For corruption of blood. 1 Inst. 13 a. Southwell v. 3. Where he dies without any relations of the whole blood. For in all those cases there is no one capable of inheriting from him. 11. Escheats propter delictum tenentis arise in consequence of a person's being attainted of treason or felony; by which he becomes incapable of inheriting from any of his relations, or of transmitting any thing by heirship. So that if any one dies seised in fee of lands, whose heir at law is attainted, the lands escheat: and where a person attainted dies seised in fee of lands, as he cannot have an heir, they will also escheat, unless forfeited; where that happens, they are interrupted in their passage by the Crown, in the case of treason for ever, in that of felony, for a year and a day; after which they escheat to the lord of whom they are held. 12. There is one case in which lands are not liable to escheat; for if an estate held of J. S. be given to a dean and chapter, or to a mayor and commonalty, and to their successors, and such corporation is dissolved, the land shall not escheat to the lord, but shall revert to the donor. Lord Coke Lord Coke says, the reason of this diversity is, that in the case of a body politic, the fee simple is vested in them in their political capacity; therefore, the law annexes a condition to every such gift, that if such body politic be dissolved, the donor shall re-enter, for that the cause of the gift faileth. But no such condition is annexed to an estate in fee simple, vested in any man in his natural capacity; except in cases where the donor reserves a tenure, and then the law implies a condition by way of escheat. 13. It is however laid down in 37 Eliz. that where Ab. 186. Poph. land, rent, &c. is granted to a corporation and their 91. Godb. 211. successors, if the corporation grants them over, and is dissolved, they shall not revert to the grantor. No escheat where there is a tenant. 14. As the lord's right to an escheat arises solely from the want of a tenant to do the services; it fol lows, that whenever there is a tenant, the lord cannot claim the lands by escheat. Thus Littleton says, § 390, Gilb. Ten. 25. if there be lord and tenant, and the tenant be disseised, and the disseisor alien to another in fee, and the alienee die without issue, and the lord enters, as in his escheat; the disseisee may enter upon the lord, because the lord does come to the land but by escheat. Mr. Butler has observed on this passage, that when 1 Inst. 240 a. n. the lord comes to the land by escheat, the law only casts the freehold on him for want of a tenant. The disseisee, notwithstanding the disseisin, continues the rightful tenant; and as by his entry he fills the possession, the lord's title, which was good only while a tenant was wanting, must necessarily be at an end. 15. Fitzherbert says, if the tenant be disseised, and N. B. 144. afterwards die without heir, it seemeth the lord shall have a writ of escheat, because the tenant died in the homage. Lord Coke observes, that if the disseisor dies 1 Inst. 268 a. seised, and the disseisee dies without heir, and afterwards the lord accepts rent from the heir or feoffee of the disseisor, this shall bar him of his escheat; because they are in by title. For if the disseisor had made a feoffment in fee, or died seised, and after the disseisee died without heir, there would be no escheat; because the lord had a tenant in by title. 16. It is, however, laid down by Fitzherbert, that N. B. 144. where a man had a title to a writ of escheat, if he accepted homage of the tenant, he should not have the writ against him, because he had accepted him as his tenant. So if he accepted fealty of him. But receipt of rent would not bar a writ of escheat. prevents an 17. It follows from the principles stated in § 14, that Any alienation any actual alienation by the tenant will bar the lord of escheat. his escheat. But a mere contract for the sale of lands will not bar the lord; as will be shewn hereafter. 8 44 a. 18. If an infant makes a feoffment in person, and 4 Rep. 124 a. dies without heir, the land shall not escheat; otherwise, Tit. 32. c. 4. if it was made by letter of attorney. For the lord by 1 Inst. 236. n. escheat being only a privy in law, cannot take advantage of infancy; because he is a stranger to the infant. It is the same of an idiot or lunatic. 19. A devise, though it only takes effect at the moment of the testator's death, will prevent an escheat. And, in a note of Lord Nottingham's to the first Institute, it is said, that where a woman, seised of lands in London, devised them to be sold by her executors, and died without an heir, the devise prevented the escheat, which the King pretended to have; and the executors 1 Roll. R. 214. might enter and sell; therefore more than a bare authority passed. Yet in 1651, on evidence at the bar, this case being stated, Lord C. J. Rolle doubted of the opinion; because, he said, it was only a descent according to the words of Littleton and it appeared to him, that when lands were devised to be sold by executors, there no interest passed. 3 Bulst 43. Godb. 411. Reave v. Att.