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, 3 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. 3. 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

a transfer the feoffee took presumptively the freehold (liberum tenementum) of the land, for the reason which Blackstone has stated in another work: "since no one at common law was said to have or to be in possession of land, unless it were conveyed to him by the livery of seisin, which gave him the corporal investiture and bodily occupation thereof; and this ceremony of delivering seisin could not convey a less interest than for term of life. For as it is observed by St. Germain (Dr. & Stud. dial. 2, c. 22) 'the possession of the land is after the law of England called the franktenement or freehold.'" (Blackstone, Law Tracts, i. 140.) Therefore, as Blackstone says in the same place, he that enjoys an estate for years is not said to be possessed of the land, but only of his term of years. (Blackstone, Law Tracts, i, 140.) The termor's possession of the land in fact enables him to transfer it in fact to another person, but that transfer will not make the new possessor a termor. It is not an assignment of the term, for that must be effected in a different mode.

There is indeed an anomaly here, in allowing a freehold even "by wrong" to be given by the feoffment of one who has not a freehold himself: seisin to be given by one who has never received it. We find a similar anomaly in other rules respecting the termor's estate. He cannot take seisin himself, yet may take it for the benefit of the next estate of freehold and this estate of freehold will be immediately created and vested in the freehold tenant during the continuance of the term, and yet will be treated for many purposes as a remainder after the term. (2 Com. 164, 166.) The only explanation of these anomalies is to be found in the fact that seisin originally meant possession as an actual fact, and of chattels as well as land: and that the feoffment was at first the actual transfer of possession of the land itself, without reference to any "estate." When seisin

afterward became a technical term for possession of certain kinds of estate only, it was too late to change the legal phraseology which had become fixed by usage. (See also note 36 a, ante, page 292.)

(59) It must be either for twenty-one years or three lives, page 319.

The limitation of leases of church lands to three lives (illustrated so fully by the examples of Archbishop Oswald's leases in Kemble and Thorpe), no doubt had its origin in the law of Justinian. (Nov. vii. c. 3, 3, 3.) But this cannot be taken as evidence of the general use or knowledge of that law among the Anglo-Saxons. As a matter of general interest to the church, the rule would be made known by its canons to every bishop who recognized a submission to the Roman church.

(60) Such release is void for want of possession in the relessee, page 324.

This has been criticised, by Mr. Sweet and others, as not accurately expressed. The examples given are those of other releases, such as those which pass an estate, pass the right, etc., where Blackstone says nothing of possession; or by saying that tenant at will may take a release, as if Blackstone had required seisin and not possession.

It is conceived that this rule is still in force, although many of our American books speak of land as passing by quit claims (which is only another name for release) to one who had no interest or possession before. The explanation is that the term "quit-claim deed ” is very commonly used, even by lawyers and judges, for a simple deed of conveyance without covenants, as opposed to a warranty deed, or to a deed with covenants against grantor. Such deeds pass the land and its legal possession by virtue of the granting words in them they do not merely "remise, release, and quit

claim," which presupposes possession in the grantee. If a deed in the later form be held to pass the title, it can only be by virtue of that loose construction which disregards all words and rules, in order to carry out the understood intention of the parties. Such "equitable constructions" are denials of right, not to the parties themselves, but to the countless unborn litigants whose rights will be taken away or squandered in useless litigation by reason of the precedents thus created. In some cases we find judges already applying to simple deeds of conveyance rules of law that belong only to releases proper, because of this misuse of the term "quit claim." (See cases collected in Boone on Real Property, 2 324, notes 7, 8.)

(61) By a lease one grants an interest less than his own, reserving to himself a reversion: in an assignment he parts with the whole property, page 327.

The same distinction in the transfer of leasehold estates makes the essential difference between subletting and assignment. Whatever name the original lessee may give the transfer, it will constitute a subtenancy or underlease, if it does not pass the entire remnant of the term: an assignment if it does.

It hardly needs to be pointed out that when fees were actually estates dependent on the survival of a given line of heirs, i. e., before the statute of quia emptores, the same distinction marked the difference of subinfeudation and alienation, commonly treated as two entirely distinct transactions.

(62) No subsequent secret revocation of a solemn conveyance, executed by livery of seisin, being allowed in those days of simplicity and truth, page 327.

It was not the "solemnity" of the act, or the simplicity and truth of the actors, that made the distinction, but the very nature of the feoffment as a transfer

2 BLACKST. - 45.