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(t) Lamb. exposit. verb. terra ex scripto.

And lastly, antiquity did add hiis testibus in the continent of Clause of hiis testibus. the deed after the in cujus rei testimonium, written with the same hand that the deed was, which witnesses were called, the deed read, and then their names entered. (t) And this is called charter-land; and accordingly the Saxons called it bockland, as it were bookland (25); which clause of hiis testibus in subjects deeds continued until and in the reign of H. 8., but now is wholly omitted.

Vid. Fortesc. ca. 32.
See the second part of
Institutes, ca. 38.
12 E. 2. c. 2.

the

See

the Second Part of the Institutes, Marlb. cap. 6. and cap. 14.

7 a. (2 Inst. 77.)

mal parts;

And the ancient charters of the king, which passed away any franchise or revenue of any estate of inheritance, had ever this clause of hiis testibus, of the greatest men of the kingdom, as the charters of creation of nobility yet have at this day. When hiis testibus was omitted, and when teste me ipso came into the king's grants, you shall read in the Second Part of the Institutes (26), Magna Charta, cap. 38. I have Deed may be good termed the said parts of the deed formal or orderly parts, for though without the forthat they be not of the essence of a deed of feoffment; for if such a deed be without premises, habendum, tenendum, reddendum, clause of warranty, the clause of in cujus rei testimonium, the date, and the clause of hiis testibus, yet the deed is good. (u) For if a man by deed give lauds to another and to his heirs, without more saying, this is good, if he put his seal to the deed, deliver it, and make livery accordingly. (x) So it is if A. give lands to have and to hold to B. and his heirs, this is good, albeit the feoffee is not named in the (27) premises. And yet no well advised man will trust to such deeds, which the law by construction maketh

(25) See further as to bockland and folkland. Reliq. Spelm. 12. 39. and Dalrymp. Feud. Prop. 9. In this last book the very spirited writer attempts a new distinction between the two kinds of land, and to shew that bockland or thane land was feudal, and that folk or reveland was allodial.—[Hargr. n. 6. 6 a. (26).]

(26) In the Second Institute, Sir Edward Coke seems to think, that the clause of teste me ipso was first introduced into the king's grants in the time of Richard the second: but Mr. Madox dates the use of it much earlier, and gives an instance in the reign of Richard the first. See 2 Inst. 77. and Mad. Form. Anglic. Dissert. p. 32.—[Hargr. n. 2. 7 a. (32).]

(27) The cases in 3 Leon. 33, and 2 Ro. Abr. 66. pl. 13, are contra. That in Cro. Eliz. 902 and 917, also seems contra on the first reading; though, on examination, the question appears to have been rather on the manner of pleading the deed, than on the operation of it. But in Car. Rep. 123, there is a case of the 21 and 22 Eliz. in which the two chief justices and the chief baron certified to the chancellor, that a lease was good in law, though the lessee was named in the habendum only; and the case in Allen, 41, is also with Lord Coke.-[Hargr. n. 3. 7 a, (33).]

[Et vid. acc. Sheph. Touch. 75. Spyre v. Topham, 3 East. 115.]-[Ed.]

(u) Mirror, cap. 1. sect. 6. and cap. 5. 10. cap. 12. Bract.

sect. 1. Glanvil. lib.

lib. 5. fol. 396.

Fleta, lib. 6. cap. 32,
Britton, fol. 66.
or although the gruntce

be named in the haben

dum only.
(r) Vid. Tearmes of
the Law, verb. Faits.
Vid. Glanvil. lib. 10.

cap. 12. Mirr. ca. 1.
sect. 3. and cap. 3.
(2 Rol. Abr. 66. pl.
13. Cro. Eliz. 903.)

Ancient deeds having an

good, ut res magis valeat; but when form and substance concur, then is the deed fair and absolutely good.

In ancient charters of feoffment there was never mention indorsement of the deli- made of the delivery of the deed, or any livery of seisin in

very, or of livery of seisin, suspicious.

