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there is certainly one palpable defect, the want of sufficient notoriety: so that purchasors or creditors cannot know with any absolute certainty, what the estate, and the title to it, in reality are, upon which they are to lay out or to lend their money. In the antient feodal method of conveyance (by giving corporal seisin of the lands) this notoriety was in some measure answered; but all the advantages resulting from thence are now totally (defeated by the introduction of death-bed devises and secret conveyances: and there has never been yet any sufficient guard provided against fraudulent charges and incumbrances; since the disuse of the old Saxon custom of transacting all conveyances at the county court, and entering a memorial of them in the chartulary or leger-book of some adjacent monastery; and the failure of the general register established by king Richard the first, for the starrs or mortgages made to [343] Jews, in the capitula de Judæis, of which Hoveden has preserved a copy.† How far the establishment of a like general register, for deeds, and wills, and other acts affecting real property, would remedy this inconvenience, deserves to be well considered. In Scotland every act and event, regarding the transmission of property, is regularly entered on record. And some

of our own provincial divisions, particularly the extended county of York, and the populous county of Middlesex, have prevailed with the legislature e to erect such registers in their several districts. But, however plausible these provisions may appear in theory, it hath been doubted by very competent judges, whether more disputes have not arisen in those counties by the inattention and omissions of parties, than prevented by the use of registers.

c Hickes Dissertat. epistclar. 9.

d Dalrymple on feodal property. 262, etc.

e Stat. 2 & 3 Ann. c. 4. 6 Ann. c. 35. 7 Ann. c. 20. 8 Geo. II. c. 6. *Cited, 1 Yeates, 173.

-t Quoted, 6 Neb. 269.


(57) By the feudal constitution, if the vassal's title to enjoy the feud was disputed, he might vouch or call in the lord or donor to warrant or insure his gift, page 300.

The feudal origin of our law of warranty might well be doubted on the simple ground of its early application to socage lands, which were not feudal as yet, and to chattels which never were so, equally with the military tenures of lord and vassal. That it was largely developed under a system of tenure, is as clear as that the development was much assisted by the elaborate doctrine of Roman law de evictionibus. (See Dig. xxi. 2; Cod. viii. 45.) But it is equally certain that it made its first appearance in English law as a natural outgrowth of tho mode in which the title of stolen cattle and other property was traced from one possessor to another, and each in turn made responsible for the title which he had transferred, in the Anglo-Saxon law.

To satisfy one's self of the true origin of the law of warranty, it is only needful to compare with this AngloSaxon law of team, Bracton's treatment of the same topic in lib. 3, tr. 2, c. 32, de furtis, fol. 150-152, and the latter again with the full treatment of the subject in its relation to titles to land in lib. 5, tr. 4, fol. 378-399. Glanvil (lib. 3, de warrantia), adds little to the evidence, for it is not needed to establish the connection between the tenth century and the thirteenth. But it contains some instructive passages as to the earlier stages of the more elaborate feudal doctrine, and especially shows the identity of the institution in its non-feudal as well as feudal applications.

Glanvil says nothing of escambium or recompense by a warrantor: the warranty as yet is merely a mode of tracing and proving title. But a century later the doctrine of escambium is fully developed, and Bracton's treatment of it, and the cases he quotes (lib. 5, tr. 4, de warrantia, c. 7, fol. 387 b) show that it has become a sub

ject of practical importance. This is due, doubtless, to the increased value of land as an article of commerce. The doctrine is one upon which English judges could have found little authority in any other system, though the methods of the Roman law were no doubt of the greatest help in preparing them for their task. Bracton points out the different cases that may arise, and the principles upon which they should be disposed of, in a way that reminds one of the best decisions of the great chancellors who moulded English equity. In some points the resemblance becomes a real identity; as in the "marshaling," to use the later expression, of the warrantor's means to satisfy different claims, when be has not enough for all. (Ib. 27, fol. 388 b.)

