if the excepted part was specifically granted, as if a person grants two acres, excepting one of them." The exception is good when the granting part of the deed is in general terms, as in the grant of a messuage and houses, excepting the barn or dove-house; or in the grant of a piece of land, excepting the trees or woods; or the grant of a manor, excepting a close, ex verbo generali aliquid excipitur. If the exception be valid, the thing excepted remains with the grantor, with the like force and effect, as if no grant had been made."

(5.) Of the habendum.

This part of the deed was originally used to determine the interest granted, or to lessen, enlarge, explain, or qualify the premises. But it cannot perform the office of divesting the estate already vested by the deed; for it is void if it be repugnant to the estate granted. It has degenerated into a mere useless form; and the premises now contain the specification of the estate granted, and the deed becomes effectual without any habendum. If, however, the premises should be merely descriptive, and no estate be mentioned, then the habendum becomes efficient to declare the intention; and it will rebut any implication arising from the silence of the premises.d

Co. Litt. 47, a. 412. Plowd. 153, a. Case v. Haight, 3 Wend. 635. Ive v. Sams, Cro. E. 521. 2 Roll. Abr. 455. S. Touch. 77. The exception required by the New-York Statutes (Act of 25th February, 1789, c. 32, and of 28th February, 1789, c. 44. New-York Revised Statutes, vol. i. 198,) in patents of all gold and silver mines, is an instance of a valid exception within the rules of the common law. The doctrine of exceptions in a deed is fully stated in Shepard's Touch. by Preston, 78; and see, also, Lord Ch. J. Denman's exposition of the distinction between a reservation and an exception. Doe v. Lock, 4 Neville & Manning, 807.

e 2 Blacks. Com. 298. Goodtitle v. Gibbs, 5 Barnw. § Cress. 709. Deaver v. Rice, 3 Battle's N. C. Rep. 433.

If words of inheritance be wanting in the premises and habendum part of a deed, a life estate cannot be enlarged into a fee, by the use of those words in the covenants of warranty, for a warranty cannot enlarge the estate. Seymor's case, 10 Co. 419, Thomas & Fraser's edit.

(6.) Of the usual covenants in a deed.

The ancient warranty was a covenant real, or one concerning the realty, whereby the grantor of an estate of

freehold, and his heirs, were bound to warrant the *469 title; and either upon voucher, or by judgment *in a writ of warrantia charta, to yield other lands to the value of those from which there had been an eviction by a paramount title. The heir of the warrantor was bound only on condition that he had, as assets, other lands of equal value by descent. Lineal warranty was where the heir derived title to the land warranted, either from or through the ancestor who made the warranty; and collateral warranty was where the heir's title was not derived from the warranting ancestor; and yet it barred the heir from claiming the land by any collateral title, upon the presumption that he might thereafter have assets by descent from or through the ancestor; and it imposed upon him the obligation of giving the warrantee other lands in case of eviction, provided he had assets. These collateral warranties were deemed a great grievance; and, after successive efforts to be relieved from them, the statute of 4 Anne, c. 16, made void not only all warranties by any tenant for life, as against any person in reversion or remainder, but, as against the heir, all collateral warranties, by any ancestor who had no estate of inheritance in possession.

Co. Litt. 365, a.

b 2 Blacks. Com. 301, 302. In the case of a conveyance of land with warranty, and assets descend to the heir of the grantor of greater value than the land, and that heir be a female who marries, her husband is rebutted, on the principle of avoiding circuity of action, from claiming the land under a title paramount to that of the grantor; for in case of his recovery the purchaser would have an action on the warranty against him and his wife. Bates v. Norcross, 17 Pick. Rep. 14.

• The covenant real, together with almost all other real actions was abolished in England by the statute of 3 and 4 Wm. IV., c. 27. But if the decedent has an estate of inheritance in possession, and binds himself and his heirs by a general warranty, the heirs are barred with or without assets, and whether the warranty be lineal or collateral. Flynn v. Williams, 1 Iredell's N. C. Rep. 509.

The statute of Anne was re-enacted in New-York in 1788, and adopted in Rhode Island as early as 1749 ;* but the New-York Revised Statutes have made a more thorough reformation, for they have abolished both lineal and collateral warranties, with all their incidents, and made heirs and devisees answerable upon the covenant or agreement of the ancestor or testator, to the extent of the lands descended or devised. The settled rule of the common law is, that an express covenant will restrain or destroy a general implied covenant; but the New-York statutes have further declared, that no covenants shall be implied in any conveyance of real estate, whether such conveyance contain special covenants *or not. These provisions leave the indem- *470 nity of the purchaser for failure of title, in cases

See 1 Sumner's Rep. 358-263. In Virginia, according to the construction of the act of 1785, (1 Rev. Code, c. 13, p. 24,) all warranties, lineal or collateral, which descend without assets are void as to the heirs, but all warranties, whether commenced by disseisin or otherwise, are valid against the heirs of the warrantors, so far as assets descend from the warrantors. 2 Tucker's Black. 303, note 8. Lomax's Digest, vol. ii. 247.

b Vol. i. 739, sec. 141.

The statute of Anne does not appear to have been generally or formally re-enacted in our American statute laws, because the law of lineal and collateral warranties never has been generally adopted in our American jurisprudence.

