into and upon, and hold and enjoy the premises with the appurtenances, without any eviction, interruption, or denial whatsoever, from, or by the vendor, or any person or persons having, or rightfully claiming, or to claim, any estate, right, title, or interest, at law or in equity, into, or out of the premises, or any part thereof, from, through, under, or in trust for him and also, (4) that the premises are free and discharged, or by the vendor, his heirs, executors, and administrators, will be effectually kept indemnified from and against all former estates and encumbrances, at any time or times theretofore made, created, or occasioned by the vendor, or any person or persons claiming, or to claim, through under, or in trust for him: and lastly, (5) for further assurance.

15. Upon a conveyance in fee to a purchaser, the vendor usually covenants: that notwithstanding any act, deed, matter, or thing, by him made, done, committed, or knowingly or willingly suffered to the contrary thereof, (1) he the vendor is seised in fee: and that, notwithstanding any such act, deed, matter, or thing, (2) he has power to convey; and that the purchaser, his heirs or assigns, (3) shall quietly enjoy, without interruption from, or by the vendor, or any person claiming from, or under, or in trust for him: and (4) that, free from encumbrances made or suffered by the vendor, or any person claiming by, from, under, or in trust for him: and lastly, (5) for further assurance.

The five covenants for title usually inserted in assignments of leasehold interests, as well as those contained in conveyances in fee, are several and distinct, and pass to the assignees of the land by the common law, and bind the vendor, and his real and personal representatives.

A vendor who purchases with proper covenants of title, cannot reasonably be required, on a sale of the premises, to covenant further than against his own(w) acts, or against the acts of those deriving under him. This practice is founded in reason, where the purchaser obtains the full benefit of all the covenants in the conveyance to the vendor, by getting possession of the title-deeds containing those covenants, and where the title to the estate is satisfactorily deduced, and the identity of the parcels is established: but if any uncertainty exist as to the identity of the parcels intended to be bought, or respecting the vendor's title, or if the title-deeds cannot be handed over to the purchaser, covenants should be required to meet the particular circumstances. Where the property to be assigned or conveyed was purchased by the vendor, the covenants for title should be confined(x) to the acts

(w) Fearne's Opinions, 110-118. (x) Pickett v. Loggon, 14 Ves. 239; 5 Ves. 702; Church v. Brown, 15 Ves.

263; Browning v. Wright, 2 Bos. & P. 22, by Ld. Eldon.

of the vendor: but if it were purchased by a deceased owner, and passed to the vendor by devise, or descent, the covenants should extend to the acts of the last purchaser.

16. Assignments and conveyances are often prepared in so careless a manner, as to occasion much doubt whether the parties intended that the covenants for title should be limited, or that they should be absolute and unrestricted: or whether expressions of qualification annexed to one of the covenants for title, should have the effect of restraining the operation of other covenants for title in the deed. In order to guard against ambiguity, care should be taken that the covenants for title should be of the same extent, all qualified, or all general and absolute.

Restrictive words, introductory (y) to the first of the covenants for title, extend to and restrain all the subsequent covenants, having the same object. A vendor having covenanted(z) that, notwithstanding any act done by him to the contrary, he was seised in fee; and that he had good right to convey in manner aforesaid; and that the purchaser should enjoy without interruption from him, or any person deriving under him; and for further assurance by the vendor, and every person claiming under him, it was determined, that the words of qualification prefixed to the first covenant, extended to and limited the covenant, that the vendor had a right to convey; and Lord Eldon(a), in giving judgement, observed: "it would be of little service to the grantor to insist that the warranty and the covenant for quiet enjoyment were specially confined to him and his heirs, if the grantee were at liberty to say, 'I cannot sue you on these covenants, but I have a cause of action arising upon a general covenant, which supersedes them all:' if the covenant that the grantor had a right to convey were general, what would be the use of any of the other covenants ?"

Upon the assignment of a chattel-interest, it was covenanted that the assignor had not committed, or suffered any act, whereby the premises could be charged or encumbered; and that, notwithstanding any such act, the lease was valid and subsisting; and that the assignor, at the time of the delivery of the indenture(b), had good right to assign the premises in manner aforesaid: in an action for breach of the latter covenant, as to the right to assign, the Court held that this latter covenant was not independent of the preceding covenants, and was to

(y) 2 Sugd. Vend. 526.

(z) Browning v. Wright, 2 Bos. & Pull. 13; Nervin v. Munns, 3 Lev. 46; Fielder v. Studley, Finch. Chan. Ca. 90.

(a) Browning v. Wright, 2 Bos. &

Pull. 24.

(b) Foord v. Wilson, 8 Taunt. 543; 2 Moore, 592; and see Short v. Kalloway, 11 Ad. & Ell. 28.

be restrained to the assignor's acts, and Dallas, C.J., observed, that the concluding words, "in manner aforesaid," clearly shewed that the former part of the instrument was to be looked to, in order to ascertain the sense in which the covenant was to be taken.

