In real property law. A real covenant by the grantor of lands, for himself and his heirs, to warrant and defend the title and/possession of the estate granted, to the grantee and his heirs, whereby, either upon voucher, or judgment in the writ of tcarrantia charted, and the eviction of
More... In real property law. A real covenant by the grantor of lands, for himself and his heirs, to warrant and defend the title and/possession of the estate granted, to the grantee and his heirs, whereby, either upon voucher, or judgment in the writ of tcarrantia charted, and the eviction of the grantee by paramount title, the grantor was bound to recompense him with other lands of equal value. Co. Litt. 365a. In sales of personal property. A warranty is a statement or representation made by the seller of goods, contemporaneously with and as a part of the contract of sale, though collateral to the express object of it, having reference to the character, quality, or title of the goods, and by which he promises or undertakes to insure that certain facts are or shall be as he then represents them. A warranty is an engagement by which a seller assures to a buyer the existence of some fact affecting the transaction, whether past, present, or future. Civ. Code Cal. | 1763. In contracts. An undertaking or stipu-lation, in writing, or verbally, that a certain fact in relation to the subject of a contract Is or shall be as it is stated or promised to be. A warranty differs from a representation in that a warranty must always be given contem-poraneously with, and as part of, the contract; whereas a representation precedes and induces to the contract. And, while that is their difference in nature, their difference in consequence or effect is this: that, upon breach of warranty, (or false warranty,) the contract re¬mains binding, and damages only are recov¬erable for the breach; whereas, upon a false representation, the defrauded party may elect to avoid the contract, and recover the entire price paid. Brown.
The same transaction cannot be characterized as a warranty and a fraud at the same time. A warranty rests upon contract, while fraud, or fraudulent representations have no element of contract in them, but are essentially a tort. When judges or law-writers speak of a fraudu¬lent warranty, the language is neither accurate nor perspicuous. If there is a breach of war¬ranty, it cannot be said that the warranty was fraudulent, with any more propriety than any other contract can be said to have been fraudulent, because there has been a breach of it. On the other hand, to speak of a false representation as a contract or warranty, or as tend¬ing to prove a contract or warranty, is a perversion of language and of correct ideas. Rose v. Hurley, 39 Ind. 81. In insurance. In the law of Insurance, "warranty" means any assertion or under-taking on the part of the assured, whether expressed in the contract or capable of being annexed to it, on the strict and literal truth or performance of which the liability of the underwriter Is made to depend. Maude A P. Shipp. 377; Sweet.—Affirmative warranty. In the law of insurance, warranties may be either affirmative or promissory. Affirmative warranties may be ei¬ther express or implied, but they usually consist of positive representations in the policy of the existence of some fact or state of things at the time, or previous to the time, of the making of the policy; and they are, in general, conditions precedent, which, if untrue, whether ma¬terial to the risk or not, the policy does not at¬tach, as it is not the contract of the insurer. Maupin v. Insurance Co., 53 W. Va. 557, 45 S. E. 1003; Hendricks v. Insurance Co., 8 Johns* (N. Y.) 1; Cowan v. Insurance Co., 78 Cal. 181, 20 Pac. 408.—Collateral warranty, in old conveyancing, was where the heir's title to the land neither was nor could have been derived from the warranting ancestor. Thus where a younger brother released to his father's dis¬seisor, with warranty, this was collateral to the elder brother. The whole doctrine of collalateral warranty seems repugnant to plain and unsophisticated reason and justice; and even its technical grounds are so obscure that the ablest legal writers are not agreed upon the subject. Wharton. Micheau v. Crawford, 8 N. J. Law, 106.—Continuing warranty. One which applies to the whole period during which the contract is in force; e. g.t an undertaking in a charter-party that a vessel shall continue to be of the same class that she was at the time the charter-party was made.—Covenant of warranty. See COVENANT.—Express warranty. In contracts and sales, one created by the apt and explicit statements of the seller or person to be bound. See Borrekins v. Bevan, 3 Rawle (PaJ 36, 23 Am. Dec. 85; White v. Stelloh, 74 Wis. 435. 43 N. W. 99; Danforth v. Crookshanks, 68 Mo. App.1 316. In the law of insurance, an agreement expressed in a policy, whereby the assured stipulates that certain facts relating to the risk are or shall be true, or certain acts relating; to the subject have been or shall be done. 1 Phil. Ins.(4th Ed.) p. 425: Petit v. German Ins. Co. (C. C.) 98 Fed. 802; jEtna Ins. Co. v. Grube, 6 Minn. 82 (Gil. 32); Insurance Co. v. Morgan; 90 Va. 290, 18 S. E. 191.—General warranty. The name of a covenant of warranty inserted in deeds, by which the grantor binds himself, his heirs, etc., to "warrant and forever defend" to the grantee, his heirs, etc., the title thereby con¬veyed, against the lawful claims of all persons whatsoever. Where the warranty is only against the claims of persons claiming "by, through, or under" the grantor or his heirs, it is called a "special warranty."—Implied warranty. A warranty raised by the law as an inference from the acts of the parties or the circumstances of the transaction. Thus, if the seller of a chattel have possession of it and sell it as his own. and not as agent for another, and for a fair price, he is understood to warrant the title. 2 Kent* Comm. 478. A warranty implied from the gen¬eral tenor of an instrument, or from particular words used in it. although no express warranty is mentioned. Thus, in every policy of insurance there is an implied warranty that the ship is sea¬worthy when the policy attaches. 3 Kent Comm. 287; 1 Phil. Ins. 308.—Lineal warranty. In old conveyancing, the kind of war-ranty which existed when the heir derived title to the land warranted either from or through the ancestor who made the warranty.—Personal warranty. One available in personal actions, and arising from the obligation which one has contracted to pay the whole or part of a debt due by another to a third person. Flanden v. Seelye, 105 TJ. S. 718, 26 L Ed. 1217. —Promissory warranty. A term used chief¬ly in the law of insurance, and meaning a war-ranty which requires the performance or omis¬sion of certain things or the existence of cer¬tain facts after the beginning of the contract of insurance and during its continuance, and the breach of which will avoid the policy. See King v. Relief Ass'n, 35 App. Div. 58» 54 N. Y. Supp. 1057; Maupin v. Insurance Co., 53 W. Va. 557, 45 S. E. 1003; McKenzie v. Insurance Co., 112 Cal. 548, 44 Pac. 922.—Special warranty. A clause of warranty inserted in a deed of lands, by which the grantor covenants, for himself and his heirs, to lYwarrant and forever defend" the title to the same, to the grantee and his heirs, etc., against all persons claiming "by, through, or under" the grantor or his heirs. If the war¬ranty is against the claims of all persons what¬soever, it is called a "general,r warranty.«r-Warranty deed. One which contains a cove¬nant of warranty.—Warranty, voucher to. In old practice. The calling a warrantor into court by the party warranted, (when tenant in a real action brought for recovery of such lands,) to defend the suit for him. Co. Litt. 1016.
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