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234

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Co. L. 376. b.
Plo. 445. b.
2 Ro. 746.

Next he hath divided and changed the estate. Then he hath done this by common recovery, by which they that come in are in the post.

Again, he hath vouched Osborn once already in that common recovery, and so hath had recompense, or possibility of it, by judgment.

This point is to be understood if the voucher of Osborn, as is already alleged, shall be understood of the same Osborn, because it wants the word prædict.

But if it shall not be understood the same, then it will come to this question. If a man have divers warranties against divers persons, and then, in an action brought against him, voucheth one and omits the other, and so a recovery passeth with a judgment of value, whether he can ever have benefit of the other warranty.

And upon this will arise a question by way of distinction, whether this will be all one, whether the recovery is upon title, and where it is a common recovery, and under what differences. And first, in general, which is a kind of key to the particulars that shall follow, I observe, that a warranty is a great servitude upon him that warrants, and upon his estate, and is a servitude against common right, and hangs like a cloud over him and his inheritance, as Hannibal said of Fabius Maximus, so it is in law taken strictly and literally.

And therefore if a man convey land with warranty against him and his heirs, his heir on the part of the mother shall not be vouched by this, as long as there is an heir on the part of the father; 19 R. 2. ff. Garr. 100; 49 E. 3. 11; except it be by reason of a signiory of lands of the part of the mother. 5 E. 2. Fitz. Avowry 207. And if he that warranted have no lands but gavelkind, yet the tenant may vouch the very heir alone; 38 E. 3. Charge of heirs 22; but it is true, that he may vouch also the other heirs may vouch, together with the brother, which is heir unto the father warrantor, the sister, who hath the land by possessio fratr.; 32 E. 3. ff. Voucher 94; 42 E. 3. 3. But if the land warranted comes unto a sister by possessio fratris, or to a younger

upon warranty,

or upon obliga- for possession, and so he

tion differ. Co.
L. 376. a. b.
2 Ro. 746.

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brother by borough English or gavelkind, she is without remedy; for she cannot vouch as heir alone, except she comes in as vouchee for possession with the very heir. 32 E. 3. Fitz. Voucher 94, and 35 H. 6. 33. Yet note, 2 Cro. 218. Co. that if a man bind himself and his heirs in an obligation, and leaves land at common law and land in gavelkind, Co. L. 102. b. the creditors must sue all the heirs. 11 E. 3. F. Debt. 7.

225. b. Co. 3. a. 1 Inst. 376. b. Co. 3. 52. b.

Yel. 56.

Apr. 287.

11 Hen. 7. 12. And so in that case, if he have one heir on the part of the father, and another heir on the part of the mother, and both have land by descent, he shall have several actions, and executions shall cease till he may take it against both; so it appears that the construction 2 Cro. 218. of law is stricter where the heir is charged with warranty real, than where he is charged with a chattel. Upon the same reason the case is adjudged 18 H. 3. ff. Voucher 281. and 23 E. 2. ff. Gar. 77. If a man grant a signiory with Inst. 392. t. warranty, and the lands escheats, the warranty is utterly lost, and not only for the over value, though it come by act in law; for the book of 23 E. 3. says, that a covenant shall be taken strict. (per Welby); and that the warranty is lost is adjudged 18 H. 3.

2 Ro. 742.

the lands. Apr.

193. b. 4 Le.

251.

6

Now to the first objection, that the demandant hath To the first objection, viz. divided the land by his own act, viz. the recovery after the dividing of the warranty created. It is to be observed, that the war- 235. Co. L. ranty must remain entire as it was created, without the 385. a. 187. a. voluntary division of the party. And therefore if land be given to two jointly with warranty, if the one made a feoffment of his part, he hath lost his warranty, but the other may vouch for his moiety; but if they make partition, both have lost it by the common law. And if the Co. 12, 13. warranty were to the joint tenants and their assigns, the 187. a. assignment must also be joint. 29 E. 3. ff. Garr. 70. 11 E. 4. 8. Coke lib. 4. fol. 36, Terringham's case. If a Co. L. 122. a. man have a common appendant in forty acres, belonging unto twenty acres, if he sell ten of his acres, or buy part of the forty acres, the common may be divided and apportioned pro rata; but if it be a common appu because it is against common right, it is lost.

Mo. 203. Co.L.

enant, Apr. 235. Hutt. 58. 8 Co. Wyat Wild's case.

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To the second objection, viz. the changing of

the estate. Co.

L. 193. b. 185.

a. b. Co. 3.6. a.

b. 5 Co. 6. b.

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If a man have a rent charge granted of twenty pounds a year, and he grant five pounds a year of it to a stranger by fine, the tenant is not compelled to attorn.

. So in these, and the like cases against common right, I must not be made subject to divers vouchers, or suits of warranties of charters, or to sundry distresses, where my grant made and meant but one.

worse;

Now secondly, where he hath changed his estate, the case is for the estate must remain the same in the privity, or must be made the same in representation, that it was in the time of the warranty created, when you come to vouch, or to bring your warrantia charta; and therefore, if the husband and wife be joint tenants, and a release be made to them with warranty, and then the husband alone makes a feoffment over with warranty, and is thereupon vouched alone, he cannot vouch over. 3. 52. Fitz. Counterplea of Warranty, 15.

