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. 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. CHAPTER XVI. OF TITLE BY OCCUPANCY. OCCUPANCY is the taking possession of those things which before belonged to nobody. This, as we have seen, 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. common, of autre vie. 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 and 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 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 a See pages 3 and 8. b Ff., 41, 1, 3. c Co. Litt., 41. d Bract., 1. 2, c. 9; 1. 4, tr. 3, c. 9, § 4. Flet., 1. 3, c. 12, § 6; l. 5, c. 5, § 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.) [ 259] 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,f and Common oc- 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 ancient rule of laws) that, where there is no special occupant 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 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 pour autre vie, after payment of debts,' shall go in a course of distribution like a chattel interest." cupancy abolished, and special occupancy devisable. (1) This reason proves too much, since the crown has in every case an equal right with any subject to enter as general occupant. (2) The words of the act are transposed, and their meaning altered in the text; the clause runs thus: "That, from henceforth, any estate pour autre vie shall be devisable by a will in writing, signed by the party so devising the same, or by some other person in his presence, &c.; and if no such devise thereof be made, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of a special (3) See note (2). The words are, "Such estates pour autre vie in case there be no special occupant thereof, of which no devise shall have been made according to the said act, or so much thereof Bract., ibid. Flet., ibid. occupancy, as assets by descent, as in case of lands in fee-simple; and in case there be no special occupant thereof, it shall go to the executors or administrators of the party that had the estate thereof by virtue of the grant, and shall be assets in their hands." The statute does not in terms provide for the case of the executors or adminis trators being named by express limitation, as special occupants, and it was doubted whether an executor could take under such a limitation, and if he took under it, and not by the statute, whether he was liable to apply the estate as assets, and to distribute it under the as shall not have been so devised, shall go, be applied and distributed in the same manner as the personal estate of the testator or intestate." occupancy By these two statutes the title of common occupancy is ut- Common terly extinct and abolished, though that of special occupancy, abolished. 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. But, as before the statutes there could no common occupancy be had of incorporeal hereditaments, as of rents, tithes, advowsons, commons, or the likeh (because, with respect to them, there could be no actual entry made, or corporeal seizin had; and, therefore, by the death of the grantee pour autre vie, a grant of such hereditaments was entirely determined), so now, I apprehend, notwithstanding these statutes, such grant would be determined likewise; and the hereditaments would not be devisable, nor vest in the executors, nor go in a course of distribution. For these statutes must not be construed so as to create any new estate, or keep that alive which by the common law was determined, and thereby to defer the grantor's reversion; but merely to dispose of an interest in being, to which by law there was no owner, and which, therefore, was left open to the first occupant. When there is a residue left, the statutes give it to h Co. Litt., 41. Vaugh., 201. stat. 14 Geo. II., c. 20. (See 7 Ves., 438; 18 Ves., 273; 1 Sch. & Lef., 290.) The doubt was scarcely tenable, and has been removed by apt words in the stat. 7 Will. IV. & 1 Vict., c. 26, s. 6. "These questions on estates pour autre vie do not frequently arise. Such estates certainly are not estates of inheritance: they have been sometimes called, though improperly, descendible freeholds; strictly speaking, they are not descendible freeholds, because the heirat-law does not take by descent. If an action at common law had been brought against the heir on the bond of his ancestor, he might have pleaded riens per descent, for these estates were not liable to the debts of the ancestor before the Statute of Frauds. That act made them chargeable in the hands of the heir, as assets by descent, if he took by reason of a special occupancy; and if there be no special occupant, it directs that they shall go to the executors, subject to the debts of the testator; and the stat. 14 Geo. II., c. 20, renders them distributable as personalty. An estate pour autre vie, therefore, partakes somewhat of the nature of a personal estate; though it is not a chattel interest, it still remains a freehold interest for many purposes; such as giving a qualification to vote for members of Parliament, and to kill game, (4) Lord-keeper Harcourt has declared there is no difference since the 29 and some others; a will to dispose of it Although an estate pour autre vie in a Car. II., c. 3, between a grant of cor- [261] the executors and administrators, instead of the first occupant; but they will not create a residue on purpose to give it to ei ther. They only meant to provide an appointed instead of a casual, a certain instead of an uncertain owner of lands which before were nobody's; and thereby to supply this casus omissus, and render the disposition of law in all respects entirely uniform; this being the only instance wherein a title to a real estate could ever be acquired by occupancy. This, I say, was the only instance; for I think there can be no other case devised wherein there is not some owner of the land appointed by the law. In the case of a sole corporation, as a parson of a church, when he dies or resigns, though there is no actual owner of the land till a successor be appointed, yet there is a legal, potential ownership, subsisting in contemplation of law; and when the successor is appointed, his appointment shall have a retrospect and relation backward, so as to entitle him to all the profits from the instant that the vacancy commenced. And, in all other instances, when the tenant dies intestate, and no other owner of the lands is to be found in the common course of descents, there the law vests an ownership in the king, or in the subordinate lord of the fee, by escheat. So, also, in some cases, where the laws of other nations give the sea, riv. a right by occupancy, as in lands newly created, by the rising of an island in the sea or in a river, or by the alluvion or der New lands forming in ers, &c. But see, now, the statute 5 Geo. III., c. 17, which makes leases for one, two, or three lives, by ecclesiastical persons, or any eleemosynary corpora pour autre vie; for by that statute every In page 113, ante, it is said, that an tion, of tithes or other incorporeal hereditaments, as good and effectual, to all intents and purposes, as leases of corporeal possessions. tions are designations of the persons who shall take as special occupants; but any alienation of the quasi tenant in tail will bar the interest of him in remainder. See 3 P. Wms., 266, and 6 T. R., 293, where it appears to have been the opinion of Lord Northington and Lord Kenyon that the tenant in tail of an es tate pour autre vie may bar the remainders over by his will alone. [CHRIST IAN.] The authorities are divided as to the power and effect of a will on an entailed estate pour autre vie. (See 2 Atk., 376; 1 Sch. & Lef., 281; 1 Ball. & B., 95; G. Coop., 185.) The recent statute of wills appears to make the devise a bar, whether it was not so before or not. Such a quasi entail may be barred before the condition is performed by having issue. (Harg., Co. Litt., 19, a.) * In New York, an estate pour autre vie, whether limited to heirs or otherwise, is deemed a freehold during the life of the grantee or devisee, and a chattel real after his death.-(1 R. S., 723, § 6.) A remainder can not be created upon such an estate, unless such remainder be in fee; nor can it be created upon such an estate in a term of years, unless it be for the whole residue of the term.-(Id., 724, § 18.) |