Front Page Titles (by Subject) CHAPTER XV.: OF TITLE BY PURCHASE AND I. BY ESCHEAT. - Commentaries on the Laws of England in Four Books, vol. 1
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
CHAPTER XV.: OF TITLE BY PURCHASE AND I. BY ESCHEAT. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
OF TITLE BY PURCHASE AND I. BY ESCHEAT.
Purchase,perquisitio, taken in its largest and most extensive sense, is thus defined by Littleton;(a) the possession of lands and tenements, which a man hath by his own act or agreement, and not by descent from any of his ancestors or kindred. In this sense it is contradistinguished from acquisition by right of blood, and includes every other method of coming to an estate, but merely that by inheritance: wherein the title is vested in a person, not by his own act or agreement, but by the single operation of law.(b)
Purchase, indeed, in its vulgar and confined acceptation, is applied only to such acquisitions of land, as are obtained by way of bargain and sale for money, or some other valuable consideration. But this falls far short of the legal idea of purchase: for, if I give land freely to another, he is in the eye of the law a purchaser,(c) and falls within Littleton’s definition, for he comes to the estate by his own agreement; that is, he consents to the gift. A man who has his father’s estate settled upon him in tail, before he was born, is also a purchaser; 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 **242]devise than he would have done without it, he shall be adjudged to take by descent,(e) even though it be charged with encumbrances:(f) this being for the benefit of creditors, and others, who have demands on the estate of the ancestor.1 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.(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 whenever 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) And if A. dies before entry, still his heirs 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 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, enuring so as to increase the estate of the ancestor from a tenancy for life to a fee-simple.2 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 signiory arising from a descent to the heir.
What we call purchase, perquisitio, the feudists called conquests, conquæstus, or conquisitio:(l) 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 *[*243the first purchaser (that is, he who brought the estate into the family who 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)
The difference, in effect, between the acquisition of an estate by descent and by purchase, consists principally in these two points: 1. That by purchase the estate acquires a new 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, as a feud of indefinite antiquity, whereby it be comes 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 **244]from, (or any estate pur auter vie coming to him by special occupancy, as heir to,)(r) that ancestor, sufficient to answer the charge;(s) whether he remains in possession, or hath alienated 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)3
This is the legal signification of the word perquisitio, or purchase; and in this sense it includes the five following methods of acquiring a title to estates: 1. Escheat. 2. Occupancy. 3. Prescription. 4. Forfeiture. 5. Alienation. Of all these in their order.
I. Escheat, we may remember,(w) was one of the fruits and consequences of feodal tenure.4 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 escheated shall attend the signiory, and be inheritable by such only of his heirs as are capable of inheriting the other,)(z) 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 own act **245]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 barred.(b) It is therefore in some respect 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 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 succession.
The law of escheats is founded upon this single principle, that the blood of the person last seised 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 sanguinis, and those propter delictum tenentis: the one sort, if the tenant dies without heirs; the other, if his blood be attainted.(d) But both these species may well be *[*246comprehended 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 tenant dies without any relations on the part of any of his ancestors: secondly, when he dies without any relations on the part of those ancestors from whom his estate descended: thirdly, when he dies without any relations of the whole blood. In two of these cases the blood of the first purchaser is certainly, in the other it is probably, at an end; and therefore in all of them the law directs that the land shall escheat to the lord of the fee; for the lord would be manifestly prejudiced, if, contrary to the inherent condition tacitly annexed to all feuds, any person should be suffered to succeed to the lands, who is not of the blood of the first feudatory, to whom for his personal merit the estate is supposed to have been granted.5
4. A monster, which hath not the shape of mankind, but in any part evidently bears the resemblance of the brute creation, hath no inheritable blood, and cannot be heir to any land, albeit it be brought forth in marriage: but, although it hath deformity in any part of its body, yet if it **247]hath human shape it may be heir.(f) This is a very ancient rule in the law of England;(g) and its reason is too obvious and too shocking to bear a minute discussion. The Roman law agrees with our own in excluding such births from successions:(h) yet accounts them, however, children in some respects, where the parents, or at least the father, could reap any advantage thereby:(i) (as the jus trium liberorum, and the like,) esteeming them the misfortune, rather than the fault, of that parent. But our law will not admit a birth of this kind to be such an issue as shall entitle the husband to be tenant by the curtesy;(k) because it is not capable of inheriting. And therefore, if there appears no other heir than such a prodigious birth, the land shall escheat to the lord.
