rebut the eldeft fon, and prevent him from 1ecovering the estate tail, because it is a collateral warranty; for the eldest fon cannot make a title to the fecond fon under the intail.

mainders expectant thereon.

Sym's Cafe,

8 Rep. 516.

§ 24. With respect to remainders expectant on And all Reeftates tail, there is nothing in the ftatute de Donis, which either, directly or indirectly, refrains the tenant in tail from barring them by his warranty; and, therefore, the operation of a warranty in rebutting remainder men, expectant upon eftates tail, remains as it was before the statute; fo that fuch warranty will now bar them without affets.

§ 25. In the cafe of Bole v. Horton, which has been Ante f. 21. already stated, Lord Chief Juftice Vaughan lays it down as clear law, that the ftatute de Donis does not restrain the warranty of tenant in tail from barring remaindermen, by the defcent of the warranty on them. ift, Because the mischief complained of in this ftatute was, that the iffue in tail was difinherited. But the warranty of the donee in tail defcending upon the remainder-man, who claims by purchafe from the donor, and not by descent from the donee in tail, could be no difinheriting of the issue of the donee. 2d, The ftatute did not provide against inconveniencies, or mifchiefs which did not exift at the time of making the ftatute. Now, when the ftatute was made, there could be no remainder in tail, because all eftates which are estates tail fince the ftatute, were fee-fimple conditional before the ftatute, upon which a remainder could not be limited.

Rob. Gav. 125 note.

1. 2.

§ 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 1 Inft. 3736. A. be tenant in tail, remainder to B. his next brother in tail, (which is a very common cafe arifing upon almost every marriage fettlement), and A. being in poffeffion, makes a feoffment with warranty, or levies a fine, (in which there is always a warranty), of the estate tail, and dies without iffue, this warranty being collateral to B., who claims by way of remainder, will therefore bar him without affets.

§ 27. By the ftatute 11 Hen. 7. c. 20., it is enacted, that in cafe a wife, after the death of her husband, shall alone, or with any after taken husband, alien with warranty, any lands which fhe holds in dower, or of which fhe is feifed in tail, of the gift of her former husband, or of any of his ancestors, fuch warranty fhall be void.

For the conftruction of this ftatute, vide Title 36. Recoveries.

§ 28. By the ftatute 4 Ann, c. 16. f. 21., it is enacted, 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 defcending or coming to any person in reverfion or remainder, shall be void and of none effect: and, likewife, all collateral warranties which fhall be made after the fame day of any lands, tenements, or hereditaments, by any

ancestor

ancestor who has no estate of inheritance in poffeffion in the fame, fhall be void against his heir.

25.

It is obfervable, that this ftatute does not extend to Ante f. 22. the alienation of a tenant in tail in poffeffion, and therefore his warranty is not reftrained by this act.

S 29. A warranty may be deflroyed by the attain. der of the warrantor, for, in that cafe, he becomes incapable of transmitting any thing by defcent.

How a Wardestroyed.

ranty may be Lit. f. 745747

TITLE XXXII.

DEED.

CHAP. V.

The fame Subject continued.-Covenants and Conclufion.

OfCovenants.

Plowd. 138.

I Vent. 26.

THE

'HE feventh part of a deed is the covenant, which is an engagement or agreement by which one perfon obliges himself to do fomething beneficial to, or to abstain from fomething, 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 fomething in futuro, and differs from the cafe 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 itself. 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.

§ 3. A covenant can only be created by deed, but it may as well be by deed poll, as by indenture; for the covenantee's acceptance of the deed delivered to him is fuch an affent to the agreement, as will render it binding on him. But in the cafe of a deed poll the party must be named in the deed.

§ 4. Where lands are conveyed by indenture to 1 Inft. 231 a. two perfons and one of them does not feal the deed, yet if he enters upon the land, and accepts of the deed in other matters, he will be bound by the covenants contained in it.

55. The law has not appropriated any particular No technical Words necefform of words to the creation of a covenant; and fary.

therefore any words will be fufficient for that purpose, 1 Vef. R.516, which fhew the intention of the parties to enter into a

covenant.

Carr,

2 Mod. 86.

§ 6. In articles of agreement reciting an intended Hollis v. marriage, it was covenanted that in confideration of the lady's portion, a jointure fhould be fettled on her: and the conclufion was in these words" And it is "hereby agreed that a fine fhall be levied to secure "the payment of the faid portion." It was refolved, that these words created a covenant to levy a fine: for, Hilliard,

VOL. IV.

F

Harwood v.

wherever 2 Mod. 268.