IN FEE. Covenants for title. and assigns for ever: AND THE SAID A. B. doth hereby, CONVEYANCE for himself, his heirs, executors, and administrators, covenant (p) with the said C. D., his heirs and assigns, in manner following; (that is to say), that for and notwithstanding any act, deed, matter or thing whatsoever, by him the said A. B., or any of his ancestors (q), or the said E. B., made, nances ❞—not appropriate in habendum. Words of cove practice is incorrect, because the appurtenances being comprehended It may be observed, that a covenant is constituted by any words in an instrument under seal which imply a promise or agreement. (Pordage v. Cole, 1 Wms. Saund. 319, e; Duke of St. Albans v. Ellis, 16 East, 352; Holles v. Carr, 3 Swanst. 647). Covenants for title. -to whose acts (2) Every purchaser is said to be entitled to a complete chain of covenants for title. (1 Sugd. V. & P. 534, et seq). And hence, when the vendor is not himself the purchaser, his covenants extend to the acts of all persons who have been interested in the estate since the they extend; last preceding purchase; it being assumed, that on that purchase, a corresponding set of covenants was entered into by the then vendor. It is not, however, the custom to extend the covenants of any vendor beyond the last preceding purchase, although the regular covenants for title may not have been entered into on that occasion. In the precedent in the text it is assumed, that A. B. claims by descent; and, therefore, he covenants in respect as well of his own acts as of those of his ancestors; if he had claimed by devise, his covenant would have been in respect of his own acts, and those of his testator; if he had claimed as a purchaser, his covenant would have been in respect of his own acts only. This covenant seems fairly to be extended to the acts of his wife, although this is a point, in respect of which, the practice is not yet uniform. With regard to the construction of covenants for title, see 2 Sugd. V. & P. ch. xiii. s. 2, and the chapter on covenants, in the first volume of this work. CONVEYANCE IN FEE. -for right to convey; -chain of, usually defective. Frame of a covenant intended to operate by estoppel. Covenant by done, committed, or executed, or knowingly or willingly suffered to the contrary, he, the said A. B., at the time of the sealing and delivery of these presents, is lawfully, rightfully, and absolutely seised of and in, or well and sufficiently entitled to (r), the said hereditaments and premises hereinbefore granted and released, or expressed and intended so to be, and every part thereof, for a good, sure, perfect, absolute, and indefeasible estate of inheritance in fee simple in possession, without any manner of condition, use, trust, property, power of revocation, equity of redemption, remainder or limitation of any use or uses, or any other restraint, cause, matter, or thing whatsoever, to alter, charge, defeat, incumber, revoke, or make void the same: AND THAT, for and notwithstanding any such act, deed, matter, or thing whatsoever as aforesaid, they the said A. B. and E. B. now have, in themselves respectively (s), good right, It may be noticed that, in fact, a purchaser seldom gets a complete chain of covenants for title; for trustees, mortgagees, assignees, and other persons having merely a fiduciary character, never enter into covenants for title, and there are comparatively but a small number of titles, in the course of which a sale has not been made by persons belonging to one of the above classes. (See, further, 1 Sugd. V. & P. 534, et seq.). But the absence of the regular chain of covenants for title is not in practice considered as a defect in the title, and very little reliance is generally placed upon the protection afforded by them. They are, however, of value, in cases in which the vendor is a man of property, and in such a situation or rank as to be easily found. (r) If the indenture is intended to operate by way of estoppel, the covenant, that the vendor is seised in fee, should be absolute and unqualified, and the words, "or well and sufficiently entitled to," should be omitted." For, to operate by estoppel, an averment must be precise and certain. (Right v. Bucknall, 2 B. & Ad. 278, ante, note (a)). (s) When the covenant is as to acts done, or to be done by two or more distinct parties, the expression should be, that they respectively have right to do or will do the acts in question; for, if the expression be, (as it frequently is), that they, or some or one of them, have a right to do, or will do the acts, it might be a sufficient defence to an action for a breach of the covenant by one party, to shew that the covenant had been observed by another. Thus, if the covenant be, that A. B., C. D., and E. F., or some or one of them, have right to CONVEYANCE IN FEE. full power, and absolute authority, to grant, alien, release, confirm, and dispose of the said hereditaments and premises herein before granted, aliened, released, confirmed, and disposed of or expressed, and intended so to be, unto and to the use of the said C. D., his heirs and assigns, in manner aforesaid, according to the true intent and meaning of these presents: AND THAT it shall be lawful for the said C. D., his for quiet enjoyment; heirs and assigns, from time to time, and at all times hereafter, peaceably and quietly to enter into and upon, and to have, hold, occupy, possess, and enjoy the said hereditaments and premises hereinbefore granted and released, or expressed and intended so to be, and to receive and take the rents, issues, and profits thereof, and of every part thereof, to and for his and their own use and benefit, without the lawful let, suit, trouble, denial, eviction, interruption, claim, or demand whatsoever of or by the said A. B., or his heirs, or the said E. B., or of or by any other person or persons