warranty

it was precisely because it was a warranty,—that is, an absolute undertaking by contract that a fact was true,—that, if a warranty was alleged, it was not necessary to lay the scienter.

In Insurance. A statement or agreement by the insured, which is part of the contract of insurance, and the truth of which is essential to the validity of the policy. For the distinction between "warranty" and "representation," see "Representation." In Sales of Personal Property. An undertaking, express or implied, by which the seller insures the existence of certain facts as to the thing sold. It is an express or implied statement of something which the party undertakes shall be a part of the contract, and, though part of the contract, yet collateral to the express object of it. 4 Mees. & W. 404. It is express when the undertaking is by express words of the seller; it is implied when it results by inference of law from the nature of the transaction. In Sales of Real Property. In old l^w, a real covenant, whereby the grantor of an estate of freehold and his heirs were bound to warrant the title, and, either upon voucher or by judgment in a writ of warrantia chartae, to yield other lands to the value of those from which there had been an eviction by a paramount title. Co. Litt. 365a. Collateral warranty existed when the heir's title was not derived from the warranting ancestor, and yet it barred the heir from claiming the land by any collateral title, upon the presumption that he might thereafter have assets by descent from or through the ancestor; and it imposed upon him the obligation of giving the warrantee other lands in case of eviction, provided he had assets. 2 Bl. Comm. 301, 302. Lineal warranty existed when the heir derived title to the land warranted, either from or through the ancestor who made the warranty. St. 4 Anne, c. 16, annulled these collateral warranties, which had become a great grievance. In the United States, warranty in its original form, it is presumed, has never been known. The more plain and pliable form of a covenant has been adopted in its place; and this covenant, like all other covenants, has always been held to sound in damages, which, after judgment, may be recovered out of the personal or real estate, as in other cases. And in England the matter has become one of curious learning, and of little or no practical importance. See 4 Kent, Comm. 469; 3 Rawle (Pa.) 67, note; 2 Wheat. (U. S.) 45; 9 Serg. & R. (Pa.) 268; 11 Serg. & R. (Pa.) 109; 4 Dall. (Pa.) 442; 1 Sumn. (U. S.) 358; 17 Pick. (Mass.) 14; 1 Ired. (N. C.) 509; 2 Saund. 38, note 5.

In real property law. A real covenant by the grantor of lands, for himself and his heirs, to warrant and defend the title and possession of the estate granted, to the grantee and hls heirs, whereby, either upon vouchee, or judgment In the writ of warrantia chartœ, and the eviction of the grantee by paramount title, the grantor was bound to recompense him with other lands of equui value. Co.. Litt. 365a. In sales of personal property. A warranty is a statement or representation made by the seller of goods, contemporancously with and as a part of the contract of sale, though collateral to the express object of it, having reference to the character, quality, or title of the goods, and by which he promises or undertakes to Insure that certain facts are or shall be as he then represents them. A warranty is an engagement by which a seller assures to a buyer the existenco of some fact affecting the transaction, whether past, present, or future. Civ. Code Cal. § 1763. In contracts. An undertaking or stipulation, in writing, or verbally, that a certain fact in relation to the subject of a contract is or shall be as it is stated or promised to be. A warranty differs from a representation in that a warranty must always be given contemporaneously with, and as part of, the contract; whereas a representation precedes and induces to the contract. And, while that is their difference in nature, their difference in consequence or effect is this: that, upon breach of warranty, (or false warranty,) the contract remains binding, and damages only are recoverable for the breach; whereas, upon a false representation, the defrauded party may elect' to avoid the contract, and recover the entire price paid. Brown. The same transaction cannot be characterized as a warranty and a fraud at the same time. A warranty rests upon contract, while fraud, or fraudulent representations have no element of contract in them, but are essentially a tort. When judges or law-writers speak of a fraudulent warranty, the language is neither accurate nor perspicuous. If there is a breach of warranty, it cannot be said that the warranty was fraudulent, with any more propriety than any other contract can be snid to have been fraudulent, because there bas been a breach of it. On the other hand, to speak of a false representation as a contract or warranty, or as tending to prove a contract or warranty, is a perversion of language and of correct ideas. Rose V. Hurley, 39 Ind. 81. In insurance. In the law of insurance, "warranty" means any assertion or undertaking on the part of the assured, whether expressed in the contract or capable of being annexed to it, on the strict and literal truth or performance of which the liabllity of the underwriter is made to depend. Maude & P. Shipp. 377; Sweet.

— Affirmative warranty. In the law of insurance, warranties may be either affirmative or promissory. Affirmative warranties may be either express or implied, but they usually consist of positive representations in the policy of the existence of some fact or state of things at the time, or previous to the time, of the making of the policy; and they are, in general, conditions precedent, which, if untrue, whether material to the risk or not, the policy does not attach, as it is not the contract of the insurer. Maupin v. Insurance Co., 53 W. Va. 557, 45 S. E. 1003; Hendricks v. Insurance Co.., 8 Johns. (N. Y.) 1; Cowan v. Insurance Co., 78 Cal. 181, 20 Pac. 408.
—-Collateral warranty, in old conveyancing, was where the heir's title to the land neither was nor could have been derived from the warranting ancestor. Thus where a younger brother released to his father's disseisor, with warranty, this was collateral to the elder brother. The whole doctrine of collateral warranty seems repugnant to plain and unsophisticated reason and justice; and even its technical grounds are so obscure that the ablest legal writers are not agreed upon the subject. Wharton. Micheau v. Crawford, 8 N. J. Law, 106

— Continuing warranty. One which applies to the whole period during which the contract is in force; e. g., an undertaking in a charter-party that a vessel shall continue to be of the same class that she was at the time the charter-party was made.

