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shall not descend to the younger son; for the issue of the elder, which had once a possibility to inherit, shall impede the descent to the younger, and the land shall escheat to the lord. Sir Edward Coke, in this case, allows that if the ancestor be attainted, his sons born before the attainder may be heirs to each other; and distinguishes it from the case of the sons of an alien, because in this case the blood was inheritable when imparted to them from the father ; but he makes a doubt (upon the principles before mentioned, which are now overruleds) whether sons, born after the attainder, can inherit to each other, for they never had any inheritable blood in them.

Upon the whole, it appears that a person attainted is neither allowed to retain his former estate, nor to inherit any future one, nor to transmit any inheritance to his issue, either immediately from himself, or mediately through himself from any remoter ancestor ; for his inheritable blood, which is necessary either to hold, to take, or to transmit any feodal property, is blotted out, corrupted, and extinguished forever: the consequence of which is, that estates thus impeded in their descent result back and escheat to the lord.

This corruption of blood, thus arising from feodal principles, but perhaps extended further than even those principles will warrant, has been long looked upon as a peculiar hardship: because the oppressive parts of the feodal tenures being now, in general, abolished, it seems unreasonable to reserve one of their most inequitable consequences; namely, that the children should not only be reduced to present poverty (which, however severe, is sufficiently justified upon reasons of public policy), but also be laid under future difficulties of inheritance, on account of the guilt of their ancestors. And, therefore, in most (if not all) of the new felonies created by Parliament since the reign of Henry the Eighth, it is declared that they shall not extend to any corruption of blood ; and by statute 7 Ann., c. 21 (the operation of which is postponed by the statute 17 Geo. II., c. 39), it is enacted that, after the death of the late Pretender, and his sons, no attainder for treason shall extend to the disinheriting any heir, nor the prejudice of any person, other than the offender himself:*which provisions have, indeed, carried the remedy further than was required by the hardship above complained of; which is only the future obstruction of descents, where the pedigree happens to be deduced through the blood of an attainted ancestor.2

9 Dyer, 48.

r Co. Litt., 8.

• 1 Hal., P. C., 357.

(28) These provisions in the 7 Ann., c. 145, which enacts, that no attainder for 21, and 17 Geo. II., c. 39, are repealed felony, after the passing of the act, exby the 39 Geo. III., c. 93.

cept in cases of high treason, petit trea

son (since abolished), or murder, or (29) A more general remedy has been abetting or counseling the same, shall provided by the stat. 54 Geo. III., c. extend to the disinteriting of any heir

in

а

Before I conclude this head of escheat, I must mention one Exception singular instance in which lands held in fee-simple are not liable to the role to escheat to the lord, even when their owner is no more and the case of a hath left no heirs to inherit them. And this is the case of

corporation. corporation ; for if that 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; which is, perhaps, the only instance where a reversion can be expectant on a grant in fee-simple absolute. But the law, we are told,t doth tacitly annex a condition to every such gift or grant, that if the corporation be dissolved, the donor or grantor shall re-enter; for the cause of the gift or grant faileth. This is, indeed, founded upon the self- [ 257 ] same principle as the law of escheat; the heirs of the donor being only substituted instead of the chief lord of the fee: which was formerly very frequently the case in subinfeudations, or alienations of lands by a vassal to be holden as of himself, till that practice was restrained by the statute of quia emptores, 18 Edw. I., st. 1, to which this very singular instance still, in some degree, remains an exception."

There is one more incapacity of taking by descent, which, Papistry. not being productive of any escheat, is not strictly reducible to this head, and yet must not be passed over in silence. It is enacted by the statute 11 & 12 Will. III., c. 4," that every papist who shall not abjure the errors of his religion by taking the oaths to the government, and making the declaration against transubstantiation, within six months after he has attained the age of eighteen years, shall be incapable of inheriting, or taking, by descent, as well as purchase, any real estates whatsoever ; and his next of kin being a Protestant, shall hold them to his own use till such time as he complies with the terms imposed by the act. This incapacity is merely personal ; it affects himself

+ Co. Litt., 13.

30

nor to the prejudice of the right or title as disabled papists to inherit by descent, of any person other than that of the of- &c., any real estate, &c., or to purchase fender during his life.

manors, lands, &c., was repealed, proAs to the effect of attainder for trea- vided they took the oath of allegiance, son on a title or dignity, see The Braye and made the declaration prescribed by Peerage Case, 8 Scott, 108.

