3.3. 2E. 3. warranty concerning a chattel. (0) Also this word excambium doth tit. Cui in vita 17. 3E. 3. Formedon 44. imply a warranty. Warranty in law implied by the word, "exchange;" (0) 4 E. 2. Vouch. 245. 22 E. 3. 3. 14 H. 6. 2. 20 H. 6. 14. Lib. 4. fol. 122. in Bustard's case. 15 E. 3. Bar. 255. 43 E. 33. Lib. 1. fol. 96. Lib. 5. fol. 17. Spencer's case. Lib.8. fol. 75. Sr. Stafford's case. by a partition. Also a partition implieth a warranty in law, as in the Chapter of and by ho- Parceners appeareth. And homage ancestrel doth draw to itself warranty, as hath been said in the Chapter of Homage Ancestrel. mage ancestrel. Diversity be tween these the extent of the warranty" created by them. And it is to be observed, that the warranty wrought by this word words, as to dedi, is a special warranty, and extendeth to the heirs of the feoffee during the life of the donor only. But upon the exchange and homage ancestrel, the warranty extendeth reciprocally to the heirs, and *384 b. against the heirs of both parties: and in none of the cases the assignee shall vouch by *force of any of these warranties, but in the case of the exchange and dedi, the assignee shall rebut, but not in 201 & 202. 19 the case of homage ancestrel (L). (p) 28 Ass. 33. 14 H. 4. 5. 18 E. 3. 18. 4 E. 2. Avow. E. 3. Avow. 100. 30 H.6.7. a. F.N.B. 163. Warranty in law implied on a gift in tail, &c. reserving rent; (9) 6 E. 2. Cont. de Vouch. 105. 5 E. 3. 67. 4 E. 2. Ibid. 102. 6 E. 3. 11. 50. 7 E. 3. 6. 18 E. 3.8. 22 E. 3.3. 3 H. 7. 13. 3. Garr. 32. 5 E. 3. 87. 20 E.3. tit. Counterplea de Gar. 7. (p) And so no man shall have a writ of contra formam collationis, but only the feoffee and his heirs, which be privy to the deed; but an assignee may rebut by force of the deed. (9) If a man make a gift in tail, or a lease for life of land, by deed or without deed (M), reserving a rent, or of a rent-service by deed, this is a warranty in law, and the donee or lessee, being impleaded, shall vouch and recover in value. And this warranty in law extendeth not only against the donor or lessor, and his heirs, but also against his assignees of the reversion; and so likewise the assignee of lessee for life, shall take benefit of this warranty in law. *(r) When dower is assigned there is a warranty in law included, that the tenant in dower, being impleaded, shall vouch and recover (255)* in value a third part of the two parts whereof she is dowable (1). or on an as signment of dower. (r) 4 E. 3. 36. 33 E. 3. tit. Cont. de Vouch. 122. 43 Ass. 32. And it is to be understood, that a warranty in law and assets is in some cases a good bar. (s) In a formedon in the descender the tenant may plead, that the ancestor of the demandant exchanged the 50 E. 3. 7. F. land with the tenant for other lands taken in exchange, which descended to the demandant, whereunto he hath entered and agreed; or if he hath not entered and agreed unto the lands taken in exchange then the tenant may plead the warranty in law, and other assets descended. N. B. 149 m. Warranty in law, with as sets, a good bar. (8) 14 H. 6. 2. 15 E. 3. Bar. 255. (t) 38 E. 3. 22, 23,'24. 13 E. 3. Gar. 35. (t) If tenant in tail of lands make a gift in tail, or a lease for life, rendering a rent, and dieth, and the issue bringeth a formedon in the (L) The assignee of tenant by homage ancestrel shall neither vouch nor rebut the lord, for the advantage given to the tenant in respect of the long continuance of the tenure, cannot be transferred to a stranger. Hawk. Abr. 490.-[Ed.] (M) That is, at common law, before the stat. 29 Cha. 2. c. 3.-[Ed.] (1) Tenant by the curtesy cannot vouch, because he shall not recover in value, 10 H. 7. c. 10. b. but he may pray in aid of him in the reversion. Hob. 21.-[Butler. Note, 333.] descender, the reversion and rent shall not bar the demandant; because by his formedon he is to defeat the reversion and rent. Et non potest adduci exceptio ejusdem rei, cujus petitur dissolutio. (u) But if other assets in fee-simple do descend, then this war- () 16 E. 3. ranty in law and assets is a good bar in the formedon. Age 45. 18 E. 3. 8. 