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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.(6) 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.
II. OF TITLE BY OCCUPANCY.
OCCUPANCY is the taking possession of those things which before belonged to nobody This, as we have seen,(a) is the true ground and foundation of all property, -, of holding those things in severalty which by the law of nature, unqualified by that of society, were common to all mankind. But when once it was agreed that every thing capable of ownership should have an owner, natural reason suggested, that he who could first declare his intention of appropriating any thing to his own use, and, in consequence of such intention, actually took it into possession, should thereby gain the absolute property of it; according to that rule of the law of nations, recognised by the laws of Rome,(b) quod nullius est, id ratione naturali occupanti conceditur.
This right of occupancy, so far as it concerns real property, (for of personal chattels I am not in this place to speak,) hath been confined by the laws of England within a very narrow compass; and was extended only to a single instance; namely, where a man was tenant pur auter vie, or had an estate granted to himself only (without mentioning his heirs) for the life of another man, and died during the life of cestuy que vie, or him by whose life it was holden; in this case he that could first enter on the land might lawfully retain the possession, so long as cestuy que vie lived, by right of occupancy.(c) *259]
*This seems to have been recurring to first principles, and calling in
the law of nature to ascertain the property of the land, when left without a legal owner. For it did not revert to the grantor, though it formerly(d) () Co. Litt. 132.
9) Co. Litt. 41.
(4) Bract. l. 2, c. 9, l. 4, t. 3, c. 9, 4. Flet. l. 3, c. 12, 26, (a) See pages 3 and 8.
1. 5, c. 5, & 15. (6) Ff. 41, 1, 3.
(") 2 Feud. 21.
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.
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, (io 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 sub jects.-KERR.
was supposed so to do; for he had parted with all his interest, so long as cestuy que vie lived: it did not escheat to the lord of the fee, for all estates must be of the absolute entire fee, and not of any particular estate carved out of it; much less of so minute a remnant as this: it did not belong to the grantee; for he was dead; it did not descend to his heirs; for there were no words of inheritance in the grant: nor could it vest in his executors; for no executors could succeed to a freehold. Belonging therefore to nobody, like the hæreditas jacens of the Romans, the law left it open to be seised and appropriated by the first person that could enter upon it, during the life of cestuy que vie, under the name of an occupant. But there was no right of occupancy allowed, where the king had the reversion of the lands: for the reversioner hath an equal right with any other man to enter upon the vacant possession, and where the king's title and a subject's concur, the king's shall be always preferred : against the king there. fore there could be no prior occupant, because nullum tempus occurrit regi.(e) And, even in the case of a subject, had the estate pur auter vie been granted to a man and his heirs during the life of cestuy que vie, there the heir might, and still may, enter and hold possession, and is called in law a special occupant: as having a special exclusive right by the terms of the original grant, to enter upon and occupy this hæreditas jacens, during the residue of the estate granted: though some have thought him so called with no very great propriety,(f) and that such estate is rather a descendible freehold. But the title of common occupancy is now reduced almost to nothing by two statutes : the one 29 Car. II. c. 3, which enacts (according to the ancient rule of law) (9) that where there is no special occupant, in whom the estate may vest, the tenant pur auter vie may devise it *by will, or it shall go to the executors or administrators, and be assets in their hands for payment of debts: the other, that of 14 Geo. II. c. 10,
[*260 © Co. Litt. 41.
() Bract. ibid. Flet. ibid.