Noke's case, 4 Co. 80. Deering v. Farrington, 1 Mod. Rep. 113. Merrill v. Frame, 4 Taunt. Rep. 329. Frost v. Baymond, 2 Caines, 188. Weiser v. Weiser, 5 Watts, 279. Line v. Stephenson, 4 Bingham's N. C. Rep. 678. S. C. 5 ibid. 183.

e New-York Revised Statutes, vol. i. 738, sec. 140.

The maxim caveat emptor is inapplicable to a purchaser from a trustee, and he may set up a want of consideration or of title, as a defence to an action for the purchase money. Adams v. Humes, 9 Watts' Rep. 305. But in a sale under a chaucery decree, it has been held, that after distribution of the purchase money, the purchaser, though afterwards evicted by a superior title, cannot have the sale rescinded by the court. He must submit to his loss. Glenn v. Clapp, 11 Gill & Johnson, 1. Nor does a sale by a trustee in breach of trust conclude the cestui que trust. Blackston v. Hemsworth Hospital, Duke on Charitable Uses, 644.

free from fraud, to rest upon the express covenants in the deed; and they have wisely reduced the law on this head to certainty and precision, and dismissed all the learning of warranties, which abounds in the old books, and was distinguished for its abstruseness and subtle distinctions. It occupies a very large space in the Commentaries of Lord Coke, and in the notes of Mr. Butler; and there was no part of the English law to which the ancient writers had more frequent recourse, to explain and illustrate their legal doctrines. Lord Coke declared "the learning of warranties to be one of the most curious and cunning learnings of the law;" but it is now admitted by Mr. Butler to have become, even in England, in most respects, a matter of speculation rather than of use. The ancient remedy on the warrantia charta had, however, this valuable incident: when the warrantor was vouched, and judgment passed against the tenant, the latter obtained judgment simultaneously against the warrantor, to recover other lands of equal value. This was the consolidation of the original action with the remedy over, without the expense and delay of a cross suit.a

The remedy by the ancient warranty never had, as I presume, any practical existence in any part of the United States, and personal covenants have superseded the old warranty; and they do not run with the land, but affect only the covenantor, and the assets in the hands of his representatives after his death. The

By the civil law, and also by that of France, and by the Louisianian code, if the buyer, who is sued, fails to cite his vendor in warranty, the latter is not liable for the costs and damages resulting from defending the action. The vendor called in warranty may either defend the suit, or abandon the defence, if he deems it hopeless. The Spanish law went to a severer extent, and by it the buyer, who failed to cite his vendor in warranty, lost all recourse on him. Delacroix v. Cenas, 20 Martin's Louis. Rep. 356.

b It has been doubted, in Virginia, whether a pure warrantia charte would lie in that state, since voucher was done away by statute. The technical

remedy is by an action of covenant against the grantor, or his real or personal representatives, to recover a compensation in damages for the land *lost upon *471 eviction for failure of title. Upon eviction of the freehold, no personal action of covenant lay at common law upon the warranty. The party had only a writ of warrantia chartæ upon his warranty, to recover a recompense in value to the extent of his freehold. But if the eviction did not defeat the freehold, and only interrupted the possession for a term, as by lease for years, in that case the party evicted might have covenant. The introduction of the personal covenants in lieu of the

words of a warranty were Ego et heredes mei warrantizabimus in perpetuum. But it was held that the covenant, in a deed of bargain and sale, that the grantor would warrant and for ever defend, was a personal covenant, and the bargainee was not driven to his ancient writ of warrantia charta. Tabb v. Binford, 4 Leigh, 132. The covenant of warranty, says Mr. Justice Story, in Stoddard v. Gibbs, 1 Sumner's Rep. 263, is, in this country, deemed a personal covenant, and may not authorize a recovery over of the value from the heir, if he has assets, in a warrantia charte, but only in an action of covenant; yet that does not prevent the covenant of warranty from operating as a bar to the title of the heir by way of rebutter, when it descends upon him from the warranting ancestor.

• If land be taken by statute for public purposes, upon compensation being made, such an eviction is not by reason of defect of title, and is not within the meaning of the covenant for quiet enjoyment. Frost v. Ernest, 4 Wharton, 86. If an entire failure of title be shown, the purchaser may recover back the price paid without eviction. Laurens v. Garnier, 10 Robinson, Louis. Rep. 425.

b Pincombe v. Rudge, Hobart's Rep. 3. Yelv. 139. S. C. If the grantee accepts a deed without covenants, and the case be free from fraud, he cannot recover back the consideration money, though the title fails. Frost v. Raymoud, 2 Caines' Rep. 188. Yeates, J., in 1 Serg. & Rawle, 447. Commonwealth v. Clanachan, 4 Randolph, 482. Abbott v. Allen, 2 Johns. Ch. Rep. 523. Emerson v. County of W., 9 Greenleaf, 88. Lighty v. Shorb, 3 Penn. Rep. 452. Krause v. Reigel, 2 Wharton, 385. Caveat emptor is a fixed maxim in such cases equally applicable to the transfer of lands and chattels. Maney v. Porter, 3 Humph. Tenn. Rep. 347. If land be sold in the absence of fraud, or of any particular agreement in favor of the title, the purchaser takes the title at his own risk and a failure of title cannot be set up as a defence to the note given for the purchase. Owings v. Thompson, 3 Scammon Rep. 502.