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OF TITLE BY OCCUPANCY.
OCCUPANCY is the taking possession of those things, which of title by occubefore belonged to nobody. This, as we have seen (a), is pancy. 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 pro- The original naperty, (for of personal chattels I am not in this place to ture of the right
of occupancy. 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). (a) Sec pag. 3 & 8.
(6) Ff. 41. 1. 3. (c) Co. Litt. 41.
executors or ad
Estates formerly This seems to have been recurring to first principles, and so held are now (by statute)
calling in the law of nature to ascertain the property of the made to vest in land, when left without a legal owner. For it did not revert ministrators, as
to the grantor, though it formerly (d) was supposed so to chattel interests. 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 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 antient rule of
law (g)) that where there is no special occupant (1), in whom the estate may vest, the tenant pur auter vie may
de(8) Bract. I. 2, c. 9; 1. 4, tr. 3, c. I. s. 4. Flet. I. 3, c. 12, s. 6; 1. 5, c. 5, s. 15.
(1) Whether under a grant to a man sonal estate strictly speaking; nor does and his executors, of lands pur autre vie, it become liable to that application till the executors can take as special occu- after the death of the party; and then pants, appears to be not very clearly set- not by force of any property inherent tled. In Milner v. Lord Harewood, in the estate itself, but by force of the (18 Ves. 273), Lord Eldon seems to statute, to avoid the inconvenience of say, an executor may be a special oc- general occupancy. In the life of the cupant; but in Ripley v. Waterworth, party such an estate must be consider(7 Ves. 438), the same learned Judge ed freehold estate. (Watkins v. Lee, treated that as, at all events, a doubtful 6 Ves. 642). And when an estate pur point. Every estate pur autre vie in autre vie has been limited to a man, his the hands of an executor, (who takes heirs and assigns, if it be not devised, qua executor only), will be assets in it goes to the heir, and is liable only to his hands. (Westfaling v. Westfal- the same debts as a fee-simple would ing, 3 Atk. 466. Ripley v. Waterworth, be. (Atkinson v. Baker, 2 T. R. 230). ubi supra). And where there is no For, an estate pur autre vie, (clearly, at special occupant, an estate held by all events, when it is limited to a man lease pur autre vie, will go to the exe. and his heirs), is in its nature freehold; cutors or administrators of the lessee; the devise thereof is not valid unless it and in their hands such a leas was al- be attested by three witnesses, and it ways considered as personal estate, can be created and conveyed only by a at least to the extent of being assets: conveyance proper to create and transfer (Duke of Devonshire v. Kinton, 2 Vern. freehold estate. Lord Redesdale, in719): though, in other respects, it was deed, doubted whether such an estate formerly held to retain the character could be converted into a chattel inof freehold, so completely as not to be terest by any convention of the parties distributable under the intestacy of the to its creation; and whether a grant to deceased tenant pur autre vie : (Old- a man, his executors and administrators, ham v. Pickering, Carthew, 376): but could make the property liable to be this last point seems now settled defi- acted upon as a chattel interest, except nitively to the contrary, by the statute to the extent, and in the cases, for of Geo. II., and indeed Lord Eldon which the statute has specially provid(in Ripley v. Waterworth, 7 Ves. 439), ed. (Campbell v. Sandys, 1 Sch. & thought it “not a great stretch” to say Lef. 290). But Lord Hardwicke apthat the statute of Cha. II. was meant pears to have recognized the distincto apply both to testacy and intestacy. tion which may arise out of the terms
But though an estate pur autre vie, of limitation, as such terms may direct granted to a man, his executors admin- the devolution of the property, either istrators and assigns, if there is no spe
on the heir or the personal represenis distributable as per- tatives. (Williams v. Jekyll, 2 Ves. sonal estate, it does not become per- sen. 684, and see the Duke of Devon
vise it by will, or it shall go to the executors or administrators, and be assets in their hands for payment of debts; 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 (2).
