though some of the reasoning (see p. 467) is very ambiguous.

But in Illinois, Lester v. White's Heirs, 44 Tll. 464, 1867, is express, that "this right is not a mere chattel interest. The pre-emption laws grant to the pre-emptor an estate in land upon conditions which become[s] absolute upon the performance of those conditions. (McConnell v. Wilcox, 1 Scam. 344; Isaacs v. Steel, 3 Scam. 97; Bruner v. Manlove, 3 Scam. 339.) It has been said by this court in subsequent cases that the interest acquired by a pre-emption right is not an estate, within any definition known to the common law. It is not an interest in the legal title, but merely a right of occupancy for the time being, with the privilege of purchasing at some future period, at a stipulated price. Such interests, however, are regarded by the courts of this state as property which may pass by deed or other transfer (Delauney v. Burnett, 4 Gilm. 454; May v. Symms, 20 Ill. 95), and is liable to be taken and sold under execution, and of passing to an assignee under a decree of bankruptcy. (Turney v. Saunders, 4 Scam. 527; French v. Carr, 2 Gilm. 664.) The interest in the land occupied by the pre-emption is such an interest as descends to the heir at law, and does not go to the executor." (44 Ill. 466, 467.) Phelps v. Kellogg, 15 Ill. 435, held that pre-emption gave no title to the land, and yet recognizes the pre-emption right as the subject of a sale. Thredgill v. Pintard, 12 How. 24, is an authority on the latter point.

In the recent case of Frisbie v. Whitney, 9 Wall. 187, and 4 West. Jur. 69, 1870, the Supreme Court of the United States decides that while occupation and improvement on the public lands with a view to pre-emption do not confer a vested right in the land so occupied [against the United States is clearly the meaning], they do confer a preference over others in the purchase of such lands by the bona fide settler, which will enable

2 BLACKST.-35.

him to perfect his possession against other individuals, and which the land officers are bound to respect. This inchoate right may be protected by the courts against the claims of other persons who have not an equal or superior right, though it is not valid against the United States.

But this limitation or denial of right against the United States is consistent with good right against all other individuals, which may as well be of the nature of a freehold as a chattel. For analogies in this respect, see the case of possession of crown lands, Harper v. Charlesworth, 4 Barn. & C. 474.

The true classification of a claim seems to be among equitable estates, not legal, and this at once disposes of most of the arguments by which it is denied to be a fee. Then the question recurs, 66 as an equitable estate, what would be its nature and place in the system?" and to answer it, we need only ask what would be the estate of such a vendee in possession under the offer of a private owner. Plainly that which he anticipates having at law when the transaction is complete- -a fee. Properly speaking, therefore, a pre-emption claim should be treated as an equitable fee conditional.

And this seems to be Washburn's view when he says: "It constitutes an equity in favor of the occupant, located upon, and identified and attached to the particular quarter section occupied and cultivated by the claimant . . . . in a court of equity, the person who has first appropriated the land has the best title."

Hunt v. Wickliffe, 2 Peters, 201 (by Marshall, C. J.), holds expressly that an entry in the name of "heirs" is good, i. e., that the claim passes to heirs and that it is an equitable title, though no point was made on the latter. That a pre-emption right descends to heirs was expressly held in Johnson v. Collins, 12 Ala. 321, cited 3 Washburn, 183.

(49) Special occupancy by executor, page 260.

Blackstone's doctrine that executor cannot take as special occupant even by force of the statutes was sustained by Lord Redesdale in Campbell v. Sandys, 1 Schoales & L. 289; but is controverted by Professor Wooddesson's Lectures, ii. 163, by Sugden, Powers, 198, and by Ripley v. Waterworth, 7 Ves. 425. (See Cruise's Digest, tit. 3. ch. 1, 22 53, 59.)

In America the question is of no practical importance. By statutes in most states the executor, or even the administrator, takes all such estates by occupancy: and as there is now no difference between the heirs of realty and the next of kin entitled to personalty, there is no dispute to be litigated by the persons beneficially entitled.

CHAPTER THE SEVENTEENTH.

OF TITLE BY PRESCRIPTION.

A third method of acquiring real property by purchase is that by prescription; as when a man can shew no other title to what he claims, than that he, and those under whom he claims, have immemorially used to enjoy it.* [See note 50, page 416.] Concerning customs, or immemorial usages, in general, with the several requisites and rules to be observed, in order to prove their existence and validity, we inquired at large in the preceding part of these commentaries. At present therefore I shall only, first, distinguish between custom, strictly taken, and prescription; and then shew, what sort of things may be prescribed for.

And, first, the distinction between custom and prescription is this; that custom is properly a local usage, and not annexed to any person: such as a custom in the manor of Dale that lands shall descend to the youngest son: prescription is merely a personal usage; as, that Sempronius, and his ancestors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege. As for example: if there be a usage in the parish of Dale, that all the inhabitants of that parish may dance on a certain close, at all times, for their recreation (which is held to be a lawful usage); this is strictly a custom, for it is applied to the place in general, and not to any particular persons: but if the [264] tenant, who is seised of the manor of Dale in fee, alleges that he and his ancestors, or all those whose estate he hath in the said manor, have used time out of mind to have common of pasture in such a close, this

a See Vol. I. pag. 75, etc.

b Co. Litt. 113.

c 1 Lev. 176.

8 Previously spelt, "enquired." *Cited, 2 Duval, 458; 47 Ark. 70.

is properly called a prescription; for this is a usage annexed to the person of the owner of this estate. All prescription must be either in a man and his ancestors, or in a man and those whose estate he hath d* [see note 51, page 418]: which last is called prescribing in a que estate. And formerly a man might, by the common law, have prescribed for a right which had been enjoyed by his ancestors or predecessors at any distance of time, though his or their enjoyment of it has been suspended for an indefinite series of years. But by the statute of limitations, 32 Hen. VIII. c. 2. it is enacted, that no person shall make any prescription by the seisin or possession of his ancestor or predecessor, unless such seisin or possession hath been within threescore years next before such prescription made.'

e

Secondly, as to the several species of things which may, or may not, be prescribed for: we may in the first place, observe, that nothing but incorporeal hereditaments can be claimed by prescription; as a right of way, a common, etc.; but that † no prescription can give a title to lands, and other corporeal substances † [see note 52, page 420], of which more certain evidence may be had. For no man can be said to prescribe, that he and his ancestors have immemorially used to hold the castle of Arundel: for this is clearly another sort of title; a title by corporal seisin and inheritance, which is more permanent, and therefore more capable of proof, than that of prescription. But, as to a right of way, a common, or the like, a man may be allowed to pred 4 Rep. 32.

e Co. Litt. 113.

f This title, of prescription, was well known in the Roman law by the name of usucapio (Ff. 41. 3. 3.); so called, because a man, that gains a title by prescription, may be said usu rem capere.

g Dr. & St. dial. 1.c. 8. Finch. 132.

9 Ninth edition reads, "a man shall not."

*Cited, 45 Iowa, 142.

t-t Quoted, 19 Me. 182,

‡ Cited, 2 Johns. 362; 3 Am. Dec. 441; 26 Tex. 42; 61 Pa. St. 39.