SECTION 699. guardian binds ALSO, if a guardian in chivalry or in socage makes a feoffment in Feoffment by fee, or in fee-tail, or for life, with warranty &c. such warranty is not heir. no bar to the heir, because it commences by disseisin. [367b] SECTION 700. the ALSO, if father and son purchase lands to hold to them jointly [in But if the purchase was to the father and son and the heirs of the son, then if the father [being tenant for life only] makes a feoffment in fee with warranty, and the son does not enter in his father's lifetime as for the forfeiture, he shall be bound for a moiety by the collateral warranty. But if the purchase had been to the father and son, and to the heirs of the father, then the entry of the son in the lifetime of the father for avoidance of the warranty would not avail him, because his father might have lawfully conveyed away his moiety, [and therefore in such case the warranty on the father's feoffment would have been lineal and binding on his son and heir.] 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 although the feoffment of an infant passing by livery of seisin is voidable, yet his warranty, which takes effect only by deed, is merely void. SECTION 701. [368 a] ALSO, if A. be seised of a messuage, and F. who has no right to Two in possesthe same enters and dwells therein, in this case the possession of adjudged in the sion, freehold one having right; except as to bastard eigne, and mulier puisne. Statute against buying pretended titles and maintenance. [368b] [369 a] Sale of a right or title without possession incurs a forfeiture of treble value. the freehold shall be adjudged in A. and not in F., for the law adjudges him to be in possession who has right. But if F. makes a feoffment to certain barretors and extortioners with warranty, by force whereof the said A. dares not abide in the messuage, this warranty commences by disseisin, because such feoffment was the cause of A.'s relinquishing his house. These words of our author are significant and material; for if a man has issue two daughters, bastard eigne and mulier puisne, and dies seised, and they both enter generally, the sole possession shall not be adjudged in the mulier only [but in the other also], because they both claim by one and the same title, and not the one by one title and the other by another title as [in the case put by] our author. Here barretors and extortioners are put only for examples; for if the feoffment be made to any other person or persons, the law is all one, for by the stat. 1 R. 2, it is enacted, that feoffments made for maintenance shall be of no value; so that the case put by Littleton is at the common law, but some have said that the feoffment is not void between the feoffor and the feoffee, but only against him who has right. And since Littleton wrote, there is a notable statute (38 H. 8.c.9.) made in suppression of unlawful maintenance (which is the most dangerous enemy justice has), the effect of which statute is, first, that no person shall bargain, buy or sell, or obtain any pretended right or title; or, secondly, take promise, grant, or covenant for any right or title in or to any lands, tenements, or hereditaments, whereof the seller or they for whom he claims have not been in possession a year before, on penalty of forfeiting the whole value of the lands &c. and the buyer or taker &c. knowing the same to forfeit also the value. For example, if A. be the lawful owner of land and is also in possession, and B. who has no right thereto grants to, or contracts for the land with another, the grantor and the grantee (albeit the grant be merely void) are within the danger of the statute; for B. has no right at all, but only in pretence. Further, if A. be disseised, still he has a good lawful right; but if he, being out of possession, grants to, or contracts for the land with another, he has now made his good right of entry a pretended title within the statute, and both the grantor and grantee are within the danger thereof. A fortiori of a right in action. Quod nota. So if it be a good right As if coupled with a wrongful possession, it is within the statute. Note, the words of the statute are (any pretended right), therefore Leasehold and a lease for years is within the statute. But if a man makes a within the copyhold rights lease for years to try his title in ejectment, that is out of the statute. statute, because it is in course of law: but if it be made to a great man, or any other to sway or countenance the cause, that is within this statute. And a customary right or pretence to a copyhold is within the statute. But if one be remitted to a former title or recover upon an ancient right, or redeem a mortgage, or being a disseisor obtain the release of the disseisee, such person may presently sell, grant, or contract, and need not tarry a year. And without question, any person having a just and lawful estate may obtain any pretended right by release or otherwise; for that cannot