Collateral Warranty

Warranty as to an estate made by one who was ancestor to the heir thereof, either actually or by implication of law, in respect to other property, but who could not have been so in respect to the estate in question. Warranty made where the heir's title to the land neither was nor could have been derived from the warranting ancestor. Termes de la Ley; 2 Bl. Comm. 301; 4 Kent, Comm. 469.

Warranty as to an estate made by one who was ancestor to the heir thereof, either actually or by implication of law, in respect to other property, but who could not have been so in respect to the estate in question. Warranty made where the heir's title to the land neither was nor could have been derived from the warranting ancestor. Termes de la Ley. Collateral warranty is spoken of as "a mode of common assurance." The statute of Gloucester being silent as to a collateral warranty, a warranty of a collateral ancestor, whose heir the issue in tail might be descending upon the latter, would bind him without assets by force of the common law. Therefore, by getting a collateral relation, whose heir the issue in tail was to be, to concur in the alienation and bind himself and his heirs to warranty, the statute De Donis was successfully evaded. Thus, if a tenant in tail should discontinue the tail, have issue and die, and the uncle of the issue should release to the discontinuee and die without issue, this is a collateral warranty to the issue in tail. Littleton § 709. The tenant in tail having discontinued as to his issue before his birth, the heir in tail was driven to his action to regain possession upon the death of his ancestor tenant in tail; and in this action the collateral warranty came in as an estoppel. 2 Washb. R. P. 670. The heir was barred from ever claiming the land, and, in case he had assets from the warranting ancestor, was obliged to give the warrantee other lands in case of an eviction. 4 Cruise, Dig. 436. By the statute of Gloucester, 6 Edw. I. c. 3, tenant by the curtesy was restrained from making such warranty as should bind the heir. By a favorable construction of the statute De Donis, and by the statute 3 & 4 Will. IV. c. 74, tenants in tail were deprived of the power of making collateral warranty. By 11 Hen. VII. c. 20, warranty by a tenant in dower, with or without the assent of her subsequent husband, was prevented; and finally 4 & 5 Anne, c. 16, declares all warranties by a tenant for life void against the heir, unless such ancestor has an estate of inheritance in possession. See Co. Litt. 373, Butler's note [328]; Stearns, R. Act. 135, 372. It is doubtful if the doctrine has ever prevailed to a great extent in the United States, and the statute of Anne has not been generally adopted in American statute law, although re-enacted in New York; 4 Kent *469; and in New Jersey; Den v. Crawford, 8 N. J. L. 106. It has been adopted and is in force in Rhode Island; Sisson v. Seabury, 1 Sumn. 235, Fed. Cas. No. 12,913; and in Delaware; Ford's Lessee v. Hays, 1 Harr. 50, 23 Am. Dec. 369. In Kentucky and Virginia, it seems that collateral warranty binds vania, the statute of Gloucester is in force, but the statute of Anue is not, and a collateral warranty of the ancestor, with sufficient real assets descending to the heirs, bars them from recovering the lands warranted; Carson v. Cemetery Co., 104 Pa. 575. See 2 Bla. Com. 301; 2 Washb. R. P. 6G8. If the learning* of collateral warranty has been called difficult, it is simply because the law of warranty came to be turned from the purpose of its introduction, — that of protection and defence, — and fashioned into a remedy to meet an entirely different purpose. Later, collateral warranty ceased to be used for the purpose of barring estates tail, and its use could never have been universal. Rawle, Cov. for Title, sees. 8, 9. See Litt. § 709; 12 Mod. 513; Year Book 12 Edw. IV. 19; Tudor, Lead. Cas. R. P. 695; Pig. Recov. 9.

A warranty of lands, collateral to the title of the heir, or him upon whom the wan*anty falls; a warranty made by a person who is collateral to the title, i. e. a person out of the line, or on the side (a latere) of the title, and through whom the title did not pass.* Litt, sect. 717. Described in the books to be " where the heir's title to the land neither was, nor could have been derived from the warranting ancestor." 2 Bl. Com. 301. 4 Kent's Com. 469. Story. J., 1 Sumner's R. 262. As where a younger brother released to his father's disseisor with warranty, this was collateral to the elder brother. Litt. sect. 705, 707. So where a son purchased lands in fee, and his father disseised him, and aliened to another with warranty, and died, this was a collateral warranty to the son. Id. sect. 704, 705. See 2 HUliard's Real Prop. 361. 362. U. S. Digest and Supplement, Collateral warranty. See Lineal warranty. The distinction between lineal and co Vateral warranty seems to have always been a subtle one, and not easily apprehended; and the most careful definitions given in the books are not free from obscurity, owing in a great degree to the peculiar meaning given to the word collateral. Lord Coke, m commenting upon Littleton, (sect. 717,) observes that ** it is not adjudged in law a collateral warranty in respect of the blood, for the warranty may be collateral, albeit the blood be lineal, and the warranty may be lineal, albeit the blood be collateral. But it is in law deemed a collateral warranty in respect that he that maketh the warranty is collateral to the title of him upon whom the warranty doth fall." Co. Litt. 376 a. COLLATERALES ET SOCIL LLat Assistants and associates [of the chancellor.] Former titles of masters in chancery, 2 Beeves* Hist Eng, Law, 261.

contracts, descent, 1s where the heir’s title to the land neither was nor could have been derived from the warranting ancestor; and yet barred the heir from ever claiming the land, and also imposed upon him the same obligation of giving the warrantee other lands, in case of eviction, as if the warranty were lineal, provided the heir had assets. 4 Cruise, Real Prop. 436.