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, and not the first grantor." /1/
Here we see that, in order to entitle the assign to the benefit of the first grantor's warranty, assigns must be mentioned in the original grant and covenant. The scope of the ancient obligation was not extended without the warrantor's assent. But when it was extended, it was not by a contrivance like a modern letter of credit. Such a conception would have been impossible in that stage of the law. By mentioning assigns the first grantor did not offer a covenant to any person who would thereafter purchase the land. If that had been the notion, there would have been a contract directly binding the first grantor to the assign, as soon as the land was sold, and thus there would have been two warranties arising from the same clause,—one to the first grantee, a second to the assign. But in fact the assign recovered on the original warranty to the first grantee. /2/ He could only come on the first grantor after a failure of his immediate grantor's heirs. The first grantor by mentioning assigns simply enlarged the limits of his grantee's succession. The assign could vouch the first grantor only on the principles of succession. That is to say, he could only do so when, by the failure of the first grantee's blood, the first grantee's feudal relation to the first grantor, his persona, came to be sustained by the assign. /3/
[375] This was not only carrying out the fiction with technical consistency, but was using it with good sense, as fictions generally have been used in the English law. Practically it made little difference whether the assign got the benefit of the first grantor's warranty mediately or immediately, if he got it. The trouble arose where he could not summon the mesne grantor, and the new right was given him for that case alone. Later, the assign did not have to wait for the failure of his immediate grantor's blood, but could take advantage of the first grantor's warranty from the beginning. /1/
If it should be suggested that what has been said goes to show that the first grantor's duty to warrant arose from the assign's becoming his man and owing homage, the answer is that he was not bound unless he had mentioned assigns in his grant, homage or no homage. In this Bracton is confirmed by all the later authorities. /2/
Another rule on which there are vast stores of forgotten learning will show how exactly the fiction fell in with the earlier law. Only those who were privy in estate with the person to whom the warranty was originally given, could vouch the original warrantor. Looking back to the early [376] procedure, it will be seen that of course only those in the same chain of title could even mediately get the benefit of a former owner's warranty. The ground on which a man was bound to warrant was that he had conveyed the property to the person who summoned him. Hence a man could summon no one but his grantor, and the successive vouchers came to an end when the last vouchee could not call on another from whom he had bought. Now when the process was abridged, no persons were made liable to summons who would not have been liable before. The present owner was allowed to vouch directly those who otherwise would have been indirectly bound to defend his title, but no others. Hence he could only summon those from whom his grantor derived his title. But this was equally well expressed in terms of the fiction employed. In order to vouch, the present owner must have the estate of the person to whom the warranty was made. As every lawyer knows, the estate does not mean the land. It means the status or persona in regard to that land formerly sustained by another. The same word was used in alleging a right by prescription, "that he and those whose estate he hath have for time whereof memory runneth not to the contrary," &c.; and it will be remembered that the word corresponds to the same requirement of succession there.
To return to Bracton, it must be understood that the description of assigns as quasi heredes is not accidental. He describes them in that way whenever he has occasion to speak of them. He even pushes the reasoning drawn from the analogy of inheritance to extremes, and refers to it in countless passages. For instance: "It should be noted that of heirs some are true heirs and some quasi [377] heirs, in place of heirs, &c.; true heirs by way of succession quasi heirs, &c. by the form of the gift; such as assigns," &c. /1/
If it should be suggested that Bracton's language is only a piece of mediaeval scholasticism, there are several answers. In the first place it is nearly contemporaneous with the first appearance of the right in question. This is shown by his citing authority for it as for something which might be disputed. He says, "And that warranty must be made to assigns according to the form of the gift is proved [by a case] in the circuit of W. de Ralegh, about the end of the roll,"&c. /2/ It is not justifiable to assume that a contemporary explanation of a new rule had nothing to do with its appearance. Again, the fact is clear that the assign got the benefit of the warranty to the first grantee, not of a new one to himself, as has been shown, and Bracton's explanation of how this was worked out falls in with what has been seen of the course of the German and Anglo-Saxon law, and with the pervading thought of the Roman law. Finally, and most important, the requirement that the assign should be in of the first grantee's estate has remained a requirement from that day to this. The fact that the same thing is required in the same words as in prescription goes far to show that the same technical thought has governed both.
