The usual covenant for right to convey is broken if by reason of any act, omission or sufferance on the part of any person, whose acts, etc. are covenanted against, the conveying party or parties had not, at the time of the execution of the conveyance, such right as enabled him or them to make a valid assurance of the land in the manner expressed in the deed (a). And it appears, according to the balance of authority, that a breach of this covenant caused by the absence of the right contracted for is entire and complete at the time of the execution of the conveyance, so that the Statute of Limitations will begin to run in the covenantor's favour as from that date (b), notwithstanding that the covenantee be ignorant of the breach (c). If, however, the breach of covenant were fraudulently concealed by the covenantor, it appears that according to the present law the statute will not begin to run until the time when the fraud was or might with reasonable diligence have been discovered (d). In all these respects, a covenant for the validity of a lease and the ordinary trustee's or mortgagee's covenant against incumbrances (e) appear to stand on the same footing as the covenant for right to convey (f).

Covenant for right to convey, when broken.

(z) Above, p. 1030.

(a) Bradshaw's case, 9 Rep. 60b; S. C, nom. Salmon v. Brad-shaw, Cro. Jac. 304; Kingdon v. Nottle, 1 M. & S. 355, 365; Sug. V. & P. 610; Spoor v. Green, L. R. 9 Ex. 99, 109, 110, 116; David v. Sabin, 1893, 1 Ch. 523; Turner v. Moon, 1901, 2 Ch. 825.

(b) Turnery. Moon, 1901,2 Ch.

825, adopting the judgment of Bramwell, B., in preference to that of Kelly, C. B., in Spoor v. Green, L. R, 9 Ex. 99; 2 Dart, V. & P. 781, 5th ed.; 881, 6th ed.

(c) Short v. McCarthy, 3 B. & A. 626; Howell v. Young, 5 B. & C. 259.

It is a breach of the usual vendor's qualified covenant for right to convey if the land assured remain subject to any outstanding estate, interest, mortgage, charge or claim, whether at law or in equity (g), to which the conveyance was not expressly made subject, and which was created or caused by any act, omission, or sufferance of any person comprehended in the covenant (A). This is the case if the vendor, or any of his predecessors in title specified in the covenant, had been bankrupt before the conveyance, and the estate sold remained in the trustee in the bankruptcy (i); or if the vendor or any such predecessor as aforesaid had created any mortgage or lease of the land sold and the same had not been completely got in or extinguished before or by the conveyance (k); or if the vendor sold as devisee of the entire fee simple but in truth took a life estate only under the will (l); or if the vendor or any such predecessor had previously sold and conveyed away a part of the land which he purported to assure (m), or had granted rights of way or any other easement over the land (n); or if the vendor selling as tenant in fee had previously made a settlement of the land, under which he was entitled for his own life only (o). The covenant is also broken if the vendor or any party concurring by his direction in the conveyance were under any legal incapacity (as infancy, coverture, etc. (p)) which prevented the conveyance from taking valid effect as expressed (q). It should be particularly observed that if the vendor or any other person whose acts, etc. are covenanted against, made a prior conveyance of any kind and the whole estate or interest then conveyed have not been got in before or by the assurance to the purchaser, the defect of title is owing to the act of the person who made the prior conveyance, notwithstanding that the outstanding estate or interest were not created by him, but were made without his knowledge by some person claiming under the prior conveyance. Thus, in David v. Sabin (r), A. granted a lease of land to B. for ninety-nine years, and B. mortgaged the laud by demise.

Examples of a breach of the usual vendor's qualified covenant for right to convey.

(d) Gibbs v. Guild, 9 Q. B. D. 59.

(e) Above, pp. 575, 578, 581, 582

(f) 2 Dart, V. & P. 881.

(g) See above, p. 973, n. (d).

[h) See Spoor v. Green, L. R. 9 Ex. 99, 110, 116; David v. Sabin, 1893. 1 Ch. 523; Tarner v. Moon, 1901, 2 Ch. 825.

(i) Jenkins v. Jones, 9 Q. B. D. 128.

(k) David v. Sabin, 1893, 1 Ch. 523.

(/) Page v. Midland Ry. Co., 1891, 1 Ch. 11.

(m) May v. Platt, 1900, 1 Ch. 616.

B. then surrendered the term to A. for valuable consideration, without disclosing to him the existence of the mortgage. Afterwards A. sold and conveyed the land to B. in fee, entering into the statutory covenants for title; and B. mortgaged the land to X. in fee, and then X. and B. together sold and conveyed the land to standing interest, viz., B.'s underlease by way of mortgage, was made by B. without A.'s knowledge. And it was further decided that the mortgage was an incumbrance made by a person claiming under A., and the establishment of the charge by action was the act of a person claiming under A.; so that A. had also committed a breach of his covenants for quiet enjoyment and freedom from incumbrances. The Court also held that, as the defect of title was referable to the act of A. in originally granting the lease, he was not exonerated from liability under the covenants by the fact that he took back the surrendered term as a purchaser for valuable consideration. For the mortgage sub-term remained unaffected by the surrender; and A. did not then purchase the mortgagee's interest, or obtain any title thereto. Finally, it was considered that B.'s fraud in concealing his mortgage from A. could not be pleaded as a defence to C.'s action on the covenants (s).

C. B.'s mortgagee by demise having subsequently established his charge on the land in an action against C, C. sued A. on the statutory covenants for title implied in A.'s conveyance to B. And it was held by the Court of Appeal, reversing the decision of Romer, J., that, as the granting of the lease was the act of A., he had committed a breach of his covenant for right to convey, and it was immaterial that the actual outDavid v. Sabin.