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the gift) were originally stipulated to be rendered (c). Or if a man and his ancestors had immemorially holden land of another and his ancestors by the service of homage, (which was called homage auncestrel,) this also bound the lord to warranty (d) ; the homage being an evidence of such a feodal grant. And, upon a similar principle, in case, after a partition (7) or exchange of lands of inheritance, either party or his heirs be evicted of his share, the other and his heirs are bound to warranty (e), because they enjoy the equivalent. And so, even at this day, upon a gift in tail or lease for life, rendering rent, the donor or lessor and his heirs (to whom the rent is payable) are bound to warrant the title (f). But, in a feoffment in fee, by the verb dedi, since the statute of quia emplores, the feoffor only is bound to the implied warranty, and not his heirs (g); because it is a mere personal contract on the part of the feoffor, the tenure (and of course the ancient services) resulting back to the superior
(7) See ante, p. 185, note, and the corrigenda et addenda prefixed to this volume, as to the course of proceedings for effecting a partition. Every partition between coparcener! has annexed to it a warranty in law; (1 Instit. 173 b;) though, in other deeds of partition, it seems there is no implied warranty, and therefore mutual covenants for title ought never to be omitted therein. But in every exchange, both a condition and a warranty are tacitly implied; a condition of re-entry, and a warranty of voucher and recompence. Such warranty, however, is special; and upon voucher by force of it, a man shall not recover other land in value, but that only which was given by him in exchange. And this warranty implied by law runs only in privity; for none shall vouch by force of it but the parties to the exchange or their heirs, and no assignee. (Book case, 4 Rep. 121; Provost of Eton v. Bishop of Winchester-
ter, 3 Wila. 490, 496.)
The transactions of partition, and of exchange approximate to each other, and have some things in common, but they have many points of difference: the rule as to warranty, we have seen, is not precisely the same in both cases: on a partition, each party has what was previously his own land, though he acquires a different interest in it; on an exchange, the land to which each party had previous title is parted with, and new lands acquired: a partition may be enforced, an exchange is always a voluntary act: a mere partition does not revoke a previous devise of the undivided interest, an exchange always operates a revocation ; or rather a will made before the exchange cannot dispose of the land received in exchange. (Attorney General v. Hamilton, 1 Mad. 223; McQueen v. Farquhar, 11 Ves. 476: Attorney General v. Vigor, 8 Ves. 281.)
lord of the fee. And in other forms of alienation, gradually [ * 301 ] introduced since that statute, *no warranty whatsoever is implied (A); they bearing no. sort of analogy to the original feodal donation. And therefore in such cases it became necessary to add an express clause of warranty to bind the grantor and his heirs; which is a kind of covenant real, and can only be created by the verb warrantxzo or tcarrant(i).
!.&**<* thr These express warranties were introduced, even prior to
m.tj in • nm- the statute of quia emptores, in order to evade the strictness of the feodal doctrine of non-alienation without the consent of the heir. For, though he, at the death of his ancestor, might have entered on any tenements that were aliened without his concurrence, yet if a clause of warranty was added to the ancestor s grant, this covenant descending upon the heir insured the grantee ; not so much by confirming his title, as by obliging such heir to yield him a recompence in lands of equal value: the law, in favour of alienations, supposing that no ancestor would wantonly disinherit his next of blood (k); and therefore presuming that he had received a valuable consideration, either in land, or in money which had purchased land, and that this equivalent descended to the heir together with the ancestor's warranty. So that when either an ancestor, being the rightful tenant of the freehold, conveyed the land to a stranger and his heirs, or released the right in fee-simple to one who was already in possession, and superadded a warranty to his deed, it was held that such warranty not only bound the warrantor himself to protect and assure the title of the warrantee, but it also bound his heir: and this, whether that warranty was
i.im-ii mat. lineal or collateral to the title of the land. Lineal warranty was, where the heir derived, or might by possibility have derived, his title to the land warranted, either from or through the ancestor who made the warranty: as where a father or an elder son in the life of the father, released to the disseisor of either themselves or the grandfather, with
Coiutrni w»r- warranty, this was lineal to the younger son (/). Collateral
warranty was where the heir's title to the land neither was,
[ * 302 J nor could have been, derived from the 'warranting ances
(») Co. Litt. 102. (*) Co. Litt. 373.
(i) Litt. I. 733. (0 Litt. a. 703, 706, 707.
tor (8); as where a younger brother released to his father's disseisor, with warranty, this was collateral to the elder brother (m). But where the very conveyance to which the warranty was annexed immediately followed a disseisin, or operated itself as such, (as, where a father tenant for years with remainder to his son in fee, aliened in fee-simple with warranty,) this, being in its original manifestly founded on the tort or wrong of the warrantor himself, was called a warranty, commencing by disseisin; and being too palpably injurious to be supported, was not binding upon any heir of such tortious warrantor (n).