31 E. 3. Gar. 29. collateral Here four things are to be observed: First, that no warranty in Secus as to law doth bar any collateral title, but is in nature of a lineal warran- titles. ty: wherein the equity of the law is to be observed. Secondly, that an express warranty shall never bind the heirs of (1 Rep. 10.) him that maketh the warranty, unless (as hath been said) they be named as for example, Littleton here saith (Ego et hæredes mei); but in case of warranties in law, in many cases the heirs shall be bound to warranty, albeit they be not named. Thirdly, that in some cases warranties at law do extend to execution in value, of special lands, and not generally of *lands descended in fee-simple (o), as you may see at large in my Reports. (w) Fourthly, that warranties in law may be in some cases created without deed, as upon gifts in tail, leases for life, exchanges, and the like. If a man of full age and an infant make a feoffment in fee with warranty, this warranty is not void in part, and good in part; but it is good for the whole against the man of full age, and void against the infant for albeit the feoffment of an infant passing by livery of seisin be voidable, yet his warranty, which taketh effect only by deed, is merely void. and Also an express warranty cannot be created without deed, a will in writing is no deed, and therefore an express warranty cannot be created by will (P). 1 Warranty in law binds the heirs though not named; and extends to special tard's case. 378 a. estate of A man letteth lands for life upon condition to have fee, and warranteth the lands in formá prædictâ, afterward the lessee perform- And on an eth the condition whereby the lessee hath fee, the warranty shall freehold. extend and increase according to the state. And so it is in that (8 Rep. 73.) case if the lessor had died before the performance of the condition, 131) the warranty shall rise and increase according to the estate, and yet the lessor himself was never bound to the warranty, but it hath re (0) As in case of exchange and partition.-[Ed.] (Hob. 130, (P) Another requisite to a good warranty is, that there be some estate to which the warranty is annexed that may support it; for if one covenant to warrant land to another, and make him no estate, or make him an estate that is not good, and covenant to warrant the thing granted; in these cases the warranty is void. 10 C. 96. So, if the estate to which the warranty was annexed is determined, the warranty dependent on it is likewise determined. Thus if a man makes a gift in tail, and warrants the land to the donee and his heirs, and afterwards tenant in tail makes a feoffment and dies without issue, the feoffee shall not rebut the donor in a formedon in reverter, because the estate to which the warranty was annexed is determined. Ibid.—[Ed.] *378 b. lation from the first livery. And by this it appeareth that a warranty, being a covenant real executory, may extend to an estate in futuro, having an estate, whereupon it may work in the beginning. But if a man grant a seignory for years, upon condition to have fee *with a warranty in formâ prædictâ, and after the condition is performed, this shall not extend to the fee, because the first estate was but for years, which was not capable of a warranty. And so it is, if a man make a lease for years, the remainder in fee, and warrant the land in formâ prædictâ, he in the remainder cannot take benefit of the warranty, because he is not party to the deed; and immediately he cannot take, if he were party to the deed, because he is named after the habendum, and the estate for years is not capable (1 Rep. 17.) of a warranty (q). And so it is, if land be given to A. and B. so long as they jointly together live, the remainder to the right heirs. of him that dieth first, and warrant the land in formâ prædictâ ; A. dieth, his heir shall have the warranty; and yet the remainder vested not during the life of A, for the death of A. must precede the remainder, and yet shall the heir of A. have the land by descent. 376 a. Descends to the heir at common law. It is a maxim of the common law, that every warranty doth deVid. sect. 3. scend upon him that is heir to him that made the warranty, by the common law, as by the example in sect. 718 it appeareth. 603. 