It is evident that the acquisition of property is of little benefit, unless accompanied with a prospect of retaining it without interruption. In ancient times conveyances were principally made from a superior to an inferior, as from the great baron to his retainer, or from a father to his daughter on her marriage (a). The grantee became the tenant of the grantor; and if any consideration were given for the grant, it more frequently assumed the form of an annual rent, than the immediate payment of a large sum of money (b). Under these circumstances, it may readily be supposed, that, if the grantor were ready to warrant the grantee quiet possession, the title of the former to make the grant would not be very strictly investigated; and this appears to have been the practice in ancient times; every charter or deed of feoffment usually ending with a clause of warranty, by which the feoffor agreed that he and his heirs would warrant, acquit, and for ever defend the feoffee and his heirs against all persons (c). Even if this warranty were not expressly inserted, still it would seem that the word give, used in a feoffment, had the effect of an implied warranty; but the force of such implied warranty was confined to the feoffor only, exclusive of his heirs, whenever a feoffment was made of him Is to be holden of the chief lord of the fee(d).
Warranty implied by word give.
(a) See ante, p. 37. (b) Ante, p. 37.
(c) Bract, lib. 2, cap, 2, Cap.
(d) 4 Edw. T. stat. 3, c. 6; 2 Inst 275; Co. Litt. 384 a, n. (1).
Under an express warranty, the feoffor, and also his heirs, were bound, not only to give up all claim to the lands themselves, but also to give to the feoffee or his heirs other lands of the same value, in case of the eviction of the feoffee or his heirs by any person having a prior title (e); and this warranty was binding on the heir of the feoffor whether he derived any lands by descent from the feoffor or not (f), except only in the case of the warranty commencing, as it was said, by disseisin; that is, in the case of the feoffor making a feoffment with warranty of lands of which he, by that very act (g), disseised some person (h), in which case it was too palpable a hardship to make the heir answerable for the misdeed of his ancestor. But even with this exception, the right to bind the heir by warranty was found to confer on the ancestor too great a power; thus, a husband, whilst tenant by the curtesy of his deceased wife's lands, could, by making a feoffment of such lands with warranty, deprive his son of the inheritance; for the eldest son of the marriage would usually be heir both to his mother and to his father; as heir to his mother he would be entitled to her lands, but as heir of his father he was bound by his warranty. This particular case was the first in which a restraint was applied by parliament to the effect of a warranty, it having been enacted (i), that the son should not, in such a case, be barred by the warranty of his father, unless any heritage descended to him of his father's side, and then he was to be barred only to the extent of the value of the heritage so descended. The force of a warranty was afterwards greatly restrained by other statutes, enacted to meet other cases (k); and the clause of warranty having long been disused in modern conveyancing, its chief force and effect have now been removed by clauses of two modern statutes, passed at the recommendation of the real property commissioners (l).
Warranty now ineffectual.
(e) Co. Litt. 365 a.
(f) Litt. s. 712.
(g) Litt. s. 704; Co. Litt. 371 a.
(h) Litt. ss. 697, 698, 699, 700.
(i) Stat. 6 Edw. I. c. 3.
(k) Stat. De donis, 13 Edw. I. c. 1, as construed by the judges, see Co. Litt. 373 b, n. (2); Vaug-han, 375; stat. 11 Hen. VII. c. 20; 4 & 5 Anne, c. 16, s. 21.
In addition to an express warranty, there were formerly some words used in conveyancing, which in themselves implied a covenant for quiet enjoyment; and one of these words, namely the word demise, still retains this power. Thus, if one man demises and lets land to another for so many years, this word demise operates as an absolute covenant for the quiet enjoyment of the lands by the lessee during the term (m). But if the lease should contain an express covenant by the lessor for quiet enjoyment, limited to his own acts only, such express covenant showing clearly what is intended will nullify the implied covenant, which the word demise would otherwise contain (n). So, as we have seen, the word give formerly implied a personal warranty; and the word grant was supposed to have implied a warranty, unless followed by an express covenant, imposing on the grantor a less liability (o). An exchange and a partition between coparceners have also until recently implied a mutual right of re-entry, on the eviction of either of the parties from the lands exchanged or partitioned (p). And, by the Registry Acts for Yorkshire, the words grant, bargain, and sell, in a deed of bargain and sale of an estate in fee simple, in~ rolled in the Register Office, imply covenants for the quiet enjoyment of the lands against the bargainor, his hens and assigns, and all claiming under him, and also, for further assurance thereof, by the bargainor, his heirs and assigns, and all claiming under him, unless restrained by express words (q). The word grant, by virtue of some other acts of parliament, also implies covenants for the title (r). But the act to amend the law of real property now provides that an exchange or a partition of any tenements or hereditaments made by deed shall not imply any condition in law; and that the word give or the word grant in a deed shall not imply any covenant in law in respect of any tenements or hereditaments, except so far as the word give or the word grant may by force of any act of parliament imply a covenant (s). The author is not aware of any act of parliament by force of which the word give implies a covenant.