Stat. 11 H. 7.
chap. 20.
Lit. Sect. 727.
Co. super Lit.
365.

Co. 3. 58.

Co. super Lit.
366.381.
Stat. Glouc.
ch. 6.

Lit. Sect. 332.

doth so alien, &c. be tenant for life of the inherit-
ance, or purchase of her deceased husband, or
given unto her by any of the ancestors of her hus-
band, or by any other person seised to the use of
her husband, or of any of his ancestors; in this
case her alienation, release, or confirmation with
warranty, shall not bind the heir, whether he have
assets or not; [nor shall it create a discontinuance.
These conclusions flow from the enactment of the
statute of 11 Hen. 7, c. 20.] But if a man con-
vey lands to the use of himself, B. his wife, and
the heirs of his body, and they have issue C. and
the father dieth, and C. disseiseth his mother, or
getteth a feoffment from a disseisor, and then suf-
fereth a recovery with a single voucher, and after
the mother doth release to the recoveror with war-
ranty; in this case the warranty is a bar to the
issue, and not void by the statute of 11 H. 7.
[Because this is, as it were, an alienation with the
consent of the issue expressed by the recovery.
In this case, a recovery with double voucher, or
rather a recovery in which the tenant in tail had
been vouched and vouched over, would have barred
the intail. When it is said, a recovery with double
voucher bars all estates tail of which the party was
ever seised, the expression must be understood of
recoveries in which the tenant in tail is vouched,
and vouches over. If the father be tenant in tail,
and make a bargain and sale in fee, and then a
writ of entry is brought against the father, who
vouches the son and heir apparent, who vouches
over, this is a recovery with double voucher, and
yet it does not bar the estate tail, because, though
tenant in tail was named tenant to the writ of
entry, he was not at the time seised by force of the
intail.]

If the huband, that is seised of lands in the right of his wife, levy a fine, or maketh a feoffment in fee with warranty, and the wife dieth, and then the husband dieth; this warranty, [though a collateral warranty,] shall not, [by reason of the enactment of the statute of Gloucester,] bind the heir of the wife, without assets of other lands in fee simple from the father [to the value,] albeit he be not tenant by the curtesy, but it is before her death that he doth make the estate and the warranty. But a fine, [with proclamations,] levied by the hus

*P. 190.

Fine.

band and wife, in this case, is a good bar to the
heir. [But in the case of a feoffment, &c. by the
husband, seised in fee in right of his wife, it is appre-
hended the fee passes, subject to be defeated by
the entry of the wife or her heirs, though this feoff-
ment does not, as formerly, create a discontinuance.
2 Prest. Abstr. p. 49. 304.]

a

*If tenant in tail, that is in of another estate,
i. e. either by disseisin, or by the feoffment of
disseisor, doth suffer a common recovery, and a
collateral ancestor of the tenant in tail doth release
with warranty to the recoveror, and after the reco-
veror doth make a feoffment to uses executed by
the statute of 27 H. 8. and after the collateral
ancestor dieth; in this case, albeit the estate of
the land be transferred in the post, [viz. the line
of title be disturbed, at least in fiction of law,]
before the descent of the warranty, yet it [the war-
ranty] shall bind; [by reason of the statute of Uses,
which treats the recovery and uses as parts of the
same assurance, and as a conveyance.] So if he
to whom the warranty is made suffer a common
recovery, and after the ancestor dieth. But if
tenant in dower enfeoff a villain with warranty, and
the lord of the villain enter into the land before the
descent of the warranty, and after the woman
dieth; this warranty shall not bind the right of the
heir. [For the lord, claiming in right of his villain,
is in the post, and though he may rebut, he cannot
vouch, by reason of the warranty.] So if a colla-
teral warranty be made to a bastard and his heirs,
and living the ancestor, the bastard dieth without
issue, and the lord by escheat doth enter, and after
the ancestor dieth; this warranty shall not bind.
[Because the lord by escheat is in the post in right
of his seigniory, and by way of reverter, and not seised
of the estate to which the warranty was annexed.]

Co. 3. 62.

22 Ass. pl. 37. 29 Ass. pl. 34.

388.

A collateral warranty may descend upon an issue Lit. Sect. 7 H. in tail before the right descend, and yet be good, Co. super Lit. with this difference, that the right be in esse in some of the ancestors of the heir at the time of the descent of the warranty; as if tenant in tail discontinue the tail in fee, and the discontinuee is disseised, and the brother of the tenant in tail releaseth all his right, &c. to the disseisor with warranty, and dieth without issue, and the tenant in tail hath issue and dieth; in this case the issue

Lit. Sect. 703.

711.

Co. super Lit. 371.

Lit. Sect. 707.

is barred, [if they be the heirs of the warrantor.]
But otherwise it is where the right is not in esse in
the heir, or any of his ancestors, at the time of the
fall of the warranty; as if lord and tenant be, and
the tenant make a feoffment in fee with warranty,
and after the feoffee [read, feoffor] doth purchase
the seigniory, and after the tenant doth cease; in
this case the lord shall have a cessavit; for a
warranty doth never bar any right that doth com-
mence after the warranty (18). [The seigniory
would have been extinct if the feoffee had purchased
the same.]

ranty; and how

such a warranty

shall bar.

