Vide Tit. 35.

Telf and his heirs to warranty, and afterwards is attainted of treafon or felony and dies, this warranty will not bind his heirs. So if a tenant in tail be dif feifed, and, after, release to the diffeifor with warranty, and the tenant in tail is attainted of felony, and hath iffue and dies, this warranty will not bind the iffue. 7th, The estate that is to be barred by a warranty muft 10 Rep. 95. be divested and turned to a right, before or at the time when the warranty is made; and the perfon on whom the warranty defcends, muft then have but a right to the land. 8th, The warranty must take effect in the life-time of the ancestor, who must be bound by it; for the heir fhall never be bound by an exprefs warranty, unless the ancestor was bound by it. 9th, The 1 luft. 370 a) heir must claim in the fame right that the ancestor does fo, the heir must be of full age, when the warranty falls upon him, otherwise he will not be barred by it.

§ 5. Implied warranties, or warranties in law, are thofe which arife from the nature of the deed itfelf, or from fome other word than the word warranty.

1 Inft. 386 a.

1.Inft. 380. Lord Ray.

35.

Implied

Warranty.

Thus the words dedi et conceffi, or the word dedi alone, 1 Inft. 384 a. in a feoffment, amount to an implied warranty, during

the life of the feoffor. But the word conceff alone does not create an implied warranty.

& b.

§ 6. In an exchange, the word excambium imports 1 Inft. 384 d. a mutual warranty: and, in partition, it is implied that the one warrants to the other. So, where there is a gift in tail, or a leafe for life of land, referving rent, the donor or leffor is bound to warranty.

1 Inft 384.

n. 1.

1 Inft. 384 a.

Lineal Warranty.

Lit. f. 707.

7. It has been generally fuppofed, 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 an estate of inheritance, does not imply a warranty, and that, if it did, the infertion of any exprefs covenant, on the part of the grantor, would qualify and reftrain its force and operation within the import and effect of that covenant; as the law will not, when it appears by exprefs words, how far the parties defigned the warranty fhould extend, carry it farther by construction.

§ 8. Lord Coke fays, if a man makes a leafe for life, referving a rent, and adds an exprefs warranty, it will not take away the warranty in law, for the leffee will have his election to vouch by force of either of them.

§ 9. Warranty is again divided into lineal and collateral. Lineal warranty is, where the heir derives, or might by poffibility derive his title to the land warranted, either from or through the ancestor who made the warranty. Thus, where a man, feifed in fee of lands, made a feofment of them to another, and bound himself and his heirs to warranty, and died, leaving a fon, upon whom the warranty descended, it was a lineal warranty: fo, where a father or an eldest fon, in the lifetime of his father, released to a diffeifor with warranty, this was lineal to the youngest fon.

$10. The

10. The effects of a lineal warranty are, ift, To bar the warrantor and his heirs from ever claiming the lands warranted; fo that, if a purchafer with warranty is impleaded by the warrantor or his heirs, he may fhow his warranty, which, in pleading, is called a rebutter, and is an effectual bar to the claim of the warrantor or his heirs.

2d, To compel the warrantor, and his heirs, to give the warrantee, in cafe of eviction, lands of equal value to those he has loft; and, therefore, if a purchaser with warranty is impleaded or fued by a ftranger for

the land, he may vouch, that is, call in the warrantor, Vide Tit. 36. 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 thofe he has loft.

§ 11. The obligation which the heir of the war- Affets. rantor is under, of giving the warrantee, in cafe of eviction, lands of equal value to thofe he has loft, was, however, only on condition, that he had other lands of equal value by defcent from the warranting ancestor, which are called Affets.

§ 12. Lands in the poffeffion of an heir must have 1 Inft. 3744. the following qualities, in order to be confidered as aflets. 1ft, They must be of equal or greater value than the lands warranted at the time of their descent, from whence they derive the name of assets.

2d, They must be held in fee-fimple, have defcended from the common ancestor, and be vefted in poffeffion, and not in right.

§ 13. A purchaser with warranty may, at any time, bring a writ of warrantia charta 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 fuing out the wit, wilk be bound and charged with the warranty.

§ 14. A collateral warranty has been defined to be, 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 alfo impefed on him the fame obligation of giving the warrantee other lands in cafe of eviction, as if the warranty were lineal, provided the heir had affets.

§ 15. Thus, Littleton fays, if there be father and son, and the fon purchases lands in fee, the father diffeifes him, and aliens to a ftranger with warranty; this is a collateral warranty, which will effectually bar the fon from ever claiming thofe lands; and, although the fon be lineal heir to his father, yet, as he does not derive his title to this eftate from his father, the warranty is collateral.

So, if a younger brother released to his father's diffeifor, with warranty, it was collateral to the elder

brother.

§ 16. The effect of a collateral warranty is so fingular, and fo apparently unjust, that many enquiries have been made relpecting its origin. Sir Martin Wright endeavours to account for it in the following manner :

163.

It was a maxim of our ancient law, that no perfon Wright'sTea. could alien his feud without the confent of his next collateral heir, qui proximus erat in fucceffione collaterali; for, although the law trufted the ancestor with the intereft of his own immediate defcendants, yet he could not difinherit the next collateral heir, who, having a diftinct, though remote intereft in the feudal donation, could not be deprived of it but by an act of his own; this manifeftly points out the foundation, and, partly, fuggests the reason of collateral warranty; though it is not easy to conceive how it came to pass, that the concurrence or fimple confent of the next collateral, which, by the old law, was requifite to defeat his own hopes of fucceffion, fhould fwell up to our notions of collateral warranty, and be advanced into a means to defeat, even eftates to which fuch collaterals could have no poffible hopes of fucceeding.

§ 17. Lord Chief Baron Gilbert, whofe authority is Ten 143. of the greatest weight, has endeavoured to account for collateral warranty in another manner. He thinks it arofe from the conftruction of the ftatute de Donis. It was ufual to quiet diffeifins, which were very frequent in those unfettled times, by the diffeifer's purchafing warranties from fome ancestor of the family, and this gave a right to fuch diffeifor; for it was easier to compound with the ancestor, than with the party to whom the wrong was actually done: and it was determined, for the quieting men's poffeffions, that fuch warranties fhould bind, if the owner acquiefced under his expectations from the warranting ancestor, and did not, during his life, attempt to recover the lands;