Freeholds to lessee where

there is a sub-lease

(a).

Leaseholds.

provons hinafter decld & expd of & concerng the same, or, "upon the trusts, &c." as in last form, or, "upon the trusts & subjt to the powers & provons upon & subjt to wch the same premes ought to be held by virtue of the sd indre of settlemt of, &c. [the sd will & codls of the sd X.]."

XIII. TO HOLD the same unto the sd, pchaser, & his hrs subjt to the sd term of yrs created by the sd lease of, &c., & to the intent that the sd term may be henceforth absolutely merged in & consold with the revon & inhance in fee simple of the sd hds & premes expectant on the determon of the same term, but not so as to prejudice or affect the sd underlease of, &c., & so that the benefit of the rent reserved by & the covts on the pt of the lessee & condons contd in the sd underlease, shl henceforth be & remain incident & annexed to the freehd of the same premes To THE USE of the sd, pchaser, his hrs & assns.

66

henceforth, or, as from the

XIV. TO HOLD the same UNTO the sd, pchaser, his exs, ads, & assns, henceforth for all the residue now unexpired of the sd term of yrs (b), grted by the sd indre of lease, subjt day of," to the paymt of the rent & the pformce & observce of the covts on the pt of the lessee & condons by & in the same indre reserved & contd [& subjt to an underlease of, &c., or, "to the subsistg underleases or tenancies of the sd respive hds & premes "] (c).

(a) See 8 & 9 Vict. c. 106, s. 9; Conv. Act, 1881, s. 10.
(b) For several leases say, "respive terms of

&

yrs,"

Variation

for assign ment of part of

premises

held under the lease

subject to

apportioned rent.

(c) If the sale is of part only of the property in the lease, the rent having been apportioned on a former occasion, say :

"SUBJT to the yrly rent of £, being the apportioned pt payable in respt of the premes hby assned of the entire rent of £, reserved by the sd lease as hinbfe is recited, & to the pformce & observce of the covts on the pt of the lessee & condons contd in the sd lease so far as the same relate to the premes hby assned, & subjt to such liability as is subsistg under the sd lease or orwise to the paymt of the remaing portion of the sd entire rent & to the pformce & observce of the sd covts in respt of the remaing portion of the premes comprd in the sd lease, but with the benefit of

and leaseholds com

XV. TO HOLD all such pts of the sd hds & premes as are Freeholds of freehd tenure UNTO & TO THE USE of the sd, pchaser, his hrs & assns [subjt, &c.], & TO HOLD all such pts of the bined. sd hds & premes as are of leasehd tenure UNTO the sd, pchaser, his exs, ads, & assns, henceforth for all, &c., as in last form.

upon trusts of settle

will.

XVI. TO HOLD the same UNTO the sd, trees, their exs, ads, Leaseholds & assns, &c., as in form XIV., upon the trusts, &c., as in form x., or, "upon such trusts, & subjt to such powers & ment or provons as shl correspond with the uses, trusts, powers & provons to, upon, with, & subjt to wch under, &c.," as in form X., or, "upon the trusts of the sd settlemt of, &c., [the sd will & codls of the sd X.]."

XVII. TO HOLD, &c., to pchaser, free from all rt or equity of Freeholds redmon, & from all claims & demands under the hinbfe recited indre of mtge.

XVIII. TO HOLD the same UNTO the sd, married woman, her hrs & assns [for leasehds, exs, ads, & assns, henceforth, &c., as in form xIv.,] [as her separate ppty independently of her psnt or any future husbd] (d).

all the covts, powers, & provons contd in the hinbfe recited indre of assnmt of, &c., or orwise subsistg, for securg the paymt, pformce, & observce of & indemnifying the sd, vendor, his exs, ads, & assns in respt of such remaing portion of the sd entire rent & any breach of the sd covts & condons in relon to such remaing portion of the premes [& subjt, to tenancies, &c.]."

(d) A conveyance may now by virtue of the Married Women's Property Act, 1882, ss. 1 & 5, be made to a married woman (whenever married) so as ipso facto, and without any express declaration that the property is to be her separate estate, to make it such, and to give her the same power of disposition as if she were a feme sole. Previously to the Act, as the separate estate was only an equitable creation, her power of disposing of it as a feme sole did not extend to the legal estate, unless (in the case of freeholds) a power of appointment over the use was limited to her; the proper mode of conveyance so as to exclude the husband being to interpose a trustee, and (for freeholds) to make the conveyance to such uses as the married woman should by deed or will appoint, and in default to the use of the trustee for her for her separate use. But as the statutory separate estate operates at law as well as in equity, there is now no object in giving a power of appointment, or interposing a trustee; and the words in the second bracket, being merely declaratory of the intention that the Act is to apply, might be omitted; but it seems better to insert them.

or leaseholds free from equity of redemption. Freeholds

or leaseholds to married

woman.

