for the rent upon a title before the warranty made; for if the heir of the wife bring an assise of mort d'ancester, this action is grounded after the warranty, whereunto, as hath been said, the warranty shall not extend (x).

*389 a.

(261)*

*So it is, if the grantee of the rent grant it to the tenant of the land upon condition, which maketh a feoffment of the land with (Ante, 366 b.) warranty, this warranty cannot extend to the rent, albeit the feoffment was made of the land discharged of the rent; for, if the condition be broken, and the grantor be entitled to an action, this must of necessity be grounded after the warranty made.

(Ante, 202.)

But in the case aforesaid, when the woman grantee of the rent marrieth with the tenant, and the tenant maketh a feoffment in fee with warranty, and dieth, in a cui in vita brought by the wife (as by law she may), (c) the feoffee shall vouch as of lands discharged (c) 7 H. 4. 17. at the time of the warranty made, for that her title is paramount: so, if tenant in tail of a rent-charge purchase the land, and make a feoffment with warranty, if the issue bring a formedon of the rent, the tenant shall vouch causâ quâ supra (x).

(*) But some do hold, that a man shall not vouch, &c. as of (10.4.9b. land discharged of a rent-service.

18 E. 3. 55. 44 E. 3. 19.

fol. 97. E.

case. 22 Ass.

pl. 6. 33 E. 3.

(d) Also, no warranty doth extend unto mere and naked titles, as) Lib. 10. by force of a condition with clause of re-entry, exchange, mortmain, Seymour's consent to the ravisher, and the like, because that for these no action pl. 38. 31 Ass. doth lie; and if no action can be brought, there can be neither pl. 13. 41 Ass. voucher, writ of warrantia cartæ, nor rebutter, and they continue Gar. 74, (2 in such plight and essence as they were by their original creation, Dyer, 224 a. and by no act can be displaced or devested out of their original 10 Rep. 98b. essence, and therefore cannot be bound by any warranty (z).

Cro. 593.

3 Inst. 216.

Post, 265 a.
Plowd. 363 b.)

(e) 34 E. 3.

tit. Droit. 72.

21

E. 4. 82. (262)*

(e) And albeit a woman may have a writ of dower to recover her dower, yet because her title of dower cannot be *devested out of the original essence, a collateral warranty of the ancestor of the woman shall not bar her. So it is of a feoffment causa matri- non's case.) monii prælocuti.

(4 Rep. Ver

(x) The grantee in this case could not have advantage of the warranty, as to the rent, because the wife's estate therein was not displaced when the warranty was made; and if the wife or her heir afterwards bring an action for the rent, it must be grounded on some act done after the warranty was made. Hawk. Abr. 496.-[Ed.]

(Y) In both these cases the feoffee shall vouch as of lands discharged of the rent, for the warranty extends to all things issuing out of the lands, and secures it in such plight, as it was in the feoffor at the time of the feoffment made; but inasmuch as the rent is a thing that lies not in discontinuance, the issue or wife may distrain for it, and avoid the warranty; for it is in their election whether they will look on themselves as in possession or not. Seymour's case, 10 Co. 96.-[Ed.]

(z) And for the same reason, a rent-charge, or other collateral interest, or easement, cannot be barred by non-claim on a fine. Carhampton v. Carhampton, 1 Irish T. Rep. 567. 5 Co. 124 a. Sheph. Touch. 22. Nor can an interesse termini while it remains such; that is, till it gives a right of entry; nor a condition, till it operates by giving a right of entry: for a power, or rather an authority given to executors to sell, be barred by non-claim on a fine, since in all these instances there is no adverse possession. 2 Prest. Conv. 231.-[Ed.]

LITTLETON.

[Sect.734. 385 b.]

Must take

life of

be binding on him.