31 Geo. III., c. 32. And by the latter Copyholds are not forfeited to the statute, the 1 Geo. I., st. 2, c. 55, and 3 crown even for treason. (1 Sid., 435; Geo. I., c. 18, requiring papists to regis2 Vent., 38.) But in some places, by ter their names and real estates, were special custom, the lands escheat to the repealed, and all deeds and wills of palord on conviction of felony, without at- pists declared to be as valid without entainder. (3 B. & Al., 511.)

rollment as if the said recited acts had

never been made. (30) The authorities

not agree on

The Roman Catholic Relief Act (10 this point. (See Harg., Co. Litt., 13, b, Geo. IV., c. 7, s. 23) enacted, that no n.) And see, as to an advowson in oath should be required to be taken by gross, 1 Roll. Abr., 116, pl. 6.

Roman Catholic subjects for enabling

them to hold or enjoy any real or per(31) By the 18 Geo. III., c. 60; 31 sonal property, other than such as by Geo. ÍII., c. 32, and 43 Geo. III., c. 30, law might be required to be taken by so much of the 11 & 12 Will. III., c. 4, other subjects.

only, and does not destroy the inheritable quality of his blood, so as to impede the descent to others of his kindred. In like manner as, even in the times of popery, one who entered into religion and became a monk professed was incapable of inheriting lands, both in our own" and the feodal law; eo quod desiit esse miles seculi qui factus est miles Christi; nec beneficium pertinet ad eum qui non debet gerere officium.w But yet he was accounted only civiliter mortuus; he did not impede the descent to others, but the next heir was entitled to his or his ancestor's estate.

These are the several deficiencies of hereditary blood recognized by the law of England, which, so often as they happen, occasion lands to escheat to the original proprietary or lord.

2 Feud., 21.

u Co. Litt., 132. 296

CHAPTER XVI.

OF TITLE BY OCCUPANCY.

OCCUPANCY is the taking possession of those things which before 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 reasons 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,b quod nullius est, id ratione naturali occupanti conceditur.

This right of occupancy, so far as it concerns real property Occupancy, (for of personal chattels I am not in this place to speak), hath Specialmente been confined by the laws of England within a very narrow estate pour compass, and was extended only to a single instance: namely, where a man was tenant pour autre 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 [ 259 ] calling in the law of nature to ascertain the property of the land, when left without a legal owner. For it did not revert to the grantor, though it formerlyd 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

autre vie.

a See pages 3 and 8.
b Ff., 41, 1, 3.
c Co. Litt., 41.

d Bract., l. 2, c. 9; I. 4, tr. 3, c. 9, 04. Flet., l. 3, c. 12, 6; 1. 5, c. 5, Ø 15.

* In New York, the right of occupancy is not limited to the single instance put in the text, but exists whenever a person in the possession or occupation of land under a claim of right is intruded upon. Such person may maintain an action for such intrusion against any one but the true owner.—(Jackson v. Harder, 4 Johns. R., 202. See, also, 2 Johns. R., 22; 7 Cowen, 637 ; 9 Wendell, 223.)

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. And, even in the case of a subject, had the estate pour autre 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, and Common oc- that such estate is rather a descendible freehold. But the title abolished, of common occupancy is now reduced almost to nothing by two and special statutes: the one 29 Car. II., c. 3, which enacts (according to

the ancient rule of lawg) that, where there is no special occu

pant in whom the estate may vest, the tenant pour autre vie may [ 260 ] devise it by will, or it shall go to the executors or administra

tors, 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 pour autre vie, after payment of debts,' shall go in a course of distribution like a chaitei interest.”

e Co. Litt., 41. | Vaugh., 201. 6 Bract., ibid. Flet., ibid.

cupancy

occupancy devisable.

(1) This reason proves too much, occupancy, as assets by descent, as in since the crown has in every case an case of lands in fee-simple; and in case equal right with any subject to enter as there be no special occupant thereof, it general occupant.

shall go to the executors or administra

tors of the party that had the estate (2) The words of the act are trans- thereof by virtue of the grant, and shall posed, and their meaning altered in the be assets in their hands. text; the clause runs thus: “That, from The statute does not in terms provide henceforth, any estate pour autre vie for the case of the executors or adminisshall be devisable by a will in writing, trators being named by express limita. signed by the party so devising the tion, as special occupants, and it was same, or by some other person in his doubted whether an executor could take presence, &c.; and if no such devise under such a limitation, and if he took thereof be made, the same shall be under it, and not by the statute, whethchargeable in the hands of the heir, if it er he was liable to apply the estate as shall come to him by reason of a special assets, and to distribute it under the

(3) See note (2). The words are, as shall not have been so devised, shall “Such estates pour autre vie in case there go, be applied and distributed in the be no special occupant thereof, of which same manner as the personal estate of no devise shall have been made accord- the testator or intestate." ing to the said act, or so much thereof

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