Compromise by the purchaser of adverse claims on the land purchased.

(g) This rule appears to have been applied in Lock v. Furze, L. R. 1 C P. 441, and Rolph v. Crouch, L. R. 3 Ex. 44, 49, 50, where the plaintiff recovered the value of a conservatory erected by him; and it is submitted that those decisions outweigh the authority of the dicta to the con-trary in Lewis v. Campbell, 3 J. B. .Moore, 35, 52, 54, 57; and see 2 Dart, V. & P. 894, and consider Grosvenor Hotel Co. v. Hamilton, 1894, 2 Q. B. 836; above, pp. 1047, 1048 .

(A) Above, p. 958.

(i) Above, p. 1047.

(k) It is submitted that the opinion to the contrary expressed in Mayne on Damages, 228, 7th ed., cannot be supported since the decisions cited above, p. 1047, n. (s).

(l) Above, p. 1046.

Action brought against the purchaser.

(m) Great Western Ry. Co. v. Fisher, 1905, 1 Ch. 316.

(n) Smith v. Compton, 3 B. & Ad. 407.

(o) See Agius v. Great Western Colliery Co., 1899, 1 Q. B. 413, 421, 423; and above, p. 963.

(p) Short v. Kalloway, 11 A. &

E. 28, 31; Walker v. Hatton, 10 M. & W. 249; Pow v. Davis, 1 B. & S. 220; Great Western Ry. Co. v. Fisher, 190.5, 1 Ch. 316, 323.

(q) Williams v. Burrell, 1 C. B. 402: Child v. Stenning, 11 Ch. D. 82.

25 (2)

It has been already explained (u) how the benefit, both of the statutory and of express covenants for title, runs with the land, in respect of which the covenants were given; and that the covenants may be enforced by any person taking the whole or any part of the covenantee's estate, and are apportionable accordingly. If a breach of covenants for title be committed, and the covenantee die without suing thereon, the right of action will, in so far as he has suffered any actual damage, belong to his executors or administrators (x): but will otherwise pass to the person who has succeeded to his estate in the land (y).

Covenants for title ran with the land, and are ap-portionable.

Covenants for title are construed literally according to the rules of law for the interpretation of written instruments; and extrinsic evidence is not in general admissible to explain them (z). If therefore they extend in terms to guarantee indemnity against some particular defect of title, it is no defence to an action on the covenants to plead that the purchaser bought with notice of the defect and agreed to take the property subject thereto (a). So also if the words of the covenant comprehend a particular defect of title, it is no plea to point out that the defect was apparent on the face of the conveyance (b); unless it can be established that upon the true construction of the whole deed of conveyance the assurance was expressly made subject to the defect and the covenant did not guarantee indemnity against it (c). But if in these cases the purchaser bought subject to the defect, the vendor might counterclaim for rectification of the conveyance by limiting the covenants according to the parties' real agreement (d).

Where land is sold with notice of a defective title.

(r) Rolph. v. Crouch, L. R. 3 Ex. 44; Great Western Ry. Co. v. Fisher, 1905, 1 Ch. 316, 323, 324; see also Agius v. Great Western Colliery Co., 1899, 1 Q. B. 413.

(s) See Agius v. Great Western Colliery Co., 1899, 1 Q. B. 413, 421, 423.

(t) Great Western Ry. Co. v. Fisher, 1905, 1 Ch. 316, 323; hut see Sutton v. Baillie, 65 L. T. 528, where the costs of an appeal were allowed on the ground that it was reasonable, two judges of first instance having given conflicting decisions.

(a) Above, pp. 532 - 584; and observe the facts in David v. Sabin, above, p. 1034.

(x) Lucy v. Levington, 2 Lev. 26; Raymond v. Fitch, 2 C. M. & R. 588, 597 - 599.

(y) Kingdon v. Nottle, 1 M. & S. 354, 4 M. & S. 53; King v. Jones, 5 Taunt. 418; Jones v. King, 4 M. & S. 188.

It was held in the case of David v. Sabin (e) that, if a man by fraud procure land to be sold and conveyed to him, with the usual vendor's covenants for title, the vendor may indeed set up the fraud as a defence to an action brought on the covenants by the purchaser himself; but if the defrauding party convey the land over to a purchaser taking it for value and without notice of the fraud, and such purchaser sue the original vendor to obtain the benefit of his covenants for title, as running with the land sold, the original vendor can no longer plead the fraud, by which he was induced to enter into the covenants (f). This was so decided on the following grounds: - The defence of the original vendor to an action by the original purchaser on the covenants for title might be two-fold; first, that the covenants were voidable as having been procured by fraud and that he elected to avoid them (g); secondly, that the breach of the covenants was caused by the covenantee's own wrong, and the covenantee could not therefore set up the breach as a cause of action (h). As to the first of these defences, it was considered that where a man makes a conveyance of land and at the same time enters into covenants with his grantee, of which the benefit will run with the land (that is, will go to the grantee's assigns by virtue of the "real contract" then made by the grantor (i)), such conveyance and real contract together form one entire transaction, and the real contract cannot be rescinded for fraud without setting aside the conveyance. And as in such case the conveyance cannot be avoided by the grantor as against any person claiming as a purchaser from the grantee for value and without notice of the fraud (k), the real contract must remain equally unimpeachable as against such a purchaser. And as regards the second defence above mentioned, that is only available against the party who actually did the wrong, or his representatives in law, and not against his assigns.

Covenants for title procured by-fraud.

(z) Above, pp. 698, 699 & n. (s).

(a) Page v. Midland By. Co., 1894, l Ch. 11; May v. Platt, 1900, 1 Ch. 616; Great Western By. Co. v. Fisher, 1905, 1 Ch. 316, 322; see above, pp. 164, 567, 568.