Co. super Lit.
383, 384.
Co. 4. 81.

Lit. Sect. 733.
Co. 5. 17, 18.

tæ. Quid.

be impleaded for the land, if they will, bring a
warrantia chartæ upon the warranty in the deed Warrantia chur-
against the warrantor or his heirs; and hereby all
the land, the heir of the warrantor hath by descent
from the ancestor that made the warranty at the
time of this writ brought, shall be bound and *P. 184.
charged with the warranty, into whose hands soever
it go afterwards; so that if the land warranted be
after recovered from the warrantee, he shall recover
so much land over again of the other land of the
heir of the warrantor, or of the warrantor himself
if he be living. [This is a very cogent reason
against the use of warranty in modern practice;
since the judgment, in a warrantia charta, would
prevent a title from being marketable; or at least
would, on the sale of the lands bound by the
warrantia chartæ, render it necessary to investigate
the title to the lands on which the warranty has
attached.] And albeit the warrantee or his heirs
do recover in this writ, yet
he may
after upon
occasion, vouch the warrantor or his heirs not-
withstanding; [for by vouching he has the advan-
tage of any defence the vouchee can make; as a
release, &c. So also he may have execution of
other lands than those bound by the warrantia
charta.] And herein observe: it is good policy if
a man suspect any thing, to bring this writ of
warrantia charta betimes; because it binds all
the land of the warrantor from the time of the
writ brought, and not any of his other lands he
had before that time and that are now aliened (7).
The words dedi & concessi, or dedi only, in a
feoffment do make a warranty, when an estate of
frank-tenement or inheritance doth pass by the
deed. But the word concessi only, or demisi &
concessi, do not make such a warranty. And by
force of the statute of Bigamis, ch. 6, dedi is
made an express warranty during the life of the
feoffor. [That statute is infinitely more intelligible,
from the language in which it was penned (Latin),
than from the English translation.]

The word warrantizo, or warrant, is the only
apt and effectual word to make an express war-

4. What words deed will make a warranty; or not.

and clauses in a

(7) Upon what warranty this writ lies, by whom it may be had, and when, and how it was to be brought, see Vin. Abr. tit. Warrantia Charta; Bro. Abr, same title; Fitz. Nat. Brev. 134, with the notes to the last edition; and Com. Dig. Pleader (3 N.)

ranty, or a warranty in deed, and therefore this
word only is used in fines. And the words de-
fendo, or acquieto, albeit they be commonly used
in deeds, yet of themselves, without the other, will
not make a warranty (8). [The word warrant is
one of the few words which cannot be expressed
by any circumlocution.]

If a man by deed doth grant to warrant land to
I. S. and his heirs, and the warrantor doth not
bind his heirs to the warranty; or doth not war-
rant to I. S. and his heirs, but to I. S. only; or
doth warrant to I. S. and his assigns, and not to
I. S. and his heirs; or doth bind himself and his
heirs to warrant the land, but doth not say how
long, nor against whom; these are good warranties,
but how they shall be taken, [and as to their obli-
gation on the heirs of the warrantor, and in favor
of the warrantee,] see afterwards (9).

A warranty in deed may be annexed to estates Co. super Lit. of inheritance or freehold; and that not only of 366. 389. corporal things which pass by livery, as houses, lands, and the like; but also of incorpor[e]al things which lie in grant, as advowsons, rents, commons, estovers, and the like, which issue out of lands or tenements; and that not only to inheritances in esse, but also to such as are newly created; as a man (some say) may grant a rent, &c. de novo out of land for life, in tail, or in fee, with warranty. So a warranty in law may extend to a rent newly created; and therefore if such a rent be granted in exchange for an acre of land, this exchange and warranty thereunto annexed is [read, are] good. But a [formal and proper] warranty may not be annexed to an estate, or lease, for years, albeit it be a lease of 1,000 years, nor to any other chattel; and therefore in all actions, the which lessee for

(8) See Mad. Form. Angl. 77, in p. 43; and for the forms of warranties, the references in the index of that book, under the word Warranty.

(9) See accordingly, 1 Wood, 335; and further what words, or clauses, make a war ranty, Com. Dig. Garranty (A.) Bac. Abr. Warranty (C.) Warranties, (says the learned author of the Commentaries, in 2 vol. 304,) have, in modern practice, been totally super seded by covenants; because, if the covenantor covenants for himself and his heirs, it then a covenant real, and descends upon the heirs, who are bound to perform it, provided they have assets by descent, but not otherwise; if he covenants also for his executors and administrators, his personal assets, as well as his real, are likewise pledged for the per formance of the covenant, which makes such a covenant a better security than any warranty

Co. super Lit. 372. 385.

years may have as trespass, &c. a warranty cannot
be pleaded in bar (10), [by way of rebutter.]

A warranty may be made upon any kind of *P. 185. Lit. Sect. 738. Conveyance, as upon fines, feoffments, gifts, &c.; [In what also a warranty may be made by and upon releases assurances.] and confirmations made to the tenant of the land, albeit he that makes the release or confirmation

745.706.

Co. super Lit. 384. 386.

Co. super Lit. 384.

F. N. B. 134.

Co. 4. 80.

hath no right to the land, &c. And yet some say,
that by a release or confirmation, where there is
no estate created, or transmutation of the posses-
sion, a warranty cannot be made to the assignee.
But if A. be seised of land in fee, and B. doth
release to him, or doth confirm his estate in fee,
with warranty to him, his heirs, and assigns; in
this case all men agree this warranty to be good.
And so also it seems it is in the case last before,
and that both the party, himself, and the assignee,
may vouch, [rebut, &c. (11). But
But every warranty,
to be effectual against an adverse title, must be
annexed to a seisin which is wrongful, and arising
from discontinuance or devesting; or discontinued
by the operation of the warranty. Doe v. White-
head, 2 Burr. 704. Seymour's case, 10 Rep. 95.]
[While every express warranty must be by
deed,] a warranty in law may be good in its crea-
tion, albeit it be made without deed; for if a man
by his last will and testament devise lands to
another man for life, or in tail, rendering rent, [to
the heir, it is apprehended; for if the rent be given
by the will to another person, there will not be any
warranty in law;] to this estate there is a warranty
in law annexed (12).

