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CHAPTER XIII. SECTION 697.

OF WARRANTY.

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Ir is commonly said, that there are three kinds of warranty, scilicet, warranty lineal, warranty collateral, and warranty that commences by disseisin. And it is to be understood, that before the statute of Gloucester all warranties which descended to the heirs of those who made them barred the same heirs from demanding any lands or tenements so warranted, except warranties commencing by disseisin, which beginning in wrong were no bar to the heir.

A warranty is a covenant real annexed to lands or tenements, whereby a man and his heirs are bound to warrant the same, and either upon voucher, or by judgment in a writ of warrantia carta, to yield other lands and tenements in exchange for and to the value of those from which the grantee may be evicted by former title; or else it may be used by way of rebutter, that is, to repel or bar a person. It is also to be observed, that warranties may be expressed or implied; the former being called warranties in deed, because they are expressed; and the latter warranties in law, because the law tacitly implies them. The warranties that Littleton here speaks of, are warranties in deed. And of warranties in law, more shall be said hereafter in this

* The student in entering on this truly "curious and cunning learning" should turn to Sections 703, 4, and 707, 8., where the distinction between lineal and collateral warranty is pointedly put by Littleton. He should also bear in mind the stat. 4 & 5 Ann. c. 16., which has very much reduced the application of warranty to transactions of the present day. In Watk. Prin. 112 n. 5th edition, he will also find a succinct synopsis of the modern doctrine of warranty.

Chapter. As for promises or contracts annexed to chattels real or personal, they are not comprehended by our author in this division, which treats exclusively of warranties concerning freeholds and inheritances.

tesy's alienation with warranty binds not the wife's heir without assets in fee simple from the alienor. So of

like alienation by dowress now.

Before the statute of Gloucester.] This statute was made at a Tenant by curparliament holden at Gloucester, 6 Edw. 1., (which was before the statute de donis conditionalibus, 13 Edw. 1.) when all estates of inheritance were in fee-simple. By that statute it is declared that the heir in tail shall not be barred by the warranty of his ancestor, unless he receive assets by descent from him, as will appear more fully hereafter. By the statute of Gloucester it is enacted, first, that if a tenant by the curtesy aliens with warranty and dies, this warranty shall be no bar to the heir of the wife unless assets in fee-simple descend from the tenant by the curtesy to the wife's heir; but if lands or tenements do descend from the father to the mother's heir, then such heir shall be barred according to the value of the lands so descending.

Secondly, that if the heir, for want of assets at that time descended, recovers the lands of his mother, and afterwards assets do descend to the heir from the father, then the tenant [i. e. the purchaser] shall recover against the heir the inheritance of the mother. And 3dly. That the heir shall not, after the death of his father and mother, be barred of his action by writ of entry, to demand the inheritance of his mother which his father aliened in her lifetime without fine levied in the king's court. But notwithstanding the statute of Gloucester, if a feme tenant in dower had aliened in fee with warranty and died, the warranty would have bound the heir until the statute 11 H. 7. (enacted ince our author wrote) by which statute the heir may now enter notwithstanding such warranty.

[365b]

Note, that warranties are favoured in law, being part of a man's Warranties assurance; but estoppels are odious.

favoured; estoppels odious.

Stat. jointures protects heir in tail against his mother's alien

By the Statute of Jointures, 11 H. 7. c. 20., it is enacted that where the wife has any estate for life of the gift or purchase of her husband, or given to her by any of the ancestors of the husband, or by any other person seised to the use of her husband, or of any of his ancestors, there her alienation, release, or confirmation with husband.

ation and war

ranty, if lands

come from the

who made the

jointure joins,

this statute.

warranty shall not bind her heir [though such heir succeed to the estate by virtue of the settlement].

A man seised of lands in fee levied a fine to the use of himself for life, and after to the use of his wife and the heirs males of her body by him begotten for her jointure, and had issue male: afterwards he and his wife levied a fine, and suffered a common recovery, [the effect of which in the ordinary way wonld be to bar the issue in tail and those in remainder], and the husband wife and died, and the issue male entered by force of the said statute of 11 H. 7. [on the ground that the alienation of the wife, though she was tenant in special tail, was not lawful, or at least not binding on the issue in special tail], and it was holden, that the entry of the issue male was lawful: If the husband and yet this case is out of the letter of the statute; for the wife neither levied the fine, being sole or with an after-taken husband, but it is not within with her husband who made the jointure. [This case, however, has since been overruled by Kirkman v. Thompson, Cro. Jac. 474., on the ground that the statute was meant to provide for the disinherison of heirs contrary to the husband's intention, whereas if he joined his intention was manifest.] So a case may be without the meaning of this statute, and yet within the letter. As where a man was seised of lands in right of his wife, and they levied a fine to the use of the husband and wife in special tail, with remainder to the right heirs of the wife, and they had issue, and afterwards the husband died, and the wife married again, and she and her second husband levied a fine of the same lands in fee, this is directly within the letter of the statute, and yet it is out of the meaning; because the land was originally the wife's [and though the estate tail was of] the purchase of the husband in letter, it was not so in meaning, [and therefore the issue of the first marriage are completely barred by the second fine.]