By these two statutes the title of common occupancy is 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 (3). But, as before the statutes there could no common occupancy be had of incorporeal hereditaments, as of rents, tithes, advowsons, commons, or the like (h), (be
The doctrine of
shire v. Atkins, 2 P. Wms. 382). How- estates pur autre vie (in case there be ever this may be, there is no doubt no special occupant thereof), of which that an estate pur autre vie, limited to no devise shall have been made acheirs, is within the statute of fraudu. cording to the act for prevention of lent devises, and liable to specialty frauds and perjuries, or so much there. debts. (Westfaling v. Westfaling, 3 of as shall not have been so devised, Atk. 465).
shall go, be applied and distributed, in Au estate pur autre vie may be li- the same manner as the personal esmited by way of quasi entail, to the tate of the testator or intestate." heirs of the body of the tenant as spe. (3) The doctrine laid down in the cial occupants. But those who have text is believed to be sound law, though interests in the nature of such an estate- it has not been uniformly admitted. In tail, may bar their issue and all re- Holden v. Smallbrooke, (Vaugh. 201), mainders over by any alienation during Chief Justice Vaughan contended that their lives; though not by will. (Gray an estate granted to a man and his heirs v. Mannock, 2 Eden, 341. Blake v. pur autre vie, upon the grantee's death, Luxton, Coop. 185. Blake v, Blake, must be taken by the heir, not as spe1 Cox, 266. Campbell v. Sandys, 1 cial occupant, but as heir; not of a fee, Sch. & Lef. 296. Ex parte Sterne, but of a descendible freehold; and not 6 Ves. 158).
by way of limitation, as a purchase (2) The two statutes referred to in to the heir, but by descent. For the the text, are not cited with precise consistency of which doctrine with the accuracy. The statute of Cha. II. antient law, Bracton was cited, who in makes estates pur autre vie, in the the 9th chapter of his 2nd book says, hands of executors and administra- “ si fiat donatio, ad vitam donatoris, tors, assets not merely for payment of donatorio et hæredibus suis, si donadebts, but assets generally. And the torius præmoriatur hæredes ei succedent, statute of Geo. II. enacts that, "such tenendum ad vitam donatoris, et per as
(h) Co. Litt. 41. Vaugh. 201.
sisam mortis antecessoris recuperabunt, both antient and modern. In the Anoqui obiit ut de feodo.” Hence, Vaughan, nymous case in 2 Freem. (pl. 200 b, p. C. J., argued, that, as the ancestor, in 155), the tenant of a frank-tenement the case supposed, would be deemed descendible, had agreed to sell to a to have died seised as of fee, though purchaser, who paid him part of the not seised in fee; and as the heir would purchase money: the vendor died and be entitled to the writ of mortdancestor, his heir entered: the vendee exhibited this amounted to infallible proof that his bill against the heir to have the conthe heir, in such case, takes by descent. tract executed. It was resolved by the
And in the Anonymous case in God- Lord Keeper Bridgman, assisted by bolt, (pl. 238, p. 172), Walmesley, other judges, that the plaintiff could not Warburton, and Foster, JJ., held, that be relieved; for that the heir was but if a rent be granted to one and his special occupant, and did not claim un. heirs for the life of another man, and der his father, and therefore the covethe grantee dieth, his heir shall not be
nant or agreement of his father should occupant of the rent. Warburton held not oblige him to a conveyance of the that the heir should have the rent as a land. Some doubt may be entertained freehold descended; and for that he as to the soundness of this determinacited 26 Hen. VI. Statham, Recogni- tion; (see Stephens v. Bailey, Nels. 106.
A distinction, however, was S. C. cited in 2 Freem. 199. Pool v. taken, both by Warburton and Wal- Pool, 1 Cha. Rep. 18. S. C. Tothill, mesley, who said, that although the 106); but it must be considered a very heir should take by descent, yet it should strong intimation of opinion, that an not be in the nature of a descent of in. estate pur autre vie is not taken by the heritance, (to one purpose, at any rate), heir, qua heir: for, no rule is better for if he were an infant he should not settled than that which says the liabilibe allowed his age. (See Co. Litt. 239 a, ty of real, as well as personal represen• and the additions to Mr. Christian's note tatives, in respect of contracts of the at the foot of the next page).
predecessor under whom they claim, is In Low v. Barron, (3 P. Wms. 262), regulated by that of the party himself, it was held that an estate to a man and looking at the question as it stood at the heirs of his body, is no more than a his death. (Broom v. Monck, 10 Ves. descendible freehold, (even if that term 607. Rose v. Conynghame, 11 Ves. can be properly applied to it, see infra), 555. Buckmaster v. Harrop, 7 Ves. and not an estate tail within the statute 344). de donis, or such an inheritance as that In Atkinson v. Baker, (4 T. R. 231), dower can attach thereon.
it was said by Lord Kenyon, that an If any of the cases above cited are estate pur autre vie, limited to a man, inconsistent with, or go in qualification his heirs, executors, and assigns, if not of the text, still our author's positions devised, descends to the heir, as special are fully supported by several decisions, occupant: thus holding such an estate