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 defcent, from the purchaser, through the intermediate ancestors; but the precife fituation of these two acres cannot now be exactly ascertained:

The leafe of the meffuage given to the eldeft fon, was granted to A.

'The leafe vefted in the executor, came to A. from the original leffee, by feveral mefne affignments.

A. owed, at the time of his decease, debts to the amount of about one third of the value of the leafehold eftate vested in the executor.

The eldest fon has contracted with B. for the fale of the farm, and with C. for the fale of the leafehold house; and the fecond fon has contracted with D. for the meffuage and garden, and with E. for the leafehold house vested in him.

Your opinion is defired on the part of the several pur- Quare. chafers, what covenants they can require in their respective affurances, the conveyances of the fee fimple estates being made by lease and release, and also how qualified or general they ought to be, and how thofe in the release of the farm are to be framed? and you are requested to give your reasons at large, particularly as there have been some doubts entertained upon the fubject.

How qualified or general the covenants for title ought Answer. to be, muft depend on the particular circumftances of the title to which they are to be applied, and therefore it would be difficult, if not impoffible, 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 fubjects before me, fhow my reasons for thinking what covenants the purchafers have a right to require in their respective affurances; firft, wherever the vendor was himself the purchafer, then the purchaser from fuch vendor can require

the vendor's covenants for the title, poffeffion, and further affurance, to extend no further than his own acts. 2dly.

If a vendor claims by descent, or under a will, then he muft covenant against the acts of his ancestor or teftator, and if fuch teftator had claimed by defcent or will, then the covenants might be required to the acts of all perfons under whom fuch teftator derives his title. 3dly. A mere executor, not beneficially interested, cannot be required to covenant against his teftator's acts.

With refpect to the farm, fuppofing A. in his life time had fold these premises, then I apprehend he could not have been required to covenant against the bankrupt's acts, or those of his affignees, but only against his own afts in respect of the premises purchased from fuch affignees, and against his own acts and those of his ancestors, in respect of the two acres which he took by defcent, that is to fay, 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 reft of the premises, and therefore I am of opinion that his eldest fon can only be required to covenant against his own acts and thofe of his ancestors, in refpect of the farm.

And with refpect to the leafehold houfe fold by fuch eldeft fon to C. he should covenant against his own acts, and thofe of his father, the teftator, who, I fuppofe, was the leffee. The second fon, as executor, will of course be a party to the aflignment of this leafehold house, and muft enter into the usual covenant, that he has done no act to incumber.

As to the meffuage and garden fold by the fecond fon to D. he (fuch fecond fon,) is to covenant against his own acts, and those of his ancestors.

With refpect to the leafehold house, which should feem to have vested in the second fon, merely as executor, he can only be required to covenant against his own

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acts, and as far as he is beneficially interefted, that is to fay, as to two-thirds, against his own acts and those of his father; but if he had money from the teftator fufficient to discharge his debts, then as to the entirety of this leasehold house.

The Opinion of another Gentleman, on the fame Cafe.

It will be difficult to find authorities in our printed books, for deciding the queftion, 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 amongst conveyancers. My own impreffion of the general rule is, that where the vendor was himself the buyer of the land, he is not bound to covenant further than against his own acts and deeds: but that where he derives the eftate 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 alfo, that there is a propriety in this general rule, for I conceive it to be founded on a prefumption, that the first purchaser in each family into which the eftate has paffed, was guarded by a like covenant from the perfon of whom he bought, and confequently, that the link of covenants for the title will be complete without extending the engagements of the last vendor beyond himself, or himself and family, as the cafe may be; therefore, in the prefent cafe I think that the covenants for the title to the meffuage and garden given to the fecond fon, ought to extend to the acts of himself and his ancestors, that the covenants for the title to the two acres defcended to the eldest son, should be expreffed in like manner; and that the covenants for the title to the leafe given to the eldest son, should include the acts of himself, and his father the first purchaser; with respect VOL. III. P

to the two remaining cafes which are propofed, they are particular. In the cafe of the farm which defcended to the eldeft fon, and purchased by his father from the affignees of a bankrupt, moft probably there were not any covenants for the title from the affignees, further than that they had done no act to incumber, confequently a covenant from the eldest son, against himself and his father, may leave a chasm in refpect of covenants heretofore entered into for the title; but notwithstanding this, I think that the covenants to the now 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 fhould be fingled out to engage for the title, it must rest on its own intrinfic goodness, except fo far as a covenant by the trustees, that they have done no aƐt to incumber, may operate, it not being usual to have from a mere trustee, even fo much as a covenant for further affurance, and this leads to the difpofal of the only other cafe proposed, namely, that of the cafe which is vested in the fecond fon as executor; for if he is interefted 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's having formerly queftioned in fome degree the general rule, which I confider as confirmed by the usual practice of conveyancers, his lordship not feeming to have approved of extending the covenants for a title, in the cafe of a family eftate, further than the acts of the vender and his immediate ancestor.

See also on the fame fubject Fearn. pofth. Wks. 110. 118. 2 Saund. Uses and Tr. 284. 2. (L).

Cafes on the Conftruction of a Covenant, that the Grantor is feifed of a good Estate in Fee Simple, free from Incumbrances,

c.

WHERE a grantor covenants that he is feifed in fee, How covenant that grantor is according to the indentures made to him by another, feifed in fee, the covenant is abfolute that he is seised of a good eftate and hath good right to fell, in fee; and the reference to the conveyance by another, is to be conferves only to denote the limitation and quantity of the eftate, not the defeasibleness or undefeafibleness of it. See Cook and Fownes. 1 Keb. 95.

crown,

Where a man covenanted that he was feifed of a good, perfect, and indefeasible estate in fee-fimple, and that he had a good right and lawful authority to fell, and that there was no reverfion or remainder in the " for any act done by him the grantor," and the question was, whether these words, by any act done by him, should refer to all before, or only to this laft part; and held that it referred only to the latter part. Lit. Rep. 62 to 69, and 203, Sed. Vid. Poft.

ftrued.

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and that the plaintiff shall

the let, &c to

In debt upon: bond to perform covenants, fome of which How covenant that indenture were, that the indenture of leafe, at the time of the af- of leafe good, fignment, is a good, true, and indefeafible leafe, and that the plaintiff fhall enjoy, &c. without the let or interrup- enjoy without tion of the defendant, or any claiming by, from, or under be conftrued. him and shows for breach, that the leffor had no right to make the leafe, the defendant demurs: the queftion was, Whether indefeasible leafe, &c. fhall be construed as a diftinct fentence, or with reference to the last words (without the interruption of the defendant)? And the court thought that the last words did not qualify, or mitigate the first words, for that they are diftinct claufes. Vide 1 Sid. 328. I do not find that it was adjudged. See Cro. Car. 106, 107. pl. 8. Lit. Rep. 203.