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tenures of mesne lords, especially where the statute of quia emptores was not held to be in force, as in New York and Pennsylvania, etc. There have been a few cases of such escheats in our books. But for the most part, the same presumption of holding directly of the state exists, as in England of the king: and in all the newer states where the federal government is actually the source of all titles, the right of escheat is uniformly held to be in the state where the land lies. Thus in England and the United States alike, the doctrine of escheat in its practical consequences comes to coincide with the doctrine of eminent domain, familiar in public law to all christian nations, by which the state or nation is the ultimate owner of all individual property within it, and in particular is entitled to bona vacantia, or all goods and lands which by the death of the owner without heirs, or otherwise, are left without individual owners. Applying alike to all property, real or personal, legal or equitable, this is evidently destined to absorb the limited and technical doctrine of escheat, and the American statutes and decisions show that it has already begun to do so. For its effect in English law see an article in 4 L. Q. R. 318, July, 1888, on the Law of Escheat, by F. W. Hardman, esp. pp. 334-336, and note 6, page 35, ante.

(46) The civil law allows a bastard to succeed to an inheritance, if after its birth the mother was married to the father, page 247.

This legitimation by subsequent marriage, as it is technically called, is now the law of Virginia and many other states, by statute. (See note 38 to book 1, page 793.)

It is also the law of Scotland: and is there limited, as by the canonists, to cases where no marriage of either with other persons intervened. (7 Clark & F. 842.) Whether such a limitation or others familiar to students 2 BLACKST. -34.

of the civil and canon laws would be attached by interpretation in this country, has not yet been decided.

The law of England still adheres so firmly to the nolumus of the barons, that even a child born in Scotland, or America, as a bastard, and so legitimated in the country of his birth, will not be regarded as lawful heir

lands in England; although it is the general rule that legitimacy depends on the law of the domicile. (Birtwhistle v. Vardell, 5 Barn. & C. 238.) By which rule, a child so legitimated by the law of Scotland cannot inherit there if his domicile be in England. (6 Bligh, 468; 2 Ves. & B. 127.)

(47) If [a corporation] comes by any accident to be dissolved, the donor or his heirs shall have the land again in reversion, and not the lord by escheat, page 256.

The long discussions whether this is a reversion or a possibility of reverter-or even an escheat, as was said by Vavisour, J., and Danby, J., in Y. B. Trin. 5 Hen. VII. fol. 37-might have been ended if recent writers had noticed Blackstone's remark, that "this very singular instance remains an exception to the statute of quia emptores:" by which statute the distinction between escheat and reversion first became important. The donor's title depends on the fact that the estate granted by him has expired: and as neither donor nor donee now holds of the chief lord any more than one holds of the other, the question is meaningless. (See Viner, Escheat A. 2, 3, 4; vol. 10, p. 139; Co. Litt. 13 b, and Hargrave's note 2; 2 Dr. & Stud. c. 35; Challis, 31, 174.)

The practical importance of the question is in its bearing on Blackstone's and Coke's doctrine of a reversion to the donor: when that life is determined by the dissolution of the body politic, the grantor takes it back by reversion, as in the case of every grant for life. (1 Com. 484.)


Chitty confirms this by 9 Mod. 326, and says lands will revert to the donor and not escheat," making the modern distinction between the two. So they would have done, as a life estate, after the statute of quia emptores. But as a freehold or fee they would.not have returned to the donor if granted over to another: for which he cites cases in Bacon's Abt., Corporations, J. and 1 Roll. 816, 1, 10, 20. And if the corporation takes a fee (and it may certainly convey one to another) there seems no reason in the present law why the land should revert to the donor, since it is no longer held of him.

Upon the view taken by Blackstone it would be a more important question, practically, whether a corporation, the existence of which is limited to twenty, fifty, or any determinate number of years (as in the case of most American corporations under the general incorporation acts) can take a fee-simple, or freehold estate of any kind. That it can sell again and give to an individual grantee such a fee-simple, may be taken for granted, provided it has a freehold of any kind. This is "having a fee-simple for the purpose of alienation, but only a determinable fee for the purpose of enjoyment," as Mr. Preston said long ago. (1 Abstracts of Title, 272.) But can its estate be even a determinable fee, when the life of the owner is limited to a term? Could the fact that the corporation may be renewed for any number of such terms, one after another, make it a fee, any more than the right of indefinite renewal in a lease?



Occupancy is the taking possession of those things, which before belonged to nobody. [See note 48, page 406]. 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 everything capable of ownership should have an owner, natural reason suggested, that he who could first declare his intention of appropriating anything 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, 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 per 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.ct

[259] This seems to have been recurring to first principles, and calling in the law of nature to ascertain the *Cited, 22 Ark. 500; 79 Am. Dec. 89. † Cited, 3 Colo. 356.

a See pag. 3 & 8.

b Ff. 41. 1. 3.

c Co. Litt. 41.

property of the land, when left without a legal owner. For it did not revert to the grantor, though formerly held 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 seised 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 bath 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. And, even in the case of a subject, had the estate pur auter vie, being 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; and that such estate is rather a descendible freehold. But the title of common occupancy is now reduced

c Bract. l. 2. c. 9. l. 4. tr. 3. c. 9. 4. Flet. l. 3. c. 12. § 6. l. 5. c. 5. § 15. d Co. Litt. 41.

e Vaugh. 201.

8 Previously, "who."

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