387 a. Vid. sect. 733. & 706. (Post, 385.) (m) 38 E. 3. 14. 16 E. 3. Vouch. 87. (4 Rep. 80. Ante, 383. Hob. 156.) (2 Cro. 453.) LITTLETON. [Sect. 739. 387 b.] By this section it appeareth, that a warranty may be raised by a confirmation which transferreth neither estate nor right, whereof sufficient hath been said before. "To warranty for term of the life, &c." (m) This proveth that a warranty may be limited, and that a man may warrant lands, as well for term of life, or in tail, as in fee (Y 1). If tenant in fee-simple that hath a warranty for life, either by an express warranty or by dedi, be impleaded and vouch, he shall recover a fee-simple in value, albeit his warranty were but for term of life, because the warranty extended in that case to the whole estate of the feoffee in feesimple (z 1); but in the case that Littleton here putteth, the tenant for life shall recover in value but an estate for life, because the warranty doth extend to that estate only. AND upon this I have heard a reason (here our student is taught, after the example of our author, to observe every thing that is worth the noting), that this case will prove another case, viz. if a man letteth his lands to another, to have and to hold to him and to his heirs for term of another's life, and the lessee dieth living celuy a que vie, &c. and a stranger entereth into the land, that the heir of the lessee may put him out, (68) &c. because in the case next aforesaid, inasmuch as a man may bind him and his heirs to warranty to tenant for life only, during the life of the tenant for (69) life, and this warranty descendeth to the heir of him which made the warranty, the which warranty is no warranty of inheritance, but only for term of another's life: by the same reason where lands are let to a man, to have and to hold to him and (68) &c. not in L. and M. nor Roh. (69) terme, not in L. and M. nos Roh. (Y 1) If the estate, which the party had at the time of the warranty, be determined, the warranty will be defeated: as, if the ancestor of him in reversion release to the tenant for life, or for years, with warranty, and afterwards the term determines, or the lessee dies; he in reversion may enter. 2 Rol. Abr. 739. And a warranty does not extinguish the right, but only binds it so long as it stands in force; for, if the warranty be released, the ancient right revives. Smith v. Tyndal, Saik. 686. 22 Vin. Abr. 33.-[Ed.] (Z 1) For it is a warranty of a fee, though not a warranty in fee. Hob. 126.-[Ed.] his heirs for term of another's life, if the (70) lessee die living celuy a que vie, his heirs shall have the lands living celuy a que vie, &c. For they have said, that if a man grant an annuity to another, to have and to take to him and his heirs for term of another's life, if the grantee die, &c. that after (71) his death his heir shall have the annuity during the life of celuy a que vie, &c. Quære de istâ materiâ. 388 a. 18 E. 3. 12. 11 H. 4. 42. 7 H. 4. 46. This case is without question, (n) that the heir of the lessee shall have the land to prevent an occupant. And so it is (as Littleton here saith) in case of an annuity, or of any other thing that lieth in grant, whereof there can be no occupant. El. 253. And of this somewhat hath been said in the Chapter of 27.8. Descents (A 2). 8 H. 4. 15. Dy. 8. 21 H. 8. 22 H. 6. 33. 39 E. 3. 37. Vid. sect. 387. (Ante, 41 b.) sin. WARRANTY that commences by disseisin (в 2.), is in LITTLETON. this manner: as where there is father and son, and the son [Sect. 698. 366 b.] 5. Warranty by disseipurchaseth land, &c. and letteth the same land to his futher for term of years, and the father by his deed thereof infeoffeth another in fee, and binds him and his heirs to warranty, and the father dieth, whereby the warranty descendeth to the son, this warranty shall not bar the son; for notwithstanding this warranty the son may well enter into the land, or have an assise against the alienee if he will, because the warranty commenced by disseisin; for when the father, which had but an estate for term of years, made a feoffment in fee, this was a disseisin to the son of the freehold which then was in the son. In the same manner it is, if the son letteth to the father the land to hold at will, and after the father make a feoffment with warranty, &c. And as it is said of the father, so it may be said of every other ancestor, &c. In the same manner is it, if tenant by elegit, tenant by statute merchant, or tenant by statute staple, make a feoffment in fee (70) lessee-pier, L. and M. and Rob. (71) son mort, not in L. and M. nor Roh. (A 2) See ante, 41 b. vol. 1. p. 625-627. and the notes there.-[Ed.] (B2) Warranties commencing by disseisin are where the ancestor that makes the warranty is partner to the wrong, and such warranties are not obliging; because it cannot be presumed that one who is so unjust as to do wrong, will be so just as to leave a recompence to his heir; wherefore such contracts are wholly rejected as collusive, and founded on no con sideration. Gilb. Ten. 140, 141.-[Ed.] LITTLETON. *367 b. with warranty (72), this shall not bar the heir which ought to have the land, because such warranties commence by disseisin. ALSO, if a guardian in chivalry, or guardian in socage, [Sect. 699. 367 a.] make *a feoffment in fee, or in fee-tail, or for life, with warranty, &c. such warranties are not bars to the heirs to whom the lands shall be descended, because they commence by disseisin. S67 b. 16 E. 3. Garr. 20. 8 Ass. 2. 43 E. 3. 7. Here Littleton addeth the case of guardian in chivalry, and guardian in socage, and guardian because nurture is also in and the books above- the same case. said. Vid. sect. 698. (3 Rep. 37.) LITTLETON. ALSO, if father and son purchase certain lands or tene[Sect. 700. 367 b.] ments, to have and to hold to them jointly, &c. and after the father alien (73) the whole to another, and bind him and his heirs to warranty, &c. and after the father dieth, this warranty shall not bar the son of the moiety that belongs to him of the said lands or tenements, because as to that moiety which belongs to the son, the warranty commences by disseisin, &c. 367 b. 15 Ass. 8. 