Chitty confirms this by 9 Mod. 326, and says "the lands will revert to the donor and not escheat," making the modern distinction between the two. So they would have done, as a life estate, after the statute of quia emptores. But as a freehold or fee they would not have returned to the donor if granted over to another: for which he cites cases in Bacon's Abt., Corporations, J. and 1 Roll. 816, 1, 10, 20. And if the corporation takes a fee (and it may certainly convey one to another) there seems no reason in the present law why the land should revert to the donor, since it is no longer held of him.

Upon the view taken by Blackstone it would be a more important question, practically, whether a corporation, the existence of which is limited to twenty, fifty, or any determinate number of years (as in the case of most American corporations under the general incorporation acts) can take a fee-simple, or freehold estate of any kind. That it can sell again and give to an individual grantee such a fee-simple, may be taken for granted, provided it has a freehold of any kind. This is "having a fee-simple for the purpose of alienation, but only a determinable fee for the purpose of enjoyment," as Mr. Preston said long ago. (1 Abstracts of Title, 272.) But can its estate be even a determinable fee, when the life of the owner is limited to a term? Could the fact that the corporation may be renewed for any number of such terms, one after another, make it a fee, any more than the right of indefinite renewal in a lease?

CHAPTER THE SIXTEENTH.

OF TITLE BY OCCUPANCY.

Occupancy is the taking possession of those things, which before belonged to nobody. [See note 48, page 406]. This, as we have seen, is the true ground and foundation of all property, or of holding those things in severalty, which by the law of nature, unqualified by that of society, were common to all mankind. But, when once it was agreed that everything capable of ownership should have an owner, natural reason suggested, that he who could first declare his intention of appropriating anything to his own use, and, in consequence of such intention, actually took it into possession, should thereby gain the absolute property of it; according to that rule of the law of nations, recognized by the laws of Rome, quod nullius est, id ratione naturali occupanti conceditur.*

This right of occupancy, so far as it concerns real property (for of personal chattels I am not in this place to speak), hath been confined by the laws of England within a very narrow compass; and was extended only to a single instance: namely, where a man was tenant per auter vie, or had an estate granted to himself only (without mentioning his heirs) for the life of another man, and died during the life of cestuy que vie, or him by whose life it was holden: in this case he, that could first enter on the land, might lawfully retain the possession so long as cestuy que vie lived, by right of occupancy.t

[259] This seems to have been recurring to first principles, and calling in the law of nature to ascertain the * Cited, 22 Ark. 500; 79 Am. Dec. 89. + Cited, 3 Colo. 356.

a See pag. 3 & 8.

b Ff. 41. 1. 3.

c Co. Litt. 41.

8

property of the land, when left without a legal owner. For it did not revert to the grantor, though formerly held so to do; for he had parted with all his interest, so long as cestuy que vie lived: it did not escheat to the lord of the fee; for all escheats must be of the absolute entire fee, and not of any particular estate carved out of it; much less of so minute a remnant as this; it did not belong to the grantee; for he was dead: it did not descend to his heirs; for there were no words of inheritance in the grant: nor could it vest in his executors; for no executors could succeed to a freehold. Belonging therefore to nobody, like the hæreditas jacens of the Romans, the law left it open to be seised and appropriated by the first person that could enter upon it, during the life of cestuy que vie, under the name of an occupant. But there was no right of occupancy allowed, where the king had the reversion of the lands; for the reversioner hath an equal right with any other man to enter upon the vacant possession, and where the king's title and a subject's concur, the king's shall be always preferred: against the king therefore there could be no prior occupant, because nullum tempus occurrit regi. And, even in the case of a subject, had the estate pur auter vie, being granted to a man and his heirs during the life of cestuy que vie, there the heir might, and still may, enter and hold possession, and is called in law a special occupant; as having a special exclusive right, by the terms of the original grant, to enter upon and occupy this hæreditas jacens, during the residue of the estate granted: though some have thought him so called with no very great propriety; and that such estate is rather a descendible freehold. But the title of common occupancy is now reduced

c Bract. 1. 2. c. 9. l. 4. tr. 3. c. 9. 4. Flet. l. 3. c. 12. § 6. l. 5. c. 5. § 15. d Co. Litt. 41.

e Vaugh, 201.

8 Previously, "who."

8

almost to nothing by two statutes: the one, 29 Car. II. c. 3. which enacts (according to the antient rule of law) that where there is no special occupant, in whom the estate may vest, the tenant pur auter vie may devise it by will, or it shall [260] go to the executors 5 or administrators 5 and be assets in their hands for payment of debts: the other that of 14 Geo. II. c. 20. which enacts, that the surplus of such estate pur auter vie, after payment of debts, shall go in a course of distribution like a chattel interest.

By these two statutes the title of common occupancy is utterly extinct and abolished: though that of special Occupancy [see note 49, page 411] by the heir at law, continues to this day; such heir being held to succeed to the ancestor's estate, not by descent, for then he must take an estate of inheritance, but as an occupant, specially marked out and appointed by the original grant. But, as before the statutes there could no common occupancy be had of incorporeal hereditaments, as of rents, tithes, advowsons, commons, or the likes (because, with respect to them, there could be no actual entry made, or corporal seisin had; and therefore by the death of the grantee pur auter vie a grant of such hereditaments was entirely determined), so now, I apprehend, notwithstanding these statutes, such grant would be determined likewise; and the hereditaments would not be devisable, nor vest in the executors, nor go in a course of distribution. For these 8 statutes must not be construed so as to create any new estate, or s

f Bract. ibid. Flet. ibid.

g Co. Litt. 41. Vaugh. 201.

5 Previously, "it shall vest not only in the executors, but, in case the tenant dies intestate, in the administrators also; and."

8 Previously, "The doctrine of common occupancy may however be usefully remembered on the following account, among others; that as by the common law no occupancy could be."

4

keep that alive which by the common law was determined, and thereby to defer the grantor's reversion; but merely to dispose of an interest in being, to which by law there was no owner, and which therefore was left open to the first occupant. When there is a residue left, the statutes give it to the executors and administrators, instead of the first occupant; but they will not create a residue, on purpose to give it to either. They only meant to provide an appointed instead of a casual, a certain instead of an uncertain, owner, of lands which before were nobody's; and thereby to supply this casus omissus, and render the disposition of law in all respects entirely uniform: this being the only instance wherein a title to a real estate could ever be acquired by occupancy.

[261] This, I say, was the only instance; for I think there can be no other case devised, wherein there is not some owner of the land appointed by the law. In the case of a sole corporation, as a parson of a church, when he dies or resigns, though there is no actual owner of the land till a successor be appointed, yet there is a legal, potential ownership, subsisting in contemplation of law; and when the successor is appointed, his appointment shall have a retrospect and relation backwards, so as to entitle him to all the profits from the instant that the vacancy commenced. And, in all other instances, when the tenant dies intestate, and no other owner of the lands is to be found in the common course of descents, there the law vests an ownership in the king, or in the subordinate lord of the fee by escheat.

So also in some cases, where the laws of other nations give a right by occupancy, as in lands newly created,

h See the statute 5 Geo. III. c. 17, which makes leases for one, two, or three lives by ecclesiastical persons or any eleemosynary corporation of tithes or other incorporeal hereditaments, as good and effectual to all intents and purposes as leases of corporeal possessions. 4 Previously, "etc."

4 Previously, "the executors."