neither a greater nor a less estate by the [242] devise than he would have done without it, he shall be adjudged to take by descent, even though it be charged' with incumbrances; 19 for the benefit of creditors, and others, who have demands on the estate of the ancestor.* If a remainder be limited to the heirs of Sempronius, here Sempronius himself takes nothing; but, if he dies during the continuance of the particular estate, his heirs shall take as purchasors. But, if an estate be made to A for life, remainder to his right heirs in fee, his heirs shall take by descent: for it is an antient rule of law, that wherever the ancestor takes an estate' for life, the heir cannot by the same conveyance take an estate in fee by purchase, but only by descent.ht And, if A dies before entry, still his heir shall take by descent, and not by purchase; for, where the heir takes anything that might have vested in the ancestor, he takes by way of descent. The ancestor, during his life, beareth in himself all his heirs; and therefore, when once he is or might have been seised of the 5 lands, the inheritance so limited to his heirs vests in the ancestor himself: and the word "heirs" in this case is not esteemed a word of purchase, but a word of limitation, enuring so as to increase the estate of the ancestor from a tenancy for life to a fee-simple.‡ And, had it been otherwise, had the heir (who is uncertain till the death of the ancestor) been allowed to take as a purchasor originally nominated in the deed, as must have been the case if the remainder had been expressly 1 Rep. 104. 2 Lev. 60. Raym. 334. 1 Rep. 98.

e 1 Roll. Abr. 626.

f Salk, 241. Lord Raym. 728. g 1 Roll. Abr. 627.

h

Co. Litt. 22.

Quoted, 14 Ind. 595. Cited, 3 Md. 545; 56 Am. Dec. 768; 13 Pa. St. 351; 53 Am. Dec. 476; 24 Miss. 363; 2 Yeates, 413; 3 Call, 60.

limited to Matthew or Thomas by name; then, in the times of strict feodal tenure, the lord would have been defrauded by such a limitation of the fruits of his signiory, arising from a descent to the heir.*

What we call purchase, perquisitio, the feudists called conquest, conquæstus, or conquisitio:1 both denoting any means of acquiring an estate out of the common course of inheritance. And this is still the proper phrase in the law of Scotland:m as it was among the Norman jurists, who stiled [243] the purchasor (that is, he who brought the estate into the family which at present owns it) the conqueror or conquereur." Which seems to be all that was meant by the appellation which was given to William the Norman, when his manner of ascending the throne of England was, in his own and his successors' charters, and by the historians of the times, entitled conquæstus, and himself conquæstor or conquisitor; signifying that he was the first of his family who acquired the crown of England, and from whom therefore all future claims by descent must be derived though now, from our disuse of the feodal sense of the word, together with the reflexion on his forcible method of acquisition, we are apt to annex the idea of victory to this name of conquest or conquisition: a title which, however just with regard to the crown, the conqueror never pretended with regard to the realm of England; nor, in fact, ever had.P

The difference in effect, between the acquisition of an estate by descent and by purchase, consists principally in these two points: 1. That by purchase the estate acquires a new inheritable quality, and is descendible to the owner's blood in general, and not the blood only of some particular ancestor. For, when a man takes an estate by purchase, he takes

1 Crag. l. 1. t. 10. § 18.

m Dalrymple of feuds. 210.

it not ut feudum pater

o Spelm. Gloss. 145.

p See book 1, ch. 3.

n Gr. Coustum. Gloss. c. 25 pag. 40. * Cited, 36 Cal. 332; 31 Ga. 751,

num or maternum, which would descend only to the heirs by the father's or the mother's side: but he takes it ut feudum antiquum, as a feud of indefinite antiquity; whereby it becomes inheritable to his heirs general, first of the paternal, and then of the maternal line.q* 2. An estate taken by purchase will not make the heir answerable for the acts of the ancestor, as an estate by descent will. For, if the ancestor by any deed, obligation, covenant, or the like, bindeth himself and his heirs, and he dieth; this deed, obligation, or covenant, shall be binding upon the heirs, so far forth only as he had any estate of inheritance vested in him (or in some other in trust for him) by descent [244] from that ancestor, sufficient to answer the charge; whether he remains in possession, or hath aliened it before action brought; t which sufficient estate is in the law called assets; from the French word assez, enough." Therefore if a man covenants, for himself and his heirs, to keep my house in repair, I can then (and then only) compel his heir to perform this covenant, when he has an estate sufficient for this purpose, or assets, by descent from the covenantor: for though the covenant descends to the heir, whether he inherits any estate or no, it lies dormant, and is not compulsory, until he has assets by descent.vt

This is the legal signification of the word perquisitio, or purchase; and in this sense it includes the five following methods of acquiring a title to estates: 1. Escheat. 2. Occupancy. 3. Prescription. 4. Forfeiture. 5. Alienation. Of all these in their order.‡

q See pag. 236.

r Stat. 29 Car. II. c. 3.

s 1P. Wms. 777.

t Stat. 3 & 4 W. & M. c. 14.

u Finch. law. 119.

v Finch. Rep. 86.