I have said, Glanvill's predecessors probably regarded warranty as an obligation incident to a conveyance, rather than as a contract. But when it became usual to insert the undertaking to warrant in a deed or charter of feoffment, it lost something of its former isolation as a duty standing by itself, and admitted of being [378] generalized. It was a promise by deed, and a promise by deed was a covenant. /1/ This was a covenant having peculiar consequences attached to it, no doubt. It differed also in the scope of its obligation from some other covenants, as will be shown hereafter. But still it was a covenant, and could sometimes be sued on as such. It was spoken of in the Year Books of Edward III. as a covenant which "falls in the blood," /2/ as distinguished from those where the acquittance fell on the land, and not on the person. /3/
The importance of this circumstance lies in the working of the law of warranty upon other covenants which took its place. When the old actions for land gave way to more modern and speedier forms, warrantors were no longer vouched in to defend, and if a grantee was evicted, damages took the place of a grant of other land. The ancient warranty disappeared, and was replaced by the covenants which we still find in our deeds, including the covenants for seisin, for right to convey, against incumbrances, for quiet enjoyment, of warranty, and for further assurance. But the principles on which an assign could have the benefit of these covenants were derived from those which governed warranty, as any one may see by looking at the earlier decisions.
For instance, the question, what was a sufficient assignment to give an assign the benefit of a covenant for quiet enjoyment, was argued and decided on the authority of the old cases of warranty. /4/
[379] The assign, as in warranty, came in under the old covenant with the first covenantee, not by any new right of his own. Thus, in an action by an assign on a covenant for further assurance, the defendant set up a release by the original covenantee after the commencement of the suit. The court held that the assignee should have the benefit of the covenant. "They held, that although the breach was in the time of the assignee, yet if the release had been by the covenantee (who is a party to the deed, and from whom the plaintiff derives) before any breach, or before the suit commenced, it had been a good bar to the assignee from bringing this writ of covenant. But the breach of the covenant being in the time of the assignee,... and the action brought by him, and so attached in his person, the covenantee cannot release this action wherein the assignee is interested." /1/ The covenantee even after assignment remains the legal party to the contract. The assign comes in under him, and does not put an end to his control over it, until by breach and action a new right attaches in the assign's person, distinct from the rights derived from the persona of his grantor. Later, the assign got a more independent standing, as the original foundation of his rights sunk gradually out of sight, and a release after assignment became ineffectual, at least in the case of a covenant to pay rent. /2/
Only privies in estate with the original covenantee can have the benefit of covenants for title. It has been shown that a similar limitation of the benefits of the ancient [380] warranty was required by its earlier history before the assign was allowed to sue, and that the fiction by which he got that right could not extend it beyond that limit. This analogy also was followed. For instance, a tenant in tail male made a lease for years with covenants of right to let and for quiet enjoyment, and then died without issue male. The lessee assigned the lease to the plaintiff. The latter was soon turned out, and thereupon brought an action upon the covenant against the executor of the lessor. It was held that he could not recover, because he was not privy in estate with the original covenantee. For the lease, which was the original covenantee's estate, was ended by the death of the lessor and termination of the estate tail out of which the lease was granted, before the form of assignment to the plaintiff. /1/
The only point remaining to make the analogy between covenants for title and warranty complete was to require assigns to be mentioned in order to enable them to sue. In modern times, of course, such a requirement, if it should exist, would be purely formal, and would be of no importance except as an ear-mark by which to trace the history of a doctrine. It would aid our studies if we could say that wherever assigns are to get the benefit of a covenant as privies in estate with the covenantee, they must be mentioned in the covenant. Whether such a requirement does exist or not would be hard to tell from the decisions alone. It is commonly supposed not to. But the popular opinion on this trifling point springs from a failure to understand one of the great antinomies of the law, which must now be explained.
So far as we have gone, we have found that, wherever [381] one party steps into the rights or obligations of another, without in turn filling the situation of fact of which those rights or obligations are the legal consequences, the substitution is explained by a fictitious identification of the two individuals, which is derived from the analogy of the inheritance. This identification has been seen as it has been consciously worked out in the creation of the executor, whose entire status is governed by it. It has been seen still consciously applied in the narrower sphere of the heir. It has been found hidden at the root of the relation between buyer and seller in two cases at least, prescription and warranty, when the history of that relation is opened to a sufficient depth.
But although it would be more symmetrical if this analysis exhausted the subject, there is another class of cases in which the transfer of rights takes place upon a wholly different plan. In explaining the succession which is worked out between buyer and seller for the purpose of creating a prescriptive right, such as a right of way over neighboring land to the land bought and sold, it was shown that one who, instead of purchasing the land, had wrongfully possessed himself of it by force, would not be treated as a successor, and would get no benefit from the previous use of the way by his disseisee. But when the former possessor has already gained a right of way before he is turned out, a new principle comes into operation. If the owner of the land over which the way ran stopped it up, and was sued by the wrongful possessor, a defence on the ground that the disseisor had not succeeded to the former owner's rights would not prevail. The disseisor would be protected in his possession of the land against all but the rightful owner, and he would equally be protected [382] in his use of the way. This rule of law does not stand on a succession between the wrongful possessor and the owner, which is out of the question. Neither can it be defended on the same ground as the protection to the occupation of the land itself. That ground is that the law defends possession against everything except a better title. But, as has been said before, the common law does not recognize possession of a way. A man who has used a way ten years without title cannot sue even a stranger for stopping it. He was a trespasser at the beginning, he is nothing but a trespasser still. There must exist a right against the servient owner before there is a right against anybody else. At the same time it is clear that a way is no more capable of possession because somebody else has a right to it, than if no one had.
