LITTLETON. [Sect. 741. 388 a.] 8. Warranty, how de feated, suspended, de termined, or extinguished. By matter in law. The estate to which the warranty was annexed being defeated, the war ranty is also defeated. 938 a. Vid. sect. 707. 389 a. (e) 3 H. 7. 9 b. 16 E. 3. tit. Continual ranty of his wife, and yet he demandeth the land in another's right (T 2.) And so, if the husband and wife demand the right of the wife, a warranty of the collateral ancestor of the husband shall bar (u 2.). ALSO, in some cases it may be, that albeit a collateral warranty be made in fee, &c. yct such a warranty may be defeated and taken away. As if tenant in tail discontinue the tail in fee, and the discontinuce is disseised, and the brother of the tenant in tail releaseth by his deed to the disseisor all his right, &c. with warranty in fee, and dieth without issue, and the tenant in tail hath issue and die; now the issue is barred of his action by force of the collateral warranty descended upon him (w 2.). But if afterwards the discontinuez entereth upon the disseisor, then may the heir in tail have well his action of formedon, &c., because the warranty is taken away and defeated, for when a warranty is made to a man upon an estate which he then had, if the estate be defeated, the warranty is defeated (x 2). "And dieth without issue, &c." Here (as before in this Chapter hath been noted) the collateral warranty doth descend upon the issue in tail, before any right doth descend unto him. “When a warranty is made to a man upon an estate which he then had, if the estate be defeated, the warranty is defeated." Here it appeareth, that although a collateral warranty be descended, (e) yet, if the state whereunto the warClaime 10. 9 H. 4. 8. ranty was annexed be defeated, albeit it be by a mere stranger (as in this case that Littleton here puts, by the discontinuee) the warranty is defeated; and although the discontinuance remain, and no remitter wrought to the heir, yet the warranty is defeated, and bar removed, so as the Pl. Com. 158. (T2) For it shall be presumed, that he has land in her right to the value of that which he demands, which might be recovered from him and his wife by force of the warranty, and therefore he shall be rebutted to avoid circuity of action. Hawk. Abr. 467.-[Ed.] (U 2) Supra, p. 282. n. (N 1).—[ Ed.] (W2) Supra, p. 282. n. (N 1).-[Ed.] (X2) But if an estate be bound by a warranty, and afterwards the estate to which the warranty was annexed be defeated as to a particular estate only, the warranty shall not be defeated: as if tenant for life, remainder to A., be disseised, and an ancestor of A. releases to the disseisor with warranty and dies, and afterwards tenant for life enters or recovers; yet the remainder will be bound (at common law) by the warranty. 2 Rol. Abr. 740. 4 Com. Dig. 303.-[Ed.] issue in tail may have his formedon, and recover the land. Sublato principali tollitur adjunctum (x 2.). (10 Rep. 95.) IN the same manner it is, if the discontinuee make a feoff- LITTLETON. ment in fee, reserving to him a certain rent, and, for default [Sect. 742. 389a.] of payment a re-entry, &c. and a collateral (78) warranty of the ancestor is made to the feoffee that hath the estate upon condition, &c. and dieth without issue (z 2), albeit that this warranty shall descend upon the issue in tail, yet if after the rent be behind, and the *discontinuce enter into the land (79), then shall the issue in tail have his recovery by writ of formedon, because the collateral warranty is defeated. And so if any such collateral warranty be pleaded against the issue in tail, in his action of formedon, he may shew the matter as is aforesaid, how the warranty is defeated, &c. and so he may well maintain his action, (SO) &c. Here Littleton putteth another case upon the same ground and reason, viz. where the state whereunto the warranty is annexed is defeated, there the warranty itself is defeated also, which is one of the maxims of the common law. ALSO, if tenant