Sivut kuvina

Rule in Shelley's oase.

. xv. cestor.' If a remainder be limited to the heirs of Sempronius, here Sempronius himself takes nothing; but if he dies during the continuance of the particular estate, his heirs shall take as purchasers.& But if an estate be made to A. for life, remainder to his right heirs in fee, his heirs shall take by descent; for it is an ancient rule of law, that wherever the ancestor takes an estate for life, the heir can not by the same conveyance take an estate in fee by purchase, but only by descent. And if A. dies before entry, still his heir shall take by descent, and not by purchase ; for, where the heir takes any thing that might have vested in the ancestor, he takes by way of descent. The ancestor, during his life, beareth in himself all his heirs ;k and, therefore, when once he is or might have been seized of the lands, the inheritance so limited to his heirs vests in the ancestor himself, and the word heirs” in this case is not esteemed a word of purchase, but a word of limitation, enuring so as to increase the estate of the ancestor from a tenancy for life to a fee-simple.** And had it been otherwise, had the heir (who is uncertain till the death of the ancestor) been allowed to take as a purchaser originally nominated in the deed, as must have been the case if the remainder had been expressly limited to Matthew or Thomas by name; then, in the times of strict feodal tenure, the lord would have been defrauded by such a limitation of the fruits of his seigniory, arising from a descent to the

heir. Conquest" What we call purchase, perquisitio, the feudists called con

quest, conquæstus, or conquisitio :1 both denoting any means of acquiring an estate out of the common course of inheritance. And this is still the proper phrase in the law of Scotland ;m as

it was among the Norman jurists, who styled the first purchas[243] er (that is, he who brought the estate into the family which

at present owns it) the conqueror, or conquereur.n Which seems
to be all that was meant by the appellation which was given
to William the Norman, when his manner of ascending the
throne of England was, in his own and his successors' charters,
and by the historians of the times, entitled conquestus, and him-
6 1 Roll. Abr., 627.

* Co. Litt., 22.
h 1 Rep., 104. 2 Lev., 60. Raym., | Craig, 1. 1, t. 10, $ 18.

Dalrymple, of Feuds, 210.
i Shelley's case, 1 Rep., 98.

n Gr. Čoustum., Gloss., c. 25, pag. 40.



of the feudists.


(3) This reason for the rule had for brought more profitable fruits of tenure some time ceased to exist before the to the lord. rule itself was abolished. (Vide ante, p. 240, n. (43).) As to the claims of (4) This is the celebrated rule in creditors on real estate, vide infra, p. Shelley's case. (1 Co., 88. See Harg. 511, n. The true ground of the prefer- Co. Litt., 376, b, n. 1; Fearne, C. R., ence at common law of a descent to a 28; Preston on Estates, 1 vol., 263-419; devise or purchase was, that the former ante, p. 172, n. (14).)

* The word heirs, in such case, by statute in New York, is to be deemed . word of purchase, and not of limitation. (See ante, p. 172, n. *.)


self conquæstor or conquisitor ;o signifying that he was the first of his family who acquired the crown of England, and from whom, therefore, all future claims by descent must be derived ; though now, from our disuse of the feodal sense of the word, together with the reflection on his forcible method of acquisition, we are apt to annex the idea of victory to this name of conquest or conquisition; a title which, however just with regard to the crown, the conqueror never pretended with regard to the realm of England, nor, in fact, ever had.p The difference in effect, between the acquisition of an estate Differences

