TITLE TO LANDS BY DESCENT.

CHAPTER I.

THE ORIGIN, PRINCIPLE AND OPERATION OF DESCENTS, CONSIDERED GENERALLY.

It is the custom of modern times to treat the operation of descent as one of the modes of acquiring title to land, similar in character to the acquisition by purchase. Thus it is stated by Chancellor Kent, that "all the modes of acquiring title to land are reducible to title by descent and by purchase, or according to the better distribution of Mr. Hargrave, into title by act or operation of law, and title by purchase or by the act or agreement of the parties."

4 Kent, 373; See Co. Litt. 237 a, 347 b; 2 Bl. Com. 201・ . Smith on Real and Personal Property, 321.

That mode of stating the operation is liable to the objection, that it may mislead the student into the notion that the death of the ancestor begets a title to the lands in the heir; which is only qualifiedly true. The title, which the heir has in the land, neither takes its origin nor gains any strength in the death of the ancestor. The heir merely succeeds to the title or right which the ancestor held at his death. The one is only the successor to the other, to certain contract rights in the land. Consequently, to treat the heir as the successor, as he was once regarded, seems to be more strictly true, and therefore preferable to regarding him as acquiring the title by the death of the ancestor.

It should be borne in mind that an estate of inheritance. under the feudal law, existed only in the contract between the lord, for himself and his heirs on the one side, and the vassal, for himself and his heirs on the other. The one con

tracted that the other might have the possession and occupation of certain lands, usually upon the condition of rendering in return therefor certain rents and services, which the latter agreed to pay and perform. The heirs of each party were expressly named, and regarded, in the eyes of the law, as parties to the contract; and, when the original parties died, the heirs became the real and acting parties of the contract; and so parties continued to succeed each other from one generation to another, so long as there were heirs capable of becoming parties. This contract right of possession of the lands constituted what is known in the law as an estate of inheritance, or an estate in fee; and the succession of one person on the death of another, is what, in more recent times, is said to be the acquisition of title by descent.

The character of this contract, the rights conferred and the obligations imposed upon the heir, are well illustrated in the fact that the heir was not and is not now allowed any choice, whether he will become the party to the contract as the successor of his ancestor, or not. The estate vests in him immediately upon the decease of his ancestor. In that respect, his position differs from an assignee or devisee of an estate, who has the right to elect, whether he will receive. the estate or not, and can never have it forced upon him against his will.

Watkins on Descents, 25; Williams on Real Prop. 75; 2 Wash.

on Real Prop. 402; 2 Bl. Com. 201; Nicolson v. Wordsworth, 2 Swanst. 365, 372.

This seems to be the only instance known to the common law, where it is possible to make a person a party to a contract against his will. He is not made a party by the death of his ancestor, but is regarded as having been a party before; and is only forced to take an acting part in the contract by the death. There was a time in the early history of the feudal law, when the owner of an estate of inheritance was not allowed to alien the estate without the consent of his heir, on the ground that the heir was so far a party to the contract as to have vested rights therein, of which he