or any person claiming under her, and that the premises were free from encumbrances, made or done by her(m), or by her late husband, or any of his ancestors, or by or with their, her, or his, or any of their means, consent, privity, or procurement: in an action of covenant, the breach assigned was that the vendor was not seised in fee, and had not power to convey, and it was decided, that the qualified covenants for quiet enjoyment and against incumbrances, had the effect of restraining the prior general covenants: but where a messuage was limited to a purchaser in fee, under a power of appointment, and the vendor covenanted that the power was in full force, that he had good right to convey, and further, that the premises should be held and enjoyed, without the hindrance of the vendor, or of any person claiming by, from(n), under, or in trust for him, and that free from encumbrances made or done by the vendor, or any person claiming under him; and also for further assurance by the vendor, and all persons claiming by, from, under, or in trust for him, or by means of any use, trust, estate, or power in the indenture enabling the vendor to appoint, so that such assurance should not contain any warranty further than against the persons making it: the Court held, that the second covenant for good right to convey, being unqualified in itself, and unconnected with any words in the qualified covenants, must be regarded as an absolute covenant for title, unrestrained by the subsequent covenants, and Lord Tenterden said: "he was not sure that an absolute covenant for title was generally inconsistent with a qualified covenant for quiet enjoyment; and that Milner v. Horton was the only case where a general covenant was held to be qualified by a subsequent limited covenant, unless there appeared something to connect it with a restrictive covenant, or unless there were words in the covenant itself amounting to a qualification." The case of Milner v. Horton may(o), therefore, be considered overruled by the later decision.

20. Introductory words of restriction will be disregarded, if inconsistent with another part of the same covenant, and if contrary to the apparent intention to be collected from the whole instrument. By an indenture transferring certain debts, with power to recover and give discharges for the sums due, it was covenanted, that for and notwithstanding any act done by the grantor, it(p) should be lawful for the grantee to receive and enjoy the debts without interruption from the grantor, his executors or administrators, or any person claiming

(m) Milner v. Horton, M'Clell. 647. (n) Smith v. Compton, 3 B. & Adol. 189, 407.

(0) 2 Sugd. Vendors, 533.

(p) Belcher v. Sykes, 8 B. & Cr. 185.

under him or them; and it was objected that the covenant applied only to acts done by the grantor himself, and not to acts done by his executors, because the grantor merely bound himself and his executors to acts done by him in his life-time; but it was ruled that the introductory words "for and notwithstanding" should be rejected as insensible, being inconsistent with the subsequent part of the covenant, by which it was agreed that the grantee should receive the debts, without interruption of the grantor, or his executors.

21. Where covenants concern different things, and have different objects, though relating to the same lands, restrictive(q) words, whether introductory or added to one covenant, will not control the generality of other covenants. In a conveyance for valuable consideration the grantor covenanted, that notwithstanding any act done by him or his ancestors, he was seised in fee, and that there was no reversion of the lands in the Crown, or in any other person, and that the premises were(r) of the clear yearly value of £300, and that they should continue discharged from all encumbrances by him or his ancestors: and it was adjudged that the covenant as to the yearly value, was not qualified by the restrictive words prefixed to the first covenant.

22. After a conveyance has been executed by all necessary parties, if the purchaser be evicted by(s) a title to which the covenants do not extend, he cannot recover back his purchase money, either at law or in equity. A party having bought an estate, to one moiety of which there was an evident defect of title, which had been overlooked by his counsel: the purchaser being evicted of the moiety, filed his(t) bill in Equity, asserting his claim to be repaid a moiety of the purchase money, but the bill was dismissed, because the eviction did not come within the covenants for title in the conveyance.

23. In every case where a vendor conceals from the purchaser the instrument, or the fact which occasions a defective title, and which the covenants in the assignment or conveyance do not reach; or where the vendor conceals from the purchaser an encumbrance to which the estate is subject, and where the defect does not appear on the titledeeds, such(u) concealment is a fraud, and the purchaser may recover damages in an action on the case in nature of deceit, or may obtain relief

(9) Nervin v. Munns, 3 Lev. 46.