The words dedi & concessi, or dedi only in a
feoffment, make a good warranty in law. But the
word concessi only, in fine or feoffment, doth not
make a warranty in law. And albeit there be an
express warranty in the deed, yet this [express
warranty] doth not take away the implied warranty
of the law. [See p. 181.] And this warranty in
law, by dedi & concessi, or by dedi only, is a general

(10) But a purchaser of goods and chattels may have satisfaction from the vendor if he sells them as his own, and the title proves deficient, though there is no express warranty for that purpose. Cro. Jac. 474. 1 Roll. Abr. 90. See fully as to warranty of goods and chattels, in Bac. Abr. tit. Actions on the case (E.); and Style's Prac. Reg. 656.

(11) See further as to what things, and in what manner, warranties may be annexed, in Bac. Abr. Warranty (B.) Vin. Abr. Voucher (B. 6.) Com. Dig. Garranty (E.)

(12) Warranties in law are so called, because in judgment of law they amount to a warranty, without the verb warrantizo. Co. Lit. 384 a.

Partition. Exchange.

*P. 186.

7. What shall be said a good warranty in deed; or

warranty, [viz. against eviction by all persons,]
during the life of the feoffor.

102.384.

Every partition and exchange implieth in it, and Co. super Lit. hath annexed to it, a special warranty in law (13): how it shall bar, and be extended, see in Exchange.

Every tenure by homage ancestrel, i. e. where a Co. 4. 80. tenant and his ancestors have held land of a lord and his ancestors, time out of mind by homage, hath a warranty in law annexed to it, by which the lord is bound to warrant it to the tenant and his heirs [in respect of the services.]

If one make a gift in tail, or lease for life of Co. super Lit. land, by deed, or without deed, reserving a rent;

or of a rent-service by deed; in these cases there
is annexed an implied warranty against the donor
or lessor, his heirs and assigns.

384.

When dower is assigned to a woman, there is a Co. super Lit. warranty in law included; which is, that the tenant 384. in dower, being impleaded, shall vouch and recover in value a third part [read, an equivalent out] of the two parts whereof she is dowable.

384.

And this warranty in law is of the nature of a Co. super Lit. lineal warranty, and shall bind as a lineal warranty only, for it doth never bar any collateral title. And hence it is, that this warranty and assets in some cases is [read, are] a good bar; as if tenant in tail exchange for other lands which are descended to the issue, and he hath accepted of them; or if not, that other lands are descended to him. But if tenant in tail of lands make a gift in tail, or lease for life, rendering rent, and die; in this case this [warranty] is [in itself] no bar. And yet if other assets in fee simple descend, this warranty in law and assets is [read, are] a good bar (14). [Also if the issue in tail accept the rent, they are bound by the grant during their time, and it is apprehended the warranty in law attaches.]

To every good warranty in deed, that must bar Co. super Lit. and bind, these things are requisite: 1. That the 367. not; and how it person that doth warrant be a person able for if an infant make a feoffment in fee of land, [in person], and thereby doth bind him and his heirs to warrant the land; in this case, albeit the feoff

shall bar & bind. Infant.

(13) See accordingly 2 Roll. Abr. 739.

(14) See more amply in what cases the law will create a warranty, Vin. Abr. Voucher (A. 2.) Bac. Abr.Warranty (E.)

Lit. Sect. 703. Co. super Lit. 386.

ment be only voidable, yet the warranty is void. 2. That the warranty be made by deed, [and every deed must be] in writing, [sealed and delivered:] for if a man make a feoffment by word, [or now by mere writing without deed,] and by word [or mere writing] bind him and his heirs to warrant the land; this is not a good warranty. So if a man give lands to another by his last will, and thereby bind him and his heirs to warrant it; this warranty, albeit the will be in writing, [sealed and delivered, or pubCo. 10. 96. & lished,] is void (15). 3. That there be some estate to which the warranty is annexed, that may support

super Lit. 384.

Co. super Lit. 378.

26 H. 8. 9.

it for if one covenant to warrant land to another and make him no estate, or make him an estate that is not good, [viz. that is avoided or determined,] and covenant to warrant the thing granted; in these cases the warranty is void, [or, if not void, ceases with the estate.] 4. 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 [read, an estate] for life at the least: for if one make a lease for years of land, and bind 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. Co. super Lit.12. 5. That the warranty descend 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 (where by custom the youngest son is to inherit) discontinue the tail, and have issue two sons, and the uncle release to the discontinuee with warranty, and dieth; this is no good warranty to bind the younger son, [because he is not the heir at the common law, infra, p. 200.](16). So if in this case tenant in tail discontinue the tail with warranty, &c. having two sons, and die seised of other lands in the same borough in fee simple, to the value of the lands in tail; the younger son is not barred by this warranty; [and yet the lands descended to him are assets, and he is liable to an action of covenant, and even to be

Lit. fol. 161.

Sect. 735

(15) Because a will in writing is no deed, and therefore an express warranty cannot be created by will; but a warranty in law may be created by will, and may bind the heir, though it never bound the ancestor. Co. Lit. 386 a.

(16) Because a warranty cannot go according to the nature of the tenements by the custom, &c. but only according to the form of the common law. Lit. sect. 735. [Robins. Gavelk. 124. This derivation applies to the right to the benefit of the warranty. Sed query if law!!]