V. 6. But if the reader should be of opinion that the estates which, if the third construction is admitted, will be created by the testator's will, are such as the law allows, still there will remain a formidable objection to the admission of that construction. It will appear, that by a series of adjudications, from the 18 Ed. II. to the case of Coulson v. Coulson, 17 Geo. II. inclusively, devises of the nature in question have been construed to vest the inheritance in the ancestor. Admitting therefore that the reason or foundation of the construction in question is not now discoverable, there still is great reason to contend that it is binding on the courts. This is by no means peculiar to -the rule in Shelley's case. There are many other rules of construction received by the courts, which are arbitrary, and some of them not reconcileable to plain reason. Still, being adopted as rules of construction, the courts (sometimes even with an avowed reluctance) consider themselves to be bound to submit to them.

VI. It remains to observe, that the suggestions here submitted to the reader, are intended to apply only to the devises of legal estates, and to those devises only in which the argument to except them from the rule in Shelley's case depends at the most on the two following circumstances: 1st, that it evidently appears to be the testator's intention to give the ancestor an estate for his life only: and 2dly, that it also evidently appears to be his intention that the heirs of his body should take by purchase. If the testator's intention appears to be to give the ancestor an estate for life only, and to give an estate by purchase to the heirs of his body; and if, besides this, his intention is, that by the devise to the heirs the inheritance should vest in that individual heir who, at the time of the decease of the tenant for life, shall be the heir of his body, and the heirs of the body of that person, and that the devise should reach no farther; or his intention is, that the inheritance should descend upon the sons of the tenant for life successively in tail, with or without remainders to the daughters; and this ulterior intention appears from any other part of the will, either by plain declaration, or clear implication; then, as there is nothing unlawful in this disposition of his property, there is no rule of law or equity that stands in the way of such construction.-But this ulterior construction is not to be implied from the mere circumstances of an estate for life only being given to the ancestor, and its appearing either by express words or implication, that it was the testator's intention to give an estate by purchase to the heirs. It may be said this brings the matter to as much uncertainty as attended it before: but surely that is not the case. Numberless as the cases respecting the point in question are, there are few indeed, in which any ground for this ulterior construction of the words, "heirs of the body," occurs. See those cited by Mr. justice Blackstone in Mr. Hargrave's Tracts, 505, 506.

Since the first publication of this note, all the fearning respecting this celebrated rule of law, particularly with a view to its application to decided cases, and to those which occur, or are likely to occur on it, in practice, has been ably collected and arranged by Mr. Preston, in his Succinct View of the Rule in Shelley's Case.- [Butler, note 329.]

NOTE V.

(Page 245 of this volume.)

The doctrine of warranty was formerly one of the most interesting and useful articles of legal learning; but the effect and operation of warranties having, by repeated acts of the legislature, been reduced to a very narrow compass, it is become in most respects a matter of speculation rather than of

use.

In some instances, however, warranties have still a powerful influence on our landed property; and there is no part of our jurisprudence to which the ancient writers have more frequently recourse to explain and illustrate their legal doctrines. Hence abstruse, and in most respects obsolete, as the learning respecting it unquestionably is, it continues to deserve the attention of every person who wishes to obtain accurate notions of those branches of our laws, which are more immediately connected with the doctrines that respect the alienation of landed property.

In the civil law warranty is defined, the obligation of the seller to put a stop to the eviction, and other troubles which the buyer suffers, in the property purchased. Eviction is defined to be the loss which the buyer suffers, either of the whole thing that is sold, or of a part of it, by reason of the

:

right which a third person has to it. The other troubles are those which. without touching the property of the thing sold, diminish the right of the purchaser; as if any one pretends a right to the usuf uct of the lands sold, to a rent issuing out of them, to a service, or any other thing of the like nature. The buyer being thus evicted or troubled in his possession, tas tus recourse to the seller to warrant him. This warranty is either in lase, being that security which every seller is bound to give for maintaining the buyer in the free possession and enjoyment of the thing sold, although the sale makes no mention of it; or in deed, being that kind of particular or conventionary warranty, which the seller and buyer regulate among themselves. See Domat. 1. 1. tit. 2. § 10. By the practice of the Roman law, the buyer might, immediately after the eviction or trouble, give notice of it to the seller, who then, if he thought proper, might make himself a party to the action, and defend it; but till the sentence was pronounced, the buyer coald not bring his action of warranty against the seller; and the action was brought before the judge of the place in which the seller was domiciliated. But the practice is different in the courts of law in France. There the buyer, when he gives notice of the action to the seller, may bring his action of warranty against him before the judge, before whom the original action is brought; and if he cannot defend the action, the judge condemns him to indemnify the seller, by the same sentence by which he pronounces in favour of the plaintiff in the original cause. See Pothier Trate des Contracts de Vente, partie 2. c. 1. sect. 2. art. 5. § 2. The first warrantor may call upon another to warranty; he in the same manner may call upon a third. But to prevent the delays which must unavoidably ensue from multiplying warranties, a fourth warrantor is not permitted to intervene, except in particular circumstances. The degrees also must be observed. Each person must vouch his own immediate warrantor, as it is not lawful for him to vouch any of the ulterior warrantors. After the warrantor has entered inte the warranty, the person warranted may either proceed in his defence jointly with the warrantor, or leave the cause to him solely. The sentence binds them both equally. If the person against whom the action is brought be evicted or troubled in his possession by the sentence of the judge, he has a claim upon the warrantor for a complete indemnification. Sometimes the precise sum to be paid by way of indemnity is fixed and agreed to by the parties upon the making of the contract; but penal obligations of this nature are greatly discountenanced by the laws of France. It is always in the breast of the judge to moderate or increase them; but they cannot be increased either by the express contract of the parties, or the equity of the judge, to more than double of the property evicted. See Traité des Erictions et de la Garantie Formelle, par Mons. Berthelot, 2 vol. oct. Paris,

