But there was another ancient obligation which had a different history.  I refer to the warranty which arose upon the transfer of property.  We should call it a contract, but it probably presented itself to the mind of Glanvill’s predecessors simply as a duty or obligation attached by law to a transaction which was directed to a different point; just as the liability of a bailee, which is now treated as arising from his undertaking, was originally raised by the law out of the position in which he stood toward third persons.

After the Conquest we do not hear much of warranty, except in connection with land, and this fact will at once [372] account for its having had a different history from debt.  The obligation of warranty was to defend the title, and, if the defence failed, to give to the evicted owner other land of equal value.  If an ancestor had conveyed lands with warranty, this obligation could not be fulfilled by his executor, but only by his heir, to whom his other lands had descended.  Conversely as to the benefit of warranties made to a deceased grantee, his heir was the only person interested to enforce such warranties, because the land descended to him.  Thus the heir continued to represent his ancestor in the latter’s rights and obligations by way of warranty, after the executor had relieved him of the debts, just as before that time he had represented his ancestor in all respects.

If a man was sued for property which he had bought from another, the regular course of litigation was for the defendant to summon in his seller to take charge of the defence, and for him, in turn, to summon in his, if he had one, and so on until a party was reached in the chain of title who finally took the burden of the case upon himself.  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

Suppose, now, that A gave land to B, and B conveyed over to C. If C was sued by D, claiming a better title, C practically got the benefit of A’s warranty, 2 because, when he summoned B, B would summon A, and thus A [373] would defend the case in the end.  But it might happen that between the time when B conveyed to C, and the time when the action was begun, B had died.  If he left an heir, C might still be protected.  But supposing B left no heir, C got no help from A, who in the other event would have defended his suit.  This no doubt was the law in the Anglo-Saxon period, but it was manifestly unsatisfactory.  We may conjecture, with a good deal of confidence, that a remedy would be found as soon as there was machinery to make it possible.  This was furnished by the Roman law.  According to that system, the buyer stood in the place of his seller, and a fusion of the Roman with the Anglo-Saxon rule was all that was needed.