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Where there are two or more males in equal degree, the eldest only shall inherit; but the females all together Page 214
The lineal descendants, in infinitum, of any person deceased, shall represent their ancestor; that is, shall stand in the same place as the person himself would have done, had he been living ....... 216
On failure of lineal descendants, or issue, of the person last seised, the inheritance shall descend to the blood of the first purchasor; subject to the three preceding rules.—To evidence which blood, the two following rules are established . 220
The collateral heir of the person last seised must be his next collateral kinsman, of the whole blood . . 224
In collateral inheritances, the male stocks shall be preferred to the female; that is, kindred derived from the blood of the male ancestors shall be admitted before those from the blood of the female: unless where the lands have, in fact, descended from a female ...... 234
SUB TITLE BY PURCHASE J AND, FIRST, BY ESCHEAT.
1. Purchase, or perquisition, is the possession of an estate which a man hath by his own act or agreement; and not by the mere act of law, or descent from any of his ancestors. This includes, I. Escheat. II. Occupancy. III. Prescription. IV. Forfeiture. V. Alienation 241 244
2. Escheat is where, upon deficiency of the tenant's inheritable blood, the estate falls to the lord of the fee . 244
3. Inheritable blood is wanting to, I. Such as are not related to the person last seised. II. His maternal relations in paternal inheritances, and vice versa. III. His kindred of the half blood. IV. Monsters. V. Bastards. VI. Aliens, and their issue. VII. Persons attainted of treason or felony. VIII. Papists, in respect of themselves only, by the statute law . 246 257
OF TITLE BY OCCUPANCY.
1. Occupancy is the taking possession of those things, which before had no owner ...... 258
2. Thus, at the common law, where tenant per auter vie died during the life of cestuy que vie, he who could first enter might lawfully retain the possession; unless by the original grant the heir was made a special occupant .... 259
3. The law of derelictions and alluvions has narrowed the title by occupancy 261 CHAPTER XVII.
OF TITLE BY PRESCRIPTION.
1. Prescription (as distinguished from custom) is a personal immemorial usage of enjoying a right in some incorporeal hereditament, by a man, and either his ancestors or those whose estate of inheritance he hath: of which the first is called prescribing in his ancestors, the latter, in a que estate Page 263
OF TITLE BY FORFEITURE.
1. Forfeiture is a punishment annexed by law to some illegal act, or negligence, in the owner of things real; whereby the estate is transferred to another, who is usually the party injured 267
2. Forfeitures are occasioned, I. By crimes. II. By alienation, contrary to law. III. By lapse. IV. By simony. V. By nonperformance of conditions. VI. By waste. VII. By breach of copyhold customs. VIII. By bankruptcy . . . 267
3. Forfeitures for crimes, or misdemesnors, are for, I. Treason. II. Felony. III. Misprision of treason. IV. Praemunire. V. Assaults on a judge, and batteries, sitting the courts. VI. Popish recusancy, &c. 267
4. Alienations, or conveyances, which induce a forfeiture, are I. Those in mortmain, made to corporations contrary to the statute law. II. Those made to aliens. III. Those made by particular tenants, when larger than their estates will warrant 268—274
5. Lapse is a forfeiture of the right of presentation to a vacant church, by neglect of the patron to present within six calendar months 276
6. Simony is the corrupt presentation of any one to an ecclesiastical benefice, whereby that turn becomes forfeited to the crown .278
7. For forfeiture by non-performance of conditions, see Ch. X.
8. Waste is a spoil, or destruction, in any corporeal hereditaments, to the prejudice of him that hath the inheritance 281
9. Copyhold estates may have also other peculiar causes of forfeiture, according to the custom of the manor . . 284
10. Bankruptcy is the act of becoming a bankrupt; that is, a trader who secretes himself, or does certain other acts, tending to defraud his creditors. (See Ch. XXII.) ... 285
11. By bankruptcy, all the estates of the bankrupt are transferred to the assignees of his commissioners, to be sold for the benefit of his creditors ...... 286 CHAPTER XIX.
OF TITLE BY ALIENATION.
1. Alienation, conveyance, or purchase, in its more limited sense, is a means of transferring real estates, wherein they are voluntarily resigned by one man, and accepted by another Page 287
2. This formerly could not be done by a tenant, without license from his lord; nor by a lord, without attornment of his tenant 287
3. All persons are capable of purchasing; and all, that are in possession of any estates, are capable of conveying them;—unless under peculiar disabilities by law: as being attainted, non compotes, infants, under duress, feme-coverts, aliens, or papists 288—293
4. Alienations are made by common assurances; which are, I. By deed, or matter in pais. II. By matter of record. III. By special custom. IV. By devise .... 293-4
Of Alienation By Deed.
