nisi per antecessorem ad hoc fuerit obligatus, præterquàm debita regis tantùm: A fortiori in case of warranty, which is in the realty. in law. But a warranty in law may bind the heir, although it never Secus as to a warranty bound the ancestor, and may be created by a last will and testament. (h) As if a man devise lands to a man for life or (h) 18 E. 3. 8. in tail reserving a rent, the devisee for life or in tail shall take advantage of this warranty in law, albeit the ancestor was not bounden, and shall bind his heirs also to warranty, although they be not named. Also, an express warranty cannot be created without deed, and a will in writing is no deed, and therefore an express warranty cannot be created by will. 370 a. The heir must claim And it is also to be observed, that in all the cases that Littleton hath put, or shall put, the lineal or collateral in the same right. warranty doth bind the heir; and therefore the successor claiming in another right shall not be bound by the warranty of any natural ancestor. For which cause, (i) in a juris (i) 27 H. 6. Garr. 48. utrum brought by a parson of a church, the collateral warranty of his ancestor is no bar, for that he demandeth the land in the right of his church in his politic capacity, and the warranty descendeth on him in his natural capacity. *370 b. (k) But some have holden, that if a parson bring an assise, (k) 34 E. 3. Garr. 71. that a collateral warranty of his ancestor shall bind him; and their reason is, for *that the assise is brought of his possession and seisin, and he shall recover the mean profits to his own use: but seeing he is seised of the freehold, whereof the assise is brought, in jure ecclesiæ, which is in another right than the warranty, it seemeth that it should not be any bar in the assise. The like law is of a bishop, archdeacon, dean, master of an hospital, and the like, of their sole possessions, and of the prebend, vicar, and the like. assets descending on the of a warranty with king. (*) 45 Ass. 6. 6 E. 3. (*) King H. 3. gave a manor to Edmund earl of Cornwall, Diversity in the case and to the heirs of his body, saving the possibility of reverter, and died: the earl, before the statute of W. 2. cap. 1. de donis conditionalibus, by deed gave the said manor to another in fee with warranty in exchange for another manor, and after the said statute in the twenty-eighth year of E. 1. dieth without issue, leaving assets in fee-simple; which warranty and assets descended upon king E. 1. as cousin german 56 a. b. Pl. Com. 234. &553, 554.(8 Rep. 1. Ant. 19 b.) and heir of the said earl, viz. son and heir of king Henry 3., brother of Richard earl of Cornwall, father of the said earl Edmund. And it was adjudged, that the king, as heir to the Vid. 27 H. 6. Garr. 48. said earl Edmund, was by the said warranty and assets barred of the possibility of reverter, which he had expectant upon 34 E. 3. Garr. 71. Vid. Sect. 711,712. (Hob. 339. 9 Rep. the said gift, albeit the warranty and assets descended upon the natural body of king E. 1., as heir to a subject; and king E. 1. claimed the said manor, as in his reverter in jure corona in the capacity of his body politic, in which right he was seised before the gift. In this case, how by the death of the 132 b. Vaugh. 379.) said earl Edmund without issue, the king's title by reverter, and the warranty and assets came together, and that the warranty was collateral, yet the king shall not be barred without assets, as a subject shall be; and many other things are to be observed in this case, which the learned reader will observe (c 1). 380 a. The heir must be of full age at the full of the warranty: 18 E. 4. 13. 35 H. 6. 32 F. 3. Gar. 30. Here note this diversity: if the heir be within age at the time of the descent of the warranty, he may enter and avoid the estate, either within age, or at any time after his full saith well, that the in age (D 1); and Littleton (sect. 726.) (C1) Mr. Serjeant Hawkins observes on this case, that the king was barred of the possibility of reverter descending to him in jure coronæ, by warranty and assets from a subject descending on his body natural, because in all likelihood those lands will descend to the same person to whom the crown will descend, and consequently will be a good recompence for the loss of the crown lands; but in the case of the parson his successor can have no benefit of what the predecessor has in his natural capacity. Hawk. Abr. 474.-[Ed.] (D1) The last requisite to a good warranty, is, that the heir, who is to be barred by the warranty, be of full age at the time of the fall of the warranty; for if the ancestor make a feoffment, or a release with warranty, his heir being within age, and after the ancestor die, and the warranty descend upon the heir within age, this is no bar. Chudleigh's case, 1 Co. 140 b. So if an infant was disseised, and the ancestor of the infant released to such disseisor with warranty, and died during the non-age of the heir, this was no bar; for the heir, having in himself the right of pos session, might enter; and consequently by his entry the estate to which. the warranty was annexed was defeated, the warranty not interfering with his right of entry, But if he had only had a right of action, he would have been bound; as the warranty would have been an utter bar to any action brought, though it would not preclude him from entering. Infra, 380 a. Watk, Gilb. Ten. 148. 404.Ed.] (1) 3 H. 7. 9. 35 H. 6. 63. Br. tit. War. 54. 