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rafures; but writing on paper or parchment unites in itself, more perfectly than any other way, both thofe defirable qualities: for there is nothing else fo durable, and at the fame time fo little liable to alteration; nothing fo fecure from alteration, that is at the fame time fo durable. It must also have the regular ftamps, impofed on it by the feveral ftatutes for the increase of the public revenue; elfe it cannot be given in evidence. Formerly many conveyances were made by parol, or word of mouth only, without writing; but this giving a handle to a variety of frauds, the statute 29 Car. II. c. 3. enacts, that no leafe eftate or intereft in lands, tenements, or hereditaments, made by livery of feifin, or by parol only (except leafes, not exceeding three years from the making, and whereon the reserved rent is at least two-thirds of the real value) fhall be looked upon as of greater force than a leafe or eftate at will; nor fhall any alignment, grant, or furrender of any intereft in any freehold hereditaments be valid; unless in both cafes the fame be put in writing, and figned by the party granting, or his agent lawfully authorized in writing.

FOURTHLY; the matter written must be legally and orderly fet forth: that is, there must be words fufficient to fpecify the agreement and bind the parties: which fuffici298ency must be left to the courts of law to determine". For

it is not abfolutely neceffary in law, to have all the formal parts that are ufually drawn out in deeds, fo as there be fufficient words to declare clearly and legally the party's meaning. But, as thefe formal and orderly parts are calculated to convey that meaning in the cleareft, diftincteft, and most effectual manner, and have been well confidered and fettled by the wifdom of fucceffive ages, it is prudent not to depart from them without good reafon or urgent neceflity; and therefore I will here mention them in their ufual order.

1. THE premifes may be used to fet forth the number and names of the parties, with their additions or titles. They alfo contain the recital, if any, of fuch deeds, agreements,

A Co. Litt. 225.

Ibid. 6.

or

or matters of fact, as are neceflary to explain the reasons upon which the present tranfaction is founded: and herein also is fet down the confideration upon which the deed is made. And then follows the certainty of the grantor, grantee, and thing granted P.

The

2, 3. NEXT come the habendum and tenendum 9. office of the habendum is properly to determine what estate or interest is granted by the deed: though this may be performed, and fometimes is performed, in the premises. In which cafe the habendum may leffen, enlarge, explain, or qualify, but not totally contradict or be repugnant to, the eftate granted in the premises. As if a grant be "to A and "the heirs of his body," in the premises, habendum "to him "and his heirs for ever," or vice verfa; here A has an éstatetail, and a fee-fimple expectant thereon'. But, had it been in the premifes "to him and his heirs," habendum "to him "for life," the habendum would be utterly void; for an eftate of inheritance is vefted in him before the habendum comes, and fhall not afterwards be taken away, or devested, by it. The tenendum" and to hold," is now of very little ufe, and is only kept in by cuftom. It was fometimes for- [ 299 ] merly used to fignify the tenure, by which the eftate granted was to be holden; viz. " tenendum per fervitium militare, in "burgagio, in libero focagio, &c." But, all thefe being now reduced to free and common focage, the tenure is never specified. Before the ftatute of quia emptores, 18 Edw. I. it was alfo fometimes ufed to denote the lord of whom the land fhould be holden but that ftatute directing all future purchafors to hold, not of the immediate grantor, but of the chief lord of the fee, this ufe of the tenendum hath been alfo antiquated; though for a long time after we find it mentioned in ancient charters, that the tenements fhall be holden de capitalibus dominis feadi; but as this expreffed nothing more than the ftatute had already provided for, it gradually grew out of ufe.

P See appendix, No II. § 2. pag. v.
Ibid.

Co. Litt. 21. 2 Roll Rep. 19. 23.
Cro. Jac. 476.

$ 2 Rep. 23. & Rep. 56.
t Append. N° I.

pallim.

Madox. Formul

4. NEXT

BOOK II. 4. NEXT follow the terms of ftipulation, if any, upon which the grant is made: the first of which is the reddendum or refervation, whereby the grantor doth create or reserve fome new thing to himself out of what he had befor e granted As rendering therefore yearly the fum of ten fhillings, or "a pepper corn, or two days ploughing, or the like"." Under the pure feodal fyftem, this render, reditus, return, or rent, consisted in chivalry principally of military services; in villenage, of the most flavish offices; and in focage, it ufually confifts of money, though it may ftill confift of fervices, or of any other certain profit". To make a reddendum good, if it be of any thing newly created by the deed, the refervation must be to the grantors, or fome, or one of them, and not to any stranger to the deed. But if it be of ancient fervices or the like, annexed to the land, then the refervation may be to the lord of the fee'.