. by descent and by purchase, consists principally in these two tween takpoints: 1. That by purchase the estate acquires a new inher-ing by de

scent and itable quality, and is descendible to the owner's blood in gen- purchase. eral, and not the blood only of some particular ancestor. For, when a man takes an estate by purchase, he takes it not ut feudum paternum or maternum, which would descend only to the heirs by the father's or the mother's side; but he takes it ut feudum antiquum, as a feud of indefinite antiquity; whereby it becomes inheritable to his heirs general, first of the paternal, and then of the maternal line. 2. An estate taken by purchase will not make the heir answerable for the acts of the ancestor, as an estate by descent will;" for if the ancestor, by any deed, obligation, covenant, or the like, bindeth himself and his heirs, and dieth ; this deed, obligation, or covenant, shall be binding upon the heir, so far forth only as he (or any other in trust for him) had any estate of inheritance vested in him by descent from (or any estate pour autre vie coming to him by special occupancy, as heir tor) that ancestor, sufficient to answer the charge;s whether he remains in possession, or hath aliened it before action brought it which sufficient estate is in the law [244] called assets, from the French word assez, enough. Therefore, if a man covenants, for himself and his heirs, to keep my house in repair, I can then (and then only) compel his heir to perform this covenant, when he has an estate sufficient for this purpose, or assets, by descent from the covenanter; for though the covenant descends to the heir, whether he inherits any estate or no, it lies dormant, and is not compulsory, until he has assets by descent. v This is the legal signification of the word perquisitio, or pur-Five


of acquiring chase; and in this sense it includes the five following methods title by par of acquiring a title to estates: 1. Escheat. 2. Occupancy. 3. chase. • Spelm., Gloss., 145.

1 P. Wms., 777. p See Book i., ch. 3.

t Stat. 3 & 4 W. & M., c. 14. 9 Stat. 29 Car. II., c. 3, § 10.

u Finch, Law, 119. r Ibid., 12.

" Finch, Rep., 86. (5) And though, under the new law yet, if A. took no estate of freehold of inheritance, an estate limited to the under the same assurance, his heir, heirs of A. will vest in A.'s heir, and though he takes because he is heir, is descend from him as if he had actually a purchaser, and is not answerable for inherited it from A. (ante, p. 240, n.), A.'s debts.

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Prescription. 4. Forfeiture. 5. Alienation. Of all these in their order.

J Escheat.


to a com

1. Escheat, we may remember,w was one of the fruits and consequences of feodal tenure. The word itself is originally French or Norman, in which language it signifies chance or accident; and with us it denotes an obstruction of the course of descent, and a consequent determination of the tenure by some unforeseen contingency; in which case the land naturally results back, by a kind of reversion, to the original grantor or lord of the fee.y

Escheat, therefore, being a title frequently vested in the lord by inheritance, as being the fruit of a seigniory, to which he was entitled by descent (for which reason the lands escheating shall attend the seigniory, and be inheritable by such only of his heirs as are capable of inheriting the otherz), it may seem in such cases to fall more properly under the former general head of

acquiring title to estates, viz., by descent (being vested in him [245] by act of law, and not by his own act or agreement), than unRequisites der the present by purchase. But it must be remembered that, plete title

in order to complete this title by escheat, it is necessary that by escheat. the lord perform an act of his own, by entering on the lands

and tenements so escheated, or suing out a writ of escheat ;ao on failure of which, or by doing any act that amounts to an implied waiver of his right, as by accepting homage or rent of a stranger who usurps the possession, his title by escheat is barred.b It is, therefore, in some respects a title acquired by his own act, as well as by act of law. Indeed, this may also

, be said of descents themselves, in which an entry or other seizin is required, in order to make a complete title; and, therefore, this distribution of titles by our legal writers, into those by descent and by purchase, seems in this respect rather inaccurate, and not marked with sufficient precision; for, as escheats must follow the nature of the seigniory to which they belong, they may vest by either purchase or descent, according as the seigniory is vested. And though Sir Edward Coke considers the lord by escheat as in some respects the assignee of the last tenant,c and therefore taking by purchase ; yet, on the other hand, the lord is more frequently considered as being ultimus hæres, and therefore taking by descent in a kind of caducary succession." w See page 72.

a Bro. Abr., tit. Escheat, 26. * Eschet, or échet, formed from the b Bro. Abr., tit. Acceptance, 25. Co. verb eschoir, or échoir, to happen. Litt., 268. y 1 Feud., 86. Co. Litt., 13.

c 1 Inst., 215. z Co. Litt., 13.