In both lineal and collateral warranty, the obligation of obligation of
i , , - • , , , • the warranty
the heir (in case the warrantee was evicted, to yield him on the heir, other lands in their stead) was only on condition that he had other sufficient lands by descent from the warranting ancestor (o). But though without assets, he was not bound
(8) The whole doctrine of collateral warranty seems repugnant to plain unsophisticated reason and justice; and even its technical grounds are so obscure, that the ablest legal writers are not agreed upon the subject. Sir Martin Wright, (in his Law of Tenures, Ki8,) gives the following account of the matter. "A tenant could not, either by the feudal or common law, alien a fee that was not of his own acquisition, that is to say, a fee that was not originally conferred upon himself, but that came to him by descent, without the consent of the heir, quiproxim us erat in tuccearione collateral!; for, though the law trusted an ancestor with the interest of his own immediate descendants, yet, he could not prejudice the next collateral, who having a distinct, though remote interest in the feudal donation, could not be deprived of it but by an act of his own. This manifestly hints the foundation, and partly suggests the reason, of collateral warranty; though it is not easy to be conceived how it came to pass, that the concurrence or sim
ple consent of the next collateral,
Chief Baron Gilbert, (in his Treat,
Since this note was first published, it has been enacted by stat. 3 & 4 Gul. IV. c. 74, s. 14, that estates tail, and estates expectant thereon, shall no longer be barrable by warranty, but by simpler means.
to insure the title of another, yet incase of lineal warranty, whether assets descended or not, the heir was perpetually barred from claiming the land himself; for if he could succeed in such claim, he would then gain assets by descent, (if he had them not before,) and must fulfil the warranty of his ancestor: and the same rule (p) was with less justice adopted also in respect of collateral warranties, which likewise (though no assets descended) barred the heir of the warrantor from claiming the land by any collateral title; upon the presumption of law that he might hereafter have assets by descent either from or through the same ancestor. The inconvenience of this latter branch of the rule was felt very early, when tenants by the curtesy took upon them to alien their lands with warranty; which collateral warranty of the father descending upon his son (who was the heir of both his parents) barred him from claiming his maternal inheritance; to remedy which the statute of Gloucester, 6 Edw. F. c. 3, declared, that such warranty should be no bar to the son, unless assets descended from the father. It [ * 303 J was afterwards attempted in 50 Edw. III. *to make the same provision universal, by enacting, that no collateral warranty should be a bar, unless where assets descended from the same ancestor (q); but it then proceeded not to effect. However, by the statute 11 Hen. VII. c. 20, notwithstanding any alienation with warranty by tenant in dower, the heir of the husband is not barred, though he be also heir to the wife. And by statute 4 & 5 Ann. c. 16, all warranties by any tenant for life shall be void against those in remainder or reversion; and all collateral warranties by any ancestor who has no estate of inheritance in possession, shall be void against his heir. By the wording of which last statute it should seem that the legislature meant to allow, that the collateral warranty of tenant in tail in possession, descending (though without assets) upon a remainder-man or reversioner, should still bar the remainder or reversion(9). For though the judges, in expounding the statute de donis, held that, by analogy to the statute of Gloucester, a lineal warranty by the tenant in tail without assets should not bar
(/>) Litt. s. 711, 712. (V) Co. Litt. 373.
(9) But see, now, the statute cited Ht the close of the last note.
the issue in tail, yet they held such warranty with assets to be a sufficient bar(r): which was therefore formerly mentioned (s) as one of the ways whereby an estate-tail might be destroyed; it being indeed nothing more in effect than exchanging the lands entailed for others of equal value. They also held, that collateral warranty was not within the statute de donis; as that act was principally intended to prevent the tenant in tail from disinheriting his own issue; and therefore collateral warranty (though without assets) was allowed to be, as at common law, a sufficient bar of the estate-tail and all remainders and reversions expectant thereon (t). And so it still continues to be, notwithstanding the statute of queen Anne, if made by tenant in tail in possession: who therefore may now, without the forms of a fine or recovery, in some cases make the good conveyance in fee-simple, by superadding a warranty to his grant; which, if accompanied with assets, bars his own issue, and without them bars such of his heirs as may be in remainder or reversion.
*7. After warranty usually follows covenants^ 10), or conven- covenants, tions, which are clauses of agreement contained in a deed, [ * 304 ] whereby either party may stipulate for the truth of certain facts, or may bind himself to perform, or give, something to the other. Thus, the grantor may covenant that he hath a right to convey; or for the grantee's quiet enjoyment; or the like; the grantee may covenant to pay his rent, or keep the premises in repair, &c.(a). If the covenantor covenants for himself and his heirs, it is then a covenant real, and descends upon the heirs, who are bound to perform it, provided they have assets by descent, but not otherwise: if he covenants also for his executors and administrators, his personal assets, as well as his real, are likewise pledged for the
(r) Litt. s. 712; 2 Inst. 293. (/) Co. Litt. 374; 2 Inst. 335.
(*) Pag. 116. (a) Appendix, No. II. s. 2, p. viii.
(10) A covenant, being part of a intent of the parties. Thirdly, to be
deed, is subject to the general rules construed, ut res magit ealeat quant
for the exposition of deeds. As, first, pereat. Fourthly, when no time is
to be always taken most strongly limited for its performance, it must
against the covenantor, and most in be done in reasonable time. (Shep.
advantage of the covenantee. Se- Touch. 16(i; Griffith v. Gnodhand, T.
secondly, to be taken according to the Raym. 461.)