the obligee, and gave his advice to the obligee, that the obligor should make a certain assurance; and the obligee gave notice to the obligor of the said advice, and required him to perform it: he ought to perform it, otherwise the condition is broke. For it was more convenient that the counsellor should give his advice to the obligee, than to the obligor. 65. Where a man is bound to make such assurance Touch. 167. as A. or his heirs, or their counsel, shall devise; A. or his heirs must take care that in time they have an Heron v. assurance reasonably drawn, and ready to be sealed, Freyne, 2 Ld. Raym. and to tender it to him, that is, to seal it; for till 750. then, there can be no breach of covenant. 66. There is a clause in the register acts, 6 Ann. infra, c. 28. c. 35. § 30. and 8 Geo. II. c. 6. § 35., by which deeds of bargain and sale of lands lying in the east and north ridings of Yorkshire may be enrolled there. And that the words grant, bargain, and sell, in such deeds, shall operate as covenants for the title. Run with 67. Covenants for the title are real, and pass to the heirs of the purchaser, and to all persons claiming the Land. under him, who may maintain actions upon them against the vendor, his heirs and assigns, and also against his executors or administrators. Nor is it material whether the purchasers acquire their estates by common law conveyances, or by those derived from the statute of uses. Cro. Car. 68. The defendant by indenture enfeoffed J. S. of Middlemore certain lands, and covenanted for himself and his v. Goodale, heirs, with the feoffee, his heirs and assigns, to make 503. further assurance upon request, which lands J. S. conveyed to the plaintiff, who brought an action on the covenant, because the defendant did not levy a fine upon the plaintiff's request. All the Court agreed that the covenant went with the land; and that the VOL. IV. Hh Derival v. Custance, 4 Term R. 75. Spencer v. Boys, 4 Ves. 370. assignee, at the common law, or at least by the statute, should have the benefit thereof. 69. Rachel Boys and her son conveyed a copyhold estate to a mortgagee, by lease and release, and covenanted for further assurance. The son died ; and the mortgagee filed his bill against the customary heir of the son, who was an infant; praying that he might be decreed to surrender the estate to the plaintiff. The Master of the Rolls (Sir R. P. Arden) said he was clearly of opinion, that this covenant was a contract for a valuable consideration, affecting the land, and would affect the heir. And by the decree it was declared, that the covenant in the mortgage-deed bound the land descended to the defendant. 70. Covenants entered into by a purchaser with the vendor, respecting the land, or any thing issuing out of, or annexed to the land, will also run with it, and charge the heirs; and also the assignees of the purchaser, provided there is a privity of estate between them. But although there be a privity of estate at the time of the covenant, yet if a subse6 East, 289. quent purchaser does not take the estate of the original purchaser, he will not be bound by the covenant; because there is no privity between him and the original vendor. Roach v. Are now usually restrained. Crayford v. 106. 71. Covenants for the title to lands have long ceased to be general, and are now usually restrained and qualified according to the nature of the vendor's title; sometimes to the acts of the vendor himself, sometimes to that of himself and his immediate ancestors. And although where covenants are several, and of distinct natures, restrictive words annexed to one of them will not be applied to the others; yet where all the covenants have the same object, and v. Muns, 3 Lev. 46. v. Conway, restrictive words are annexed to the first of them, Gainsford v. Griffith, they will be considered as extending to all the others. 1 Saund.58. 72. In an action of covenant, the plaintiff declared Nervin on a feoffment of lands, wherein the defendant's testator covenanted, that notwithstanding any thing Broughton by him done, he was seised in fee, &c. without any Dyer, 240. condition, &c.; 2dly, That he had full power to sell; 3dly, That the lands were clear of all incumbrances by him or his father; and, 4thly, That the feoffee should enjoy against all persons claiming under him, his father and grandfather; and assigned the breach, that the testator had no power to sell. Upon demurrer it was agreed, that these were distinct covenants; and three Judges, against North, Chief Justice, held, that when, by the first, he only covenanted against his own acts, it could never be intended that immediately, by another covenant of the same effect, he would covenant against the whole world. v. 13. 73. In a conveyance of an estate in fee, the vendor, Browning after warranting the lands to the vendee and his V. Wright, heirs, against himself and his heirs, covenanted, that notwithstanding any act done by him to the contrary, he was seised in fee, &c.; and that he had good right, full power, and lawful authority to convey and assure the same to the vendee, and his heirs and assigns, in manner aforesaid. The vendee was evicted by a person claiming under a title paramount to that of the vendor. An action of covenant was brought by the vendee against the representatives of the vendor; and it was contended upon his part, that the words good right, full power, &c. extended to all persons whatever, and consequently, that the vendee was entitled to recover his purchase money. But the Howell v. Court held, that these words were either a part of the preceding special covenants; or if not, that they were qualified by all the other special covenants, which restrained the covenants to the acts of the vendor and his heirs, and those claiming under him. 74. In a conveyance of lands made in 1783, the 1-1 East, 633. releasors covenanted, that for and notwithstanding any act, &c. by them or any or either of them done to the contrary, they had good right to convey; and also that they, or some or one of them, for and notwithstanding any such matter or thing as aforesaid, had good right and full power to grant, &c.; and likewise that the releasee should peaceably and quietly enter, hold, and enjoy the premises granted, without the lawful let or disturbance of the releasors or their heirs or assigns, or for or by any other person, or persons whatsoever; and that the releasee should be kept harmless and indemnified by the releasors, and their heirs, against all other titles, charges, &c. save and except the chief rent issuing and payable out of the premises to the lord of the fee. According to the Title of the Vendor. Post. Works. 110. The Court of K. B. held that the generality of the covenant for quiet enjoyment against the releasors and their heirs, and any other person or persons whatever, was not restrained by the qualified covenants for good title and right to convey, for and notwithstanding any act done by the releasors to the contrary. 75. With respect to the restrictions annexed to the usual covenants for the title in modern conveyances, Mr. Fearne says,-" Regularly a vendor who purchases lands himself, with proper covenants from those who convey to him, cannot reasonably be required to covenant further than against himself and 4 those claiming under him. This is a practice founded in reason, where the vendee obtains the full benefit of all the covenants in the conveyance to the vendor, to the same extent as his vendor had them, by obtaining the possession of the deeds containing those covenants. When the vendor has parted with his means of claim or remedy against his grantor, for breach of his covenants, and transferred them to the purchaser by delivery of the deeds, and such vendee comes into the vendor's place in that respect, by the acquisition of such deeds; it would be unreasonable that the vendor should make himself liable for any such breach. He, by departing with the means of remedy or compensation, must be understood to have discharged himself from, and the vendee, by accepting those means, to have taken upon himself the peril or risk of such breach, and the duty of enforc-. ing its remedy or compensation." 76. There are some exceptions to this rule, for where the title deeds are not delivered up to the vendee, the covenants should extend to the acts of the person from whom the vendor purchased the estate. Thus Mr. Fearne, in the opinion, of which a part has been already transcribed, procedes in these words:" But this principle, I think, does not apply to those cases where the vendor does not depart with, nor the vendee acquire, the deed containing the covenants for the title against the acts of such. grantors: whilst the vendor retains in his own hands the immediate means of indemnity, which he thought proper to require of his grantor, it seems but reasonable that he should engage for the like indemnity to his own vendee, and rely upon the indemnity he has obtained for his own counter-security. It is not, I think, sufficient to say that the covenant to produce |