Which bars all Remain ders. $ 716. Sym's Case, 8 Rep. 51. Cro. Ja. 217. Vangh. 367. 39. With respect to remainders expectant on estates tail, there is nothing in the statute De Donis which either directly or indirectly restrains the tenant in tail from barring them by his warranty and therefore, the operation of a warranty in rebutting remainder-men expectant upon estates tail, remains as it was before the statute; so that such warranty is a bar without assets. 40. Thus Littleton says, if a man has issue three sons, and give, land to the eldest son, and the heirs of his body, remainder to his second son and the heirs of his body, remainder to the third son in the same manner; in this case, if the eldest son discontinues the estate tail in fee, and binds himself and his heirs to warranty, and dies without issue; this is a collateral warranty to the second son, and will bar him from demanding the land by force of the remainder: for that the remainder was his title, and his elder brother was callateral to this title, which commenced by force of the remainder. 41. In the case of Bole v. Horton, which will be stated hereafter, Lord Ch. Just. Vaughan lays it down as clear law, that the statute De Donis does not restrain the warranty of tenant in tail from barring remainder-men by the descent of the warranty on them-1". Because the mischief complained of in the statute was, that the issue in tail was disinherited; but the warranty of the donee in tail, descending upon the remainder-man, who claims by purchase from the donor, and not by descent from the donee in tail, could be no disinheriting of the issue of the donee. 2°. The statute did not provide against inconveniences or mischiefs which did not exist at the time of making the statute. Now, when the statute was made, there could be no remainder in tail, because all estates which are estates tail since the statute, were fee simple conditional before the statute, upon Vide Tit. 35. which a remainder could not be limited. c. 9. 42. With respect to a reversion expectant on an But not the Reversion. estate tail, it has never been determined that it may be barred by the warranty of the tenant in tail; and the better opinion appears to be that it would not be barred by it. Horton, Vaugh. 360. 43. W. Vesey devised certain lands to J. Vesey Bole v. his eldest son for life, remainder to the heirs male of his body, remainder to Robert Vesey and the heirs male of his body, remainder to William Vesey and the heirs male of his body, remainder to Mathew Vesey and the heirs male of his body, and died, John entered and died without male issue, leaving two daughters, Elizabeth and Sarah. Robert entered, and died seised without male issue; upon which William entered and Mathew died without male issue in the lifetime of William. William made a feoffment in fee of the lands with warranty, to the use of himself for life, remainder to the use of Ann his wife for life, remainder over. William died without issue male, and Ann his wife entered. Elizabeth and Sarah, the daughters and coheirs of John and William, brought a formedon in the reverter against Ann the widow of William; and the question was, whether Ann could rebut them by the warranty. Lord Ch. Just. Vaughan argued that the statute De Donis restrained the warranty of tenant in tail from barring the donor's reversion, by expressly providing that the donee in tail should not have it in his power to bar the donor of his reversion. Ita quod non habeant illi, quibus tenementum sic fuit datum sub conditione, potestatem alienandi tenementum sic datum, quo minus ad exitum illorum quibus tenementum sic fuerit datum remaneat post eorum obitum; vel ad dona torem, vel ad ejus hæredem, si exitus deficiat, revertatur. By these words the donee or tenant in tail was restrained from all power of alienation, whereby the lands entailed might not descend to the heir in tail, after his death. Therefore by these words he was restrained from alienation with warranty, which doubtless would hinder the lands so to descend, if it were not restrained by the words of the statute. By the same words the donee in tail was restrained from the power of alienation, whereby the land entailed might not revert to the donor, for want of issue in tail. Therefore by those words he was restrained from such alienation with warranty, whereby the lands entailed might not revert to the donor or his heirs, for want of issue in tail; for the same words of the statute must be of equal power and extent to restrain the donee's alienation from damaging the donor, as from damaging the issue in tail. Admit the words of restraint in the statute had been rex statuit &c. ita quod non habeant illi quibus tenementum sic fuit datum sub conditione potestatem alienandi tenementum sic datum per warrantiam, vel aliter, quo minus ad exitum eorum remaneat, vel ad donatorem revertatur: it had then been clear to every understanding, that the warranty of the donee, or tenant in tail, by the express words of the statute, did neither bar the donor, nor the issue in tail; and then observe what consequences had been rightly deduced from such restraint, made by the statute. The statute expressly restrains the warranty of tenant in tail from barring his issue; whence it follows that by, the sta tute, the issue in tail is not barred by the lineal warranty of the tenant in tail, because his warranty upon the issue in tail cannot possibly be any other than a lineal warranty. It may be said in like manner ΙΟ that the statute De Donis restrains the warranty of tenant in tail from barring the donor, or his heirs of the reversion: the consequence thence deducible was, that the statute restrained the collateral warranty of tenant in tail from barring the donor or his heirs; because his warranty falling upon the donor or his heir, could be no other than a collateral warranty. Now it was true, the word warranty was not, in syllables, within the restraint of the statute; but it was necessarily implied in it, else the issue in tail would be barred by the warranty of tenant in tail, without assets; contrary to all the books since the making of the statute. But those general words of the statute, restraining the donee's power of alienation in express terms, equally and pari passu for the benefit of the donor, as for the benefit of the issue in tail, could never be understood to restrain the warranty of tenant in tail only, for the benefit of the issue in tail, but not for the benefit of the donor. But the statute must necessarily restrain the warranty, indefinitely from hurting either; and by consequence his lineal warranty was restrained from hurting his issue, and his collateral warranty from hurting the donor; to whom his warranty could never be but collateral; it could never be but lineal to the issue in tail. if the warranty were necessarily understood and implied in the statute, its operation must be the same, as if it had been expressly inserted in the statute. Then to say that, by the restraint of the statute, the donees have not power to alien the land entailed, quo minus ad exitum illorum remaneat post illorum mortem ; but they have power to alien quo minus ad donatorem revertatur, deficienti exitu; would be to make the statute contradictory to itself. 1; as And c. 20. No judgment was given in this case, the Court being divided. Vaughan and Archer for the demandant, and Wylde and Atkins for the tenant. But Vaughan's opinion is generally held to be law. St. 11 Hen.7. 44. By the statute 11 Hen. VII. c. 20. it is enacted, that in case a wife, after the death of her husband, shall alone, or with any after-taken husband, alien with warranty any lands which she holds in dower, or of which she is seised in tail, of the gift of her former husband, or of any of his ancestors, such ' warranty shall be void. Stat. 4 Ann. c. 16. Vide Tit. 35. c. 9. How War 45. By the statute 4 Ann. c. 16. § 21. it is enacted, that all warranties made after the first day of Trinity term 1706, by any tenant for life, of any lands, tenements, or hereditaments, the same descending or coming to any person in reversion or remainder, shall be void and of none effect. And likewise all collateral warranties which shall be made after the same day, of any lands, tenements, or hereditaments, by any ancestor who has no estate of inheritance in possession in the same, shall be void against his heir. 46. It is observable that this act does not extend to alienations by tenants in tail in possession; and therefore their warranties are not restrained by this act, but have the same effect as they had before. 47. A warranty, whether lineal or collateral, may ranties may be defeated, determined, or avoided, in all or in part. be destroyed. And this is sometimes by matter in law, and sometimes by matter in deed. Touch. 201. Lit. § 745. 747. 1 Inst. 391 b: 48. Thus if the estate to which the warranty is annexed be gone, the warranty is gone also; and therefore if an estate tail, to which a warranty is annexed, be spent, the warranty is determined. 49. So a warranty may be destroyed by the attainder of the warrantor. Thus if tenant in tail is disseised, |