13 E, 3. (Post, 393 a.) (1 Rep. 66.) : "To have and to hold to them jointly, &c." This is to be intended of a joint purchase in fee; for if the purchase were to the father and the son, and the heirs of the son, and the father maketh a feoffment in fee with warranty, if the son entereth in the life of the father (c 2.), and the feoffee re-enter, the father dieth, the son shall have an assise of the whole and so is the book of 22 H. 6. to be understood. But if the son had not entered in the life of the father, then for the father's moiety it had been a bar to the son (D 2), for that therein he had an estate for life; and therefore the warranty as to that moiety had been collateral to the son, and by disseisin for the son's moiety; and so a warranty defeated in part, and stand good in part. And this appeareth by the example that Littleton hath put. But if the purchase had been to the father and son, and to the heirs of the fa ther, then the entry of the son in the life of the father, as to (72) &c. added in L. and M. and Roh. (73) l'entier-l'entiertie, L. and M. and Roh. (C2) i. e. for the forfeiture.-[Ed.] (D 2) That is, at common law, before the 4 and 5 Ann, c. 16.—[Ed.] the avoidance of the warranty, had not availed him, because his father lawfully conveyed away his moiety (E 2). (F. N. B. 192 a.) ALSO, if 4. of B. be seised of a mese, and F. of G. LITTLETON. that no right hath to enter into the same mese, claiming the [Sect. 701. 368 a.] said mese, to hold to him and to his heirs, entereth into the said mese, but the same A. of B. is then continually abiding in the same mese: in this case the possession of the freehold shall be always adjudged in A. of B. and not in F. of G., because in such case where two be in one house, or other tenements, and the one claimeth by one title, and the other by another title, the law shall adjudge him in possession that hath right to have the possession of the same tenements. But if, in the case aforesaid, the said F. of G. make a feoffment to certain barretors and extortioners in the country, to have maintenance from them of the said house, by a deed of feoffment with warranty, by force whereof the said A. of B. dare not abide in the house, but (74) goeth out of the same, this warranty commenceth by disseisin, because such feoffment was the cause that the said A. of B. relinquished the possession of the same house (75). 368 a. (Ante, 194 a. Post, "Where two be in one house, &c. and the one claimeth by one title, and the other by another title, &c." For the rule 244a. 1 Rol. Abr. 661, is, Duo non possunt in solido unam rem possidere. 662. Plowd. 233 b.) 19 H. 6. fol. 28 b. per Newton. (Siderf. 385 a. Ante, 180 b. 181 a.) These words of our author be significant and material: (0) for if a man hath issue two daughters, bastard eigne and (0) 17 E. 3. 59. 11 Ass. p. 23. (Perk: mulier puisne, and die seised, and they both enter generally, 84. 8 Rep. 101 b. the sole possession shall not be adjudged only in the mulier, Post, 244. 10 Rep. because they both claim by one and the same title; and not Lampet's case.) one by one title, and the other by another title, as our author here saith. Hob. 120. Ante, 189. (p) If the tenant in an assise of an house desire the plain- (p) Pl. Com. 91. the (74) se en, added in L. and M, and Roh. (75) &c. added in L. and M. and Rob. (E2) But it shall recontinue his own estate for life in the moiety whereof he was disseised. Hawk. Abr. 470, 471. As to the defeating of the warranty by the heir's entry or claim in the ancestor's life-time, see ant. p. 246. n. (A). Gilb. Ten, 135.-[Ed.] Parson of Honeylane's case. (Post, 245 b. Plow. 93 a. b.) 369 b. (2 Rep. 31. Ante, 48 b.) 369 a. (4) 1 R. 2. cap. 9. Vid. 27 H. 2. fol. 23. 368 b. LITTLETON. tiff to dine with him in the house, which the plaintiff doth accordingly, and so they be both in the house; and in truth one pretendeth one title, and the other another title; yet the law in this case shall not adjudge the possession in him that right hath; because our author here saith, he claimed not his right, and it should be to his prejudice if the law should adjudge him possession; and a trespasser he cannot be, because he was invited by the tenant in the assise. "Relinquished the possession, &c." This must be understood, that, before livery of seisin upon the feoffment, A. of B. departed out of the house; for otherwise the livery and seisin should be void, because A. of B. was in possession. Aud Littleton here saith, by a deed of feoffment, so as albeit the deed were made before the departure it is not material; but the departure must be before the livery of seisin, for that doth work the disseisin. And yet that which Littleton saith is true, that the feoffment was the cause that he relinquished his possession; for otherwise he would not have done it. But admit that A. of B. had departed for any other cause, yet if F. of G.' enter and infeoff certain barretors or extortioners, or any other, with warranty, this is a warranty that commenceth by disseisin, for that the feoffment worketh a disseisin. Here in this case that Littleton putteth, the feoffment is void by the statute (q) of 1 R. 2.; for thereby it is enacted, that feoffments made for maintenance shall be holden for none, and of no value, so as Littleton putteth his case at the common law; for he seemeth to allow the feoffment, where he saith, such feoffment was the cause, &c.: but some have said that the feoffment is not void between the feoffor and feoffee, but to him that right hath. And here barretors and extortioners are put but for examples; for if the feoffment be made to any other person or persons, the law is all one. ALSO, if a man which hath no right to enter into [Sect. 702, 369b.] other tenements, enter into the same tenements, and in |