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the whole of a line of covenants are intended to be of
the same class (a). Of course it is the business of
the draftsman so to frame his covenants as to give no
room for such questions; but it must be admitted,
that, to accomplish this object, is not in all cases an
easy matter.
Some observations on the subject of
the covenants to be entered into with and by tenants
in common will be found, infra, Vol. iii. pp. 297,
345, 346; and, as to covenants by joint tenants, infra,
Vol. iii. p. 297. The manner in which covenants
as to the acts of several persons should be worded
is indicated, infra, Vol. iii. p. 202, n. (s). As to the
cases in which lessees should covenant jointly and
severally, see infra, Vol. iv. p. 125, n. (c).

title.

The questions relating to covenants for title are of Covenants for great importance to the conveyancer; but as they are fully discussed in Sir Edward Sugden's work on the Law of Vendors and Purchasers (b), which is in the hands of every conveyancer, it is superfluous to enter into them in the present work. The covenants for title in settlements-at least in settlements made in consideration of marriage, or for other valuable consideration—are the same as in purchase-deeds. But the covenants in mortages are absolute, that is, are not limited to the acts of the mortgagor and the ancestors or testators (if any) through whom he

cases referred to in the note on
Eccleston v. Clipsham, 1 Saund.
Rep. by Williams, 154. See, too,
Lee v. Nixon, 1 Ad. & Ell. 201.

(a) The Duke of Northum

herland v. Errington, 5 T. R.
522; Anderson v. Martindale,
1 East, 497.

(b) Ch. xiii. s. 3, and ch. xiv.
vol. ii. 10th edit.

Covenants

in leases.

soever.

claims, but extend to the acts of all persons whomThe covenant for quiet enjoyment is, of course, only for quiet enjoyment after default in payment of the mortgage money (a). With reference to the point discussed, infra, Vol. iii. p. 32, n. (k), whether an agreement to convey implies an obligation to enter into the usual covenants for title, it should be observed, that the rule has not been laid down in the note referred to with sufficient strength. For it has been expressly said by Lord Eldon, that the contract for sale carries with it the right to proper covenants, and that the law will determine what these covenants are (b). The ancient cases on the subject may, therefore, be considered as overruled.

The question, what are usual covenants in leases, is treated of, infra, Vol. iv. p. 14 et seq. (c). It may, however, be convenient to observe, that, in a recent case (d), where persons having only an equitable interest agreed to grant a lease which was to contain special covenants both on the part of the lessor and lessee, and the intended lessors died before the lease had been granted, and their interest became vested in bankrupt assignees, and an heir at law, against whom a decree for specific performance was made, it was held, that the assignees and heir were themselves bound, to the extent of their interest in the

(a) See, infra, vol. iii. p. 471, lease, Blakesley v. Whieldon, 1 n. (1), p. 473, n. (m). Hare, 176.

(b) Church v. Brown, 15

Ves. 263.

(c) See, too, as to a mining

36.

(d) Page v. Broom, 3 Beav.

property, to enter into the special covenants which the intended lessors had contracted to enter into. The principle of the decision is obviously not confined to leases.

It has not been attempted, in the few preceding remarks, to give even a complete outline of the law relating to covenants; the only object has been, to present to the reader a few of the most important points of the subject. It is one of the greatest practical difficulty and embarrassment in all cases except those which are of such constant recurrence, that the nature and form of the proper covenants have been well settled by practice. These cases have been noticed in their proper places in the notes to this work, and ample information on the general subject will be found in the works referred to in this chapter (a). One of the best compendiums of the law relating to covenants is that presented by the Real Property Commissioners, in their Third Report, and as it is short and not accessible in a separate form, it has been added as an appendix to the present book (b).

(a) See particularly, Shepp. Touchst., ch. vii.; 4 Cru. Dig. by White, tit. xxxii. ch. xxvi;

2 Sugd. Vend. & Purch. 10th
edit. ch. xiii. s. 3, and ch. xiv.
(b) See Appendix.

Reference to

authorities on

the law of cove

nants.

APPENDIX.

COVENANTS. The title to real property often affected by covenants. Covenants de

fined.

THE title to real property, and to various enjoyments connected with it, depends to a considerable extent upon covenants. Covenants are engagements in a certain form entered into by one party to another; they are of course more or less permanent, in proportion to the estates or interests to which they relate. Covenants are said to be real or personal. Some writers (and Covenants real amongst them C. B. Comyns) (a) treat those as covenants real, how distinor personal, of which (as they consider) a specific performance could have guished. been enforced at the common law by a real action on the writ of

covenant.

If this doctrine be correct, the specific performance of contracts as to real property (being under seal) was not unknown to the common law; but we have not been able to find any instance of actual recovery in such an action, and we are inclined to doubt whether the freehold or seisin ever was recovered. Perhaps the proposition may have been too hastily inferred from the case of a fine, which is the compromise of such an action, and does not prove that the land could have been specifically recovered if the suit had gone on to judgment. If there were any such real action known to the law, it will be abolished if the recommendation contained in our first report be adopted *.

venants.

Warranties have been sometimes called covenants real (b), but Warranties disthe action was entirely distinct. They have now fallen into disuse, tinct from coand we have recommended their abolition in our report, recommending the abolition of real actions +.

(a) Dig. Tit. Cov. A. 2, cites F. N. B. 145. A. 146; Reeves' Hist. of

(*) This has been done by the act 3 & 4 Will. 4, c. 27, s. 36.

Com. Law, vol. 2, p. 263.
(b) Hal. Anal. 86.

(†) See the act 3 & 4 Will. 4, c.
27, s. 39; and 3 & 4 Will. 4, c. 74,

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