Rule in case. "Conquest" of the feudists. 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. 4* What we call purchase, perquisitio, the feudists called conquest, conquæstus, or conquisitio: 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." 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 conquæstus, and him brought more profitable fruits of tenure to the lord. (3) This reason for the rule had for some time ceased to exist before the 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 conquestor or conquisitor; 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 in effect be. scent and The difference in effect, between the acquisition of an estate Differences by descent and by purchase, consists principally in these two tween tak points: 1. That by purchase the estate acquires a new inher- ing by deitable 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 hima) 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; whether he remains in possession, or hath aliened it before action brought; 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.▾ This is the legal signification of the word perquisitio, or pur- Five modes of acquiring chase; and in this sense it includes the five following methods title by pur of acquiring a title to estates: 1. Escheat. 2. Occupancy. 3. chase. • Spelm., Gloss., 145. P See Book i., ch. 3. a Stat. 29 Car. II., c. 3, § 10. Ibid., § 12. (5) And though, under the new law of inheritance, an estate limited to the heirs of A. will vest in A.'s heir, and descend from him as if he had actually inherited it from A. (ante, p. 240, n.), Prescription. 4. Forfeiture. 5. Alienation. Of all these in their order. J Escheat. I. 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 to a com plete title by escheat. 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, in order to complete this title by escheat, it is necessary that the lord perform an act of his own, by entering on the lands and tenements so escheated, or suing out a writ of escheat;a 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. 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, 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." 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 titles to land under purchase and descent, it would be more accurate to say that the title to land is either by purchase, to which the act or agreement of the party is essential, or by mere act of law, and under the latter to consider first descent, and then escheat and such other titles, not being by descent, as yet, like them, accrue by mere act of law." (Harg., Co. Litt., 18, b, n. 2.) It is singular that this acute writer should thus have confounded the origin of the lord's title to escheat with the occasion upon which it becomes exercisable. The title to enter upon an escheat is part of the old seigniory or reversion (Bracton, describing an escheat, says, "revertitur terra," lib. 2, f 23); it is that part of his old estate which, prior to the statute against when he treated of escheat under the division of title by purchase. On this subject, the learned annotator on The First Institute remarks, that "an escheat in appearance participates of the nature both of a purchase and a descent; of the former, because some act by the lord is requisite to perfect his title, and the actual possession of the land can not be gained till he enters or brings his writ of escheat [now abolished]; of the latter, because it follows the nature of the seigniory, and is inheritable by the same persons. But, strictly speaking, an escheat is a title neither by purchase nor descent. It should be considered that, though the lord must do some act to put himself into the actual possession, yet his title to take possession commences 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 considering the title by escheat, that the land escheated will be inheritable in the lord as land by purchase, where he has the seigniory by purchase, and as land by descent, where he has the seigniory by descent; for the reason of this is, not that the escheat is either a purchase or 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 to speak of acquiring a title by death of tenant for life, or by failure of issue in tail; it is to confound the original title, which first connects the person with the land, with the right of entry. An hei may take a remainder by descent, and when the particular estate fails, he enters, but still his title is by descent. [246] Modes of failure of hereditary blood. sanguinis and those propter delictum tenentis: the one sort, if the tenant dies without heirs; the other, if his blood be attainted. But both these species may well be comprehended under the first denomination only; for he that is attainted suffers 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. 1, 2, 3. The first three cases, wherein inheritable blood is wanting, may be collected from the rules of descent laid down and explained in the preceding chapter, and, therefore, will need very little illustration or comment. First, when the ten d Co. Litt., 13, 92. (8) "An escheat was in its nature feodal. A feud was the right which the tenant had to enjoy lands, &c., rendering to the lord the duties and services reserved to him by contract. On the other hand, a right remained in the lord after a grant made, called a 'seigniory; consisting of services to be performed by the tenant, and a right to have the land returned on the expiration of the grant as a reversion; a right afterward called an escheat.' And as the grant was more or less extensive, the reversion was more or less remote, for the feuds were sometimes temporary, some times hereditary; and a temporary one ended on the grantee's death. Sir H. Spelman takes notice only of hereditary feuds, nor do our own laws. And though it may seem a paradox to modern ears, a feoffment to A. and his heirs did not pass a fee-simple originally in the sense we now use it, but only an estate to be enjoyed as a merum beneficium, without the power of alienation in prejudice of the heir or the lord. And the heirs took it successively as a usufructuary interest, and in default of heirs the land escheated, or reverted, strictly speaking. If there was an heir, and by legal impediment he could not take, the land escheated. (Bract., fo. 23, a; 46 Ed. III., pl. 4; Br. Ab., Escheat, pl. 2.)". "In short, the reverter took place where the grant expired naturally, and the heir failed in length of time. In case of escheat it was cut off by civil-law e L. 6, c. 1. impediment, and was an accidental determination of it. The heir took by purchase and independent of the ancestor: he could not alien, nor could the lord alien the seigniory without the consent of the tenant. Afterward the right of the lord gradually underwent several variations, which tended to diminish the interest of the heir and the lord, and to increase that of the tenant. So is Spelm., c. 1." Per Sir T. Clarke, M. R., 1 Eden, 191. The distinction drawn by Sir T. Clarke between reverter and escheat has been long disregarded, at least in the use of the latter word. As escheat only arises on account of the want of a tenant, if lands be vested in A., in trust for B. and his heirs, and B. dies without heirs, there is no escheat, and the best authorities seem to be in favor of the trustee's right to retain the land for his own benefit. In the great case of Burgess v. Wheate, the lordkeeper determined, with the concur rence of Sir Thomas Clarke, Master of the Rolls, but contrary to the opinion of Lord Mansfield, whose assistance he had requested, that where a cestuy que trust dies without heirs, the trust does not escheat to the crown, but that the trustee shall hold them for his own benefit. (1 W. Bl., 123; 1 Eden, 177; 2 Ves. Jun., 170. See 2 Roll. Ab., 65; 1 Sid., 403, 465, 488; 3 Wils., 13; 2 Ves. Sen., 301; 3 Ves., 752.) In a modern case Sir J. Leach, V. C., seems to have overlooked these authorities. (2 Sim. & St., 498.) |
