Chap. XIV. had it proceeded in the usual form, "or been party or

66 party or privy to."

As to covenants against known defects.

privy to."(k)[3]

It seems doubtful whether covenants for title would be held to extend to a defect known to the purchaser at the time of their being entered into :() and it has been sug[*370] gested(m) *that such a defect should be particularly specified, and that, unless it be apparent on the face of the conveyance, the covenant should be entered into by a separate instrument; if, however, the defect be not so ap parent, it is conceived that a memorandum, signed by the covenantor, and admitting that the defect was known and intended to be provided for by the covenants, would be sufficient for, as the covenantor, seeking to escape the general terms of the covenant, must then by evidence dehors the deed, show that the covenantee had notice of the

(k) See 6 B. & C. 303.

(1) See Butler's note to Co. Litt. 384. a.

(m) Ibid.; Sug. 702; and 9 Jarm. by S. 381.

[3] The latter words are not supplied by the former; for the words, "permitting and suffering" do not bear the same meaning as "knowing of, and being privy to:" the meaning of the former is, that the covenantor has not concurred in any act over which he had control; they apply only to that which he could prevent; and such a covenant extends to such permissive acts only as have, through the permission, an operative effect in charging the estate. Therefore, where, as in the case cited in the text, a mere trustee, to bar dower, (the purchaser taking the fee, subject to his interposed estate,) joined with the purchaser in making a mortgage, having previously concurred with him in another conveyance, it was of course held that the latter conveyance was a breach of his covenant, that he had done no act to incumber the estate, and the court would not look to the nature of his estate, or the trust engrafted on it; but, it was held that he was not responsible for the concurrence of the purchaser in the same deed, although he had covenanted that he had not permitted or suffered any act whereby any incumbrance was created. The common words, that he had not been party or privy to, would have given a remedy under a covenant; for, of course, he was party, and therefore privy to the conveyance, although the purchaser might have conveyed without him. It was pleaded that the trustee consented to the execution of the incumbrance, by the purchaser; and, it was suggested that perhaps the incumbrancer might have refused the conveyance, unless it were made with the consent of the defendant. But the court said they could not raise that point, inasmuch as the plea did not allege that the consent of the covenantor was an ingredient in the transaction necessary to the acceptance of the conveyance. See 2 Sug. on Vend. pp. 345, 346.

defect, so the covenantee might similarly show that the Chap. XIV. defect, though known, was not intended to be excepted:(n) but the defect, if apparent on the conveyance, should be specified in the covenants.

further assu

acts not com

The ordinary covenant to do all "reasonable" acts for Covenant for further assurance, or all such acts, &c., as the purchaser rance-what shall reasonably require, is not broken by a refusal to do an prised in. unnecessary act;(o)[1] or by a refusal occasioned by the act of God; e. g., the insanity,(p) death, or severe illness of the party whose further assurance is required ;(9) or by a refusal to give a bond for quiet enjoyment;(r) or, according to the general opinion, a covenant for production of title deeds;(s) or, perhaps, to enter into fresh covenants for title.(t)[2]

comprised

[*371]

But such covenant will be broken by a refusal to con- What are vey any interest acquired in the estate, even by purchase for valuable consideration ;(u) or to execute a duplicate of the conveyance, if the original has been burnt, (v) or (semble) handed over to a sub-purchaser of part of the

(n) See 1 Sim. & Stu. 445.

(0) Warn v. Bickford, 9 Pri. 43.

(p) Pet and Cally's case, 1 Leon. 304.

(9) See Nash v. Aston, Sir T. Jones, R. 195; and Anon. Moore, 124, where sickness was held a valid reason for a married woman not levying a fine, and the court agreed that the case would be the same, "si la feme

soit grosement enseint sic ut ne poit traveller."

(r) Staynroyde v. Locock, Cro. Jac. 115.

(s) See Hallett v. Middleton, 1 Russ. 243; Sug. 461.

(t) Coles v. Kinder, Cro. Jac. 571, but the point is not clear; see Sug. 769; and 9 Jarm. Conv. by S. 401, n.

(u) Taylor v. Debar, 1 Ch. Ca. 274. (v) Sug. 460.

[1] A covenant to do all reasonable acts, means such acts as the law requires; and, if it be an unnecessary act which is called for, it is not a reasonable act, or one which would be required by law.

[2] And it was held in the last case cited above, that an agreement by a seller to convey the estate by such reasonable assurance as by the purchaser should be advised and required, did not authorize the purchaser to require a conveyance by common covenants against incumbrances by the seller, and for further assurance, because the agreement was not to make the assurance with reasonable covenants.

Chap. XIV. estate (w) but, in such cases the conveyance should bear an indorsement expressing that it is a duplicate.(.r)

Time allow. ed to party required to

ther assu

rance.

The party called upon to execute the further assurance execute fur. may claim a reasonable time in which to procure professional assistance ;(y) and, according to modern practice, which the courts would doubtless recognize, a draft of the proposed assurance is furnished to him, that he may submit it to his legal advisers.(~)

Covenants

for title, how restricted.

Only by clearly expressed in tention.

Covenants for title, how classified.

A vendor's covenants for title are, as we have seen, generally limited to the acts of himself, his ancestors and testators, (if he have taken the estate otherwise than by purchase,) and persons claiming by, through, under or in trust for him or them respectively; it, however, frequently happens either that some of the covenants are general and others limited, or that the limited covenants are not consistent in their restrictions; in such cases questions arise as to how far the restrictions in one covenant affect another.

