258 CHAPTER XVI. OF TITLE BY OCCUPANCY. pancy. OCCUPANCY is the taking possession of those things, which of title by occubefore belonged to nobody. This, as we have seen (a), 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 every thing capable of ownership should have an owner, natural reason suggested, that he who could first declare his intention of appropriating any thing 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 (b), 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 pur 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 (c). *This seems to have been recurring to first principles, and calling in the law of nature (1) to ascertain the property of the land, when left without a legal owner. For it did not revert to the grantor, though it formerly (d) was supposed 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 seized 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 (e). And, even in the case of a subject, had the estate pur auter vie been 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 (f); and that such estate is rather a descendible freehold. But the title of common occupancy is now reduced almost to nothing by two statutes: the one 29 Car. II. c. 3, which enacts (according to the ancient rule of (d) Bract. 1. 2, c. 9; 1. 4, tr. 3, c. 9, s. 4; Flet. 1. 3, c. 12, s. 6; 1.5, c. 5, s. 15. (e) Co. Litt. 41. (1) Here, our author thinks "the property in land may be ascertained by the law of nature;" in the last page, and elsewhere, he holds that, "by the law of nature, it is common to all mankind." law (g)) that where there is no special occupant (2), in whom the estate may vest, the tenant pur auter vie may de (g) Bract. 1. 2, c. 9; 1. 4, tr. 3, c. 9, s. 4; Flet. 1. 3, c. 12, s. 6; 1. 5, c. 5, s. 15. (2) Whether under a grant to a man and his executors, of lands pur autre vie, the executors can take as special occupants, appears to be not very clearly settled. In Milner v. Lord Harewood, (18 Ves. 273,) Lord Eldon seems to say, an executor may be a special occupant; but in Ripley v. Waterworth, (7 Ves. 438,) the same learned Judge treated that as, at all events, a doubtful point. Every estate pur autre vie in the hands of an executor, (who takes qua executor only,) will be assets in his hands. (Westfaling v. Westfaling, 3 Atk. 466; Ripley v. Waterworth, ubi supra.) And where there is no special occupant, an estate held by lease pur autre vie, will go to the executors or administrators of the lessee; and in their hands such a lease was always considered as personal estate, at least to the extent of being assets: (Duke of Devonshire v. Kinton, 2 Vern. 719 :) though, in other respects, it was formerly held to retain the character of freehold, so completely as not to be distributable under the intestacy of the deceased tenant pur autre vie : (Oldham v. Pickering, Carthew,376 :) but this last point seems now settled definitively to the contrary, by the statute of 14 Geo. II. c. 20, and indeed Lord Eldon (in Ripley v. Waterworth, 7 Ves. 439,) thought it "not a great stretch" to say that the statute of Cha. II. was meant to apply both to testacy and intestacy. But though an estate pur autre vie, granted to a man, his executors, administrators and assigns, if there be no special occupant, is distributable as personal estate, it does not become personal estate strictly speaking; nor does it become liable to that applica tion till after the death of the party; and then not by force of any property inherent in the estate itself, but by force of the statute, to avoid the inconvenience of general occupancy. In the life of the party such an estate must be considered freehold estate. (Watkins v. Lee, 6 Ves. 642.) And when an estate pur autre vie has been limited to a man, his heirs and assigns, if it be not devised, it goes to the heir, and is liable to debts in the same order as a fee-simple would be. (Atkinson v. Baker, 2 T. R. 230.) For, an estate pur autre vie, (clearly, at all events, when it is limited to a man and his heirs,) is in its nature freehold; the devise thereof is not valid unless it be attested by three witnesses, and it can be created and conveyed only by a conveyance proper to create and transfer freehold estate. Lord Redesdale, indeed, doubted whether such an estate could be converted into a chattel interest by any convention of the parties to its creation; and whether a grant to a man, his executors and administrators, could make the property liable to be acted upon as a chattel interest, except to the extent, and in the cases, for which the statute has specially provided. (Campbell v. Sandys, 1 Sch. & Lef. 290.) But Lord Hardwicke appears to have recognized the distinction which may arise out of the terms of limitation, as such terms may direct the devolution of the property, either on the heir or the personal representatives. (Williams v. Jekyll, 2 Ves. sen. 684, and see the Duke of Devonshire v. Atkins, 2 P. Wms. 382.) However this may be, there is no doubt that an estate pur autre vie, limited to heirs, is within the statute The doctrine of common occu vise it by will, or it shall go to the executors or administrators, and be assets in their hands for payment of debts; [ *260] 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 (3). By these two statutes the title of common occupancy is pancy abolished. utterly extinct and abolished; though that of special occupancy, 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 (4). But, as before the statutes there could