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CONVEY. draft to Mr.
or of the other term in Mr.
My reason is, that it has been very Opinions.
properly objected to by many gentleman who go the circuit and attend nisi prius bars, as a great absurdity to shew on the face of a conveyance of the freehold and inheritance of any hereditaments that there is a legal estate standing out, by which many plaintiffs in ejectment have been nonsuited; I therefore, many years since, adopted this general method of excepting terms, which is now the known practice of the most eminent conveyancers.
As to Erlent of
Covenants from Care, with the Opinions of two very eminent
Special Agreement to regulate the Matter. A. having two sons, and being seised in fee of a messuage and garden, and also of a farm consisting of a messuage and sixty acres of land, and entitled unto two houses for the remainder of two terms of ninety-nine years, dies ; devising the messuage and garden to his second son in fee, and bequeathing one of the leasehold houses to his eldest son absolutely
Appoints his second son executor.
The messuage and garden have been in A.'s family nearly a century, having descended to him through several ancestors.
The farm des ended to the eldest son, and was purchased by A. of the assignees of a bankrupt, except two acres of land in one of the fields which were bought by A. 's great grandfather, and which came to A. by desce st from the purchaser, through the intermediate ancestors; but the precise situation of these two acres cannot be exactly ascertained.
The lease of the messuage given to the eldest son was granted to A.
The lease vested in the executor came to A. from the original lessee by several mesne assignments.
A, owed at the time of his decease debts to the
CASE. amount of about one-third of the value of the
leasehold estate vested in the executor. As to Ertant of Corenants from The eldest son has contrated with B. for the Vendor to Vendee. sale of the farm, with C. for the sale of the lease.
hold house; and the second son las contracted with D. for the sale of the messuage and garden, and with E. for the leasehold house vested in bim.
Your opinion is desired on the part of the
several purchasers, what covenants they can require in their respective conveyances, the conveyance of the fee-simple estate being made by lease and release ; and also how qualified or gereral they ought to be, and how those in the release of the farm ought to be framed. And
you are requested to give your reasons at large, particularly as there have
been some doubts upon the subject. It will be difficult to, find authorities in our printed books for deciding the question, what ought to be the extent of covenants for the title to land where the vendor and vendee do pot enter into any special agreement to regulate the matter: and I conceive that the question chiefly depends on the practice anong conveyancers.
Vy own inpression on the general rule is, that when the vendor was himself the buyer of the land, he is not bound to covenant further than his own acts and deeds; but that where be derives the estate from one or more of his ancestors, lie ought to covenant agaiost the acts and deeds of them as well as of himself. It seems to me also, that there is a propriety in this general rule, for I conceive it to be founded on a presumption that
the first purchaser in each family into which the estate has passed was guarded by a like covenant As to Extent of from the person of whom he bought, and conse- Coenart: from quently that the link of the covenants for the title will be compleat without extending the engagements of the last vendor beyond himself or himself and family, as the case may be: therefore, in the present case, I think that the covenants for the title to the messuage and garden given to the second son ought to extend to the acts of himself and ancestors; that the covenants for the title to the two acres descended to the eldest son should be expressed in like inander; and that the covenants for the lease given to the eldest son should include the acts of bimself and bis father, the first purchaser. With respect to the remaining cases which are proposed, they are particular.- In the case of the farms descended to the eldest son, and purchased by his father from the assignees of a bankrupt, most probably there were not any covenants for the title from the assignees, further than they had done no act to incumber: consequently a covenant from the eldest son against himself and his father may leave a chasm in respect of the covenants heretofore entered into for the title; but notwithstanding this, I think that the covenant to the new purchaser ought not to be carried further than himself and his father; because I apprehend that where a purchase is made from trustees—and there is no person so beneficially interested as to make it reasonable that he should be singled out to engage for the title, it must rest on its own intrinsic goodness, except so far as a covenant by the trustees, that they have done no act to incumber may
operate, it not being usual to have from a trus
tee even so much as a covenant for further assurAs to Ertint of Covenants from ance ;--and this leads to the disposal of the said
only ease proposed, namely, that of the lease which is vested in the second son as executor ; for if he is interested merely in that character, I think that he ought not to be called upon to covenant more extensively than other trustees. I have only to add, tliat I am aware of Lord Hardwicke having formerly questioned in some degree the general rule, which I consider as established by the usual practice of conveyancers ; his lordship not seeming to have approved of extending the covenants for the title in the case of a family estate further than the acts of the vendor and his immediate ancestors.
How qualified or general covenants for the title ought to be, must depend on the particular cases of the title to which they are to be applied, and therefore it would be difficult if not impossible to lay down rules in practice to meet every case, though the following ones (if I am right in my opinion respecting them) will, when applied to the different subjects before one, shew my reasons for thinking what covenants the purchasers have a right to require in their respective assur
Ist. Whenever the vendor was himself the
purchaser, then the purchaser from such vendor can require the vendor's covenants for title, possession, and further assurance to extend no further than his own acts.