not create an

estate but only which it may do

determine one,

on alienation.

SECTION 723.

Condition can- THE third cause is, because the donor may enter for breach of the condition in preference to the second son, who having no right before alienation can have no greater right after, and therefore it seems such remainders are void;-[the meaning is, that a right of entry on breach of a condition cannot be reserved to a stranger but only to the donor and his heirs, i. e. his heirs by descent not by purchase as Richel's case was.]

Here it is to be observed, that such part of the condition as prohibits the alienation is good, but such part of it as tends to carry the estate over to another, is void, and by the opinion of Littleton the donor may re-enter for the condition broken; for Utile per inutile non vitiatur: which being in case of a condition for the defeating of an estate, is worthy of observation. And it is to be noted, that after the death of the donor, the condition descends to the eldest son, and then his alienation would extinguish the same for ever; wherein the weakness of this invention appears: and therefore Littleton here says, that it seems the donor may re-enter without mentioning his heirs.

SECTIONS 724, 725.

[Treat of the warranty of tenants by the curtesy and tenants in dower, of which enough has been said.]

Infant's acts of record bind heir if not avoided during minority.

SECTION 726.

[Treats of warranty falling on an heir within age, to whom no laches are attributable.]

And herein a diversity is to be observed between matters of record done or suffered by an infant, and matters in fait : for matters in fait he shall avoid either within age, or at full age, as

hath been said: but matters of record, as statutes merchant or staple, recognizances acknowledged by him, or a fine levied by him, or a recovery suffered against him by default in a real action (saving in dower) must be avoided by him, viz. statutes &c. by audita quærela, and the fine and recovery by writ of error during his minority and the like. And the reason thereof is, because they are judicial acts and are taken by a court or a judge, therefore the nonage of the party, to avoid the same, shall be tried by inspection of judges, and not by the country. And for that his nonage must be tried by inspection, this cannot be done after his full age: and so is the law clearly holden at this day, though there be some difference in our books. But if the age be inspected by the judges, and it be recorded that he is within age, albeit he come of full age before the reversal, yet may it be reversed after his full age. And so was it resolved by the whole court of king's bench in the case of Kekewich.

No laches shall be adjudged in the heir within age.] Laches, is an old French word for slackness or negligence. And the rule (that no negligence shall be adjudged in an infant) is true, where he is thereby to be barred of his entry in respect of a former right, as by a descent; or of his former right by a warranty where his entry is congeable. But otherwise it is of conditions, charges and penalties, going out of or depending upon the original conveyance, for laches or negligence shall be adjudged in those cases as well in an infant as in other.

any

[380b]

Infant not aches or negliaffected by gence.

SECTIONS 729, 730, 731, 732.

[Treat of the husband's fine of the wife's land by warranty, which it seems cannot since the statute of Gloucester, bar the wife's heir without assets from the husband.]

[382a b]

SECTION 733.

AN express waranty can only be created by the word warrant.

But warranties in law are created by many other words. Thus dedi creates a warranty in law to the feoffee and his heirs

PP

during

[383b]

What words create a war

ranty.

Give, grant,

exchange.

[384a]

Lease.

Partition.

Exch inge.

Express war ranty can only be created by

Deed, ita not by Will, which is no deed; but on a will there may be an implied warranty. [386 a]

the life of the feoffor, but concessi in a feoffment or fine implies no warranty. And this word dedi imports a warranty in law, albeit there be an express warranty in the deed. For if a man make a feoffment by dedi, and in the deed warrants the land against I. S. and his heirs, yet dedi is general warranty during the life of the feoffor. And if a man make a lease for life reserving a rent, and add an express warranty, here the express warranty does not take away the warranty in law, and he may vouch by either of them at his election; and note a diversity between a warranty which is a covenant real annexed to a freehold, and a warranty concerning a chattel, as in Nokes' case, 4 Co. 80. Also this word exchange implies a warranty. Also a partition implies a warranty in law, as in the chapter of parceners appears. And it is to be observed, that the warranty wrought by this word dedi, is a special warranty, and extends to the heirs of the feoffee during the life of the donor only. But on an exchange the warranty extends reciprocally to the heirs and against the heirs of both parties.