21 H. 8. cap. 16.

7 b.

dorsed; for certainly the witnesses named in the deed were witnesses of both: and witnesses, either of delivery of the deed, or of livery of seisin, by express terms was but of later times, and the reason was in respect of the notoriety of the feoffment. And I have known some ancient deeds of feoffment, having livery of seisin indorsed, suspected, and after detected of forgery. As if a deed, in the stile of the king, name him defensor fidei before 13 H. 8., or supreme head before 20 H. 8., at which time he was first acknowledged supreme head by the clergy, albeit the king used not the stile of supreme head in his charters, &c. till 22 H. 8., or king of Ireland before 33 H. 8., at which time he assumed the title of king of Ireland (28), being before that called lord of Ireland, it is certainly forged; et sic de similibus.

Very necessary it is that witnesses should be underwritten or indorsed, for the better strengthening of deeds, and their names (if they can write) written with their own hands. For

Livery of seisin inci- Livery of Seisin, see hereafter, sect. 59., and for Deeds,

dent to a feoffment.

Vid. sect. 59.

sect. 66., and of Conditional Deeds, see our author in his Chapter of Conditions.

(28) See ante, vol. 1. p. 67. n. (4).

CHAP. XXXV.

OF WARRANTY.

A WARRANTY is a covenant real annexed to lands or

tenements, whereby a man and his heirs are bound to warrant the same; and, either upon voucher, or by judgment in a writ of warrantia carta, to yield other lands and tenements (which in old books is called in excambio) to the value of those that shall be evicted by a former title, or else may be used by way of rebutter (A).

(A) Warranty was the obligation which the lord lay under, on receiving homage, to defend his tenant in the lands held of him; or, if he could not, to give him a recompence of equal value in other lands: our law went no further; but the fendal law, if the warrantor had no lands to give in exchange, obliged him to pay the value in money. Sulliv. Lect. xii. 119. Anciently, every kind of homage, when received, but not before, bound the lord to acquittal and warranty; that is, to keep the tenant free from distress, entry, or other molestation, for services due to the lords paramount, and to defend his title to the lands against all others; but in subsequent times, the implied acquittal and warranty were peculiar to that species of homage, which is called homage ancestrel. Ant. vol. 1. p. 264. n. 18. Warranties are of two kinds, viz. warranties in law, either by homage ancestrel, or by words in the deed, which the law construes to import warranty; and warranties in deed, which depend on a special coutract. These last were substituted in the place of the former. For as by every alienation, either of the lord or tenant, the mutual connexion between the two bloods was extinguished, and warranty by homage ancestrel consequently gone (ant. vol. 1. p. 377. n. 1.), the tenant would not attorn to his lord's grant when the lord aliened, nor a new tenant accept of a grant from an old tenant of his tenancy, without an express warranty, binding in the first case the new lord and his heirs; in the latter the old one and his heirs. Afterwards the making of these warranties was extended to persons between whom there was no feudal connexion; as if a man aliened lands to hold of his lord. Here the grantee held of the lord of the grantor, and not of the grantor; and therefore, as he had nothing to bind the lord to warranty, would insist on an express warranty from the grantor and his heirs. Šulliv. Lect. xii. 120, 121. Houard Anciennes loix des François, lib. 3. c. 13. Gilb. Ten. 133, 134. 154.

Express warranties are contracts which have all the import and effect of the feudal contract between the lord and tenant. For, 1st. they rebut such warrantor and his heirs from claiming any right in the land; and as in homage ancestrel the rule was homagium repellit perquisitum, so the express warranty repels the ancestor from claiming, and not only him, but the heir, though the right were not in the ancestor. And as in homage ancestrel, where the heir received homage, he could never set up a title to the land itself; so here, in the express warranty, the heir is presumed to receive a recompence, and therefore is barred if he does not claim during the life of his ancestor; and this is the more reasonable, because such recompences were anciently in lands, which did of right descend to

365 a. Definition of warranty. Bract. lib. 2. fol. 37.

