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for no warranty was ever a bar, until it descended on a person, that is, unul after the death of the warrantor.

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Rot. Parl. S 18. Collateral warranty was so great a grievance, . 2P. 332. that in 50 Edw. 3., the

in 50 Edw. 3., the commons petitioned the king 11. 27.

to declare that no collateral warranty should thence, forth be a bar, unless where assets descended from the warranting ancestor; to which, his Majesty answered, that he would consider of it until the next para liament.

Statute of Gloucester.

2 Inft. 291.
i Inft. 365 a.

S 19. There have been several statutes made to restrain the operation of warranties. The first of these is the statute of Gloucester, 6 Edw. 1. C. I., by which it was enacted, that if a tenant by the curtesy aliened the estate which he held by the curtesy, with warranty, his fon should not be barred by such warranty, unless he inherited lands of equal value from his father.

Statute de 20. The next statute by which the operation of Donis.

warranties was qualified, was the statute de Denis Conditionalibus, the object of which being to secure the continuance of the estate tail to the issue of the donee,

and the reversion to the donor, upon the determinaLit. f. 708. tion of the estate tail ; it was held by the judges, that Gilb. Ten. 142.

a tenant in tail could not bar his issue by a lineal warranty. But by a kind of analogy to what the legislature had done, by the statute of Gloucester, they held, that such a warranty would bar the issue, if they

inherited from the warranting ancestor an estate of 1 Inft. 384. a. equal value to that which he had warranted; that is,

that that a lineal warranty by a tenant in tail, was no bar to the issue without alles.

$ 21. This reasoning may be extended to the reverfion of the person creating the intail, for the statute de Donis is as precise in its protection of the donor's reversion, as of the estate tail itself; and, therefore, it may be concluded, that no warranty of the tenant in tail will rebut the donor from claiming the reversion, upon the determination of the estate tail.

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Horton,

$ 22. William Vesey devised the lands in question to Bole v. John Vesey his eldest son for life, and, after, to the Vaugh.'350. heirs male of his body, remainder to Robert Vesey and the heirs male of his body, remainder to William Vesey and the heirs male of his body, remainder to Mathero Vesey and the heirs male of his body, and died, John entered and died without any male issue, leaving two daughters, Elizabeth and Sarah. After the death of John, Robert entered, and died seised without male issue; upon which, William entered, and Mathew died without issue male in the lifetime of William,

William made a feoffment of the lands, with warranty to the use of himself for life, remainder to the use of Ann his wife for life, remainder over. William died without leaving any male issue, and Ann his wife cntered.

Elizabeth and Sarah, the daughters and coñeirs of John, brought a formedon in the reverter against Ann the widow of William, who pleaded the warranty of

Williams

William, whose cousins and coheirs they were; and the question was, whether Ann could rebut them by the warranty.,

Lord Chief Justice Vaughan argued, that the statute de Donis restrained the warranty of tenant in tail from barring the donor’s reversion, by expressly providing, that the donee in tail should not have it in his power to bar the donor of his reversion. Ita quod non habeant illi, quibus tenementum fic fuit datum sub conditione, potefta. tem alienandi tenementum sic datum, quo minus ad exitum illorum quibus tenementum fic fuerit datum remaneat post eorum obitum, vel ad donatorem vel ad ejus hæredem (li exitus deficiat ) revertatur. By these words, the donee or tenant in tail is restrained from all power of alienation, whereby the lands entailed may not descend to the heir in' tail after his death ; therefore, by these words, he is restrained from alienation with warranty, which doubtless would hinder the lands so to descend, if it were not restrained by the words of the statute. By the same words, the donee in tail is restrained from the power of alienation, whereby the land intailed may not revert to the donor for want of issue in tail. Therefore, by these words, he is restrained from such alienation with warranty, whereby the lands may not revert to the donor or his heirs, for want of issue in tail ; for the same words of the statute must be of equal power and extent to restrain the donee's aliena.' tion from damaging the donor, as from damaging the issue in tail. Admit the words of restraint in the sta. tute de Donis had been rex ftatuit, &c. lia quod non habeant illi, quibus tenementum fic fuit datum sub condi

tione, potestatem alienandi tenementum fic datum, per warrantiam, vel aliter quo minus ad exitum eorum remaneat, vel ad donatorem revertatur ; it had then been clear to every understanding, that the warranty of the donee or tenant in tail, by the express words of the statute, did neither bar the donor nor the ilTue in tail, and then observe what consequences had been rightly deduced from such restraint made by the statute. The statute expressly restrains the warranty of tenant in tail from barring his issue; whence it follow, that, by the statute, the issue in tail is not barred by the lineal warranty of the tenant in tail, because his warranty upon the issue in tail cannot possibly be any other than a lineal warranty. It may be said, in like manner, that the statute de Donis restrains the warranty of te. nant in tail from barring the donor, or his heir, of the reversion : the consequence, thence deducible, is, that the statute restrains the collateral warranty of tenant in tail from barring the donor or his heirs, because his warranty falling upon the donor, or his heir, can be no other than a collateral warranty. Now, it is true, the word warranty is not, in syllables, within the restraint of the statute ; but it is necessarily implied in it, else the issue in tail would be barred by the warranty of tenant in tail, without assets, contrary to all the books since the making of the statute. But those general words of the statute restraining the donees power of alienation in express terms equally and pari passu for the benefit of the donor, as for the benefit of the issue in tail, can never be understood to restrain the warranty of tenant in tail only, for the benefit of the issue in tail, but not for the benefit of the donor. But the statute must necel

sarily

sarily restrain his warranty indefinitely from hurting either; and, by conlequence, his lineal warranty is restrained from hurting his issue, and his collateral warranty from hurting the donor, to whom his warranty can never be but collateral, as it can never be but lineal, to the issue in tail. And if the warranty be necessarily understood and implied in the statute, its operation must be the same as if it had been ex. pressly inserted in the stai ute. Then, to say, that by the restraint of the statute, the donees have not power to alien the land intailed quo minus ad exitum illorum remaneat post illorum mortem, but they have power to alien quo minus ad donatorem revertatur deficienti exitu, would be to make the statute contradictory to itself,

No judgment was given in this case, the court being divided ; Vaughan and Archer for the demandant; and Wylde and Atkyns for the tenant: bụt Vaughan's opi. nion is generally held to be law,

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statute 3. A collateral war

A collateral Warranty bars Estates Tail. Gilb. Ten. 142, 145.

§ 23. A collateral warranty is not prohibited by the statute de Donis ; for, as that statute only declared that the will of the donor should be observed, the judges would not extend it to collaterals, who did not take by the gift, and who, therefore, could not be forbidden from barring by their warranty,

Sect. 708. to

Thus, Littleton says, that if a tenant in tail hath issue three sons, and discontinues the estate tail in fee, and the second son releases by deed to the discontinuee with warranty, and dies without issue, this warranty will

716.

rebut

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