either be impleaded, she may vouch her sister; and if she loses, she may recover one moiety of her loss in value against the other sister. For there is a condition annexed to every partition, similar to that annexed to every exchange; that if either the whole of any one share, or an estate for life, or in tail, be thereout evicted, the party so evicted may enter on her sister's moiety, and avoid the partition of an un- Vide Tit. 19. divided moiety of what is left. $ 29. Warranty. 25. Warranty is again divided into lineal and col- Lineal lateral. Lineal warranty is where the heir derives, or might possibly derive, his title to the land warranted, either from or through the ancestor who made the warranty. Thus, where a man seised in fee made a feoffment, and bound himself and his heirs to warranty; and died, leaving a son, upon whom the warranty descended; it was a lineal warranty. So where Lit. § 707. a father, or an eldest son in the lifetime of his father, released to a disseisor, with warranty, this was lineal to the younger son. 26. The effects of a lineal warranty are, 1. To bar the warrantor and his heirs from ever claiming the lands warranted; so that if a purchaser with warranty is impleaded by the warrantor or his heirs, he may show his warranty, which in pleading is called a rebutter, and is an effectual bar to the claim. 2. To compel the warrantor and his heirs to give the warrantee, in case of eviction, lands of equal value to those he has lost; and therefore if a purchaser with warranty is impleaded or sued by a stranger for the land, he may vouch, that is, call in the warrantor or his heirs, to defend the land; and if the vouchee cannot defend them, he must then give the warrantee lands of equal value to those he has lost. Fitz. N. B. Only binds the Heir where he has Assets. 1 Inst..374 b. Collateral § 704, 5. 27. A purchaser with warranty may also at any time bring a writ of warrantia chartæ upon the warranty, either against the warrantor or his heirs; and by that means all the lands whereof the warrantor or his heirs was seised at the time of suing out the writ, will be bound and charged with the warranty. 28. The obligation which the heir of the warrantor is under, in the case of a lineal warranty, of giving the warrantee, upon eviction, lands of equal value to those he has lost, is however only on condition that he has other lands of equal value by descent from the warranting ancestor; which are called assets. 29. Lands in possession of an heir must have the following qualities: 1. They must be assets, that is of equal value or more at the time of the descent. 2. They must be by descent, and not by purchase of gift. 3. They must be estates in fee simple, and not in tail, or for another man's life. 4. They must descend to him as heir to the same ancestor that made the warranty. 5. Nothing but lands or tenements, or rents or services valuable, or other profits issuing out of lands or tenements, are assets; and not personal inheritances, as annuities and the like. 6. The lands must be in estate or interest, and not in use, or right of action, or right of entry; for they are not assets till they are reduced into possession. 30. A collateral warranty is, where the heir's title to the land neither was, nor could have been, derived from the warranting ancestor : and yet it barred the heir from ever claiming the land; and also imposed on him the same obligation of giving the warrantee other lands, in case of eviction, as if the warranty were lineal, provided the heir had assets. 31. Thus Littleton says, if there was father and son, and the son purchased lands in fee, and the father disseised the son, and aliened in fee by deed, and bound himself and his heirs to warranty, and died; the son was barred by this warranty, which was collateral, though it descended lineally from the father to the son; because the son did not derive his title to this estate from his father; for the father had no estate in right in the land. 32. The effect of a collateral warranty is so singular, and so apparently unjust, that many inquiries have been made respecting its origin. Sir Martin Wright endeavours to account for it in Tenures, 168.. the following manner. It was a maxim of our ancient law, that no person could alien his feud without the consent of his next collateral heir; qui proximus erat in successione collaterali: for although the law trusted the ancestor with the interest of his own immediate descendants, yet he could not disinherit the next collateral heir, who having a distinct, though remote interest, in the feudal donation, could not be deprived of it, but by an act of his own. This manifestly pointed out the foundation, and partly suggested the reason, of collateral warranty. Though it was not easy to conceive how it came to pass, that the concurrence or simple consent of the next collateral, which by the old law was required to defeat his own hopes of the succession, should swell up to our notionsof collateral warranty, and be advanced into a means. to defeat even estates to which such collaterals could have no possible hopes of succeeding. 33. Lord Chief Baron Gilbert, whose authority is Ten. 143. of the greatest weight, has endeavoured to account for collateral warranty in another manner. He thought it was introduced for the quieting disseisins, that were usually very frequent in those unsettled times, between neighbouring feudaries, (and from thence called Vaugh. Rep. 366. 375. deadly feuds), for which purpose it was usual for such disseisors to purchase warranties from some ancestor of the family. And this gave a right to such disseisor; for it might be easier to compound with the ancestor, than with the party to whom the wrong was actually done, and then to quiet men's possessions, such warranty bound; if the owner acquiesced under his expectations from such relations. 34. Lord Chief Justice Vaughan says, at common law, the distinction of a lineal and collateral warranty was useless and unknown; for though what we now call a collateral and a lineal warranty might be in speculation, yet as to any effect in law there was no difference but the warranty of the ancestor descending on the heir, whether the one or the other, equally bound; and this appeared from Littleton, whose words were, § 697,-" 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 Vide 12 Mod. against the warranties, except the warranties which commence by disseisin." 512. Statute of 2-291. 35. There have been several statutes made to restrain the operation of warranties. The first of these is the statute of Gloucester, 6 Edw. I. c. 1., by 1 Inst. 365 a. which it was enacted, 1. That if a tenant by the curtesy aliened with warranty and died, this should be no bar to the heir, in a writ of mort d'ancestor, without assets in fee simple. And if lands and tenements descended to the heir from the father, he should be barred, having regard to the value thereof. 2. That if the heir, for want of assets at that time descended, recovered the lands of his mother before this act, and afterwards assets descended to the heir from the father; then the tenant should recover against the heir the inheritance of the mother, by a writ of false judgement. Donis, 36. The next statute by which the operation of Statute De warranties was abridged, was the statute De donis Tit. 2. c. 1. conditionalibus, the object of which was to secure the continuance of the estate tail to the issue of the 142. donee, and the reversion to the donor. In conse- Lit. § 712. quence of which, the Judges held, that a tenant in Gilb Ten. tail could not bar his issue, by a lineal warranty, without assets; for otherwise every tenant in tail might have evaded the statute. But by a kind of analogy to what the Legislature had done by the statute of Gloucester, they held that such a warranty 1 Inst. 374b. would bar the issue, if he had assets. 393 b. lateral 37. It was however held, that a collateral warranty Does not exwas not prohibited by that statute; for as it only tend to col-.. declared, that the will of the donor should be ob- Warranty. Gilb. Ten. served, the Judges would not extend it to collaterals; 142. 145. who did not take by the gift, and therefore could not be forbidden from barring by their warranty. 38. Thus Littleton says, if a tenant in tail hath § 708, &c. issue three sons, and discontinues the estate tail in fee, and the second son releases by deed to the discontinuee with warranty, and dies without issue; this warranty will rebut the eldest son, and prevent him from recovering the estate tail; because it is a collateral warranty; for the eldest son cannot make a title to the second son under the entail. And LordCoke, in his comment on this passage, says," A 1 Inst. 374 b. collateral warranty, made by a collateral ancestor of the donee, doth bind the right of an estate tail, albeit there be no assets. And the reason thereof is upon the statute of Donis conditionalibus, for that it is not made by the tenant in tail, &c. as the lineal warranty is. |