Kesselman's Lessee v. Old

Kesselman’s Lessee v. Old. Collateral warranty. A collateral warranty of an ancestor, who had no estate, in possession, of the premises, is an estoppel to his heir. The Stat. 4 Anne, c. 16, § 21, is not in force in Pennsylvania. s. c. 2 Yeates 509, reported as Lessee of Eshelman et al. v. Hoke. It appears in the report by Yeates, that sufficient real assets descended to the heirs. [MAJORITY] By the statute of 4 Anne, c. 16, § 21, it is enacted, that “ all collateral warranties, which shall bo made after the first day of Trinity term, of any lands, .tenements or hereditaments, by any ancestor, who has no estate of inheritance in possession in the same, shall be void against his heir.” In the present ejectment, the point was, whether the plaintiff was estopped by a collateral warranty of Ms ancestor, who had no estate of inheritance, in possession, of the premises ? After argument, and taking time to deliberate, the opinion of The Court was delivered by Shippen, Chief Justice, that there was no trace of the extension of the statute of the 4 Anne, c. 16, to Pennsylvania, by legislative oni authority, or judicial practice; and ^‘consequently, that the collateral -* warranty of the ancestor operated as an estoppel to his heir, the plaintiff. Judgment, for the defendant. But the collateral warranty only descends upon the eldest son, the heir at common law. Jourdan v. Jourdan, 9 S. & R. 268.