How comes it, then, that one who has neither title nor possession is so far favored? The answer is to be found, not in reasoning, but in a failure to reason. In the first Lecture of this course the thought with which we have to deal was shown in its theological stage, to borrow Comte's well-known phraseology, as where an axe was made the object of criminal process; and also in the metaphysical stage, where the language of personification alone survived, but survived to cause confusion of reasoning. The case put seems to be an illustration of the latter. The language of the law of easements was built up out of similes drawn from persons at a time when the noxoe deditio was still familiar; and then, as often happens, language reacted upon thought, so that conclusions were drawn as to the rights themselves from the terms in which they happened to be expressed. When one estate was said to be enslaved to another, or a right of way was said to be a quality or [383] incident of a neighboring piece of land, men's minds were not alert to see that these phrases were only so many personifying metaphors, which explained nothing unless the figure of speech was true.
Rogron deduced the negative nature of servitudes from the rule that the land owes the services, not the person,—Proedium non persona servit. For, said Rogron, the land alone being bound, it can only be bound passively. Austin called this an "absurd remark." /1/ But the jurists from whom we have inherited our law of easements were contented with no better reasoning. Papinian himself wrote that servitudes cannot be partially extinguished, because they are due from lands, not persons. /2/ Celsus thus decides the case which I took for my illustration: Even if possession of a dominant estate is acquired by forcibly ejecting the owner, the way will be retained; since the estate is possessed in such quality and condition as it is when taken. /3/ The commentator Godefroi tersely adds that there are two such conditions, slavery and freedom; and his antithesis is as old as Cicero. /4/ So, in another passage, Celsus asks, What else are the rights attaching to land but qualities of that land? /5/ So Justinian's Institutes speak of servitudes which inhere in buildings. /6/ So Paulus [384] speaks of such rights as being accessory to bodies. "And thus," adds Godefroi, "rights may belong to inanimate things." /1/ It easily followed from all this that a sale of the dominant estate carried existing easements, not because the buyer succeeded to the place of the seller, but because land is bound to land. /2/
All these figures import that land is capable of having rights, as Austin recognizes. Indeed, he even says that the land "is erected into a legal or fictitious person, and is styled 'praedium dominans.'" /3/ But if this means anything more than to explain what is implied by the Roman metaphors, it goes too far. The dominant estate was never "erected into a legal person," either by conscious fiction or as a result of primitive beliefs. /4/ It could not sue or be sued, like a ship in the admiralty. It is not supposed that its possessor could maintain an action for an interference with an easement before his time, as an heir could for an injury to property of the hereditas jacens. If land had even been systematically treated as capable of acquiring rights, the time of a disseisee might have been added to that Of the wrongful occupant, on the ground that the land, and not this or that individual, was gaining the easement, and that long association between the enjoyment of the privilege and the land was sufficient, which has never been the law.
All that can be said is, that the metaphors and similes employed naturally led to the rule which has prevailed, [385] and that, as this rule was just as good as any other, or at least was unobjectionable, it was drawn from the figures of speech without attracting attention, and before any one had seen that they were only figures, which proved nothing and justified no conclusion.
As easements were said to belong to the dominant estate, it followed that whoever possessed the land had a right of the same degree over what was incidental to it. If the true meaning had been that a way or other easement admits of possession, and is taken possession of with the land to which it runs, and that its enjoyment is protected on the same grounds as possession in other cases, the thought could have been understood. But that was not the meaning of the Roman law, and, as has been shown, it is not the doctrine of ours. We must take it that easements have become an incident of land by an unconscious and unreasoned assumption that a piece of land can have rights. It need not be said that this is absurd, although the rules of law which are based upon it are not so.
Absurd or not, the similes as well as the principles of the Roman law reappear in Bracton. He says, "The servitude by which land is subjected to [other] land, is made on the likeness of that by which man is made the slave of man." /1/ "For rights belong to a free tenement, as well as tangible things.... They may be called rights or liberties with regard to the tenements to which they are owed, but servitudes with regard to the tenements by which they are owed.... One estate is free, the other subjected to slavery." /2/ "[A servitude] may be called an arrangement by which house is subjected to house, farm to [386] farm, holding to holding." /1/ No passage has met my eye in which Bracton expressly decides that an easement goes with the dominant estate upon a disseisin, but what he says leaves little doubt that he followed the Roman law in this as in other things.
