(m) Turner v. Moon, 1901, 2 Ch. 825, 829; cf. above, p. 963.

(n) Above, p. 1033.

The measure of damages for breach of a covenant for quiet enjoyment (which, as we have seen (r), is not broken until some actual disturbance has taken place) is what the covenantee has lost in consequence of the breach of covenant; that is to say, in case of an entire eviction, the value at the date of the breach of the property so taken away from him (s). And where the purchaser has not been altogether deprived of the property conveyed to him, but its value has been permanently diminished by the assertion of some outstanding estate or interest comprehended in the covenant, he is entitled to recover the difference between the value at the date of the breach of the property as contracted to be enjoyed by him and its value in the state in which it remains to him immediately after the breach (t). But the remedy on a covenant for quiet enjoyment is not limited to the value of the property of which the purchaser has been deprived: he may recover thereunder all damages which are the natural consequence of the breach (u), such as the expense (where he has been ejected) of moving into a new house or place of business (x) . Where the breach of a covenant for quiet enjoyment is not an entire eviction, nor a permanent alienation of some part of the covenantee's estate, but is only a temporary disturbance, as by entry under a right of way, the measure of damages is not the same as for breach of a covenant for right to convey - that is, the difference in value (y) - but is only the actual inconvenience suffered up to the date of the assessment of damages (z).

Breach of covenant for quiet enjoyment.

(o) See Kingdon v. Nottle, 4 M. & S. .53, 54; David v. Sabin, 1893, 1 Ch. 523, 527, 537, 541, 546 (above, p. 1034); Page v. Midland Ry, Co., 1894, 1 Ch. 11, 21; May v. Platt, 1900, 1 Ch. G16, 623; and cases cited above, n. (k).

(p) Great Western Ry. Co. v. Fisher, 1905, 1 Ch. 316.'

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

(r) Above, p. 1037.

(s) Williams v. Burrell, 1 C. B. 402, 410, 433; Lock v. Furze, L. R. 1 C. P. 441; Rolph v. Crouch, L. R. 3 Ex. 44, 49, 50; Jenkins v. Jones, 9 Q. B. D. 128.

Where the purchaser has been evicted, he is entitled to recover interest on the assessed value of the land from the date of eviction until payment by way of damages for loss of profits during the time that he has been out of possession (a). And on the same principle he is entitled to interest on the amount of any outstanding charge or claim, which is covered by the covenants for title, and which he has paid off or bought in (b). It appears, however, that if the purchaser be negligent in not suing at once upon the covenants for title, he may be deprived of interest for any time that he has been kept out of the principal money by his own delay (c).

Interest.

(t) See cases cited above, p. 1047.

(u) See above, p. 958.

(x) Grosvenor Hotel Co. v. Hamilton, 1894, 2 Q. B. 836,840.

(y) Above, p. 1046.

(z) Child v. Stenning, 11 Ch. D. 82; R. S. C. Ord. XXXVI. r. 58.

(a) King v. Jones, 5 Taunt. 418, 422.

(b) Great Western Ry. Co. v. Fisher, 1905, 1 Ch. 316.

If the purchaser should have expended money on improvements subsequently to the conveyance, it has been a question how far he can recover the value of the improvements, in case of his eviction, under the covenants for title. It appears that as regards the covenant for right to convey, the damages ought to be measured by the value of the land at the time of the breach of covenant, that is, at the date of the execution of the conveyance (d); and this would of course exclude compensation for any subsequent improvements. But with respect to the covenants for quiet enjoyment and freedom from incumbrances, which are not broken until some actual disturbance has taken place (e), the case is different; and the better opinion appears to be that under these covenants an evicted purchaser is entitled to recover the actual value of the land, as it existed at the date of the breach of covenant. This would include the value of any buildings or similar improvements which the purchaser had erected or made. It appears to be admitted that the value of such improvements would be recoverable where by the contract of sale it was contemplated that they should be made (f). But it is submitted that in measuring the damages for breach of a covenant for quiet enjoyment, the true question is what was contemplated by that contract, and not by the contract of sale. And where land is conveyed on a sale to a purchaser in fee, with a covenant for quiet enjoyment, what is contemplated appears to be that he shall quietly enjoy the same as full owner and with the owner's liberty to use or improve the premises as he will. And if he be evicted for some cause, which, occasions a breach of this covenant, his loss appears to be truly measured by the value at that time of the property from which he has been ejected (g); and these damages seem to be such as are the natural consequence of the breach, or at least such as the parties to the covenant must have contemplated as the result thereof (h). It is further submitted that the rule, which entitles an evicted purchaser to recover, on a breach of a covenant for quiet enjoyment, the value of the property as it existed at the date of the breach (i), will enable him to recover the full value of the land at that time, notwithstanding that its value should have been enhanced, since it was conveyed to him, by circumstances independent of his own outlay or efforts (k). Of course the same rule gives to the covenantor the benefit of any fall since the conveyance in the value of the property sold (l).

Improve ments.

(c) Anderton v. Arrowsmith, 2 Per. & Dav. 408.

(d) Above, pp. 1032, 1046.

(e) Above, p. 1037. (f) Bunny v. Hopkinson, 27 Beav. 565.

The purchaser may well compromise or refer to arbitration any adverse claim made upon him, which would be covered by the vendor's covenants for title, without giving notice to the vendor of the claim or his proceedings; and he will be entitled to recover under the covenants the amount paid or awarded to be paid by him as compensation and costs to the claimant, with interest thereon at 4 per cent, per annum from the date of payment, and his own solicitor's costs of the compromise or arbitration to be taxed as between solicitor and client (m). If however the vendor had received no notice of the claim and the intention to compromise it, he would he at liberty to prove in defence that the claim was unfounded, either wholly or partially, or that he could have made better terms than the purchaser, or that the purchaser made an improvident bargain: though in these respects he would have to bear the burthen of proof. On the other hand, if notice of the claim be given to the vendor and he decline or fail to remove or contest it himself, he will be estopped from alleging any such grounds of defence (n). But if an action or other proceeding in Court be brought by an adverse claimant against the purchaser, he cannot safely defend it without giving notice to the vendor or other person liable on the covenants for title, and obtaining his directions as to the course to be pursued. For if the purchaser omit to do this, and there be no good nor reasonably probable (o) ground of defence, he will not be entitled to recover any costs of defending the proceedings against him as damages necessarily resulting from the breach of covenant (p). If the purchaser obtain the vendor's authority to defend the action, or if with the vendor's authority the purchaser himself institute proceedings against an adverse claimant, he will be entitled to recover his costs of the proceedings, though unsuccessful therein (q). And it has been held that, if the purchaser give such notice as aforesaid and his application be disregarded, he may then defend the proceedings at his own discretion and without any express authority from the covenantor; and he will be entitled to recover under the covenant his costs of the defence, namely, any costs that he may have been ordered to pay to the successful party, and his own costs taxed as between solicitor and client (r). But even in this case it is questionable whether he could recover any such costs, if the facts were such that any defence must be hopeless (s). Where an award in an arbitration or judgment in an action has been given against the purchaser, he should not defend an action on the award or appeal against the judgment, without the covenantor's express direction; otherwise he will be unable to recover any costs of such proceedings as damages (t).