(1.) The deed executed in France, though null by the laws of that state from want of a stamp, will receive effect in this country; because the courts of one state are not bound by the law of nations to enforce the revenue laws of another. [See in confirmation as to a bill drawn out of Scotland, Stewart, 9 M'P. 1057.]

(2.) But the deed executed in Canada, if null there from want of a stamp, will likewise be ineffectual here; because the reciprocal enforcement of the Stamp Laws of this country may be secured in the Colonies.'(p)

IX. CLAUSES COMMON TO MOST DEEDS.

(1.) Narrative.

191. What is the effect of deeds in which the granter or one of the witnesses is not designed, but can easily be identified? State the reason.

(1.) Deeds in which the granter is not designed are valid, if there be no doubt of his identity; (r) but an exception obtains in the case of deeds granted under the Entail Amendment Act, 1848, it being indispensable in such deeds to specify the granter's designation and place of abode. (s)

(2.) A deed wanting the designation of one of the witnesses is null; because that is a statutory solemnity not suppliable by condescendence. [But see Ans. 15.]

Dickson's Evid. i. 516 (§ 1003).

2 1681, c. 5.

(p) See Tilsley on the Stamp Laws, pp. 282, 3, where the same view is stated, though, it is added, without any direct authority for the distinction as to the Colonies.

(r) The evidence of the granter's identity, however, must be found in the deed itself, so that it must contain some description of him, as by his profession or residence, &c., though there is no fixed rule as to the kind of description, provided it be sufficient. There is a case (Dickson, 22nd Dec. 1710, M. 16916) in which an assignation by the husband to the wife in a marriage-contract was sustained, though the husband, who was also the writer, was not designed either in the deed or in the testing-clause; but were the case occurring now, the result would probably be different.

(8) The residence of parties is required in certain proceedings under the Act (see §§ 6 and 33, and Jur. Styles, i. 278 et seq.), but not apparently in all deeds granted under its provisions.

192. Does a party require judicial authority for changing his

name?

Judicial authority is not required in the general case [see in confirmation, Forlong, 7 R. 910];(t) but a notary public cannot execute instruments by a name different from that which he had when admitted, without authority to that effect from the Court.

193. Is it indispensable that deeds express the cause of granting?

A statement of the consideration is indispensable,(u) under the Stamp Acts, in deeds of conveyance and sale [Stamp Act, 1870, § 10]; and although in other cases a specification of the cause of granting may not be essential, it is always advisable to insert it, not only for the elucidation of the deed, but because that is the criterion for determining the kind of warrandice implied in the transaction.1

(2.) Clause of Warrandice.

194. Define Warrandice.

Warrandice is an obligation by the granter that the subject of the grant shall be effectual to the receiver, and not be evicted from him by any one having a better or preferable title; and, without any special clause, it is implied in all deeds, either in a more extended or in a more limited degree, according to the nature of the right."

195. Enumerate the different kinds of warrandice, and specify the classes of deeds to which they respectively

relate.

1 Menzies Lect. 145 (151).

2 Ersk. 2, 3, 25.

(t) See observations per Lord President Hope in Young, 14th Jan. 1835, 13 S. 26; Kinloch, 13th Dec. 1853, 16 D. 1819. In earlier cases (Muir, M. 7448; Mow., Act of Sederunt, 11th August, 1789) authority had been granted; and it was again granted, Inglis, 29th Nov. 1837, 16 S. 111. The rule in England in this respect is different.

(u) If by "indispensable" it is meant that the omission to recite the consideration money would render the conveyance null, this statement is incorrect. The omission involves very heavy penalties to the parties, and also to the agent, but not nullity of the deed; 48 Geo. III. c. 149, §§ 22 to 25.

(1.) Simple warrandice; securing the grantee against the granter's future deeds, except such as he was previously bound to execute; posterior deeds inconsistent with the right being deemed fraudulent. This is the warrandice implied in gratuitous deeds.

(2.) Warrandice from fact and deed; securing the grantee against the past and future deeds of the granter. It is the warrandice implied in transactions and sales for an inadequate price; and it is that which is generally expressed in conveyances of personal rights.(2)

(3.) Absolute warrandice at all hands, and against all mortals; protecting the grantee not only against the acts of the granter and his predecessors, but against all defects that may appear to have been in his right antecedently to the grant. But liability under the warrandice is incurred only upon eviction arising from defect of right, and not from the nature of the subject, nor from a damnum fatale, nor from a supervenient law. It is implied in all onerous deeds, (y) and it is inferred by the statutory clause, "I grant warrandice," in land rights, whether onerous or gratuitous.