no of fradulent devises, and liable to spe- An estate pur autre vie may be li- (3) The two statutes referred to in the text, are not cited with precise accuracy. The statute of Cha. II. makes estates pur autre vie, in the hands of executors and administrators, assets not merely for payment of debts, but assets generally. And the statute of Geo. II. enacts, that "such estates pur autre vie (in case there be no special occupant thereof,) of which no devise shall have been made according to the act for prevention of frauds and perjuries, or so much thereof as shall not have been so devised, shall go, be applied and distributed, in the same manner as the personal estate of the testator or intestate." Since this note was first published, it has been enacted, by the statute of 3 & 4 Gul. IV. c. 104, that when any person shall die seised of or entitled to any interest or estate in real property, which he has not devised subject to payment of his debts, the same shall be assets to be administered in courts of equity for the payment of the debts of such person: provided that, in such administration, creditors by specialty in which the heirs are bound shall be entitled to priority of payment, before creditors by specialty in which the heirs are not bound, or creditors by simple contract. (See post, p. 340, note.) (4) The doctrine laid down in the text is believed to be sound law, though it has not been uniformly admitted. In Holden v. Smallbrooke, (Vaugh. 201,) Chief Justice Vaughan contended that an estate granted to a man and his heirs pur autre vie, upon the grantee's death, must be taken by the heir, not as special occupant, but as heir; not of a fee, but of a descendible freehold; and not by way of limitation, as a purchase to the heir, but by descent. For the consistency of which doctrine with the ancient law, Bracton was cited, who in the 9th chapter of his 2nd book says, "si fiat donatio, ad vitam donatoris, donatorio et hæredibus suis, si donatorius præmoriatur hæredes ei succedent, tenendum ad vitam donatoris, et common occupancy be had of incorporeal hereditaments, as of rents, tithes, advowsons, commons, or the like (h), (be (h) Co. Litt. 41; Vaugh. 201. per assisam mortis antecessoris recuperabunt, qui obiit [seisitus?] ut de feodo." Hence, Vaughan, C. J., argued, that, as the ancestor, in the case supposed, would be deemed to have died seised as of fee, though not seised in fee; and as the heir would be entitled to the writ of mortdancestor, this amounted to infallible proof that the heir, in such case, takes by descent. And in the Anonymous case in Godbolt, (pl. 238, p. 172,) Walmesley, Warburton, and Foster, JJ. held, that if a rent be granted to one and his heirs for the life of another man, and the grantee dieth, his heir shall not be occupant of the rent. Warburton held that the heir should have the rent as a freehold descended; and for that he cited 26 Hen. VI. Statham v. Recognizance. A distinction, however, was taken, both by Warburton and Walmesley, who said, that although the heir should take by descent, yet it should not be in the nature of a descent of inheritance, (to one purpose, at any rate,) for if he were an infant he should not be allowed his age. (See Co. Litt. 239 a, and the additions to Mr. Christian's note at the foot of the next page.) In Low v. Barron, (3 P. Wms. 262,) it was held that an estate pur autre vie to a man and the heirs of his body, is no more than a descendible freehold, (even if that term can be properly applied to it, see infra,) and not an estate tail within the statute de donis, or such an inheritance as that dower can attach thereon. If any of the cases above cited are inconsistent with, or go in qualification of the text, still our author's positions are fully supported by several decisions, both ancient and modern. In the Anonymous case in 2 Freem. (pl. 200 b, p. 155,) the tenant of a frank- tenement descendible, had agreed to sell to a purchaser, who paid him part of the purchase money: the vendor died and his heir entered: the vendee exhibited his bill against the heir to have the contract executed. It was resolved by the Lord Keeper Bridgman, assisted by other judges, that the plaintiff could not be relieved; for that the heir was but special occupant, and did not claim under his father, and therefore the covenant or agreement of his father should not oblige him to a conveyance of the land. Some doubt may be entertained as to the soundness of this determination; (see Stephens v. Bailey, Nels. 106; S. C. cited in 2 Freem. 199; Pool v. Pool, 1 Cha. Rep. 18; S. C. Tothill, 106;) but it must be considered a very strong intimation of opinion, that an estate pur autre vie is not taken by the heir, qua heir: for, no rule is better settled than that which says the liability of real, as well as personal representatives, in respect of contracts of the predecessor under whom they claim, is regulated by that of the party himself, looking at the question as it stood at his death. (Broom v. Monck, 10 Ves. 607; Rose v. Conynghame, 11 Ves. 555; Buckmaster v. Harrop, 7 Ves. 344.) In Atkinson v. Baker, (4 T. R. 231,) it was said by Lord Kenyon, that an estate pur autre vie, limited to a man, his heirs, executors, and assigns, if not devised, descends to the heir as special occupant: thus holding such an estate to have descendible qualities, but not as an estate of inheritance. In Ripley v. Waterworth, (7 Ves. 437,) exceptions were taken to the Master's report, as to certain estates |