1781.

The warranty treated of by Littleton in this Chapter is evidently of feudal extraction, being derived from the obligation which the lord was under, by that system of polity, to defend his tenant's title to the land against all claimants. If the tenant was evicted, the lord was bound to make him a recompense, by giving him lands of equal value to those evicted from him. The doctrine and practice of warranty, in the early ages of the feudal law, is thus set forth in the book of the Fiefs, tit. 25. It is there stated that a vassal held a fief from the lord, and being disturbed in his possession of it, called upon the lord to defend him. The lord refused to appear before the judge, by which the vassal lost his cause. The vassal thereupon demanded a recompense from the lord. The lord said in answer that the vassal never held the fief, nor received the investiture of it from him. The vassal replied, that he held the fief from the lord, and had been invested with it by him; that he had called upon the lord to defend the possession on the trial, and that the lord did not then deny the lands being held of him. All this the vossal proved by proper witnesses. Upon this case it was held, that when a vassal is disturbed in the possession of his fief, if he calls on the lord to defend him, and it appears on the trial that the lord invested him with a fief that did not belong to him, the lord is bound either to give him another fief of equal value, or the price of it in money; and that he is bound to do this as soon as it clearly appears that the vassal will be evicted of the fief; but that if the lord denies that the fief is held of him, and that the vassal, or any of his ancestors, were invested with it by him, and the vassal proves those facts, either by an instrument properly authenticated, or by the peers of the court, the lord must give him another fief; or may be put to his oath, that

