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.
Pages:
437
438
439
440
441
442
443
444
445
446
447
448
449
450
451
452
453
454
455
456
457
458
459
460
461