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(6) The writ of escheat has been crown, by a commission of escheat. abolished (stat. 3 & 4 Will. IV., c. 27, (12 East, 96.) s. 36), and the lord's remedy is by entry or ejectment, or, in the case of the (7) Blackstone was certainly in error

The law of escheats is founded upon this single principle, that the blood of the person last seized in fee-simple is, by some means or other, utterly extinct and gone ; and, since none can inherit his estate but such as are of his blood and consanguinity, it follows, as a regular consequence, that when such 'blood is extinct the inheritance itself must fail; the land must become what the feodal writers denominate feudum apertum, and must result back again to the lord of the fee, by whom, or by those whose estate he hath, it was given.

Escheats are frequently divided into those propter defectum


when he treated of escheat under the titles to land under purchase and descent, division of title by purchase. On this it would be more accurate to say that subject, the learned annotator on The the title to land is either by purchase, to First Institute remarks, that “an es- which the act or agreement of the party cheat in appearance participates of the is essential, or by mere act of law, and nature both of a purchase and a descent; under the latter to consider first descent, of the former, because some act by the and then escheat and such other titles, lord is requisite to perfect his title, and not being by descent, as yet, like them, the actual possession of the land can not accrue by mere act of law." (Harg., be gained till he enters or brings his' Co. Litt., 18, b, n. 2.) It is singular that writ of escheat (now abolished]; of the this acute writer should thus have conlatter, because it follows the nature of founded the origin of the lord's title to the seigniory, and is inheritable by the escheat with the occasion upon which it same persons. But, strictly speaking, an becomes exercisable. The title to enescheat is a title neither by purchase nor ter upon an escheat is part of the old descent. It should be considered that, seigniory or reversion (Bracton, describthough the lord must do some act to put ing an escheat, says, “ revertitur terra," himself into the actual possession, yet lib. 2, f 23); it is that part of his old eshis title to take possession commences tate which, prior to the statute against immediately on the want of a tenant, subinfeudations, the lord was allowed to and this title is vested in him without retain to himself, just as the reversion, waiting for his own deed or agreement, which is left in the donor or lessor after and as much by mere act of law as the a gift in tail, or a lease for life, is part of title of an heir is in the case of a descent; his old estate. When the subordinate es[so that though one to whom land is tate, whether fee-simple, fee-tail, or mere limited by way of purchase may, before life estate, is exhausted, then the seignacceptance, disclaim the estate, and thus iory or reversion falls into possession, bar his heir from claiming it, a lord en- and the lord or reversioner enters, not titled to an escheat can not, any more by virtue of any title just accrued to him, than an ordinary heir, disclaim the title but because the event has happened so as to prevent his heir from afterward upon which his old title was to be exerasserting it], and therefore both titles cised. If the reversion or seigniory was are equally excluded from being pur- his by purchase, his title remains, after chases. On the other hand, escheat is the escheat as before, a title by purnot a title by descent, for the lord takes chase; if he took his reversion or seignit in his capacity of lord of the seigniory, iory by descent, then it is still a title by of which the land escheated was holden, descent. To speak of acquiring a title and not as heir or by right of blood. by escheat, is as incorrect as it would be Nor is it any objection to this way of to speak of acquiring a title by death of considering the title by escheat, that the tenant for life, or by failure of issue in land escheated will be inheritable in the tail; it is to confound the original title, lord as land by purchase, where he has which first connects the person with the the seigniory by purchase, and as land land, with the right of entry. An hein by descent, where he has the seigniory may take a remainder by descent, and by descent; for the reason of this is, not when the particular estate fails, he enthat the escheat is either a purchase or ters, but still his title is by descent. descent, but because the escheat follows Encumbrances on the seigniory bind the seigniory from which the right to it the lands which accrue to the lord by is derived, as an accessory its principal. escheat. (See 7 Rep., 6; 1 Roll., 402; According to this view of the subject, 1 Eden, 192.) instead of distributing all the several

