CHAPTER XV. 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 ides 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, scised 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 *devise than he would have done without it, he shall *242] 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. If a remainder be limited to the heirs of (a) & 12. (*) Co. Litt. 18. (d) Lord Raym. 728. 1 Roll. Abr. 626. () 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 corarceners, 7 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 f 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.() 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." 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:(1) 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 *the first [*243 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;(0) 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 (9) 1 Roll. Abr. 627. (*) 1 Rep. 104. 2 Lev. 60. Raym. 334. (Shelley's case, 1 Rep. 98. (*) Co. Litt. 22. (1) Craig. 1. 1, t. 10, 18. (m) Dalrymple of Feuds, 210. (P) See book i. ch. 3. but by the will they have it as joint-tenants. Cro. Eliz. 431. Bacon's Maxims, Reg. n. 21. 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. 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. maternal, line. 2. An estate taken by purchase will not make the heir answerab for the acts of the ancestor, as an estate by descent will. For if the anceste by any deed, obligation, covenant, or the like, bindeth himself and his heirs, an dieth; this deed, obligation, or covenant, shall be binding upon the heir so fa forth only as he (or any other in trust for him)(q) had any estate of inheritan vested in him by descent *from, (or any estate pur auter vie coming t *244] him by special occupancy, as heir to,)(r) that ancestor, sufficient to a swer 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 her to perform this covenant, when he has an estate sufficient for this purpose, er 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. 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 first 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 or agreement,) than under the present, by purchase. But it must *245] 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 (4) Stat. 29 Car. II. c. 3, 2 10. (*) Ibid. 12. (1 P. Wmus. 777. (t) Stat. 3 & 4 W. and M. c. 14. () Finch, Law, 119. () Finch, Rep. 86. (") See page 72. (*) Eschet, or êchet, formed from the verb eschoir, or échar to happen. (v) 1 Feud. 86. Co. Litt. 13. (*) Co. Litt. 13. (a) Bro. Abr. tit. escheat, 26. (0) Bro. Abr. tit. acceptance, 25. Co. Litt. 268. 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. As to the doubtful propriety of considering escheats under the head of title by pur chase 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 HITTY. 3 J 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 *comprehended under the first denomination only; for he that is attainted suffers an extinction of his blood, as well as he that dies [*246 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. First, 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. 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.3 (c) 1 Inst. 215. (d) Co. Litt. 13, 92. (*) L. 6, c. 1. The important case of Burgess vs. Wheate, 1 Eden, 177-261, was to the following pur port. A., being seised in fee ex parte paterna, 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 paterna. 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 materna 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 subpana to compel a con. veyance 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. Copy 4. A monster, which hath not the shape of mankind, but in any part e dently 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 *247] although it hath deformity in any part of its body, yet if it *hat 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 minate 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 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.(1) 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:(0) 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 *248] inheritance ;(p) and a bastard was likewise *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.(g) But our law, in favour of marriage, is much less indulgent to bastards. (f) Co. Litt. 7, 8. Qui contra formam humani generis converso more procreantur, 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. (*) Ff. 1, 5, 14. (1)Ff. 50, 16, 135. Paul. 4, sent. 9, § 73. (See book i. ch. 16. holds 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 sove reign 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. 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 per son 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 Scot land 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. Bligh, 468. See 2 Ves. & B. 127. As to the status of bastards during the Middle Ages and on the Continent, ice Butl fo Litt. 243, b.-SWEET. |