(D). SALES AND OTHER TRANS ACTIONS. Title. Freedom from incumbrance. or any part thereof, without any lawful interruption S. 7 (1), (C), or disturbance by the person who so conveys, or any person conveying by his direction, or any other person not being a person claiming in respect of an estate or interest subject whereto the conveyance Covenants for is expressly made; and that, freed and discharged from, or otherwise by the person who so conveys sufficiently indemnified against, all estates, incumbrances, claims, and demands whatever, other than those subject whereto the conveyance is expressly made; and further, that the person who so conveys Further assurand every person conveying by his direction, and ance. every person deriving title under any of them, and every other person having or rightfully claiming any estate or interest in the subject-matter of conveyance, or any part thereof, other than an estate or interest subject whereto the conveyance is expressly made, will, from time to time and at all times, on the request of any person to whom the conveyance is expressed to be made, or of any person deriving title under him, but, as long as any right of redemption exists under the conveyance, at the cost of the person so conveying, or of those deriving title under him, and afterwards at the cost of the person making the request, execute and do all such lawful assurances and things for further or more perfectly assuring the subject-matter of conveyance and every part thereof to the person to whom the conveyance is made, and to those deriving title under him, subject as, if so expressed, and in the manner in which the conveyance is expressed to be made, as by him or them or any of them shall be reasonably required: of leaseholds, by beneficial (D.) In a conveyance by way of mortgage of leasehold On mortgage property, the following further covenant by a person who conveys and is expressed to convey as beneficial owner owner. (namely): That the lease or grant creating the term or estate for Validity of which the land is held is, at the time of conveyance, a good, valid, and effectual lease or grant of the lease. S. 7 (1), (D), (E). SALES AND OTHER TRANS ACTIONS. Covenants for Payment of rent and performance of covenants. On settlement. For further assurance, limited. land conveyed and is in full force, unforfeited, and unsurrendered and in nowise become void or voidable, and that all the rents reserved by, and all the covenants, conditions, and agreements contained in, the lease or grant, and on the part of the lessee or grantee and the persons deriving title under him to be paid, observed, and performed, have been paid, observed, and performed up to the time of conveyance; and also that the person so conveying, or the persons deriving title under him, will at all times, as long as any money remains on the security of the conveyance, pay, observe, and perform, or cause to be paid, observed, and performed all the rents reserved by, and all the covenants, conditions, and agreements contained in, the lease or grant, and on the part of the lessee or grantee and the persons deriving title under him to be paid, observed, and performed, and will keep the person to whom the conveyance is made, and those deriving title under him, indemnified against all actions, proceedings, costs, charges, damages, claims and demands, if any, to be incurred or sustained by him or them by reason of the nonpayment of such rent or the non-observance or nonperformance of such covenants, conditions, and agreements, or any of them: (E.) In a conveyance by way of settlement, the following covenant by a person who conveys and is expressed to convey as settlor (namely): That the person so conveying, and every person deriving title under him by deed or act or operation of law in his lifetime subsequent to that conveyance, or by testamentary disposition or devolution in law, on his death, will, from time to time, and at all times, after the date of that conveyance, at the request and cost of any person deriving title thereunder, execute and do all such lawful assurances and things for further or more perfectly assuring the subject-matter of the conveyance to the persons to whom the conveyance is made and those deriving (F). title under them, subject as, if so expressed, and s. 7 (1), (E), The old practice in settlements was for the settlor to give the ordinary vendor's covenants for title. This can still be done by making him convey as beneficial owner instead of as settlor, and so incorporating covenant A. The old practice is inconvenient. If a charge be suppressed or accidentally overlooked, the trustees on discovering it become bound to sue the settlor. The amount to be recovered might be such as to leave him penniless and make proceedings in bankruptcy necessary. This cannot be for the benefit of the wife or family, and is an obligation which should not be imposed on trustees. There should be either no covenant for title, or at most this limited covenant E, which binds the settlor to bar an estate tail or execute a valid appointment under a power, or do any other like act for confirming the settlement, but does not throw on him any obligation to discharge incumbrances. SALES AND OTHER TRANS ACTIONS. Covenants for Title. Covenants in settlements, old practice as to. On conveyance mortgagee. by trustee or cumbrances. (F.) In any conveyance, the following covenant by every person who conveys and is expressed to convey as trustee or mortgagee, or as personal representative of a deceased person, or as committee of a lunatic so found by inquisition, or under an order of the Court, which covenant shall be deemed to extend to every such person's own acts only (namely): That the person so conveying has not executed or Against indone, or knowingly suffered, or been party or privy to, any deed or thing, whereby or