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rebut the eldest son, and prevent him from 1ecovering the estate tail, because it is a collateral warranty ; for the eldest son cannot make a title to the second son under the intail.
§ 24. With respect to remainders expectant on And all Re. estates tail, there is nothing in the statute de Donis,
nie mainders ex. ,
spectant which either, dire&tly or indirectly, restrains the te- thereon.
Sym's Cafe, nant in tail from barring them by his warranty ; and, 8 Rep. 516. therefore, the operation of a warranty in rebutting remainder men, expectant upon estates tail, remains as it was before the statute ; so that such warranty will now bar them without assets. .
S 25. In the case of Bole v. Horton, which has been Ante S. 21. already stated, Lord Chief Justice Vaughan lays it down as clear law, that the statute de Donis does not restrain the warranty of tenant in tail from barring remaindermen, by the descent of the warranty on them. ift, Because the mischief complained of in this statute was, that the issue in tail was disinherited. But the war. . ranty of the donee in tail descending upon the remainder-man, who claims by purchase from the donor, and not by descent from the donee in tail, could be no difinheriting of the issue of the donee. 2d, The statute did not provide against inconveniencies, or mischiefs which did not exist at the time of making the statute. Now, when the statute was made, there could be no remainder in tail, because all estates which are estates tail since the statute, were fee-simple conditional before the statute, upon which a remainder could not be limited.
§ 27. This
§ 26. This opinion was extrajudicial, as that point was not before the court; but I cannot find that it was ever contradicted. And it is now held, that if A. be tenant in tail, remainder to B. his next brother in tail, (which is a very common case arising upon almost every marriage settlement), and A. being in pofseffion, makes a feoffment with warranty, or levies a fine, in which there is always a warranty), of the estate tail, and dies without issue, this warranty being collateral to B., who claims by way of remainder, will therefore bar him without assets.
S 27. By the statute 11 Hen. 7. 6. 20., it is enacted, u Hen. 7.
that in case a wife, after the death of her husband, shall C. 20.
alone, or with any after taken husband, alien with Lircoln Col. warranty, any lands which she holds in dower, or of lege Case, 3 Rep. 58.
which she is seised in' tail, of the gift of her former husband, or of any of his ancestors, such warranty shall be void.
· For the construction of this statute, vide Title 36. Recoveries.
$ 28. By the statute 4 Ann, C. 16. f. 21., it is en. acted, that all warranties made after the first day of Trinity Term 1706, by any tenant for life of any lands, tenements, or hereditaments, the fame descending or coming to any person in reversion or remainder, shall be void and of none effect; and, likewise, all collateral warranties which shall be made after the same day of any lands, tenements, or hereditaments, by any
Statnte 4Ann, c. 16.
ancestor who has no estate of inheritance in possession in the fame, shall be void against his heir.
It is observable, that this statute does not extend to Ante f. 22. the alienation of a tenant in tail in possession, and 25. therefore his warranty is not restrained by this act.
S 29. A warranty may be destroyed by the attain. How a War.
ranty may be der of the warrantor, for, in that case, he becomes deftroyed.
Lit. l. 745. incapable of transmitting any thing by descent,
DE E D.
$s. Of Covenants
1950. Who are held to claim
through the Vendor. 8. Implied Covenants.
52. Or by his Default. 12. Joint and several Covenants. 53. Covenants for Produđion of 16. Covenants real.
Title Deeds. 17. Bind all claiming under the 54. What Covenants where the Grantee.
Title is defeative. . 30. And all claiming under the 55. Remedies under these Code Grantor.
nants. 37. Covenants for the Title to 65. Who are bound to enter into Lands.
these Covenants. 46. Usually restrained to the Aas | 70. Conclufon.
of the Vendor.
Section 1. Of Covenants. THE seventh part of a deed is the covenant, which
is an engagement or agreement by which one person obliges himself to do something beneficial to, or to abstain from something, which, if done, might be prejudicial to another. And a great variety of agreements of this kind have been introduced into modern deeds.
§ 2. A covenant is generally an agreement to do something in futuro, and differs from the case where an agreement refers to a thing which is not to be done by: the person of any; but to a thing to be executed
in itfelf. And where an agreement terminates in itself, it is not properly a covenant, but a defeazance. A covenant may however be executed, namely, that a Shep. T.162. thing is done already.
S 3. A covenant can only be created by deed, 1 Roll. Ab. but it may as well be by deed poll, as by indenture; Filz, N. B. for the covenantee's acceptance of the deed delivered 145. to him is such an assent to the agreement, as will render it binding on him. But in the case of a deed Green v.
Horne, poll the party must be named in the deed.
i Salk. 197
S 4. Where lands are conveyed by indenture to i Inft. 231 a. two persons and one of them does not seal the deed, yet if he enters upon the land, and accepts of the deed in other matters, he will be bound by the cove. nants contained in it.
5 5. The law has not appropriated any particular No technical
Words necesa form of words to the creation of a covenant; and farge therefore any words will be sufficient for that purpose, Vel. R.516. which shew the intention of the parties to enter into a covenant.
5 6. In articles of agreement reciting an intended Hollis v. marriage, it was covenanted that in consideration of 2
mnderauon Of 2 Mod. 86. the lady's portion, a jointure should be settled on her: and the conclusion was in these words " And it is
hereby agreed that a fine shall be levied to secure “ the payment of the said portion.” It was resolved, that these words created a covenant to levy a fine: for, pály
for Harwood v. Vol. IV.
wherever 2 Mod. 268.