5. Bastards are incapable of being heirs. Bastards, by our law, are such children as are not born either in lawful wedlock, or within a competent time after its determination.(l) Such are held to be nullius filii, the sons of nobody; for the maxim of law is, qui ex damnato coitu nascuntur, inter liberos non computantur.(m) Being thus the sons of nobody, they have no blood in them, at least no inheritable blood: consequently, none of the blood of the first purchaser: and therefore, if there be no other claimant than such illegitimate children, the land shall escheat to the lord.(n) The civil law differs from ours in this point, and allows a bastard to succeed to an inheritance, if after its birth the mother was married to the father:(o) and also, if the father had no lawful wife or child, then, even if the concubine was never married to the father, yet she and her bastard son were admitted each to one-twelfth of the inheritance;(p) and a bastard was likewise **248]capable of succeeding to the whole of his mother’s estate, although she was never married; the mother being sufficiently certain, though the father is not.(q) But our law, it favour of marriage, is much less indulgent to bastards.6
There is, indeed, one instance, in which our law has shown them some little regard; and that is usually termed the case of bastard eignè and mulier puisnè. This happens when a man has a bastard son, and afterwards marries the mother, and by her has a legitimate son, who, in the language of the law, is called a mulier, or, as Glanvil(r) expresses it in his Latin, filius mulieratus; the woman before marriage being concubina, and afterwards mulier. Now, here the eldest son is bastard, or bastard eignè; and the younger son is legitimate, or mulier puisnè. If then the father dies, and the bastard eignè enters upon his land, and enjoys it to his death, and dies seised thereof,7 whereby the inheritance descends to his issue; in this case the mulier puisnè, and all other heirs, (though minors, feme-coverts, or under any incapacity whatsoever,) are totally barred of their right.(s) And this, 1. As a punishment on the mulier for his negligence, in not entering during the bastard’s life, and evieting him. 2. Because the law will not suffer a man to be bastardized after his death who entered as heir and died seised, and so passed for legitimate in his lifetime.8 3. Because the canon law (following the civil) did allow such bastard eignè to be legitimate on the subsequent marriage of his mother; and therefore the laws of England (though they would not admit either the civil or canon law to rule the inheritances of this kingdom, yet) paid such a regard to a person thus peculiarly circumstanced, that, after the land had descended to his issue, they would not unravel the matter again, and suffer his estate to be shaken. But this indulgence was shown to no other kind of bastard; for, if the mother was never married to the father, such bastard could have no colourable title at all.(t)9
*[*249As bastards cannot be heirs themselves, so neither can they have any heirs but those of their own bodies. For, as all collateral kindred consists in being derived from the same common ancestor, and a bastard has no legal ancestors, he can have no collateral kindred; and, consequently, can have no legal heirs but such as claim by a lineal descent from himself. And therefore if a bastard purchase land and dies seised thereof without issue, and intestate, the land shall escheat to the lord of the fee.(u)
6. Aliens,(v) also, are incapable of taking by descent, or inheriting:(w) for they are not allowed to have any inheritable blood in them; rather indeed upon a principle of national or civil policy, than upon reasons strictly feodal. Though, if lands had been suffered to fall into their hands who owe no allegiance to the crown of England, the design of introducing our feuds, the defence of the kingdom, would have been defeated. Wherefore if a man leaves no other relations but aliens, his land shall escheat to the lord.10
As aliens cannot inherit, so far they are on a level with bastards; but as they are also disabled to hold by purchase,(x)11 they are under still greater disabilities. And, as they can neither hold by purchase nor by inheritance, it is almost superfluous to say that they can have no heirs, since they can have nothing for an heir to inherit; but so it is expressly holden,(y) because they have not in them any inheritable blood.
