(u) Above, pp. 350 sq.

(x) This is further apparent from the fad that the covenants for title, which the vendor is bound to give, include a covenant that the rent has been paid and the covenants performed; see above, p. 652.

(y) Davidson, Prec. Conv. vol. ii. pt. i. 419, 4th ed.; 1 Key & Elph, Prec. Conv. 457, 8th ed.

(z) See Gooch v. Clutter buck, 1899, 2 Q. B. 148, where the covenant was not exactly in the common form: but the construction placed upon it certainly throws doubt upon the construction of the common form, which is not expressed with unmistakable accuracy. Some of the reasons given for the decision in this case appear questionable: but it may be supported on the ground that the breach of the covenant to repair was a con-tiuuing breach and the assignee covenanting to perform the covenants as from the date of the assignment came under an immediate duty to perform the covenant to repair, and he could not discharge this duty without remedying the whole breach of the covenant. Thus his failure to remedy the continuing In-each, which occurred after the assignment, made him indirectly liable to indemnify the vendor against a breach of covenant which had occurred before it.

When freehold or copyhold land affected by restrictive covenants is sold subject to the covenants, the question of the purchaser's liability to covenant to indemnify the vendor depends on the principle above stated (c), the same as prevails in the case of the leaseholds. If the vendor will remain liable, after the conveyance, under any covenant or contract previously made by him, for the future omission to observe the restrictions, the purchaser must covenant to indemnify him; otherwise not. And this principle is properly applicable, whether the vendor or the purchaser seek to enforce the contract (d).

Indemnity on sale of land subject to restrictive covenants.

(a) The judgments given in Re Highett and Bird's Contract, 1903, 1 Ch. 287, are opposed to this view: but it is submitted that those judgments were delivered under a mistaken apprehension of the law: see above, p. 354.

(b) Apparently a covenant of indemnity in the common form would effect this object, where the breach is continuing, for the reason given in the previous note. But if the breach were not continuing the common form could not be relied on. Where the vendor covenants for title in the usual way, it seems impossible to construe the common form of purchaser's covenant as extending to past breaches of covenant.

(c) Above, p. 667.

(d) Re Poole and Clarke's Contract, 1904, 2 Ch. 173. See Mox-hay v. Inderwick, 1 De G. & S. 708; Lukey v. Higgs, 1 Jur. N. S. 200, where there are dicta leading to the conclusion that, where land is expressly sold as being subject to restrictive covenants, but without an express stipulation that the purchaser shall observe the covenants, the purchaser cannot enforce the specific performance of the contract without entering into a covenant with the vendor to observe the restrictions; but if specific performance be sought by the vendor, the purchaser cannot be obliged to enter into such a covenant: see Sug. V. & P. 38. But it appears that Mr. Dart's criticism of these dicta (1 Dart, Thus the vendor will be entitled to be indemnified where he was a party to the contract, which originally imposed the restrictions, or where he bought from one liable to observe the restrictions and covenanted with him to observe the restrictions and to indemnify him against all future breaches thereof. But if the vendor were no party to the contract creating the restrictions and acquired the land subject to the restrictions without himself contracting to observe them or to indemnify his grantor against their non-observance (e), there is no reason for calling upon the purchaser to indemnify him. These results follow, when land is sold subject to restrictive covenants, although the contract for sale do not expressly provide for any covenant being made by the purchaser: but the purchaser, where he can be required so to covenant, is entitled to have his own covenant to observe the restrictions limited in express terms to securing the vendor's indemnity against future breaches of the restrictive covenants (f). It is however common for a vendor who is selling land subject to restrictive covenants, and will remain liable for the failure to observe them, to stipulate expressly that the purchaser shall covenant to observe the restrictions and indemnify him against any future omission to observe them; and if this be done, the purchaser must of course covenant in the terms stipulated for. Where lands were sold subject to a covenant not to erect thereon any buildings other than those of a particular kind and also subject to "proper provisions for securing the due observance and performance" of the covenant, it was held that the vendor was entitled to have inserted in the conveyance a power of re-entry, exercisable within the period of certain existing lives and twenty-one years after, in case of any breach of the covenant, for the purpose of pulling down any buildings erected in breach of the covenant, and holding the lands until reimbursed all expenses of so doing; but was not entitled to have a term of years or a rent-charge limited to a trustee for the purpose of securing the performance of the covenant (g). This was so decided in consequence of the express stipulation for proper provisions for securing the performance of the covenant; and, without such stipulation, a vendor selling lands subject to restrictive covenants cannot insist on the insertion in the conveyance of any proviso for re-entry on breach of the covenant.

V. & P. 659 561, 5th ed.: 631 633, 6th ed.) was correct: and that the distinction bo suggested is unsound; and it is now established that the true principle is that stated in the text; Re Poole and Clarke's Contract, ubi susp.

(c) See above, p. 667.

(f)Re Poole and Clarke's Contract, 1904, 2 Ch. 173: above, p. 668.