[26 a] 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. 38; 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 chartæ, 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 [26 b] Deut. 4. [27] 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 firmæ, 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 assigns, 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 covery. 2 Cro. 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. [27 a] Warrant.Chart. B. 24. Voucher 266. Dy. 12. I am of opinion, that if a man convey land to me and my heirs with warranty, and I make a feoffment or levy a fine, or suffer a recovery without vouching my feoffor, to the use of myself and my heirs, that yet I may vouch my p. 59. 35. p. 33. feoffor, as I might do before, for this is my old fee simple, 143. p. 55. Aid. in the same degrees and privity in effect, as before. b. 71, 122. b. voucher 51. d'aid, 7. Assets per B. 1. 102. 13 Co. 5.b. L. 23. a. 2 Ro. And therefore if I have lands, that I hold in knight's Count plea de service, by priority and posteriority, and do make one Counterp. joint feoffment of them to mine own use, yet the priority shall remain as before, according to the former priority; Apr. 280. 1 Co. for it is actum agere, as it is holden in the case of the Ap. 31, 53. Co. abbot of Bury, for the wardship of the heir of Bokenham. 37. Presentation, B. 62. Dyer 288. fo. 11. A. 12. B. But this case of priority is Wast. Br. 112. there cited, as a case ruled between the Lord Ross and Mo. 285. 1 Cr. 24. Dy. 287. p. the Lord Dacres, for the wardship of the heir of Consta- 13. 259. p. 20. bles, for it was holden that the new use and state was in degree the same as before. And so the principal case there is, and if I enfeoff I. S. to the use of himself in tail, the remainder to mine own right heirs, this is a reversion. Quo Warranto, B. 6. Redend, B. 17. Resceit, B. 57. Alienation, B. 8. Devise, B. 8. Statute Merchant, B. 5. Tail, B. 32. my Co. L. 22. b. Livery B. 61. Sever. Præ cipes, B. 1. Warr. Char. who had been vouched once before. This point is clear in case of a recovery upon a title, To the fourth point of suing so it is also in case of a state truly in the post, as tenant Osborn in a in courtesy, dower, lord of a villain, or by escheat. But if one levy a fine to me in fee, with warranty to me and heirs, and I suffer a common recovery against me to mine own use, as before, my warranty remains, for I am in by him, as I was in before; and if the warranty were to me, my heirs and assigns, and I suffer the recovery to the use of a stranger, he shall vouch my feoffor as my assignee; Mo. 859. Mod. for common recovery is indeed an assignment. As to the point of vouching Osborn, or suing warrantia of charters against him, having formerly vouched him, and had judgment and recompense; it is clear he cannot have recompense again, for the warranty is executed, satisfied, and served in the first; as in a scire facias to execute a fine, it is a bar to plead, that it is executed already, and that the demandant, or his ancestors, have been 193. [27 b] Co. L. 393. a. 102. a. [28] 2 Saund. 180. Rep. 25. 1 seised by force of the fine. 23 E. 3. F. Garr. 77, express. If I have recovered in value, I shall never vouch again for those lands by force of the first warranty, because it was once executed. And by the same reason, if I once have had judgment to have value upon a warranty, I shall not vouch again upon the same warranty for the same land. And if you will reply to me, that the warranty in question is by Osborn and his wife, and the former voucher was of the husband only; I answer, that then it must be understood that they are two several warranties, and then in vouching the husband only he renounceth the warranty of him and his wife, as after shall be shewed; but it cannot be said in this case, that the warranty by the wife should be void, or so supposed, as in the case 10 E. 3. 52. where warranty upon a lease being made to the husband and the wife, the husband alone vouched over, and averred that the wife had nothing, and therefore the warranty was void unto her, which is also the reason in the judgment of the case of Eare and Snow, Plow. 540. That the common recovery against tenant in tail, and his wife having nothing, shall bind the tail. But where the woman warrants on the contrary part, she is bound though she hath nothing; yet it is true, that to several respects, a warranty may receive several satisfactions by parcels, but not totally. And therefore, Hill. 5 Jac. Regis, Rot. 941, in the King's Bench, the case was this; that one John Rudge did grant certain lands in South Molton in Com. Devon. unto John Pincombe, for his life, in the fifteenth year of Elizabeth; and in the thirtieth year demised the same unto one William Hunt for twentyone years, to begin after the death of the same John Pincombe, and after, 32 Elizabeth, granted the reversion of these lands unto Amy Pincombe and others for their lives, with this express clause of warranty following, And the said John Rudge and his heirs, all the premises unto the said Amy, against all persons claiming by the said John, his ancestors or heirs, shall and will warrant, acquit, and defend during the said term.' John Pincombe at [28 a] torned and died; Amy and the rest entered, upon whom William Hunt the lessee entered, whereupon Amy and the rest brought their action of covenant against John Rudge, to the damage of £200; and the defendant pleaded in bar, that the plaintiff had formerly brought a warrantia charte against him upon the said warranty for the same land, and that it was yet hanging undetermined; and the plaintiff demurred in law. And it was adjudged for the plaintiff; and upon a writ of error brought in the Exchequer Chamber, the former judgment was affirmed; the reason was, that though the warranty was annexed to the freehold, yet because the impeachment was only by a lease for years, for which there could neither be voucher nor warrantia chartæ, nor if judgment had been given in the warrantia charta, could any execution be made in value for such a lease, therefore it was holden as a warranty real, if the freehold were brought in question. But when a lease for years is in question, taken out of the freehold, it is to be used as a personal 1 Saund. 180. covenant, and to be satisfied in damages. accord. Out of which judgment it appears, that it was allowed 2 Ro. 810. by both courts, that a warranty of charters will give remedy for a state of freehold defeated by entry; and that a warranty may have a double execution for several estates, and that a warranty of itself real may be used as a covenant to recover damages; and by the same reason, if a man convey lands in fee with warranty, and the tenant bring a warrantia chartæ, and hath judgment pro loco el tempore, and then a stranger recovers an estate for term of life, he shall sue an execution for recompense for such estate; and if he die, and another recover another estate Co. L. 383. for life, he shall sue another execution for like recompense; for his recompense shall be according to his loss, as the books before cited do prove; for he loseth not the land warranted, but some less estates out of it, and so the inheritance of the warranty remains still with the inheritance of the land. But if once a whole fee simple be recovered, and recompense for it, then the warranty is wholly executed and satisfied, and so extinct. |