It is further observable, that the heir shall never be bound to any express warranty but where the ancestor was bound by the same; for if the ancestor were not bound, it cannot descend upon the heir.

But a warranty in law may bind the heir, although it never bound the ancestor, and may be created by a last will and testament. As if a man devise lands to a man for life or in tail reserving a rent, the devisee for life or in tail may take advantage of this warranty in law, albeit the ancestor was not bounden, and the warranty shall bind his heirs also, although they are not named. Also an express warranty cannot be created without deed, and a will in writing is no deed, and therefore an express warranty cannot be created by will.

SECTION 735.

Warranty descends to heirs

only; not to

ALSO, a warranty cannot go according to the nature of the teneat common law ments by the custom &c., but only according to the form of the common law. For if 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

heir in Borough

English;

discontinues the entail with warranty &c., and has issue two sons, and dies seised of other lands or tenements in the same borough in fee-simple to the value or more [than the value] of the lands entailed &c., yet the youngest son shall have a formedon of the lands entailed, and shall not be barred by the warranty of his father, albeit assets descended to him in fee-simple from his said father according to the custom &c., because the warranty descends upon his elder brother who is in full life, and not upon the youngest. And in the same manner is it of collateral warranty made of such tenements, where the warranty descends upon the eldest son &c. this shall not bar the youngest son &c.

[3866]

SECTION 736.

IN the same manner is it of lands in the county of Kent, that or gavelkind; are called gavelkind, which lands are dividable between the brothers &c. according to the custom; if any such warranty be made by his ancestor, such warranty shall descend only to the heir who is heir at the common law, that is to say, to the elder brother, according to the conusance of the common law, and not to all the heirs who are heirs according to the custom.

SECTION 737.

half blood.

[387 a]

ALSO, if tenant in tail has issue two daughters by divers venters or heir of the and dies, and the daughters enter, and a stranger disseises them of the same tenements, and one of the daughters releases by deed to the disseissor all her right, and binds herself and her heirs to warranty, and dies without issue: in this case the sister who survives may well enter and oust the disseisor, because such warranty is no discontinuance or is collateral to thesister who survives, for the sisters are of the half blood and cannot be heirs the one to the other. But otherwise it is, where there are daughters of a tenant in tail by one venter.

[387b]

But it may be annexed to an

SECTION 738, 739.

BUT warranty may descend to one's heirs for term of another estate pur auter man's life, if it be annexed to such an estate pur auter vie, which estate, though it be no inheritance, is yet a descendable freehold.

tie.

[388 a]

Term of years goes to executors not to

heirs, though so limited.

And to a term no warranty extends.

[389 a]

SECTION 740.

AND note, where a lease or grant is made to a man and to his heirs for term of years, in this case the heir of the lessee or the grantee shall not after the death of the lessee or grantee have the lands so granted, because it is a chattel real, and chattels real by the common law shall devolve on the executors of the grantee or lessee, and not on the heir.

A warranty extends not to a lease though it be for many thousand years, or to estates of tenant by statute staple, or merchant, or elegit, or any other chattel, but only to estates of freehold or inheritance. And this is the reason why in all actions which a lessee for years may have, a warranty cannot be pleaded in bar, as in an action of trespass, or the like.

Destruction of estate defeats

warranty.

SECTION 741, 742, 743.

IF the estate to which the warranty is annexed be defeated, the warranty is defeated also.

A man enfeoff's a woman with warranty they intermarry and are impleaded, upon the default of the husband, the wife is received, she shall vouch her husband &c., notwithstanding the warranty was put in suspense. And so on the other side, if a woman enfeoff a man with warranty, and they intermarry and are impleaded, the husband shall vouch himself and his wife by force of the said warranty.