1. The premises may be used to set forth the number and premises; names of the parties, with their additions or titles. They also contain the recital, if any, of such deeds, agreements, or matters of fact, as are necessary to explain the reasons upon which the present transaction is founded; and herein also is set down the consideration upon which the deed is made. And then follows the certainty of the grantor, grantee, and thing granted (p). tenendum; 2, 3. Next come the habendum and tenendum (q). The habendum and office of the habendum is properly to determine what estate or interest is granted by the deed: though this may be performed, and sometimes is performed, in the premises. In which case the habendum may lessen, enlarge, explain, or qualify, but not totally contradict or be repugnant to the estate granted in the premises. As, if a grant be “to A. and "the heirs of his body," in the premises, habendum "to "him and his heirs for ever," or vice versâ ; here A. has an estate-tail, and a fee-simple expectant thereon (r). But, had it been in the premises "to him and his heirs," habendum" to him for life," the habendum would be utterly void (s); for an estate of inheritance is vested in him before the habendum comes, and shall not afterwards be taken away or devested by it. The tenendum," and to hold," is now of very little use, and is only kept in by custom. It was sometimes formerly used to signify the tenure by which the [299 ] estate granted was to be holden; viz. "tenendum per servi“tium militare, in burgagio, in libero socagio, &c." But, all these being now reduced to free and common socage, the tenure is never specified. Before the statute of quia emptores, 18 Edw. I., it was also sometimes used to denote the lord of whom the land should be holden: but that statute directing all future purchasors to hold, not of the immediate grantor, but of the chief lord of the fee, this use of the tenendum hath been also antiquated; though for a long time. after we find it mentioned in ancient charters, that the tenements shall be holden de capitalibus dominis feodi (t); but as this expressed nothing more than the statute had already provided for, it gradually grew out of use. (p) See Appendix, No. II. s. 2, pag. v. (r) Co. Litt. 21; 2 Roll. Rep. 19, VOL. II. 23; Cro. Jac. 476. (s) 2 Rep. 23; 8 Rep. 56. (t) Appendix, No. I. Madox. For. mul. passim. HH reddendum; condition; 4. Next follow the terms of stipulation, if any, upon which the grant is made: the first of which is the reddendum or reservation, whereby the grantor doth create or reserve some new thing to himself out of what he had before granted, as rendering therefore yearly the sum of ten shillings, or a pepper corn, or two days' ploughing, or the like (u).” Under the pure feodal system, this render, reditus, return, or rent, consisted in chivalry principally of military services; in villenage, of the most slavish offices; and in socage, it usually consists of money, though it may still consist of services, or of any other certain profit (w). To make a reddendum good, if it be of any thing newly created by the deed, the reservation must be to the grantors, or some, or one of them, and not to any stranger to the deed (x). But if it be of ancient services or the like, annexed to the land, then the reservation may be to the lord of the fee (y). 5. Another of the terms upon which a grant may be made is a condition; which is a clause of contingency, on the happening of which the estate granted may be defeated (5) ; as "provided always, that if the mortgagor shall pay the mor[300] "gagee *5007. upon such a day, the whole estate granted "shall determine;" and the like (2). warranty; 6. Next may follow the clause of warranty; whereby the grantor doth, for himself and his heirs, warrant and secure to the grantee the estate so granted (a). By the feodal constitution, if the vassal's title to enjoy the feud was disputed, he might vouch, or call the lord or donor, to warrant or insure his gift; which if he failed to do, and the vassal was evicted, the lord was bound to give him another feud of equal value in recompence (b). And so, by our ancient law, if before the statute of quia emptores a man enfeoffed another in fee, by the feodal verb dedi, to hold of himself and his heirs by certain services; the law annexed a warranty (6) to this grant, which bound the feoffor and his heirs, to whom the services (which were the consideration and equivalent for (u) Appendix, No. II. s. 1, pag. iii. (x) Plowd. 13; 8 Rep. 71. (5) See ante, chapter 10, pp. 152— 162, and the notes thereto. (z) Appendix, No. II. s. 2, pag. viii. (a) Ibid. No. I. pag. i. (b) Feud. 1. 2, t. 8 & 25. (6) See ante, p. 53, note. the gift) were originally stipulated to be rendered (c). Or if a man and his ancestors had immemorially holden land of another and his ancestors by the service of homage, (which was called homage auncestrel,) this also bound the lord to warranty (d); the homage being an evidence of such a feodal grant. And, upon a similar principle, in case, after a partition (7) or exchange of lands of inheritance, either party or his heirs be evicted of his share, the other and his heirs are bound to warranty (e), because they enjoy the equivalent. And so, even at this day, upon a gift in tail or lease for life, rendering rent, the donor or lessor and his heirs (to whom the rent is payable) are bound to warrant the title (ƒ). But, in a feoffment in fee, by the verb dedi, since the statute of quia emptores, the feoffor only is bound to the implied warranty, and not his heirs (g); because it is a mere personal contract on the part of the feoffor, the tenure (and of course the ancient services) resulting back to the superior (c) Co. Litt. 384. (7) See ante, p. 185, note, and the corrigenda et addenda prefixed to this volume, as to the course of proceedings for effecting a partition. Every partition between coparceners has annexed to it a warranty in law; (1 Instit. 