1 The statute seems inaccurately stated in this sentence. The 12th section enacts “ that estates pur auter vie shall be devisable by will in writing, signed by the devisor or by his agent in presence of three witnesses; and if no such devise be made, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of special occupancy, as assets by descent; and in case there be no special occupant, it shall go to the executor or administrator of the party who had the estate thereof by virtue of the grant, and shall be assets in his hands." Mr. Christian observes, “The meaning of the statute seems to be this, that every estate pur auter vie, whether there is a special occupant or not, may be devised like other estates in land, by a will attested by three witnesses. If not devised, and there is a special occupant, then it is assets by descent in the hands of the heir; if there is no special occupant, then it passes, like personal property, to executors and administrators, and shall be assets in their hands." Lord Kenyon, in 6 Term Rep. 291, observed, "These questions on estates pur auter vie do not frequently arise. Such estates certainly are not estates of inheritance: they have been sometimes called, though improperly, descendible freeholds : strictly speaking, they are not descendible freeholds, because the heir-at-law does not take by descent. If an action at common law had been brought against the heir on the bond of his ancestor, he might have pleaded riens per descent; for these estates were not liable to the debts of the ancestor before the statute of frauds. That act made them chargeable in the hands of the heir, as assets by descent, if he took by reason of a special occupancy; and if there be no special occupant, it directs that they shall go to the executors, subject to the debts of the testator; and the statute 14 Geo. II. c. 20 renders them distributable as personalty. An estate pur auter vie therefore partakes somewhat of the nature of a personal estate: though it is not a chattel interest, it still remains a freehold interest for many purposes, such as giving a qualification to vote for members of parliament, and to kill game, and some others; a will to dispose of it must also be attested by three witnesses under the statute of frauds. If such an estate be given to A. and the heirs of his body, the heirs of the body will take as special occupants, if no disposition be made of it by the first taker ; but it is absolutely in his power to make what disposition of it he pleases. 1 Atk. 524. 3 P. Wms. 266, n. E., and Grey vs. Mannock."
It has been held that there can be no general occupancy of a copyhold, because the freehold is always in the lord; and the statutes 29 Car. II. c. 3, s. 12, and 14 Geo. II. c. 20, B. 9, appropriating estates pur auter vie, where there is no special occupant, do not extend to copyholds. And one who was admitted tenant upon a claim as administrator de bonis pon to the grar.tee of a copyhold pur auter vie, having no title in such character, cannot
which enacts that the surplus of such estate pur auter vie, after payment of debts, shall in a course of distribution like a chattel interest.
By these two statutes the title of common occupancy is utterly extinct and abolished; though that of special occupancy by the heir-at-law continues to this day; such heir being held to succeed to the ancestor's estate, not by descent, for then he must take an estate of inheritance, but as an occupant specially marked out and appointed by the original grant. But, as before the statutes there could no common occupancy be had of incorporeal hereditaments, as of rents, tithes, advowsons, commons, or the like,(h) (because, with respect to them, there could be no actual entry made, or corporal seisin had; and therefore by the death of the grantee pur auter vie a grant of such hereditaments was entirely determined,) 60 now, I apprehend, notwithstanding these statutes, such grant would be determined likewise; and the hereditaments would not be devisable, nor rest in the executors, nor go in a course of distribution. For these statutes must not be construed so as to create any new estate, or keep that alive which by the common law was determined, and thereby to defer the grantor's reversion; but merely to dispose of an interest in being, to which by law there was no owner, and which therefore was left open to the first occupant.* When there is a residue left, the statutes give it to the executors and administrators, instead of the first occupant; but they will not create a residue, on purpose to give it to either.) They only meant to provide an appointed instead of a casual, a certain instead of an uncertain, owner of lands which before were nobody's; and thereby to supply this casus omissus, and render the disposition of law in all respects entirely uniform; this being the only instance wherein a title to real estate could ever be acquired by occupancy.' Co. Litt. 41. Vaugh. 201.
any eleemosynary corporation, of tithes or other incorporeal But sce now the statute 5 Geo. III. c. 17, which makes hereditaments, as good and effectual to all intents and pur
poses as leases of corporeal possessions.
leases for one, two, or three lives, by ecclesiastical persons or
recover in ejectment by virtue of such admission as upon a new and substantive grant of the lord. 7 East, 186.
If an estate pur auter vie be limited to a man, his heirs, executors, administrators, and assigns, and be not devised, it descends to his heir as special occupant, and is only liable for specialty debts. 4 Term R. 229. If it be limited to a person and his executors, administrators, and assigns, the executors take it, subject to the same debts as personalty. 4 T. R. 224, 229.-Chitty.
? Lord-keeper Harcourt has declared there is no difference, since the 29 Car. II. c. 3, between a grant of corporeal and incorporeal hereditaments pur auter vie; for, by that statute, every estate pur auter vie is made devisable, and, if not devised, it shall be assets in the hands of the heir, if limited to the heir: if not limited to the heir, it shall go to the executors or administrators of the grantee, and be assets in their hands; and the statute, in the case of rents and other incorporeal hereditaments, does not enlarge, but only preserves, the estate of the grantee. 3 P. Wms. 264, n.
