XXXII. VICTORIA. fore precluded from insisting, either upon the existence of the deed, or upon its legal effect and operation, as a defect in the title which he has agreed to take ;-and this interpretation is perfectly consistent with every other part of the agreement, and is by no means unreasonable. The plaintiff may have been imprudent in entering into a contract whereby he may be forced to take a defective title: but he has himself only to blame, for he either knew of the supposed defect, or had the means of knowing it." [He also cited Hanks v. Palling (a).] Further, the objection is to an error in description, which does not annul the sale but is the subject of compensation under the ninth condition. Joshua Williams was not called upon to reply. LUSH J. It is unfortunate for the defendants that the conditions of sale are not framed so as to guard against this objection. If there had been no conditions of sale the purchaser would have been entitled to an abstract tracing back the title for forty years. The question is, to what extent do the conditions qualify this right. [His Lordship read the fifth condition.] That restricts the right of inquiry as to any conveyance prior to the 17th April, 1860. But the plaintiff is entitled to have an unincumbered freehold title shewn on that conveyance. The deed, when produced, shews that the house conveyed is subject to certain covenants and conditions contained in an indenture of the 2nd March, 1850, without intimating what they are. Those covenants and conditions may very much deteriorate the value of the property. Therefore we shall not violate (a) 6 E. & B. 659. 1868. PHILLIPS V. CALDE CLEUGH. 1868. PHILLIPS V. CALDECLEUGH. any one of the cases cited by holding that the purchaser is entitled to have a good title shewn by the deed of the 17th April, 1860, and that if it be not shewn he may refuse to complete the purchase. Mr. Dowdeswell asked in what way the condition should be framed in order to meet this objection? That question is answered by some of the cases in which the condition was that the purchaser should take the property as the vendor held it or such a title as was shewn by a particular deed. The ninth condition, which is the usual one for guarding against an error or mis-statement in description, does not apply to the existence of incumbrances, nor could they be compensated for under it, for it is not shewn what they are. HANNEN J. Mr. Dowdeswell properly said that this is a question of construction, and as to what is the meaning of the parties. I am of opinion that the objection taken by the plaintiff is not within the language or meaning of the parties in the fifth condition as we must read it. The plaintiff was not seeking to investigate or take any objection to the title prior to the commencement of the abstract; but he was inquiring what was the title really conveyed by the deed of the 17th April, 1860. It is necessary in order that the title should be understood that the deed referred to should be seen, otherwise it cannot be known what are the covenants and conditions to which the house is subject. Judgment for the plaintiff. THURLOW against LUMSDEN MACKESON. 1868. Thursday, Mortgage of leaseholds. Power of sale. Sale with agreement for part of purchase money to remain on mortgage. Recital of exercise of power. Implied cove nant. A mortgage of leasehold premises in 1848 contained a power to sell by public sale or private contract for such price as could reasonably be gotten, &c., and it was agreed that the receipt of the mortgagee should discharge the purchaser from being answerable for the misapplication or nonapplication, or from being bound to see to the application of the money, or from being bound or concerned to inquire into the necessity or propriety of the sale. The mortgagor having made default in payment of the mortgage money and become bankrupt, the defendant, the mortgagee, in 1852, contracted with P. to sell him the premises for 5507., a larger sum being then due on the mortgage, and by a deed reciting that it had been agreed that 5007., part of the purchase money, should remain on mortgage of the premises, the defendant in pursuance of the power contained in the mortgage deed assigned the premises to E. M., subject to the rent, covenants, &c. contained in the original lease, but freed and discharged from the principal and interest secured by the mortgage, upon trust to sell in case P. should make default, and P. covenanted to pay the sum of 500l. by yearly instalments. The defendant credited the whole of the 550l. to the mortgagor; P. entered into possession, and having paid 2007. on account, made default and became bankrupt. In assignee. 