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In semi-barbarous ages the sovereign took matters into his own hands by seizing the franchise, and even the Plantagenets repeatedly suspended or revoked the liberties of London, often, no doubt, for cause, but sometimes also to make money by a resale; and a succession of these arbitrary forfeitures demonstrated that charters to be of value must be beyond the grantor's control.
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.
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/
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.
A similar but separate lease was made by the settlers on the Nolichucky, who acquired a beautiful and fertile valley in exchange for the merchandize carried on the back of a single pack-horse. Among the whites themselves transfers of land were made in very simple forms, and conveyed not the fee simple but merely the grantor's claim.
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/
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/
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.
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