(4.) Real warrandice, when express, is where one heritable subject is disponed to the purchaser of another, in security against eviction of the latter. It is implied in excambions, and gives either of the parties recourse upon his own original lands, in the event of his being evicted from the lands acquired by him in exchange.1

196. A debt of £1000 being assigned for an onerous consideration, with warrandice from fact and deed, and no debt being found to exist, has the assignee any claim; and if so, against whom, to what extent, and upon what ground?

The assignee has a claim against the cedent for the full amount of £1000; because warrandice from fact and deed in an

1 Ersk. 2, 3, 25 et seq.; Bell's Prin. 122 et seq.

(x) And in assignations of debts and securities.

(y) This goes rather too far. Absolute warrandice is implied in irredeemable conveyances of land and other heritable subjects for an adequate price; but not in conveyances of debts, obligations, and securities, though these also may be, and generally are, onerous.

assignation of debt does not exclude the implied warrandice of debitum subesse.' It is said that in redeemable and personal rights the measure of the warrandice is the sum actually paid; but this doctrine is disputed by Erskine.3

197. Two debts being assigned for a full price, one with

warrandice at all hands, and the other with warrandice that the debt shall be good, valid, and effectual to the assignee; Has the assignee any claim against the cedent, under either assignation, on the bankruptcy of the debtor? State the reason.

The assignee has no claim against the cedent under either assignation; because absolute warrandice in an assignation of a debt, or that it shall be good, valid, and effectual, does not imply that the cedent guarantees the solvency of the debtor, which is a matter extrinsic of the obligation; but only (1) that the debt exists, and (2) that the cedent's title is unexceptionable.*

198. The estates, called A and B, having been sold for a full price, with warrandice from the seller's facts and deeds, the former was evicted from the purchaser in consequence of a defect in the title of the seller's ancestor, and the latter was carried off by an adjudication, led upon a preferable security granted by the seller; Has the purchaser any claim under the warrandice against the seller?

(1.) The purchaser has no claim against the seller in respect of the estate of A; because the eviction was not occasioned by the fact or deed of the seller, and warrandice from fact and deed does not secure the grantee against the acts or omissions of the granter's predecessors or authors, unless it be so expressed.

(2.) The purchaser has a claim under the warrandice in respect of the estate of B, entitling him to demand that the seller shall instantly procure a discharge of the security and adjudication; or, if the adjudication has become irredeemable, pay the value of the estate at the date of the eviction; the ground of the claim being that the warrandice expressed in the conveyance gives protection 3 Ersk. 2, 3, 30.

1 Ferrier, 16th May, 1828, 6 S. 818. Stair, 2, 3, 46; Bankton, 2, 3, 124; Menzies Lect. 153 (158).

against the acts or deeds, past or future, of the seller; and that the eviction of the estate resulted from a deed granted by him.

199. If a husband, after burdening his estate with heritable securities, were to dispone it gratuitously to his wife in liferent, without express warrandice, or with absolute warrandice, or with the clause "I grant warrandice;" Would she be entitled to be relieved of the interest of the securities?

(1.) If no warrandice were expressed, the wife's right would be burdened with the interest of the securities; her right being gratuitous, in which simple warrandice is implied.

(2.) If the wife's disposition contained a clause of absolute warrandice, she would be entitled to be relieved of the interest; because express warrandice prevails over that which is implied.'

(3.) If the disposition contained the clause "I grant warrandice," the wife would be entitled to relief of the interest; because that clause imports absolute warrandice, whatever may be the nature of the transaction.

200. Where a deed contains a clause expressly exempting the granter from warrandice, may he grant an inconsistent deed?

No; because posterior deeds inconsistent with the grantee's right are deemed fraudulent; and "no agreement, let it be ever so explicit, ought to protect against the consequences of fraud and deceit."2

201. The rental of lands allocated for a widow's jointure being warranted to amount to a certain sum yearly, is the warrandice incurred by a diminution of the rental caused by a damnum fatale?

Yes; "because, in the case stated, the granter is precisely

1 Strong, 29th Jan. 1851, 13 D. 548.(z).

2 Ersk. 2, 3, 27.

(z) The same has been found in a case less favourable for giving effect to the principle; Coventry, 8th July, 1834, 12 S. 895.