things real is either continued, or transferred from one man to another. And here we must first of all observe, that (as gain and loss are terms of relation, and of a reciprocal nature) by whatever method one man gains an estate, by that same method or its correlative some other man has lost it. As where the heir acquires by descent, the ancestor has first lost or abandoned his estate by his death: where the lord gains land by escheat, the estate of the tenant is first of all lost by the natural or legal extinction of all his hereditary blood: where a man gains an interest by occupancy, the former owner has previously relinquished his right of possession: where one man claims by prescription or immemorial usage, another man has either parted with his right by an ancient and now forgotten grant, or has forfeited it by the supineness or neglect of himself and his ancestors for ages; and So, in case of forfeiture, the tenant by his own misbehaviour or neglect has renounced his interest in the estate; whereupon it devolves to that person who by law may take advantage of such default; and, in alienation by common assur*ances, the two considerations of [*201 ] loss and acquisition are so interwoven, and so constantly contemplated together, that we never hear of a conveyance, without at once receiving the ideas as well of the grantor as the grantee. descent, and pur The methods therefore of acquiring on the one hand, and which are twoof losing on the other, a title to estates in things real, are chase. reduced by our law to two: descent, where the title is vested in a man by the single operation of law; and purchase, where the title is vested in him by his own act or agreement (a) (2). (a) Co. Litt. 18. after the death of a person attainted, his descendants may inherit. The act does not extend to any descent which took place before the 1st of January, 1834, nor to any assurance executed before the said date, or the will of any person who died before the said date, which assurance or will contains any limitation or gift to the heir or heirs of any person under which the person or persons answering the description of heir would have been entitled to an estate by purchase if this act had not (2) Mr. Hargrave (in his 2nd note Descent is where a man acquires Descent, or hereditary succession, is the title whereby a his estate as heir- man on the death of his ancestor acquires his estate by right at-law. verts by escheat, is requisite to perfect his title, and the actual possession of the land cannot be granted till he enters, or brings his writ of escheat: of the latter, because it follows the nature of the seignory, and is inheritable by the same persons; but, strictly speaking, an escheat is a title neither by purchase nor descent. It should be considered, that, although the lord must do some act to put himself into the actual possession; yet, his title to take possession commences immediately on the want of a tenant, and this title is vested in him without waiting for his own deed or agreement, and as much by the mere act of law as the title of an heir is, in the case of a descent; and therefore, (according to Mr. Hargrave,) the titles of the lord and of the heir are equally excluded from being considered as acquisitions by purchase. On the other hand, escheat is not a title by descent; for the lord takes it in his capacity of lord of the seignory of which the land escheated was holden, and not as heir, or by right of blood. Nor is it any objection to this way of considering the title by escheat, that the land escheated will be inheritable in the lord as land by purchase, where he has the seignory by purchase, and as land by descent, where he has the seignory by descent; for the reason of this is, not that the escheat is either a purchase or a descent, but because the escheat follows the seignory, from which the right to it is derived. According to this view of the subject, Mr. Hargrave thought, instead of distributing all the several titles to land under the heads of purchase or descent, it would be more accurate to say, that the title to land is either by purchase, to which the act or agreement of the party is essential, or by mere act of law; and under the lat ter, to consider first, descent, and then escheat, and such other titles, not being by descent, as yet, like titles by descent, accrue by mere act of law. 66 a So, we learn from Lord Coke (1 Instit. 2 b), that if an alien purchases lands, he cannot hold them; the king is entitled to them: though in such case the king plainly takes neither by purchase, (according to Mr. Hargrave's explanation,) nor by descent. Again (1 Instit. 3 b) Lord Coke says, purchase is when one cometh to lands by conveyance or title; and disseisins, abatements, intrusions, usurpations, and such like estates gained by wrong, are not purchases ;"-and it is equally clear they are not acquisitions by descent. And (in 1 Instit. 