The writ against a disseisor was for "so much land and its appurtenances," /2/ which must mean that he who had the land even wrongfully had the appurtenances. So Bracton says an action is in rem "whether it is for the principal thing, or for a right which adheres to the thing,... as when one sues for a right of way, ... since rights of this sort are all incorporeal things, and are quasi possessed and reside in bodies, and cannot be got or kept without the bodies in which they inhere, nor in any way had without the bodies to which they belong." /3/ And again, "Since rights do not admit of delivery, but are transferred with the thing in which they are, that is, the bodily thing, he to whom they are transferred forthwith has a quasi possession of those rights as soon as he has the body in which they are." /4/
There is no doubt about the later law, as has been said at the outset.
We have thus traced two competing and mutually inconsistent principles into our law. On the one hand is the conception of succession or privity; on the other, that of rights inhering in a thing. Bracton seems to have vacillated a little from a feeling of the possibility of conflict between the two. The benefit of a warranty was confined to those who, by the act and consent of the [387] grantee, succeeded to his place. It did not pass to assigns unless assigns were mentioned. Bracton supposes grants of easements with or without mention of assigns, which looks as if he thought the difference might be material with regard to easements also. He further says, that if an easement be granted to A, his heirs and assigns, all such by the form of the grant are allowed the use in succession, and all others are wholly excluded. /1/ But he is not speaking of what the rights of a disseisor would be as against one not having a better title, and he immediately adds that they are rights over a corporeal object belonging to a corporeal object.
Although it may be doubted whether the mention of assigns was ever necessary to attach an easement to land, and although it is very certain that it did not remain so long, the difficulty referred to grew greater as time went on. It would have been easily disposed of if the only rights which could be annexed to land were easements, such as a right of way. It then might have been said that these were certain limited interests in land, less than ownership in extent, but like it in kind, and therefore properly transferred by the same means that ownership was. A right of way, it might have been argued, is not to be approached from the point of view of contract. It does not presuppose any promise on the part of the servient owner. His obligation, although more troublesome to him than to others, is the same as that of every one else. It is the purely negative duty not to obstruct or interfere with a right of property. /2/
[388] But although the test of rights going with the land may have been something of that nature, this will not help us to understand the cases without a good deal of explanation. For such rights might exist to active services which had to be performed by the person who held the servient estate. It strikes our ear strangely to hear a right to services from an individual called a right of property as distinguished from contract. Still this will be found to have been the way in which such rights were regarded. Bracton argues that it is no wrong to the lord for the tenant to alienate land held by free and perfect gift, on the ground that the land is bound and charged with the services into whose hands soever it may come. The lord is said to have a fee in the homage and services; and therefore no entry upon the land which does not disturb them injures him. /1/ It is the tenement which imposes the obligation of homage, /2/ and the same thing is true of villein and other feudal services. /3/
The law remained unchanged when feudal services took the form of rent. /4/ Even in our modern terms for years rent is still treated as something issuing out of the leased premises, so that to this day, although, if you hire a whole house and it burns down, you have to pay without abatement, because you have the land out of which the rent issues, yet if you only hire a suite of rooms and they are burned, you pay rent no longer, because you no longer have the tenement out of which it comes. /5/
[389] It is obvious that the foregoing reasoning leads to the conclusion that a disseisor of the tenant would be bound as much as the tenant himself, and this conclusion was adopted by the early law. The lord could require the services, /1/ or collect the rent /2/ of any one who had the land, because, as was said in language very like Bracton's, "the charge of the rent goes with the land." /3/
Then as to the right to the rent. Rent was treated in early law as a real right, of which a disseisin was possible, and for which a possessory action could be brought. If, as was very frequently the case, the leased land lay within a manor, the rent was parcel of the manor, /4/ so that there was some ground for saying that one who was seised of the manor, that is, who possessed the lands occupied by the lord of the manor, and was recognized by the tenants as lord, had the rents as incident thereto. Thus Brian, Chief Justice of England under Henry VII., says, "If I am disseised of a manor, and the tenants pay their rent to the disseisor, and then I re-enter, I shall not have the back rent of my tenants which they have paid to my disseisor, but the disseisor shall pay for all in trespass or assize." /5/ This opinion was evidently founded on the notion that the rent was attached to the chief land like an easement. Sic fit ut debeantur rei a re. /6/
Different principles might have applied when the rent was not parcel of a manor, and was only part of the reversion; that is, part of the landlord's fee or estate out of [390] which the lease was carved. If the ............