1. In assurances by deed may be considered, I. Its general nature. II. Its several species ..... 295
2. A deed, in general, is the solemn act of the parties: being, usually, a writing sealed and delivered; and it may be, I. A deed indented, or indenture. II. A deed poll . 295-6
3. The requisites of a deed are, I. Sufficient parties, and pro
rer subject-matter. II. A good and sufficient consideration. II. Writing on paper, or parchment, duly stamped. IV. Legal and orderly parts (which are usually, 1st, the premises; 2ndly, the habendum; 3rdly, the tenendum; 4thly, the reddendum; 5thly, the conditions; 6thly, the warranty (which is either lineal or col lateral); 7thly, the covenants; 8thly, the conclusion (which includes the date). V. Reading it, if desired. VI. Sealing, and, in many cases, signing it also. VII. Delivery. VIII. Attestation . 296—307
4. A deed may be avoided. I. By the want of any of the requisites before mentioned. II. By subsequent matter: as, 1st, rasure, or alteration; 2ndly, defacing its seal; 3rdly, cancelling it; 4thly, disagreement of those whose consent is necessary; 5thly, judgment of a court of justice .... 308
5. Of the several species of deeds, some serve to convey real property, some only to charge and discharge it . . 309
6. Deeds which serve to convey real property, or conveyances, are either by common law, or by statute. And of conveyances by common law, some are original or primary, others derivative or secondary ........ 309
7. Original conveyances are, I. Feoffments. II. Gifts. III. Grants. IV. Leases. V. Exchanges. VI. Partitions.—Derivative are, VII. Releases. VIII. Confirmations. IX. Surrenders. X. Assignments. XI. Defeazances . Page 310
8. A feoffment is the transfer of any corporeal hereditament to another, perfected by livery of seisin, or delivery of bodily
possession from the feoffor to the feoffee; without which no freehold estate therein can be created at common law . 310
9. A gift is properly the conveyance of lands in tail . 316
10. A grant is the regular method, by common law, of conveying incorporeal hereditaments . . . . 317
11. A lease is the demise, granting, or letting to farm of any tenement, usually for a less term than the lessor hath therein: yet sometimes possibly for a greater; according to the regulations of the restraining and enabling statutes . . 317
12. An exchange is the mutual conveyance of equal interests, the one in consideration of the other .... 323
13. A partition is the division of an estate held in joint-tenancy, in co-parcenary, or in common, between the respective tenants; so that each may hold his distinct part in severalty . 323
14. A release is the discharge or conveyance of a man's right, in lands and tenements, to another that hath some former estate in possession therein ...... 324
15. A confirmation is the conveyance of an estate or right in esse, whereby a voidable estate is made sure, or a particular estate is increased ....... 325
16. A surrender is the yielding up of an estate for life, or years, to him that hath the immediate remainder or reversion; wherein the particular estate may merge . . . 326
17. An assignment is the transfer, or making over to another, of the whole right one has in any estate; but usually in a lease, for life or years 326
18. A defeazance is a collateral deed, made at the same time with the original conveyance; containing some condition upon which the estate may be defeated .... 327
19. Conveyances by statute depend much on the doctrine of uses and trusts: which are a confidence reposed in the terretenant, or tenant of the land, that he shall permit the profits to be enjoyed, according to the directions of cestuy que use, or cestuy que trust ....... 327
20. The statute of uses, having transferred all uses into actual possession (or, rather, having drawn the possession to the use), has given birth to divers other species of conveyance: I. A covenant to stand seised to uses. II. A bargain and sale, enrolled. III. A lease and release. IV. A deed to lead or declare the use of other more direct conveyances. V. A revocation of uses; being the execution of a power, reserved at the creation of the use, of recalling at a future time the use or estate so creating.
VOL. II. b
All which owe their present operation principally to the statute
of uses Page 337—339
21. Deeds which do not convey, but only charge real property, and discharge it, are, I. Obligations. II. Recognizances. IIL Defeazaiices upon both 340—342
OP ALIENATION BY MATTER OF RECORD.
1. Assurances by matter of record are, where the sanction of some court of record is called in, to substantiate and witness the transfer of real property. These are, I. Private acts of parliament. II. The king's grants. III. Fines. IV. Common recoveries . . . . . i . . . 344
2. Private acts of parliament are a species of assurances, calculated to give (by the transcendent authority of parliament) such reasonable powers or relief, as are beyond the reach of the ordinary course of law ...... 344
3. The king's grants, contained in charters or letters patent, are all entered on record, for the dignity of the royal person, and security of the royal revenue ..... 346
4. A fine (sometimes said to be a feoffment of record) is an amicable composition and agreement of an actual, or fictitious, suit; whereby the estate in question is acknowledged to be the right of one of the parties ...... 348
5. The parts of a fine are, I. The writ of covenant. II. The license to agree. III. The concord. IV. The note. V. The foot. To which the statute hath added, VI. Proclamations 350—352
6. Fines are of four kinds: I. Sur cognizance de droit, come ceo que il ad de son done. II. Sur cognizance de droit tantum. III. Sur concessit. IV. Sur done, grant, et render; which is a double fine ........ 353
7. The force and effect of fines (when levied by such as have themselves any interest in the estate) are to assure the lands in question to the cognizee, by barring the respective rights of parties, privies, and strangers ..... 354
8. A common recovery is by an actual, or fictitious, suit or action for land, brought against the tenant of the freehold; who thereupon vouches another, who undertakes to warrant the tenant's title: but, upon such vouchee's making default, the land is recovered by judgment at law against the tenant; who, in return, obtains judgment against the vouchee to recover lands of equal value in recompence .... 357—359
9. The force and effect of a recovery are to assure lands to the recoveror, by barring estates tail, and all remainders and reversions expectant thereon; provided the tenant in tail either suffers, pr is vouched in, such recovery . , ■ . . 361