mines thereunder; but a conveyance of certain specified land, or of a certain house, (even adding the words with the appurtenances,) will not pass other land not specified, —although it may have been usually occupied together with the property conveyed (e); unless, indeed, the land not specified should consist of the orchard, garden, or curtilage of the house conveyed, in which case it would pass under a grant of the house with the appurtenances, or even under a grant of the house simply (f).

[2, 3. Next come the habendum and tenendum. The office of the habendum is properly to determine what estate or interest is granted by the deed; and when that is performed (and sometimes it is performed) in the premises, then the habendum may lessen, enlarge, explain, or qualify, but not totally contradict, or be repugnant to, the estate granted in the premises (g). As if the premises describe a grant to be "to A. and the heirs of his body," habendum, "to him and his heirs for ever," or vice versa, here A. has an estate tail and a fee simple expectant thereon (h). But had the grant been in the premises "to him and his heirs," habendum "to him for life," the habendum would have been utterly void, for an estate of inheritance is vested in him before the habendum comes, and shall not afterwards be taken away or divested by it (i). The tenendum (" and to hold ") is now of very little use. It was sometimes used formerly to express the tenure by which the estate was to be holden; viz. "tenendum per servitium militare in burgagio, in libero socagio," dc. But all these tenures having been now reduced to free and common socage, the tenure is never specified, excepting in the case of copyhold or

(e) Re Portal and Lamb, (1885) 30 Ch. D. 50.

(f) Co. Litt. by Harg. 5 b, n. (1), 121 b; Hinchliffe v. Kinnoul, (1838), 5 Bing. N. C. 1, 25.

(g) Shaw v. Kay, (1848) 1 Exch.

(h) Co. Litt. 21 a; 2 Roll. Rep. 19, 23; Cro. Jac. 476; Goodtitle v. Gibbs, (1826) 5 B. & C. 709.

(i) Baldwin's Case, (1589) 2 Rep. 23; Earl of Rutland's Case, (1609) 8 Rep. 56.

[customary-hold lands. Before the statute of Quia Emptores (18 Edw. I.), the tenendum was also sometimes used to denote the lord of whom the land was holden. But, that statute directing all future purchasers of the fee simple to hold, not of the immediate grantor, but of the chief lord of the fee, this use of the tenendum hath been also antiquated; though for a long time after we find it mentioned in antient charters, that the tenements shall be holden de capitalibus dominis feodi. But as this expressed nothing more than the statute had already provided for, it gradually grew out of use (k).

4. Next follows the reddendum, or reservation, whereby the grantor doth create or reserve some new thing to himself out of what he had before granted (1), as "rendering for the same, yearly, the sum of 10s.," or a peppercorn, or two days' ploughing, or the like. Under the pure feudal system, this return or rent consisted, in chivalry, principally of military services, and, in villenage, of the most slavish offices; but in socage, it has usually consisted of money, though it may still consist of services, or of any other certain profit. To make a reddendum good, if it be of any thing newly created by the deed, the reservation must be to grantors, or some or one of them, and not to any stranger to the deed; but if it be of antient services or the like, annexed to the land, then the reservation may be to the lord of the fee (m).

5. Next follows (when the grant so intends) the condition, or clause of contingency, on the happening of which the estate granted is to be defeated, as provided always, that if the mortgagor shall pay the mortgagee 5001. upon such a day, the whole estate "granted shall determine," and the like.

66

(k) Madox, Formul. (passim.). (1) Burchell v. Clark, (1876) 2 C. P. D. 88.

(m) Browning v. Beston, (1556) Plowd. 132; Whillock's Case, (1609) 8 Rep. 71.

[6. As to the clause of warranty formerly inserted in conveyances, but now fallen into disuse (n). By this clause the grantor did for himself and his heirs "warrant" to the grantee the estate conveyed. The origin of this practice seems to have been in the feudal constitution, whereby, if the vassal's title to enjoy the feud was disputed, he might "vouch," or call the lord or donor to warrant his gift; which if he failed to do, and the vassal was evicted, the lord was bound to give him another feud of equal value in recompense (o). And so by the antient law, if a man enfeoffed another in fee, the law annexed a warranty to the grant (p). So upon a partition or exchange of lands of inheritance, if either party or his heirs were evicted of his share, the other and his heirs were bound to warranty (q); also, upon a gift in tail or lease for life rendering rent, where the feudal verb dedi (or give) was used in the grant, the donor or lessor and his heirs were bound to warrant the title (r). Now, however, by sect. 4 of the Real Property Act, 1845, no warranty is to be implied upon an exchange or partition. And in other forms of alienation bearing no sort of analogy to the gift of a feud, no warranty whatsoever was ever held to be implied; and therefore it became necessary, in such cases, to add an express clause of warranty in order to bind the grantor and his heirs.