- 20. A man devised his estate to his wife for life; and that, after her death, it should be sold by A., and the money to be divided amongst the plaintiffs. The testator died without heir; before any sale A. died also. It not appearing that the land was held of any mesne lord, the plaintiffs brought their bill against the Attorney-General, praying to have the will established, and to hold and enjoy against the Crown, or to have the lands sold pursuant to the will. Lord Hardwicke said, if he could relieve the plaintiffs, he would. That he thought, at first, this was a bill brought to prove a will, by which the lands themselves were devised to somebody: if so, he would have thought such a bill proper; would have declared the will to be well proved; and decreed the devisee to sell, without any occasion of making a decree against the Crown. But here was no devisee of the land, only a power to sell. If A. had lived, as he had only a power, and no interest in himself, none could arise from him, but from the testator; and he, as well as the testator, being dead, there was none to make a decree against. If any thing of the sort that was prayed for could be done, it must be in the Court of Exchequer, which was a court of revenue, and the proceedings in a petition of right; though called a petition, as much a legal proceeding as by original writ. Suppose this land had been seised and put in charge, -could he make any decree relating to it?-None. But the Court of Exchequer could. He could neither decree the Crown to sell, nor the plaintiff to hold and enjoy against the Crown. The bill was dismissed. escheat. 21. All lands and tenements held in socage, whether What things of the King or of a subject, are liable to escheat. But it follows, from the nature of an escheat, that it must be of the entire fee; therefore, an estate tail does not Fitz. N. B. 144. escheat, but goes to the person in reversion, unless the tenant in tail has also the reversion in fee in him; for in that case the whole estate will escheat. 22. Lands held in gavelkind do not escheat upon Rob. Gav. 226 conviction and execution for felony: but if a tenant in gavelkind, being indicted for felony, absent himself, and is outlawed after proclamation made for him in the county, his heir shall reap no benefit by the custom, but the lands shall escheat to the lord. 2 Ves. jun. 187. 23. Copyholds are subject to escheat: but before the Co. Cop. § 28. lord of the manor can enter on the lands, the homage must present the death of the tenant without heirs; and proclamations must be made, to give notice that if any person can prove himself heir to the last tenant, he shall be admitted. Hard. 496. 24. No species of real property is, however, subject to escheat, but what lies in tenure; for escheat is a consequence and fruit of tenure. Thus, if a person seised in fee of a rent-charge, right of common, free 3 Inst. 21. warren, or any kind of inheritance that is not holden, is attainted of felony, the King shall have the profits of them during the life of such person: but after his decease, as they cannot descend to his heirs, on account of the corruption of his blood, they become extinct. A trust estate does not escheat. Tit. 12. c. 1. Burgess v. Wheate, 1 Eden 177. For in escheats on account of petit treason or felony, a tenure is requisite, as well in the case of the King as in that of a subject. 25. A use was not liable to escheat, because it did not lie in tenure; and as trusts are now what uses were before the statute 27 Hen. 8., it was determined in the following case, after great consideration, that a trust estate is not liable to escheat: but that where a cestui que trust dies without heirs, the trustee shall retain the land for his own benefit. 26. Elizabeth Gunning, being seised of certain lands 1 Black. R. 123. in fee simple, ex parte paterná, married Nicholas Harding but previous thereto, in 1695, a settlement was made of her estate, to the use of Nicholas Harding for life, remainder to Elizabeth Gunning for life, remainder to trustees to preserve contingent remainders, remainder to their first and other sons in tail male, remainder to the right heirs of Elizabeth Gunning. There being no issue male of the marriage, an indenture was made in 1718, between Harding and his wife of the one part, and Sir Francis Page and R. Simmons of the other part, reciting the settlement of 1695, and covenanting to levy a fine, to assure the premises to the use of the daughters of the marriage, as tenants in common; and in default of such issue, to Sir Francis Page and Simmons, and their heirs, in trust for the said Elizabeth Harding, her heirs and assigns; to the intent that she might, at any time, during her life, without her husband's concurrence, dispose of the reversion to such uses as she should, by her will, or other writing; appoint; and a fine was accordingly levied. There was no daughter of the marriage. The wife survived her husband: but died without making any appointment, and without heirs on the part of her father. Burgess, the plaintiff, was her heir on the part of the mother. After the death of Elizabeth Harding, Sir Francis Page, who survived Simmons, got into possession; and, |