Upon a sale, by husband and wife, of the wife's unsettled freehold or copyhold estate, the husband, since he either does or may receive the purchase-money, covenants for title as upon the sale of his own estate: and if there be any doubt as to the fact of marriage, the woman should herself enter into usual covenants, and it is submitted that a purchaser might require their introduction.

As a general rule, fiduciary vendors only covenant that they have done no act to prevent their selling, or to incumber the property (q); a covenant for further assurance would seem to be a reasonable addition, and is often attempted to be introduced; but it is settled that trustees cannot, as defendants, be compelled to enter into it (r): it has, however, been held, that the heir at law and assignees in bankruptcy of an intended lessor are bound, to the extent of their interests in the property, to enter into special covenants which the intended lessor had contracted to enter into (s); and the decision would apparently apply to the case of an agreement for sale and for special covenants by the vendor: the cases seem to show, that where mere trustees, etc, have themselves entered into the contract, or where the contract of the party whom they represent is sought to be enforced against them, the rule against their entering into any covenants other than the covenant against incumbrances, etc, is invariable; but that it is not settled whether, if they themselves come into equity to enforce the contract of the party whom they represent, they must not covenant for further assurance.

To whose acts their covenants should extend.

Covenants on sale, by husband and wife, of wife's estate.

Vendors, who are not beneficial owners, covenant only against incumbrances.

(p) Re London Bridge Acts, 13 Sim. 176, 179.

(q) 11 Ves. 345; Staines v. Morris, 1 V. & B. 8.

(r) Worley v. Frampton, 5 Ha. 560.

An incumbrancer who releases the estate, whether voluntarily or in consideration of payment, only covenants that he has done do act to encumber.

A purchaser from the Crown can require no covenants for title (t).

Upon a sale by trustees under a will, for general purposes, or by order of the Court, the purchaser is not entitled to any covenant but that against incumbrances; except (in the case of a will) where the purposes to which the purchase-money is primarily applicable have since been satisfied, so that the substantial owners are in fact ascertainable; in practice, however, it is usual in any case to insert covenants by the parties who are beneficially entitled in any considerable amount to the residue of the purchase-money (v).

Any covenant intended to provide for a defect in title which appears on the face of the conveyance, should be so expressed; if the defect can be kept off the face of the conveyance (which is generally the case) the covenant should be entered into by a separate instrument (w), which should refer to the defect; or there should be an agreement signed by the covenantor admitting the existence of the defect, and stating that the same is intended to be included in the covenant (x).

Rule, whether uni-versal.

Incumbrancer releasing.

Crown (rives no covenants.

Covenants by parties interested in purchase-money.

Covenant against known defect.

(s) Page v. Broom, 3 Beav. 36. (t) Sug. 705.

(v) Sug. 704 et seq.

So, a covenant for production of title deeds, if it extend to documents not noticed in the conveyance, should, as a general rule, be entered into by a separate deed; the question to be considered is, whether any document covenanted to be produced is of such a character as to make it desirable that it should, so soon as practicable, be taken off the title.

A purchaser is entitled to a valid covenant for the production, and probably for the right to take copies (y), of such documents of title as are not delivered over to him (z); commencing with such as are necessary to show a marketable title (a), and excepting such copies of Court Roll and inrolled deeds, (if inrolled under any Act which makes the inrolment evidence,) as are not in the possession or power of the vendor (b); in the absence of agreement, he is not bound (c), (except upon a sale by assignees of a bankrupt (d),) and, perhaps, cannot be advised, to assent to the introduction of the ordinary proviso for determining the vendor's liability upon his selling the residue of the property and procuring a substituted covenant to be entered into by the person who will upon such sale become the holder of the deeds; but on a sale by fiduciary vendors it is usual to insert such a proviso (e), and its insertion should be stipulated for on their behalf.

Covenant for production of deeds.

Purchaser's right to.

(w) Sug. 702.

(x) Vide infra, Ch. XIV.

(y) Sug. 479.

(z) Barclay v. Raine, 1 Sim. & Stu. 449.

(a) Dare v. Tucker, 6 Ves. 460; Cooper v. Emery, 1 Ph. 388.

(b) S. C.

(c) Sug. 478.

(d) Ex parte Stuart, 2 Rose, 215, L. C.; where the Court stated, generally, that the assignees' covenant should be confined to the time of their continuance as assignees.

But the right to a covenant for production is, as a general rule, confined to those documents which affirmatively evidence the vendor's title (f), and does not extend to those which are required to negative mere possibilities; it appears, in fact, to have been decided by Sir L. Shadwell, V. C. (g), that a purchaser from an heir at law, whose ancestor left a will not affecting the property, can require no covenant for its production; this decision seems, however, to conflict in principle with that in a case (h), where a purchaser from an heir under similar circumstances, was, upon selling again, held bound to produce the will if in existence for the inspection of the sub-purchasers.

In order that the covenants for production may run with the land in respect of which the deeds are retained, it is necessary that the covenantor should be seised of the legal estate in such land (i): this however is a point not often attended to; and if a purchaser has a right to insist upon it, such right would seem to involve the additional right of requiring the title to such other land; a purchaser it is conceived, could scarcely be advised to press the point.