neither the vassal nor any of his ancestors held the fief from, or were invested with it by him, or any of his ancestors. If the lord does this, he is to be acquitted. --Sir Martin Wright seems to question whether the lord's obligation to protect or defend the fendatory, made him anciently liable upon eviction without any fraud or defect in him to compensate the loss of the fief. He observes, that it can hardly be imagined that while feuds were precarious, and held at the will of the lord, or indeed, that while they were generously given, without price or stipulated render, the lord should be subject to such a loss; especially since it is likely that the lord's obligation upon eviction rather prevailed upon the reason of contracted and improper feuds, than from the nature of a pure original feud, He observes, that none of the ancient feudists make any such distinction, but that all of them suppose the lord's obligation upon eviction to have been general; yet he asserts they must be understood to speak of the times in which they wrote, when improper feuds chiefly prevailed. See Introduc. to the Law of Tenures, pp. 38, 39, 40.-Upon a principle similar to that upon which this distinction is grounded, it seems to have been formerly made a question by the writers on the feudal laws of the German and Italian states, whether investiture alone, without any express promise or undertaking on the part of the lord, entitled the tenant to claim an equivalent from the lord, in case of eviction. Rosentall, a German feudist of great authority, has stated this question, and the authorities upon which the two opposite opinions respecting it are founded. He mentions it to be his own opinion, that investiture alone, without any promise, entitled the tenant to an equivalent; and he says, that the greatest part of those who maintain the opposite opinion, admit that the lord, though he has made no promise, is bound to give an equivalent, if the fief were originally granted for services done; or otherwise, in the way of remuneration. See Rosentall Tractatus et Synopsis totius Juris feudalis, Coll. Allob. 1610. vol. 1. 469, 470.-In a more recent publication, expressly on the subject of gratuitous fiefs, it is held, that the lord is bound to defend the fief and to give the tenant an equivalent, if it is evicted from him. The author states the objection made by sir Martin Wright; and in answer to it observes, that the feudal contract and connexion between the lord and tenant is 'such, as distinguishes it from a voluntary donation, and necessarily includes this obligation upon the lord. See Petri Schultzii Dissertatio de Feudo Gratiæ in Jenichen Thesaurus Juris feudalis, Francofurti ad Manum, tom. 2. 556, 567, 568. It should seem that with us anciently, every kind of homage, when received, but not before, bound the lord to acquittal and warranty; that is, to keep the tenant free from distress, entry, or other molestation, for services due to the lords paramount, and to defend his title to the lands against all others; but that in subsequent times, the implied acquittal and warranty were peculiar to that species of homage which is known by the appellation of homage ancestrel. See ant. 67. b. note 1. In another material quality, the warranty annexed to homage ancestrel differed from express warranty. In the case of express warranty the heir was chargeable only for those lands which he had by descent from the ancestor who created the warranty. But in the case of homage ancestrel the tenant was not driven to recover in value only those lands which the lord had from that ancestor who created the warranty; that would be impossible, as it was essential to homage ancestrel, that the seigniory should have been created before time of memory. It being therefore impossible to ascertain which lands descended from the ancestor who made the grant, the law charged all the lands. See ant. 102. b. But defence and recompense were not the only benefits which the tenant derived from the lord's warranty; it rebutted or repelled the lord from claiming the land itself, or any profit or right from it, but those which under the feudal contract were due to him as lord, according to the fundamental maxim of the doctrine of fiefs, Homagium repellit perquisitum. Such appear to be the outlines of the system of warranty in the early ages of the feudal law. The practice of subinfeudation necessarily occasioned a considerable extension of it. It was totally inhibited by the statute made in the 18th year of Edward I. commonly called the statute quia emptores terrarum. That statute had a particular influence both on the practice and the doctrine of warranty. The free alienation of property which it authorized necessarily put an end to the homage ancestrel, and consequently to the implied warranty annexed to it. To remedy this, if the lord aliened, the tenants, before they attorned to the new lord, required a new warranty from him; if the tenant aliened, it was with an express clause of warranty. This gave the new tenant the benefit of the lord's obligation t warrant the old tenant: as the new tenant might vouch the old tenant, ant he in his turn might deraign the lord. This subject will be pursued, and an attempt will be made to investigate and explain the grounds of the distinction between lineal and collateral warranty, in note 2. 373. b.-[Butler, note 315.]

NOTE VI.

(Page 252 of this volume.)

What is said by sir Edward Coke in this place, and the determination of the judges in Nokes' case, 4 Rep. 80. and lord chief justice Vaughan's argument in Hayes v. Bickerstaff, in his Reports, page 126. should remove the scruples too often entertained on the part of trustees, respecting the propriety of their conveying by the word grant. From the passages here referred to, it most clearly appears, that the word grant, when used in the conveyance of an estate of inheritance, does not imply a warranty; and that if it did, the insertion of any express covenant on the part of the grantor, would qualify and restrain its force and operation within the import and effect of that covenant, as the law, when it appears by express words how far the parties designed the warranty should extend, will not carry it farther by construction. There is therefore no reasonable ground for trustees objecting to convey by the word grant, but serious objections may be raised in some cases to purchasers taking a conveyance from them without it. These are stated in the following passage from Bridgman's Complete Conveyancer, vol. 1. 323.-" Sir Jeffrey Palmer's resolution concerning the words give " and grant in a conveyance. "Sir, I conceive that care ought to be taken " in a conveyance, of what nature soever it be, that there be not therein "give and grant, for they imply a general warranty, and shall not be "qualified by the special warranty following as hath of late been thrice "adjudged. H. T." - Sir Jeffrey Palmer's answer. "Give implies a per"sonal warranty, and so is not always used. The word grant, in a lease " for years, is a covenant in law; or (as you may call it a general war"ranty, if it be not qualified by a covenant or warranty in fait but if "there be a covenant or warranty in fait, then it is restrained to the words " of the covenant subsequent. But in an estate of inheritance where the "fee passeth, there the word grant is neither a covenant in law, nor war

ranty. For if it should be a covenant in law, or warranty in itself, it "would be there restrained and qualified by the warranty and covenants in "fait. And a deed to pass an inheritance where common is cannot be "without it; for if it be common in gross, it cannot pass by the livery, but "must pass the word grant. And I never yet saw a feoffment without "it. Jeffrey Palmer." This dictum of sir Jeffrey Palmer has been sometimes cited to prove that it is not safe for purchasers to take a conveyance by lease and release, or bargain and sale enrolled, if the conveyance be from the trustees, and they do not convey by the word grant. It is said that commons, or advowsons, or other things which be in grant, will not, if they are severed from the inheritance, pass without the word grant. But this is a mistake, and by no means warranted by sir Jeffrey Palmer's dictum, which evidently applies only to conveyances by feoffment; in which case commons in gross, &c. lying in grant would not pass by the livery, and therefore without the word grant, or some other word of a similar operation, would not pass by the charter of feoffment. But in the case of a lease and release, there is no doubt, that any thing which lies in grant will vest in the vendee, by the lease for a year, and that a release without the word grant, would operate by way of enlargement to give the releasee the fee. So in the case of a bargain and sale enrolled, any thing which lies in grant will vest in the bargainee by the statute of uses without the word grant. Upon the whole therefore there is no such peculiar operation in this famous monosyllable, as to make it either dangerous for a trustee to convey by it, or essential for a purchaser to require it. How a covenant shall be expounded with regard to the context, or to synonimous or other words see, Com. Dig. Cov. (D.) Vin. Abr. Covenant (L. 4.)