be to the prejudice of any so a disseisor who has a wrongful estate may obtain a release from the disseisee. In like manner a remainder-man [who is necessarily out of possession] having a lawful and just title, may obtain a release of any pretended right or title, not only because the particular estate and remainder are all one; [the possession of the tenants for life being that of the remainder-man]; but because also it is a means of extinguishing the seeds of trouble and suits, and cannot prejudice any. But he in remainder cannot take a promise or covenant, that when the disseisee has entered upon the land, or recovered the same, that then he shall convey the land to the remainder-man, thereby to avoid the particular estate, for that is neither lawful, being against the express purview and body of the act, and not reasonable, because it is to the prejudice of a third person. [3696] Statute extends remainders, and not to releases, what other things. Warranty by disseisin. SECTION 702. ALSO, if a man who has no right to tenements enters into the same, and incontinently makes a feoffment thereof with warranty and delivers seisin, the warranty commences by disseisin, because the disseisin and feoffment were made at one time. [370a] Lineal warranty binds the right by descent. SECTION 703. WARRANTY lineal is, where a man seised of lands in fee makes a feoffment by deed to another, and binds himself and his heirs to warranty, and has issue and dies, and the warranty descends to his issue, that is a lineal warranty. And the reason why this is called lineal warranty, is not because the warranty descends from the father [to the son, but because the heir, if the lands had not been aliened, could not have made any other title thereto but by descent through his father, that is, he could not have claimed right to the lands by purchase; if he could, then, as to that claim, the warranty is collateral.] Warranty lineal.] A warranty lineal is a covenant real annexed to the land by him who either was owner, or might have inherited the land, and from whom his heir lineal or collateral might by possibility have claimed the land as heir from him who made the warranty. And it is called a lineal warranty, not because it must descend upon the lineal heir; for be the heir lineal or collateral, if by possibility he might claim the land from him who made the warranty, then is it lineal. And it is also called lineal [to distinguish it from collateral warranty, which is, where] the warranty is made by him who has no right or possibility of right to the land, Warranty binds and is therefore collateral to the [real right and] title. And it is to be observed, that warranty, whether lineal or collateral, binds the heir only, and not the successor to a body politic, who claims in another right, and is not bound by the warranty of any natural ancestor. not a corporation but only the natural heir. SECTION 704, 5. FOR if there be father and son, and the son purchases lands in fee, and the father afterwards disseises his son, and aliens to another in fee with warranty, and dies, now is the son barred by this warranty, which is called collateral, although it descend lineally from the father to the son. It is further called collateral, because he who made the warranty is collateral to the title of the tenements. Because although the warranty lineally descends, yet seeing the title is collateral, that is, that the son claims not the land as heir to his father, therefore in respect of the title it is a collateral warranty. The father releases by his deed with warranty &c.] And it is to be known, that upon every conveyance of lands, tenements, or hereditaments, as upon fines, feoffments, gifts &c. releases and confirmations made to the tenant of the land, a warranty may be made, albeit he who makes the release or confirmation, has no right to the land &c.; but some hold, that by release or confirmation, where there is no estate created, or transmutation of possession, a warranty cannot be made to the assignee. [3706] Collateral warright by purchase. ranty binds the [371a] on what conveyances warranty may be made. [3716] SECTION 707. ALSO, if a man has issue two sons and is disseised, and the eldest son releases to the disseissor by deed with warranty &c., and dies without issue, and afterwards the father dies, this is a lineal warranty to the younger son, because albeit the eldest son died in the lifetime of the father, yet by possibility the younger son might have conveyed title to the land by his elder brother, if no such warranty had been made. For after the death of the father the elder brother might have entered the tenements and died without issue, and then title to the land would have been conveyed to the younger son by his elder brother. But if the younger son had released with warranty to the disseissor, and died without issue, this would have been collateral to his elder brother, because of such Lineal and col lateral warranty distinguished, |