ALSO. if tenant in tail be seised of (16) lands devisable by testament after the custom, &c. and the tenant in tail alieneth the same (17) tenements to his brother in fee, and hath issue, and effect in the dieth, and after his brother deviseth by his testament the same ancestor, and tenements to another in fee, and bindeth him and his heirs to warranty, &c. and dieth without issue; it seemeth that this warranty shall not bar the issue in the tail, if he will sue his writ of formedon, because that this warranty shall not descend to the issue in tail, insomuch as the uncle of the issue was not bound to the same warranty in his life-time: neither (18) could he warrant the tenements in his life, insomuch as the devise could not take any execution or effect until after his decease.(1) And insomuch as the uncle in his life was not held to warranty, such warranty may not descend from him to the issue in the tail, &c. for nothing can descend from the ancestor to his heir, unless the same were in the ancestor (2).

*386 a.

(6 Rep. 33.

2 Cro. 570.

(f) 31 E. 1.
Grant 85.
(Hob. 130.

Here our author declareth one of the maxims of the common law, 10 Rep. 95.) that the heir shall never be bound to any express warranty, but where the ancestor was bound by the same warranty; for, if the ancestor were not bound, it cannot descend upon the heir, which is the reason here yielded by Littleton. (ƒ) If a man make a feoffment in fee, and bind his heirs to warranty, this is void, by the warrant of this maxim, as to the heir, because the ancestor himself Bract. lib. 2. was not bound. Also, if a man bind his heirs to pay a sum of money, this is void. And of the other side, if a man bind himself to warranty, and bind not his heirs, they be not bound; for he must say, as it appeareth before, Ego et hæredes mei warrantizabimus, Fleta, 1.2 &c. (N). (g) And Fleta saith, Nota quòd hæres non tenetur in

Ante, 213b.)

fol. 37. 238. Britt. fol. 106 b.

c. 55. Britt.

fol. 65 b.

11 H. 6. 48.

Anglia ad debita antecessoris reddenda, *nisi per antecessorem ad hoc fuerit obligatus, præterquam debita regis tantum; A (263) fortiori in case of warranty, which is in the realty.

(4 Rep. 80. Ante, 209 a.)

warranty in

law.

Secus as to a But a warranty in law may bind the heir, although it never bound the ancestor, and may be created by a last will and testa(h) 18 E. 3. 8. ment. (h) As if a man devise lands to a man for life or in tail reserving a rent, the devisee for life or in tail shall take advantage of this warranty in law, albeit the ancestor was not bounden, and shall bind his heirs also to warranty, although they be not named. Also, an express warranty cannot be created without deed, and a will in writing is no decd, and therefore an express warranty cannot be created by will.

(16) terres-tenements, L. and M. and Roh.

(17) mesmes, not in L. and M. nor Roh.
(18) que il ne, not in L. and M. nor Rok.

(1) Upon a similar principle it was held that a person could not devise land in frankmarriage, because the donee could not hold of the donor. Ant. 21 b. vol. 1. p. 524. [Butler, Note 336.]

(2) It is a general rule that the heir cannot take any thing by descent, where the ancestor is secluded from taking. Ante, 99 b. If a father and his heir apparent join in a warranty, the heir is doubly bound, by his own warranty, and as heir to his father. Moore, 20. [Butler, Note 337.]

(N) Vide Heba, lib. 2. cap. 62. § 10.

370 a.

must claim in

right.

Garr. 48.

Garr. 71.

And it is also to be observed, that in all the cases that Littleton hath put, or shall put, the lineal or collateral warranty doth bind the The heir heir; and therefore the successor claiming in an other right shall the same not be hound by the warranty of any natural ancestor. For which cause, (i) in a juris utrum brought by a parson of a church, the @27 H. 6. collateral warranty of his ancestor is no bar, for that he demandeth the land in the right of his church in his politic capacity, and the warranty descendeth on him in his natural capacity. (k) But some (4) 34 E. 3. have holden, that if a parson bring an assise, that a collateral warranty of his ancestor shall bind him; and their reason is, for *that the assise is brought of his possession and seisin, and he shall recover the mean profits to his own use: but seeing he is seised of the freehold, whereof the assise is brought, in jure ecclesiæ, which is in another right than the warranty, it seemeth that it should not be any bar in the assise. The like law is of a bishop, archdeacon, dean, master of an hospital, and the like, of their sole possessions, and of the prebend, vicar, and the like.

