debts, out of the personal estate of the mortgagor (m). As in equity the lands are only a security to the mortgagee, in case the mortgagor should not pay him, so also in equity the lands still devolve as the real estate of the mortgagor, subject only to be resorted to for payment of the debt, in the event of his personal estate being insufficient for the purpose. (m) 2 Jarm. Wills, 554; see Yates v. Aston, 4 Q. B. 182. Warranty. Warranty implied by word give. PART V. OF TITLE. It is evident that the acquisition of property is of little benefit, unless accompanied with a prospect of retaining it without interruption. In ancient times, conveyances were principally made from a superior to an inferior, as from the great baron to his retainer, or from a father to his daughter on her marriage (a). The grantee became the tenant of the grantor; and if any consideration were given for the grant, it more frequently assumed the form of an annual rent, than the immediate payment of a large sum of money (b). Under these circumstances, it may readily be supposed, that, if the grantor were ready to warrant the grantee quiet possession, the title of the former to make the grant would not be very strictly investigated; and this appears to have been the practice in ancient times; every charter or deed of feoffment usually ending with a clause of warranty, by which the feoffor agreed that he and his heirs would warrant, acquit, and for ever defend the feoffee and his heirs against all persons (c). Even if this warranty were not expressly inserted, still it would seem that the word give, used in a feoffment, had the effect of an implied warranty; but the force of such implied warranty was confined to the feoffor only, exclusive of his heirs, whenever a feoffment was made of lands to be holden of the chief lord of the fee (d). (a) See ante, p. 29. (b) Ante, p. 30. Under an express war (d) 4 Edw. I. stat. 3, c. 6; 2 Inst. 275; Co. Litt. 384 a, n. (c) Bract. lib. 2, cap. 6, fol. (1). ranty, the feoffor, and also his heirs, were bound, not Express waronly to give up all claim to the lands themselves, but ranty. also to give to the feoffee or his heirs other lands of the same value, in case of the eviction of the feoffee or his heirs by any person having a prior title (e); and this warranty was binding on the heir of the feoffor, whether he derived any lands by descent from the feoffor or not (f), except only in the case of the warranty commencing, as it was said, by disseisin; that is, in the case of the feoffor making a feoffment with warranty of lands of which he, by that very act (g), disseised some person (), in which case it was too palpable a hardship to make the heir answerable for the misdeed of his ancestor. But, even with this exception, the right to bind the heir by warranty was found to confer on the ancestor too great a power: thus, a husband, whilst tenant by the curtesy of his deceased wife's lands, could, by making a feoffment of such lands with warranty, deprive his son of the inheritance; for the eldest son of the marriage would usually be heir both to his mother and to his father: as heir to his mother, he would be entitled to her lands, but as heir of his father he was bound by his warranty. This particular case was the first in which a restraint was applied by parliament to the effect of a warranty, it having been enacted (¿), that the son should not, in such a case, be barred by the warranty of his father, unless any heritage descended to him of his father's side, and then he was to be barred only to the extent of the value of the heritage so descended. The force of a warranty was afterwards greatly restrained by other statutes, enacted to meet other cases (k); and the clause of warranty having long Warranty now (e) Co. Litt. 365 a. (g) Litt. s. 704; Co. Litt. 371 a. c. 1, as construed by the judges, s. 21. ineffectual. Words which in themselves imply a covenant for quiet enjoy ment. Demise. Grant. been disused in modern conveyancing, its chief force In addition to an express warranty, there were formerly some words used in conveyancing, which in themselves implied a covenant for quiet enjoyment; and one of these words, namely, the word demise, still retains this power. Thus, if one man demises and lets land to another for so many years, this word demise operates as an absolute covenant for the quiet enjoyment of the lands by the lessee during the term (m). But if the lease should contain an express covenant by the lessor, limited to his own acts only, such express covenant showing clearly what is intended, will nullify the implied covenant, which the word demise would otherwise contain (n). So, the word grant has been sometimes supposed to imply a warranty, unless followed by any express covenant, imposing on the grantor a less liability (o The word exchange, also, has hitherto implied a mutual right of re-entry, on the eviction of either of the exchanging parties from the lands exchanged (p). And, by the Registry Acts for the East Grant, bargain, and North Ridings of Yorkshire, the words grant, barand sell, in bar- gain, and sell, in a deed of bargain and sale of an estate in fee simple, enrolled in the Register Office, imply covenants for the quiet enjoyment of the lands against the bargainor, his heirs and assigns, and all claiming under him, and also, for further assurance thereof, by the bargainor, his heirs and assigns, and all claiming under him, unless restrained by express words (q). The im Exchange. gain and sale of East and North (1) 3 & 4 Will. IV. c. 27, s. 39; 3 & 4 Will. IV. c. 74, s. 14. (m) Spencer's case, 5 Rep. 17 a; Bac. Abr. tit. Covenant (B): (n) Nokes's case, 4 Rep. 80 b. (0) See Co. Litt. 384 a, n. (1). 121 a. (9) Stat. 6 Anne, c. 35, s. 30; 8 Geo. II. c. 6, s. 35. * The same excluent also affects the West Riding as to words grant plied effect of the words grant and exchange is now New enactment The absence of a warranty is principally supplied, in modern times, by a strict investigation of the title of the person who is to convey; although, in most cases, covenants for title, as they are termed, are also given to Covenants for the purchaser. By these covenants, the heirs of the title. vendor are always expressly bound; but, like all other similar contracts, they are binding on the heir or devisee of the covenantor to the extent only of the property which may descend to the one, or be devised to the other (s). Unlike the simple clause of warranty in ancient days, modern covenants for title are five in number, and few conveyancing forms can exceed them in the luxuriant growth to which their verbiage has attained (t). The first covenant is, that the vendor is seised in fee simple; the next, that he has good right to convey the lands; the third, that they shall be quietly enjoyed; the fourth, that they are free from incumbrances; and the last, that the vendor and his heirs will make any further assurance for the conveyance of the premises, which may reasonably be required. At the present day, however, the first covenant is usually omitted, the second being evidently quite sufficient without it (u); and the length of the remaining covenants has of late years somewhat dimi (r) Stat. 7 & 8 Vict. c. 76, s. 6. (s) Ante, pp. 57, 58. (t) See Appendix (A.). (u) 2 Sugd. Vend. and Pur. 449. |