That is to say, he could only do so when, by the failure of the first grantee's blood, the first grantee's feudal relation to the first grantor, his persona, came to be sustained by the assign.
This was not only carrying out the fiction with technical consistency, but was using it with good sense, as fictions generally have been used in the English law.Practically it made little difference whether the assign got the benefit of the first grantor's warranty mediately or immediately, if he got it.The trouble arose where he could not summon the mesne grantor, and the new right was given him for that case alone.Later, the assign did not have to wait for the failure of his immediate grantor's blood, but could take advantage of the first grantor's warranty from the beginning. If it should be suggested that what has been said goes to show that the first grantor's duty to warrant arose from the assign's becoming his man and owing homage, the answer is that he was not bound unless he had mentioned assigns in his grant, homage or no homage.In this Bracton is confirmed by all the later authorities. Another rule on which there are vast stores of forgotten learning will show how exactly the fiction fell in with the earlier law.
Only those who were privy in estate with the person to whom the warranty was originally given, could vouch the original warrantor.Looking back to the early procedure, it will be seen that of course only those in the same chain of title could even mediately get the benefit of a former owner's warranty.The ground on which a man was bound to warrant was that he had conveyed the property to the person who summoned him.Hence a man could summon no one but his grantor, and the successive vouchers came to an end when the last vouchee could not call on another from whom he had bought.Now when the process was abridged, no persons were made liable to summons who would not have been liable before.The present owner was allowed to vouch directly those who otherwise would have been indirectly bound to defend his title, but no others.Hence he could only summon those from whom his grantor derived his title.But this was equally well expressed in terms of the fiction employed.In order to vouch, the present owner must have the estate of the person to whom the warranty was made.As every lawyer knows, the estate does not mean the land.It means the status or persona in regard to that land formerly sustained by another.The same word was used in alleging a right by prescription, "that he and those whose estate he hath have for time whereof memory runneth not to the contrary," &c.; and it will be remembered that the word corresponds to the same requirement of succession there.
To return to Bracton, it must be understood that the description of assigns as quasi heredes is not accidental.He describes them in that way whenever he has occasion to speak of them.He even pushes the reasoning drawn from the analogy of inheritance to extremes, and refers to it in countless passages.For instance:
"It should be noted that of heirs some are true heirs and some quasi heirs, in place of heirs, &c.; true heirs by way of succession quasi heirs, &c.by the form of the gift; such as assigns," &c. If it should be suggested that Bracton's language is only a piece of mediaeval scholasticism, there are several answers.In the first place it is nearly contemporaneous with the first appearance of the right in question.This is shown by his citing authority for it as for something which might be disputed.He says, "And that warranty must be made to assigns according to the form of the gift is proved in the circuit of W.de Ralegh, about the end of the roll,"&c. It is not justifiable to assume that a contemporary explanation of a new rule had nothing to do with its appearance.Again, the fact is clear that the assign got the benefit of the warranty to the first grantee, not of a new one to himself, as has been shown, and Bracton's explanation of how this was worked out falls in with what has been seen of the course of the German and Anglo-Saxon law, and with the pervading thought of the Roman law.Finally, and most important, the requirement that the assign should be in of the first grantee's estate has remained a requirement from that day to this.The fact that the same thing is required in the same words as in prescription goes far to show that the same technical thought has governed both.
I have said, Glanvill's predecessors probably regarded warranty as an obligation incident to a conveyance, rather than as a contract.But when it became usual to insert the undertaking to warrant in a deed or charter of feoffment, it lost something of its former isolation as a duty standing by itself, and admitted of being generalized.It was a promise by deed, and a promise by deed was a covenant. This was a covenant having peculiar consequences attached to it, no doubt.It differed also in the scope of its obligation from some other covenants, as will be shown hereafter.But still it was a covenant, and could sometimes be sued on as such.It was spoken of in the Year Books of Edward III.as a covenant which "falls in the blood," as distinguished from those where the acquittance fell on the land, and not on the person. The importance of this circumstance lies in the working of the law of warranty upon other covenants which took its place.When the old actions for land gave way to more modern and speedier forms, warrantors were no longer vouched in to defend, and if a grantee was evicted, damages took the place of a grant of other land.The ancient warranty disappeared, and was replaced by the covenants which we still find in our deeds, including the covenants for seisin, for right to convey, against incumbrances, for quiet enjoyment, of warranty, and for further assurance.But the principles on which an assign could have the benefit of these covenants were derived from those which governed warranty, as any one may see by looking at the earlier decisions.