And further, if an alien be made a denizen by the king’s letters-patent, and then purchases land, (which the law allows such a one to do,) his son, born before his denization, shall not (by the common law) inherit those lands; but a son born afterwards may, even though his elder brother be living; for the father, before denization, had no inheritable blood to communicate to his eldest son; but by denization it acquires **250]an hereditary quality, which will be transmitted to his subsequent posterity. Yet if he had been naturalized by act of parliament, such eldest son might then have inherited; for that cancels all defects, and is allowed to have a retrospective energy, which simple denization has not.(z)12
Sir Edward Coke(a) also holds, that if an alien cometh into England and there hath issue two sons, who are thereby natural-born subjects; and one of them purchases land, and dies: yet neither of these brethren can be heir to the other. For the commune vinculum, or common stock of their consanguinity, is the father; and as he had no inheritable blood in him, he could communicate none to his sons; and, when the sons can by no possibility be heirs to the father, the one of them shall not be heir to the other. And this opinion of his seems founded upon solid principles of the ancient law: not only from the rule before cited,(b) that cestuy, que doit inheriter al père, doit inheriter al fils: but also because we have seen that the only feodal foundation, upon which newly-purchased land can possibly descend to a brother, is the supposition and fiction of law, that it descended from some one of his ancestors; but in this case, as the intermediate ancestor was an alien, from whom it could by no possibility descend, this should destroy the supposition, and impede the descent, and the land should be inherited ut feudum stricte novum; that is, by none but the lineal descendants of the purchasing brother; and, on failure of them, should escheat to the lord of the fee. But this opinion hath been since overruled:(c) and it is now held for law, that the sons of an alien born here, may inherit to each other; the descent from one brother to another being an immediate descent.(d) And reasonably enough upon the whole; for, as (in common purchases) the whole of the supposed descent from indefinite ancestors is but fictitious, the law may as well suppose the requisite ancestor as suppose the requisite descent.
**251]It is also enacted, by the statute 11 & 12 W. III. c. 6, that all persons, being natural-born subjects of the king, may inherit and make their titles by descent from any of their ancestors lineal or collateral; although their father or mother, or other ancestor, by, from, through, or under whom they derive their pedigrees, were born out of the king’s allegiance. But inconveniences were afterwards apprehended, in case persons should thereby gain a future capacity to inherit, who did not exist at the death of the person last seised. As, if Francis the elder brother of John Stiles be an alien, and Oliver the younger be a natural-born subject, upon John’s death without issue his lands will descend to Oliver the younger brother: now, if afterwards Francis has a child born in England, it was feared that, under the statute of king William, this new-born child might defeat the estate of his uncle Oliver. Wherefore it is provided, by the statute 25 Geo. II. c. 39, that no right of inheritance shall accrue by virtue of the former statute to any persons whatsoever, unless they are in being and capable to take as heirs at the death of the person last seised:—with an exception however to the case, where lands shall descend to the daughter of an alien; which descent shall be divested in favour of an after-born brother, or the inheritance shall be divided with an after-born sister or sisters, according to the usual rule(e) of descents by the common law.
7. By attainder also, for treason or other felony, the blood of the person attainted is so corrupted, as to be rendered no longer inheritable.
Great care must be taken to distinguish between forfeiture of lands to the king, and this species of escheat to the lord; which, by reason of their similitude in some circumstances, and because the crown is very frequently the immediate lord of the fee, and therefore entitled to both, have been often confounded together. Forfeiture of lands, and of whatever else the offender possessed, was the doctrine of the old Saxon law,(f) as a part of punishment for the offence; *[*252and does not at all relate to the feodal system, nor is the consequence of any signiory or lordship paramount:(g) but, being a prerogative vested in the crown, was neither superseded nor diminished by the introduction of the Norman tenures; a fruit and consequence of which, escheat must undoubtedly be reckoned. Escheat therefore operates in subordination to this more antient and superior law of forfeiture.
The doctrine of escheat upon attainder, taken singly, is this: that the blood of the tenant, by the commission of any felony, (under which denomination all treasons were formerly comprised,)(h) is corrupted and stained, and the original donation of the feud is thereby determined, it being always granted to the vassal on the implied condition of dum bene se gesserit. Upon the thorough demonstration of which guilt, by legal attainder, the feodal covenant and mutual bond of fealty are held to be broken, the estate instantly falls back from the offender to the lord of the fee, and the inheritable quality of his blood is extinguished and blotted out forever. In this situation the law of feodal escheat was brought into England at the conquest; and in general superadded to the antient law of forfeiture. In consequence of which corruption and extinction of hereditary blood, the land of all felons would immediately revest in the lord, but that the superior law of forfeiture intervenes, and intercepts it in its passage: in case of treason, forever; in case of other felony, for only a year and a day; after which time it goes to the lord in a regular course of escheat,(i) as it would have done to the heir of the felon in case the feodal tenures had never been introduced. And that this is the true operation and genuine history of escheats will most evidently appear from this incident to gavelkind lands, (which seems to be the old Saxon tenure,) that they are in no case subject to escheat for felony, though they are liable to forfeiture for treason.(j)
