Warranty. ante, c. 2. $69. Express 12. Lord Coke's description of a warranty having been already stated, I shall proceed to inquire into the different kinds of warranties, and their effects. 13. A warranty may either be expressed, or implied; either in deed, or in law. An express warranty, or a warranty in deed, is where the grantor of an estates enters into an express agreement, to warrant it to the grantee: and in this the word warrantizo, 1 Inst. 384 a. or warrant, is the only apt and effectual one, and cannot be supplied by any other. Id. 47 a. 385 b. 14. The usual form of a warranty was thus-Et ego prædictus Willielmus et hæredes mei et mei as signati totam prædictam acram terræ, cum omnibus suis pertinentiis prædicto Johanni et hæredibus suis, et suis assignatis, contra omnes gentes warrantizabimus in perpetuum. 15. The word heirs is absolutely necessary in an 1 Inst. 383 b. express warranty; for otherwise the heirs of the warrantor will not be bound. It is the same with respect to the person to whom the warranty is made; for if it be not to the warrantee and his heirs, or in words which imply his heirs, it will cease upon the death of the warrantee. 1 Inst. 367 b. Touch. 186. 16. To make a good express warranty, the following circumstances are necessary:-1°. That the person who makes the warranty be capable of so doing: for if an infant makes a feoffment in fee of land, and binds himself and his heirs to warrant it, the warranty is void, though the feoffment is only voidable. 1 Inst. 386 a. 2°. A warranty must be made by deed in writing; for a warranty inserted in a will would be void. So. There must be some estate to which the warranty is annexed, that is capable of supporting it: for if a person covenants to warrant land to another, and makes him no estate, or makes him an estate that is not good, and covenants to warrant the thing; in these cases the warranty is void. 4°. The estate to which 1 Inst. 378 a. the warranty is annexed must be capable of support ing it, that is, it must be an estate of freehold for if a person makes a lease for years, and binds himself and his heirs to warrant the land to the lessee, this is no warranty; though it may amount to a covenant. 5o. The warranty must descend upon the per- 1 Inst. 386 a. son who is heir of the whole blood, by the common law, to him who made the warranty. 6°. The heir must continue heir; and neither the descent of the title, nor of the warranty, must be interrupted: for if a person binds himself and his heirs to warranty, and afterwards is attainted of treason or felony, and dies, this warranty will not bind his heirs. So if a tenant in tail be disseised, and after release to the disseisor, with warranty, and the tenant in tail is attainted of felony, and hath issue and dies, this warranty will not bind the issue. 7°. The estate that is 10 Rep. 96. to be barred by a warranty, must be divested and Vide Tit. 35. turned to a right, before or at the time when the warranty is made; and the person on whom the warranty descends, must then have but a right to the land. 8°. The warranty must take effect in the life- 1 Inst. 386 a. time of the ancestor, who must be bound by it; for the heir shall never be bound by an express warranty, unless the ancestor was bound by it. 9°. The heir 1 Inst. 370 a. must claim in the same right that the ancestor did. 1 Ld. Rayın. So the heir must be of full age, when the warranty falls upon him; otherwise he will not be barred by it. c. 13. 380 a. 35. 17. Implied warranties arise from some other word Implied Warranty. than the word warranty; or from the nature of the deed. Diss. c. 1. $ 64. 18. It has been already stated, that by the feudal law, in case the vassal was evicted out of his feud, the lord was obliged to give him another of equal extent. In conformity to this principle, it appears to have been the established law, when Glanville wrote, that every feoffment implied a warrantyGlanv. lib. 7. Tenentur autem hæredes donatorum, donationis et res donatas sicut rationabiliter factæ sunt, illis quibus facto sunt, et hæredibus suis warrantizare. The same law Bract. 338 b. prevailed in Bracton's time-Et sciendum est quod ad omnes chartas de simplici donatione, competit tenenti warrantizatio, et tenentur donatores, et eorum hæredes, ad warrantiam, &c. nisi forte in charta de feoffamento contrarium exprimitur. c. 2. 