With some few special exceptions (m), a purchaser, after the conveyance is executed by all necessary parties, has no remedy at Law or in Equity in respect of any defects either in the title to, or quantity, or quality of, the estate, which are not covered by the vendor's covenants.

Liability of covenantee, how affected by bankruptcy.

Purchaser's general remedies for defects after conveyance depend on vendor's covenants.

(k) Spencer's case, 5 Rep. 16. (l) 12 & 13 Vict. c. 106, see s. 145.

(m) Infra.

And to consider first the legal rights of the purchaser and his representatives under the covenants for title.

Such covenants, it may be observed, bind only the covenantor and his representatives; and not alienees as such; it is therefore only necessary to consider who are entitled to the benefit of them.

Such covenants may be enforced at Law, not only by the covenantee and his representatives, but by alienees who claim under the seisin vested in the original covenantee, or, as it is expressed, in privity of estate (n); for instance, if A. convey land to B. and his heirs to certain specified uses, or to such uses as C. shall appoint, and covenant for title with B. and his heirs, the right to sue upon the covenants will go with the seisin to the persons from time to time claiming under the uses limited by the conveyance, or under any appointment by C. under his power (o); so, if the conveyance were to B. and his heirs, to such uses as C. shall appoint, and in default of appointment to the use of C. in fee, and A. covenant with C. and his heirs, and C. (instead of exercising his power of appointment) convey the estate limited to him in default of appointment, his alienee, it appears, can sue upon A.'s covenants (p); so, if C, in exercise of his power, appoint the land to the use of D., and covenant with him and his heirs for title, C.'s covenants can be sued upon by the alienees of D.: and in the two former cases, the right to sue upon A.'s covenants, and, in the last case the right to sue upon C.'s covenants, will go with the land to all successive owners (q): and the heir or assignee although not named in the covenants for title may nevertheless sue thereupon (r).

His remedies under covenants for title, are only against vendor and his representatives.

Benefit of covenants for title runs with seisin, to cestui que use and his alienees.

So covenants with cestui que use will run with his estate.

(n) 3 Durn. & E. 402.

(o) See Sug. 709. (p) See Sug. 710, where the point is held to be free from doubt; but see Third Report of Real Prop. Com. 52.

(q) See Sug. 709 et seq.

But, in the case last supposed, D.'s alienee, although he might sue upon C.'s covenant, could not sue upon A.'s; as he would not take the estate of A.'s covenantee (s); so, if C, instead of appointing to the use of D., were to appoint to such uses as D. should appoint, D.'s appointee could not sue upon C.'s covenant; for he would not take the estate of C.'s covenantee.

Sir E. Sugden intimates a sort of doubt (t) whether the doctrine of privity of estate may not apply as well to covenantor as to covenantee; that is, whether, in order that the alienee may sue, he must not only claim the estate of the covenantee, but also claim it under a conveyance or appointment by the covenantor; which, in a large proportion of conveyancing transactions, is not the case: the Real Property Commissioners consider that the doubt is set at rest by authority (u); and this conclusion, although not acquiesced in by Sir E. Sugden, is usually (it is believed) acted on in practice.

And the benefits of the covenants will go with the estate of the original covenantee, although leasehold (w), or copyhold (x); nor is it clearly essential that the estate should be actually vested in the covenantee at the date of the covenant; it would probably be sufficient if the covenants were entered into preparatory to the estate being so vested, and as part of the same transaction (y).

Where land is divided, the benefit of attendant covenants will, it seems, go to each alienee in respect of the portion of land taken by him (z); so, where the estate is divided, as where it becomes vested in A. for life, remainder to B. in fee, and the breach of covenant affects the entire inheritance, the owner of each portion of the inheritance can sue for damages proportioned to the extent of his estate (a).

But cannot be sued on by alienee not claiming in privity of estate.

Whether there must be privity of estate, as well with covenantor as covenantee.

Covenants run with leasehold or copyhold estate.

Privity at actual date of covenant whether essential.

Benefit of

(r) See 2 Bac. Abr. 349.

(s) Roach v. Wadham, 6 East, 289.

(t) Sug. 713.

(u) See Third Report, p. 52, and 9 Jarm. Conv. by S. 356; Smith's Leading Cases, 3rd ed. 30.

(w) Noke v. Awder, Cro. Eliz. 436, and Lewis v. Campbell, 8 Taunt. 715.

(x) See Riddell v. Riddell, 7 Sim. 529.

(y) Ibid. 534, 535, and Sug. 711: the doctrine however seems open to remark, and perhaps can be scarcely relied on in practice; see 3 Dav. Conv. 306. covenants apportioned with land and estate.

It has been decided, that covenants will run with tithes the same as with land (b); and the better opinion seems to be, that, in this respect, there is no distinction between tithes and other incorporeal hereditaments (c).

Where the estate is merely equitable, there can be no assignee at Law, and the covenants cannot be enforced at Law by an equitable assignee; so, if the conveyance, although intended so to do, do not in fact pass any legal estate, it appears that the assignee cannot sue (d); but in either case, the assignee, although unable to sue in his own name, would be entitled to sue in the name of the original covenantee (e).

In considering what amounts to a breach of the several usual covenants for title, it may be premised, that, as respects the covenants for seisin in fee, (or, in the case of a lease, that the lease is valid,) and for right to convey, surrender, or assign; and also the usual trustee's covenants against incumbrances; the same, if broken at all, are necessarily broken immediately upon the execution of the assurance which contains them (f); so that the Statute of Limitations immediately begins to run in favour of the covenantor: whereas the usual covenants that the purchaser shall enjoy the estate, free from incumbrances, and for further assurance, can only be broken by subsequent events; and the Statute does not begin to run until there is an actual breach, and then only in respect of that particular breach (g).