So if the land
was originally
the wife's.
[366a]

Tenant for life aliens with warranty, if his

heir be the re

mainder-man or

bound.

But when the woman is tenant for life, by the gift or conveyance of any other person than her husband, her alienation with warranty shall bind her heir at this day. [Therefore if the wife's heir reversioner he is be the remainder-man to succeed to the estate by virtue of the limitations in the settlement, he will be bound if he does not enter for the forfeiture in his mother's lifetime.] So if a man be tenant for life (otherwise than as tenant by the curtesy) and aliens in fee with warranty, and dies, this shall bind his heir [succeeding to] the reversion or remainder. But this is to be understood where the

heir who has the reversion or remainder does not avoid the estate so aliened in the lifetime of his ancestor [by his entry as for the forfeiture; if he does so enter] the estate to which the warranty is annexed being avoided, the warranty is avoided also. And therefore it is necessary for the heir in such case to make an entry as soon as he has notice or probable suspicion of such an alienation. [But now by the stat. 4 & 5 Ann. c. 16. all warranties made by tenant for life descending on the remainder-man or reversioner are void].

Touching the feoffment in fee with warranty by the husband seised in right of his wife, this warranty shall not bind the heirs of the wife without assets [from the husband], although the husband be not tenant by the curtesy. But of this you shall read more hereafter. In the meantime know that the learning of warranties is one of the most cunning and curious learnings in the law, and of great use and consequence.

And

To demand any lands or tenements.] A warranty may not only be annexed to freeholds or inheritances corporeal, which pass by livery, as houses and lands, but also to freeholds or inheritances incorporeal, which lie in grant, as advowsons; and to rents, commons, estovers, and the like, which issue out of lands or tenements. not only to inheritances in esse, but also to rents, commons, estovers &c. newly created. For a man (as some say) may grant a rent &c. out of land for life, in tail, or in fee with warranty; for although there can be no title precedent to the rent, yet there may be a title precedent to the land. And so a warranty in law may extend to a rent &c. newly created; and therefore if a rent newly created be granted in exchange for an acre of land, a warranty is necessarily implied by the exchange. And so a rent newly created may be granted for owelty of partition, [on which also a warranty is necessarily implied.]

Husband's feoff

ment jure uxoris.

Warranty may writs newly created, and is implied on grant of rent for equality of exchange or partition.

be annexed to

SECTION 698.

WARRANTY commencing by disseisin is in this manner: where there is father and son, and the son purchases land &c. and lets the same land to his father for a term of years, and the father afterwards by his deed infeoff's another thereof in fee and binds himself

[366b]

Warranty commencing by dis

seisin is, where

father, tenant for years, makes a feoffment in

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Feoffment by

tenant for years

passes a fee.

[3

and his heirs to warranty; then when the father dies, the warranty descends to his son, but it shall not bar the son, who, notwithstanding this warranty, may well enter into the land, or have an assize against the alienee if he will, because the warranty commenced by disseisin; for when the father (who had but a term of years) made a feoffment in fee, this was a disseisin to the son of the freehold which was then in him. In the same manner it is, if the son lets to the father the land to hold at will, and afterwards the father makes a feoffment with warranty &c. And as it is said of the father, so it may be said of every other ancestor &c. In the same manner it is, if tenant by elegit, tenant by statute merchant or staple, makes a feoffment in fee with warranty, this shall not bar the heir, who is entitled to the land, because such warranty com mences by disseisin.

If the father, son, and a third person are joint-tenants in fee, and the father makes a feoffment in fee of the whole with warranty, and dies, [whereby the father's third devolves on the other two and the whole warranty descends on his son and heir, yet the son is not bound because this is a warranty commencing by disseisin], then if the son dies [whereby the whole survives to the third party] he may not only avoid the feoffment for his own part, but also for the part of the son; and he may take advantage that the warranty commenced by disseisin, though the disseisin was done to another.

And it is to be observed, that warranties commencing by disseisin are collateral warranties, and shall not by reason of the disseisin bind at all.

Shall not bar the heir.] By the authority of our author himself, a lessee for years may make a feoffment, and by his feoffment a 13 B.& C.388. fee-simple shall pass; so that although such a feoffment may work 2 5. & S. 206.] by disseisin as against the lessor, yet as between the parties it is good, and the warranty annexed to such estate, being a covenant real, binds the feoffor and his heirs who are bound to render lands of equal value to the feoffee on eviction if they have assets by descent to recompense him; for there is a feoffment de facto and a feoffment de jure; and a feoffment de facto made by those who have such an interest or possession as is aforesaid, is good between the parties and against all other men except only those who have the legal right and inheritance.

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