COLLATERAL WARRANTY. Warranty as to an estate made by one who was an cestor 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.
Warranty made where the heir's title to the land neither was nor could have been derived from the warranting ancestor. Termes de la Ley.
Collateral warranty is spoken of as "a mode of common assurance." The statute of Gloucester being silent as to a collateral warranty, a warranty of a collateral ancestor, whose heir the issue in tail might be descending upon the latter, would bind him without assets by force of the common law. Therefore, by getting a collateral relation, whose heir the issue in tail was to be, to concur in the alienation and bind himself and his heirs to war ranty, the statute De Donis was successfully evaded. Thus, if a tenant in tail should discontinue the tail, have issue and die, and the uncle of the issue should release to the discontinuee 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 tail; and in this action the collateral warranty came in as an estoppel. 2 Washb. R. P. 670.
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 evic tion. 4 Cruise, Dig. 436.
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 statute 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 11 Hen. VII. c. 20, warranty by a tenant
in dower, with or without the assent'of her subsequent husband, was prevented; and finally 4 & 5 Anne, c. 16, declares all war ranties by a tenant for life void against the heir, unless such ancestor has an estate of inheritance in possession. See Co. Litt. 373, Butler's note [328]; Stearns, R. Act. 135, 372.
It is doubtful if the doctrine has ever pre vailed to a great extent in the United States, and the statute of Anne has not been gener ally adopted in American statute law, al though re-enacted in New York; 4 Kent *469 ; and in New Jersey ; Den v. Crawford, 8 N. J. L. 106. It has been adopted and is in force in Rhode Island ; Sisson v. SeaburY, 1 Sumn. 235, Fed. Cas. No. 12,913; and in Delaware ; Ford's Lessee v. Hays, 1 Harr. 50, 23 Am. Dec. 369. In Kentucky and Vir ginia, it seems that collateral warranty binds the heir to the extent of assets descended; Doe v. Moore, 1 Dana (Ky.) 59. In Pennsyl vania, the statute of Gloucester is in force, but the statute of Anne is not, and a col lateral warranty of the ancestor, with suffi cient real assets descending to the heirs, bars them from recovering the lands war ranted ; Carson v. Cemetery Co., 104 Pa. 575. See 2 Bla. Com. 301 ; . 2 Washb. R. P. 668. If the learning of collateral warranty has been called difficult, it is simply because the law of warranty came to be turned from the purpose of its introduction,—that of protec tion and defence,—and fashioned into a rem edy to meet an entirely different purpose. Later, collateral warranty ceased to be used for the purpose of barring estates tail, and its use could never have been universal. Rawle, Coy. for Title, secs. 8, 9. See Litt. § 709; 12 Mod. 513; Year Book 12 Edw. IV. 19 ; Tudor, Lead. Cas. R. P. 695 ; Pig. Re cov. 9.