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.
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