By the former expression it must be understood, that the interest limited by these words is not originally given to the heirs, but to their ancestor, either mediately, immediately, or eventually: so as to create in him an estate or interest of inheritance, descendible to his heirs of the given description, and subject to the ownership under the gifts, if any, interposed between the limitations, where there is one to the ancestor, and another to his heirs or the heirs of his body. By the latter expression is meant such words as give the estate immediately to the heirs' in their own right, and as persons answering that description, and not through the medium of or by descent from any ancestor: so that these heirs are the purchasers' under the appellation of 'heirs,' and are to take without any reference to a previous right in their ancestor in whom the estate to pass by the limitation to the heirs cannot vest in any possible event. A consequence is, that the power of alienation commences in the heir and not in the ancestor: and the heirs will not be liable to the charges, or bound by the conveyance of the persons who, in point of fact and in reference to other property, may be their ancestors.

1. What Covenants proper.]—The covenants proper to be inserted in a deed vary according to the nature of the transaction, as being a sale or mortgage,—the kind of property which is the subject of the conveyance, as being freehold, leasehold, &c.,— and the title of the party by whom the conveyance is made, as being a trustee or beneficially entitled, being seised in fee or having a power, deriving his interest under a purchase deed or under a devise or settlement, &c. &c.

2. Covenants in a Purchase Deed.]-These covenants assume forms somewhat different as the property is freehold, copyhold, or leasehold:

1o. On Sale of Freeholds.]-The covenants of a vendor of real estate seised in fee are-1st. That, for and notwithstand

ing any act by him done to the contrary, he is seised in fee. 2nd. And that, for and notwithstanding any such act, he has good right to convey. 3rd. And also for quiet enjoyment against his own acts, and those of all persons claiming under him. 4th. And that free from incumbrances by himself or persons claiming under him. 5th. And for further assurance. Where a vendor claims by descent or devise, besides covenanting against his own acts, he is generally made to covenant against the acts of his ancestor or devisor. Where the vendor has also a power of appointment, the first covenant ought to be, that the power was well created and is subsisting; and the other covenants should be similar to those entered into by a grantor seised in fee.

2o. On Sale of Copyholds.]—When the property is copyhold, the first covenant is, that the vendor is seised in fee or for lives, as the case may be, "at the will of the lord, according to the custom of the manor;" that he has good right to surrender; for quiet enjoyment, &c.; and for further assurance.

3o. On Sale of Leaseholds.]-If the property be leasehold, the first covenant is, that the lease is a valid and subsisting lease; second, that he has good right to assign; third, for quiet enjoyment, &c.; fourth, for further assurance; and fifth, to indemnify the assignor against the payment and performance of the rent and covenants reserved by, and contained in, the lease. The last covenant is peculiar to assignments of leasehold property. The right of the assignor to insist on such a covenant was strongly contested in a case before Lord Eldon1, in the course of which his Lordship thus states the doctrine on the subject: "There is no instance of an assignment, drawn with proper care, which is not made expressly subject to the payment of the rent and the performance of the covenants, on the part of the lessee, his executors, administrators, and assigns, reserved; for though, if the assignee should part with the possession, the lessor might not be able to recover at law against that assignee, yet if the original assignor enters into a covenant for the title, and the assignee takes the premises, in the question as between the assignor and assignee, the former has a right to say to the latter-You stand as between us in the situation in which I originally stood to the lessor; and if he, under the express covenant, resorts to me, you taking the premises from me, it is fit that the rent, if paid by me, should be re-imbursed to me by you.' This produces these covenants of indemnity. **** The question is reduced to this: the equity is clear,

that he who takes an assignment of a term, shall take it giving a covenant of indemnity to the assignor against the payment of the rent and the performance of the covenants; and there is no distinction between the case of assignment by the original lessee and by an assignee of that lessee; the propriety of enforcing that covenant being as manifest in the case of the assignee, that he may be indemnified in respect of his parting with the possession, out of which the duty to pay the rent accrues independent of actual covenant, as in the case of assignment by the original lessee."

3. Covenants in a Mortgage Deed.]-On a sale, the covenants for title are, or always ought to be in the absence of any special agreement, qualified or restricted in the manner above explained. In the case of a mortgage, on the other hand, for reasons which are not very obvious,-unless it be that in such a transaction the title is not usually so strictly investigated as on a sale, and therefore the mortgagee relies more upon the covenants for title,—the covenants for title are absolute against all mankind, and not limited to the acts of the mortgagor, or the persons from whom he immediately derives title. In a mortgage deed there are also, besides the covenants for title, other covenants arising out of the peculiar character of the transaction. Instead of the habendum being followed, as in purchase deeds, by the covenants for title which usually complete the deed, there is the proviso or agreement for redemption which immediately follows the habendum,—then the covenant to pay the principal and interest,—the covenants for title, and lastly the mortgagee's covenants that the mortgagor shall quietly hold and enjoy the mortgaged premises till he makes default in payment of the principal and interest.