*[*253As a consequence of this doctrine of escheat, all lands of inheritance immediately revesting in the lord, the wife of the felon was liable to lose her dower, till the statute 1 Edw. VI. c. 12 enacted, that albeit any person be attainted of misprision of treason, murder, or felony, yet his wife shall enjoy her dower. But she has not this indulgence where the antient law of forfeiture operates, for it is expressly provided by the statute 5 & 6 Edw. VI. c. 11 that the wife of one attaint of high treason shall not be endowed at all.13
Hitherto we have only spoken of estates vested in the offender at the time of his offence or attainder. And here the law of forfeiture stops; but the law of escheat pursues the matter still further. For the blood of the tenant being utterly corrupted and extinguished, it follows not only that all that he now has shall escheat from him, but also that he shall be incapable of inheriting any thing for the future. This may further illustrate the distinction between forfeiture and escheat. If therefore a father be seised in fee, and the son commits treason and is attainted, and then the father dies: here the lands shall escheat to the lord; because the son, by the corruption of his blood, is incapable to be heir, and there can be no other heir during his life; but nothing shall be forfeited to the king, for the son never had any interest in the lands to forfeit.(k) In this case the escheat operates, and not the forfeiture; but in the following instance the forfeiture works, and not the escheat. As where a new felony is created by act of parliament, and it is provided (as is frequently the case) that it shall not extend to corruption of blood; here the lands of the felon shall not escheat to the lord, but yet the profits of them shall be forfeited to the king for a year and a day, and so long after as the offender lives.(l)
There is yet a further consequence of the corruption and extinction of hereditary blood, which is this: that the person **254]attainted shall not only be incapable himself of inheriting, or transmitting his own property by heirship, but shall also obstruct the descent of lands or tenements to his posterity, in all cases where they are obliged to derive their title through him from any remoter ancestor. The channel which conveyed the hereditary blood from his ancestors to him is not only exhausted for the present, but totally dammed up and rendered impervious for the future. This is a refinement upon the antient law of feuds, which allowed that the grandson might be heir to his grandfather, though the son in the intermediate generation was guilty of felony.(m) But, by the law of England, a man’s blood is so universally corrupted by attainder, that his sons can neither inherit to him nor to any other ancestors,(n) at least on the part of their attainted father.
This corruption of blood cannot be absolutely removed but by authority of parliament. The king may excuse the public punishment of an offender, but cannot abolish the private right which has accrued or may accrue to individuals as a consequence of the criminal’s attainder. He may remit a forfeiture, in which the interest of the crown is alone concerned; but he cannot wipe away the corruption of blood; for therein a third person hath an interest, the lord who claims by escheat. If, therefore, a man hath a son, and is attainted, and afterwards pardoned by the king; this son can never inherit to his father, or father’s ancestors; because his paternal blood, being once thoroughly corrupted by his father’s attainder, must continue so: but if the son had been born after the pardon, he might inherit; because by the pardon the father is made a new man, and may convey new inheritable blood to his after-born children.(o)
Herein there is, however, a difference between aliens and persons attainted Of aliens, who could never by any possibility be heirs, the law takes no notice and therefore we have **255]seen that an alien elder brother shall not impede the descent to a natural-born younger brother. But in attainders it is otherwise: for if a man hath issue a son, and is attainted, and afterwards pardoned, and then hath issue a second son, and dies; here the corruption of blood is not removed from the eldest, and therefore he cannot be heir; neither can the youngest be heir, for he hath an elder brother living, of whom the law takes notice, as he once had a possibility of being heir: and therefore the younger brother shall not inherit, but the land shall escheat to the lord: though had the elder died without issue in the life of the father, the younger son born after the pardon might well have inherited, for he hath no corruption of blood.(p) So, if a man hath issue two sons, and the elder in the lifetime of the father hath issue, and then is attainted and executed, and afterwards the father dies, the lands of the father shall not descend to the younger son; for the issue of the elder, which had once a possibility to inherit, shall impede the descent to the younger, and the land shall escheat to the lord.(q) Sir Edward Coke in this case allows(r) that if the ancestor be attainted, his sons born before the attainder may be heirs to each other; and distinguishes it from the case of the sons of an alien, because in this case the blood was inheritable when imparted to them from the father; but he makes a doubt (upon the principles before mentioned, which are now overruled)(s) whether sons, born after the attainder, can inherit to each other, for they never had any inheritable blood in them.
Upon the whole, it appears that a person attainted is neither allowed to retain his former estate, nor to inherit any future one, nor to transmit any inheritance to his issue, either immediately from himself, or mediately through himself from any remoter ancestor; for his inheritable blood, which is necessary either to hold, to take, or to transmit any feodal property, is blotted out, corrupted, and extinguished forever: the consequence of which is, that estates thus impeded in their descent result back and escheat to the lord.