18 b) Lord Coke gives other instances of titles, which, in strictness, if we admit Mr. Hargrave's explanation, can be referred neither to purchase nor descent: as escheats, and tenancy by curtesy, or in dower. If, however, we prefer our author's opinion, as he states it in the 15th chapter of this volume, (p. 242,) and hold that "the word purchase denotes any means of acquiring an estate out of the common mode of inheritance," we must reject not only Mr. Hargrave's distinction as to escheat, but also deny Lord Coke to have been right, when he said, that "disseisins, abatements, intrusions, usurpations and such like estates, gained by wrong, are not purchases." (See Watkins's Law of Descents, ch. 1, sect. 1; and ch. 5, p. 156 of the original edition, or p. 232 of the 2nd edition.) Since this note was first published, the statute of 3 & 4 Gul. IV. c. 106, has enacted, that in that act, the word "purchaser" shall mean the person who last acquired land otherwise than by descent, or than by escheat, par of representation, as his heir at law. An heir therefore is he upon whom the law casts the estate immediately on the death of the ancestor: and an estate, so descending to the heir, is in law called the inheritance. of descents. The doctrine of descents, or law of inheritances in fee- of the doctrine simple, is a point of the highest importance; and is indeed the principal object of the laws of real property in England. All the rules relating to purchases, whereby the legal course of descents is broken and altered, perpetually refer to this settled law of inheritance, as a datum or first principle universally known, and upon which their subsequent limitations are to work. Thus, a gift in tail, or to a man and the heirs of his body, is a limitation that cannot be perfectly understood without a previous knowledge of the law of descents in fee-simple. One may well perceive that this is an estate confined in its descent to such heirs only of the donee, as have sprung or shall spring from his body; but who those heirs are, whether all his children both male and female, or the male only, and (among the males) whether the eldest, youngest, or other son alone, or all the sons together, shall be his heir; this is a point that we must result back to the standing law of descents in fee-simple to be informed of. *In order therefore to treat a matter of this universal con- [* 202 ] sequence the more clearly, I shall endeavour to lay aside such matters as will only tend to breed embarrassment and confusion in our inquiries, and shall confine myself entirely to this one object. I shall therefore decline considering at present who are, and who are not, capable of being heirs ; reserving that for the chapter of escheats. I shall also pass over the frequent division of descents in those by custom, statute, and common law: for descents by particular custom (3), as to all the sons in gavelkind, and to the youngest tition, or inclosure, by the effect of which the land shall become part of, or descendible with, other land acquired by descent. And by the statute of 4 & 5 Gul. IV. c. 23, the legal rights to trust property, accruing by escheat, either to the crown, to corporations, or to individual lords of manors, in consequence of the failure of heirs of the trustee or of his attainder, are subjected to the control of the Court (3) See ante, the notes to pp. 83, Of the several degrees of consanguinity. Consanguinity is either lineal or collateral. [*203 ] Lineal consanguinity is that which subsists between persons of whom one is descended in a direct line from the other. in borough-english, have already been often (b) hinted at, and may also be incidentally touched upon again; but will not make a separate consideration by themselves, in a system so general as the present: and descents by statute, or fees-tail (4) per formam doni, in pursuance of the statute of Westminster the second, have also been already (c) copiously handled; and it has been seen that the descent in tail is restrained and regulated according to the words of the original donation, and does not entirely pursue the common law doctrine of inheritance; which, and which only, it will now be our business to explain. And, as this depends not a little on the nature of kindred, and the several degrees of consanguinity, it will be previously necessary to state, as briefly as possible, the true notion of this kindred or alliance in blood (d). Consanguinity, or kindred, is defined by the writers on these subjects to be "vinculum personarum ab eodem stipite "descendentium;" the connexion or relation of persons descended from the same stock or common ancestor. This consanguinity is either lineal, or collateral (5). * Lineal consanguinity is that which subsists between persons, of whom one is descended in a direct line from the other, as between John Stiles (the propositus in the table of consanguinity) and his father, grandfather, great grandfather, and so upwards in the direct ascending line; or between John Stiles and his son, grandson, great-grandson, and so downwards in the direct descending line. Every generation, in this lineal direct consanguinity, constitutes a different degree, reckoning either upwards or downwards: the father of John Stiles is related to him in the first degree, and so likewise is his son; his grandsire and grandson in (b) See Vol. I. p. 74, 75; Vol. II. pag. 83, 85. (c) See pag. 112, &c. (d) For a fuller explanation of the doctrine of consanguinity, and the (4) See ante, the notes to pp. 110, 111, 112. (5) The reader will do well to examine the table of consanguinity inserted at the close of the third chapter of Watkins' Essay on the Law of De consequences resulting from a right apprehension of its nature, see An Essay on Collateral Consanguinity. (Law Tracts, Oxon. 1762, 8vo. or 1771, 4to.) scents, for a graphical illustration of this subject; and the whole essay will abundantly repay the trouble of perusal; though all Mr. Watkins' propo sitions may not be implicitly acceded to. |
