Good right to convey. For quiet enjoyment. mainder, or limitation of any use or uses, or other restraint, cause, matter, or thing whatsoever, to alter, change, defeat, incumber, revoke, or make void the same: AND (m) that for and notwithstanding any such act, deed, matter, or thing as aforesaid, he, the said [vendor] now hath in himself good right, full power, and lawful and absolute authority to grant, bargain, sell, release, and confirm the said piece or parcel of land and hereditaments herein-before granted and released, or expressed and intended so to be, with the appurtenances thereunto belonging, unto the said [purchaser], his heirs and assigns, in manner aforesaid, according to the true intent and meaning of these presents: AND (n) that it shall and may be lawful to and for the said [purchaser], his heirs and assigns, from time to time and at all times hereafter, peaceably and quietly to enter into and upon, and to have, hold, occupy, possess, and enjoy the said piece or parcel of land and hereditaments herein before granted and released, or expressed and intended so to be, with their appurtenances, and to have, receive, and take the rents, issues, and profits thereof, and of every part thereof, to and for his and their own use and benefit, (m) In small purchases the first covenant is sometimes omitted, which may be safely done, for, as observed in the last note, the first and second are synonymous. The qualifying words named above, whether they are used in the first and second covenants, or whether in the second (where the first is omitted), will not have the effect of restricting the operation of the third covenant, or that for quiet enjoyment; for, observes Lord Ellenborough, in Howell v. Richards, 11 East, 633., "It is perfectly consistent with reason and good sense, that a cautious grantor should stipulate in a more restrained and limited manner for the particular description of title which he purports to convey, than for quiet enjoyment. He may suspect, or even know, that his title is, in strictness of law, in some degree imperfect: but he may at the same time know, that it has not become so by any act of his own; and he may likewise know, that the imperfection is not of such a nature as to afford any reasonable chance of disturbance whatever to those who should take under it : he may, therefore, very readily take upon him an indemnity against an event which he considers as next to impossible, whilst he chooses to avoid a responsibility for the strict legal perfection of his title to the estate, in case it should be found at any period to have been liable to some exception at the time of his conveyance." (n) If a party covenant for quiet enjoyment against all claiming by, from, or under him, a claim of dower by his wife is within the covenant; but otherwise, if the mother of the party claim her dower, because she does not claim by, from, or under him. (Godb. 333. Palm. 340.) without the lawful let, suit, trouble, denial, eviction, interruption, claim, or demand whatsoever, of or by him the said [vendor], or his heirs, or of, from, or by any person or persons whomsoever, lawfully or equitably claiming or to claim by, from, or under or in trust for him, them, or any of them: AND (0) that free and clear, and freely and clearly and ab- Free from insolutely acquitted, exonerated, released, and for ever dis- cumbrances. charged, or otherwise by the said [vendor], his heirs, executors, or administrators, well and sufficiently saved, defended, kept harmless, and indemnified of, from, and against all and all manner of former and other gifts, grants, bargains, sales, jointures, dowers, right and title of dower, uses, trusts, entails, wills, statutes merchant and of the staple, recognizances, judgments, executions, rents, arrears of rent, annuities, legacies, sums of money, yearly payments, forfeitures, re-entries, cause and causes of forfeiture and re-entry, debts of record, debts due to the Queen's majesty, and of, from, and against all other estates, titles, troubles, charges, debts, and incumbrances whatsoever, either already had, made, executed, occasioned, or suffered, or hereafter to be had, made, executed, occasioned, or suffered by the said [vendor], or his heirs, or any other person or persons lawfully or equitably claiming or to claim, by, from, or under or in trust for him, them, or any of them: AND FURTHER (p), that he the said And for further (0) "And that free and clear," &c. In a note to the second sect. of chap. 13. of Vend. & Pur., Sir Edward Sugden says, This pronoun is used emphatically—you shall enjoy the estate, and that free from incumbrance. Dr. Johnson has extracted a passage from the Duty of Man, in which the word is used in the same sense :- -'We must direct our prayers to right ends; and that either in respect to the prayer itself, or the things we pray for.' It has, however, been thought that the word has crept into the common form of covenants through inadvertence." (9th edit. vol. ii. p. 91.) 66 If there be a charge, future and contingent, if the contingency happen, it will be a breach of the preceding covenant for quiet enjoyment (1 Leon. 93. Couldsb. 59. Com. Dig. Covenant, (E. 1.)), which is the reason why these words are inserted. (p) Under this covenant the purchaser is entitled to the specific performance of the acts requisite to be done for perfecting the title (Edwards v. Applebee, cited 2 Bro. C. C. 652.), or to damage for non-performance. (Sugd. Vend. ut supra.) Athough it is not stipulated at whose expense the further assurance shall be made, yet if it be requisite to aid the purchaser's title, it must be at his expense (1 Bulstr. 