in tail make a feoffment to his uncle, and after the uncle make a feoffment in fee with warranty, &c. to another, and after the feoffee of the uncle doth reenfeoff again the uncle in fee, and after the uncle enfeoffeth a stranger in fee without warranty, and dieth without issue, and the tenant in tail dieth, if the issue in tail will bring his writ of formedon against the stranger that was the last feoffee (81), and that by the uncle, the issue shall not be barred by the warranty that was made by the uncle to the first fcoffee of his uncle, for that the said warranty was de (78) garrantie de ancestor est fait -ancester relessu, L. and M. and Roh. (79) &c. added in L. and M. and Rob. (30) &c. not in L. and M. nor Roh. (81) &c. added in L. and M. and Roh. (Y 2) And upon this principle it is held, that, if a man makes a feoffment with warranty, non-feoflment is a good plea. But it is otherwise in the case of a lease for years; for if a man makes a lease for years and covenants to warrant and defend the land to the lessee; in this case the lessee, if he be ousted, whether by one having title or not, may maintain covenant against the lessor. 2 Brownl. 165.--[Ed.] (Z 2) This must be understood of the collateral ancestor of the tenant in tail who made the warranty. See n. (78) supra.~[Ed.] *889b. 389 b. (10 Rep. 95.) LITTLETON. [Sect.743. 389 b.] So if the warrantor takes back as large an estate as he had made. the warranty is defeat. ed: 390 a. (Vaugh. 389.) (f) Temps E. 1. Vouch. 266. 40 E. 14. 68. 87. 122. 44 E. 3. 38. 3. 14 E. 3. Vouch. 19 E. 3. Vouch. feated and taken away, because the uncle took back to him (82) as great an estate from his (85) first feoffee to whom the warranty was made, as the same feoffee had from him. And the cause why the warranty is defeated is this, viz. that if the warranty should stand in his force, then the uncle should warrant to himself, which cannot be. Here Littleton putteth another case where a warranty may be defeated, as when the uncle taketh back as large an estate as he had made, the warranty is defeated, because he cannot warrant land to himself. (ƒ) And so it is, if the uncle had made the warranty to the feoffee, his heirs and assigns, and 25 E. 3. 43 b. 26 E. 3. taken back an estate in fee, and after enfeoffed another, yet 106. 16 E. 3. Vouch. the warranty is defeated, for that he cannot be assignee to 17 E. 3. 73, 74. himself, and a man shall not regularly vouch himself as as20 H. 6. 29. (2 Rol. signee of a fee-simple, and the law will not suffer things inutile and unprofitable. (g) And yet if the father be en41 E. 3. 25a. (Ante, feoffed with warranty to him and his heirs, the father en384. Rol. Abr. 98a.) feoffeth his heir apparent in fee (A 3) and dieth, he (as it hath been said) shall vouch himself, and the heir in borough English, by reason the act in law determined the warranty between the father and the son. Abr. 739.) (g) 40 E. 3. 14 a. secus if the estate was reconreyed to him and his wife; (h) 11 H. 4. 20. 42. 17 E. 3. 47. 59. 18 E. 3. 56. 29 E. 3. 46. 39 E. 3. 9. (Vaugh. 389.) or to him and a stranger, &c. LITTLETON. (h) But if a man maketh a feoffment in fee with warranty to the feoffee, his heirs and assigns, and the feoffee re-enfeoffeth the feoffor and his wife, or the feoffor and any other stranger, the warranty remaineth still (B 3.); or if two do make a feoffment with warranty to one and his heirs and assigns, and the feoffee re-enfeoff one of the feoffors, the warranty doth also remain (c 3.). BUT, if the feoffee had made an estate to the uncle for [Sect. 744. 390a.] term of life, or in tail, saving the reversion, &c. or a gift in Where the warrantor takes back a less estate, the warranty is but suspended. (82) Reprist-prist, L. and M. and Roh. (83) dit, added in L. and M. and Roi. (A 3) It appears from what follows, that the words, "with warranty," should here be understood.