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CASE.

As to Extent of
Covenants from
Vendor to
Vendee.

Opinion of
Mr. H.

amount of about one-third of the value of the leasehold estate vested in the executor.

The eldest son has contracted with B. for the sale of the farm, with C. for the sale of the leasehold house; and the second son has contracted with D. for the sale of the messuage and garden, and with E. for the leasehold house vested in him.

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 general 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 not enter into any special agreement to regulate the matter: and I conceive that the question chiefly depends on the practice among conveyancers.

My own impression 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 he derives the estate from one or more of his ancestors, he ought to covenant against 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

CASE.

Cvenants from

Vendor to

Vendee.

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 consequently 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 manner; and that the covenants for the lease given to the eldest son should include the acts of himself and his 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

CASE.

As to Extent of

Vendor to

Vendee.

operate, it not being usual to have from a trustee even so much as a covenant for further assurCovenants from ance;-and this leads to the disposal of the said only case 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, that 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.

Opinion of
Mr. A.

H.

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

ances.

1st. 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.

CASE.

Vendor to

Vendee.

2d. If a vendor claims by descent or under a will, then he must covenant against the acts As to Extent of of his ancestors or testator; and if such tes- Covenants from tator had claimed by descent or will, then the covenants might be required to extend to the acts of all persons under whom such testator derived his title.

3d. A mere executor not beneficially interested cannot be required to covenant against his testator's acts.

With respect to the term, supposing A. in his life-time had sold these premises, then, I apprehend, he could not be required to covenant against the bankrupt's acts or those of his assignees, but only against his own acts and the acts of his father, in respect of the premises purchased of such assignees, and against his own acts and those of his ancestors, in respect of the two acres which he took by descent; (that is to say) his covenants might have been required generally against his own acts and those of his ancestors, without any reference to the two acres or the rest of the premises; and therefore I am of opinion that his eldest son can only be required to covenant against his own acts and those of his ancestors in respect of the farm.

And, with respect to the leasehold house sold by such eldest son to C., he should covenant against his own acts and the acts of his father the testator, who, I suppose, was the lessee.

The second son, as executor, will, of course, be a party to the assignment of the leasehold house, and must enter into the usual covenant, that he has done no act to incumber.

CASE.

As to the messuage and garden sold by the second son to Dhe, such second son, is to cove Covenants from nant against his own acts and those of his ances

As to Extent of

Vendor to

Vendee. tors.

With respect to the leasehold house which should seem to have vested in the second son merely as executor, he can only be required to covenant against his own acts and as far as he is beneficially interested, that is to say, as to twothirds against his own acts and those of his father: but if he had money from the testator sufficient to discharge his debts, then as to the entirety of the leasehold house.

A.

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