Covenant for further assurance does not enlarge the grant, unless such were the intention.

(o) Sug. V. & P. 012. (p) Above, pp. 461, 496,

(q) Above, p. 1040.

Davis v. Tollemache.

Bankes v. Small.

It appears that, under a covenant for further assurance, the covenantor may be required to execute a duplicate of the conveyance, if the original have been casually destroyed (x) or handed over to a sub-purchaser of part of the lands sold (y); but in such case the assurance executed should he indorsed as a duplicate (y), or expressed to be merely a deed of confirmation (z). It seems to be a question whether, under a covenant for further assurance, a purchaser can require to be furnished with a covenant or an acknowledgment for production of title deeds (a); but it does not appear that he can have any larger right in this respect by virtue of such a covenant than he enjoyed under the contract of sale (b). And if the conveyance did not contain such an acknowledgment as the purchaser was entitled to require, it does not appear that the contract of sale has been completely discharged, so as to prevent the purchaser from suing on the particular stipulation respecting the acknowledgment (c); more especially as acknowledgments are frequently given by a document separate from the conveyance (d). It is also a question whether a person executing a conveyance pursuant to a common covenant for further assurance is bound therein to covenant for title; but the better opinion appears to be that he is not; although a trustee executing such an assurance may be required to give the usual covenant against incumbrances (e). The usual covenant for further assurance (which is to do such acts as may reasonably be required for the purpose) is not broken by refusal to do an unnecessary act (f); nor if the failure to convey on request is occasioned by the act of God, as by the death (g), insanity (h), or severe illness (i) of the person whose assurance is required.

Acts which may be required under a covenant for further assurance.

(r) Davis v. Tollemache, 2 Jur. N. S. 1181.

(s) See Smith v. Osborne, 6 H. L. C. 375, 390 - 392, 39.3, 398.

(t) Pye v. Daubuz, 3 Bro. C. C.

695; Ex parte Fripp, De G. 293.

(u) Bankes v. Small, 34 Ch. D. 415, 36 Ch. D. 716.

(x) Bennett v. Ingoldsby, Finch, 2G2; 2 Dart, V. & P. 888.

(y) Napper v. Allington, 1 Eq. Ca. Abr. 166.

(z) 2 Dart, V. & P. 888.

(a) See Hallett v. Middleton, 1 Russ. 243; Fain v. Ayers, 2 S. & S. 533; Sug. V. & P. 613.

(b) Above, pp. 606 sq., 1043.

(c) See above, pp. 922, 923, 932.

(d) Above, pp. 614, 615.

(e) See Sug. V. & P. 614, 615.

(f) Warn v. Bickford, 9 Price, 43.

(g) Nash v. Aston, T. Jones, 195.

(h) Pet and Cally's case, 1 Leon. 304.

(i) Anon., Moore, 124.

For breach of the covenant for right to convey (which is, as we have seen (j), broken if the right he defective at the time of conveyance) the measure of damages is the difference between the value of the property as purported to be conveyed and its value as the vendor had power to convey it (k). And it is important to observe that the true measure of damages is the difference, not between the price paid and the value of the property as conveyed, but in the value of the property as purported to be and as actually conveyed; so that if the property as purported to be conveyed were worth more at the time of conveyance than the price paid for it, the purchaser would be entitled to the difference in the value at that time of what he contracted to buy and what he got (l). And of course by the same rule, if the price paid were in excess of the value, the purchaser would still be entitled to recover the difference in value only. But it appears that, in the absence of any other evidence as to the value of the property, as purported to be conveyed, at the time of conveyance, the price paid will be taken to be the value thereof (m). If, therefore, the property were sold and conveyed as free from incumbrances, and it turn out to be subject to some outstanding estate, interest or right, which is covered by the terms of the covenant for right to convey (n), the purchaser will be entitled to recover the amount by which the existence of the adverse interest has diminished the value of the purchased property (o). And where the purchaser has been obliged to pay off any outstanding mortgage or charge covered by the covenants for title, or to buy in any estate or interest so covered, in order to procure for himself the actual enjoyment of the property as purported to be conveyed, he will be entitled to recover the money so expended (p). Where such outstanding estate amounts to the entire rightful ownership of the property sold, so that what the vendor had power to convey was of no value at all, and the purchaser has never been in possession or was immediately ejected, the purchaser will be entitled to recover the whole value of the property as purported to be conveyed (q). If, however, the vendor had any, even a mere possessory title to the land conveyed, and the purchaser have actually had some beneficial enjoyment thereunder, it appears that the value of the interest so actually enjoyed would have to be deducted.

Measure of damages for breach of covenant for right to convey.

(j) Above, p. 1032.

(k) Gray v. Briscoe, Noy, 142; Wace v. Bickerton, 3 De G. & Sm. 751; Jenkins v. Jones, 9 Q. B. D. 128; Turner v. Moon, 1901, 2 Ch. 825, 829; Great Western Ry. Co. v. Fisher, 1905, 1 Ch. 316, 323.

(l) Jenkins v. Jones, 9 Q. B. D. L28. It is submitted that this case proves that the same measure of damages is applicable on breach of covenants for title entered into on a conveyance of land as on breach of a warranty of title or quality given on a sale of goods; see Loder v. Kekulé, 3 C. B. N. S. 128; Jones v. Just, L. R. 3 Q. B. 197; Re Bahia and San Francisco Ry. Co., ib. 584; Re Ottos Kopje Diamond Mines, Ltd., 1893, 1 Ch. 618; Balkis Consolidated Co. v. Tomkinson, 1893, A. C. 396.