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.
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