[20 a] which passes the land whereto the warranty is annexed; or if the right be released or confirmation made with warranty, the releasee must be tenant; and it is a good plea that nothing passed by the deed, or that the releasee had nothing in the land at the time of the release made.-3d. The writ must be brought either before, or pending the principal plea, or at least before execution.-4th. It must specially set forth the warranty and lien, but it need not be so special as the dereigning of the warranty in the case of voucher. Warrantia chartæ will lie in all actions real, whether voucher or rebutter lie in those actions or not; and it will lie even after voucher. It binds the land from the teste of the writ, though the plaintiff cannot have execution till he takes loss. The plaintiff can recover damages, only when land and damages or land alone have been recovered against him, and not when damages alone have been recovered. A fine and recovery, which is a record, must be pleaded entire; but a feoffment may be pleaded for parcel of the land only. (1) A warranty may be extinguished by refeoffment to the warrantor; and though it seem literally entire, it may be divided by act of the party and construction of law. It is a great servitude upon the warrantor and his estate, against common right, and must be taken strictly and literally. If a man convey land with warranty against him and his heirs, the heir on the part of the mother cannot be vouched so long as there is an heir on the part of the father, unless by reason of a seignory of lands on the part of the mother; and if the warrantor have no lands but gavelkind the tenant may vouch the heir at common law alone, or the other heirs for possession. A warranty annexed to a seignory is lost by escheat of the land. If a warranty be made to two jointenants and one make a feoffment of his part, he loses his warranty, but the other may vouch for his part; if they make partition, both lose it by the common law; if made to two jointenants and their assigns, it extends only to a joint assignment. If the tenant make any change in the estate to which the warranty is annexed, he cannot vouch or have warrantia chartæ. If a stranger who has right of entry, enter without action brought, after judgment in warrantia charta, the plaintiff may have execution. If a man enter into a general warranty, yet he is bound to warrant only such esstate as the tenant has; but if the tenant prays warranty of a certain estate, e. g. a fee simple, and the vouchee admits it, he must make it good, though it was, in truth, but a less estate. A warranty annexed to the freehold may be sued as a personal covenant for the recovery of damages, when the feoffee's title is impeached only by a term for years, upon which neither voucher nor warrantia chartæ lies. If a feoffee recovers judgment on a warrantia chartæ, and a stranger afterwards recovers against him an estate for life, the feoffee shall have execution for recompense for that estate; and so several executions successively for any other estates less than fee simple. But if a fee simple is once recovered and recompense had, the warranty is satisfied and so extinct. If a man have several warranties of the same land, he cannot take advantage, by way of voucher, of both, but must rely upon one, and cannot afterwards resort to the other; but he may have several writs of warrantia chartæ and judgment upon them; and if he afterwards lose the land by entry without action upon an eigne title, he may have several executions on those judgments and full recompense upon each. (1) 5 Mass. 516, Smith v. Drew, acc. If a feoffee be sued in an action where he cannot vouch but may require plea, and his warrantors advise the same plea and he plead it and fail, he may have remedy against either; but if they advise different pleas, he can have recompense only of him whose plea he followed. [20 b] Trin. 9. Jac. R. Leo. 250. Mes 839. 1 Co. 2 Plo. 333, 411, The learning warranties gen Judgment was defendant. of Hobart Sir HENRY ROLL the younger, knight, brought a war- 2205. Winch's rantia charta against Sir Robert Osborn and Margaret his Ent. 11, 27, 4 wife, that they should warrant unto him one messuage, me Ca. Mo. forty acres of meadow, and seven hundred acres of pas- Brownl. 