If after completion of the contract the purchaser discover that he has obtained a defective title to the land sold, so that he is liable to be ejected therefrom or disturbed in his enjoyment thereof by some stranger to the contract of sale, we have seen (p) that his only remedies are, (1) to bring an action of deceit or for rescission of the contract, if the vendor have been guilty of fraudulent misrepresentation (q); (2) to sue for compensation if the contract contained an express agreement for compensation so worded as to be applicable to the case (r); (3) to sue for damages if the vendor have given an express warranty of his ownership of or right to sell the land (s); (4) to sue for rescission of the contract and the return of the purchase money, if the agreement of sale were entered into under a mistake, common to both parties, as to some fact which was a condition precedent to their contracting (t); (5) to sue upon the vendor's covenants for title (if any) contained in the conveyance (u); and (6) to sue upon any other covenants for title of which the benefit runs with the land sold, and has so devolved upon the purchaser (x).

Purchaser's remedies in case of the discovery after completion of a defect of title.

(n) Above, p. 1021.

(o) Above, p. 1023. And note that, even where an action for specific performance may be necessary to give effect to a declaration made in a V. & P. summons, the question already determined in the summons cannot be reopened except on a counter-claim by way of an action for review; above, p. 1024.

(p) Above, pp. 540, 576 - 578, 732, 932, 933, 948.

(q) Above, pp. 540, 577, 578, 722 sq.

(r) Above, pp. 55, 540, 642 - 644.

(s) Above, pp. 540, 576 - 578, 728, 732, 736.

{t) Above, pp. 695 - 697.

Of these remedies, the first three have been already sufficiently examined (y). But the reader may be reminded that the common form of express agreement to make compensation for errors of description is not applicable where the whole property described in the conveyance has been assured by the conveyance, but the purchaser has been subsequently ejected from a part of it owing to a defect in the vendor's title (2). And an express agreement in the contract of sale to make compensation for any defect in the vendor's title would be a very unusual stipulation; as would also be an express warranty of the vendor's ownership. Still, such stipulations may possibly be made. The fourth remedy above mentioned has also been considered in the chapter on Mistake (a). But we may add here that it appears that, if the parties to a sale of land had agreed thereto on the express understanding that the vendor was full owner of the land sold (the vendor believing this to be true), so that the fact of the vendor's ownership was a condition precedent to their uniting in the formation of the contract, and it were found out after completion that the vendor and purchaser were both mistaken in this assumption, the vendor's title being wholly or partially defective, then the purchaser would be entitled to rescind the contract and recover the price paid (b). Thus, in Cripps v. Reade (b), a vendor of leaseholds had acquired the term by succession from a person, whom he believed to be the lawful administrator of a former owner. The vendor told the purchaser that the premises were his right and property to do what he liked with, and if anything happened he would see the purchaser righted. Whereupon the purchaser paid the price and took possession, the lease being handed over to him, but no conveyance executed. It turned out that the administrator through whom the plaintiff claimed was not a lawful administrator. A rightful administrator was appointed, and recovered the premises by ejectment. The purchaser then sued the vendor to recover the price as money had and received to the purchaser's use. It was contended that the only action (if any) that could be maintained was upon the special warranty of the vendor's ownership (c). But it was considered that the parties had contracted on the express assumption that the vendor was the rightful owner of the term; and it was held that, as this was a mistake, the money had been paid under a mistake of fact and was recoverable accordingly (d). No doubt in this case no conveyance had been executed; but we have seen that where the contract has been entered into under a common mistake of fact, it may be rescinded after completion (e). It should be observed that contracts for the sale of land made in the ordinary form, where the purchaser trusts for his security to his own investigation of the title shown, are not entered into upon the express condition that the vendor is the owner of the whole estate sold; and no such condition is implied therein (f).

Where the contract was made under a common mistake as to the vendor's title.

Cripps v. Meade.

[u) Above, pp. 575 sq. (x) Above, pp. 582 - 584. (y) See notes (q, r, s), above.

(z) Debenham v. Sawbridge, 1901, 2 Ch. 98; above, p. 642. (a) Above, pp. 695 - 697. (b) 6 T. R. 606.

(c) No doubt in this case there was an express warranty of the vendor's ownership, and this would have enabled the purchaser to recover the price, as damages, although he had taken a conveyance of the land sold; above, p. 1026 & n. (s). But the action brought was not in form an action on such warranty.

(d) Above, p. 755 & n. (n). And that a mistake or representation as to a matter of private right (as that A. is the owner of Black-acre) is a mistake or representation of fact, see above, pp. 697, 736.

(e) Above, p. 695.

(f) See Bree v. Holbech,2 Doug. 654; and other cases cited above, pp. 577, n. (m), 732, n. (h), 933, n. (p); Clare v. Lamb, L. R. 10 C. P. 334.

Let us now turn our attention to the purchaser's remedies on covenants for title. We have seen (g) that these may be either against the vendor himself on the covenants for title contained or implied by statute (h) in the conveyance, or against some predecessor in title of the vendor's on covenants, which were given by him and of which the benefit has devolved on the purchaser along with the land conveyed to him. In either case the covenants may have been in common or the statutory form, or they may have been made in special terms conferring a larger or a more restricted guarantee of indemnity than is usually given (i). The effect of covenants of the latter kind, of course, depends on the particular terms in which they are expressed (k). Covenants for title in common or statutory form (that is to say, the usual covenants for right to convey, quiet enjoyment, freedom from incumbrances, and further assurance, or that a lease is valid (l)), are either absolute or qualified; absolute covenants for title being given upon a mortgage (m), but not usually on any other occasion, and qualified covenants being generally entered into upon a sale, and being then so restricted as to avail only against a defect of title arising from the acts, omissions, or sufferances of the vendor himself and any of his predecessors in title subsequent to the last previous conveyance of the land for valuable consideration other than marriage (n). As a rule, the purchaser's only remedy against his own vendor is on the usual vendor's qualified covenants for title; and his remedy against any previous vendor will generally be of the same kind. Covenants for title running with the land may, however, include some previous mortgagor's absolute covenants for title; this will be so when the land has been sold under the mortgagee's power of sale or foreclosed (o). But we have seen (p) that when lands are sold by a mortgagor and conveyed with the concurrence of the mortgagee, the vendor's qualified covenants for title then usually given by the mortgagor to the purchaser appear to supersede and to deprive him of the benefit of the absolute covenants contained in the mortgage deed.