*[*256This corruption of blood, thus arising from feodal principles, but perhaps extended further than even those principles will warrant, has been long looked upon as a peculiar hardship: because the oppressive part of the feodal tenures being now in general abolished, it seems unreasonable to reserve one of their most inequitable consequences; namely, that the children should not only be reduced to present poverty, (which, however severe, is sufficiently justified upon reasons of public policy,) but also be laid under future difficulties of inheritance, on account of the guilt of their ancestors. And therefore in most (if not all) of the new felonies created by parliament since the reign of Henry the Eighth, it is declared that they shall not extend to any corruption of blood: and by the statute 7 Anne, c. 21 (the operation of which is postponed by the statute 17 Geo. II. c. 39) it is enacted, that after the death of the late pretender, and his sons, no attainder for treason shall extend to the disinheriting any heir, nor the prejudice of any person, other than the offender himself: which provisions have indeed carried the remedy further than was required by the hardship above complained of; which is only the future obstruction of descents, where the pedigree happens to be deduced through the blood of an attainted ancestor.14
Before I conclude this head of escheat, I must mention one singular instance in which lands held in fee-simple are not liable to escheat to the lord, even when their owner is no more, and hath left no heirs to inherit them. And this is the case of a corporation; for if that comes by any accident to be dissolved, the donor or his heirs shall have the land again in reversion, and not the lord by escheat; which is perhaps the only instance where a reversion can be expectant on a grant in fee-simple absolute. But the law, we are told,(t) doth tacitly annex a condition to every such gift or grant, that if the corporation be dissolved, the donor or grantor shall re-enter; for the cause of the gift or grant *[*257faileth. This is indeed founded upon the self-same principle as the law of escheat; the heirs of the donor being only substituted instead of the chief lord of the fee: which was formerly very frequently the case in subinfeudations, or alienations of lands by a vassal to be holden as of himself, till that practice was restrained by the statute of quia emptores, 18 Edw. I. st. 1, to which this very singular instance still in some degree remains an exception.
There is one more incapacity of taking by descent, which, not being productive of any escheat, is not strictly reducible to this head, and yet must not be passed over in silence. It is enacted by the statute 11 & 12 Will. III. c. 4,15 that every papist who shall not abjure the errors of his religion by taking the oaths to the government, and making the declaration against transubstantiation, within six months after he has attained the age of eighteen years, shall be incapable of inheriting, or taking, by descent as well as purchase, any real estates whatsoever; and his next of kin, being a protestant, shall hold them to his own use till such time as he complies with the terms imposed by the act. This incapacity is merely personal; it affects himself only, and does not destroy the inheritable quality of his blood, so as to impede the descents to others of his kindred. In like manner as, even in the times of popery, one who entered into religion, and became a monk professed, was incapable of inheriting lands, both in our own(u) and the feodal law; eo quod desiit esse miles seculi qui factus est miles Christi: nec beneficium pertinet ad eum qui non debet gerere officium.(w) But yet he was accounted only civiliter mortuus; he did not impede the descent to others, but the next heir was entitled to his or his ancestor’s estate.16
These are the several deficiencies of hereditary blood, recognised by the law of England; which, so often as they happen, occasion lands to escheat to the original proprietary or lord.
[(a) ] 12.
[(b) ] Co. Litt. 18.
[(c) ] Ibid.
[(d) ] Lord Raym. 728.
[(e) ] 1 Roll. Abr. 626.
[(f) ] Salk. 241. Lord Raym. 728.
[1 ] See further, on this point, Com. Dig. Descent, A. B. Bac. Abr. Descent, E. With respect to what shall be assets by descent, it is laid down as a general rule that, though the ancestor devise the estate to his heir, yet, if he take the same estate in quantity and quality that the law would have given him, the devise is a nullity, and the heir is seised by descent, and the estate assets in his hands. As when a man seised of land in fee on part of his mother devises it to his heir on the part of his mother in fee, the heir is in by descent. 1 Salk. 242. S. C. Prec. in Chan. 222. 2 Ld. Raym. 829. Com. Rep. 123, S. P. 2 Leon. 11. Dyer, 124, a. Plowd. 545, and note (f) in the English translation. So where a man seised in fee on the part of his mother devised to the executors for sixteen years for payment of his debts, remainder to his heir on the part of his mother, it was held that the heir took by descent; for it is no more than if the devisor had made a lease for sixteen years and afterwards devised his reversion to the heir. 3 Lev. 127. So where one devises to another for life, remainder to his heir in fee, the heir shall take the reversion by descent; and yet the law would have thrown the estate immediately on the heir by descent if there had been no devise. 1 Roll. Abr. 626, (I) pl. 2. Sty. 148, 149. So where one devises land to his heir, charged with a rent issuing out of it, or with the payment of a sum of money, still the heir takes by descent. Com. Rep. 72. 1 Salk. 241. 1 Lutw. 793, 797. 1 Ld. Raym. 728. 2 Atk. 293. So where, on riens per descent pleaded, it appeared that the ancestor devised the lands to the heir for payment of debts, it was adjudged that the heir was in by descent, for the tenure is not altered. 2 Str. 1270. 1 Black. Rep. 22. For other authorities to the same point, see Co. Litt. 12, b., note 63.