735, 736, 737. (Post 329 a. Cro. Eliz. 72.) LITTLETON. [Sect. 735, 386 a.] ALSO, a warranty cannot go (8) according to the nature of the tenements by the custom, &c. but only according to the form of the common law. For if the tenant in tail be seised of tenements in borough English, where the custom is, that all the tenements within the same borough ought to descend to the youngest son, and he discontinueth the tail with warranty, &c. and hath issue two sons, and dieth seised of other lands or tenements in the same borough in fee-simple to the value or more of the lands intailed, &c. yet the youngest son shall have a formedon of the lands (9) tailed, and shall not be barred by the warranty of his father, albeit assets descended to him in fee-simple from his *386b. said father according to the custom, &c. because the warranty descendeth upon his elder brother who is in full life (10), and not upon his youngest. (11) And in the same manner it is of col(258)* lateral warranty (R) made of such tenements, where the warranty descendeth upon the eldest son, &c. this shall not bar the youngest son. LITTLETON. [Sect. 736. 386 b.] (8 Rep. 86.) IN the same manner it is of lands in the county of Kent, that are called gavelkind, which lands are dividable between the (8) solonque-sans, L. and M. and Roh. (9) terres-tenemens, L. and M. and Roh. (10) &c. added in L. and M. and Roh. (11) Et not in L. and M. nor Roh. (9) And therefore the lease for years not being capable of a warranty, he cannot take benefit of it by way of remainder. See Spencer's case, 5 Co. 17.-[Ed.] (R) Collateral warranty is where the person on whom the warranty descends, does not derive his title from the warranting ancestor: lineal warranty is where the heir to the warranty would have conveyed his descent to the lands (if there had been no warranty) from the same ancestor, who made the' warranty. See further, as to the distinction between lineal and collateral warranty, post, 370 a.-[Ed.] brothers, &c. according to the custom (12); if any such warranty be made by his ancestor, such warranty shall descend only to the heir which is heir at the common law (13), that is to say, to the elder brother, according to the conusance of the common law, and not to all the heirs that are heirs of such tenements according to the custom (14). de Hereupon a diversity is to be observed between the lien real, and the lien personal; for the lien real, as the warranty, doth ever scend to the heir at the common law; (x) but the lien personal doth bind the special heirs, as all the heirs in gavelkind, and the heir the part of the mother, as hath been said. on ALSO, if tenant in tail hath issue two daughters by divers venters, and dieth, and the daughters enter, and a stranger disseiseth them of the same tenements, and one of them (15) releaseth by her deed to the disseissor all her right, and bind her and her heirs to warranty, and die without issue; in this case the *sister which surviveth may well enter, and oust the disseisor of all the tenements, because such warranty is no discontinuance nor collateral warranty to the sister that surviveth, for that they are of half blood, and the one cannot be heir to the other, according to the course of the common law. But otherwise it is, where there be daughters of tenant in tail by one venter. The reason of this is in respect of the half blood, whereof sufficient hath been said in the first book, in the Chapter of Fee-simple. *Two brothers be by demy venters; the eldest releaseth with warranty to the disseisor of the uncle, and dieth without issue, the uncle dieth, the warranty is removed, and the younger brother may enter into the lands (s). 388 a. Where the right is in esse in any of the ancestors of the heir, at the time of the descent of the collateral warranty, there, albeit the *388 b. warranty descend first, and after the right doth descend, the collateral warranty shall bind, as in the case of our author (sect. 741) expressly appeareth. But where the right is not in esse in the heir, or any of his ancestors, at the time of the fall of the warranty, there (12) &c. added in L. and M. and Roh. (13) c'estasçavoir al eigne frere, solonque la conusans del common ley, not in L. and M. nor Roh. The estate must be turn ed to a right in the heir, (14) &c. added L. and M. and Roh. (s) Another requisite to a good warranty is, that he that is heir do continue to be so, and that neither the descent of the title, nor the warranty be interrupted: for if one binds him and his heirs to warranty, and after is attainted of treason or felony, (not within the statute 54 Geo. 3. c. 145.) and dies, this warranty does not bind his heir. Post, sect. 745. So if tenant in tail be disseised, and after release to the disseisor with warranty, and after the tenant in tail be attainted of felony, and have issue, and die, this warranty will not bind the issue. Post, sect. 746. And the reason is, because there is nothing in this case to make a discontinuance, but the warranty, which cannot descend to the issue in tail, because the blood between the issue in tail and him that made the warranty is corrupt. Ibid.