-[Ed.] (B3) For, though the fee-simple of the warranty and of the estate war. ranted meet in the same person, yet another is jointly seised with him, who would be prejudiced if the warranty should be extinct. Hawk. Abr. 497, 498.-[Ed.] (C3) And the reason is, because the other feoffor may still warrant the lands to him who was his companion, as well as to the first feoffee. Hawk. Abr. 498,-[Ed.] tail to the uncle, or a lease for term of life, the remainder over, &c. in this case the warranty is not (84) altogether taken away, but is put in suspence during the estate that the uncle hath. For after that, that the uncle is dead without issue, (85) &c. then he in the reversion, or he in the remainder, shall bar the issue in tail in his writ of formedon by the collateral warranty in such case, (D 3.) &c. But otherwise it is where the uncle hath as great estute in the land of the made, as the feoffee hath feoffee to whom the warranty was himself. Causa patet. "For term of life, or in tail." Here it appeareth, (i) that by taking a (k) lease for life, or a gift in tail, the warranty is suspended. 390 a. 56. 17 E. 3. 47. 14 E. S. Counterplea de Vouch. 42. 14 E. 3. Ib. 12. (4 Rep. 52.) "But is put in suspence." (1) Tenant in tail maketh a feoffment in fee with warranty, and disseiseth the discontinuee, and dieth seised, leaving assets to his issue. Some hold, that, in respect of this suspended warranty and assets, the issue in tail shall not be remitted, but that the discontinuee shall recover against the issue in tail, and he take advantage of his warranty, if any he hath, and after in a formedon brought by the issue, the discontinuee shall bar him in respect of the warranty and assets; and so every man's right saved (86). ALSO, if the uncle after such feoffment made with warranty, or a release made by him with warranty, be attainted of felony, or outlawed of felony, such collateral warranty shall not bar, nor grieve the issue in the tail, for that by the attainder of felony, the blood is corrupted between them, &c. this, Note a warranty granted upon a release. Hereof you shall read before in this Chapter. (81) pas, not in L. and M. nor Roh. (85) &c. added in L. and M. and Roh. (86) "But clearly, if the war ranty were never executed, as in (D 3) Supra, p. 283. n. (N 1).—[Ed.] 237. Vid. 38 E. 3 29 b. Simile. And where Littleton saith (attaint of felony), if a man be convicted of felony by verdict, and delivered to the ordinary (i) 8 E. 2. Voncher to make purgation, (m) he cannot be vouched, for that the time of his purgation (if any should be) is uncertain, and the demandant cannot be delayed upon such an uncertainty; but the tenant is not without remedy, for he may have his warrantia carta. 391 b. LITTLETON. In the same manner it is, if a man be attainted of high treason, the warranty is also defeated. ALSO, if tenant in tail be disseised, and after make a [Sect. 746. 391 b.] release to the disseisor with warranty in fee, and after the tenant in tail is attaint, or outlawed of felony, and hath issue and dieth; in this case the issue in tail may enter upon the disseisor. And the cause is for this, that (87) nothing maketh discontinuance in this case but the warranty, and warranty may not descend to the issue in tail, for this, that the blood is corrupt between him that made the warranty and the issue in tail. LITTLETON. [Sect. 747.391b.] [COKE, 392 a.] Vid. sect. 711, 712. FOR the warranty always abideth at the common law (the collateral warranty is not restrained by the statute of donis conditionalibus, but a lineal warranty is restrained by 1 the statute, unless there be assets; as formerly at large hath been said), and the common law is such (88), that when a which outlawry is an man is attaint or outlawed of felony, (87) nul, added in L. and M. and Roh. (88) tiel, added in L. and M. and Roh. (90) &c. added in L. and M. and Roh. (91) barre, not in L. and M. nor Roh. (89) nul, added in L. and M. and Roh. (E3) See ant. p. 189. n. (C)-[Ed.] (F3) But at this day the wife of a man attainted of felony is dowable. See ant. 41a, vol. 1. p. 618. n. (Q 1).—[Ed.] |