But where a different estate is devised than would descend to the heir, the disposition by the will shall prevail; as where the estate is devised to the heir in tail. Plowd. 545. So where a man having issue two daughters, who are his heirs, devises lands to them and their heirs, they take under the will; for by law they would take as coparceners, but by the will they have it as joint-tenants. Cro. Eliz. 431. Bacon’s Maxims, Reg. n. 21. 1 Salk. 242. Comyns, 123. 2 Ld. Raym. 829. But, since the statute 3 W. & M. c. 14, such a devise is fraudulent against creditors by specialty, and therefore an action may be brought against the devisee as heir and devisee. 2 Saund. 8, (d.)—Chitty.
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.—Hoveden.
[(g) ] 1 Roll. Abr. 627.
[(h) ] 1 Rep. 104. 2 Lev. 60. Raym. 334.
[(i) ] Shelley’s case, 1 Rep. 98.
[(k) ] Co. Litt. 22.
[2 ] This is the rule or maxim known among lawyers as “the rule in Shelley’s case.” 1 Co. 88. See Harg. & Butl. Co. Litt. 376, b., n. 1. Fearne, Cont. Rem. 28. Preston on Estates 1 vol. 263 to 419, per tot.—Chitty.
[(l) ] Craig. l. 1, t. 10, 18.
[(m) ] Dalrymple of Feuds, 210.
[(n) ]Gr. Coustum. Gloss. c. 25, p. 40.
[(o) ] Spelm Gloss. 145.
[(p) ] See book i. ch. 3.
[(q) ] Stat. 29 Car. II. c. 3, 10.
[(r) ] Ibid. 12.
[(s) ] 1 P. Wms. 777.
[(t) ] Stat. 3 & 4 W. and M. c. 14.
[(u) ] Finch, Law, 119.
[(v) ] Finch, Rep. 86.
[3 ] Copyhold estates are not liable as assets, either in law or equity, to the testator’s debts, further than he subjected them thereto. Aldrich vs. Cooper, 8 Ves. 393.—Chitty.
[(w) ] See page 72.
[4 ] As to the doubtful propriety of considering escheats under the head of title by purchase see ante, note (3) to chapter 14. 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 acquisition of an estate by purchase; for the inheritable quality of the lands escheated, as we are taught in the present page, 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 encumbrances of the last tenant. Earl of Bedford’s case, 7 Rep. 6. Smalman vs. Agborough, 1 Roll. Rep. 402.—Chitty.
[(x) ]Eschet, or êchet, formed from the verb eschoir, or êcluar to happen.
[(y) ] 1 Feud. 86. Co. Litt. 13.
[(z) ] Co. Litt. 13.
[(a) ] Bro. Abr. tit. escheat, 26.
[(b) ] Bro. Abr. tit. acceptance, 25. Co. Litt. 268.
[(c) ] 1 Inst. 215.
[(d) ] Co. Litt. 13, 92.
[(e) ]L. 6, c. 1.
