按键盘上方向键 ← 或 → 可快速上下翻页，按键盘上的 Enter 键可回到本书目录页，按键盘上方向键 ↑ 可回到本页顶部！
————未阅读完？加入书签已便下次继续阅读！
one particular branch； where the Roman law was grafted upon the English stock。
There can be no doubt which answer is most probable； but it cannot be proved without difficulty。 As has been said； the heir ceased to be the general representative of his ancestor at an early date。 And the extent to which even he was identified came to be a matter of discussion。 Common sense kept control over fiction here as elsewhere in the common law。 But there can be no doubt that in matters directly concerning the estate the identification of heir and ancestor has continued to the present day； and as an estate in fee simple has been shown to be a distinct persona； we should expect to find a similar identification of buyer and seller in this part of the law； if anywhere。
Where the land was devised by will； the analogy applied with peculiar ease。 For although there is no difference in principle between a devise of a piece of land by will and a conveyance of it by deed； the dramatic resemblance of a devisee to an heir is stronger than that of a grantee。 It will be remembered that one of the Roman jurists said that a legatarius （legatee or devisee） was in a certain sense quasi heres。 The English courts have occasionally used similar expressions。 In a case where a testator owned a rent； and divided it by will among his sons； and then one of the sons brought debt for his part； two of the judges； while admitting that the testator could not have divided the tenant's liability by a grant or deed in his lifetime； thought that it was otherwise with regard to a division by will。 Their reasoning was that 〃the devise is quasi ＇370＇ an act of law； which shall inure without attornment； and shall make a sufficient privity； and so it may well be apportioned by this means。〃 /1/ So it was said by Lord Ellenborough； in a case where a lessor and his heirs were entitled to terminate a lease on notice； that a devisee of the land as heres factus would be understood to have the same right。 /2/
But wills of land were only exceptionally allowed by custom until the reign of Henry VIII。； and as the main doctrines of conveyancing had been settled long before that time； we must look further back and to other sources for their explanation。 We shall find it in the history of warranty。 This； and the modern law of covenants running with the land； will be treated in the next Lecture。
＇371＇ LECTURE XI。
SUCCESSIONS。 II。 INTER VIVOS。
The principal contracts known to the common law and suable in the King's Courts； a century after the Conquest； were suretyship and debt。 The heir； as the general representative of his ancestor's rights and obligations； was liable for his debts； and was the proper person to sue for those which were due the estate。 By the time of Edward III。 this had changed。 Debts had ceased to concern the heir except secondarily。 The executor took his place both for collection and payment。 It is said that even when the heir was bound he could not be sued except in case the executor had no assets。 /1/
But there was another ancient obligation which had a different history。 I refer to the warranty which arose upon the transfer of property。 We should call it a contract； but it probably presented itself to the mind of Glanvill's predecessors simply as a duty or obligation attached by law to a transaction which was directed to a different point； just as the liability of a bailee； which is now treated as arising from his undertaking； was originally raised by the law out of the position in which he stood toward third persons。
After the Conquest we do not hear much of warranty； except in connection with land； and this fact will at once ＇372＇ account for its having had a different history from debt。 The obligation of warranty was to defend the title； and； if the defence failed； to give to the evicted owner other land of equal value。 If an ancestor had conveyed lands with warranty； this obligation could not be fulfilled by his executor； but only by his heir； to whom his other lands had descended。 Conversely as to the benefit of warranties made to a deceased grantee； his heir was the only person interested to enforce such warranties； because the land descended to him。 Thus the heir continued to represent his ancestor in the latter's rights and obligations by way of warranty； after the executor had relieved him of the debts； just as before that time he had represented his ancestor in all respects。
If a man was sued for property which he had bought from another； the regular course of litigation was for the defendant to summon in his seller to take charge of the defence； and for him； in turn； to summon in his； if he had one； and so on until a party was reached in the chain of title who finally took the burden of the case upon himself。 A contrast which was early stated between the Lombard and the Roman law existed equally between the Anglo…Saxon and the Roman。 It was said that the Lombard presents his grantor； the Roman stands in his grantor's shoes；Langobardus dat auctorem； Romanus stat loco auctoris。 /1/
Suppose； now； that A gave land to B； and B conveyed over to C。 If C was sued by D； claiming a better title； C practically got the benefit of A's warranty； /2/ because； when he summoned B； B would summon A； and thus A ＇373＇ would defend the case in the end。 But it might happen that between the time when B conveyed to C； and the time when the action was begun； B had died。 If he left an heir； C might still be protected。 But supposing B left no heir； C got no help from A； who in the other event would have defended his suit。 This no doubt was the law in the Anglo…Saxon period； but it was manifestly unsatisfactory。 We may conjecture； with a good deal of confidence； that a remedy would be found as soon as there was machinery to make it possible。 This was furnished by the Roman law。 According to that system； the buyer stood in the place of his seller； and a fusion of the Roman with the Anglo…Saxon rule was all that was needed。
Bracton； who modelled his book upon the writings of the mediaeval civilians； shows how this thought was used。 He first puts the case of a conveyance with the usual clause binding the grantor and his heirs to warrant and defend the grantee and his heirs。 He then goes on： 〃Again one may make his gift greater and make other persons quasi heirs ＇of his grantee＇； although； in fact； they are not heirs； as when he says in the gift； to have and to hold to such a one and his heirs； or to whomsoever he shall choose to give or assign the said land； and I and my heirs will warrant to the said so and so； and his heirs； or to whomsoever he shall choose to give or assign the said land； and their heirs； against all persons。 In which case if the grantee shall have given or assigned the land； and then have died without heirs； the ＇first＇ grantor and his heirs begin to hold the place of the first grantee and his heirs； and are in place of the first grantee's heir （pro herede） so far as concerns warranting to his assigns and their heirs ＇374＇ according to the clause contained in the first grantor's charter； which would not be but for the mention of assigns in the first gift。 But so long as the first grantee survives； or his heirs； they are held to warranty； an