— Covenant of warranty. See Covenant.

— Express warranty. In contracts and sales, one created by the apt and explicit statements of the seller or person to be bound. See Borrekins v. Bevan. 3 Rawle (Pa.) 36, 23 Am. Dec. 85; White v. Stelloh, 74 Wis. 435, 48 N. W. 99; Danforth v. Crookshanks, 68 Mo. App. 316. In the law of insurance, an agreement expressed in a policy, whereby the assured stipulates that certain facts relating to the risk are or shall be true, or certain acts relating to the same subject have bsen or shall be done. 1 Phil. Ins. (4th Ed.) p. 425; Petit v. German Ins. Co. (C. C.) 98 Fed. 802 ; Ætna Ins. Co. v. Grubs, 6 Minn. 82 (Gil. 32); Insurance Co. v. Morgan. 90 Va. 290, 18 S. E. 191.

— General warranty. The name of a covenant of warranty inserted in deeds, by which the grantor binds himself, his heirs, etc., to "warrant and forever defend" to the grantee, hls heirs, etc., the title thereby conveyed, against the lawful claims of ali persons whatsoever. Where the warranty is only against the claims of persons claiming "by, through, or under" the grantor or his heirs, it is calied a "special warranty."

— Implied warranty. A warranty raised by the law as an inference from the acts of the parties or the circumstances of the transaction. Thus, if the seller of a chattel have possession of it and sell it as his own, and not as agent for another, and for a fair price, he la understood to warrant the title. 2 Kent, Comm. 478. A warranty implied from the general tenor of an instrument, or from particular words used in it, although no express warranty is mentioned. Thus, in every policy of insurance there is an implied warranty that the ship is seaworthy when the policy attaches. 3 Kent Comm. 287; 1 Phil. Ins. 308.

— Lineal warranty. In old conveyancing, the kind of warranty which existed when the heir derived title to the land warranted either from or through the ancestor who made the warranty.

— Personal warranty. One avnilable in personal actions, and arising from the obligation which one has contracted to pay the whole or part of a debt due by another to a third person. Flanders v. Seelye, 105 U. S. 718, 26 In Ed. 1217.

— Promissory warranty. A term used chiefly in the law of insurance, and meaning a warranty which requires the performance or omission of certain things or the existence of certain facte after the beginning of the contract of insurance and during its continuance, and the breach of which will avoid the policy. See King v. Relief Ass'n. 35 App. Div. 58, 54 N. Y. Supp. 1057; Maupin v. Insurance Co., 53 W. Va. 557, 45 S. E. 1003 ; McKenzie v. Insurance Co., 112 Cni. 548, 44 Pac. 922.

— Special warranty. A clause of warranty inserted in a deed of lands, by which the grantor covenants, for himself and his heirs, to "warrant and forever defend" the title to the same, to the grantee and his heirs, etc., against ali persons claiming "by, through, or under" the grantor or his heirs. If the warranty is against the claims of nil persons whatsoever, it is called a "general" warranty.

— Warranty deed. One which contains a covenant of warranty.

— Warranty, voncher to. In old practice. The calling a warrantor into court by the party warranted, (when tenant in a reni action brought for recovery of such lands,) to defend the suit for him. Co.. Litt. 101b.

An undertaking or stipulation, written or oral, that a fact relating to the subject of a contract is or shall be as stated or promised. An assurance by the seller on a sale of personalty as to the thing sold, the quantity, the quality or the title, — express, when in words of representation or affirmation entering into the consideration, and understood and relied on by the buyer as a warranty; implied, when inferred by the law from the nature of the entire transaction, as that the thing is fairly merchantable, or fairly fit for the purpose for which it is bought, etc. A covenant by which a grantor of realty, for himself and his heirs, warrants the estate granted. A stipulation by the assured in a contract of insurance that a fact touching the risk is as represented. Warranty deed: a deed containing a covenant of warranty.

In old English law. The duty of a grantor and his heirs, implied in the word dedi in the grant, to warrant and defend the title and possession of the grantee, or give him other lands of equal value; an undertaking by covenant to defend a tenant or grantee in his seisin, against an adverse claimant; the complying wither fulfilling of one's covenant of warranty, by defending the title or seisin of a tenant or grantee, in an action brought against him by an adverse claimant, or by indemnifying the tenant by conveying to him others of equal value.

See Warrant; Wak-

Anciently, the duty of a grantor plied in the word dedi in the grant, to title and possession of the grantee, or equal value. In modern times, an grantor that he has good title, and for ble to the grantee in damages. Absolute, warranty: see those titles. Warranty ing a covenant of warranty.

VOUCHER TO, in practice. -A warranty is a contract rea], annexed to lands and tenements, whereby a man is bound to defend such lands and tenements from another person; and in case of eviction by title paramount, to give him lands of equal value. Voucher to warranty is the calling of such warrantor into court by the party warranted, (when tenant in a real action brought for recovery of such lands,) to defend the suit for him; Co. Litt. 101, b; Com. Dig. Voucher, A 1; Booth, 43; 2 Saund. 32, n. 1; and the time of such voucher is after the demandant has counted. It lies in most real and mixed actions, but not in personal. Where the voucher has been made and allowed by the court, the vouchee either voluntarily appears, or there issues a judicial writ (called a summons ad warrantizandum,) commanding the sheriff to summon him. When he, either voluntarily or in obedience to this writ, appears and 488 WAS ' warranty; after which he is considered as tenant in the action,an the place of the original tenant. The demandant then counts against him, de novo, the vouchee pleads to the new count, and the cause proceeds to issue. 2 Inst. 241 a; 2 Saund. 32; n. 1; Booth, 46. Voucher of warranty is, in the present rarity of real actions, unknown in practice. Steph. Plead. 85.