19. This doctrine was confirmed by the statute 2 Inst. 274. De Bigamis, 4 Edw. I., which declares, that "in deeds where is contained dedi et concessi tale tenementum, without homage, or without a clause that containeth warranty, and to be holden of the givers and their heirs, by a certain service; it is agreed, that the givers and their heirs shall be bounden to warranty. And where is contained dedi et concessi, &c., to be holden of the chief lords of the fee, or of others, and not of the feoffors, or of their heirs, reserving no service, without homage, or without the foresaid clause, their heirs shall not be bounded to warranty; notwithstanding the feoffor, during his own life, by force of his own gift, shall be bound to warrant." 1 20. In this case it is evident, that the warranty was a consequence of tenure; for where there was no tenure between the feoffor and feoffee, the warranty was confined to the donor, who was considered as bound by his own act, but did not extend to his § 11. heirs. When it was enacted by the statute Quia empto- ante, c. 1. res, that in all future feoffments in fee simple, the feoffee should hold of the chief lord, and not of the feoffor, the implied warranty arising from the word dedi, was held only to bind the feoffor during his life, and not his heirs. But where a person granted lands to another in tail, or for life, reserving the reversion to himself, as the grantee held of the grantor, there being a tenure subsisting between them, the old law still continued; 1 Inst. 384 a. and therefore, where these estates were created by the word dedi, the donor and his heirs were bound to warranty. But where a person granted an estate tail, or for life, by the word dedi, with a remainder over in fee simple, as no tenure continued between the donor and donee, the warranty only continued during the life of the donor. 2 275. 21. Lord Coke says, if a man makes a lease for 1 Inst. 384 a. life by the word dedi, reserving rent, and adds an express warranty, it will not take away the warranty in law for the lessee will have his election to vouch ; force of either of them. n. 1. 22. The doctrine of implied warranties still exists Idem. where estates tail or for life are created by the word dedi or give; and the donor does not part with the reversion. But Lord Coke says, dedi is the only word that implies a warranty, and not the word concessi. It has however been generally supposed, that the word grant in any conveyance will create a warranty, and therefore trustees are frequently advised not to convey by the word grant. But it is now agreed, that the word grant, when used in the conveyance of a freehold estate, does not imply a warranty; and that if it did, the insertion of any express covenant on the part of the grantor, would qualify and restrain its force and operation within the import VOL. IV. Ff Nokes's Case, infra, c. 25. Bustard's Case, 4 Rep. 1 and effect of that covenant; for when it appears, by express words, how far the parties designed the warranty should extend, the law will not carry it farther by construction. 23. It was resolved in 1 James,-1°. That in every exchange the word excambium implies in itself tacitè 1 Inst. 173. a condition, and also a warranty; the one to give a re-entry, and the other, a voucher and recompence; and all in respect of the reciprocal consideration, the one land being given in exchange for the other. But it is a special warranty ; for upon the voucher by force of it, he shall not recover other land in value, but that only which was by him given in exchange. For inasmuch as the mutual consideration is the cause of the warranty, it shall therefore extend only to lands reciprocally given, and not to other lands. And this warranty runs only in privity, for none shall vouch by force of it, but the parties to the exchange or their heirs, and no assignee. 2°. That if A. gives in exchange three acres to B. for other three acres, and afterwards one acre is evicted from B., in that case the whole exchange is defeated, and B. may enter into all his land; for although the exchange had been good, if A. had given but two acres, or but one acre or less, yet forasmuch as all the three acres were given, in exchange for the others; and the condition which was implied in the exchange was entire; upon the eviction of one acre, the condition in law was broken, and therefore an entry was given on the whole. 3°. That as, when the whole estate in part was evicted, the exchange was defeated; so when an estate of freehold for life, which was but parcel of the estate, was evicted, the exchange was defeated. 1 Inst. 173 b. 24. In all deeds of partition between coparceners, there is a warranty annexed to each part; so that if |