(r) Craford v. Craford, Litt. 80; Cro. Car. 106; Hughes v. Bennett, Cro. Car. 495; W. Jones, 403.

(8) Maynard v. Moseley, 3 Swa. 651; Finch, 288; Freem. Ca. in Chan. 2, S. C.; Anon. Freem. Ca. in Chan. 106;

Thomas v. Powell, 2 Cox, 394; Early v. Garrett, 9 B. & Cr. 928; 4 M. & Ry. 687; Bree v. Holbech, 2 Doug. 655.

(t) Urmstone v. Pate, 4 Cruise's Dig. 90; 3 Vesey, 235, S. C., cited.

(u) See Butler's note 332 to Co. Litt. 384, A.

in equity, although the conveyance has been duly executed; but where the instrument, or the fact which occasions the defect, is disclosed, or the instrument creating the encumbrance is produced, if the covenants do not afford protection, the purchaser appears to be without remedy, unless he can take advantage of the covenants of earlier vendors of the property. The assignees of a bankrupt having agreed by instrument in writing, to execute a conveyance in fee of certain premises, subject to all faults and defects of title, it appeared, that prior to the execution(v) of the contract, the vendors informed the purchaser that no rent had ever been paid, which turned out to be false, as the premises were, in fact, only leasehold, and the purchaser was actually evicted by the lessor. In an action against the vendors for recovery of the purchase money, it was ruled, that as they really believed the statement to be true, and the jury had found that such representation was not fraudulent, the purchaser was not entitled to get back his purchase money, though he was deprived of the estate.

A house-agent being employed to let a furnished house, in answer to an inquiry whether there was any thing objectionable about it, replied nothing whatever," and the defendant relying on this assurance(w), entered into an agreement in writing, to take the premises for two years, at a yearly rent of £375. On the day after the contract was signed, the defendant discovered that the adjoining house was a brothel of the worst description, and it appeared that the owner of the house was fully aware of the nuisance, but it was not shewn that the agent knew of its existence, or that he had authority to make any representation on the subject; the defendant refused to take possession, and in an action by the owner for breach of the contract, the defendant having pleaded that he was induced to enter into the contract by the fraud and covin of the plaintiff, a verdict was found for the defendant: the Court of Exchequer, however, Lord Abinger dissenting, granted a new trial, being of opinion, that in order to support the plea, it should have been proved that the representation was fraudulently made, but it did not appear that the plaintiff made any representation, or that his agent knew that the representation which he made was untrue.

Elizabeth Wilson being the owner of a house, employed her attor ney to put it in a course of being sold by auction: he described it to the auctioneer as being free from rates and taxes(x), and it was bought

(v) Early v. Garrett, 9 B. & Cr. 928; 4 M. & Ry. 687.

(w) Cornfoot v. Fowke, 6 Mees. &

W. 358.

(x) Fuller v. Wilson, 3 Q. B. Rep. 58; 3 Gale & Dav. 460; ante, 392; and see

by the plaintiff on that representation for £600; the house was, in fact, subject to rates and taxes amounting to about £16, on a rent of £100, and would not have produced more than £470 only for the representation. The premises were duly assigned by indenture, and the purchaser afterwards brought his action on the case against Mrs. Wilson, for the fraudulent misrepresentation of the value of the house; but the defendant had made no representation at all, and her attorney, who made it, did not know it to be false; the plaintiff was nonsuited, and the nonsuit was set aside by the Queen's Bench, on the ground, that if the purchaser was actually deceived in his bargain, the law would relieve him from it, and that the principal and his agent were completely identified for that purpose. The facts of this case were afterwards stated in a special verdict, varying materially from the facts on which the opinion of the Queen's Bench was formed. Judgement was entered for the purchaser without argument, and upon a writ of error(y) was reversed in the Exchequer Chamber, as the immediate cause of the injury seemed, from the statement, to have proceeded from the purchaser's own misapprehension.

