Page images
PDF
EPUB

So, by release or confirmation, which enlarges the estate. Co. L. 371. 385. a. (6) .

So, though the release or confirmation pass no estate or right, and the releasor has nothing in the land. Co. L. 371. b. 385. a.

And such release, &c. is sufficient for a warranty to the assignee. Dub. Co. L. 371. b. Acc. Co. L. 385.a.

So, a warranty in law may be created by will; as, if a man by his will devise land in tail, or for life, rendering rent. Co. L. 386. a.

But an express warranty cannot be created without deed. Co. L. 386. a.

And therefore, a devise in fee with warranty; the warranty is void, for a will is no deed. Co. L. 386. a.

[In old conveyances there is a reservation made of such deeds as tend to deraign the warranty paramount. By Ld. Kenyon Ch.J. Yea v. Field, B. R. M. 29 G. 3. ` 2 T. R. 709.]

(E) To what estates annered. A warranty may be annexed to all estates of freehold or inheritance, which pass by livery. Co. L. 366. a.

So, to estates incorporeal which lie in grant; as, advowsons, rents, common, estovers, &c. Co. L. 366. a. (c)

Though the rent, &c. be newly created, and was not in esse before; for though there cannot be a prior title to the rent, there may be to the land, by eviction whereof the rent will be lost. Co. L. 366. a.

So, if a rent newly created be given in exchange for land, or for owelty of partition, the warranty in law extends to it. Co. L. 366. a.

So, if a rent-seck be released with warranty to the tenant of the land, although it enures by way of extinguishment generally, it shall be annexed to it. Co. L. 366. b.

But a warranty cannot be annexed to chattels real or personal; for if a man warrants them, the party shall have covenant, or action upon the case. Co. L. 101. b. 389. a.

Nor, to the estate of tenant by statute, or elegit. Co. L. 389. a. (F) What rights, or titles, are barred by warranty.

Warranty extends to warrant the land in the same plight as it was at the time of the warranty. Co. L. 388. b.

And therefore, if any person have an elder right at the time of the warranty, the warranty extends to it. Co. L. 388. b.

So, a warranty extends to a rent, common, &c. issuing out of land, which was discharged or suspended at the time of the warranty. Co. L. 366. b. 388. b.

As, if the grantee of a rent disseise the terre-tenant and make a feoffment with warranty; that extends to the rent, for it was discharged at the time of the warranty. Co. L. 388. b.

So, if the grantee release to the terre-tenant, with warranty of the tenements. Co. L. 366. b.

So, a right shall be barred, though it descend in one respect, and the

Warrane of the warany person to it.

[ocr errors][merged small]

warranty in another; as, if husband and wife sue in right of the wife, they shall be barred by a collateral warranty of the ancestor of the husband. Co. L. 365. b.

Or, if a woman, heir of a disseisor, enfeoff with warranty, and after wards marry the disseisee; in a præcipe they shall be barred by the warranty of the woman. Co. L. 365.b.

So, a right not in esse at the time of the warranty, buť future, may be barred by warranty; as, if a father be disseised, and the son releases with warranty, though he had no right at the time but only in futúro upon the death of his father; for otherwise there would be a circuity of action. Co. L. 265. a. . ilici fredlo son 22W

Though the warranty and right descend to the heir at the same time; as, if A. tenant for life, remainder to his son, be disseised, release with warranty, and die, the son is barred. Co. L. 388. b.

So, though the warranty descends first, if the right was in esse in a of the ancestors at the time of the descent Co. L. 388. a. **

So, a right of entry, or action, shall be barred by warranty. R. Sal. 686.

(G) What not. But warranty does not extend to naked titles; as, to a title of entry for a condition broken; for that cannot be devested, neither can there be an action for it, and so no voucher, or warrantia chartæ. Co. L. 389. a. 379. b.

So, it does not extend to a title of entry by force of an exchange. Co. L. 389. a.

Nor, to a title of entry for mortmain, consent to a ravisher, &c. Co. L. 389. a.

So, if made by a parcener, &c. upon alienation of his part, it does not extend to avoid the partition. R. Mo. 21.

So, a warranty does not extend to a right, which commences after the warranty made. Co. L. 388. b.

And therefore, if a son has a rent, common, &c. out of the land of his father, who makes a feoffment with warranty, and afterwards the son is disseised, and the warranty descends: this does not extend to the rent, which was put to a right after the warranty. Co. L. 388. b.

