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thing but the mere right of property. And even this right of property will fail, or at least it will be without a remedy, unless I pursue it within the space of fixty years. So also if the father be tenant in tail, and alienes the estate-tail to a stranger in fee, the alienee thereby gains the right of polefron, and the son hath only the mere right or right of property. And hence it will follow, that one man may have the poblession, another the right of poffeffion, and a third the right of property. For if tenant in tail enfeoffs A in fee-fimple, and dies, and B disseises A ; now B will have the pole fion, A the right of perleffion, and the issue in tail the right of property: A may recover the posseffion against B; and afterwards the issue in tail may evict A, and unite in himself the possession, the right of poffeffion, and also the right of property. In which union consists,
IV. A COMPLETE title to lands, tenements, and hereditaments. For it is an antient maxim of the law, that no title is completely good, unless the right of poffesfion be joined with the right of property; which right is then denominated a double right, jus duplicatum, or droit droit f. And when to this double right the actual poffeffion is also united, when there is, according to the expression of Fleta , juris et seisinae conjunétio, then, and then only, is the title completely legal.
e Mirr. I. 2. 6. 27.
& l. 3. 5. 15. . 5.
CHAPTER THE FOURTEENTH.
OF TITLE BY DESCENT.
T HE several gradations and stages, requisite to form a
1 complete title to lands, tenements, and hereditaments, having been briefly stated in the preceding chapter, we are next to consider the several manners, in which this complete title (and therein principally the right of propriety) may be reciprocally lost and acquired : whereby the dominion of things real is either continued, or transferred from one man to another. And here we must first of all observe, that (as gain and loss are terms of relation, and of a reci. procal nature) by whatever method one man gains an estate, by that same method or it's correlative some other man has lost it. As where the heir acquires by descent, the ancestor has first lost or abandoned the estate by his death : where the lord gains land by escheat, the estate of the tenant is first of all lost by the natural or legal extinction of all his hereditary blood: where a man gains an interest by occupancy, the former owner has previously relinquished his right of poffefsion : where one man claims by prescription or immemorial usage, another man has either parted with his right by an antient and now forgotten grant, or has forfeited it by the supineness or neglect of himself and his ancestors for ages : and fo, in case of forfeiture, the tenant by his own misbehaviour or neglect has renounced his interest in the estate ; whereupon it devolves to that person who by law may take advantage of such default : and, in alienation by common assurances, the two considerations of loss and acquisition are so
interwoven, interwoven, and so constantly contemplated together, that we never hear of a conveyance, without at once receiving the ideas as well of the grantor as the grantee.
· The methods therefore of acquiring on the one hand, and of losing on the other, à title to estates in things real, are reduced by our law to two: descent, where the title is vested in a man by the single operation of law; and purchase, where the title is vested in him by his own act or agreementa.
Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as his heir at law. An heir therefore is. he upon whom the law casts the estate immediately on the death of the ancestor: and an estate, so descending to the heir, is in law called the inheritance,
The doctrine of descents, or law of inheritances in feefimple, is a point of the highest importance; and is indeed the principal object of the laws of real property in England. All the rules relating to purchases, whereby the legal course of descents is broken and altered, perpetually refer to this settled law of inheritance, as a datum or first principle universally known, and upon which their subsequent limitations are to work. Thus a gift in tail, or to a man and the heirs of his body, is a limitation that cannot be perfectly understood without a previous knowlege of the law of descents in fee-simple. One may well perceive, that this is an estate confined in it's descent to such heirs only of the donee, as have sprung or shall spring from his body; but who those heirs are, whether all his children both male and female, or the male only, and (among the males) whether the eldest, youngest, or other son alone, or all the fons together, shall be his heir ; this is a point, that we must result back to the standing law of descents in fee-simple to be informed of.
a Co. Litt, 18.
In order therefore to treat a matter of this universal consequence the more clearly, I shall endeavour to lay aside such matters as will only tend to breed embarassment and confufion in our inquiries, and thall confine myself entirely to this one object. I shall therefore decline considering at prefent who are, and who are not, capable of being heirs ; reserving that for the chapter of escheats, ' I shall also pass over the frequent division of descents, in those by custom, statute, and common law : for descents by particular custom, as to all the sons in gavelkind, and to the youngest in borough-englis, have already been often hinted at, and may also be incidentally touched upon again; but will not make a separate consideration by themselves, in a system so general as the present: and descents by statute, or fees-tail per formam doni, in pursuance of the statute of Westminster the second, have also been already copiously handled ; and it has been seen that the descent in tail is restrained and regulated according to the words of the original donation, and does not entirely pursue the common law doctrine of inheritance; which, and which only, it will now be our business to explain.
And, as this depends not a little on the nature of kindred, and the several degrees of consanguinity, it will be previously necessary to state, as briefly as possible, the true notion of this kindred or alliance in blood, .
CONSANGUINITY, or kindred, is defined by the writers on these subjects to be " vinculum perfonarum ab eodem flipite “ descendentium ;” the connexion or relation of persons descended from the same stock or common ancestor. This confanguity is either lineal, or collateral.
See Vol. I. pag. 74, 75. Vol. II. pag. 83. 85.
c See pag. 112, &C.
d For a fiiller explanation of the doctrine of consanguinity, and the conse
quences resulting from a right apprehenSon of it's nature, fee an essay or coltateral consanguinity. (Law tracts, Oxone 1762. 8", or 1771. 4o.