lawfully or equitably claiming or to claim by, from, or under, or in trust for him, her, or them, or any of them, or his, or any of his ancestors: AND THAT free and clear, and freely and free from inclearly, and absolutely acquitted, exonerated, and released, or otherwise, by him the said A. B., his heirs, executors, or administrators, well and sufficiently saved, defended, kept harmless, and indemnified of, from, and against all and all manner of former and other (t) estates, titles, convey, and an action be brought on the covenant, and the breach assigned be, that E. F. had no right to convey, it might be a valid defence, according to the words of the covenant, if it were shewn that A. B. and C. D., or either of them, had a right to convey. If, however, it happen, that some or one of several persons have a right to do any act, but it is not altogether certain in which of them the right is actually vested, the covenant may properly run, "that they or some or one of them now have &c." And so in other kinds of covenants. cumbrances; (t) It has been very common to insert here a long enumeration Specification of of different kinds of incumbrances, the list of which may be seen; incumbrances ante Vol. ii. p. 704. But, in modern practice, this specification is omitted. usually omitted; and, certainly, it is not easy to discover for what reason it was ever introduced. Of course, any particular classes of incumbrances which are known or apprehended to exist, may, with IN FEE. --for further assurance. CONVEYANCE troubles, charges, debts, and incumbrances whatsoever, either already had, made, executed, occassioned, or suffered, or hereafter to be had, made, executed, occasioned, or suffered by the said A. B., or his heirs, or the said E. B., or any person or persons lawfully or equitably claiming, or to claim by, from, under, or in trust for him, her, or them, or any of them, or his, or any of his ancestors: AND FURTHER, THAT he the said A. B. and his heirs, and the said E. B., and all and every other person or persons having or claiming, or who shall, or may have, or claim any estate, right, title, interest, inheritance, use, trust, property, claim, or demand whatsoever, either at law or in equity, of, in, to, or out of the said hereditaments and premises hereinbefore granted, and released or expressed, or intended so to be, or any of them, or any part thereof, from, under, or in trust for him the said A. B., or his heirs, or any of his ancestors, or the said E. B. shall and will, from time to time, and at all times hereafter, upon every reasonable request to be made for that purpose, by and at the proper costs and charges in the law of the said C. D., his heirs and assigns, make, do, acknowledge, and execute, or cause and procure to be made, done, acknowledged, and executed all and every such further and other lawful acts, deeds, things, devices, conveyances, and assurances in the law whatsoever, for the further, better, and more perfectly and absolutely granting, conveying, and assuring of the said hereditaments and premises hereinbefore granted and released, or expressed, and intended so to be, and every part thereof, unto and to the use of the said C. D., his heirs and assigns, as by the said C. D., his heirs or assigns, or his or their counsel in the law, shall be reasonably devised or advised and required (u). IN WITNESS &c. Verbosity of the covenants for title. propriety, be expressly mentioned; although, if any serious danger is feared, the more usual course is to take an indemnity, and generally by a separate deed, that the incumbrance may not appear on the face of the conveyance. (u) It will be noticed, that the covenants for title are extremely verbose, and contain many superfluous expressions; but, as it is impossible to say, that the existing practice is to abridge them, (other XVII. CONVEYANCE by APPOINTMENT, and LEASE CONVEYANCE TO USES TO BAR DOWER. THIS INDENTURE made &c. BETWEEN A. B., of Parties. &c. [vendor], of the first part; C. D., of &c. [purchaser], wise than in the points mentioned in the preceding notes (p) and (t)), the editor has not ventured to make any alterations. For particular drafts, in which brevity is very much required, the covenants are certainly reduced, at least one half in length, without impairing their efficiency; and no conveyancer ever hesitates to abridge them, when he is urged to do so. Some examples of the way in which the covenants for title may be abridged will be found in the precedents of mortgages, and may easily be adapted for insertions in purchase deeds, by adding the words of restriction. It is very common to abridge the covenants for title in mortgage deeds, because, unless with a view to a sale or foreclosure, they are of little use to the mortgagee. (a) As the law stood before the statutes of the 3 & 4 Will. 4, a woman was dowable out of all the lands of which her husband was seised in possession at any time during the coverture; and her right could only be extinguished by the inconvenient and expensive process of levying a fine. Even, if it were not desired to alienate the land, dower was a provision inconvenient for the widow, and not in conformity with modern customs. Hence, it became a desideratum in conveyancing to devise such a mode of limiting an estate in favour of the husband as should prevent the wife's right of dower from attaching, and yet leave him the absolute power of disposing of the estate. Several methods by which it was attempted to accomplish this were formerly in use; (see Co. Lit. 379. b. n. 1); but they were all long since superseded by the form recommended by Mr. Fearne in his work on Contingent Remainders*, and which is substantially the same as that given in the following precedent. The limitation * Page 347; see, too, Mr. Butler's note on the forms. Origin and advantage of the limitation to uses to bar dower. |