So, if a woman who has a rent, &c. intermarry with the terretenant to whom A. releases with warranty; this does not extend to the demand of rent by the wife, or her heir; for their title of action for it commences after the warranty, viz. upon the death of the husband, or wife. Co. L. 388. b.

So, if the grantee of a rent grant it to the terre-tenant upon condi- 1 tion, who makes a feoffment with warranty; this does not extend to the rent afterwards claimed for breach of the condition. Co. L. 389. a.

If tenant in tail, remainder in tail, levies a fine with warranty, and.. afterwards suffers an erroneous recovery, and dies without issue; though the warranty descends upon him in the remainder, it does not bar him to have error upon the recovery. Dub. 2 Rol. 741. 1. 35.

So, it does not extend to an estate in reversion, remainder or possession, which was not devested or put to a right at the time or before the descent of the warranty. Co. L. 388.b.

And

And therefore, if there be tenant for life, remainder or reversion in fee to A., and a collateral ancestor of A. release to the tenant for life in fee with warranty, and die, and the warranty descends upon A., his remainder or reversion is not barred, for it was not devested. Co. L. 388. b.

So, if the father has land in fee, and the son has a rent, common, &c. out of the land, the father makes a feoffment with warranty ; this does not extend to the rent, &c. which was not devested. Co. L.388.b..

So if the husband makes a feoffment, and a collateral ancestor of the wife release with warranty ; this does not bar her right of dower, which was not changed from its original essence. Co. L. 389. a.

(H) What warranties are bars.

I 1.) Lineal warranty ; what shall be. Warranties are of three kinds ; lineal, collateral, or which commence by disseisin. Lit. s. 697.

Lineal warranty is, where the heir to the warranty would have conveyed his descent to the lands (if there had been no warranty) from the same ancestor, who made the warranty. Co L. 370. a.

As, if a father seised in fee makes a feoffinent with warranty and dies, the warranty will be lineal to his son, for he would have made his descent to the land from his father. Lit. s. 703.

So, it will be a lineal warranty, if the heir conveys his descent by means of the ancestor who made the warranty, though he does not make his title immediately as heir to him; as, if the grandfather be disseised, and the father release with warranty, and die in the life of the grandfather; his warranty will be lineal to the son, for he claims by means of the father, although he makes his title to the grandfather, who was last seised. Lit. s. 706.

So, if by possibility the heir could convey his descent by means of such ancestor; as, if the father be disseised, and the eldest son release with warranty, and die in the life of his father ; his warranty will be lineal to the youngest son. Lit. s. 707.715.

If A. tenant in tail, and his eldest son, make a feoffment with warranty, and the eldest son dies in the life of his father; this warranty is lineal to the youngest son of A. R. Hut. 22.

So, it will be a lineal warranty, if the heir derive his title from the ancestor who made the warranty, though he does not derive from him alone; as, if there be a gift in tail to husband and wife and the heirs of their bodies, and the husband discontinue; the warranty of the husband or the wife is lineal to the issue in tail, though he claims as heir of both their bodies. Lit. s. 714.

So, if there be a gift to a man and a woman and the heirs of their bodies, who afterwards intermarry; though the donees took by moielies. Co. L. 375. a.

(H 2.) Collateral, what shall be. prise . But, where the heir to the warranty does not derive his title from the ancestor who made the warranty, it will be a collateral warranty ; because his title is collateral. Lit. s. 704, 705.717. As, if a father disseise his son, and make a feoffment to another with Vol. IV. Ff '[G]

war

warranty, it will be a collateral warranty; because the son does not derive his title from the father. Lit. s. 704. · If the father be disseised, and the youngest son release with warranty, it will be collateral to his eldest brother. Lit. s. 707, 708.

So if tenant in tail discontinue, a release by the uncle with warranty will be collateral to the issue in tail. Lit. s. 709.

3.) Collateral in part, and lineal in part. So the same warranty may be collateral in part, and lineal in part; as, if the eldest daughter enter, and enfeoff B. of all the land, which descended to her and her sister, with warranty, and die without issue; the warranty will be collateral for the moiety, which was the part of the youngest sister, and lineal as to the other moiety. Lit. s. 710.

So, a warranty, which was collateral to some, may become lineal to others; as, if a man be disseised, and his youngest son release to the disseisor with warranty, it will be collateral to his eldest brother and his issue, but if he die without issue, the warranty becomes lineal to the issues of the youngest son himself. Co. L. 371. b. .