24. At any time before the conveyance has been executed by all necessary parties, the purchaser, in case(z) of eviction, may recover back his purchase money, even after he has taken possession of the estate; and any encumbrance which is discovered previously to the execution of such conveyance must be satisfied (a), before payment of the purchase money can be enforced.

25. In a suit for payment of creditors, part of the testator's estates was sold, under the decree in the cause, for a sum of £14,480, the purchaser having paid his purchase money into Court, entered into(b) possession, accepted the title, and proper conveyances were executed by all necessary parties: a motion for distribution of the fund, produced by the sale, amongst the creditors, was resisted by the purchaser, because the tenants of the estate had been served with a writ of right, by a person claiming the whole property by adverse title; but Lord Roslyn held, that the Court having given the purchaser possession, and a conveyance under a title which he had previously approved, had

Edwards v. M'Leay, Coop. Chan. Ca. 308; Evans v. Collins, 3 Q. B. Rep. 78, in the note; Humphrys v. Pratt, 5 Bli. P. C. 154; 2 Dow. & Cl. 288, S. C.; Moens v. Heyworth, 10 Mees. & W. 147.

(y) Wilson v. Fuller, in error, 3 Q. B. Rep. 68.

(z) Cripps v. Reade, 6 T. R. 606; Johnson v. Johnson, 3 Bos. & Pull. 162– 170; Jones v. Ryde, 5 Taunt. 488; 1 Marsh. 157, S. C.

(a) Vane v. Lord Barnard, Gilb. Eq.

Rep. 6.

(b) Thomas v. Powell, 2 Cox, 394.

done all it could for him, and it was then too late for him to object to the application of the purchase money. This doctrine, however, is only applicable to questions affecting the title to the lands sold, where the party is properly left to the covenants in his purchase-deed, and does not extend to a misrepresentation in the value of the property. An estate sold under a decree, was described in the particulars of sale, as being in the occupation of tenants paying a yearly rent of fifty-five pounds, and by(c) the conditions of sale, compensation was to be made for any error in the particular: the purchaser having paid his money into Court, was let into possession, and a conveyance was duly executed, when he discovered that the rent payable out of the lands did not exceed forty pounds, and it was ruled that he was entitled to compensation, out of the funds in Court, for the deficiency.

into

A purchaser under a decree, having paid his purchase money Court, entered into possession, and, as it appeared that a formal party had omitted to execute the conveyance, Sir William Mac Mahon held(d), that the conveyance being incomplete, and the proceeds of the sale being in Court, the purchaser was entitled to compensation for part of the lands to which the Crown claimed a right, and of which all parties were utterly ignorant when the conveyance was executed.

26. If a purchaser get a bad title, or take a defective(e) conveyance from a person then having title, and such defect can be supplied by the vendor, relief may be obtained in a suit for specific performance of the covenant for further assurance, against the vendor and those deriving under him, and the vendor will be compelled (f) to make good the defect, by the grant of any estate in the premises which he shall have acquired in the lands subsequently to the conveyance.

27. If unlimited covenants for title, or for quiet enjoyment, are inserted in an assignment or conveyance, contrary to the intention(g) and understanding of the parties, a Court of Equity will, on sufficient proof, correct the mistake, by reforming the instrument, on the same principle that errors are corrected in marriage settlements and other deeds. Parol evidence, however, is admitted in such cases with great hesitation, unless corroborated by written documents.

(c) Cann v. Cann, 3 Simons, 447; Taylor v. Gorman, 4 Irish Eq. Rep. 550. (d) Lord Caledon v. Newcomen, at

the Rolls.

(e) Morse v. Faulkner, 1 Anstr. 61; Spencer v. Boyes, 4 Ves. 370; Maynard v. Moseley, 3 Swa. 651.

(f) Taylor v. Debar, 1 Chan. Ca.

274; 2 Chan. Ca. 212.

(g) Coldcot v. Hill, 1 Chan. Ca. 15; 2 Freem. 173; Feilder v. Studley, Finch, 90; Hesse v. Stevenson, 3 Bos. & P. 575; Jalabert v. The Duke of Chandos, 1 Eden, 372; Beaumont v. Bromley, Turn. & Russe, 41.