*370 b.

warranty

with assets

(*) 45 Ase. 6.

Pl. Com. 234.

&

553, 554. Rp.1. Ant. (264)*

19 b.)

Garr. 48. 34

(*) King H. 3. gave a manor to Edmund earl of Cornwall, and to the Diversity in heirs of his body, saving the possibility of reverter, and died: the the case of a earl, before the statute of W. 2. cap. 1. de donis conditionalibus, descending by deed gave the said manor to another in fee with warranty in on the king. exchange for another manor, and after the said statute in the twenty- 6E. 3.56 a. b. eighth year of E. 1. dieth without issue, leaving assets in fee-simple; which warranty and assets descended upon king E. 1. as cousin german and heir of the said earl, viz. son and heir of king Henry 3., brother of Richard earl of Cornwall, father of the said earl Edmund. And it was adjuged, that the king, as heir to the said Vid. 27 H. 6. earl Edmund, was by the said warranty and assets barred of the E. 3. Garr.71. possibility of reverter, which he had expectant upon the said gift, albeit the warranty and assets descended upon the natural body of king E. 1., as heir to a subject; and king E. 1. claimed the said manor, as in his reverter injure corone in the capacity of his body politic, in which right he was seised before the gift. In this how by the death of the said earl Edmund without issue, the king's 9 Rep. 132 b. title by reverter, and the warranty and assets came together, and Vaugh. 379.) that the warranty was collateral, yet the king shall not be barred without assets, as a subject shall be; and many other things are to be observed in this case, which the learned reader will observe (1).

case,

Vid. Sect.711, 712. (Hob.339.

380 a. The heir

Here not this diversity: if the heir be within age at the time of the descent of the warranty, he may enter and avoid the estate, "must be offull either within age, or at any time after his full age (D 1); and Little- age at the fall

(1) The king was barred of the possibility of reverter descending to him in jure coronæ, by warranty and assets from a subject descending on his body natural, because in all likelihood those lands will descend to the same person to whom the crown will descend, and consequently will be a good recompense for the loss of the crown lands; but in the case of the parson his successor can have no benefit of what the predecessor has in his natural capacity. Hawk. Abr. 474.-[Butler, Note 321.]

(D1) The last requisite to a good warranty, is, that the heir, who is to be barred by the warranty, be of full age at the time of the fall of the warranty; for if the ancestor make a feoffment, or a release with warranty, his heir being within age, and after the ancestor

of the warranty:

H. 6. 63. 28

Ass. 23. 32 E.

3. Garr. 30. (1 Rep. 120.

140)

Rol.

Abr. 773.) 35 H. 6. 63.

(265)*

(D) H.

3.7.9.

35 H. 6. 63.

ton (sect. 726.) saith well, that the infant in this case may enter upon 18 E. 4. 13. 35 the alienee; for if he bring his action against him, he shall be barred by this warranty, so long as the state whereunto the warranty is annexed continue, and be not defeated by entry of the heir; but if he be within age at the time of the alienation with warranty, and become of full age before the descent of the warranty, the warranty shall bar him for ever. Our author putteth his cases where the entry of the issue is lawful; (7) for where the entry of the infant is not lawful when the warranty *descendeth, the warranty doth bind the infant, as well as a man of full age; and the reason thereof is, because the state, whereunto the warranty was annexed, continueth and cannot be avoided but by action, in which action the warranty is a bar; and for the same reason likewise it is of a feme covert, if her entry be not lawful, a warranty, descending on her try was taken during the coverture, doth bind her. (m) And, albeit the husband (1 Rep. 66.) be within age at the descent of the warranty, yet, if the entry of F.N.B.192g. the wife be taken away, the warranty shall bind the wife.

Br. tit. War.

54. 39 H. 8. tit.

War. Br. 84.
Lib.1. fol.67 a.

in Archer's
case, & 140.
Chudley's

case.

*380 b.

unless his en

away.

(m) 18 E. 3. 3.

2 Inst. 453.)

LITTLETON.

