394 OF WARRANTY. A WARRANTY (concerning freeholds and inheritances) (a) is a covenant real annexed to lands or tenements, whereby a man and his heirs are bound to warrant the same, and either upon voucher, or by judgment in a writ of warrantia charta, to yield other lands and tenements to the value of those that shall be evicted by a former title, else it may be used by way of rebutter. 1 Inst. 365 a. An action of covenant will lie upon the words of a deed " will warrant and defend the premises to A B and his heirs for ever:" and this from necessity, as otherwise the buyer would be without a remedy in many cases, for the writ of warrantia chartæ is not in use. Ricketts v. Dickens, 1 Murph. 343. (a) There are also warranties of goods and chattels upon contracts; but warranties of lands, &c., only are here spoken of.For warranties of goods and chattels, see vol. i. tit. Actions on the Case, letter (E). Warranty, in its original form, it is presumed, has never been known in the United States. The more plain and pliable form of covenant has been adopted in its place. See 4 Kent, Com. 457; 2 Rawle, 67, n.; 9 Serg. & R. 268; 11 S. & R. 109; 4 Dall. 442; 2 Wheat. 45; Bouv. L. D. h. v.g———Lď. Coke says, that the learning of warranties is one of the most curious and cunning learnings of the law, but the subtlety out of this learning is, as will be shown, greatly abridged by the statute law. For the better consideration of this subject, we shall reduce it under the following heads, under which we shall examine, (A) The several Kinds of Warranties. (B) To what things a Warranty may be annexed. (C) What Words and Clauses in a Deed will make a Warranty. (D) What shall be deemed a good Warranty in Deed. (E) What shall be deemed a good Warranty in Law. (F) Of the Nature of a lineal Warranty, and how far it shall bind. (G) What shall be deemed sufficient Assets to make a lineal Warranty a Bar. (H) Of the Nature of a collateral Warranty at Common Law, and how far it shall bar. (I) Of the Alterations introduced by the Statute Law. (K) What shall be deemed Warranties by Disseisin, Abatement, or Intrusion. (L) Of the Effects of Warranty in Deed. (M) What Use may be made of a Warranty in Deed. (N) Who may take Advantage of a Warranty, and against whom. (0) When a Warranty shall be said to be defeated, determined, suspended, or avoided. (P) How Warranties shall be expounded. B(Q) Of Warranties in the sale of Personal Chattels. 1. Express Warranties. 2. Implied Warranties.g (A) The severa. Kinds of Warranties. WARRANTIES, in their more general divisions, are of two kinds. First, a warranty in deed, or an express warranty, which is when a fine (B) To what Things a Warranty may be annexed. or feoffment in fee, or a lease for life is made by deed, which has an express clause of warranty contained in it, as when a conusor, feoffor, or lessor, covenants to warrant the land to the conusee, feoffee, or lessee. 2 Inst. 365. Secondly, a warranty in law, or an implied warranty, which is when it is not expressed by the party, but tacitè made and implied by the law. A warranty in deed is either lineal or collateral. A lineal warranty is a covenant real, annexed to the land by him who either was owner of or might have inherited the land, and from whom his heir lineal or collateral might by possibility have claimed the land as heir from him that made the warranty. 1 Inst. 370. A collateral warranty is made by him that had no right, or possibility of right to the land, and is collateral to the title of the land. Also, there is a warranty which commences by disseisin or wrong. Lit. sec. 698. Warranties likewise may be said to be either general, viz., by one and his heirs to another and his heirs; or particular, and restrained to a certain person. (B) To what Things a Warranty may be annexed. A WARRANTY may not only be annexed to freeholds, or inheritances corporeal, which pass by livery, as houses and lands; but also to freeholds or inheritances incorporeal, which lie in grant, as advowsons; and to rents, commons, estovers, and the like, which issue out of lands or tenements: and it may not only be annexed to inheritances in esse, but also to rents, commons, estovers, &c., newly created. As a man (some say) may grant a rent, &c., out of land for life, in tail, or in fee with warranty; for though there can be no title precedent to the rent, yet there may be a title precedent to the land out of which it issueth before the grant of the rent, which rent may be avoided by the recovery of the land, in which case the grantee may help himself by a warrantia chartæ upon the especial matter. And so warranty in law may extend to a rent, &c., newly created; and therefore if a rent newly created be granted in exchange for an acre of land, this exchange is good, and every exchange implieth a warranty in law. And so a rent newly created may be granted for owelty of partition. 