169. ture in Kill-March, and declared that Robert Osborn, 325. b. Margaret, and one John Gobert did levy a fine, anno 2 of the of warrantia king, unto the said Henry Roll of the said tenements, inter charta, and of alia, by the name of the manor of Kill-March, and divers eral at large. other quantities of lands; and by that fine Robert Osborn given for the and Margaret did grant for them and the heirs of Robert, Note, the case reported here that they should warrant the manor and the other prem- is the argument ises to the said Henry and his heirs, against him and his Chief Justice heirs, and against all men; which fine, as to the messuage in this case, and lands in question, was to the use of Henry Roll and divers points his heirs; and then shews, that he being so seized, Ralph Perne did implead him by writ of entrie sur dissei- that cometh insin in le per, in the Common Pleas, for the house and shall never lands in question, (but doth not tell otherwise when); hang- tia charta. 29 ing which plea, Henry Roll required the said Robert and Ass. 34. The Margaret to warrant unto him the said messuage and comes in by lands in question, or to minister unto him a plea in bar of 6. A disseisin, the said action, which to do they refused, to his damage 10 H. 7. 10. of one hundred pounds. only. But yet were resolved one by the justices. 1. That he to an estate have a warran lord who escheat. 21 H. 19 H. 6. 25. & Tenant by the curtesie made a warrantia charta. 2. art. That the warrantia said lie in this case, es charte did not because by the recoveror Sir Henry Roll's was in of an other estate; and a warranty To this the defendant pleaded, confessing the fine, warranty and use, but further saith, that Herry Roll being seized of the tenements in question by force of the fine, that one William Gibbs and Thomas Stephens, quires, before the purchase of this writ of warrantia chartæ, scilicet the seventh day of November in the second year of the king, did sue a writ of entry in the post, against lieth only upon the said Henry Roll, of the said messuage and land in tinued, and not question, inter alia per nomina maneriorm Kill-Marsn &c. it was resolved retor. xv. Martini. At which day the demandants, and R. in Kemp the said Henry Roll, ad tunc tenens liber tent. manerio- ham's case, and rum, &c. existens, did åppear. And the writ was return- 41 Eliz. Bained, and the demandants declared, and demanded all the ter's case, an estate con altered; and so 34 Eliz. in B. and Henning ton & Ches [20 c] 859. &c. manors, &c. And Henry Roll the tenant called to warranty Robert Osborn, knight, without saying præd. RobV. Moor's Rep. ert Osborn, and he the common vouchee. And so the recovery passed, and a writ of seisin of all the manors, &c. And that the same recovery, as to the messuage and lands in question, was to the use of Sir Henry Roll for his life, and after his decease, if a marriage should be had between him and one Katharine Haselwood, then to the use of her for life, and after to the use of any other woman that he should marry, and then to the use of the first son of his body by Katharine Haselwood, and so to the tenth, one after another, and then to the use of such person as should be heir male, of the body of the said Henry Roll, and the heirs males of his body, and after to the use of Henry Roll, father of the said Henry the plaintiff; and avers, that Henry the plaintiff is yet alive, and so demands judgment of the action; and the plaintiff thereupon demurs in law, and so the demurrer is joined. Bract. tr. de warran. chartæ cap. ult. [21] Bracton. I will handle this case so, as besides the points concluding, I will by the way discuss all incidents to a writ of warranty of charters. The case is rare and of importance; for a suit is pugna civilis, whereof Bracton speaks prettily, Tractatu de warrantiis charta, capitulo ultimo. Sicut actores armantur actionibus et quasi gladiis accinguntur, ita res muniuntur exceptionibus et defenduntur quasi clypeis. The writ of warranty of charters, as to the fixing of the warranty, and binding the possession of the warrantor, is either provisional or remedial. The first is in case of fear and provision. The second in case of loss already suffered, and to be recompensed by value per excambium, as Bracton speaks. I hold therefore first, that nothing appears in the count in the principal cause, but that the plaintiff ought to have judgment. I hold again, that upon the bar confessed by the plaintiff's demurrer, judgment is to be given against the