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OF TITLE BY DESCENT.
The several gradations and stages, requisite to form a of the modes complete title to lands, tenements, and hereditaments, hav- and losing u
ti ing been briefly stated in the preceding chapter, we are tle; next to consider the several manners in which this complete title (and therein principally the right of propriety,) may be reciprocally lost and acquired: whereby the dominion of 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 antient 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 loss and acquisition are so interwoven, and soconstantly contemplated together, that we never hear of a conveyance, without at once receiving the
ideas as well of the grantor as the grantee. which are two- The methods therefore of acquiring on the one hand, and descent, and pur- of 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) (1).
(aj Co. Litt. 18.
(1) Mr. Hargrave (in his 2nd note escheated was holden, and not as heir, to Co. Litt. 18 b) observes;-an es- or by right of blood. Nor is it any obcheat in appearance participates of the jection to this way of considering the nature both of a purchase and a de- title by escheat, that the land escheated scent; of the former, because some act will be inheritable in the lord as land by the lord, to whom the land reverts by purchase, where he has the seignory by escheat, is requisite to perfect his by purchase, and as land by descent, title, and the actual possession of the where he has the seignory by descent; land cannot be granted till he enters, for the reason of this is, not that the or brings his writ of escheat: of the escheat is either a purchase or a delatter, because it follows the nature of scent, but because the escheat follows the seignory, and is inheritable by the the seignory, from which the right to same persons; but, strictly speaking, it is derived. According to this view an escheat is a title neither by purchase of the subject, Mr. Hargrave thought, nor descent. It should be considered, instead of distributing all the several that, although the lord must do some titles to land under the heads of puract to put himself into the actual pos- chase or descent, it would be more acsession ; yet, his title to take possession curate to say, that the title to land is commences immediately on the want of either by purchase, to which the act or a tenant, and this title is vested in him agreement of the party is essential, or without waiting for his own deed or by mere act of law; and under the latagreement, and as much by the mere ter, to consider first, descent, and then act of law as the title of an heir is, in escheat and such other titles, not being the case of a descent; and therefore, by descent, as yet like titles by descent (according to Mr. Hargrave), the titles accrue by mere act of law. of the lord and of the heir are equally So, we learn from Lord Coke (1 excluded from being considered as ac- Instit. 2 b) that if an alien purchases quisitions by purchase. On the other lands, he cannot hold them; the King hand, escheat is not a title by descent; is entitled to them: though in such case for the lord takes it in his capacity of the King plainly takes neither by purlord of the seignory of which the land chase, (according to Mr. Hargrave's
Descent, or hereditary succession, is the title whereby a Descent is where man on the death of his ancestor acquires his estate by right his estate as heirof representation, as his heir at law. An heir therefore is at-law. 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.
The doctrine of descents, or law of inheritances in fee- of the doctrine simple, is a point of the highest importance; and is indeed
of descents. the principal object of the laws o freal 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
explanation), nor by descent. Again opinion, as he states it in the 15th (1 Instit. 3 b) Lord Coke says, “a chapter of this volume, (p. 242), and purchase is when one cometh to landshold that “the word purchase denotes by conveyance or title; and disseisins, any means of acquiring an estate out abatements, intrusions, usurpations, of the common mode of inheritance," and such like estates gained by wrong, we must reject not only Mr. Harare not purchases;"—and it is equally grave's distinction as to escheat, but clear they are not acquisitions by de- also deny Lord Coke to have been right, scent. And (in 1 Instit. 18 b) Lord when he said, that, “ disseisins, abateCoke gives other instances of titles, ments, intrusions, usurpations and such which, in strictness, if we admit Mr. like estates, gained by wrong, are not Hargrave's explanation, can be referred purchases.” (See Watkin's Law of Deneither to purchase nor descent: as scents, ch. 1, sect. 1; and ch. 5, p. escheats, and tenancy by curtesy, or in 156 of the original edition, or p. 232 of dower.
the 2nd edition). If, however, we prefer our author's
to the standing law of descents in fee-simple to be in
formed of. [ * 202 ] *In order therefore to treat a matter of this universal con
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 (2), as to all the sons in gavelkind, and to the youngest in borough-english, have already been often (6) 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 (3) 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. of the several And, as this depends not a little on the nature of kindred, degrees of con- and the several degrees of consanguinity, it will be presanguinity
viously necessary to state, as briefly as possible, the true
notion of this kindred or alliance in blood (d). Consanguinity Consanguinity, or kindred, is defined by the writers on is either lineal
these subjects to be “ vinculum personarum ab eodem sti
pag. 83. 85.
(6) See Vol. I. p. 74, 75. Vol. II. sequences resulting from a right appre
hension of its nature, see An essay on (c) See pag. 112, &c.
Collateral Consanguinity. (Law Tracts, (d) For a fuller explanation of the Oxon. 1762, 8vo. or 1771, 4to.) doctrine of consanguinity, and the con
(2) See ante, notes (11), (15), (16), to chapter 6.
(3) See ante, notes (14), (15), (16), (19), and (21), to chapter 7.