*P. 198.

warranty; and

rent might be revived.] And if a woman have a
rent-charge in fee, and she doth intermarry with
the tenant of the land, and a stranger doth release
to the tenant of the land with warranty; this
warranty shall not extend to bar any action to be
brought after the death of the wife for the rent.
But if in this case the tenant make a feoffment
in fee with warranty and dieth, the feoffee in a cui
in vita brought by the wife, shall vouch as of lands
discharged at the time of the warranty made. So
if tenant in tail of a rent-charge purchase the
land and make a feoffment with warranty, and the
issue bring a formedon of the rent, the tenant shall
not vouch, &c. (27).

365.5.17.

12. Who may take All those that are parties to the warranty, i. e. Co. super Lit. advantage of a such as are named in the deed regularly, shall take how and against advantage of the warranty: as if one doth warwhom it may be rant land to another, his heirs, and assigns; in

taken.

Assigns.

this case both the heirs and the assigns may take
advantage of it, and they both may vouch or
rebut, or have a warrantia charta, so as they
come in in privity of estate, for otherwise the
heirs or assigns cannot vouch or have a warrantia
charta; and yet they may rebut, notwithstanding,
in divers cases. But those that are not named,
for the most part, shall not take advantage of the
warranty and therefore if land be warranted to
I. S. and not to him and his heirs, or to him and
his assigns, or to him, his heirs, and assigns; in
these cases neither the heir nor the assignee may
vouch or have a warrantia charta; and yet in some
cases where it is so, [i. e. the warranty is in such
form,] the assignee or tenant of the land may rebut.
The warranty annexed to an exchange, a parti- Co. super Lit.
tion, by dedi, and by homage ancestrel, doth always
go in privity; and therefore an assignee in these
cases can take no advantage of it. [This point
as to exchanges is very important to titles, and
will in many cases supersede the necessity on the
part of a vendor, of doing more than showing
that the privity is determined, instead of showing
the title to the lands given as well as to the lands
received in exchange. See Prest. Abstr. p. 87. 161.
301. and qualify the propositions.] And yet in the

384.

(27) See further as to the operation of warranties, what rights and titles are barred by them, and how they shall be expounded and taken, in Vin. Abr. Voucher (B. 7.) Bac. Abr. Warranty (P.) Com. Dig. Garranty (F.)

Co. 5. 17.

385.

cases of exchange and dedi an assignee may rebut.
But the assignee of a lessee for life may take advan-
tage of the warranty in law annexed to his estate.

If one grant to warrant land to another, his super Lit. 384, heirs and assigns; in this case the heirs or assigns, heir of the assignee, or assignee of the heirs of the feoffee, or assignees of assignees in infinitum, shall take advantage of the warranty. And therefore if one enfeoff I. S. to have and to hold to him, his heirs and assigns, and warrant the land to him, his heirs and assigns, and A. doth enfeoff B. and his heirs, and B. dieth; in this case the heir of B. shall vouch as assignee to A. And if one enfeoff A. and B. habendum to them and their heirs, and warrant the land to them, their heirs and assigns, and A. die, and B. doth survive and die, and his heir enfeoff C.; in this case C. shall take advantage of this warranty as assignee. If one enfeoff A. with warranty to him, his heirs and assigns, and A. doth enfeoff B. and B. doth re-enfeoff A.; in, this case neither A. nor his assigns shall ever take any advantage of this warranty; [for the warranty is at home and extinguished.] And yet if B. enfeoff the heir of A. he may take advantage of the warranty.

If one make a feoffment by deed with warranty to the feoffee, his heirs and assigns, and the feoffee doth make a feoffment over to another by word without deed; in this case the second feoffee shall * have all the advantage of this warranty, for an *P. 199. assignee by word shall have the same advantage that an assignee by deed shall have; [because the warranty is annexed to the estate, and passes with the same; and may pass without deed, though it could not be created without deed.]

If a feoffment be made with warranty to a man and his heirs and assigns, and he make a gift in tail, the remainder in fee, and the donee make a feoffment in fee, [being a discontinuance and change of the seisin ;] this feoffee shall not youch as assignee, [because his title is founded on a discontinuance, which puts an end to the privity of title;] but he must vouch his donor upon the warranty in law; and yet he may rebut.

If lands be given to two brethren in fee simple, with warranty to the eldest and his heirs, and the eldest dies without issue; in this case, albeit the

other brother be his heir, yet he shall have no advantage at all by the warranty, because he comes in above the warranty; [by survivorship, and not as heir.] But generally all that claim under the warranty shall take advantage thereof by way of rebutter, albeit they can take no other advantage by it.

If one make a feoffment to two, their heirs and assigns, and one of them doth make a feoffment in fee, this feoffee in this case shall not take advantage as assignee; [because there is a subdivision of the tenancy, and the duty would be multiplied if each tenant could vouch under the warranty; but it is apprehended each tenant may rebut. And And yet if one of two feoffees release the warranty, (see infra, p. 202,) the release will not bind his companion.]