4. Covenants in a Settlement.]-In settlements the habendum is followed by a variety of provisoes and agreements, declaratory of the trusts of the settlement and defining the powers and obligations of the trustees; and then the covenants for title, which do not differ essentially from those of a purchase deed.

5. Covenants by Trustees, &c.]-In regard to the obligation to enter into covenants for title, trustees, executors, assignees of bankrupts, and all persons acting in a mere fiduciary character, and dealing with property which is not beneficially their own, have a peculiar privilege. As they derive no benefit from the produce of the sale, it would be unreasonable and inequitable to require them to covenant for the title; and the practice accordingly has

Wakeman v. Rutland, 3 Ves.

The Duchess of

233; S. C. 8 Bro.

P. C. 145.

long been to require them to covenant, not for the title, &c., but that they have done no act by which the title or estate can be prejudicially affected; in other words, to covenant against any incumbrances done or permitted by themselves. Hence the purchaser is not entitled to covenants for title when the estate is sold under the trusts of a will for the payment of debts, the residue to be given over; and, of course, it is for this purpose immaterial whether the estate is sold by the trustees or executors as such, or under a decree of the court of Chancery. This point was much discussed in a case before Lord Loughborough. In this case the purchasers insisted upon having a covenant from the vendors, which in effect amounted to a general warranty. The sale was by devisees, upon trust to sell to pay debts and divide the residue, subject to the life interest given to the testator's wife, among his three cousins, in specified proportions. On the question coming before Lord Loughborough, he said: "Upon the argument the great stress is, that they, the purchasers, ought to have such a covenant as does amount to a warranty of the title, notwithstanding any act by the testator or his ancestors; which is in effect a general warranty; though binding themselves no farther than the amount of their interests. If such a covenant is not a demand of right, I think the question will never arise; for if the parties could not get that covenant, they would not suffer the devisees of the money to arise by sale of the estate to touch the conveyance, where they are only to covenant against their own acts, which they could not do, or the acts of the person from whom they claim; for it is not merely adding a party, but it is adding a party with whom any connexion would be inconvenient. The prudence of the common clause, that the receipt of the trustees shall be a discharge to the purchaser, would be defeated; and he would take upon himself the knowledge of all the trusts of the will. In the case cited 2, it is quite clear that Mr. Booth's opinion was overruled by Lord Hard- fith, 3 Atk. 264. wicke, and it ended in a compromise." The same point being

3

Lloyd v. Grif

again brought before his Lordship, he says3: "The ground upon 3 Ves. 505. which I decided it, and which I have not heard even in conversation anything tending in the least to remove, is, that if this objection is well founded, there never could have been, and never can be, any sale of an estate in the court of Chancery, which is disposed of to trustees upon particular trusts for A., B., and C., and for legacies and for simple contract debts; for, if it is true

Wakeman v.

The Duchess of Rutland, 3 Ves. 505.

that all claiming beneficially ought pro ratâ to enter into a covenant for the title, it is of absolute necessity that there is no possibility of distinguishing the case of a simple contract creditor for 207. and a cestui que trust for 20,000l. The former is as much under an obligation pro ratâ, with regard to his interest, to be a party to the conveyance as the latter. The consequence would be, that the estate never could be sold by decree till the account was taken of all the debts; because, before that account was taken, it could not appear who were to join in the conveyance, what was the number, and in what proportions they were beneficially entitled. But it is the constant practice-there are five hundred such decrees-to sell the estate in the first instance: of course, the title can be made only by the trustees for the sale, without calling in all those parties who are beneficially interested. With all the respect I sincerely bear to the great knowledge and learning of all the gentlemen named *, and convinced as I am of their great ability in that branch of the profession which they have made their particular study, I cannot alter my opinion1." On a sale of leaseholds by executors, unless it distinctly appear, that the sale is not for the payment of debts, the purchaser is not entitled to covenants for title, nor to call on the parties beneficially interested to join in the assignment for the purpose of entering into such covenants. Finally, it may be added, what must be, indeed, sufficiently obvious, that a purchaser is not entitled to covenants for title from the crown."

6. Benefit of Covenants for Tille.]-The covenants for title secure to the grantee a pecuniary compensation for any damage he may sustain contrary to their stipulations. The purchaser is not bound to give notice of an adverse suit to the covenantor, and therefore, where an action of formedon was brought against a purchaser by a person having a better title than the vendor, and the purchaser compromised the action for a given sum of money, he was held to be entitled in an action for the breach of the covenant to the whole sum so paid, and his costs as between attorney and client in the compromised suit, though he had given no notice of that suit to the covenantor; for in an action on a general guarantee, the only effect of want of notice is "to let in the party who is called upon for an indemnity, to shew that the plaintiff has no claim in respect of the alleged loss, or not to the amount alleged, that he made an improvident bargain, and that the de

* Booth, Fazakerley, &c.; and see Fearne's Posth. pp. 110, 118.