Bracton: Thorne Edition: English. Volume 4, Page 220

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Volume 4, Page 220

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[001] other the heir apparent, as where it is said: ‘I take your homage saving the right of
[002] any other.’ Or thus: ‘I take your homage according to your right,’ when he holds
[003] some lands out of many others as to which other persons have right, which the lord
[004] ought not to warrant. ¹<But if the lord knows that there is no heir, or doubts whether
[005] [a son] is heir, because he is a bastard, if the lord bears himself as heir and claims the
[006] land against the tenant as his escheat,² and then takes homage, though he says ‘saving
[007] the right of any other’ he is bound to warrant, since by so impleading he acknowledges
[008] that there is no heir.>

If the vouchor held only for life; if certain persons are excepted.

[010] An heir is not bound to warrant one who has acknowledged in court that he held the
[011] tenement as to which he vouches the warrantor only for the life of the vouchees's
[012] ancestor. One is not bound to warrant against certain persons excepted in the gift by
[013] the modus of the gift, as where it is said, ‘I and my heirs will warrant against all persons
[014] except against such a one and such a one,’³ as [in the roll] of the eyre of the abbot
[015] of Reading and Martin of Pateshull in the county of Warwick, as assise of mortdancestor
[016] [beginning] ‘if William Trussel.’⁴

Where the gift provides that the donor is not bound to warranty.

[018] By the modus of the gift, by the consent of the donee, one is not bound to warrant
[019] though homage has been taken, as where one makes a gift to another for homage and
[020] service and provides in the charter, on behalf of the donor and his heirs, that if the
[021] donee is impleaded neither he nor his heirs are bound to escambium or warranty, as in
[022] the case of William Bruere, in many of his charters.⁵ Thus agreement defeats law,⁶ as
[023] in many other places. But what if when the donee is impleaded he vouches his feoffor
[024] to warranty because of the homage, which can be proved, and when the feoffor excepts
[025] that he is not bound to warranty by the modus of the gift, the donee is unwilling to
[026] produce the charter, since it works against him? Quaere whether he can be compelled
[027] to do so. And if he can be, [if] he answers that he does not have a charter, or if he had,⁷
[028] that he lost it by accident? It seems that proof fails though there is no absence of
[029] right, [unless one says that this is to be frustrated by the country,]⁸ therefore a
[030] donor would do wisely if at the outset he cautiously provided for himself by a written
[031] record of the agreement.

Notes

1. Supra i, 417, iii, 246

2. Om: ‘et per . . . heredem’

3. Supra ii, 119

4. Selden Soc. vol. 59, no. 1468; B.N.B., no. 196 (later stage)

5. Maitland's note to B.N.B., no. 196; supra ii, 118, 148, iv, 192, 215

6. Glanvill, x, 14; supra 192

7. ‘habuit’

8. Supra 27, 41, 217