In these two sections there are expressed four legal conclusions: -First, that lineal warranty binds the right of a fee-simple. 2dly. That a lineal warranty does not bind the right of an estate tail, for that is restrained by the statute de donis conditionalibus. 3dly. That a lineal warranty and assets is a bar to an estate tail and is not restrained by the said act. And 4thly. That a collateral warranty made by a collateral ancestor of the donee, binds an estate tail, albeit there are no assets; and the reason is, because it is not made by the tenant in tail, as lineal warranty is. To this may be added, that the warranty of the donee in tail, if the person in remainder be heir to the warrantor, such warranty binds both the donor and remainder-man, which is collateral to the donor and to him in remainder, without any assets. For though the alienation of the donee after issue does not bar the donor, which was the mischief provided for by the statute de donis, yet the warranty being collateral bars both of them; for the act restrains not that warranty, which therefore remains as at common law, and in like manner the warranty of the donee bars him in remainder. [See further, Gilb. Ten. 141, 142.]

[374 b]

sites to make.

Assets requisite to make a lineal warranty a bar, must be of Assets—Requiequal value with the land which it so bars one to demand, it must descend from the same ancestor that made the warranty, and it must be a real inheritance in estate or interest; not a bare luse or right of entry or action, which are not assets till they are reduced into possession. But a rent issuing out of the heir's land descending to him, whereby it becomes extinct, is good assets. An advowson also is assets, and may be extended at the rate of a shilling for every mark of the yearly value of the living. But a seigniory in frankalmoign is not assets, because it is not valuable.

SECTION 714.

[375a]

continuance

LAND is given to husband and wife in special tail, the husband Husband's dismakes a feoffment in fee, and dies, the widow releases to the wife's release feoffee with warranty, and dies, this is lineal as to the whole; and with warranty. the law is the same if the gift had been before marriage, in which case they had taken by moieties, for the heir must claim as heir of both their bodies.

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warranty col

lateral to remainder-man though his

SECTION 716.

Tenant for life's IF a man has three sons, A. B. and C., and a gift is made to A. for life, remainder to B. in tail, remainder to C. in tail, A. discontinues with warranty: this is collateral to the brothers, because the remainders are their titles, and to those A. is collateral.

heir.

[376a]

Collateral

warranty enures in respect of title, not of blood.

Warranty de

SECTION 717.

AND so note, that where a man is collateral to the title, and he releases his right with warranty &c. this is a collateral warranty.

Here it appears that it is not adjudged in law a collateral warranty in respect of the blood, for the warranty may be collateral, albeit the blood be lineal; and the warranty may be lineal, albeit the blood be collateral, as hath been said. But it is in law deemed a collateral warranty, in respect that he who makes the warranty is collateral to the title of him upon whom the warranty falls.

And note, it is a maxim of law, that warranties descend on the at common law heir at the common law only, infra, Sect. 735.

scends to heir

only.

Debt on bond lies against

special or customary heir.

[3766]

Observe further, if a man be seised of lands in gavelkind, and has issue three sons, and by obligation binds himself and his heirs and dies, an action of debt shall be maintainable against all the three sons, for the heir is not chargeable unless he has lands by descent. So if a man be seised of land on the part of his mother, and binds himself and his heirs by an obligation, and dies, an action of debt shall lie against the heir on the part of the mother, without naming of the heir at the common law. And so note a diversity between the personal lien of a bond, and the real lien on a warranty.

SECTION 719.

If land be given to a man and to the heirs male of his body begotten, and for default of such issue to the heirs female of his body begotten, and afterwards the donee in tail makes a feoffment in fee with warranty, and has issue a son and a daughter and dies, this warranty is lineal both to the son and the daughter.

Here it appears, that whensoever the ancestor takes any estate of freehold, and in the same conveyance an estate is limited to any of his heirs, these latter words "his heirs" are words of limitation, and not of purchase, although it be limited by way of remainder; and therefore here the remainder to the heir female vests in the tenant in tail himself: [so only, however, as to give him a remainder in tail female, and not by merger to destroy the remainder, and give him an estate tail general.] And it is well to know this learning; nevertheless it is dangerous to use such limitations in conveyances, as great inconveniences may arise thereupon; for if such a tenant in tail has issue divers sons, and they have issue divers daughters, or if tenant in tail has issue divers daughters, and each of them has issue sons, none of the daughters of the sons, nor the sons of the daughters, shall ever inherit to either of the said estates tail; and so it is of the issues of the issues, for (as hath been said) the issues inheritable must make their claim either only by males, or only by females, so that the females of the males, or males of the females, are wholly excluded in the heritage of either of the said estates tail: hence, therefore, it is proper, when the first limitation is to the heirs male, that the remainder should be to the heirs general, as then all the issues, be they females of males, or males of females, are inheritable.