Lib. 5. fol. 380, 381,

&c. Glanvil. lib. 3. cap. 1, 2, 3. Lib. 7.

cap. 2, 3. Lib. 9. cap. 4. Britton, cap. 105. fol. 249, 250, &c. & fol. 88. 106 b. 196, 197. Fleta, lib. 5. Lib. 6. cap. сар. 15.

23. Mirr. cap. 2. sect. 17. 38 E. 3. 21. 45 E. 3. 18.

[blocks in formation]

Rebouter is a French word, and is in Latin repellere, to repel or bar; that is, in the understanding of the common law,

the heir; and if the ancestor did alien them, the heir must claim his own during the life of his ancestor; otherwise he could never claim it, inasmuch as this was the whole time of limitation for the heir to challenge his own in this case. But though the warranty bars the right of entry or right of action in the heir, yet it does not bar a title of entry for a condition broken, or for mortmain, forfeiture, escheat, or the like. For the feudal contract only barred all the lord's right to the lands; but it did not bar his title of entry for condition broken, forfeitures, escheats, or the like. And the express warranty can go no farther than the warranty implied in the feudal contract, since it came in the place of it.

The second operation of warranty is by way of voucher; for as in the feudal contract the tenant vouched the feudal lord to defend his possession; so in the express warranty, the purchaser vouches his warrantor, who takes the defence of the estate upon him; and as no man conta vouch the lord but the tenant, so no man can vouch the warrantor, but he who brings hin self within the words of the contract; because there is no contract to defend the possession to any body else. But as the lord, by acceptance of homage from the disseisor, was barred from claiming the lands, so the warrantor, having received a recompence, is rebuțted from claiming the land itself.

The third operation of warranty is by writ of warrantia charta (which also can only be brought by the party to such contract); for the tenant by homage ancestrel might have had his warrantia chartæ against his lord, to subject the lands of his lord to answer the feudal contract. And when the assise was invented, in which a man could not vouch; and when also by Westm. 1. c. 40. a man could not vouch out of the degrees, unless in both cases the party was present, Booth, 278; then this writ came more into use; and upon such actions, where they could not vouch and have process ad warrantizandam, they requested a plea, and the same was done in the case of express warranty. But it is to be observed, that, in case the warrantee is impleaded, he must request a plea; and when he has so done, he may bring his warrantia charta, and recover at any time till execution actually executed. But if he be turned out of possession, then he can have no warrantia chartæ ; for the warranty in the feudal contract is to the tenant, and, in resemblance thereof, the express warranty is only to the tenant of the land. F. N. B. 135. B. n. e. Gilb. Ten. 134-139. 151–153. The manner of taking advantage of this obligation of the lords by voucher, which still remains in our law, (the other method by disuse being antiquated) was shortly thus: When the tenant in possession is impleaded for the lands by a stranger, who claims them as his inheritance, he, the tenant, appears, defends his right, and vouches, that is, calis in his lord to warrant the lands to him. If the lord appears gratis, and enters into the warranty, as he ought, if he is bound to warranty, the tenant has no more to do in the defence of the suit. It is the lord's business. Against him the stranger declares, and prosecutes the snit. He defends, and it is found againt him, either by legal trial, or default for want of appearing; and the judgment the court gives is, that the demandant or stranger shall recover the lands demanded against the tenant, and that the tenant shall recover lands of equal value from the lord, or vouchee, as he is termed, because he is vocatus, or called in to take upon himself the defence. If the lord, who is to warrant, does not appear, he is summoned till he does; or if he appears, and will not enter gratis into the warranty, the tenant is to shew how he is bound to warrant; which must be either by homage ancestrel, or by his, or his ancestor's express covenant; and until this was determined, the suit of the demandant was suspended; because as yet it was uncertain who was obliged to defend the lands. So that in a judgment of this kind, there were in fact two judgments, one against the tenant, who was to give up the lands, and another against the lord, who was to give lands equal in value. But there might be three or more judgments, as there might be two or more vouchers; as if there be, in respect to land, A. B. and C.; A. lord paramount or superior, B. mesne, that is, tenant to A. and lord to C.; and C. tenant paravail, that is, the actual possessor of the land. Here, if D., a stranger, brings his action against C. the tenant, who vonches his lord B. the mesue, who enters into warranty, and vouches A. the lord paramount, who enters into war