plaintiff. A writ and count in a warrantia charte must have four [21 a] points complete in them, that is to say, First, he that brings it must be tenant of the land the Point 1. day of the writ purchased. It must be by a conveyance, whereby the land, where- Point 2. unto the warranty is annexed, must pass, or at least, if right be released, or confirmation made with warranty, he must be tenant of the land, to whom it is made in warranty. This writ must be brought hanging the principal plea. It must contain the specialty of the warranty and lien. All these parts this writ and count doth contain; and yet, being these rules receive distinctions, I will explain them, that it may appear how they stand with their distinctions.. And as to the first point. Point 3. The plaintiff is made tenant of the land in demesne; Explanation of for of that there hath been great question, whether the the first point. vouchee or defendant in the warrantia charte, that hath 4 Le. 223, 3417. a warranty over, may have a warrantia charta; whereof I make the resolution upon all the books thus. That it is a 2 Ro. 810. good plea in the warrantia charta, that the plaintiff was not tenant of the land the day of the writ purchased; and so are the books of the 24 E. 3. 25. 7 E. 4. 12. & 17 E. 3. 44. 16 H. 3. F. Garrantie des Charters 29. Bracton tractatu de warrantiis charta 18. Thus in warrantia charta, defendens potest excipere quod querens non tenet terram, de qua petit warrantiam. But it seems to be a plea but prima facie, for it is allowed also 7 H. 4. 18. And yet it is concluded that the vouchee may have the writ, when he cannot vouch, even as a second or third mean lord may have a writ of mesne, as well as the tenant in demesne, and so 3 E. 3. Fitz. Warrantia Charta 4. the defendant pleaded, that the plaintiff was not tenant the day of the writ, and issue upon it. But Fitz. abridging the case saith, that if he had pleaded himself tenant by voucher, the day of the writ purchased, it would have served; and 31 E. 3. Fitz. Warrantia Chartæ 22. In fine, Burton saith, that the defendant in warrantia charta shall have a writ of warranty of charters over 2 Ro. 810. 2 Ro. 810 [21 b] hanging the writ against him; and reason and justice requires it, since this writ is supplementary in place of voucher, where that cannot be had; therefore is this writ as well to be allowed after alienation, as voucher is allowed; for alienation cannot be imputed unto folly; for as a man may vouch, coming in as vouchee, so this writ, as it is in nature of a voucher, is equally to be allowed. And therefore 41 E. 3. 7. If the tenant by the curtesie grant his estate with warranty unto I. S. and comes in as vouchee, he shall have aid of him in reversion, as if he were tenant in possession. And 43 E. 3. 23. If a copartner make a feoffment with warranty, and comes in as a vouchee, he shall be able to dereign the warranty paramount, as if he were in possession; but where it hath been said, that upon a release or confirmation with warranty, a man cannot vouch, and therefore he shall have a warranty of charters; 12 H. 7. 12. Co. L. 174. a. 2 Ro. 809, 744. Mo. 860. [22] 2 Inst. 245. Explanation of Godb. 151. N. It is clear, as to him that warranted, he may. 4 E. 2. Fitz. Voucher, 244. & 1 H. 4. 19. 38 E. 3. 13. But the cause may be so, as the demandant may counterplea the voucher, and then the tenant is driven to his warranty of charters, for default of his voucher in deed. And so the book 12 H. 7. is in that sense true; for if the defendant should vouch, as he may, against the warrantor, and be counter-pleaded by the demandant, truly he should lose his land and the aid of voucher too; for he were passed the requiring of a new plea of the warrantor, when he had been, by the voucher, counter-pleaded before. As to the second point, see 24 E. 3. 35. where the plaintiff in warranty of charters counted, that the defendant infeoffed him by the charter with warranty, the defendant pleaded riens passa per le fait. And Bracton tractatu de warrantia, cap. 9. sec. 5. Excipere potest warrantus quod licet charta de feoffamento sufficiens fuit, tamen donum fuit insufficiens, quia donatus nunquam habuit seisinam in vita donatoris, sed post mortem suam intrusit. Also 44 E. Fitz. Garr. Char. 18. upon a release with warranty pleaded, that the party, to whom the lease was made, had nothing at the time of the release made. |