The covenants for title are that part of the draft upon which disputes and questions of difficulty most frequently arise; they are of considerable, although, perhaps, to a purchaser, of rather over-estimated importance; to the solicitor they are important, inasmuch as he will be responsible to his client for permitting him unknowingly to enter into improper covenants (d); or for not securing to him those to which he is entitled from the other party.

Parcels, how to be described.

Mines, etc, if purchased by Railway or Waterworks Company must be specified.

Covenants for title.

Solicitor's liability in respect thereof.

(a) See, as to the effect of a variance between a schedule to a conveyance and an indorsed map, Llewellyn v. Earl of Jersey, 11 M. & W. 183; and, as to the schedule and map restricting the description in the body of the deed, Barton v. Dawes, 19 L. J. 302. See, too, the 1st Report of the present Registration Commissioners, recommending maps as the basis of a General Register.

(b) The Queen v. Lord of the Manor of Bishop's Stoke, 8 Dowl. P. C. G08.

(c) See 8 & 9 Vict. c. 20, s. 77; 10 & 11 Vict. c. 17, s. 18.

(d) Stannard v. Ullithorne, 10 Bing. 491.

A vendor, if the absolute beneficial owner, enters into the usual covenants that he has good right to appoint and release, assign, or surrender (as the case may be, according as the estate is freehold, leasehold, or copyhold), for quiet enjoyment, free from incumbrances, and for further assurance (e).

It is usual to insert in a conveyance by appointment a covenant that the power was well created and is subsisting; and in an assignment of leaseholds, a covenant that the lease was a valid demise and that the term is subsisting; but these covenants are, in effect, comprised in the covenants for right to appoint and for right to assign; and consequently are often omitted: the vendor of leaseholds also covenants that the rent has been paid up to the last day of payment, and that all other the lessee's covenants have been performed up to the date of the assignment.

The covenants of such a vendor, if he have acquired the estate by purchase for money or other valuable consideration, are extended to the acts of himself (f) and parties claiming under him; it is conceived, that marriage is for this, as it is for other purposes, a valuable consideration, even as in favour of collaterals (g); but, in practice, it is usual for a vendor claiming under a marriage settlement to covenant against the acts of the settlor and his representatives (h).

It appears to have been formerly held that the Court of Chancery would not compel a vendor to enter into covenants extending back further than the acts of the last owner (i); but where such owner himself acquired the estate otherwise than by purchase, the "universal and settled practice of conveyancers" (k) is, to make the covenants extend to the acts of all prior owners up to and inclusive of the last purchaser: and the Courts would probably at the present day be inclined to sanction such practice by decision.

What covenants entered into by absolute beneficial owner.

What usual covenants by, may be omitted.

To whose acts his covenants extend.

Difference between practice of Conveyancers and rule of the Court.

(e) See Church v. Brown, 15 Ves. 263, 264.

(f) Sug. 702.

(g) Davenport v. Bishopp, 1 Ph.698

(h) 9 Jarm. Conv. by S. 375. (g) Loyd v. Griffith, 3 Atk. 268. (k) Sug. 704.

The owner of an estate sold by order of the Court, or by his own trustee for sale, enters into the same covenants as if he himself were selling (l).

It appears to be the general notion that landowners agreeing to sell land to Railway and other similar companies must enter into the usual covenants for title; the liability can hardly be questioned in respect of land which the Company has no power to take compulsorily; such as land required for extraordinary purposes (m); but as respects land which the Company has power to take compulsorily, the landowner's contract, although apparently voluntary, is scarcely so in fact; and his liability to enter into covenants may be considered doubtful in principle, and not supported by any satisfactory authority; for in "Re the London Bridge Act," (n) there was the important fact - although not noticed in the judgment - of the enabling Act having been obtained by the vendors pursuant to an agreement with the purchaser: it is, however, believed to be the general practice for such owners to covenant; and the practice would probably, if necessary, be supported by decision. As respects landowners who have entered into no agreement, but as against whom the entire proceedings of the Company have been compulsory, it is conceived that they are not bound, and do not in ordinary practice consent, to enter into any covenant (o).

It has been recently decided by Sir L. Shadwell, V. C, that the first and second tenants for life of a settled estate, selling under a private Act of Parliament which they themChap. XII selves, pursuant to an agreement with the purchaser, had obtained for the purpose, were bound to enter into the usual covenants for title; the Court assuming that upon a sale under a power with the consent of the tenant for life his obligation so to covenant was a matter of course (p).

Owner covenants, on sale by Court or by Trustees.

As to landowners' covenants on sale to Railway Company.

Liability of tenants for life to covenant.

(l) Sug. 703.

(m) 8 & 9 Vict. c. 18, ss. 12 and 13.

(n) Cited infra.

(o) Frend & Ware's Rail. Con v. 136.

In the above case the statutory vendors were tenants for life under a will, and the covenants for title were extended to acts of their testator; the question, whether they were properly so extended, does not appear to have been much considered; and it is submitted, that, although a tenant for life or other owner of a particular estate may be required so to covenant in respect of his own beneficial interest, yet that, as respects the reversion, (in which he has no beneficial interest) his covenants should be confined to the acts of himself and parties claiming under him; considering the present frequency of such sales the point is one of some practical importance.