173 b;) though, in other deeds of partition, it seems there is no implied warranty, and therefore mutual covenants for title ought never to be omitted therein. But in every exchange, both a condition and a warranty are tacitly implied; a condition of re-entry, and a warranty of voucher and recompence. Such warranty, however, is special; and upon voucher by force of it, a man shall not recover other land in value, but that only which was given by him in exchange. And this warranty implied by law runs only in privity; for none shall vouch by force of it but the parties to the exchange or their heirs, and no assignee. (Bustard's case, 4 Rep. 121; Provost of Eton v. Bishop of Winches (f) Co. Litt. 384. ter, 3 Wils. 490, 496.) The transactions of partition, and of exchange approximate to each other, and have some things in common, but they have many points of difference : the rule as to warranty, we have seen, is not precisely the same in both cases on a partition, each party has what was previously his own land, though he acquires a different interest in it; on an exchange, the land to which each party had previous title is parted with, and new lands acquired: a partition may be enforced, an exchange is always a voluntary act a mere partition does not revoke a previous devise of the undivided interest, an exchange always operates a revocation; or rather a will made before the exchange cannot dispose of the land received in exchange. (Attorney General v. Hamilton, 1 Mad. 223; M'Queen v. Farquhar, 11 Ves. 476: Attorney General v. Vigor, 8 Ves. 281.) lord of the fee. And in other forms of alienation, gradually [ *301] introduced since that statute, *no warranty whatsoever is implied (h); they bearing no sort of analogy to the original feodal donation. And therefore in such cases it became necessary to add an express clause of warranty to bind the grantor and his heirs; which is a kind of covenant. real, and can only be created by the verb warrantizo or warrant (i). Effect of the clause of warranty in a conveyance. These express warranties were introduced, even prior to the statute of quia emptores, in order to evade the strictness of the feodal doctrine of non-alienation without the consent of the heir. For, though he, at the death of his ancestor, might have entered on any tenements that were aliened without his concurrence, yet if a clause of warranty was added to the ancestor's grant, this covenant descending upon the heir insured the grantee; not so much by confirming his title, as by obliging such heir to yield him a recompence in lands of equal value: the law, in favour of alienations, supposing that no ancestor would wantonly disinherit his next of blood (k); and therefore presuming that he had received a valuable consideration, either in land, or in money which had purchased land, and that this equivalent descended to the heir together with the ancestor's warranty. So that when either an ancestor, being the rightful tenant of the freehold, conveyed the land to a stranger and his heirs, or released the right in fee-simple to one who was already in possession, and superadded a warranty to his deed, it was held that such warranty not only bound the warrantor himself to protect and assure the title of the warrantee, but it also bound his heir: and this, whether that warranty was lineal or collateral to the title of the land. ranty was, where the heir derived, or might by possibility have derived, his title to the land warranted, either from or through the ancestor who made the warranty: as where a father or an elder son in the life of the father, released to the disseisor of either themselves or the grandfather, with Collateral war warranty, this was lineal to the younger son (1). Collateral warranty was where the heir's title to the land neither was, [302] nor could have been, derived from the warranting ances Lineal warranty. ranty. (h) Co. Litt. 102, (i) Litt. s. 733, Lineal war (*) Co. Litt. 373. tor (8); as where a younger brother released to his father's disseisor, with warranty, this was collateral to the elder brother (m). But where the very conveyance to which the warranty was annexed immediately followed a disseisin, or operated itself as such, (as, where a father tenant for years with remainder to his son in fee, aliened in fee-simple with warranty,) this, being in its original manifestly founded on the tort or wrong of the warrantor himself, was called a warranty, commencing by disseisin; and being too palpably injurious to be supported, was not binding upon any heir of such tortious warrantor (n). the warranty In both lineal and collateral warranty, the obligation of Obligation of the heir (in case the warrantee was evicted, to yield him on the heir. other lands in their stead) was only on condition that he had other sufficient lands by descent from the warranting ancestor (o). But though without assets, he was not bound (8) The whole doctrine of collateral warranty seems repugnant to plain unsophisticated reason and justice; and even its technical grounds are so obscure, that the ablest legal writers are not agreed upon the subject. Sir Martin Wright, (in his Law of Tenures, 168,) gives the following account of the matter. "A tenant could not, either by the feudal or common law, alien a fee that was not of his own acquisition, that is to say, a fee that was not originally conferred upon himself, but that came to him by descent, without the consent of the heir, qui proximus erat in successione collaterali; for, though the law trusted an ancestor with the interest of his own immediate descendants, yet, he could not prejudice the next collateral, 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 hints the foundation, and partly suggests the reason, of collateral warranty; though it is not easy to be conceived how it came to pass, that the concurrence or sim (0) Co. Litt. 102. ple consent of the next collateral, Chief Baron Gilbert, (in his Treat. Since this note was first published, it has been enacted by stat. 3 & 4 Gul. IV. c. 74, s. 14, that estates tail, and estates expectant thereon, shall no longer be barrable by warranty, but by simpler means. |