As to cove-uants by vendors who are not beneficial owners.

(u) See K. & E. 12th ed. vol. i. p. 510.

(x) If they omit to state in the contract the capacity in which they sell, it is conceived that they will be subject to the usual liability or beneficial owners.

(y) White v. Foljambe, (1805) 11 Ves. 345; Staines v. Morris, (1812) 1 V. & B. 8; Onslow v. Lord Londesborough, (1852) 10 Ha. at p. 74.

An incumbrancer who releases the estate, whether voluntarily or in consideration of payment, only covenants that he has done no act to incumber, or to prevent his conveying (b).

Incumbrancer releasing.

Where a mortgagee sells under his power of sale, and the mortgagor concurs (which will not usually be the case), the latter enters into the ordinary vendor's covenants for title, which supersede the absolute covenants contained in the mortgage deed.

Mortgagor joining in a sale by mortgagee.

When a bankrupt concurs with his trustee in selling, he generally enters into covenants for title as an ordinary vendor (c).

Bankrupt joining in sale by his trustee.

A purchaser from the Crown can require no covenants for title (d).

Crown gives no covenants.

(z) (1846) 5 Ha. 560; and see Copper Miners' Co. v. Beach, (1823) 13 Bear. 478; Hodges v. Blagrave, (1854) 18 Beav. 404; and see and consider Hare v. Burges, (1857) 4 K. & J. 45, 57.

(a) Phillips v. Everard, (1831) 5 Si. 102; and Stephens v. Hotham, (1855) 1 K. & J. 571; Hare v. Burges, (1857) 4 K. & J. 45, 57; 27 L. J. Ch. 86; Woodfall, 22nd ed. 139.

(b) See L. P. Act, 1925, 2nd Sch. Pt. VI.

(c) As to the power of the Court of Bankruptcy to order the bankrupt to join in the conveyance, see sup. p. 467. (d) Sug. 14th ed. 575.

Any covenant intended to provide for a defect in title which appears on the face of the conveyance, should be 30 expressed, though the absence of such expression will not prevent the purchaser from suing on the covenants (e). If the defect can be kept off the face of the conveyance (which is generally the case) the covenant should be entered into by a separate instrument which should refer to the defect; or there should be a contemporaneous agreement signed by the covenantor admitting the existence of the defect, and stating that it is intended to be included in the covenant (/). Where the defect consists in the existence of incumbrances, it will be a matter for consideration whether a mere covenant to indemnify can be relied on, without a covenant to pay or procure payment of the charge: this question particularly applies to interest upon charges, and to rent-charges or other periodical payments: - under a mere covenant to indemnify, the purchaser might have no remedy until disturbance, or until claim made against him, though the interest or rent-charge might be running heavily into arrear (g).

Covenant against known defect.

Covenants for indemnity against charges.

An acknowledgment of the right to production of title deeds, if it extends to documents not noticed in the conveyance, should, as a general rule, be entered into by a separate agreement; the question, however, to be considered is, whether any document to be included in the acknowledgment is of such a character as to make it desirable that it should, as soon as practicable, be taken off the title (h).

Acknowledgment of right to production of deeds.

Formerly a purchaser was entitled, as a general rule, to a valid covenant for the production, and probably for the right to take copies (i), of such documents of title as were not delivered over to him(fr): commencing with such as were necessary to show a marketable title (l), and excepting such copies of court roll and inrolled deeds (if inrolled under any Act which made the inrolnient evidence) as were not in the possession or power of the vendor (m): and the want of such a covenant was a ground of objection to the title. But now, under the L. P. Act, 1925, s. 45 (7) (taking the place of the corresponding provisions of the V. & P. Act, 1874, s. 2), the inability of a vendor to furnish a purchaser with an acknowledgment of his right to production and delivery of copies of documents of title, or with a legal covenant to produce and furnish copies, is not to be an objection to title in case the purchaser will, on completion, have an equitable right to production. By s. 64, sub-ss. (8) and (11) of the L. P. Act, 1925 (re-enacting s. 9, sub-ss. (8) and (11) of the Conv. Act, 1881), an acknowledgment is to satisfy a vendor's liability to give a covenant for production and delivery of copies of documents, and an undertaking for safe custody is to satisfy any liability to give a covenant for safe custody of documents. The acknowledgment or undertaking must be given by a person who "retains" the documents. Hence, where a property is sold by a mortgagor and the deeds are in the hands of the mortgagee, a covenant by the mortgagor, if required, should be a covenant to procure production, and when the documents come into his possession to give an acknowledgment and undertaking. But where the deed contains a statement that the documents are retained by the mortgagor or vendor, an acknowledgment and undertaking would appear to be valid, as between the parties and those claiming under them, by estoppel (n). Mortgagees or trustees selling should not give the undertaking for safe custody.

Purchaser's right to covenant for production.

(e) See inf. p. 671.

(f) See Winter v. Anson, (1823) 1 S. & S. 434, 445.

(g) For a case where the vendor gave the purchaser an indemnity, see Osborne v. Bales, (1864) 12 W. R. 654. See also Hooper v. Bromet, (1904) 90 L. T. 234; Reckitt v. Cody, 1920, 2 Ch. 452.

(h) A separate deed of covenant is chargeable with the same duty as the conveyance or mortgage, if not exceeding ten shillings, and in other cases with a duty of ten shillings; Stamp Act, 1891, Sch. I.; and see Stamp Act, 1870, Sch.; and see also 13 & 14 Vict. c. 97. An acknowledgment requires to be stamped as an agreement. Accordingly, if under hand only, it must have a sixpenny stamp, but if under seal, a ten shilling stamp; Alpe, 17th ed. p. 59.