COLLATERAL WARRANTY. 'War ranty as to an estate made by t ne who was ancestor to the heir thereof, either actually or by implication of law, in respect to other property, but who could not have been so in respect to the estate in question.
2. Warranty made where the heir's title to the land neither was nor could have been de rived from the warranting ancestor. Termcs de la Ley.
Thus, if a tenant in tail should discontinue the tail, have issue and die, and the uncle of the ism should release to the disoontinuec and die without issue, this is a collateral warranty to the issue in tail. Littleton, 709. The tenant in tail having discontinued as to his issue before his birth, the heir in tail was driven to his action to regain pos session upon the death of his ancestor tenant in tad; and in this action the collateral warranty came in as an estoppel. 2 Washburn, Real Prop. 63.
The heir was barred from ever claiming the land, and, in case he had assets from the warranting ancestor, was obliged to give the warrantee other lands in case of an eviction. 4 Cruise, Dig. 436.
3. By the statute of Gloucester, 6 Edw. I. c. 3, tenant by the curtesy was restrained from making such warranty as should bind the heir. By a favorable construction of the stal tute De Donis, and by the statute 3 & 4 Will.
IV. c. 74, tenants in tail were deprived of the power of making collateral warranty. By statute 11 Hen. VII. c. 20, warranty by a tenant in dower, with or without the assent of her subsequent husband, was prevented ; and finally the statute 4 & 5 Anne, c. 16, de clares all warranties by a tenant for life void against the heir, unless such ancestor has an estate of inheritance in possession. See Coke, Litt. 373, Butler's note L328] ; Stearns, Real Act. 135, 372.
4. It is doubtful if the doctrine has ever prevailed to a great extent in the United States. The statute of Anne has been re enacted in New York, 4 Kent, Comm. 3d ed. 460; and in New Jersey. 3 IIalst. N. J. 106. It has been adopted and is in force in Rhode Island, 1 Sumn. C. C. 235; and in Delaware. 1 Ilarr. Del. 50. In Kentucky and Virginia, it seems that collateral warranty binds the heir to the extent of assets descended. 1 Dan. Ky. 59. In Pennsylvania, collateral warranty of the ancestor, with sufficient real assets descending to the heirs, bars them from recovering the lands warranted. 4 Dull. Penn. 168; 2 Yeates, Penn. 9 Serg. & R. Penn. 275. See 2 Sharswood, Blackst. Comm. 301 ; 2 Washburn, Real Prop. 668-671.