So the heir must be of full age, when the warranty 16. This doctrine was confirmed by the statute 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.' 17. 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 extend to his heirs. When it was enacted by the statute Quia emptores, 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 2-275. 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. n. 1. 18. Lord Coke says, if a man makes a lease for life 1 Inst. 384. a. 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 by force of either of them. 19. 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 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 Infra, c. 35. grantor, would qualify and restrain its force and operation within the import and effect of that covenant; for when it appears, by express words, how far the parties Nokes's case, designed the warranty should extend, the law will not carry it farther by construction. 20. It was resolved in 1 James,-1. That in every exchange the word excambium implies in itself tacitè a condition, and also a warranty; the one to give a re-entry, and the other, a voucher and recompense; and all in respect of the reciprocal consideration, the infra, c. 25. Bustard's case, 4 Rep. 121. 1st. 173. b. 1 Inst. 173. b. See Tit. 19. Lineal warranty, 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. 11. 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. III. 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. 21. In all deeds of partition between coparceners, there is a warranty annexed to each part; so that if either be impleaded, she may vouch her sister; and if she loses, she may recover one moiety of her loss in value against the other sister. For there is a condition annexed to every partition, nexed to every exchange; that if any one share, or an estate for life or in tail, be thereout evicted, the party so evicted may enter on her sister's moiety, and avoid the partition of an undivided moiety of what is left. similar to that aneither the whole of 22. Warranty is again divided into lineal and collateral. Lineal warranty is where the heir derives, or might possibly derive, his title to the land warranted, either from or through the ancestor who made the warranty. Thus where a man seised in fee made a feoffment, and bound himself and his heirs to warranty, and died leaving a son, upon whom the warranty descended, it was a lineal warranty. So where a father, Lit. § 707. or an eldest son, in the lifetime of his father, released to a disseisor, with warranty, this was lineal to the younger son. 23. The effects of a lineal warranty are, 1. To bar the warrantor and his heirs from ever claiming the lands warranted; so that if a purchaser with warranty is impleaded by the warrantor or his heirs, he may show his warranty, which in pleading is called a rebutter, and is an effectual bar to the claim. II. To compel the warrantor and his heirs to give the warrantee, in case of eviction, lands of equal value to those he has lost; and therefore if a purchaser with warranty is impleaded or sued by a stranger for the land, he may vouch, that is, call in the warrantor or his heirs, to defend the land; and if the vouchee cannot defend them, he must then give the warrantee lands of equal value to those he has lost. 1 Rep. 1. 24. A purchaser with warranty may also at any Fitz. N.B. 134. time bring a writ of warrantia chartæ upon the warranty, either against the warrantor or his heirs; and by that means all the lands whereof the warrantor or his heirs was seised at the time of suing out the writ, will be bound and charged with the warranty. Only binds the heir where he 25. The obligation which the heir of the warrantor is under, in the case of a lineal warranty, of giving to has assets. the warrantee, upon eviction, lands of equal value to those he has lost, is however only on condition that he has other lands of equal value, by descent from the warranting ancestor; which are called assets. 26. Lands in possession of an heir must have the 1 Inst. 374. b. following qualities: 1. They must be assets, that is of equal value or more at the time of the descent. II. They must be by descent, and not by purchase or Collateral warranty. § 704,5. Tenures, 168. gift. III. They must be estates in fee simple, and not 27. A collateral warranty is, where the heir's title to the land neither was, nor could have been, derived from the warranting ancestor; and yet it barred the heir from ever claiming the land; and also imposed on him the same obligation of giving the warrantee other lands, in case of eviction, as if the warranty were lineal, provided the heir had assets. 28. Thus Littleton says, if there was father and son, and the son purchased lands in fee, and the father disseised the son, and aliened in fee by deed, and bound himself and his heirs to warranty, and died; the son was barred by this warranty, which was collateral, though it descended lineally from the father to the son; because the son did not derive his title to this estate from his father; for the father had no estate in right in the land. 29. The effect of a collateral warranty is so singular, and so apparently unjust, that many inquiries have been made respecting its origin. Sir Martin Wright endeavours to account for it in the following manner. It was a maxim of our ancient law, that no person could alien his feud without the consent of his next collateral heir; qui proximus erat in successione collaterali: for although the law trusted the ancestor with the interest of his own immediate descendants, yet he could not disinherit the next collateral heir, who having a distinct, though remote interest, in the feudal donation, could not be deprived |