Remedy on covenants for title.

(g) Above, pp. 933, 948.

(h) Above, pp. 575, 581, 585.

(i) See above, pp. 575 sq., 581, 588; Davidson, Prec. Conv., vol. 2, pt. 1, pp. 379 & n., 381, 4th ed.

(k) Thus covenants against the acts of all persons claiming or pretending to claim any right are broken by a wrongful eviction; Chaplain v. Southgate, 10 Mod. 384; Sug. V. & P. Goo. Covenants limited to lawful disturbance by specified persons are broken by entry under a claim, though unfounded, of right, but not by wrongful acts not done under any assertion of title; Lloyd v. Tom-hies, 1 T. R. 671; Sug. V. & P.

600. Covenants against a man's defaults give a wider remedy than those concerning only his acts, omissions and sufferances; Sug. V. & P. 602, 603; 2 Dart, V. & P. 885. And see Sug. V. & P. 599 - 604, 610 - 615; 2 Dart, V. & P. 883 sq. As to questions, to what extent covenants for title, not made in common form, are limited by restrictive expressions used therein, see Sug. V. & P. 605 sq.; 2 Dart, V. & P. 889.

{l) Above, pp. 575, 576, 581.

(m) Davidson, Prec. Conv., vol. l,p. 121, 4th ed., 97, 5th ed.; vol. 2, pt. 2, p. 110, 4th ed.; Wms. Real Prop. 589, 19th ed.; above, p. 581, n. (l).

Absolute covenants for title are not restricted in terms so as to avail only against the acts, etc. of any particular persons (q); they are applicable in case of any defect of title arising from any adverse estate, interest or claim outstanding in any person or persons whomsoever. They are, however, limited by judicial construction to lawful eviction or disturbance by any person; that is to say, they only guarantee indemnity against adverse claims which are rightful (r). If a purchaser be wrongfully ejected from or disturbed in his enjoyment of the land sold after completion of the sale, he must pursue the proper legal remedies against the wrongdoer, and cannot successfully seek indemnity under any absolute covenants for title in common form, of which he is entitled to the benefit. But the usual qualified covenants for title have a different effect; they apply in terms to all acts, etc. of the particular persons specified therein. If, therefore, any of these persons wrongfully evict or disturb the purchaser, the latter may take action under the covenants for quiet enjoyment undisturbed by the wrongdoer's acts, incumbrances or claims (s).

Absolute covenants for title avail only against rightful claims.

(n) This is the qualification of the statutory covenants implied by conveying as beneficial owner upon a sale. Vendor's express covenants for title in the old common form were limited to the acts, etc. of the vendor himself and his predecessors in title subsequent to the last previous sale or other conveyance for value whereon proper covenants for title were given; above, pp. 575, 576, 581, 585. For the common and the statutory forms of covenants for title entered into upon a sale, see Davidson, Prec. Con v., vol. 2, pt. 1, pp. 232, 237, 4th ed.: stat. 44 & 4 5 Vict. c. 41, s. 7 (1 A, B.); Wins. Real Prop. 595,603,19th ed.

(o) Davidson, Prec. Conv., vol. 1, p. 121, 4th ed.; vol. 2, pt. 2, p. 110, 4th ed.

(p) Above, p. 578.

(q) Davidson, Prec. Conv., vol. 2, pt. 2, pp. 110, 314, 4th ed.; stat. 44 & 45 Vict. c. 41, s. 7 (1 C).

Qualified covenants against all acts, lawful or unlawful, of the persons specified.

One most important consequence of the regular limitation of a vendor's covenants for title (t) is that, if the purchaser be ejected or disturbed, after the land has been conveyed to him, by some person rightfully claiming by title paramount to that of the vendor and of those against whose acts, etc. the vendor has covenanted, the purchaser has no cause of action upon the covenants (u). Nor has he in such case any right or equity to recover the purchase money, if fully paid (x), or to resist payment of any part thereof which may remain due to the vendor (y). But, of course, absolute covenants for title extend to the case of any lawful (z) eviction by title paramount to the vendor's.

Purchaser's eviction by title paramount.

(r) Dudley v. Folliott, 3 T. R. 584; Sug. V. & P. 600.

(s) Foster v. Mapes, Cro. Eliz. 212, 213; Nash v. PaImer; 5 M. & S. 374; Fowle v. Welsh, 1 B. & C. 29; Sug. V. & P. 600.

(t) Above, pp. 575, 576, 581.

(u) Above, p. 571; and see Thackeray v. Wood, 5 B. & S. 325, 6 B. & S. 766.

(x) Maynard's case, 2 Freem. 1, 3 Swanst. 651; Thomas v. Powell, 2 Cox, 394; Urmston v. Pate, 4 Cruise Dig. 390, cited Wakeman v. Rutland, 3 Ves. 233, 235; Tylee v. Webb, 14 Beav. 14, 17; and see cases cited above, p. 1028,

(y) Above, p. 932. Here it may be noted that if, before the conveyance has been fully executed, either the vendor or the purchaser, having been let into possession, be ejected by any one claiming under a title paramount to the vendor's, the purchaser can recover any purchase money already paid by him and resist payment of any part of the price that remains unpaid, notwithstanding that he had accepted the title, and that under the vendor's covenants for title he would have had no guarantee of indemnity against the ejector's rights; Cripps v. Reade, 6 T. R. 606 (as to which, see above, p. 1027); Johnson v. Johnson, 3 B. & P. 162; Sug. V. & P. 549. The reason of this is that the lawful ejectment of the vendor, or of the purchaser holding possession with the vendor's assent, before completion, makes it impossible for the vendor duly to fulfil the agreement by conveying the land with the right to possession. The vendor, therefore, is obliged to commit such a breach of the contract as entitles the vendor to rescind it and to recover all sums paid on account of the price; see above, pp. 509, 538 - 540, 936 - 938,947-949. If, however, the purchaser had agreed to buy such interest or title as the vendor had (see above, pp. 163, 570), he would be bound to perform the contract, and could not recover any purchase money paid or resist payment of the price, although the vendor, or he himself having been let into possession, were ejected by title paramount before the contract had been completed by conveyance; Early v. Garret, 9 B. & C. 928; and see Best v. Hamand, 12 Ch. D. 1; above, p. 165. As to the purchaser's duty in such a case to perform the contract specifically, see Kenney v. Wexham, 6 Madd. 355; Wilkinson v. Torkington, 2 T. & C. Ex. 726; Fry, Sp.Perf. Sec. 914 - 921, 3rd ed.