1859 the defendant and E. M. by deed reciting, inter alia, that the defendant in pursuance of the power of sale contained in the mortgage deed of 1848, had sold to P., assigned the premises to L. M., with a covenant against incumbrances. L. M. assigned to the plaintiff. A declaration in covenant on the deed of 1859 alleged two breaches, (1). That the defendant had not sold in pursuance of the power: (2), That he had done an act whereby the premises were incumbered. Held, 1. That the covenant against incumbrances passed to the assignee; but That as there was a bonâ fide contract of sale between the mortgagee and P. the power of sale in the original mortgage deed had been duly exercised, notwithstanding the contract was carried out by a mortgage, and therefore the right of redemption in the mortgagor was barred, and the purchaser had an unincumbered title. 3. Quare, whether a covenant was to be implied from the recital in the deed of 1859 that the defendant had sold in pursuance of the power? HIS was an action of covenant on a deed of assign THIS ment dated the 14th December, 1859, by which, after reciting an underlease by way of mortgage of certain leasehold premises, dated the 18th November, 1848, to the defendant, that the defendant in pursuance of a power of sale contained therein had sold to H. Paine, and another underlease by way of mortgage by the defendant and H. Paine to E. Mackeson, E. Mackeson assigned and the defendant confirmed the premises to L. J. Marshall. The deed contained a covenant by the B. & S. VOL. IX. 3 т Covenant against in cumbrances. Action by 1868. THURLOW V. defendant against incumbrances. The declaration alleged two breaches. First. That the defendant had not in MACKESON. pursuance of the power of sale contained in the deed of the 18th November, 1848, sold the premises to H. Puine. Secondly. That before making the covenant he had made, done, committed and executed, and knowingly and willingly permitted and suffered, and been party and privy to an act, deed, matter and thing, whereby and by means whereof the premises were impeached, charged, incumbered and otherwise prejudicially affected. There was a plea denying the breaches. Also a demurrer to the first breach, which however was abandoned on the argument; two of the points were, that the recital that the defendant, in pursuance of the power of sale, had sold the premises to H. Paine did not amount to a covenant; and that it did not amount to such a covenant as to entitle the plaintiff as assignee to maintain the action for a breach of it. On the trial, before Cockburn C. J., at the Sittings in Middlesex after Hilary Term, 1868, a verdict was found for the plaintiff subject to the opinion of the Court on a special case. By indenture dated the 17th October, 1848, and made between R. Chambers of the one part, and H. H. Davis of the other part, R. Chambers demised certain premises at Battersea to H. H. Davis for the term of 108 years, from the 29th September, 1848, subject to a yearly rent of 127. By indenture dated the 18th November, 1848, and made between H. H. Davis of the one part, and the defendant of the other part. After reciting the indenture of lease of the 17th October, 1848, H. H. Davis, in consideration of 4507. paid to him by the defendant, and in consideration that the defendant had agreed to advance to H. H. Davis the further sum of 1007., bargained, sold and demised the premises comprised in the indenture of lease to the defendant for all the residue then unexpired of the term, except the last five days subject to a proviso for redemption on payment of the principal moneys intended to be thereby secured, and certain interest thereon. And it was by the indenture further provided, that if default should be made in payment of the principal moneys intended to be thereby secured, or any part or parts thereof, or of the interest thereon, or of any part or parts thereof, contrary to the covenants therein before contained for payment of the same, then and in such case it should be lawful for the defendant, his executors, administrators or assigns, to sell and dispose of the premises therein before demised or intended so to be, with their appurtenances, for all the remainder of the term thereby created, either together or in parcels, and either by public sale or private contract, or partly by both, and as well before as after and subject to any lease or letting which might have been granted or made of the premises respectively under the powers therein contained, for such price or prices as could reasonably be gotten for the same, and with, under and subject to such conditions and stipulations as to title or otherwise, as the defendant, his executors, administrators or assigns, might deem expedient, together with full power to buy in the same or any part or parts thereof respectively, and to abandon and vary the terms of any and every sale or agreement for or relating to the sale thereof, and to resell the premises so bought in or as to which the contract should have been so abandoned, or any part or parts thereof, at any future auction or by private contract &c., without being liable for any 1868. THURLOW MACKESON. |