Exception. Shep. T. 77. Dorrell v. in his poffeffion, because he is bound to defend the title at his peril. 547. Where only a part of an eftate held under one title is fold, this clause is not inferted, because the grantor is allowed in that cafe to keep the title deeds, and the grantee is only entitled to a covenant from the grantor to produce the deeds whenever there shall be occafion for them. $ 48. The next claufe in the premifes of a deed is that, whereby the grantor excepts fomething out of that which he has before granted, by which means it does not pass by the grant, and is fevered from the thing granted. § 49. The following circumstances are necessary to make a good exception. Ift, It must be made by apt words. 2d, The thing excepted must be part of the thing previously granted, and not of any other thing. 3d, It must only be a part of the thing granted, for if the exception extends to the whole, it will be void. Cro. Eliz. 6. 4th, It must be of fuch a thing as is feverable from the thing granted, and not an infeparable intereft or incident. 5th, It must be fuch a thing as that he who excepts may retain it. 6th, It must be of a particular thing out of a general one; not a particular thing out of a particular one. 7th, It must be certainly defcribed and set down. Habendum. $ 50. The fecond part of a deed is the habendum, the proper office of which is to determine what estate or be or interest is granted by the deed; though that may alfo done in the premises. It is called the habendum because in all the old Latin deeds it began with that word. S 51. The defcription of the things granted need not be repeated in the habendum, as it is fufficient that they are described in the premises. For it is in the premises that the grant is really made, and the very word habendum, or to hold, as it is translated, indicates a reference to what is described in the premises. With refpect to the words required by the law to create an eftate in fee, &c. in a deed they will be stated in a fubfequent chapter. $ 52. The third part of a deed is called the Tenendum. tenendum, which was formerly used to exprefs the tenure by which the estate granted was to be held. But fince all freehold tenures have been changed into free and common focage, the tenendum is of no farther ufe, and is therefore joined to the ba bendum. 53. The fourth part of a deed is the reddendum, Reddendum. whereby the feoffor or leffor reserves fome new thing to himself out of that which he granted before. The following circumstances are required to make a good refervation. Ift, It must be by apt words. 2d, It Shep. T. 8o. must be of some other thing iffuing or coming out of the thing granted, and not a part of the thing itself, nor of fome thing iffuing out of another thing. 3d, It muft Vide Tit. 28. Condition. Tit. 13. must be of fuch a thing whereunto the grantor may have refort to distrain. 4th, It must be made to one of the grantors, and not to a stranger to the deed. S 54. The fifth part of a deed is the Condition, which has been described in a former title. THE fixth HE fixth part of a deed is the warranty, which is described by Lord Coke to be," a covenant real "annexed to lands or tenements, whereby a man and "his heirs are bound to warrant the fame, and, either << upon voucher or by judgment in a writ of warran"tia carta, to yield other lands and tenements to the "value of those that shall be evicted by a former title, or elfe may be used by way of rebutter." Warranty. Inft. 365 a. 2. A warranty may either be expreffed or im- Exprefs Warplied, either in deed or in law. An exprefs warranty, ranty. or a warranty in deed, is when the perfon who conveys an estate enters into an express warranty to the purchafer: and, in this cafe, the word war rantizo, or warrant, is the only apt and effectual 1 Inft, 384 a. word. VOL. IV. E $ 3. The Lit. f. 773. § 3. The ufual form of a warranty was ego et hære 1 Inft. 383 b. des mei warrantizabimus, and the word heirs is absolutely neceffary, for, if not inferted, the heirs are not bound. So, with refpect to the perfon to whom a warranty is made, it is held, that, unless it be to an other and his heirs, or in words which relate to heirs, it extends only for life. 1 Inft. 47 a. 384 b. 385 b. § 4. To make a good exprefs warranty, the folInft. 367. lowing circumftances are neceffary: 1ft, That the per-. fon who makes a warranty be capable of fo 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 be only voidable. 1 Inst. 386 a. 2d, A warranty must be made by deed in writing; for a warranty inferted in a will would be void. 3d, There muft be fome eftate to which the warranty is annexed, that is capable of fupporting it; for, if a perfon covenants to warrant land to another, and makes him no eftate, or makes him an eftate that is not good, and covenants to warrant the thing, in these cases the 1 Inft. 379 a. warranty is void. 4th, The eftate to which the war-, ranty is annexed, muft be capable of fupporting it; that is, it must be an eftate of freehold: for, if a perfon makes a leafe for years, and binds himself and his heirs to warrant the land to the leffee, this is no warranty, though it may amount to a covenant. 5th, 1 Iuft. 386a. The warranty muft defcend upon the perfon, who is heir, of the whole blood by the common law, to him who made the warranty. 6th, The heir must continue heir, and neither the defcent of the title, nor of the warranty, be interrupted: for, if a perfon binds him Lit. f. 745. felf |