-[Ed.] 29 VOL. II. tor, at the fall of the warranty, or his ances. it shall not bind. (y) As if lord and tenant be, and the tenant make a feoffment in fee with warranty, and after the feoffor purchase the (10 Rep. 95.) seignory, and after the tenant cesse, the lord shall have a cessavit; 73, 48. for a warranty doth extend to rights precedent, and never to any (10 Rep. 95.) right that commenceth after the warranty: whereof more shall be said in this section. Also, a warranty shall never bar any estate that is in possession, reversion, or remainder, that is not devested, displaced, or turned to a right before, or at the time of the fall of the warranty. 30 H. 8. 42. (z) Lib. 1. fol. 67. Ar cher's case. (a) Temps E. 1. Vouch. 296. 31 Ass. 36. 41 Ass. 6. 13. 22 Ass. 23 E. 3. tit. Gar. 74. Lib. 10. fol. 97. E. Seymour's case. (9 Rep. 106.) (260)* (z) If a lease for life be made to the father, the remainder to his next heir, the father is disseised, and releaseth with warranty, and dieth; this shall bar the heir (T), although the warranty doth fall and the remainder cometh in esse at one time. (a) If there be father and son, and the son hath a rent-service, suit to a man, rent-charge, rent-seck, common of pasture, or other profit apprender out of the land of the father, *and the father maketh a feoffment in fee with warranty, and dieth, this shall not bar the son of the rent, common, or other profit apprender (v), quamvis clausula spécialis warrantiæ vel acquietantiæ in cartis tenentium inseratur, quia in tali casu transit terra cum onere: and he that is in seisin or possession need not to make any entry or claim: and albeit the son, after the feoffment with warranty, and before the death of the father, had been disseised, and so being out of possession, the warranty descended upon him, yet the warranty should not bind him, because at the time of the warranty made, the son was in (45.3. 31. possession (w). (*) So if my collateral ancestor release to my tenant for life, this shall not bind my reversion or remainder, because that the reversion or remainder continued in me. But if he that hath a rent, common, or any profit out of the land in tail, disseise the tenant of the land, and maketh a feoffment of the land, and warrant the land to the feoffee and his heirs; (b) regularly the Warranty doth extend to all things issuing out of the land, that is to 42. 30 E. 3.' say, to warrant the land in such plight and manner, as it was in the 30. 9E.3.78. hand of the feoffor, at the time of the feoffment with warranty; and the feoffee shall vouch, as of lands discharged of the rent, &c. at the time of the feoffment made. 21 H. 7. 11. Vid. sect. 698. (b) 21 E. 4. 26. 21 H. 7. 9. 3 H. 7. 4. 17. 30 H. 8. Dyer, 45 E. 3. F. N. B. 125. A woman that hath a rent charge in fee intermarrieth with the tenant of the land, an estranger releaseth to the tenant of the land with warranty; he shall not take advantage of this warranty either by voucher or warrantia carta; for the wife, if her husband die, or the heir of the wife, living the husband, cannot have an action. (T) That is, at common law, before the statute 4 and 5 Ann. c. 16. See the note to fo. 373 b. infra.-[Ed.] (u) And the reason is, because the son was actually seised of the rent or common at the time of the warranty, and he who is in possession needs not put in his claim, either to avoid the fine or collateral warranty. Seymour's case, 10 Co. 96. Et vid. acc. Goodright d. Hare, v. Board, 1 Cru. 249. 3 T. R. 162. 1 Prest. Conv. 230, 231.-[Ed.] (w) And the warranty, at the time of the creation of it, did not extend to any estate of freehold or inheritance in esse. 10 Co. 96.-[Ed.] |