In p. 113, ante, it is said that an estate pur auter vie cannot be entailed: yet, if such an estate be limited to A. in tail, with remainder to B., these limitations are designations of the persons who shall take as special occupants; but any alienation of the quasi tenant in tail will bar the interest of him in remainder. See 3 Cox, P. Wms. 266, and 6 T. R. 293, where it appears to have been the opinion of lord Northington and lord Kenyon that the tenant in tail of an estate pur auter vie may bar the remainders over by his will alone. See also 1 Atk. 524. 2 Vern. 225. 3 Cox, P. Wms. 10, n. 1. 1 Bro. Par. Ca. 457.–CHRISTIAN.
In the mining districts of Derbyshire and Cornwall, by the laws of the Stannaries, an estate in mines might, and it is believed still may, be gained by occupancy. Geary vs. Barcroft, 1 Sid. 347.-Cutty.
But, by the recent act for amending the law relating to wills, (1 Vict. c. 26, s. 1,) these statutes, except so far as relates to wills executed before Jan. 1, 1838, are repealed, but re-enacted (s. 3) that an estate pur auter vie, of whatever tenure, and whether it be a corporeal or incorporeal hereditament, may in all cases be devised by will; and (s. 6) that if no disposition by will shall be made of any estate pur auter vie of a freehold nature, the same shall be chargeable in the hands of the heir if it shall come to him by reason of special occupancy, as assets by descent,-as in the case of freehold land in fee-simple; and in case there shall be no special occupant of any estate pur auter vie, whether freehold or customary freehold, tenant-right, customary or copyhoíd, or of any other tenure, and whether a corporeal or incorporeal hereditament, it shall go to the
*This, I say, was the only instance; for I think there can be no other
[*261 case devised, wherein there is not some owner of the land appointed by the law. In the case of a solo corporation, as a parson of a church, when he dies or resigns, though there is no actual owner of the land till a successor be appointed, yet there is a legal, potential ownership, subsisting in contemplation of law; and when the successor is appointed, his appointment shall have a retrospect and relation backwards, so as to entitle him to all the profits from the instant that the vacancy commenced. And, in all other instances, when the tenant dies intestate, and no other owner of the lands is to be found in the com. mon course of descents, there the law vests an ownership in the king, or in the subordinate lord of the fee, by escheat.
So also in some cases, where the laws of other nations give a right by occupancy, as in lands newly created, by the rising of an island in the sea or in a river, or by the alluvion or dereliction of the waters; in these instances the law of England assigns them an immediate owner. For Bracton tells us,(j) that if an island arise in the middle of a river, it belongs in common to those who have lands on each side thereof; but if it be nearer to one bank than the other, it belongs only to him who is proprietor of the nearest shore: which is agreeable to, and probably copied from, the civil law.(k) Yet this seems only to be reasonable, where the soil of the river is equally divided between the owners of the opposite shores; for if the whole soil is the freehold of any one man, as it usually is whenever a several fishery is claimed,(1) there it seems just (and so is the constant practice) that the erotts or little islands, arising in any part of the river, shall be the property of him who owneth the piscary and thỏ soil. However, in case a new island rise in the sea, though tho civil law gives it to the first occupant,(m) yet ours gives it to the king:(n) *And as to lands gained
[*262 from the sea, either by alluvion, by the washing up of sand and earth, so as in time to make terra firma; or by dereliction, as when the sea shrinks baik below the usual watermark; in these cases the law is held to be, that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining:) For de minimis non curat lex: and, besides, these owners being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is therefore a reciprocal consideration for such possible charge or loss. But if the alluvion or dereliction be sudden and considerable, in this case it belongs to the king; for, as the king is lord of the sea, and so owner of the soil while it is covered with water, it is but reasonable he should have the soil when the water has left it dry.(p) So that the quantity of ground gained, and the time during which it is gaining, are what make it either the king's or the subject's property. In the same manner if a river, running between two L. 2, c. 2.
(*) Bract. l. 2, c. 2. Callis of Sewers, 22. *) Inst. 2, 1, 22.
°) 2 Roll. Abr. 170. Dyer, 326. (4) Salk. 637. See page 39.
() Callis, 24, 28. (m) Inst. 2, 1, 2 executor or administrator of the party that had the estate thereof by virtue of thu grant; and if the same shall come to the executor or administrator, either by reason of a special occupancy or by virtue of this act, it shall be assets in his hands, and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate.-STEWART.
