from the vendor, for the production of the title deeds, 113. renewal of 98. Covenants for renewal have been frequently in- Covenants for serted in leases; and are of two kinds: namely, cove- leases. nants for granting another lease of the thing demised; and covenants for renewal, not only on the expiration or surrender of the original lease, but also on the expiration or surrender of all future leases made under such a covenant, which is usually called a covenant for perpetual renewal. Hitchcock, Ca. 6. 99. Bridges demised a mill, with the appurtenances, Bridges v. to Stapleton for twenty-one years; and covenanted 5 Bro. Pari. that if the lessee, his executors, administrators, or assigns, or any of them, should at any time thereafter, before the expiration of the term thereby demised, be minded to renew and take a further lease of the said premises, that then upon application made, at any time before the last six months of the said term, the lessor, his heirs or assigns, should grant such further lease as should by the lessee, his executors, administrators, or assigns, be desired, without any fine to be demanded therefore, and under the same rents and covenants only as in this lease. Upon a bill filed in the Court of Exchequer by an assignee of the lease, Furnival v. against the lessor, to compel him to grant a further lease under the same rents and covenants as in the first lease; the Court decreed a new lease, which was settled by the Lord Chief Baron, and contained a covenant to grant a further lease at the end of the new term. The lessor appealed from this decree to the House of Lords, insisting that it was erroneous; for that the covenant for a further lease, after the expiration of the new lease, was in the nature of a perpetuity upon the appellant's estate; and might, according to the decree, be demanded from time to time continually; which was contrary to the intent and meaning of the covenant in the first lease, and of the parties thereto. To which it was answered by the respondent, that the covenant entered into by the appellant to grant such further lease as should be demanded, under the same rent and covenants only as in the original lease, was the only foundation and encouragement which the parties had for expending so much money upon the demised premises as they had done, and accordingly it was the true intent and meaning of the covenant, that the lessee should be at liberty to renew as often as he should require. The decree was affirmed. 100. Mr. Crewe, the defendant's grandfather, made a lease to one Moor for three lives, with the following covenants :-" And the said Thomas Moor, for himself, &c. covenants, grants, and agrees to and with the said John Crewe, &c. that he the said Tho. Moor, &c. shall at the death of any of the lives before mentioned, which shall first happen, pay unto the said J. Crewe, his heirs or assigns, within twelve months next ensuing such death, 687. in the name of a fine, to add one other life to the remaining two lives, and so to continue the renewing this lease or leases, paying as aforesaid to the said J. Crewe, his heirs or assigns, 681. for every life so added or renewed from time to |