If tenant in tail discontinue, and his middle son release to the discontinuee with warranty, and die without issue; the warranty is collateral to his eldest brother; but if he afterwards die without issue, it is lineal to his youngest brother. Lit. s. 708.

(H 4.) When lineal warranty shall be a bar. By the common law, all warranties, which did not commence by disseisin, were bars to the heir upon whom they descended.

And therefore, if a lineal warranty descends upon the heir to a feesimple, it will be a bar to him without assets. Lit. s. 711.

So, a lineal warranty, which descends upon the issue in tail with assets, will be a bar, notwithstanding the st. de donis, 13 Ed. 1. But this is by an equitable construction of the st. of Glo. 3. Co. L. 374. Vau. 365.

But by construction upon the st. de donis, a lineal warranty is no bar to the issue in tail, without assets by descent from the same ancestor. Co. L. 37. Vau. 365. Hut. 2.

And they ought to be of equal value with the land warranted at the time of the descent. Co. L. 374.b.

So, they ought to be assets in fee-simple, and not in tail, or pur auter vie. Co. L. 374. b.

So, they ought to be lands, or tenements, rents, &c. issuing out of lands, and not personal inheritances. Co.L. 374.b. Vide Assets.

(H 5.) When collateral warranty shall be a bar.“ : By the st. Gloc. 6 Ed. 1.3. warranty of the father tenant by curtesy, either in the life of his wife, or afterwards, with assets, shall be a bar to the heir, who claims the inheritance on the part of his mother. 2 Inst. 292.

And before this statute, warranty by tenant by the curtesy was a bar to his heir, without assets. 2 Inst. 292.

So, warranty of the father or mother, tenant for life, since the st. Gloc. 3. without assets, will be a bar to the heir ; for the statute only

reme

Glocwarranty out 2 Inst. y by tenant

remedies in the case of a tenant by the curtesy. 2 Inst 292. R. Sal. 685.

So, warranty of the mother, ténant in dower, till the st. 11 H. 7. 10. Co. L. 381. 2 Inst. 292.

So, a donee in tail discontinuing, if his wife after his death release to the discontinuee with warranty, it will be a bar to the issue in tail. Lit. s. 713.,

So, if a donee in tail, remainder to A. his sister in fee, levy a fine with warranty to the use of D. and his heirs, and die without issue, A. and B. his sisters being his heirs; A. shall be barred by this warranty for the whole, though the warranty descends to B. and her. R. 2 Cro. 217, 218.

But by the st. of Gloc. 3. warranty of the tenant by the curtesy is no bar to the heir, without assets. 2 Inst. 222. 293.

So, by the equity of this statute, the warranty of tenant in tail is no bar, unless there be assets in fee-simple descended. 2 Inst. 293. Vide ante, (H 4.)

So, if a collateral warranty be, annexed to an estate for three lives, (which is good within the st. 32 H. 8. and no discontinuance, but determined by the death of the tenant in tail without issue,) the warranty does not bind after the estate determined. R. Cro. El. 602.

And there was a bill to prevent a collateral warranty's being a bar, without assets.

So now, by the st. 4 An. 16. s. 21. all warranties by tenant for life made after the 1st day of Trinity term 1706, descending on him in reversion or remainder, shall be void.

And all collateral warranties, made after that by any ancestor not in possession, shall be void as to his heir.

(I) What warranties are no bar. (I 1.) Warranty, which commences by disseisin. But warranty, which commences by disseisin, does not bar the heir upon whom it descends. Co. L. 366, 367. Lit. s. 698.

As, if the father tenant for years or at will of his son's land, make a feoffment with warranty. Lit. s. 698.

Or, if tenant by statute or elegit, make a feoffment. Ibid.

Or, guardian in chivalry, socage, for nurture, &c. Lit. s. 699. Co. L. 367. b.

So, if a man abate, intrude, &c. into land, and make a feoffment with warranty. Co. L. 367. a.

If a man enter before the lord by escheat, and make a feoffment with warranty. Ibid.

So, if a joint-tenant make a feoffment of the whole, with warranty, it shall be void for a moiety. Lit. s. 700.

So, if a disseisin be made with intent to make a feoffment, or to have a release with warranty; the warranty will be void, though it be not a disseisin and warranty together. Co. L. 367.

So, if he who makes the warranty be of covin with the disseisor, though the disseisin is not done immediately to the heir upon whom the: warranty descends; as, if a lessee for life, or donee in tail, be disseised,

Ff [G] 2

a re

« PreviousContinue »