ed the pleadings at large; as well for the warrant, and better understanding of the cases and matters in law, as for the better instruction of the studious Reader in good pleading, which Mr. Lit. Sect. 534. Littleton saith is one of the Co. Lit. 332. b. 303. b. most honourable, laudable, and profitable things in the law I wish the continuances had been omitted, and yet some of them also are not without their fruit. To the Reader my advice is, that in reading of these or any new Reports, he neglect not in any case the reading of the old books of years reported in former ages, for assuredly out of the old fields must spring and grow the new corn; and so I conclude with the Poet:

magis, addo etiam, non minus forte utiles. Apposui insuper & fusiorem actionum harum tractionem, tum ut recipiantur alacrius, rectiusque intelligantur res controversæ, tum ut melius instituatur studiosus lector ad causas commode riteque agendas, cui rei Littletonus noster primas partes tribuit honoris, laudis, utilitatis: seriem illam continuationum quam vocant omitti optassem penitus, habent tamen & ex illis aliqui suum fructum. Lectori consilium meum hoc esto, ut dum relationes hasce, aut quascunque recentiores alias perlegerit, veteres interea a majoribus olim conscriptas non negligat, quia certo certius est, quod ex antiquis agris nova & læta seges oriri debeat: atque sic cum Poëta concludo:

BENE VALE.

2d. If a man seised in fee conveys land

to another and his heirs, with out warranty,

all the title deeds belong to the purchaser, as in

cident to the land, though

not granted by

express words. (b) Co. Lit. 6a. Mo. 497, 502, 503.

18

E. 4. 11 a. 15

connexion between the blood of both families continued uninterrupted; but, as it ceased on alienation by either party, in process of time, it became usual, when a transfer of the seigniory or tenancy occurred, to require an express warranty, binding in the one case the new lord and his heirs, and in the other, the former tenant and his heirs, Sulliv. Lect. xii. 120, 121. Gilb. Ten. 133, 4. 154. This has all the effect of the old feudal contract; barring the warrantor and his heirs, if named therein, (1 Inst. 47 a. 383 b. ii. 250. 412. Doe d. Hutchinson v. Prestwidge, 4 Maule and S. 178,) from ever claiming the lands; and compelling them to defend the warrantee in his estate, or to give him, in case of eviction, lands of equal value to those he has lost, Gilb. Ten. 134, 139, 1 Inst. 365 a. ii. 245, n. (A). Hence, in the case of a feoffment, or other conveyance, with warranty, the vendor has a right to retain all the evidences which relate to the title (though not those that merely concern the possession; as court rolls, infra 1 b.), in order that he may be enabled to fulfil his undertaking; but where he is not required to enter into warranty, the purchaser will be entitled to the deeds, as incident to the land. Infra. 1 Inst. 6 a. ii. 355. Cro. Eliz. $47. Cro. Cha. 442. Noy, 145. 6 Taunt. 14. Conveyances of land differ, in this respect, from conveyances of incorporeal hereditaments; for, in the latter case, notwithstanding a warranty, the purchaser shall have the charters, because he has no other evidence of his grant. Infra. 1 b. 1 Inst. 9 a. ii. 333. 356 (A).

Warranties may be annexed to every species of assurance inter vivos (1 Inst. 386 a. ii. 263), by which a freehold estate is conveyed, 1 Inst. 371 a. ii. 249 (D); but as they only bind the real, and not the personal assets of the warrantor, they have been superseded in practice by covenants for the title; which, in their usual form, extend to the heirs, executors, and administrators of the covenantor, and consequently afford a better security to the purchaser than a warranty, 2 Bl. Com. 304. Inst. ii. 323 (G3). As these covenants, how. ever, are confined to the acts of the vendor and

1

his ancestors, (ibid.) it may, sometimes, be advisable to annex a general warranty to them; as where there is reason to suspect any latent remainder in tail; in which case, if the person entitled to that estate happen to be the heir of the vendor, the warranty, being collateral, will bar him, even without assets. 1 Inst. Sect. 708, 716, 372 a. 374 b. 375 b. ii. 281-287. Post. 8 Co. 51. Vaugh.367.377. Cro. Jac. 217. Where a conveyance is taken with warranty, it should be accompanied with an express grant of the title deeds, in order to give the purchaser a right to the possession of them, 1 Inst. 6 a. ii. 355 (c 1); which grant may be either made by a separate instrument (Shep. Prec. of Prec. 85. 1 Bridgm. 23. 264); or, as is most usual, inserted in the purchase deed, 1 Bart. Prec. 170 (28). (ED.)

(c) Acc. Hooper v. Ramsbottom, 6 Taunt. 12. 2 Bl. Com. 428. Supra n. (A); but yet in some cases it is proper to insert a grant of the evidences, although the vendor does not enter into warranty; for where a man, who had formerly purchased a small part of an estate, taking a covenant for the production of the title deeds, and afterwards obtained possession of them as mortgagee of the other part, assigned his mortgage to a third person; it was held, that the latter could not recover the deeds from the vendor, because, as they were not expressly granted in the assignment, the plaintiff had no more right to them than the defendant, Yea, Bart. v. Field, 2 T. R. 708. See also Shep. Prec. of Prec. 88. It seems, also, advisable to insert a grant of the title deeds in conveyances to uses, to obviate the doubt which has arisen, whether the feoffee or releasee be not entitled to the possession of the evidences as formerly, on the supposition that the statute 27 H. 8. c. 10. merely transfers the legal estate to the use without interfering with the deeds. Estoffe v. Vaughan, Dyer, 277 a. Stockman v. Hampton, Cro. Car. 441. Huntingdon v. Mildmay, Cro. Car. 217. Reynell v. Long, Carth. 315. Whitfield v. Fausset, 1 Ves. 387.394. 3 T. R. 156. 1 Inst. 6 a. (4). ii. 355 (55). 374 (A). 1 Bart. Prec. 170 (28). 4 Cru. Dig. 2d ed. 147. (ED.)