An assignce of part of the land shall take ad- Co. super Lit. vantage of a warranty; as if a man make a feoff- 385. ment of two acres with warranty to him, his heirs and assigns, and the feoffee doth make a feoffment of one acre of it to another; in this case the second feoffee shall take advantage of the warranty as assignee. And therefore herein there is a difference between the whole estate in part, and part of the estate in the whole or in any part: for if a man have a warranty to him, his heirs and assigns, and he make a lease for life, or gift in tail; in these cases the lessee or donee shall not take advantage of the warranty as assignee; but they [such persons] may vouch the lessor, or donor, upon the warranty in law; [or they may vouch the reversioner on the aid prayer, and he may vouch by force of the warranty.] But if a lease for life Co. super Lit. be made, the remainder in fee; such a lessee may vouch as assignee upon the first warranty. [Because the immediate privity is between the tenant for life and the warrantor; while in the case of a lease for life, the reversion remains in the lessor, and the immediate privity is between him and the warrantor.] If the father have a feoffment made to him and his heirs with warranty, and he make a feoffment to his son and heir with warranty; in this case the son may take advantage of the first warranty after his father's death, [as heir; though he cannot, during his life, take advantage of the warranty, except as assignee, and by rebutter.] If a man enfeoff a Co. super Li woman with warranty, and they intermarry and 390. are impleaded, and upon the default of the hus

384.

26 H. 8. 3.

22 Ass pl. 37. Co. 3. 62, 63.

29 Ass. 34.

Co. super Lit. 376.

1 Ed. 3. 13.

3 H. 7. 2.

band the wife is received; in this case she may
vouch her husband. Et sic e converso.
If a
woman enfeoff a man with warranty, and they in-
termarry and are impleaded; the husband in this
case shall vouch himself and the wife. [And yet in
covenant, under the like circumstances, no action
would lie on the covenant during coverture.]

He that comes into the land merely by act of law in the post, as the lord by escheat, or the like, shall never take advantage of a warranty; and therefore if tenant in dower enfeoff a villain with warranty, and the lord of the villain enter; or a feoffment be to a bastard with warranty, and he die without issue, and the lord enter by escheat; in these cases the lord shall never take advantage of these warranties; [because, in point of donation, the estate to which the warranty was annexed is determined.] But otherwise it is where a man *P. 200. comes to the land by limitation of use, or a common recovery, which is by the act of the party, [as a common assurance:] for if tenant in tail, being in of another estate, i. e. by disseisin, or feoffment of a disseisor, suffer a common recovery, and a collateral ancestor of the tenant in tail doth release with warranty to the recoveror, and after the recoveror doth make a feoffment to uses which are executed by the statute of 27 H. 8; and after the collateral ancestor dieth; in this case the terretenants may take advantage of the warranty by way of rebutter, albeit the estate be transferred in the post. So if he to whom the warranty is made suffer a common recovery, and after the ancestor dieth; the recoveror may take advantage of this warranty by way of rebutter: for any man that hath the possession of land, albeit he have no deed to show how he came by the possession of it, or how he is assignee, may rebut the demandant, and so bar him, and defend his own possession; and therefore the tenant by the courtesy, donee in tail that is in of another estate, [as by discontinuance,] an assignee by force of a warranty made to a man and his heirs, or feoffee of a donee in tail, may rebut and bar the demandant by the warranty.

If one enfeoff another of an acre of ground with warranty, and hath issue two sons, and dieth seised of another acre of land of the nature of borough English; in this case, albeit the warranty descend

*P. 201.

upon the eldest son only, yet both the sons may
be vouched. And so also it is of heirs in gavel-
kind; the eldest shall be vouched as heir to the
warranty, and the rest in respect of the inherit-
ance (28.) And in like sort the heir at the com-
mon law, and the heir of the part of the mother
shall be vouched; or the heir at the common law
may be vouched alone, at the election of the
tenant. And in like sort the heir at the common
law shall be vouched with the heir in borough Eng-
lish. And so also a bastard [eigne] shall be vouched
with a mulier (29.) And if a man die seised of
certain lands in fee, having issue a son and a
daughter by one venter, and a son by another, and
the eldest son entereth and dieth, and the land
doth descend to the sister; in this case the war-
ranty doth descend on the son, and he may be
vouched as heir; and the sister also may be vouched
as heir to the land. [But the benefit of the war-
ranty shall in all cases belong to the heir to the
estate. Co. Litt. 376. 2 Prest. Abstr. 218.]

If two make a feoffment with warranty, and the
one die, the survivor shall not be charged alone
with the warranty, but the heir of him that is dead
shall be charged also. And if two be bound to war-
rant land, and both of them die; the heirs of both
of them ought to be vouched, and shall be equally
charged. [But under joint covenants the survivor
or his heirs, and not the heir of the deceased, can
be sued.] And if the heir be vouched in the ward
of three several persons, the one of them only shall
not be charged, but they shall be charged equally.

Co. 3. 14.
16 H. 7. 13.
48 Ed. 3. 5-

super Lit. 386.

If a woman, an heir of the disseisor, enfeoff me Co. super Lit. with warranty, and after she is married to the dis- 365. seisee; in this case I may take advantage of this

*

(28) Concerning warranties annexed to gavelkind lands, it is said generally in several books, that every warranty which descends, descends to him that is heir by the common law. Co. Lit. 12 a, 376 a. Hob. 31. Cro. Jac. 218. But for the better understanding this rule with the proper restrictions, Mr. Robinson, in his treatise on gavelkind, p. 123, considers the authorities which treat more distinctly of this matter, under three heads; first, Whether the younger sons, heirs in gavelkind, may take advantage of a warranty annexed to their estate: 2. Whether they shall be barred or rebutted by the warranty of their ancestor: 3. Whether they may be vouched by reason of such warranty.

(29) The bastard may be vouched alone without the mulier, because the bastard is heir in appearance, and shall not disable himself. Co. Lit. 376 b. Where a man has bastard eigne & mulier puisne and the bastard enters, a man shall vouch the mulier as heir at the common law, and show how the bastard has entered into certain land of the father who made the warranty, and vouch him by the possession. Br. Abr. Voucher, pl. 119, cites 22 E. 4, 10. See further Vin. Abr. Voucher (U.)