Pile v. Benham , 4 Tenn. 176 ( 1817 )

This is an appeal in the nature of a writ of error. The bargainor warranted to the bargainee; and, on a trial in ejectment, the bargainee released the warranty and offered him as a witness. A warranty is real or personal; when binding the warrantor, his heirs, executors, and administrators, a personal action lies. That may he released without doubt, though the release be not registered, which is the point insisted on. A real covenant rebuts the bargainor from claiming against the bargainee. Salk. 685; 3 Rep. 58, 59; 8 Rep. 54; Saunders on Uses, 332; 2 Roll. Ab. 786, 787, Pl. 1. He may, notwithstanding that, be a witness for the bargainee. 1 Str. 444. Also, a real warranty gives to the grantee, when it passes by a common-law conveyance, the right to sue awarrantia chartae, and to vouch and recover over in value. A liability in these actions will repel the warrantor as a witness; but these actions do not pass by the deed of bargain and sale to thecestui que use. He gets by the statute the same title to the land as he had in the use. It passes from him who is seised to the use, but the warranty does not pass with it. The bargainee, in the language of the law, is in the post; and as the warranty or covenant real does not pass to the bargainee, therefore he has no action thereby against the bargainor, and he can not be rejected on the ground of liability to the action of the bargainee if the land be lost.

Then, if the witness be not objectionable on account of the real covenant, and the personal one be well released, as it is without registration, the whole objection is removed; the witness was legally admissible. The Act of 1756, c. 6, speaks of conveyances for lands, tenements, and hereditaments which are to pass by registration; and a warranty real is a hereditament; but as the bargainee has it not to release, but only the personal covenant, therefore the release operates only upon the Latter, and is a conveyance of that which is not a hereditament; for if broken, and the warrantee die, the executor or administrator shall have the action. When it is said that, notwithstanding a rebutter, the person liable to it may be a witness, it is meant, if there be nothing but that to object to him.