33 H. 8. tit. War. Br. 84. Lib. 1. fol. 67 a. in Archer's case, & 140. Chudley's case.. *380 b. him for ever. Our author putteth his cases where the entry of the issue is lawful; (1) for where the entry of the infant is not lawful when the warranty *descendeth, the warranty doth bind the infant, as well as a man of full age; and the reason thereof is, because the state, whereunto the warranty was annexed, continueth and cannot be avoided but by action, in which action unless his entry was the warranty is a bar; and for the same reason likewise it is of a feme covert, if her entry be not lawful, a warranty, descending on her during the coverture, doth bind her. (m) And, albeit the husband be within age at the descent of the warranty, yet, if the entry of the wife be taken away, the warranty shall bind the wife. If lands had been given to the husband and wife and their heirs, and the husband had made a feoffment to another, to whom a collateral ancestor of the wife had released, and died, and the husband died, (and this had been before the statute of 32 H. 8.) this warranty had so bound her waivable right, as she could not waive her estate, and claim dower. Otherwise it is of an estate determined: for if a disseisor make a lease to the husband and wife during the life of the husband, and the husband dieth, she may disagree to this estate determined, to save herself from damages. And so note a diversity between an estate determined, and an estate bound by warranty. IT is commonly said, that there be three warranties, scil. warranty lineal, warranty collateral, and warranty that commences by disseisin. And it is to be understood, that before the statute of Gloucester all warranties which descended to them which are heirs to those who made the warranties, were bars to the same heirs to demand any lands or tenements against the warranties, except the warranties which commence by disseisin; for such warranty was no bar to the heir, for that the warranty commenced by wrong, viz. by disseisin. Here our author beginneth with an exact division of warranties. And this division of warranties that Littleton here speaketh of, he intendeth of warranties in deed. taken away. (m) 18 E. 3. 3. (F. N. B. 192. g. LITTLETON. [Sect.697. 364b.] 4. Effect of warranty. At common law every warranty (except by disseisin) was a bar to the heir." 365 a. Alteration in the com mon law by the stat, of ing alienation with Before the statute of Gloucester." This statute was made Glonc. cap. 3. restrain- at a parliament holden at Gloucester in the sixth year of the reign of king E. 1., and therefore it is called the statute of Gloucester. warranty by tenants by eurtesy, &c. of their wives inheritances. Glouc. cap. 3. Vid. sect. 724, 725. & 727, &c. (2 Inst. 293.) Construction of this statute. (8 Rep. 52, 53.) *365 b. (Post, 54 b.) 83. 4 E. 3. Garr. 63. 18 E. 3. 51. Pl. By the statute of Gloucester four things are enacted. First, that if a tenant by the curtesy alien with warranty and dieth, that this shall be no bar to the heir in a writ of mort d'ancester, without assets in fee-simple; and if lands or tenements descend to the heir from the father, he shall be barred, having regard to the value thereof. *Secondly, that if the heir, for want of assets at that time descended, doth recover the lands of his mother by force of this act, and afterwards assets descend to the heir from the father, then the tenant shall recover against the heir the inheritance of the mother by a writ of false judgment, which shall issue out of the record, to resummon him that ought to warrant, as it hath been done in other cases, where the heir being vouched cometh into the court, and pleadeth that he hath nothing by descent. Thirdly, that the issue of the son shall recover by a writ of cosinage, aiel, and besaiel. And lastly, that the heir of the wife, after the death of the father and mother, shall not be barred of his action to demand the heritage of the mother by writ of entry, which his father aliened in the time of his mother, whereof no fine was levied in the king's court. Concerning the first, there be two points in law to be ob served. First, albeit the statute in this article name a writ of (n) 11 E. 2. tit. Garr. mort d'ancester, and after writs of cosinage, aiel, and besaiel (n); yet a writ of right, a formedon, a writ of entry ad communem Com. 110. 7 E. 5. 53. legem, and all other like actions, are within the purview of Temps E, 1. Garr. 87. this statute; for those actions are put but for examples. Secondly, where it is said in the said act (if the tenant by the curtesy alien), yet his release with warranty to a disseisor, &c. is within the purview of the statute, for that it is in equal mischief; and if that evasion might take place, the statute should have been made in vain. 27 E. 3. 8, 9. 14 E. 4. Garr. 5. Dier quarto Mar. 148 a. If tenant by the curtesy be of a seignory, and the tenancy 22 Ass. 9. & 37. escheat unto him, and after he alieneth with warranty, this Temps E. 1. Garr. 86. shall not bind the issue, unless assets descend; for it is in equal mischief. As to the second clause of the statute of Gloucester, there are two points of law to be observed. First, that, by the express purview of the statute, if assets do after descend from the father, then the tenant shall have recovery or restitution of the lands of the mother. But in a formedon, if at the time of the warranty pleaded no assets be descended, whereby the demandant recovereth, if after assets descend, there the tenant shall have a scire facias for the assets, and not for the land intailed. And the reason hereof is, that if in this case the tenant should be restored to the land intailed, then if the issue in tail aliened the assets, his issue should recover in a formedon; and therefore the sages of the law, to prevent future occasions of suits, resolved the said diversity in the cases abovesaid, upon consideration and construction of the statute of Gloucester, and of the statute de donis conditionalibus. Secondly, it is to be observed, that, after assets descended, the recovery shall be by writ of judgment, which shall issue out of the roll of the justices, &c. And here two things are to be declared and explained. First, by what writ, &c. and that is clear, viz. by scire facias. But the second is more difficult; and that is, upon what manner of judgment the scire facius is to be grounded: for explanation whereof it is to be understood, that, if the tenant will have benefit of the statute, he must plead the warranty, and acknowledge the title of the demandant, and pray that the advantage of the statute may be saved unto him, and then if after assets 366 a. Pl. Com. Fulmer stone's case, 110 a. Lib. 8. fol. 53. Sym's case. Lib. 8. fol. 53, 54. |