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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 (6), 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

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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.
(f) Vaugh. 201.

(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."

66

law (g)) that where there is no special occupant (2), in whom the estate may vest, the tenant pur

auter vie

may

de

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(9) Bract. 1. 2, c. 9; 1. 4, tr. 3, c. 9, s. 4; Flet. l. 3, c. 12, s. 6; 1. 5,

c. 5, s. 15.

(2) Whether under a grant to a

tion till after the death of the party ; man and his executors, of lands pur and then not by force of any property autre vie, the executors can take as inherent in the estate itself, but by special occupants, appears to be not force of the statute, to avoid the invery clearly settled.

In Milner v. convenience of general occupancy. In Lord Harewood, (18 Ves. 273,) Lord the life of the party such an estate Eldon seems to say, an executor may must be considered freehold estate. be a special occupant; but in Ripley (Watkins v. Lee, 6 Ves. 642.) And v. Waterworth, (7 Ves, 438,) the when an estate pur autre vie has been same learned Judge treated that as, limited to a man, his heirs and asat all events, a doubtful point. Every signs, if it be not devised, it goes to estate pur autre vie in the hands of the heir, and is liable to debts in the an executor, (who takes qua executor same order as a fee-simple would be. only,) will be assets in his hands. (Atkinson v. Baker, 2 T. R. 230.) (Westfaling v. Westfaling, 3 Atk. For, an estate pur autre vie, (clearly, 466; Ripley v. Waterworth, ubi su- at all events, when it is limited to a pra.) And where there is no special man and his heirs,) is in its nature occupant, an estate held by lease pur freehold; the devise thereof is not autre vie, will go to the executors or valid unless it be attested by three administrators of the lessee ; and in witnesses, and it can be created and their hands such a lease was always conveyed only by a conveyance proper considered as personal estate, at least to create and transfer freehold estate. to the extent of being assets : (Duke Lord Redesdale, indeed, doubted of Devonshire v. Kinton, 2 Vern. 719 :) whether such an estate could be conthough, in other respects, it was for- verted into a chattel interest by any merly held to retain the character of convention of the parties to its creafreehold, so completely as not to be tion; and whether a grant to a man, distributable under the intestacy of his executors and administrators, the deceased tenant pur autre vie : could make the property liable to be (Oldham v. Pickering, Carthew,376 :) acted upon as a chattel interest, exbut this last point seems now settled cept to the extent, and in the cases, definitively to the contrary, by the for which the statute has specially statute of 14 Geo. II. c. 20, and in- provided. (Campbell v. Sandys, 1 Sch. deed Lord Eldon (in Ripley v. Water- & Lef. 290.) But Lord Hardwicke worth, 7 Ves. 439,) thought it “not appears to have recognized the disa great stretch” to say that the sta- tinction which may arise out of the tute of Cha. II. was meant to apply terms of limitation, as such terms may both to testacy and intestacy.

direct the devolution of the property, But though an estate pur autre vie, either on the heir or the personal regranted to a man, his executors, ad. presentatives. (Williams v. Jekyll, ministrators and assigns, if there be 2 Ves. sen. 684, and see the Duke of no special occupant, is distributable Devonshire v. Atkins, 2 P. Wms. 382.) as personal estate, it does not become However this may be, there is no personal estate strictly speaking ; nor doubt that an estate pur autre vie, does it become liable to that applica- limited to heirs, is within the statute

:

The doctrine of

vise it by will, or it shall go to the executors or adminis

trators, 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 occu

pancy, 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 imheritance, 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- 3 & 4 Gul. IV. c. 104, that when any cialty debts. (Westfaling v. West- person shall die seised of or entitled faling, 3 Atk. 465.)

to any interest or estate in real proAn estate pur autre vie may be li- perty, which he has not devised submited by way of quasi entail, to the ject to payment of his debts, the same heirs of the body of the tenant as spe- shall be assets to be administered in cial occupants. But those who have courts of equity for the payment of interests in the nature of such an es- the debts of such person : provided tate-tail, may bar their issue and all that, in such administration, creditors remainders over by any alienation by specialty in which the heirs are during their lives ; though not by bound shall be entitled to priority of will. (Gray v. Mannock, 2 Eden, payment, before creditors by specialty 341 ; Blake v. Luxton, Coop. 185; in which the heirs are not bound, or Blake v. Blake, i Cox, 266; Camp- creditors by simple contract. (See bell v. Sandys, 1 Sch. & Lef. 296 ; post, p. 340, note.) ex parte Sterne, 6 Ves. 158.)

(4) The doctrine laid down in the (3) The two statutes referred to in text is believed to be sound law, the text, are not cited with precise though it has not been uniformly adaccuracy. The statute of Cha. II. mitted. In Holden v. Smallbrooke, makes estates pur autre vie, in the (Vaugh. 201,) Chief Justice Vaughan hands of executors and administra- contended that an estate granted to a tors, assets not merely for payment of man and his heirs pur autre vie, upon debts, but assets generally. And the the grantee's death, must be taken by statute of Geo. II. enacts, that “such the heir, not as special occupant, but estates pur autre vie (in case there be as heir ; not of a fee, but of a descenno special occupant thereof,) of which dible freehold ; and not by way of lino devise shall have been made ac- mitation, as a purchase to the heir, cording to the act for prevention of but by descent. For the consistency frauds and perjuries, or so much there- of which doctrine with the ancient of as shall not have been so devised, law, Bracton was cited, who in the shall go, be applied and distributed, 9th chapter of his 2nd book says, in the same manner as the personal fiat donatio, ad vitam donatoris, doestate of the testator or intestate." natorio et hæredibus suis, si donato

Since this note was first published, rius præmoriatur hæredes ei succeit has been enacted, by the statute of dent, tenendum ad vitam donatoris, et

16 si

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 assisane 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 :

: 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

beir, qua

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