A covenant, general in terms will be so construed, unless a contrary intention clearly appear;(a)[1] this, however, may be evidenced by any part of the instrument.(b)

Before considering the effect of restrictive words in the covenants themselves, we may remark, that the five usual covenants may be divided into three classes, having distinct objects; viz, first, the covenants for seisin and right to convey, which are strictly covenants for title; second[*372] ly, the covenants for quiet enjoyment, and that free from

incumbrances, (not a covenant that the estate is free from incumbrances, but merely that there shall be no disturbance by incumbrancers;) and thirdly, the covenant for further assurance: and that the first class may be broken without there being any breach of the second or third; for the purchaser, although not acquiring a marketable () Napper v. Lord Allington, 1 Eq. Ca. Ab. 166.

(r) Ibid.

(1) Bennet's case, Cro. Eliz. 9.

(-) See Sug. 769.

(a) See Sug. 755.

(b) See 2 Bos. & P. 22, 25.

[1] See Whallon v. Kauffman, 19 Johns. Rep. 97; Jackson v. Stevens, 16 Johns. Rep. 110.

title, may be undisturbed in the possession, and may Chap. XIV. never require any further assurance, or may obtain what he does require: also that, if either of the second class be broken (unless it be so worded as to extend to wrongful disturbances,) there must have been a breach of the first class and lastly, that the covenant for further assurance may be broken without there being any breach of either of the other classes.

words, effect

Sugden's

proposition

Upon this subject the four following propositions are Restrictive laid down by Sir E. Sugden; viz., first, that "where re- of: Sir E. strictive words are inserted in the first of several cove- respecting; nants having the same object, they will be construed as extending to all the covenants, although they are distinct;"(c) secondly, that "where the first covenant is general, a subsequent limited covenant will not restrain the generality of the preceding covenant, unless an express intention to do so appear, or the covenants be inconsistent;"(d) thirdly, that "as on the one hand a subsequent limited covenant does not restrain a preceding general covenant, so, on the other hand, a preceding general covenant will not enlarge a subsequent limited covenant;"(e) and fourthly, that "where the covenants are of divers natures, and concern different things, restrictive words added to one shall not control the generality of the others."(ƒ) Of the above propositions, the first, if read in connection how far *with the above classification of the covenants and of able.

maintain

their separate objects, seems to be warranted by the au- (*373) thorities:(g) the second proposition, (which together, or rather as connected, with the first, is disputed by the learned Editor of Mr. Jarman's work on conveyancing. )(h) is, perhaps, hardly accurate; for, although a prior general covenant, will not, it appears, be restrained by a subse

(c) Sug. 756.

(d) Ib. 759. (e) Ib. 761.

(ƒ) Sug. 762; and see Young v. Raincock, 7 C. B. 310; Crossfield v. Morrison, 13 Jur. 565.

(g) See Nervin v. Munns, 3 Lev. 46; Browning v. Wright, 2 Bos. & P. 13; Foord v. Wilson, 2 J. B. Moore, 592; as controlled by Howell v. Richards, 11 East, 633; S'annard v. Forbes, 6 Ad. & E. 572.

(h) Vol. ix. p. 383.

Chap. XIV. quent limited covenant having a different object,(i) yet where two covenants relate to the same object, restrictive words in the second may, it seems, control the generality of the first:(k) the third and fourth propositions seem to be unimpeachable.

Grammatical construc

tion general. ly determines con nection of covenants.

And, of course, restrictive words occurring in one covenant may extend to another, if the grammatical connection of the two require, and no inconsistency would result from, such a construction:(1) "and the court will endeavor to ascertain the intention of the parties from an attentive consideration of the whole deed, or construe the covenants either as independent or as restrictive of each. other, according to such apparent intention."(m)[1]

(i) Barton v. Fitzgerald, 15 East, 530; Gainsford v. Griffith, 1 Saund. 58 i.; Smith v. Compton, 3 B. & Ad. 189.

(k) See Nind v. Marshall, 3 J. B. Moore, 703, 717; but not necessarily, see Hesse v. Stevenson, 3 Bos. & P. 565; Saward v. Anstey, 10 J. B. Moo, 55; see also Martyn v. M'Namara, 4 Dru. & W. 411, where Sir E. Sugden, C., appears to have considered that a general covenant with A. might be cut down by restrictive words in a covenant entered into upon the same subject-matter with B. upon the same instrument.

(1) Broughton v. Conway, Dy. 240; Peles v. Jervies, Dy. 240, n.; and see 6 Ad. & E. 587; Rich v. Rich, Cro. Eliz. 43.

(m) 1 Saund. R. n. p. 60.

[1] The following is the substance of the cases cited in the text:-In Nerim v. Munns, the vendor covenanted; 1st, that notwithstanding any act by him to the contrary, he was seized in fee; 2dly, that he had good right to convey; 3rdly, that the lands were clear of all incumbrances, made by him, his father, or grandfather; and 4thly, that the vendee should quietly enjoy the estate against all persons claiming under the vendor, his father, or grandfather. And it was held by three justices against North, chief justice, that the second covenant, although general, was restrained by the first covenant, to acts done by the vendor. So, in Bruta ing v. Wright, where a vendor who claimed an estate in fee, by purchase, sold the estate, and covenanted first, that notwithstanding any thing by him done to the contrary, he was seized in fee" and that he had good right, &c.," to convey in manner aforesaid, it was held that the generality of the latter covenant, was restrained by the restrictive words, in the formFor in the first place, the purchaser was, according to the general practice, entitled to limited covenants only; and in the next place, the special covenants would be of no use, if the other were general. Besides, the defendant having covenanted that "for and notwithstanding anything by him done to the contrary" he was seized in fee, and that he had good right to convey; the latter part of the covenant coupled as it was, with the former part, by the words "and that," must necessarily be overridden

er.