thing but the mere right of property. And even this right of property will fail, or at leaft it will be without a remedy, unless I pursue it within the space of fixty years. So alfo if the father be tenant in tail, and alienes the estate-tail to a stranger in fee, the alienee thereby gains the right of possession, and the fon hath only the mere right or right of property. And hence it will follow, that one man may have the poffeffion, another the right of possession, and a third the right of property. For if tenant in tail enfeoffs A in fee-fimple, and dies, and B diffeifes A; now B will have the possession, A the right of poffeffion, and the iffue in tail the right of property: A may recover the poffeffion against B; and afterwards the iffue in tail may evict A, and unite in himself the poffeffion, the right of poffeffion, and also the right of property. In which union confifts, 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 poffeffion be joined with the right of property; which right is then denominated a double right, jus duplicatum, or droit droit. And when to this double right the actual poffeffion is also united, when there is, according to the expreffion of Fleta %, juris et feifinae conjunctio, then, and then only, is the title completely legal. e Mirr. /. 2. c. 27. f Co. Litt, 266. Bra&t. 1. 5, tr. 3. 6, 5. 8 4.3. 6. 15. §. 5. CHAPTER THE FOURTEENTH. Ог TITLE BY DESCENT. TH HE several gradations and stages, requifite to form a complete title to lands, tenements, and hereditaments, having been briefly stated in the preceding chapter, we are next to confider the feveral manners, in which this complete title (and therein principally the right of propriety) may be reciprocally loft 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 lofs are terms of relation, and of a reciprocal nature) by whatever method one man gains an estate, by that fame method or it's correlative fome other man has loft it. As where the heir acquires by descent, the ancestor has first loft or abandoned the estate by his death: where the lord gains land by escheat, the estate of the tenant is first of all loft by the natural or legal extinction of all his hereditary blood: where a man gains an intereft by occupancy, the former owner has previously relinquished his right of poffeffion : 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 fupinenefs or neglect of himself and his ancestors for ages: and fo, in cafe of forfeiture, the tenant by his own misbehaviour or neglect has renounced his intereft in the estate; whereupon it devolves to that person who by law may take advantage of fuch default: änd, in alienation by common affurances, the two confiderations of lofs and acquifition are so interwoven, interwoven, and fo conftantly 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 lofing on the other, a title to eftates 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 agreement 3. DESCENT, or hereditary fucceffion, 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 cafts 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 defcents, 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 courfe of descents is broken and altered, perpetually refer to this fettled law of inheritance, as a datum or firft principle univerfally 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-fimple. One may well perceive, that this is an estate confined in it's defcent to fuch 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 fon alone, or all the fons together, fhall be his heir; this is a point, that we must result back to the standing law of descents in fee-fimple to be informed of. a Co. Litt, 18, In order therefore to treat a matter of this universal confequence the more clearly, I fhall endeavour to lay aside fuch matters as will only tend to breed embaraffment and confufion in our inquiries, and fhall confine myself entirely to this one object. I fhall therefore decline confidering at prefent who are, and who are not, capable of being heirs; referving that for the chapter of escheats. I fhall alfo país over the frequent divifion of defcents, in those by custom, ftatute, and common law: for descents by particular custom, as to all the fons in gavelkind, and to the youngeft in borough-englifh, 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 prefent: and descents by ftatute, or fees-tail per formam doni, in pursuance of the ftatute of Westminster the second, have also been already copiously handled; and it has been seen that the descent in tail is reftrained 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. с b AND, as this depends not a little on the nature of kindred, and the several degrees of confanguinity, it will be previously necessary to state, as briefly as poffible, the true notion of this kindred or alliance in blood d, CONSANGUINITY, or kindred, is defined by the writers on these subjects to be "vinculum perfonarum ab eodem ftipite "defcendentium;" the connexion or relation of perfons defcended 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. See pag. 112, &c. d For a fuller explanation of the doctrine of confanguinity, and the confe quences refulting from a right apprehenLion of it's nature, see an effay on coltateral confanguinity. (Law tracts, Oxon, 1762. So, or 1771. 4o. |