As to con-
veyances
to married

women.

Freeholds

and leaseholds as partnership property (a).

Proviso restricting implied grant of light and air.

Personalty.

XIX. TO HOLD the same UNTO [& to the use of] the sd, ptners, their hrs [exs, ads] & assns as jt tenants [if leasehds, for residue of term, &c., form XIV.], in trust for them, the sd, ptners, their exs, ads, & assns as pt of their co-ptnp este [but so that after the death of eir of them, the sd, ptners, the survor of them or the hrs, exs, or ads of such survor shl have full power, witht the concurrce of the exs or ads of the one of them so first dying, to sell, mtge, lease, or orwise dispose of the premes, or any pt thof, & to rece & give effectual dischges for any moys arisg from any such disposon, & that every such disposon or rect shl be absolutely bindg upon all psons havg or claimg any intt in the ptnp este (b)].

xx. To HOLD, &c., subjt to the provon & declon next hinafter contd, that is to say, Provided always & it is hby decld that the sd, pchaser, his hrs or assns, shl not be entled to any rt of light or air wch wd in any mner diminish or interfere with the free & unrestrictive user of any adjoing ppty now belonging to the sd vendor, eir for bldg or any other ppose, & the assurce hinbfe contd shl not be deemed or construed to imply the grt of any such rt.

XXI. TO HOLD the same UNTO the sd, pchaser, his exs, ads, & assns, for his absolute benefit, or, "absolutely."

Implied

covenants

for title

under the

COVENANTS FOR TITLE.

PRELIMINARY NOTE.

The Conv. Act, 1881, s. 7, contains provisions whereby a conveyance made by deed of any property, real or personal, may, by inserting the appropriate words, be made to imply, in the case of a conveyance for value, whether by Conv. Act, way of sale, mortgage, settlement or otherwise, the ordinary covenants for title and further assurance; or in the case of a conveyance, whether for value or not, by a trustee or mortgagee, or other person in a fiduciary position, the ordinary covenant against incumbrances; so as to render the insertion

1881.

(a) This is considered to be the proper form. The subject is discussed in an article in 33 Sol. J. 103. See Partnership Act, 1890, 53 & 54 Vict. c. 39, s. 20.

(b) The words in brackets should be inserted in cases where there is a probability of some shares becoming settled, which might give rise to difficulties if the concurrence of all the beneficiaries was necessary.

of express covenants unnecessary. The provisions relating to mortgages and settlements will be noticed under those headings. The following is the substance of those relating to conveyances on sale.

First, In a conveyance for value (other than a mortgage), where a person By beneficonveys and is expressed to convey as beneficial owner," the Act implies the cial owner. usual qualified covenants by him for title and further assurance, as regards the subject matter expressed to be conveyed by him (sub-s. (1) A); and also

in a conveyance of leaseholds, that the lease is valid, and that the rent has been paid and the covenants performed (sub-s. (1) B).

covenants

extend.

The general effect of the clause, stated shortly, is that the liability under To whose the covenants extends to the acts of every ancestor, testator or settlor under acts the whom the conveying party derives title since the last conveyance for value (not being a marriage settlement), and to the acts of persons claiming under the conveying party or any such ancestor, testator or settlor (as to which see David v. Sabin, [1893] 1 Ch. 523, discussed 37 Sol. J. 400), and to the acts of any person conveying by direction of the conveying party. The fact that a defect in the title appears in the conveyance or is otherwise known to the purchaser does not alter the effect of the covenants for title, Page v. Midland Rail. Co. [1894] 1 Ch. 11. The exception as to marriage settlements was no doubt inserted on the ground that such a settlement may not contain full covenants for title; see s. 7, sub-s. (1) E.

Effect of covenants where there are

concurring

In reading the statutory covenants into the deed it will be seen that the first branch (for right to convey) being that "the covenantor, with the concurrence of the persons, if any, conveying by his direction, has power to convey," does not fit the common case of a person joining to release a charge who is under no obligation to do so, and cannot properly be made to convey parties. "by direction" of the vendor, e.g., a mortgagee who is not fully paid off, or an annuitant. To avoid inaccuracy the concurring parties might be made to convey "by the direction" of the implied covenantor "for the purpose only of implying the proper covenants; " which, however, would make the covenantor liable for the acts of the concurring parties. But this flaw in the Act, arising from the erroneous introduction into the covenant for right to convey of the words by his direction" is not regarded in practice as of any moment.