Where the express clause was in fact superadded, it was held that this warranty not only bound the warrantor himself to protect the title of the warrantee, but that it also bound the heir of the warrantor to the same effect, provided he had other sufficient lands by descent from the warranting ancestor (s). And this was so, whether the warranty was lineal, or collateral to the title of the land-lineal warranty being where the heir derived (or

(2) Co. Litt. by Butl. 365 a,

n. (1), 373 b, n. (2).

(0) Feud. 1. 2, t. 8 and 25.

(P) Co. Litt. 384 a.

(a) Ibid. 174, 584 a.
(r) Ibid. 384 b.

(s) Co. Litt. 102 a.

[might by possibility have derived) his title to the land warranted, either from or through the ancestor who made the warranty (as where a father, or an elder son in the life of the father, released to the disseisor of either themselves or the grandfather, with warranty, this was lineal to the younger); and collateral warranty being where the heir's title to the land neither was (nor could have been) derived from the warranting ancestor (t). And though the heir was only bound to insure the title of the grantee on his ancestor's warranty, provided he had assets, yet (whether assets descended or not) he was perpetually debarred from claiming the land himself. But warranties being found to produce, in individual instances, inconvenient results, divers statutes were from time to time passed to restrain their force (u); and the practice itself, of inserting any clause of warranty in deeds, fell by degrees into disuse.

7. A deed usually contains also covenants, which are clauses of agreement contained in a deed, whereby either party stipulates for the truth of certain facts, or binds himself to do or to abstain from doing something, or to give something to the other. Thus, the grantor may covenant that he hath a right to convey; or for the grantee's quiet enjoyment, or the like; or the grantee may covenant to pay his rent, or to keep the premises in repair, or not to use them in a certain manner, and the like.] By the common law, the use of the words "demise," "grant," or "give," raised an implied covenant on the part of the grantor for quiet enjoyment, &c., except so far as it might be controlled by some express covenant in the same deed (x). But (so far at least as regards the words "grant" and "give") the law on this head is now altered, it having been enacted by the Real Property Act,

(t) Litt. ss. 703, 705, 706, 707. (u) 6 Edw. 1, c. 3; 11 Hen. 7, c. 20; 4 & 5 Ann. c. 3, s. 21; 3 & 4 Will. 4, c. 27, s. 39; c. 74, s. 14.

S.C.-VOL. I.

(x) Cro. Eliz. 674; Baynes v. Lloyd, [1895] 2 Q. B. 610; BuddScott v. Daniel, [1902] 2 K. B. 351.

U

1845, s. 4, that neither of those words in any deed executed after the 1st October, 1845, should imply any covenant, except so far as they might, by force of any Act of Parliament, do so (y). (See Lands Clauses Consolidation Act, 1845, s. 132.)

A covenant gives to the covenantee and his representatives, in case of its breach, a right of action for damages against the covenantor and his representatives; and in a deed of conveyance, a covenant for title to the land conveyed will also, in general, run with the land,that is to say, not only the original parties or their representatives, but each successive owner of the land will be entitled to its benefit, or liable (as the case may be) to its obligation (z). It is consequently usual, so far as covenants for title are concerned, for the person who sells land which he himself has bought, to covenant only against his own acts; or if he did not acquire the land by purchase, then to extend the covenant as far back as to the acts of the last buyer, but no further, that being a sufficient security to the vendee, where all the former vendors have entered into a similar covenant, because all these engagements run with the land, and consequently operate for his protection (a). In the case of a mortgage, however, the mortgagor's covenants for title are not so limited, but are absolute. This distinction between the covenants of a vendor and the covenants of a mortgagor is preserved in the Conveyancing Act, 1881 (b), s. 7, by the effect of which, if the parties are expressed to convey respectively "as beneficial owner," the respective covenants for title are implied (c); and the benefit of all such implied covenants runs with the land conveyed (s. 7 (6)).

8. [Lastly, comes the conclusion, which mentions the

(y) 8 & 9 Vict. c. 18, s. 132.

(z) Shep. Touch. 161; Spencer's Case, (1583) 5 Rep. 16 a; Tulk v. Moxhay, (1848) 2 Ph. 774; Austerberry v. Oldham (Corporation), (1885) 29 Ch. D. 750.

(a) Browning v. Wright, (1799)

2 Bos. & Pul. 22.

(b) 44 & 45 Vict. c. 41.

(c) Page v. Midland Rail. Co., [1894] 1 Ch. 11.