[5 ] The important case of Burgess vs. Wheate, 1 Eden, 177-261, was to the following purport. A., being seised in fee ex parte paternâ, conveyed to trustees, in trust for herself, her heirs and assigns, to the intent that she might dispose thereof as she should by her will or other writing appoint. A. died without making any appointment, and without heirs ex parte paternâ. It was held by lord-keeper Henley, (afterwards Northington,) as well as by Sir Thomas Clarke, M. R., and by lord Mansfield, C. J., (whose assistance the lord-keeper had requested,) that the heir ex parte maternâ was clearly not entitled. But lord Mansfield thought the crown was entitled by escheat; or, if that was not so under the circumstances, then that, as between the maternal heir and the trustee, the former was entitled. This opinion, however, was contrary to that of the lord-keeper and of the master of the rolls; and it was decided that, there being a terre tenant, (Barclay vs. Russel, 3 Ves. 430,) the crown, claiming by escheat, had not a title by subpœna to compel a conveyance from the trustee, the trust being absolutely determined. Upon the right of the trustee it was not necessary for the determination of the question before the court to pronounce any positive judgment. It should seem, however, that he would have received no assistance from equity in support of his claims. Williams vs. lord Lonsdale, 3 Ves. 757. And clearly, a trustee not having the legal estate in lands purchased with the trust-moneys cannot hold against the crown claiming by escheat. Walker vs. Denne, 2 Ves. Jr. 170.
In the case last cited, the court is reported to have said “that copyhold cannot escheat to the crown;” but this dictum, in all probability, however applicable to the instance then under consideration, was not intended to be understood as a general proposition. Copyholds holden of a manor whereof a subject is lord will escheat to him certainly, and not to the crown; but the 12th section of the statute of 39 & 40 Geo. III. c. 88, after reciting that “divers lands, tenements, and hereditaments, as well freehold as copyhold, have escheated and may escheat” to the crown, enacts that “it shall be lawful to direct by warrant under the sign-manual the execution of any trusts to which the lands so escheated were liable at the time of the escheat, or to which they would have been liable in the hands of a subject, and to make such grants of the lands so escheated as to the sovereign shall seem meet.”—Chitty.
By the statute 4 & 5 W. IV. c. 23, repealed, but re-enacted by 13 & 14 Vict. c. 60, this rule of the common law is entirely altered; it being enacted (s. 15) that where any person seised of any land upon any trust dies without an heir, the court of chancery may make an order vesting such land in such person as the court shall direct, and the order shall have the effect of a conveyance.—Stewart.
[(f) ] Co. Litt. 7, 8.
[(g) ]Qui contra formam humani generis converso more protreantur, ut si mulier monstrosum vel prodigiosum enixa sit, inter liberos non computentur. Partus tamen, cui natura aliquantulum addiderit vel diminuerit, ut si sex vel tantum quatuor digitos habuerit, bene debet inter liberos connumerari; et, si membra sint inutilia aut tortuosa, non tamen est partus monstrosus. Bract. l. 1, c. 6, and l. 5, t. 5, c. 30.
[(h) ]Ff. 1, 5, 14.
[(i) ]Ff. 50, 16, 135. Paul. 4, sent. 9, 73.
[(k) ] Co. Litt. 29.
[(l) ] See book i. ch. 16.
[(m) ] Co. Litt. 8.
[(n) ] Finch, Law, 117.
[(o) ] Nov. 89, c. 8.
[(p) ] Ibid. c. 12.
[(q) ] Cod. 6, 57, 5.
[6 ] The law of Scotland allows a person born out of wedlock to be legitimate if his parents subsequently intermarry, without any marriage of either with a third person intervening. 7 Cl. & Fin. 817, 842. But although the status as to legitimacy of a person is for most purposes determined by the law of the domicil of his parents, yet for the purpose of inheriting land in England a bastard so legitimated, by the law of Scotland is not allowed by the English law to be legitimate. Doe d. Birtwhistle vs. Vardell, 5 B. & C. 238. 2 Scott, N. R. 821. 9 Bligh, 32. 7 Cl. & Fin. 859. Legitimacy according to the law of the domicil, as well as according to the law of the place where the land lies, is necessary to entitle an heir; for a child born out of wedlock of parents domiciled in England, who afterwards married there, was not allowed to inherit lands in Scotland. 6 Bligh, 468. See 2 Ves. & B. 127.
As to the status of bastards during the Middle Ages and on the Continent, see Butl. Co. Litt. 243, b.—Sweet.
[(r) ]L. 7, c. 1.
[7 ] There must not only be a dying seised, but a descent to his issue. Co. Litt. 244, [Editor: illegible character] And if the bastard dieth seised, his wife enceint with a son, the mulier enter, the son is born, the issue of the bastard is barred. Ibid. Broke, tit. Descent, 41. Plowd. 57, a., 372, a.—Chitty.
[(s) ] Litt. 399. Co. Litt. 244.
[8 ] The rule holds in this one case only of bastard eignè and mulier puisnè; for where a bastard is such by reason of his mother having a husband living at the time of her marriage with his father, he cannot take advantage of the rule, the marriage under which he claims being void without any divorce. Pride vs. Earls of Bath and Montague, 1 Salk. 120.—Chitty.