by means whereof the subject-matter of the conveyance, or any part thereof, is or may be impeached, charged, affected, or incumbered in title, estate, or otherwise, or whereby or by means whereof the person who so conveys is in anywise hindered from conveying the subject-matter of the conveyance, or any part thereof, in the manner in which it is expressed to be conveyed. On a change of trustees the covenant against incumbrances of an outgoing trustee is now of little importance, any wrongful incumbrance is a breach of trust for which there is a remedy independently of the covenant. Before the Act 32 & 33 Vict. c. 46, the covenant was useful as making the breach of trust a specialty debt having a certain priority. Covenant by outgoing trustee not material. D S. 7 (2), (3), ACTIONS. (2.) Where in a conveyance it is expressed that by direction of a person expressed to direct as beneficial OTHER TRANS- Owner another person conveys, then, within this section, the person giving the direction, whether he conveys and is expressed to convey as beneficial owner or not, shall be deemed to convey and to be expressed to convey as beneficial owner the subject-matter so conveyed by his direction; and a covenant on his part shall be implied accordingly. Covenants for Title. On conveyance by direction of beneficial owner. Old practice as to covenants by tenant for life. Implied covenants in conveyance by husband and wife. Under subs. 1 the covenant implied on the part of any person conveying relates to what he himself conveys. Under this subs. the covenant implied on the part of the person directing applies to what another conveys by his direction. The same result would be attained by making him convey by way of confirmation as beneficial owner. This subs. is intended to apply to a case like that of a sale by trustees under a power by the direction of the tenant for life: (see Preced. II., post). The old practice was to make the tenant for life covenant generally as if he were a vendor seised in fee. Latterly the practice has been to confine his covenant to his life estate only (see Dart, V. & P. 548, 5th ed.; 2 Dav. Conv. 261 (o), 4th ed.). If desired a proviso so limiting the covenant can be added (see subs. 7, and Preced. II., post). (3.) Where a wife conveys and is expressed to convey as beneficial owner, and the husband also conveys and is expressed to convey as beneficial owner, then, within this section, the wife shall be deemed to convey and to be expressed to convey by direction of the husband as beneficial owner; and, in addition to the covenant implied on the part of the wife, there shall also be implied, first, a covenant on the part of the husband as the person giving that direction, and secondly, a covenant on the part of the husband in the same terms as the covenant implied on the part of the wife. The object of this subs. is to enable covenants on the part of the husband to be incorporated where husband and wife convey (see Preced. IV., post). The wife may convey with consent of the husband, the husband not conveying (see Preced. III., post.) Then the covenant is by the wife only, to the effect that notwithstanding anything done by her, &c., or any one through whom she derives title otherwise than, &c. But the (5). SALES AND OTHER TRANS ACTIONS. general practice is for the wife to convey, and the husband also to s. 7 (3), (4), convey and to confirm. In that case the wife and the husband should each be expressed to convey as beneficial owner, then within this subs. she will be deemed to convey by the direction of her husband as beneficial owner, and the three following covenants will be implied: (1) by the wife as beneficial owner binding her present separate estate which she is not restrained from anticipating (see Tullett v. Armstrong, 4 Beav. 323 per M.R.; Pike v. Fitzgibbon, 17 Ch. D. 454); (2) by the husband as beneficial owner; and (3) by the husband in the same terms as the covenant implied on the part of the wife, that is in effect, that notwithstanding anything done by her or by any one through whom she derives title otherwise than &c. Covenants for Title. woman con veying under a power, Where a married woman conveys under a power she and her husband A married may in like manner each be expressed to convey as beneficial owner, then the three covenants above mentioned will be implied. The second of those covenants (being the first of the husband's covenants) will not be of importance, but his second covenant corresponds with the usual one entered into by him in similar cases independently of this Act. (4.) Where in a conveyance a person conveying is not expressed to convey as beneficial owner, or as settlor, or as trustee, or as mortgagee, or as personal representative of a deceased person, or as committee of a lunatic so found by inquisition, or under an order of the Court, or by direction of a person as beneficial owner, no covenant on the part of the person conveying shall be, by virtue of this section, implied in the conveyance. This subs. renders it clear that a conveyance can be drawn in the old form. Where it is desired not to use the statutory covenants the character in which the conveying party conveys should not be stated, and covenants can be inserted in express words. (5.) In this section a conveyance includes a deed conferring the right to admittance to copyhold or customary land, but does not include a demise by way of lease at a rent, or any customary assurance, other than a deed, conferring the right to admittance to copyhold or customary land. By s. 2 (v.) "conveyance" includes a covenant to surrender. The statutory covenants contained in this section may therefore be incorporated in the deed of covenant, but they cannot be incorporated in the surrender. They may also be incorporated in all cases where Covenant to surrender may incorporate covenant. |