First as to the legal rights of the purchaser and his representatives under the covenants for title.

Section 5

Purchaser's general remedies on vendor's covenants for title.

(I) Third Rep. of R. P. Commrs., 52; Spencer's Case, 1 Sm. L. C. 11th ed. at p. 68.

(m) S. 7, sub-s. 6.

(n) S. 9.

(o) See Spencer's case, (1583) 5 Co. 1G.

(p) And see notes to 8. 58 in Wolst. Conv. and S. L. Acts.

(q) Millar v. Small, (1853) 1 Macq. 345 ; and see King's Coll., Aberdeen v. Hay, (1854) ib. 526 ; and ef. Burns v. Bryan, (1887) 12 A. C. 184.

(r) See and consider Stokes v. Russell, (1790) 3 T. R. 678.

(s) Millar v. Small, (1853) 1 Macq. 345 ; King's Coll., Aberdeen v. Hag, sup.

Such covenants bind only the covenantor and his representatives, and not alienees as such ; it is therefore only necessary to consider who are entitled to the benefit of them.

Who are bound.

They may be enforced not only by the covenantee and his representatives, but by alienees who claim under the seisin vested in the original covenantee, or, as it is expressed, by privity of estate (t) : for instance, if A. convey land to B. and his heirs to certain specified uses, or to such uses as C. shall appoint, and covenant for title with B. and his heirs, the right to sue upon the covenants will go with the seisin to the persons from time to time claiming under the uses limited by the conveyance, or under any appointment by 0. under his power (u) : so, if the conveyance were to B. and his heirs, to such uses as C. shall appoint, and in default of appointment to the use of C. in fee, and A. covenant with C. and his heirs, and C. (instead of exercising his power of appointment) convey the estate limited to him in default of appointment, his alienee can sue upon A.'s covenants (x) : so, if C, in exercise of his power, appoint the land to the use of D., and covenant with him and his heirs for title, C.'s covenants can be sued upon by the alienees of D. : and in the two former cases, the right to sue upon A.'s covenants, and, in the last case, the right to sue upon C.'s covenants, will go with the land to all successive owners (y) : and the heir or assignee, though not named in the covenants for title may, even independently of s. 58 of the Conv. Act, 1881, nevertheless sue thereupon (s).

Benefit of covenants for title runs with seisin, to cestui que use and his alienees.

So covenants with cestui que use will run with his estate.

But, in the case last supposed, D.'s alienee, though he might sue upon C.'s covenant, could not sue upon A.'s; as he would not take the estate of A.'s covenantee (a) : so if C, instead of appointing to the use of D., were to appoint to such uses as D. should appoint, D.'s appointee could not sue upon C.'s covenant: for he would not take the estate of C.'s covenantee.

But cannot be sued on by-alienee not claiming in privity of estate.

(t) Webb v. Russell, (1789) 3 T. R. 402.

(w) See Sug. 14th ed. 578.

(x) See Sug. 14th ed. 579, where the point is held to be free from doubt.

(y) See Sug. 14th ed. 578 et seq.

(z) Spencer's case, (1583) 5 Co. 16; Lovgher v. Williams, (1673) 2 Lev. 92 ; see 2 Bac. Ab. 349.

{a) Roach v. Wadham, (1805) 6 East, 289.

In all these cases of covenants entered into with the owner of the land, i.e., the vendor's covenants with the purchaser, while it is not necessary that the covenantor should have any interest in the land, in order to render him liable on them, it is essential that the covenantee should, at the date of the covenant being entered into, have the land to which the covenant relates, in order to enable him to sue (b).

What estate covenantor and covenantee must have.

Lord St. Leonards suggested a doubt (c) whether the doctrine of privity of estate may not apply as well to covenantor as to covenantee; that is, whether, in order that the alienee may sue, he must not only claim the estate of the covenantee, but also claim it under a conveyance or appointment by the covenantor; which, in a large proportion of conveyancing transactions, is not the case. The Real Property Commissioners consider that the doubt is set at rest by authority (d) ; and it is impossible to see how this conclusion can be otherwise than correct, if the Prior's Case (e) and other well-known authorities (/) are good law.

Whether there must be privity of estate, as we'll with covenantor as covenantee.

And the benefit of the covenants will go with the estate of the original covenantee, though leasehold (g), or copyhold (h). Where, as is frequently the case on a sale of copyholds, the covenants for title were contained in the deed of covenant to surrender, V.-C. Shadwell seems to have entertained no doubt that the covenants would run with the land: inasmuch as the covenant to surrender, and the surrender, are parts of the same transaction (/). But as the covenantee had no estate at the date of entering into the covenant, this decision cannot be supported, and has not been relied on in practice (k).

Covenants run with leaseholds or copyholds. Privity at date of covenant essential.

(A) 1 Sm. L. 0. 11th ed. 77, and cases there cited.

(c) Sug. 14th ed. 5S1.

(d) See Third Rep. 52; 1 Da v. 137 ; and 9 Jarm. Conv. 3rd ed. 3,56 ; 1 Sm. L. C. 11th ed. 76.

(e) Co. Litt. 385a.

(f) 1 Sm. L. C. 11th ed. 76.

(y) Noke v. Auder, (1595) Cro. El. 436; and Lewis v. Campbell, (1819) 8 Taun. 715; Campbell v. Lewis, (1820) 3 B. & Ald. 392.

(h) See Eiddell v. B., (1835) 7 Si. 529 ; 5 L. J. Ch. 102.

(i) Lb. 534, 535, and Sug. 14th ed. 579.

Whether, where land is divided, the benefit of attendant covenants will go to each alienee in respect of the portion of land taken by him, is apparently a question of intention in each case, though there is an absence of authority upon the point; thus, where the estate is divided, as where it becomes vested in A. for life, remainder to B. in fee, and the breach of covenant affects the entire inheritance, the owner of each portion of the inheritance can sue for damages proportioned to the extent of his estate (/); so, where the estate is cut up into undivided shares (m).