1 Inst. 366. If a man seised of a rent-seck, issuing out of the manor of Dale, taketh a wife, and the husband releaseth to the terre-tenant, and warranteth tenementa prædicta, and dieth, and the wife bringeth a writ of dower of the rent, the terre-tenant shall vouch, for that albeit the release enured by way of extinguishment, yet the warranty extendeth to it, and by the warranty of the land, all rents, &c., issuing out of the land, that are suspended or discharged at the time of the warranty created, are warranted also. 1 Inst. 366. But a warranty doth not extend to any lease, though it be for many thousand years, or to estates of tenant by statute staple, or merchant, or elegit, or any other chattel, but only to freeholds or inheritances. And this is the reason, that in actions which lessee for years may have, a warranty cannot be pleaded in bar; as, in an action of trespass, or upon the statute of 5 R. 2, (C) What Words and Clauses in a Deed will make a Warranty. and the like. But in such actions, which none but a tenant of the freehold can have, as upon the statute of 8 H. 6, assize, or the like, there a warranty may be pleaded in bar. 1 Inst. 389 a. A warranty may be made upon any kind of conveyance, as upon fines, feoffments, gifts, &c. Also a warranty may be made by and upon releases and confirmations made to the tenant of the land, although he who makes the lease or confirmation has no right to the land, &c. And yet some have holden, that no warranty can be raised upon a bare release or confirmation, without passing some estate, or transmutation of the possession. But the law is otherwise; for if A be seised of lands in fee, and B release to him, or confirm his estate in fee with warranty to him, his heirs and assigns, this warranty is good, and both the party and his assignee shall vouch. 1 Inst. 385 a. (C) What Words and Clauses in a Deed will make a Warranty. THE word warrantizo, or warrant, is the only apt and effectual word to make an express warranty, or a warranty in deed, and therefore this word. is used in fines. 1 Inst. 384. And the words defendo, or acquitto, although they are commonly used in deeds, yet of themselves, without the other, will not make a warranty. 1 Inst. 384; Litt. sect. 733; 5 Rep. 17, 18, Spencer's case. The words dedi et concessi, or dedi only, in a feoffment, make a warranty, when an estate in fee or inheritance passes by the deed. 1 Inst. 384. But the word concessi only, or demisi et concessi, do not make such a warranty, in the case of a freehold or inheritance. 5 Rep. 18, Spencer's case. And by force of the statutes of Bigamis, chap. 6, dedi is made an express warranty during the life of the feoffor. 1 Inst. 384; 4 Rep. 81, Noke's case. If a man by deed warrants land to J S and his heirs, and the warrantor does not bind his heirs to the warrantee; or does not warrant to J S and his heirs, but to J S and his assigns, these are good warranties. Dyer, 42; 1 Inst. 383. But if a man makes a feoffment in fee, and warranty to the feoffee only, without naming his heirs, there the warranty shall endure only for life, because it is taken strictly. And yet if the feoffee recovers in value, he shall recover fee-simple, because he loses fee-simple. Dyer, 42. If a man makes a feoffment to one and his heirs, and binds himself and his heirs to warranty against all people, and does not say with certainty to whom, nor for how long he will warrant, yet the feoffee will have a feesimple in the warranty, as he had in the land: but, if the intent of the warranty appears plainly by express words, the warranty shall extend no farther. Dyer, 42. In Pennsylvania, Arkansas, Delaware, and Missouri, the words "grant, bargain, and sell," are an implied covenant that the grantor has done no (D) What shall be deemed a good Warranty in Deed, act or created any encumbrance by which the estate might be defeated, but do not create a general warranty. Gratz v. Ewalt, 2 Binn. 95; Balliot v. Bowman, 2 Binn. 98; Fonk v. Voneida, 11 S. & R. 109; Bender v. Fromberger, 4 Dall. 440; 3 Penns. 313; Bouv. L. D., Grant, Bargain and Sell. Where there is a general warranty that, at the time of the conveyance, the grantor was "seised of an indefeasible estate in fee-simple," followed by a special warranty against himself and his heirs, the special warranty does not control the precedent general covenant. Bender v. Fromberger, 4 Dall. 436.7 (D) What shall be deemed a good Warranty in Deed. A WARRANTY in deed, or an express warranty, as has been said, is created only by the word warrant. And It is to be premised, that to every good warranty in deed, in order that it may bar and bind, these following circumstances are requisite. First, That the person that warrants be a person able; for if an infant makes a feoffment in fee of land, and thereby binds him and his heirs to warrant the land, in this case, although the feoffment be only voidable, yet the warranty is void. 1 Inst. 367 b. But, if a man of full age and an infant make a feoffment in fee with warranty, this warranty is not void in part, and good in part; but it is good for the whole against the man of full age, and void as to the infant. 