If the case be so, that if no such warranty had 8. What shall be been made by the father or other ancestor, the said a lineal war right of the lands or tenements so warranted, had or might have descended or come from the same ancestor, and that from and by him that made the same warranty: such a warranty is a lineal warranty (19). [1 Prest. Abstr. p. 410.] As if a man be seised in fee of land, and make a feoffment of it to another, and bind him and his heirs to warrant the land, and hath issue and die, and the warranty doth descend upon the issue; this is a lineal warranty; for that, if none such [warranty] had been, the right of the land had descended to him as heir to his father, and he must have made his descent by him. And if there be grandfather, father and son, and the grandfather be disseised, and the father release to the disseisor, being in possession with warranty, &c. and dieth, and after the grandfather dieth; this is a lineal warranty to the son; and albeit in this case the warranty descend *before the right, yet it [the warranty] is a good *P. 191. bar. And if there be two brothers, and the father is disseised, and the eldest brother doth release with warranty, and die without issue, and after the

father dieth, and the warranty doth descend to the

(18) See accordingly in 1 Wood, 335 to 338; and further, what shall be said a good warranty in deed, and who shall be bound by it, in Com. Dig. Garranty (B.) Vin. Abr. Voucher (B. 2.) Bac. Abr. Warranty (D.)

(19) Lineal warranty was where the heir derived, or might by possibility have derived, his title to the land, warranted either from or through the ancestor who made the warranty; as, where a father, or an elder son in the life of the father, released to the disseisor of either themselves or the grandfather with warranty, this was lineal to the younger son. 2 Bl. Com. 301. Warranty lineal is where a man, seised in fee or in tail, makes a feoffment to another, and binds him and his heirs to warranty, and hath issue a son, and dieth, and the warranty descends to the son. Curson's Law of Estates Tail, 269.

New terms of

younger son; this is a lineal warranty to him.
And if lands be given to A. for life, the remainder Co. 1. 66, 67.
to his right heirs, [thus vesting the fee in A.] and
he doth make a feoffment with warranty, and die;
this is but a lineal warranty. And if two par-
ceners be, and the eldest enter into all the land to
her own use, and then doth make a feoffment with
warranty, and dieth without issue; this as to her
own part is a lineal warranty, but as to her sister's
part is a collateral warranty. And in every case Co. 8. 52.
where one doth demand an estate tail, if any an- the law, tit.
cestor of the issue in tail, whether he had posses- Warranty.
sion of the land or not, hath made a warranty, and
if the issue, that were to bring a writ of formedon,
may or might have, by possibility of some matter
that might have been done, conveyed to himself a
title by force of the gift by him that made the war-
ranty; this is a lineal warranty. [The warranty is
said to be lineal or collateral in respect of the per-
son on whom it descends. It is a lineal warranty
if it descend on a person next in the regular line of
succession to the estate; and a collateral warranty,
if the right comes in one line, and the warranty in
another line, or collaterally. So that a warranty,
which is lineal as to an eldest son, may be colla-
teral to the second son and his heirs, if it descend
on him in the life of the eldest son, or of any of his
descendants. 1 Prest. Abstr. p. 417.] As if a
man be seised of land of an estate tail to him and
the heirs of his body begotten, and make a feoff-
ment of it, and bind him and his heirs to warrant
it, and hath issue and dieth; this warranty, de-
scending upon the issue, is a lineal warranty (20).
And if lands be given to one and the heirs males Lit. Sect. 719.
of his body, and for want of such issue to the heirs
females of his body, and the donee doth make a
feoffment with warranty, and hath issue a son and
a daughter, and dieth; this warranty is lineal to
the son, and if the son die without issue male, it
is a lineal warranty from the father to the daughter.
[In the meantime the warranty is, as against the
daughter, a collateral warranty.] But [read, and
so] if the brother in his lifetime release to the dis-

(20) Lineal warranty is that which is made by tenant in tail; collateral, that which is made by a stranger to the intail. See further in Sull. sect. 165. [This proposition is no sufficiently definite.]

375.

continuee, &c. with warranty, &c. and after dieth without issue; this is a collateral warranty to the Lit. Sect. 714. daughter. If lands be given to the husband and wife, and the heirs of their two bodies engendered, and they have issue, and the husband discontinue, and die; and after the wife doth release with warranty, and die; this is a lineal warranty [to her Co. super Lit. heirs, being her descendants, &c.] And if lands be given to a man and a woman unmarried, and the heirs of their two bodies, and they intermarry, and are disseised, and the husband doth release with warranty, and dieth, and after the wife dieth; this is a lineal warranty to the issue for all the land; [for as to the estate tail, the husband and wife were joint-tenants, and not tenants by moieLit. Sect. 718. ties.] And if tenant in tail have issue three sons and discontinue, and the middle brother doth release with warranty, and die without issue, and after the father dieth, and after the elder brother dieth without issue, so that the warranty doth descend to the younger brother; this is [become] a lineal warranty to him. [But if the elder brother, or any of his issue, had been living, the warranty would, as to the younger brother, have been collateral.] And if a father give land to his eldest son and the heirs males of his body, &c. the remainder to the second son, &c. if the eldest son alien in fee with warranty, &c. and hath issue female, and dieth without issue male; this is a lineal warranty* to the second son. [It is apprehended *P. 192 not; besides, as the daughter is living, the warranty doth not descend on the second son. All Littleton has said is, that this is not a collateral warranty to the second son, but not denying that if the elder son had died without issue male or female, the warranty would have been collateral to the second son.] And in all these cases of a lineal warranty, if the right of the estate to be barred be the right of an estate in fee simple, it is a bar [with or] without any assets; for the rule is, that as to him that demandeth fee simple by any of his an cestors, he shall be barred and bound by a lineal warranty that doth descend upon him, unless he be restrained [read, exempted] by some statute. But it [a lineal warranty] doth not bind the right of an estate in fee tail without assets; for in that case the rule is, that as to him that demandeth fee

Lit. Sect. 711,

712.

Doct. & Stud.
152, 153.
Co. 8. 52.