To explain more fully, what is said above, it may be proper to state at length the operation of the word "grant" or "give," in conveyances of estates in fee simple, in gifts in tail, in leases for life, and in leases for years

1st. As to the operation of the word "grant" or "give," in conveyances of estates in fee simple, it is to be observed, that, till the practice of subinfeudation was abolished by the statute quia emptores terrarum, lands might be granted, either to be held of the grantor himself, or to be held of the chief lord of the fee. When they were granted to be held of the grantor himself, at least if the grant were made by the word "dedi," there, without any other warranty, the feoffor and his heirs were bound to warranty. This is enacted by the statute de bigamis, ch. 6. and we have lord Coke's authority, that this statute was only declaratory of the common law, in this respect. The reason for implying warranty, in this case, is by his lordship said to be, that "where dedi is accompanied with a perdurable tenure of the feoffor and "his heirs, there dedi importeth a perdurable warranty for the feoffor and his "heirs to the feoffee and his heirs." 2 Inst. 275. The warranty in this instance was therefore a consequence of tenure, (ant. 101. b.) and so necessary a consequence of it, that, where an express and qualified warranty was introduced, it did not restrain or circumscribe the implied warranty. Where lands were granted to be held of the chief lord of the fee, there the tenancy was of the chief lord, and no tenure subsisted between the grantor and the grantee. Warranty, therefore, being a consequence of tenure, did not hold in these cases between the grantor and grantee, as there was no tenure between them to raise it. Still, the grantor was supposed to be bound by his own gift. The word "give," therefore, imported, in this case, a warranty to him. But this was personal to the grantor; it did not apply to the heir, and it could not affect him without working that involuntary alienation, which, in a case of that nature, the jurisprudence of those times did not readily admit. The statute "quia emptores terrarum," put an end to the subinfeudation of fee simple estates, and of course put an end to the warranty we have been speaking of, as incident to grants of lands in fee simple, to be held of the grantor and his heirs. The consequence was, that, after the statute quia emptores terrarum, there was no case, except that of homage ancestrel, in which warranty, unless it arose from the express contract of the parties, bound more than the donor, or bound him longer than the term of his life. 2dly, But with respect to estates tail and leases for life, the judges took this important distinction, that, where a person seised in fee granted for life or in tail, reserving the reversion in himself, the grantees of the particular estates held of the reversioner, and he of the chief lord: where a person granted for life or in tail, with the remainder over in fee simple, both the tenants of the particular estates, and the remainder-men, held of the chief lord. In the former case, therefore, the tenure between the donor and the donees still subsisting, the law remained as it did before the statute, that is, when those estates were created by the word "dedi," both the donor and his heirs, were, in consequence of the tenure, obliged to warranty. Thus it stood in respect of grants in fee simple, in tail, or for life; and in all these cases the warranty must be understood in its strict legal import, as implying an obligation in the lord to acquit his tenant against the superior lord, where there was a seigniory paramount, and to give the tenant a recompense in case of eviction. 3dly, But in leases for years, (to which the subject now leads,) the case is very different. A lease for years, (See Bacon's Abr. tit. Leases and Terms for Years) is a contract between lessor and the lessee for the possession and profits of lands, &c. on the one side, and a recompense by rent, or other consideration, on the other. As the lessor contracts that the lessee shall hold the land, he cannot claim it in opposition to his covenant.-Thus he parts with the land during the term; but his supposed parting with the land, and the interest of the lessee in it during the term parted with, was rather a consequence of law accruing from the contract, than the contract for the enjoyment, a consequence of law, accruing from the parting with the land. The tennant, therefore, had only the perception of the profits, and was considered to hold the possession for the reversioner. The consequence was, that whoever recovered the freehold, reduced the term whether the recovery were true or feigned. As the possession was not considered to be in the lessee, there was originally no means by which he could recover it. His only remedy was in consequence of the contract, which constituted the lease. By virtue of that, the words "yielding and paying," &c. were construed a covenant in favour of the lord, which enabled him to recover his rent by an action of covenant or an action of debt, and the words, "grant, demise," &c. were construed a covenant in favour of the tenant,