1 Inst. 367 b. Secondly, That the warranty be made by deed in writing; for if a man makes a feoffment by word, and by word binds him and his heirs to warrant the land, this is not a good warranty. So, if a man gives land to another by his last will, and thereby binds him and his heirs to warrant it; this warranty, although the will be in writing, is void, because a will in writing is no deed. 1 Inst. 386. Thirdly, That there be some estate to which the warranty is annexed that may support it; for if one covenant to warrant land to another, and make him no estate, or make him an estate that is not good, and covenant to warrant the thing granted; in these cases the warranty is void. 10 Rep. 96. Likewise, if the estate to which the warranty is annexed is determined, the warranty dependent on it is determined likewise. Thus, if a man maketh a gift in tail, and warranteth the land to him and his heirs, and afterwards tenant in tail maketh a feoffment and dieth without issue, he shall not rebut the donor in a formedon in reverter, because that the estate to which the warranty is annexed is determined. 10 Rep. 96. Fourthly, That the estate to which the warranty is annexed, be such an estate as is able to support it, and therefore that it be a lease for life at the least; for if one makes a lease for years of land, and binds himself and his heirs to warrant the land; this is no good warranty, neither will it have the effect of a warranty; but this may amount to a covenant, on which an action of covenant may be brought. 1 Inst. 378; 5 Rep. 17, Spencer's case. (D) What shall be deemed a good Warranty in Deed. Fifthly, That the warranty descends upon him that is heir of the whole blood by the common law to him that made the warranty, and not upon another; for if tenant in tail in borough English discontinues the tail, and has issue two sons, and the uncle releases to the discontinuee with warranty, and dies; this is no good warranty to bind the younger son. 1 Inst. 12; Litt. sect. 735. Because a warranty cannot go according to the nature of tenements by the custom, &c., but only according to the form of the common law. Litt. ibid. So, if in this case tenant in tail discontinues the tail with warranty, &c., having two sons, and dies seised of other lands in the same borough in fee-simple, to the value of the land in tail; the younger son is not barred by this warranty. 1 Inst. 12; Litt. 735, and it is there added, that the younger son shall not be barred, though assets in fee-simple descend to him from his father. So, if one gives his land to the eldest son and the heirs male of his body, the remainder to the second son, &c., and the eldest aliens with warranty, having issue a daughter and dies; this is not a good warranty to bar the second son. Litt. sect. 718. The reason is, because the warranty descended to the daughter of the elder son, and not to the second son. Litt. ibid. So, if tenant in tail has issue two daughters by divers venters, and dies, and they enter, and a stranger disseises them, and one of them releases all her right, and binds her and her heirs to warrant it; in this case the warranty is not good to bar the sister, because they are of half blood only, and the one cannot be heir to the other according to the course of the common law. Litt. 737. So, if two brothers be by demi-venters, and the eldest release with warranty to the disseisor of the uncle, and dies without issue; this is no good warranty to bar the younger brother; for a warranty, as has been said, must descend upon him that is heir at the common law to him that made it. 1 Inst. 387. Sixthly, It is necessary that he that is heir do continue to be so, and that neither the descent of the title nor the warranty be interrupted; for if one binds him and his heirs to warranty, and after is attainted of treason or felony, and dies; this warranty does not bind his heir. Litt. sect. 745. So, if tenant in tail be disseised, and after release to the disseisor with warranty, and after the tenant in tail be attainted of felony, and have issue and die; this warranty will not bind the issue. Litt. sect. 746. The reason is, for that nothing in this case maketh a continuance but the warranty, which cannot descend to the issue in tail, because the blood between the issue and him that made the warranty is corrupt. Id. ibid. Seventhly, That the estate of freehold that is to be barred be put to a right before or at the time of the warranty made, and that he to whom the warranty descends have then but a right of the land; for a warranty will not bar an estate of freehold or inheritance in esse, in possession, in reversion, or remainder, that is not displaced and put to a right before or at the time of the warranty made, though after at the time of the descent of the |