90.); wherefore, it is now always stipulated at whose expense the same is to be made. assurance. [vendor], and his heirs, and all and every other person and persons having or claiming, or who shall or may have or claim any estate, right, title, interest, inheritance, use, trust, property, claim, or demand whatsoever, either at law or in equity, of, in, to, or out of the said piece or parcel of land, hereditaments, and premises hereby granted and released, or expressed and intended so to be, or any of them, or any part thereof, by, from, or under or in trust for him the said [vendor], or his heirs, shall and will, from time to time and at all times hereafter, upon every reasonable request to be made for that purpose, by and at the proper costs and charges of the said [purchaser], his heirs or assigns, make, do, acknowledge, and execute, or cause and procure to be made, done, acknowledged, and executed, all such further and other lawful and reasonable acts, deeds, things, devices, conveyances, and assurances in the law whatsoever, for the further, better, more perfectly and absolutely granting, releasing, conveying, assuring, and confirming the said piece or parcel of land, and other hereditaments herein-before granted and released, or expressed and intended so to be, with their appurtenances, unto the said [purchaser], his heirs and assigns, as by the said [purchaser], his heirs or assigns, or his or their counsel in the law, shall be reasonably devised or advised and required. IN WITNESS, &c. (q) (9) For forms of attestation, and of receipt for purchase money, and .' of the lease for a year, see Common Form Book. II. CONVEYANCE BY LEASE AND RELEASE of Manor, Lands, Recites conveyance to vendor's testator. THIS INDENTURE, made the day of, in the year of our Lord 1838, BETWEEN [vendor] of in the county Parties. of, esquire (a), the brother and devisee in fee named in the last will and testament of A. B., late of in the county of, esquire, deceased), of the first part, [purchaser] of in the county of· -, esquire, of the second part, and [trustee] of, &c. of the third part. WHEREAS, by indentures of lease and release, bearing date respectively the 4th and 5th days of August, 1820, and made or expressed to be made between therein described, of the one part, and the said A. B., deceased of the other part, the manor, messuages, lands, tenements, or hereditaments herein-after granted and released, were conveyed and assured unto and to the use of the said A. B., his heirs and assigns, for ever. AND Devise of here. WHEREAS the said A. B. duly made, signed, and published ditaments to his last will and testament (b) in writing, bearing date the day of now last, and executed and attested so as to pass real estates (c), whereby he gave and devised the (a) "It is usual, and very convenient, though not important, to describe in what capacities the several parties act, as C. D., the brother and devisee in fee named in the last will, &c." (Introd. Sect. 3. "Parties.") (b) Properly, the word testament applies to personal estate, as will to realty "so the word devise properly and technically applies to dispositions by will of freehold hereditaments, and bequest or legacy to dispositions of personal estate." (See Burn, Ecc. Law, tit. Wills.) The word, however, is so generally used in this form of recital, that it has been retained. (c) Before the recent statute for the amendment of the law with respect to wills, 1 Vict. c. 26. the devise must have been in conformity with the provisions of the Statute of Frauds regarding real estate, and therefore in the recital these particular words are used. Now, however, there is no distinction between the execution of wills, whether they relate to realty or personalty, both requiring two witnesses, &c. vendor. tator. Contract for purchase. manor, messuages, lands, tenements, and hereditaments hereafter particularly mentioned and described, and hereby granted and released unto the said [vendor], his heirs and assigns, To the use of the said [vendor], his heirs and Death of tes- assigns for ever: AND WHEREAS the said testator departed this life on or about the day of - now last, without having revoked or altered his said will (d): AND WHEREAS the said [purchaser] hath contracted and agreed with the said [vendor] for the absolute purchase of the freehold and inheritance in fee-simple in possession of the said manor or lordship, messuages, lands, tenements, &c. herein-after particularly mentioned and described, and intended to be hereby granted and released (free from all incumbrances, except the land-tax), at or for the price or sum of 3000l.: Witness. Vendor Now THEREFORE THIS INDENTURE WITNESSETH, that, for and in consideration of the sum of 3000l. of lawful money of the United Kingdom of Great Britain and Ireland, to the said [vendor] in hand well and truly paid by the said [purchaser] at or immediately before the sealing and delivery of these presents (the receipt (e) of which said sum of 3000%. the said [vendor] doth hereby acknowledge; and of and from the same, and every part thereof, doth acquit, release, and discharge the said [purchaser], his heirs, executors, administrators, and assigns, and every of them, for ever, by these presents, HE the said [vendor] HATH granted, bargained, sold, released, and confirmed, and by these presents DOTH grant, bargain, sell, release, and confirm unto the said [purchaser], (in his actual possession now being by a virtue of a conveys. (d) It is a very common practice to state the proof of the will, in the Prerogative Court, or the Court of peculiar jurisdiction; but this is wholly unnecessary where, as in the case in the text, the real estate alone is dealt with, the administration issued by the Ecclesiastical Court relating only to personal property. It not unfrequently happens that proprietors of large landed estates make two wills, one relating to the real, and the other to the personal property; in which case, of course, only the latter would be proved. It is true, that where a party affects to deal with realty as heir-at-law, search is usually, and properly, made in the Ecclesiastical Courts for a will, a circumstance which has arisen from the frequent habit of testators dealing with both realty and personalty by the same instrument. (e) See note as to the receipt for the consideration money, at p. 29. ante, n. (d). |