* See these subjects of alluvion, avulsion, and reliction, and islands arising in the sea and rivers, fully considered, and the cases collected, in the able treatise of Mr. Schultes on Aquatic Rights, who, in pages 115 to 138, draws this conclusion :-" that all islands, relicted land, and other increase arising in the sea and in navigable streams, except under local circumstances before alluded to, belong to the crown; and that all islands, relicted land, and the soil of inland unnavigable rivers and streams under similar circumstances, belong to the proprietor of the estates to which such rivers act as boundaries; and hence it may be considered as law that all islands, sand-beds, or other parcels of agglomerated or concreted earth which newly arise in rivers, or congregate to their banks by alluvion, reliction, or other aqueous means, as is frequently to be observed in rivers where the current is irregular, such accumulated or relicted property belongs to the owners of the neighbouring estates.” Schultes on Aquatic Rights, 138. See further, Com. Dig. Prerog. D. 61. Bac. Abr. Prerog. 3 Bar. & C. 91. 5 B. & A. 268. From the late case of The King vs. Lord Yarborough, 3 Bar. & Cres. 91, (though the decisiou VOL. I.-38
lordships, by degrees gains upon the one, and thereby leaves the other dry; the owner who loses his ground thus imperceptibly has no remedy: but if the course of the river be changed by a sudden and violent flood, or other hasty means, and thereby a man loses his ground, it is said that he shall bave what the river has left in any other place, as a recompense for this sudden loss.(9) And this lav of alluvions and derelictions, with regard to rivers, is nearly the same in the im. perial law ;(r) from whence indeed those our determinations seem to have been drawn and adopted: but we ourselves, as islanders, have applied them to marine increase, and have given our sovereign the prerogative he enjoys, as well upon the particular reasons before mentioned, as upon this other general ground of prerogative, which was formerly remarked,($) that whatever hath no other owner is vested by law in the king.
111. OF TITLE BY PRESCRIPTION.
(6) Co. Litt. 113.
A THIRD method of acquiring real property by purchase is that by prescription; as when a man can show no other title to what he claims, than that he, and those under whom he claims, have immemorially used to enjoy it. Concerning customs, or immemorial usages, in general, with the several requisites and rules to be observed in order to prove their existence and validity, we inquired at large in the preceding part of these commentaries.(a) At present therefore I shall only, first, distinguish between custom, strictly taken, and prescription; and then show what sort of things may be prescribed for.
And, first, the distinction between custom and prescription is this; that custom is properly a local usage, and not annexed to a person ; such as a custom in the manor of Dale that lands shall descend to the youngest son: prescription is merely a personal usage; as, that Sempronius and his ancestors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege.(6) As for example; if there be a usage in the parish of Dale, that all the inhabitants of that parish may dance on a certain close, at all times, for their recreation, (which is held(c) to be a lawful usage;) this is strictly a custom, for Callis, 28.
(a) See book i. page 75, &c.
() 1 Lev. 176. turned rather upon the pleadings and evidence than the general law of alluvion and reliction,) and the cases cited, (id. 102,) it may be collected that, if the salt water leare a great quantity of land on the shore, the king shall have the land by his prerogative, and not the owner of the adjoining soil; but not so when dry land is formed gradually and by insensible imperceptible degrees, by alluvions or relictions, however large it may ultimately become. As to unnavigable rivers, there is a case cited in Callis, 51, from the 22 lib. ass. pl. 93, which fully establishes the law. The case was that a river of water did run between two lordships, and the soil of one side, together with the river of water, did wholly belong to one of the said lordships; and the river, by little and little, did gather upon the soil of the other lord, but so slowly that if one had fixed his eye : whole day thereon together it could not be perceived. By this petty and imperceptible increase the increasement was got to the owner of the river ; but if the river, by a sudden and unusual flood, had gained hastily a great parcel of the other lord's ground, he should not thereby have lost the same; and so of petty and unperceivable increasements from the sea the king gains no property, for de minimis non curat lex.'” N.B. In the above text, it is supposed " he shall have what the river has left in any other place as a recompense for his sudden loss;" but the case in 22 ass. pl. 93 says that “neither party shall lose his land.” Schultes on Aquatic Rights, 136, 137.—CAITTY.
1 In order to determine whether rights are holden as a custom or as a prescription, it is necessary to advert merely to the manner in which they are holden,—whether as a local usage, or as a personal claim, or dependent on a particular estate. All rights which may be holden as a custom may be holden as a prescription, but not vice versa. Perley vs. Langley, 7 N. Hamp. 233.-SHARSWOOD.