17. A vendor having covenanted, that notwithstanding any act done by him to the contrary, he was seised in fee; and that, notwithstanding any such act, he had good right to convey; and likewise, that the purchaser should quietly enjoy, without disturbance from the vendor(c), or from any other person whatsoever, and that free from encumbrances, excepting a chief-rent: it was determined, that the covenant for quiet enjoyment was general, and was not qualified by the introductory words of restriction. In giving judgement, Lord Ellenborough observed, that a cautious grantor may suspect that his title, in strictness of law, is in some degree imperfect, but he may at the same time know, it has not become so by any act of his own; and he may likewise know, that the imperfection is not of such a nature as to offer any reasonable chance of disturbance to those who should take under it. He may, therefore, very readily take upon him an indemnity against an event which he considers next to impossible, whilst he chooses to avoid a responsibility for the strict legal perfection of his title to the estate, in case it should be found, at any future period, liable to some exception at the time of his conveyance.

pre

However, where covenants were entered into upon the assignment of a lease for years, that notwithstanding any act done by the vendor, the lease was valid; and further, that the purchaser might peaceably enjoy, without interruption from the vendor, or any other person whomsoever, having, or lawfully claiming any estate or interest in the mises, and that free and clear from all former(d) and other grants, leases, rents, titles, charges, and encumbrances, made or committed by the vendor, or by, through, or with his acts, means, or default; and, moreover, that the vendor, and every person claiming under him, should perform all reasonable acts for further assurance, it was ruled that the covenant for quiet enjoyment was restrained to the acts of persons claiming under the vendor. Richardson, Justice, observed, "that the covenant for quiet enjoyment goes on to particularize the causes of disturbance from which the enjoyment was to be free and clear; and that all these would be found to arise from acts done, or defaults made by the covenantor himself, and that the latter part of the covenant

(c) Howell v. Richards, 11 East, 633. (d) Nind v. Marshall, 1 Bro. & B.

319; 3 Moo. 703.

would be wholly inoperative, if the former part should be construed as an absolute covenant for quiet enjoyment against all mankind:" and Dallas, Chief Justice, said, he thought that the general words, "any persons whomsoever," must be construed to mean persons of the description in the other covenants, that is, persons claiming under the covenantor. The preceding(e) case was distinguished from Howell v. Richards(ƒ), on the ground that there the covenant against encumbrances contained words as general as the words of the preceding covenant for quiet enjoyment, with a single exception as to chief-rent, which was not an act or default of the party, or of any person claiming under him, and that this exception, therefore, confirmed the generality of all the other words.

Where a vendor, by deed, after reciting a lease for a term of ten years, assigned over the residue of the term then unexpired, and covenanted that the lease was good and subsisting; it appeared(g) that the lease was determinable on the life of another person, who died before the period of ten years elapsed, and the Court held that a breach might be assigned on the covenant that the lease was good, although the preceding and subsequent covenants were restricted to the act of the vendor. It is difficult to reconcile the preceding decision with a later case, in which it appeared (h) that one John Lock, being possessed of a messuage for the term of eleven years, determinable on the life of another person, by indenture, after reciting the original lease as an absolute term for eleven years, assigned the premises for such term, and thereby covenanted, that notwithstanding any act done by him, the vendor, the lease was valid, and the same(i), and the term of eleven years therein expressed was in full effect, and not become void, or voidable; and that, notwithstanding any such act, the vendor had full power to assign the messuage to the purchaser, for the residue then unexpired of the term of eleven years, according to the true intent of the indenture; and further, that the purchaser should quietly hold and enjoy the premises for the residue of the term of eleven years, without interruption from the vendor, or any person rightfully claiming by, from, or under him, free and clear from any encumbrance created by him. The cestuique vie having died before the execution of the assignment, an action was brought for breach of the second covenant, in consequence of the assignment being made by the vendor, after his own

(e) Nind v. Marshall, 1 Brod. & B. 330, by Richardson, Justice.

(f) Howell v. Richards, 11 East, 633. (g) Barton v. Fitzgerald, 15 East,

530.

(h) Stannard v. Forbes, 6 Ad. & Ell. 572; 1 Nev. & P. 633, S. C.

(i) The second covenant.

title had determined, by means of which the lease became absolutely void and it was decided, that the second covenant was inseparably connected with the introductory words of restriction, and that the grammatical meaning of the terms employed seemed conformable to the general intention of the party who entered into the covenant: and that the action could not be sustained, as the whole series of covenants was introduced by qualifying words which ran through both clauses of the

sentence.

18. It is unusual to insert an(j) unqualified covenant for quiet enjoyment, in an assignment of a lease by one assignee to another, and it is the duty of an attorney employed in the preparation of such an assignment, to take care that his client shall not enter into any covenant or stipulation, which may expose him to a greater degree of responsibility than is ordinarily attached to such business, or until the client has been made acquainted with the consequences. An attorney who was employed by the assignee of a leasehold interest, to prepare an assignment of the lease to a purchaser, having allowed his client to execute an unlimited covenant for quiet enjoyment, without explaining the liability which he thereby incurred, was held answerable in damages for the loss sustained by his client, by means of the introduction of such an unusual covenant.

19. Where the first covenant is general and unqualified, a subsequent(k) limited covenant will not restrain such preceding covenant, unless an express intention for that purpose be apparent, or unless the covenants be inconsistent. Upon the assignment of a leasehold interest, the vendor covenanted that the lease was sure(), good, perfect, and indefeasible in law, and so should remain during the residue of the term of twenty-one years then unexpired, and that the purchaser should peaceably hold and enjoy the premises during the residue of the term without interruption from the vendor, his executors, or assigns, and acquitted, or otherwise saved harmless from all encumbrances made or done by the vendor: it was decided, that the first covenant for the validity of the lease being general, was not restrained or qualified by the latter covenant.

A vendor, by indenture of sale, having covenanted that she was seised in fee, and had good right to convey, and that the purchaser should quietly enjoy the lands conveyed, without disturbance from her,

(j) Stannard v. Ullithorne, 10 Bing. 491; 4 Moo. & P. 359, S. C. (k) 2 Sugd. Vendors, 531.

(1) Gainsford v. Griffith, 1 Saund. 58,

G., and the notes; 1 Siderf. 328, S. C.; Norman v. Foster, 1 Mod. 101; Hesse v. Stevenson, 3 Bos. & Pull. 565.