the action of the heir by the warranty of his ancestor; and

this is called to rebut or repel. (a) Britton saith, Garranter (a) Britt. fol. 197 b. en un sence signifie a defender son tenant en sa seisin, et en auter sence signifie que si il ne defende, que le garrant luy soit tenue a eschanges, et de faire son gree a la vaillaunce.

$80.

(b) Bracton saith, Warrantizare nihil aliud est, quàm de- (b) Bract. lib. 5. fol. fendere et acquietare tenentem qui warrantum vocavit in

15.

seisiná suâ. (c) Fleta saith, Warrantizare nihil aliud est (c) Fleta, lib. 5. cap. quàm possidentem vocantem defendere et acquietare in suâ seisina vel possessione erga petentem, &c. et tenens de re warranti excambium habebit ad valentiam.

Note, that by the civil law every man is bound to warrant the thing that he selleth or conveyeth, albeit there be no express warranty (B); but the common law bindeth him not, unless there be a warranty, either in deed or in law; caveat emptor.

for

It is to be observed, that there be two kinds of war

ranty, and fails; D. will recover the land from C., C. will recover in value from B. and B. will recover in value from A.; and so on if there be more vouchers. Sulliv. Lect. xii. 120.

As to the distinction between lineal and collateral warranty, see post, 373 b. With respect to the doctrine of warranty at the civil law, see note (B), infra.—[Ed.]

(B) Warranty in the civil law, according to Domat, is the obligation of the seller to put a stop to the eviction and other troubles which the buyer suffers in his possession of the thing purchased. 1 Domat, b. 1. t. 2. s. 10. p. 79. Eviction is defined to be the loss which the buyer suffers, either of the whole thing that is sold, or of a part of it, owing to the right which a third person has to it. The other troubles, says the above writer, are those which, without touching the property of the thing sold, diminish the right of the purchaser; as if any one pretends a right to the umfruct of lands that are sold, to a ground rent, a service, or other charges of the like nature. The buyer, from whom the thing is thus evicted, or who is troubled in his possession, or in danger of being so, has his remedy against the seller, who ought to warrant him. This warranty is of two kinds; 1st. warranty in law, so called be cause the seller is bound to it by law, although the sale makes no mention thereof; 2dly. warranty by deed, or covenant, such as the seller and buyer are pleased to regulate among themselves. If the purchaser, who is molested, suffers himself to be condemned by default, or if he does uot give notice to the seller of the action brought against him, or consents to a reference, or in any other manner prejudices the condition of his youchee, he cannot demand warranty against an eviction, for which he has no body to blame but himself. But the purchaser is only bound to give notice to the seller of the disturbance that is given him, and is not bound either to defend the action, or to appeal, if he is condemned. And whether he defends it or not, the seller will remain bound to warrant him against the event. And if the purchaser discovers that the seller has sold him that which belongs to another person, and which the seller knew to be such, he may bring his action against the seller, although he be not as yet disturbed in his possession, to oblige him to remove the danger of the eviction, and to recover the damages which he may suffer by such a sale. 1 Domat, b. 1. t. 2. s. 10. p. 78.-82.—[Ed.]

102 a.

Dicersity between the civil law, as to warranty.

common law and the

(Cro. Jam. 4. 1 Rol.

Abr. 96. F. N. B.

94.)

865 a.

The several kinds of warranty.

Lib. 4. fol. 81. Noke's case. (F.N.B. 134 b.)

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