Where the property is sold subject to some incumbrance.

(e) Palmer v. Fletcher, 1 Lev. 122; Holt, C. J., Tenant v. Goldwin, 2 Ld. Raym. 1089, 1093; Thesiger, L. J., Wheeldon v. Burrows, 12 Ch. D. 31, 51; Jessel, M. R. Allen v. Taylor, 16 Ch. D. 355, 357. 358: Gal Bryant, 1908, 1 Oh. 259.

Above, pp. 641, 642.

(g) Swansborough v. Coventry, 9

Bing. 305; Barnes v. Loach, 4 Q. B. D. 491: Allen v. Taylor, 16 Ch. D. 355.

(h) Richards v. Rote, 9 Ex. 218; Thesiger, L. J., Wheeldon v. Burrows, 12 Ch. D. 31, 59; and Bee Jones v. Pritchard, 1908, 1 Ch. 630, 635, 636.

41 (2)

(i) Stat. 44 & 45 Vict. c. 41, s. 7 (1a).

(k) See Page v. Midland Rail. Co., 1894, 1 Ch. 11; May v. Platt, 1900, 1 Ch. 616; Great Western By. Co. v. Fisher, 1905, 1 Ch. 316; below. Chap. XIII. Sec. 2. As to obtaining rectification on this ground, see Coldcot v. Hill, 1 Ch, Ca. 15; Feilder v.

Studley, Finch, 90; Sug. V. & P. 609; 2 Dart, V. & P. 786, 5th ed.; 886, 6th ed.; 794, 795, 7th ed.

(l) Above, p. 73, and n. (t).

(m) Above, p. 175.

(n) It is submitted that if the vendor has answered positively that there are not any such incumbrances, he cannot insist on having the same mentioned in the conveyance.

(o) Above, pp. 73, n. (t).. 175.

(p) This appears from an examination of the precedents contained in Davidson, Prec. Conv. vol. ii. pt. i. 4th ed., considered with reference to the fact that the stipulation in question is one of the general conditions of sale:

Ibid. i. 611, 4th ed.; i. 621 and n. 5th ed. See also I Key &

Elph. Prec. Conv. 260, n. (c), 4th ed.; 248, n. (d) 8th ed.

(q) Dart, V. & P. 156,6th ed.; 176, 6th ed.; 172, 7th ed.

(r) Re Alms Corn Charity. 1901, 2 Ch, 760.

(s) Above. p. 623, n. (r).

If the vendor should have sold only such estate or interest as he has in some particular land, he is of course entitled to require that he shall convey the same thing only and in the same words. But if land were sold by a particular description, with a stipulation that the purchaser shall accept such title as the vendor has(a), the case is different, and the vendor would be obliged to convey the land as described in the contract, without any words limiting the assurance to his actual interest therein (b). In such case, however, it is thought that the contract is equivalent to an agreement to buy subject to such incumbrances or defects of title as may appear upon investigation to exist, and that the vendor would therefore be entitled to limit his covenants for title so as to prevent any action thereon being brought against him by reason of such incumbrances or defects (c). It may be observed that the usual vendor's qualified covenants for title, whether given in express terms or incorporated in the conveyance by statute, do not confer any indemnity against the purchaser's eviction by title paramount to that of the vendor's own predecessors in title; they extend only to the purchaser's disturbance by reason of some act, omission or incumbrance, of the vendor himself or any person through whom he derives title, otherwise than by purchase for value (d). A disseisor, therefore, or even a man having no title at all, not so much as a disseisor's estate (c), if he sold and conveyed as beneficial owner the land, into which he had wrongfully entered or which he had wrongfully assumed was his, would incur no liability on the statutory covenants for title in case of the ejectment of the purchaser by the rightful owner.

Sale of such estate as the vendor has.

(t) Hardman v. Child, 28 Ch. D. 712, 717.

(u) Above, p. 642.

(x) Gale v. Squier, 1 Ch. D. 226, 5 Ch. D. 625.

(y) As where the purchaser buys with notice that the land is subject to some irremovable incumbrance, and the vendor does not expressly contract to show a good title; above, p 203.

(s) Re Monckton and Gilzean, 27 Ch. D. 555; Hardman v. Child, 28 Ch. D. 712; Mostyn v. Mostyn, 1893, 3 Ch. 376; Be Wallis and Barnard's Contract, 1899, 2 Ch. 515.

If one sell a single piece of land on the terms that the purchaser shall enter into covenants restrictive of Sale of land subject to restrictive covenants.

(a) Above, p. 202. (b) See above, p. 646. (c) Sec the cases cited, above, p. 644. n. (k).

(d) Browning v. Wright, 2 B. &

P. 13: Hesse, v. Stevenson, 3 B.

& P. 565, 574 . Nind v. Marshall, 1 Brod. & B. 319: Stannard v.

Forbes, 6 A. & E 572; Sug. V.

& P. 602, 603, 605 - 609; Howard v. Maitland, 11 Q. B. D. 695; and see below, Chap. XIX. Sec. 5.

(e) This is an estate in fee simple: see Litt. ss. 519, 520 . Williams on Seisin, 7. 10; Leach v.Jay, 9 Ch.D.42, 44; 51 Sol. J. 143.

The use of the land, the vendor is of course not bound, in the absence of express or implied stipulation or of representation to the contrary, to enter into any similar covenants or to observe the like restrictions with regard to any adjoining land retained by him (f). If lands be offered for sale in lots, either at one sale by auction or in a series of consecutive private sales, on the terms that each purchaser shall enter into restrictive covenants as to the lot bought by him, it is, in the absence of express stipulation, a question to be decided on consideration of all the circumstances and conditions of the sale whether there is implied in the contract for the sale of any lot an agreement that the vendor shall be bound by the restrictive covenants as to any lot remaining unsold (y). If it appear that the offer made by the vendor was in effect that each purchaser should have a lot forming-part of an estate subject to a general scheme of restrictive covenants enforceable by as well as against all owners of any part thereof, the vendor will be bound to enter into like restrictive covenants with the purchaser, as regards any lot remaining unsold; and will be bound in equity to observe the restrictions, though he do not enter into any such express covenant (h). But if it appear that the vendor merely offered each lot to be sold subject to restrictive covenants to be entered into with himself by each purchaser, and did not offer, as part of the contract or as an inducement to buy, the advantage of the whole property put up for sale being-subject to the same covenants, then the purchaser of any lot will have no claim to enforce any restriction over any lot remaining unsold, or to require the vendor to outer into any covenant in respect thereof (i). In any case in which it is either an express or an implied term of the contract for sale that any land retained by the vendor shall be subject to any restriction in the purchaser's favour, the purchaser is entitled to require the vendor on completion to enter into a covenant with him to that effect (h). The case is exactly parallel to that of an express or implied contract to grant an easement over land retained by the vendor (l).