5. ANOTHER of the terms upon which a grant may be made is a condition; which is a claufe of contingency, on the [300] happening of which the estate granted may be defeated; as "provided always, that if the mortgagor fhall pay the mortgagee 500. upon fuch a day, the whole eftate granted fhall determine;" and the like 2.

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6. NEXT may follow the claufe of warranty; whereby the grantor doth, for himself and his heirs, warrant and secure to the grantee the eftate fo granted. By the feodal conftitution, if the vafal's title to enjoy the feud was difputed, he might vouch, or call the lord or donor, to warrant or infare his gift; which if he failed to do, and the vafał was evicted, the lord was bound to give him another feud of equal value in recompenfe. And fo, by our antient law, if before the ftatute of quia emptores a man enfeoffed another in fee, by the feodal verb dedi, to hold of himself and his heirs by certain fervices; the law annexed a warranty to this

" Append. No. II. § 1. pag. iii.
w See pag. 41.

Plowd. 13. 8 Rep. 71.
y Append. No. 1. pag. i.

z Append. No. II. § 2. pag. viii, a Ibid. No. 1. pag. i.

Feud. 1. 2. t. 8, & 25.

grant,

grant, which bound the feoffor and his heirs, to whom the fervices (which were the confideration and equivalent for the gift) were originally ftipulated to be rendered. Or if a man and his ancestors had immemorially holden land of another and his ancestors by the fervice of homage (which was called homage aunceftrel) this alfo bound the lord to warranty"; the homage being an evidence of fuch a feodal grant. And, upon a similar principle, in cafe, after a partition or exchange of lands of inheritance, either party or his heirs be evicted of his fhare, the other and his heirs are bound to warranty, because they enjoy the equivalent. And fo, even at this day, upon a gift in tail or lease for life, rendering rent, the donor or leffor and his heirs (to whom the rent is payable) are bound to warrant the title. But in a feoffment in fee by the verb dedi, fince the ftatute of quia emptores, the feoffor only is bound to the implied warranty, and not his heirs; because it is a mere perfonal contract on the part of the feoffor, the tenure (and of courfe the antient services) refulting back to the fuperior lord of the fee. And in other forms of alienation, gradually introduced fince that ftatute, no warranty whatfoever is implied; they bearing no fort of [301] analogy to the original feodal donation. And therefore in fuch cafes it became necessary to add an express clause of warranty to bind the grantor and his heirs; which is a kind of covenant real, and can only be created by the verb wanrantize or warranti.

THESE express warranties were introduced, even prior to the ftatute of quia emptores, in order to evade the strictness of the feodal doctrine of non-alienation without the confent of the heir. For, though he, at the death of his ancestor, might have entered on any tenements that were aliened without his concurrence, yet, if a clause of warranty was added to the ancestor's grant, this covenant defcending upon the heir in

c Co. Litt. 384.

d Lite. § 143.

e Co. Litt. 174.

f Ilid. 384.

Ibid.

A Co. Litt. 102.

Litt. $733.

fured

fured the grantee; not fo much by confirming his title, as by obliging fuch heir to yield him a recompenfe in lands of equal value: the law, in favour of alienations, fuppofing that no ancestor would wantonly difinherit his next of blood*; and therefore prefuming that he had received a valuable confideration, either in land, or in money which had purchased land, and that this equivalent defcended to the heir together with the ancestor's warranty. So that when either an ancestor, being the rightful tenant of the freehold, conveyed the land to a stranger and his heirs, or releafed the right in fee-fimple to one who was already in poffeffion, and fuperadded a warranty to his deed, it was held that fuch warranty not only bound the warrantor himself to protect and affure the title of the warrantee, but it alfo bound his heir: and this, whether that warranty was lineal, or collateral to the title of the land. Lineal warranty was, where the heir derived, or might by poffibility 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 fon in the life of the father, released to the diffeifor of either themfelves or the grandfather, with warranty, this was lineal to the younger fon'. Collateral warranty was where the heir's title to the land neither was, nor [302] could have been, derived from the warranting ancestor; as where a younger brother released to his father's diffeifor, with warranty, this was collateral to the elder brother". But where the very conveyance to which the warranty was annexed, immediately followed a diffeifin, or operated itself as such, (as, where a father tenant for years, with remainder to his fon in fee, aliened in fee-fimple with warranty) this, being in it's original manifeftly founded on the tort or wrong of the war-rantor himself, was called a warranty commencing by diffeifin; and, being too palpably injurious to be fupported, was not binding upon any heir of fuch tortious warrantor ".

IN both lineal and collateral warranty, the obligation of the heir (in cafe the warrantee was evicted, to yield him other

k Co. Litt. 373.

Litt. § 703.706, 70%.

m Litt. 705. 707.
Ibid. § 698. 702.

lands

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