COLLATERAL WARRANTY
(bouvier) | COLLATERAL WARRANTY, contracts, descent. Where the heir's title to the land
neither was, nor could have been, derived from the warranting ancestor; and
yet barred the heir from ever claiming the land, and also imposed upon him
the same obligation of giving the warrantee other lands, in case of
eviction, as if the warranty were lineal, provided the heir had assets. 4
Cruise, Real Prop. 436.
2. The doctrine of collateral warranty, is, according to Justice Story,
one of the most unjust, oppressive and indefensible, in the whole range of
the common law. 1 Sumn. R. 262.
3. By the statute of 4 & 5 Anne, c. 16, Sec. 21, all collateral
warranties of any land to be made after a certain day, by any ancestor who
has no estate of inheritance in possession in the same, were made void
against the heir. This Statute has been reenacted in New. York; 4 Kent, Com.
460, 3d ed.; and in New Jersey. 3 Halst. R. 106. It has been adopted and is
in force in Rhode Island; 1 Sumn. R. 235; and in Delaware. Harring. R. 50.
In Kentucky and Virginia, it seems that collateral warranty binds the heir
to the extent of assets descended. 1 Dana, R. 59. In Pennsylvania,
collateral warranty of the ancestor, with sufficient real assets descending
to the heirs, bars them from recovering the lands warranted. 4 Dall. R. 168;
2 Yeates, R. 509; 9 S. & R. 275. See 1 Sumn. 262; 3 Halst. 106; Harring. 50;
3 Rand. 549; 9 S. & R. 275; 4 Dall. 168; 2 Yeates, 509; 1 Dana, 50.
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