Bracton: Thorne Edition: English. Volume 2, Page 118

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Volume 2, Page 118

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[001] in perpetuity by the aforesaid service.’ By saying ‘I and my heirs,’ he binds to
[002] warranty himself and his heirs, near and remote, present and future, succeeding
[003] him in perpetuity. By the words ‘we will warrant,’ he takes upon himself the
[004] burden of defending in his possession of the thing given his tenant [and his heirs,
[005] or his heirs or assigns, or] his assigns and their heirs [against] all others, as was said
[006] above, if the tenement is sought by another in demesne. By saying ‘we will acquit,’
[007] he obliges himself and his heirs to acquit if anyone claims additional service or
[008] service other than that specified in the charter. By the words ‘we will defend,’ he
[009] obliges himself and his heirs to defend against anyone who seeks to impose a
[010] servitude on the thing given contrary to the form of his gift. It is not enough if he
[011] warrants the thing itself to him unless he warrants its appurtenances, whether
[012] they are corporeal or incorporeal, as a right: corporeal, as where hamlets, not
[013] physically part of the thing, belong to it;¹ incorporeal, as where an advowson is
[014] appurtenant to his own property or there is a servitude in another's. A warranty
[015] may be broad or narrow. Broad, as where it is said, ‘I and my heirs will warrant
[016] to such a one and his heirs,’ Broader, as ‘to such a one and his heirs and assigns
[017] and the heirs of his assigns.’ Broadest of all, as ‘to such a one and his heirs and
[018] assigns and their heirs and the assigns of their assigns and their heirs.’ Then the
[019] donor and his heirs are bound by the modus of the gift to warrant it directly to all
[020] [such assigns and their heirs] if the thing has passed through that many hands.²
[021] But if he says, ‘We will warrant to such a one and his heirs,’ and the donee gives
[022] it over or assigns, the principal feoffor is not bound to warrant such persons directly
[023] but [only] through a mesne, that is, each may vouch his own feoffor to warranty,
[024] ascending step by step. A warranty may be narrow, as where he says, ‘to such a
[025] one and his heirs of the wife to whom he is married;’ here the warranty is restricted
[026] to the heirs expressed only and [does not extend] to others.³ Narrower still, as,
[027] ‘I and my heirs will warrant to you,’ thus excluding the heirs of the donee from
[028] the warranty. Narrowest of all, as, ‘I warrant to you,’ no mention made of the
[029] heirs of the donor or the donee. ⁴Though in a gift homage is done and service
[030] undertaken, by a modus placed in it [the donor] may be excused from warranting,
[031] as where he adds this to his charter of gift, that neither he nor his heirs shall be
[032] held to warrant,⁵ for an agreement often defeats law.⁶ When

Notes

1. Infra iii, 140

2. Supra 67

3. Infra iv, 219

4. New paragraph

5. Infra 148, iv, 220

6. Glanvill, x, 14