The opinion of the court was delivered by
Royce, J.— The first question is, whether the defendant is entitled to avail himself, as against the present plaintiff, of his vendue title acquired under the deed of William Park, in 1827. Before he acquired that title he must be considered as having held under the deed of Sophia Lyman, whose only right was that of tenant in dower. Her powers and duties, as such tenant, have not been made the subject of dispute in this trial. It is certain that she was bound to act with a due regard to the interests of those having the reversionary estate. She was not entitled to commit waste, or do any act,not essential to the proper enjoyment of her own estate, which would manifestly work an injury to the inheritance. And had the tax, upon which Park proceeded, been imposed upon the land while she remained in possession, as such tenant, it would have been her duty to discharge it. From this it would result, that neither in equity nor law could she be jpermitted, by exposing the estate to forfeiture, through the neglect of that duty, to gain a new title to herself and devest *411the right of the heirs. Her deed to the two Baldwins, it is true, professed to convey the land in fee, as did their subsequent deed to the defendant. But all these parties must be supposed to have known her title. - It was matter of record, and is referred to in both of said deeds. Now it isa settled and familiar principle, that an. assignee with notice always takes the right assigned, subject to its burdens and liabilities in the hands of the assignor. And, hence, the obvious conclusion is, that, sp far as these heirs were concerned, the Baldwins became only'tenants for the life of their grantor, and that the defendant took from them the same estate. The Baldwins and the defendant, in relation to the heirs, were, in effect, but successive' grantees or assignees of the estate in dower. And we are aware of no principle which] should absolve them from those obligations, which belonged to the nature of their estate, and which originally bound the widow herself. Although the attempt to pass an estate in fee, when only a life estate could be conveyed, might give a character to the grantee’s possession and claim of title, as to third persons, yet as to the heirs, it had the same effect as a conveyance expressly limited to the life estate. It was, therefore, the defendant’s duty to save the property from forfeiture by paying the tax in question. And if he thought a vendue title was needed as a protection of his life estate, that protection should be the measure of benefit to be sought from it.
The remaining point in the case belongs to a branch of common law, which has rarely, if ever, been brought under judicial discussion in this state. It is contended that the plaintiff is barred from asserting his title by force of the warranty contained in the deed of his mother to the Baldwins. All covenants are now practically treated as personal demands, to be enforced against the person or estate of the covenantor, if broken in time to be so prosecuted ; and if the estate has been distributed before a cause of action accrues upon the covenant, it may be followed in the hands of heirs. We have no occasion, however, to decide, in this case, how far the ancient doctrines upon the descent and operation of lineal warranties should be regarded as part of our existing law. The present is a case of collateral warranty, since the plaintiff inherited the land from his father, and not *412from the tenant in dower, who gave the warranty. By the original common law, this warranty would be held to have descended upon the plaintiff, and his right to claim the land would be accordingly barred. But the reasons for giving effect to this species of warranty, have, for centuries, been considered as refined and unsatisfactory. The doctrine became odious for its practical injustice, and was abolished by statute, in England, as early as the time of Anne. Some of the states, particularly New York and Connecticut, have thought it necessary or expedient to pass similar statutes on the subject. In this state we have no such enactment, and the question is, whether, in the absence of such a statute, we are bound to enforce this rule of the common law. At an early stage of our existence as a state sovereignty, the legislature adopted so much of the common law of England as was “ applicable to our local situation and circumstances, and not repugnant to the constitution, or any statute law of this state.” The preamble to this statute alleges, as a principal reason for passing it, that the inhabitants had been accustomed to conform their manners to the law of England. This allusion to the habits and experience of the people is entitled to much weight in the construction of a statute where its^erms are so indefinite. It points to the law of England (the lex non scripta) as they had been practically acquainted with it. But since the rule, now sought to be enforced, had, for some ages, ceased to form a part of the law of England, there is no ground to suppose that the customs or opinions of our community had been shaped with any reference to it. It would, therefore, seem that, upon this ground, the doctrine contended for might justly be overruled. But a more decisive objection arises from its manifest want of equity and justice. As this has been deemed a good cause for directly abrogating the rule in other places, it must furnish a conclusive reason for saying, in the exposisition of our statute, that the rule is not applicable to the situation and circumstances of this state.
Judgment of the county court affirmed*