[(t) ] Litt. 400.
[9 ] It would seem that this privilege of the bastard eignè no longer exists, in consequence of statute 3 & 4 W. IV. c. 27 having enacted (s. 39) that no descent cast shall defeat any right of entry.—Kerr.
[(u) ] Bract. l. 2, c. 7. Co. Litt. 244.
[(v) ] See book i. ch. 10.
[(w) ] Co. Litt. 8.
[10 ] There is one exception to the general law against aliens, founded on the treaty of 1794 between this country and the United States of America, by the 9th article of which treaty it was stipulated that British subjects who then held lands in the United States, or American subjects who then held lands in Great Britain, “might grant, sell, or devise the same to those whom they should please, in like manner as if they were natives, and that neither they, nor their heirs nor assigns, should, so far as might respect the said lands and the legal remedies thereto, be regarded as aliens;” and this stipulation was confirmed by the statute 39 Geo. III. c. 97, s. 24. See 1 Russ. & M. 663.—Sweet.
[(x) ] Co. Litt. 2.
[11 ] If the purchase be made with the king’s license, it seems that he may hold. See 14 Hen. IV. 20. Harg. Co. Litt. 2, b., n. 2.—Chitty.
[(y) ] Co. Litt. 2. 1 Lev. 59.
[(z) ] Co. Litt. 129.
[12 ] Letters of denization are now rarely, if ever, obtained; the statute 7 & 8 Vict. c. 66 having provided a simple and inexpensive mode by which aliens may obtain all the privileges of natural-born subjects except those of sitting in the legislature or being sworn of the privy council.—Kerr.
[(a) ] 1 Inst. 8.
[(b) ] See pages 223 and 239.
[(c) ] 1 Ventr. 413. 1 Lev. 59. 1 Sid. 193.
[(d) ] See page 226.
[(e) ] See pages 208 and 214.
[(f) ]LL. Ælfred. c. 4. LL. Canut. c. 54.
[(g) ] 2 Inst. 64. Salk. 85.
[(h) ] 3 Inst. 15. Stat. 25 Edw. III. c. 2, 12.
[(i) ] 2 Inst. 36.
[(j) ] Somner. 53. Wright, Ten. 118.
[13 ] “Or of any other treasons whatsoever they be.” s. 13: the wife therefore is barred by the attainder of her husband for petit as well as high treason, but not for any murder or other felony. See Co. Litt. 37, a. Staundf. 195, b.—Chitty.
[(k) ] Co. Litt. 13.
[(l) ] 3 Inst. 47.
[(m) ] Van Leeuwen. in 2 Feud. 31.
[(n) ] Co. Litt. 391.
[(o) ] Ibid. 392.
[(p) ] Ibid. 8.
[(q) ] Dyer, 48.
[(r) ] Co. Litt. 8.
[(s) ] 1 Hal. P. C. 357.
[14 ] And now corruption of blood is almost entirely abolished; for by the statute 54 Geo. III. c. 145, corruption of blood was abolished in all cases except the crimes of treason or murder; and by the 3 & 4 W. IV. c. 106, s. 10, it is enacted that when any person from whom the descent of any land is to be traced shall have had any relation who, having been attainted, shall have died before such descent shall have taken place, then such attainder shall not prevent any person from inheriting such land who would have been capable of inheriting the same by tracing his descent through such relation if he had not been attainted, unless such lands shall have escheated in consequence of such attainder before the 1st of January, 1834.—Stewart.
[(t) ] Co. Litt. 13.
[15 ] This act was repealed by the 18 Geo. III. c. 6, so far as to permit such Roman catholics to inherit real property as would take the oath of allegiance prescribed in the statute,—which is the same oath that is directed to be taken by the 31 Geo. III. c. 32, which has repealed all the other odious restrictions upon those who profess the Roman Catholic religion.—Christian.
[(u) ] Co. Litt. 132.
[(w) ] 2 Feud. 21.
[16 ] But these disabilities of papists were removed by the statute 18 Geo. III. c. 60; 31 Geo. III. c. 32; and 43 Geo. III. c. 80, on condition only of their taking the oath of allegiance and making a declaration of their profession of faith; and now, by the Roman Catholic Relief Bill, (10 Geo. IV. c. 7, s. 23,) it is enacted that no oath shall be required to be taken by Roman Catholic subjects for enabling them to hold or enjoy any real or personal property, other than such as by law may be required to be taken by other subjects.—Kerr.