The resemblance throws light on the mode in which our law even then was developed, and its relation to Roman law. It tends to prove that the supposed importation of foreign law in Bracton's time may have been only that same use of a discipline derived from it, and of some of its most general principles, which we find in modern equity judges—and no more.

Upon the origin of the law of warranty see remarks of Sir T. Twiss in his introduction to volume 6 of Bracton. He shows it to be English, or at least not to be derived from the Leges Barbarorum, or other known sources: and his suggestion as to Roman jurisprudence as distinguished from their written law will deserve attention when he shows us where that jurisprudence could have been found. He notices also the intimate connection between vouching to warranty and questions of title, in connection with the statute of Hayles. But at that period there is abundant evidence of the close connection of all the forms into which the doctrine afterwards divided. We have only to show that the proof of title to land and chattels alike after the conquest was made in the same manner as that of chattels before that period, to establish the origin of war

ranty in both its forms, as defense of title and as reconense.

The intimate connection of these two institutions is clearly expressed by Britton: "For warranty in one sense signifies the defending of the tenant in his seisin, and in another sense it signifies that if he does not defend him after being properly summoned, the warrantor is bound to exchange and to make him satisfaction to the value." (Lib. 3, c. 11, pl. 9; Nichols, ii. 102.) And this is only an expansion of Bracton's definition of warrantizare-"defendere et acquietare." (Fol. 380 b, and pp. 258, 259.) To trace the development of the two from the simple form in which they appear in the Kentish and Wessex laws to the elaborate doctrine of the common law, would throw great light on the law of property, and particularly of property in land. As to movables, with which alone the team dealt, instruction must be found in the results caused by the almost entire disappearance of the doctrine, except in the simple form of warranty of title between vendor and vendee.

From the nature of the case warranty was originally a duty incumbent on every person who gave or sold land or chattel to another, since it was merely the duty of vindicating the honesty of his own action and his own title to the thing. When the law of the subject became more complicated, this duty was supposed to grow out of the act of delivery, or in case of land out of the words of the charta-such as do, dedi (Hengham Magna, c. 13, p. 28), or the sale of a chattel. (Bract. fol. 151.) But its true origin is shown by the rule that in case of an exchange, excambium, where no written charter or words of any kind were needed, there was a duty to warrant on both sides. (Cowell, Inst. iv. 24, 22; Brooke, Abt. Exchange, 2, 12. And see Blackstone's remark on this page as to partition.) So, also, by the early rule that warranty was not the effect

of an express contract between the parties, but a consequence of the mere transfer of land, or of chattels. It required no written or even express contract. All that the voucher had to show was a charter of simple gift, or of feoffment: and if the vouchee denied the obligation, he was bound to show an express exception contained in the charter. (Bract. lib. 5, tr. 4, c. 8, 21, fol. 388 b.) That when homage proved the tenure no written charter was needed, is expressly said (c. 1, ? 4, fol. 380 b), though it is clear enough otherwise. It did not even require a person capable of contracting; though that is true only of minors, femes-covert, etc., on whom the obligation had descended from him qui dedit ant vendidit. (380 b.) There was no limit to the number of successive vouchings, as long as one could be found in the series-(donec non sit aliquis ulterius qui vocari possit, ib. 2) — usque ad decem vel amplius in infinitum, ib. 23. His examples show that three or four were a common number, though even these imply four or five ranks of feudataries or the passage of a tract of land through as many feoffments.

(58) [The feoffment] serves equally well to convey any other estate of freehold, page 311.

In several American editions this sentence is made to convey a wrong meaning by printing "estate or freehold." The feoffment could not convey an estate not of freehold. Even if made by a termor or other person who had no freehold in himself but simply a possession, its operation was to give the feoffee a "freehold by wrong 99 or "tortious freehold," while it never gave a term of years or estate at will or sufferance.

This is not an abstruse and technical doctrine, unintelligible by the laity and devised by feudal tyrants to oppress the laity. It is simply the consequence of the very nature of the feoffment as the delivery of the land itself, and not of an estate in the land. By such

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