(n) Turner v. Moon, 1901, 2 Ch. 825; Great Western Ry. Co. v. Fisher, 190.5, 1 Ch. 316.

[o] Lock v. Furze, L. R. 1 C. P. 441, 443.

(p) Above, pp. 784 sq.

(q) Nash v. Aston, T. Jones, 195; Sag. V. & P. 601.

{r) 1893, 1 Ch. 523.

As judicial decisions upon the construction of covenants for title are not of very common occurrence, a further illustration may be given. The facts are taken, with some alteration, from a case on which the writer was instructed to advise. A. sold land to B. The land was subject, together with other lands of large value, to a mortgage in fee created by a person, under whom A. claimed by settlement, and the title to the mortgage was satisfactorily deduced to 0. The purchase was completed, C. receiving the whole purchase money by A.'s direction, and the land being conveyed by C. as mortgagee and by A. as beneficial owner to B. in fee simple. Afterwards B. was informed by C.'s solicitors that, owing to the appointment of a new trustee, the mortgage had been transferred, subsequently to the settlement of the draft conveyance, to C. and D.; and that this circumstance bad been overlooked in executing the conveyance. It was obvious that C. had committed a breach of the statutory covenant against incumbrances; but it further appeared, according to the rule in David v. Sabin (t), that A. had committed a breach of his covenant for right to convey. For one half of the mortgagee's legal estate remained outstanding in D, and the mortgage having been created by a person, against whose acts A. had covenanted, it appeared that A. was liable under the covenant, notwithstanding that he was entirely innocent of the immediate cause of the defect of title, that is to say, of C.'s conveyance of the mortgage estate to himself jointly with D. We may also remark that, owing to the form in which the information was conveyed to B , it appeared that he was affected with notice that C. was a trustee - a fact which had of course been carefully kept off the abstract (u). D, was willing to confirm the sale, but as B. found that he had paid the purchase money to one of two trustees, who had no power (unless specially authorised) to give a good discharge therefor, he was obliged to make requisitions for the production of the title of the beneficial owners of the mortgage money, in order to satisfy himself that the mortgage was an authorised investment of the trust money, and that C. and D. were duly appointed trustees, who could give him a good discharge for his payment (x).

(s) As to this point, see below, p. 1053.

24 (2)

The usual vendor's qualified covenants for quiet enjoyment and freedom from incumbrances are for quiet enjoyment, undisturbed by and free from all estates, incumbrances, and claims created or caused by any person or persons whose acts are covenanted against (y), or any person claiming under or in trust for him or them (z). And it is important to mark that the regular covenant for freedom from incumbrances is, not that the lands conveyed are free from incumbrances, but that they shall be quietly enjoyed free from the incumbrances specified (a). It follows that if land be conveyed which is subject to some outstanding incumbrance not expressly mentioned in the conveyance but comprehended in the covenants for title (as in David v. Sabin (b)), no breach of the vendor's covenant against incumbrances is committed by the mere fact of convey-ance. It is not until the purchaser is disturbed in his quiet enjoyment of the premises by reason of the incumbrance that a breach of that covenant arises (c). As the covenants for quiet enjoyment and freedom from incumbrances are not broken until the quiet enjoyment promised is disturbed, the Statute of Limitations does not begin to run against the covenantee until that event has happened, and then runs only in respect of the particular breach so occasioned (d). It appears that any outstanding estate, charge, or claim which would amount to a breach of the vendor's usual qualified covenant for right to convey (e) will be sufficient, so soon as the purchaser is disturbed by virtue thereof in his quiet enjoyment of the land sold, to cause a breach of the usual covenant against incumbrances. And of course in such case the disturbance of the purchaser's quiet enjoyment will in itself be a breach of the covenant for quiet enjoyment, apart from the covenant against incumbrances (f).

Nature of the usual qualified covenants for quiet enjoyment and freedom from incumbrances.

(t) Above, p. 1034.

(u) Above, p. 250 & n. (b).

(x) Above, p. 252.

{y) Above, pp. 1029, 1030 & n. (n).

Breach thereof, when committed.

A covenant for quiet enjoyment, undisturbed by any person claiming under the covenantor, is broken by the entry, not only of any person who has succeeded to the whole or any part of the covenantor's estate, whether after his death or by conveyance inter vivos, but also of any person who but for the covenantor's act would have had no title to the land (g). Thus a disturbance by the covenantor's heir or devisee, by his widow entitled to dower (h), or her husband to curtesy, or by any one claiming under a prior conveyance by the covenantor on sale, mortgage, or settlement (i), would be a breach of the covenant; and so would an entry by a person deriving title under a prior appointment by the covenantor under any power given to him either alone or jointly with any other person (k). And where a term of years had been created and mortgaged with the covenantor's concurrence under a power exercisable by trustees with his consent, the mortgagee was held to be a person claiming under the covenantor (l). Where a lessee was disturbed by a distress for arrears of land tax accrued due before the lease was made, it was considered that this was a disturbance by a person claiming against and not under the lessor, and was no breach of the lessor's express covenant for quiet enjoyment, undisturbed by the lessor himself or any one claiming under him (m). But if a vendor give the statutory covenants for. freedom from incumbrances made, occasioned, or suffered by himself, he will be liable thereunder in case the property sold remain subject, after the conveyance to the purchaser, to any charge thereon which the vendor was bound, but has omitted, to clear off before completion of the sale (n).