4. Effect of warranty. At common law every warranty

If lands had been given to the husband and wife and their heirs, and the husband had made a feoffment to another, to whom a collateral ancestor of the wife had released, and died, and the husband died, (and this had been before the statute of 32 H. 8.) this warranty had so bound her waivable right, as she could not waive her estate, and claim dower. Otherwise it is of an estate determined: for if a disseisor make a lease to the husband and wife during the life of the husband, and the husband dieth, she may disagree to this estate determined, to save herself from damages. And so note a diversity between an estate determined, and an estate bound by warranty.

IT is commonly said, that there be three warranties, scil. [Sect.697. warranty lineal, warranty collateral, and warranty that com364 b.] mences by disseisin. And it is to be understood, that before the statute of Gloucester all warranties which descended to them which are heirs to those who made the warranties, were bars to the same heirs to demand any lands or tenements against the was a bar to warranties, except the warranties which commence by disseisin ; for such warranty was no bar to the heir, for that the warranty commenced by wrong, viz. by disseisin.

(except by disseisin)

the heir.

365 a.

Here our author beginneth with an exact division of warranties.

And this division of warranties that Littleton here speaketh of, he intendeth of warranties in deed.

die, and the warranty descend upon the heir within age, this is no bar. Chudleigh's case, 1 Co. 140 b. So if an infant was disseised, and the ancestor of the infant released to such disseisor with warranty, and died during the non-age of the heir, this was no bar; for the heir having in himself the right of possession, might enter; and consequently by his entry the estate to which the warranty was annexed was defeated, the warranty not interfering with his right of entry. But if he had only had a right of action, he would have been bound; as the warranty would have been an utter bar to any action brought, though it would not preclude him from entering. Infra, 380 a. Watk. Gilb. Ten. 148. 404.-[Ed.]

"Before the statute of Gloucester." This statute was made at a parliament holden at Gloucester in the sixth year of the reign of king E. 1., and therefore it is called the statute of Gloucester.

straining alienation with warranty tenants by curtesy, &c. of their wives'
Glouc. cap. 3. Vid. sect. 724, 725. & 727. &c.

By the statute of Gloucester four things are enacted:

First, that if a tenant by the curtesy alien with warranty and dieth, that this shall be no bar to the heir in a writ of mort d'ancester, without assets in fee-simple; and if lands or tenements descend to the heir from the father, he shall be barred, having regard to the value thereof.

(266)*

the common

Alteration in

law by the stat. of Glouc. cap. 3. reinheritances. (2 Inst. 293.)

Construction of this statute.

(8 Rep. 52,53.)

*Secondly, that if the heir, for want of assets at that time descend- *365 b. ed, doth recover the lands of his mother by force of this act, and afterwards assets descend to the heir from the father, then the tenant shall recover against the heir the inheritance of the mother by a writ of false judgment, which shall issue out of the record, to resummon him that ought to warrant, as it hath been done in other cases, where the heir being vouched cometh into the court, and pleadeth that he hath nothing by descent.

Thirdly, that the issue of the son shall recover by a writ of cosinage, aiel, and besaiel.

And lastly, that the heir of the wife, after the death of the father and mother, shall not be barred of his action to demand the heritage of the mother by writ of entry, which his father aliened in the time of his mother, whereof no fine was levied in the king's court.

Concerning the first, there be two points in law to be ob- (Post, 54 b.) served:

First, albeit the statute in this article name a writ of mort d'ancester, and after writs of cosinage, aiel and besaiel (n); yet a writ of right, a formedon, a writ of entry ad communem legem, and all other like actions, are within the purview of this statute; for those actions are put but for examples.

Secondly, where it is said in the said act (if the tenant by the curtesy alien), yet his release with warranty to a disseisor, &c. is within the purview of the statute, for that it is in equal mischief; and if that evasion might take place, the statute should have been made in vain.

If tenant by the curtesy be of a seignory, and the tenancy escheat 22 Ass. 9.& 37. unto him, and after he alieneth with warranty, this shall not bind Temps. E. 1. the issue, unless assets descend; for it is in equal mischief.

As to the second clause of the statute of Gloucester, there are two points of law to be observed:

Garr. 88.

366 a.