Bracton: Thorne Edition: English. Volume 4, Page 215

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Volume 4, Page 215

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[001] the warranty and escambium and that he afterwards gave it to a certain [William],
[002] who was present and acknowledged this. Whereupon it was decided that the womanplaintiff
[003] [Rose] recover her escambium from the land of him who was last enfeoffed
[004] and that those first enfeoffed should hold in peace.

If the warrantor says that he is not bound to warrant, he who vouched him ought then to show why he is bound to warrant, if the warrantor wishes to contest it.

[006] What the law is when a warrantor warrants freely is expounded above. We must now
[007] explain what happens if he disputes the warranty and says that he ought not to warrant.
[008] In that case he who vouched, when asked so to do by the vouchee, must show
[009] why he ought to warrant. Thus we must see how one may be bound to warranty, in
[010] what ways, and when not. It is clear that a warranty lies for the tenant with respect
[011] to¹ all charters of simple gift, and that donors and their heirs are bound to warrant if
[012] they are vouched at a suitable time and in the proper way, with appropriate procedure,²
[013] unless the contrary is expressed in the charter of feoffment, that is, that the
[014] donor is bound neither to a warranty nor to escambium.³ If the charter is one of confirmation
[015] no warranty follows thereon, unless it also contains the gift, as where it is
[016] said, ‘I give and confirm to such a one and his heirs, or to whom he wishes to give,
[017] assign, sell or devise it, so much land etc.’⁴ Such charter suffices for warranty whether
[018] or not there was an earlier charter of gift.

A confirmation by the heir, when the right has descended to him, makes an earlier charter valid which was originally invalid.

[020] A charter of confirmation sometimes suffices by itself, sometimes in conjunction with
[021] an earlier charter, where the gift was invalid at the outset because the donee had no
[022] seisin during the donor's lifetime, because by a charter of confirmation subsequently
[023] made by the heir, when the right has descended to him,⁵ the first charter of gift, which
[024] at the outset was invalid, is cured, and thus each aids the other. A charter is good with
[025] respect to warranty if it specially mentions warranty, as where it is said ‘And I and
[026] my heirs will warrant etc.’ And so even though that is not expressly stated, provided
[027] that homage and service have been done,⁶ whether the service has been done to the
[028] donor by the hand of the donee or to the donor's chief lord for the donor by the hand
[029] of the donee. A fine made in the lord king's court also suffices, though

Notes

1. ‘quoad’

2. ‘prosecutione’

3. Supra ii, 118, iv, 192, infra 220

4. Supra ii, 177; ‘devise’: supra 194, infra 283; cf. ii, 149

5. Supra ii, 51, 174, infra 218

6. Supra 195