Secondly, In any conveyance by a person who conveys and is expressed to By fiduconvey as " trustee" or "mortgagee," or as "personal representative of a ciary deceased person," or as "committee of a lunatic," or "under an order of owner. the Court," the Act implies the usual qualified covenant by him (as to his own acts, &c., only), against incumbrances, as regards the subject matter expressed to be conveyed by him (sub-s. (1) F.).

lien.

There are some cases to which none of the above expressions are strictly Annuitant appropriate, e.g., an annuitant or person having a mere lien, or the liquidator or person of a company; the statutory words might be used in such a case to imply having the covenant; but it is better to insert an express covenant. Occasionally a person covenants against incumbrances and also for further assurance; in that case an express covenant is necessary for the latter purpose (the statutory covenant for further assurance implied by the words "as settlor," see SETTLEMENTS, not being appropriate), and had better be inserted for the former purpose also.

In a voluntary conveyance no covenant would be implied by the grantor Voluntary conveying "as beneficial owner," as those words only raise covenants in a conveyconveyance for value (see above); but if he conveys as settlor," a limited covenant for further assurance would be implied (see SETTLEMENTS). The

ance.

Extent of covenants.

By several parties.

By directing party.

By a married

full covenants might be implied by express words incorporating them; but it is not usual to insert them in such a case.

The statutory covenants extend to the whole fee simple or other estate or interest expressed to be conveyed by the implied covenantor, whatever his actual estate or interest may be, or may appear to be on the face of the conveyance. Where more than one person joins in the conveyance, the covenant implied in the case of each of them extends to the subject matter or share of subject matter expressed to be conveyed by him (sub-s. 1).

The Act also provides for the case of a person who joins in the conveyance merely as a directing party, by enacting (sub-s. 2) that if one person conveys by the direction of another who is "expressed to direct as beneficial owner," the same covenants by the latter shall be implied as if he had conveyed and been expressed to convey as beneficial owner" the subject Consenting matter conveyed by his direction. A tenant for life or other person who is party. merely a consenting party and has no power to direct the conveyance, may be made to do so for the purpose only of implying covenants for title; or he may for this purpose convey, by way of confirmation, as beneficial owner (in which case, however, the covenant for right to convey would be faulty, see above); or the statutory covenants may be incorporated by express words. The implied covenants may be raised in the case of a married woman who joins in the conveyance (see sub-s. 3) so as, by virtue of the Married Women's Property Act, 1882, s. 1, to bind her separate estate in the same By husband manner as if the covenant were express; and it is provided (sub-s. 3) that and wife. if the wife conveys as beneficial owner," and the husband also conveys as "beneficial owner," then the wife is to 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 husband there is also to be implied a covenant by him in the same terms as the covenant implied by the wife, the effect being that three covenants are implied; first, by the wife, binding her separate estate as to the acts of herself and persons under whom she claims; second, by the husband, as to the acts of himself and the person under whom he claims; third, by the husband, as to the acts of the wife, and persons under whom she claims.

woman.

Benefit of implied covenants.

Construction.

Applica

tion of the Act.

66

The implied covenants are in every case with the person to whom the conveyance is made, or with the persons jointly if more than one to whom the conveyance is made as joint tenants, or with each of the persons if more than one to whom the conveyance is made as tenants in common (sub-s. 1); and the benefit of them goes with the estate of the implied covenantee, and (by sub-s. 6) is enforceable by every person in whom such estate is wholly or partially vested, and where the covenant is with two or more, the benefit is to survive (s. 60). In a conveyance to uses the implied covenants would (in the same manner as express covenants) be with the grantee to uses. Where, however, the conveyance is made by appointment direct to the uses of a settlement, each person who takes as a purchaser under the settlement appears to be "a person to whom the conveyance is made," so that he and all persons claiming under him will be entitled to the benefit of the implied covenants.

By s. 64, in the construction of an implied covenant words importing the singular may be read plural, and vice versô, and the masculine gender the feminine.

The implied covenants may be varied or extended by deed (sub-s. 7). The enactment applies to every description of assurance by deed, and whether by grant, assignment, appointment, or otherwise, of any kind of