9 Ninth edition inserts, "(or any other in trust for him)."

9 Ninth edition omits.

9 Ninth edition inserts, "(or any estate pur autre vie coming to him by special occupancy, as heir to.r)" [r Stat. 29 Car. II. c. 3. § 12.] *Cited, 15 Ark. 587; 3 Or. 464.

+ Cited, 118 Mass. 378; 5 N. Y. 276; 48 Tex. 59; 15 S. C. 143.

+ Cited, 36 N. J. Eq. 203.

W

I. Escheat, we may remember, was one of the fruits and consequences of feodal tenure. The word itself is originally French or Norman, in which language it signifies chance or accident; and with us * it denotes an obstruction of the course of descent, and a consequent determination of the tenure, by some unforeseen contingency: in which case the land naturally results back, by a kind of reversion to the original grantor or lord of the fee.*

Escheat therefore being a title frequently vested in the lord by inheritance, as being the fruit of a signiory to which he was entitled by descent (for which reason the lands escheated shall attend the signiory, and be inheritable by such only of his heirs as are capable of inheriting the other"), it may seem in such cases to fall more properly under the former general head of acquiring title to estates, viz. by descent (being vested in him by act of law, and not by his own act [245] or agreement), than under the present, by purchase. [See note 45, page 395.] But it must be remembered that, in order to complete this title by escheat, it is necessary that the lord perform an act of his own, by entering on the lands and tenements so escheated, or suing out a writ of escheat on failure of which, or by doing any act that amounts to an implied waiver of his right, as by accepting homage or rent of a stranger who usurps the possession, his title by escheat is barred. It is therefore in some respect a title acquired by his own act, as well as by act of law. Indeed this may also be said of W See pag. 72.

X

Eschet or chet, formed from the verb eschoir or choir, to

happen.

y 1 Feud. 86. Co. Litt. 13.

z Co. Litt. 13.

b Ibid. tit. acceptance. 25. Co. Litt. 268.

a Bro. Abr. tit. escheat. 26.

**Quoted, Conf. 246, 277 (Tayl. & Con. 359, 370). Cited, 7 N. H. 481 2 Swan, 48.

† Cited, 1 Hayw. (N. C.) 432.

descents themselves in which an entry or other seisin is required, in order to make a complete title: and therefore this distribution by our legal writers seems in this respect rather inaccurate:9 for, as escheats must follow the nature of the signiory to which they belong, they may vest by either purchase or descent, according as the signiory is vested. And, though sir Edward Coke considers the lord by escheat as in some respects the assignee of the last tenant, and therefore taking by purchase; yet, on the other hand, the lord is more frequently considered as being ultimus hæres, and therefore taking by descent in a kind of caducary succession.*

I

c

The law of escheats is founded upon this single principle, that the blood of the person last seised in fee-simple is, by some means or other, utterly extinct and gone: and, since none can inherit his estate but such as are of his blood and consanguinity, it follows as a regular consequence, that when such blood is extinct, the inheritance itself must fail; the land must become what the feodal writers denominate feudum apertum; and must result back again to the lord of the fee, by whom, or by those whose estate he hath, it was given.

‹ Escheats are frequently divided into those propter defectum sanguinis and those propter delictum tenentis: the one sort, if the tenant dies without heirs; the other, if his blood be attainted. But both these species may well be comprehended [246] under the first denomination only; for he that is attainted suffers an extinction of his blood, as well as he that dies without relations. The inheritable quality is expunged in one instance, and expires in the other; or, as the doctrine of escheats is very fully expressed in Fleta, "dominus capitalis

c 1 Inst. 215.

d Co. Litt. 13. 92,

9 Ninth edition inserts, "of titles."

e l. 6. c. 1.

9 Ninth edition inserts, "into those by descent and by purchase." 9 Ninth edition inserts, "and not marked with sufficient precision."

*Cited, 12 Conn. 374. Criticised, 4 Hawks, 397.