sanguinis and those propter delictum tenentis : the one sort, if the tenant dies without heirs; the other, if his blood be at

tainted. But both these species may well be comprehended ( 246] under the first denomination only; for he that is attainted suf

fers an extinction of his blood, as well as he that dies without relations. The inheritable quality is expunged in one instance, and expires in the other; or, as the doctrine of escheats is very fully expressed in Fleta,e " dominus capitalis feodi loco hæredis habetur, quoties per defectum vel delictum extinguitur sanguis tenentis."

' Escheats, therefore, arising merely upon the deficiency of the blood, whereby the descent is impeded, their doctrine will be better illustrated by considering the several cases wherein hereditary blood may be deficient, than by any other method

whatsoever. Modes of 1, 2, 3. The first three cases, wherein inheritable blood is failure of he wanting, may be collected from the rules of descent laid down blood. and explained in the preceding chapter, and, therefore, will

need very little illustration or comment. First, when the tend Co. Litt., 13, 92.

e L. 6, c. 1. (8) “An escheat was in its nature impediment, and was an accidental defeodal. A feud was the right which the termination of it. The heir took by purtenant had to enjoy lands, &c., render- chase and independent of the ancestor: ing to the lord the duties and services he could not alien, nor could the lord reserved to him by contract. On the alien the seigniory without the consent other hand, a right remained in the lord of the tenant. Afterward the right of after a grant made, called a “seigniory; the lord gradually underwent several consisting of services to be performed variations, which tended to diminish the by the tenant, and a right to have the interest of the heir and the lord, and to land returned on the expiration of the increase that of the tenant. So is Spelm., grant as a reversion; a right afterward c. 1." Per Sir T. Clarke, M. R., 1 Eden, called an. escheat.' And as the grant 191. The distinction drawn by Sir T. was more or less extensive, the rever- Clarke between reverter and escheat has sion was more or less remote, for the been long disregarded, at least in the feuds were sometimes temporary, some use of the latter word. times hereditary; and a temporary one As escheat only arises on account of ended on the grantee's death. Sir H. the want of a tenant, if lands be vested Spelman takes notice only of heredit- in A., in trust for B. and his heirs, and ary feuds, nor do our own laws. And B. dies without heirs, there is no escheat, though it may seem à paradox to mod- and the best authorities seem to be in ern ears, a feoffment to A. and his heirs favor of the trustee's right to retain the did not pass a fee-simple originally in land for his own benefit. In the great the sense we now use it, but only an es- case of Burgess v. Wheate, the lordtate to be enjoyed as a merum benefici- keeper determined, with the concurum, without the power of alienation in rence of Sir Thomas Clarke, Master of prejudice of the heir or the lord. And the Rolls, but contrary to the opinion of the heirs took it successively as a usu- Lord Mansfield, whose assistance he had fructuary interest, and in default of heirs requested, that where a cestuy que trust the land escheated, or reverted, strictly dies without heirs, the trust does not esspeaking. If there was an heir, and by cheat to the crown, but that the trustee legal impediment he could not take, the shall hold them for his own benefit. (1 land escheated. (Bract., fo. 23, a; 46 W. Bl., 123; 1 Eden, 177 ; 2 Ves. Jun., Ed. III., pl. 4; Br. Ab., Escheat, pl. 170. See 2 Roll. Ab., 65 ; 1 Sid., 403,

465, 488; 3 Wils., 13; 2 Ves. Sen., 301; “ In short, the reverter took place 3 Ves., 752.) In a modern case Sir J. where the grant expired naturally, and Leach, v. C., seems to have overlooked the heir failed in length of time. In these authorities. (2 Sim. & St., 498.) case of escheat it was cut off by civil-law




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