SECTION 720.

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Condition

ALSO, I have heard say, that in the time of king Richard the Richel's case of second, there was a justice of the common pleas, dwelling in Kent, called Richel, who had issue divers sons, and his intent was, that his eldest son should have certain lands and tenements to him and

perpetuity. against alien

ation void.

to the heirs of his body begotten; and for default of issue, the remainder to the second son &c., and so to the third son &c., and because he would that none of his sons should alien, or make warranty to bar or hurt the others that should be in the remainder &c., he caused an indenture to be made, declaring that the lands and tenements were given to his eldest son upon this condition, that if the eldest son aliened in fee, or in fee-tail &c., or if any of his sons aliened &c., that then their estates should cease and be void, and that then the same lands and tenements should immediately remain to the second son and to the heirs of his body begotten, et sic ultra, the remainder to his other sons, and livery of seisin was made accordingly.

[378a]

Remainder

should vest at same time as particular

estate.

Except as to contingent remainders.

SECTION 721.

BUT it seems by reason, that all such remainders are void and of no value, and that for three causes. 1st. Because the remainder did not vest in the second son at the time livery was made of the freehold.

First, Littleton says by deed, because if lands are granted and rendered by fine for life, with remainder in tail, with remainder in fee, none of these remainders are in the remainder-men, until the particular estate is executed.

Secondly, this rule is generally true, but it hath divers exceptions. 1st. If the person who is to take the remainder be not in rerum naturâ as if a lease for life be made with remainder to the right heirs of I. S.-I. S. being then alive, now here the inheritance passes presently out of the lessor, but it cannot vest in the heir of I. S., for living the father his heir is not in rerum naturâ, for non est hæres viventis; so that the remainder is good upon this contingency, viz. if I. S. die during the life of the lessee. And so it is if a man makes a lease for life to A. B. and C., and if B. survive C., then remainder to B. and his heirs. This is another exception; for albeit the person be certain, yet inasmuch as it depends upon the dying of B. before C. the remainder cannot vest in C. presently. And the reason of both cases in effect is, because the remainder is to commence upon limitation of time, viz. upon the possibility of the death of one man before another, which is a common possibility.

SECTION 722.

THE second cause is, if the first son alien the tenements in fee, then is the freehold and the fee-simple in the alienee and in none other; and if the donor had any reversion, by such alienation, that reversion is discontinued. Also if such remainder be good, then might the second son enter upon the alienee, when he had no manner of right before the alienation, which would be inconvenient.

Therefore by an alienation which transfers the freehold and feesimple to the alienee, there can be no remainder raised and vested in another person. As if a man makes a lease for life upon condition that if the lessor grants over the reversion, the lessee shall have the fee; if the lessor grants the reversion by fine, the lessee shall not have the fee; for when the fine transferred the fee to the conusee, it would be absurd and repugnant to reason, that the same fine should work an estate in the lessee; for one alienation cannot vest an estate in two several persons at one time of the same land.

[3786]

Alienation to create an estate

one cannot

in another.

Condition that

lessee shall have

fee cannot de

pend on lessor's granting reversion.

tation when it means the next

grant.

In a man's own grant which is ever taken most forcibly against Next presen himself, the reason of Littleton holds; for it has been resolved that if a man seised of an advowson in fee by his deed grants the next a man may presentation to A. and before the church becomes void, by another deed he grants the next presentation of the same church to B. the second grant is void, for A. had the same granted to him before; and the grantee shall not have the second avoidance by construction, to have the next avoidance which the grantor might lawfully grant, for the grant of the next avoidance imports not the second presentation. But if a man seised of an advowson in fee take wife; now by act in law is the wife entitled to the third presentation, if the husband die before her. Then if husband grants the third presentation to another and dies, the heir shall present twice, the wife shall have the third presentation, and the grantee the fourth; for in this case it shall be taken the third presentation which he might lawfully grant; and so note a diversity between a title by act in law and by act of the party; for the act in law shall work no prejudice to the grantee.

[379 a]