10 E.

So if a woman, tenant in tail, and her husband make a lease pour auter vie, if in an action they be received, they cannot vouch over. 45 E. 3. 18, and 46 E. 3. 24. But if the lease had been only for the life of the woman, upon the receipt they might have vouched, for by representation they are in of the first estate.

As when lands and warranties descend to two parceners, and they make partition, and one of them is impleaded, he shall not vouch alone, but shall pray aid of his fellow, and so shall put themselves in representation of one heir, and then vouch together. But if one parcener alien his part, or make default upon aid prayed, the other shall vouch alone. 27 H. 8. 58. 4 H. 7. 20 H. 6. 2. and 43 E. 3. 23.

If two coparceners be, and one of them alien with warranty, and comes in as vouchee, now he shall pray in aid of his fellow, and either have pro rata upon the loss, or vouch over with him upon the warranty paramount.

But note in these cases, that the vouchee (when he will avoid the warranty by change of estate), he must show how the estate is changed. 3 E. 3. 51. And so hath the defendant done here in the principal case.

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Apr. 480.

And as this case is here, it is yet more dangerous to the defendant; for though it be true, that if a man enter into a warranty general, he shall warrant no other estate than the tenant hath, (44 E. 3. 39; 41 E. 3. 7;) where the vouchee demands not the lien, nor the tenant makes not any special declaration of it, as in the warranty of charters he doth; yet special circumstances may work the contrary. And therefore, (41 E. 3. 25,) if the vouchee en- Co. L. 126. a. ter with a protestation of an especial estate in the tenant, who admits it, the vouchee shall warrant no other estate, though it be greater.

So likewise if the tenant prayeth warranty of an estate certain, and the vouchee admits it, he shall make that

good, though the estate in truth be less; and therefore, Co. L. 387. a. (38 E. 3. 9. 14,) if one hold land only for term of his life, and I warrant the land to him and his heirs, if I show this upon the voucher, he shall recover but for life. But if the deed be entered, and I except not to it, (Brook, Recovery in Value, 8,) I shall answer fee simple.

Much more plainly here in the principal case, where the declaration is expressly upon a fine, and warranty in fee simple truly, upon which he demands judgment accordingly for a warranty of fee; so that if there were nothing else, this alone were cause to bar this action, since in truth he hath but an estate for life. And yet if the defendant should yield to his demand, he should answer fee simple; and if judgment should have passed according to the declaration in this case, and execution should have been after sued upon it, it had been then too late to have pleaded this, which he should have pleaded before in the former action. 21 H. 6. 41, and 22 H. 6. 22. F. Garr. Char. If a disseisor in an action brought against him, vouch, or make request to have a plea ministered unto him, or bring a writ of warrantia charta, and then after that the disseisee enter upon him and put him out, and he reenter, so that he is in of another estate than was warranted, yet he shall recover. But otherwise it would have been, if the entry of the disseisee had been before the voucher's request and writ; for then the vou

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Deut. 4.

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To the third objection, viz.

chee or defendant might have showed, that he had been in of another estate at the time of the voucher and writ. Out of which case cited and allowed by F. Na. br. in this writ de warrantia charta, I am clear of opinion, that if a man have land conveyed unto him with warranty, whereupon a stranger hath right to enter, and he bring his writ of warranty of charters, and hath judgment, though the stranger after brings no action, but enters, he shall have his execution; for a voucher and request of plea are required where they may be had. But in case of entry it may not be, and the warranty is against all eviction by eigne title, either by entry or by action; which I note to warn men how they proceed against an ejectione firma, where no voucher, nor request for plea can be had; for if a man, foreseeing that his title is defensible by entry, bring this writ of warranty of charters against his feoffor, and hath judgment, and if the stranger, that hath right of entry, seal this lease, this entry gives cause of recompense, but let him look that he bring his action in time.

The next is, because the plaintiff and his father, who is the last rem. in fee, and the rest, come in by recovery in the post, in which case they can take no benefit of the warranty, which can be extended no further, than as it is the doing it by limited, that is, either to the parties or their heirs or ascovery. 2 Cro. signs, and he that recovers is neither; but above that estate, and where one comes under the estate, yet if he be not in the per by him, to whom the warranty was made, he is out of the benefit.

common re

370. Co. L.

117.

3 Co. 62. a. 63. a. 5. Co. 17. a. 1 Co. 125. a.

And therefore, 22 Ass. 37. and 22 Ass. 69. If tenant in dower enfeoff a villain with warranty, and die, and then the lord enter and be impleaded, he cannot vouch the heir of tenant in dower; and if the lord had then en3 Co. 63. b. 1 tered before the death of the tenant in dower, that made warranty, and then she had died, the lord could not so much as rebut the heir.

Cr. 371. Mod.

193.

Mo. 71.

But because this is a common recovery, I will enlarge myself a little in it for learning's sake and for use, though it makes not directly for the case.

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