OF TITLE BY PURCHASE, AND FIRST BY ESCHEAT.

241

born, is also a purchasor; for he takes quite another estate than the law of descents would have given him. Nay, even if the ancestor devises his estate to his heir at law by will, with other limitations, or in any other shape than the course of descents would direct, such heir shall take by purchase (d). But if a man, seised in fee, devises his whole estate to his heir at law, so that the heir takes neither a greater nor a less estate by the *devise than he would have done without it, he [242 ] shall be adjudged to take by descent (e) (2), even though it be charged with incumbrances (ƒ); this being for the benefit of creditors, and others, who have demands on the estate of the ancestor (3). 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 purchasors (g). 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 cannot by the same conveyance take an estate in fee by purchase, but only by descent (h) (4). 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 (i). The ancestor, during his life, beareth in himself all his heirs (k); and

(d) Lord Raym. 728.

(e) 1 Roll. Abr. 626.

(ƒ) Salk. 241; Lord Raym. 728. (g) 1 Roll. Abr. 627.

(h) 1 Rep. 104; 2 Lev. 60; Raym. 334.

(i) 1 Rep. 98.

(k) Co. Litt. 22.

(2) The doctrine laid down in the text, that when a devise of lands to the heir at law makes no alteration in the nature or limitation of the estate, the heir will take, not by purchase under the will, but by his preferable title by descent, is no longer law. The statute of 3 & 4 Gul. IV. c. 106, enacts, that an heir to whom land is devised by his ancestor shall take as devisee, and not by descent; and that a limitation of land, by any assurance, to the grantor and his heirs, shall create an estate by purchase.

(3) By the statute of 3 & 4 Gul. IV.

c. 104, freehold and copyhold estates
are made assets, to be administered in
courts of equity, for payment of the
debts of the person who died seised
of or entitled to such estates, if he has
not by his will legally charged them
with, or devised them subject to, pay-
ment of his just debts. Provided that,
in the administration of assets by
courts of equity, under this act, cre-
ditors by specialty, in which the heirs
are bound, shall be entitled to prio.
rity of payment.

(4) See ante, the note to p. 171.

Purchase called by the feudists conquest.

therefore, when once he is or might have been seised 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 (5), 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 purchasor 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 signiory, arising from a descent to the heir.

What we call purchase, perquisitio, the feudists called conquest, 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 [ *243 ] styled *the first purchasor (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 conquæstus, and himself 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) (6).

(1) Crag. 1. 1, t. 10, s. 18.
(m) Dalrymple of Feuds, 210.
(n) Gr. Coustum. Gloss. c. 25, p. 40.

(5) See the reference given in the last note.

(0) Spelm. Gloss. 145.
(p) See Book 1, ch. 3.

(6) But see ante, p. 48, note. If William I. acquired a just title to

between acqui

scent and by

The difference in effect, between the acquisition of an es- The difference tate by descent and by purchase, consists principally in these sition by detwo points: 1. That by purchase the estate acquires a new purchase. inheritable quality, and is descendible to the owner's blood in general, 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 (7), 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 (q)) had any estate of inheritance vested in him by descent from (or any estate pur auter vie coming to him by [244] special occupancy, as heir to (r)) that ancestor, sufficient to answer the charge (s); whether he remains in possession, or hath aliened it before action brought (t); which sufficient estate is in the law called assets; from the French word, assez, enough (u). 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 covenantor: 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).

quiring title in

This is the legal signification of the word perquisitio, or Methods of acpurchase; and in this sense it includes the five following cluded in the methods of acquiring a title to estates: 1. Escheat (8). 2. term purchase.

(g) Stat. 29 Car. II. c. 3, s. 10. (r) Ibid. s. 12.

(s) 1 P. Wms. 777.

the crown by victory, it sounds very like a verbal subtlety to say, he had no such title to the realm.

(7) But see ante, the note to p.

222.

(f) Stat. 3 & 4 W. & M. c. 14.
(u) Finch, Law, 119.
(v) Finch, Rep. 86.

(8) As to the impropriety of considering escheats, in every case, under the head of title by purchase, see ante, p. 201, note. If the escheat is an ac

I. Escheat.

The nature of title by escheat.

Occupancy. 3. Prescription. 4. Forfeiture. 5. Aliena

tion. Of all these in their order.

I. Escheat, we may remember (w), was one of the fruits and consequences of feodal tenure. The word itself is originally French or Norman (x), 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 signiory, to which he was entitled by descent, (for which reason the lands escheating shall attend the signiory, and be inheritable by such only of his heirs as are capable of inheriting the other (z)(9),) 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 by act of law, and not by his [245] own act *or agreement,) than under 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

(w) See pag. 72.

(x) Eschet or échet, formed from the verb eschoir or échoir, to happen.

(y) 1 Feud. 86; Co. Litt. 13.
(z) Co. Litt. 13.

(a) Bro. Abr. tit. Escheat, 26.

cessory of land or a seignory taken by
descent, the escheat ought not to be
considered as a purchase. It may be
added, that escheats do not answer to
the description given by our author, in
the last page, of the effects of the ac-
quisition of an estate by purchase;
for, the inheritable quality of the lands
escheated, as we are taught in the pre-
sent page, and as the statute of 3 & 4
Gul. IV. c. 106, implies, follows the
nature of the seignory, and does not
attach in the person of the lord to

whom the escheat falls. Nor are the lands exempt from the acts of the ancestor, from whom the seignory descends, or from the incumbrances of the last tenant. (Earl of Bedford's case, 7 Rep. 6; Smalman v. Agborough, 1 Roll. Rep. 402.)

(9) Fitzherbert, (N. B. 144, D,) says, in substance, that if the lord dies before the writ of escheat is sued out, his heir will be entitled to the writ; because by the escheat a descendible right accrued.

AND FIRST BY ESCHEAT.

barred (b). It is, therefore, in some respect a title acquired
by his own act, as well as by act of law.
by act of law. Indeed, this may
also be said of descents themselves, in which an entry or
other seisin 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 signiory to
which they belong, they may vest by either purchase or
descent, according as the signiory 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 succes-

sion.

the law of es

The law of escheats is founded upon this single principle, The principle of that the blood of the person last seised in fee-simple is, by cheats. 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 (10).

two kinds-the

tenant dies withother, where his

blood is at

Escheats are frequently divided into those propter defec- Escheats are of tum sanguinis, and those propter delictum tenentis: the one, where the one sort, if the tenant dies without heirs; the other, if his out heirs; the blood be attainted (d) (11). But both these species may well be *comprehended under the first denomination only; for he that is attainted (12) suffers an extinction of his blood, as well as he that dies without relations. The inheritable quality

(b) Bro. Abr. tit. Acceptance, 25; Co. Litt. 268.

(10) See ante, the note to p. 73. (11) When trust estates escheat, by the failure of heirs to the trustee, or his attainder, the legal rights of the lord of the fee are now subjected to the control of the Court of Chancery. See

(c) 1 Inst. 215.

(d) Co. Litt. 13, 92.

ante, the note to p. 201, ad fin.

(12) As to the relaxation of the doctrine of attainder, which has taken place in modern times, see ante, the note to p. 72.

tainted.

[ *246 ]