have been defrauded by fuch a limitation of the fruits of his figniory, arifing from a defcent to the heir. WHAT We call purchase, perquifitio, the feudifts called conqueft, conquaeftus, or conquifitio: both denoting any means of acquiring an estate out of the common courfe of inheritance. And this is ftill the proper phrafe in the law of Scotland as it was among the Norman jurifts, who ftiled [243] the first purchafor (that is, he who brought the estate into the family which at present owns it) the conqueror or conquereur". Which feems to be all that was meant by the appellation which was given to William the Norman, when his manner of afcending the throne of England was, in his own and his fucceffors' charters, and by the hiftorians of the times, entitled conquaeftus, and himself conquaeftor or conquif tor°; fignifying that he was the first of his family who ac quired the crown of England, and from whom therefore all future claims by defcent must be derived: though now, from our disuse of the feodal fenfe of the word, together with the reflexion on his forcible method of acquifition, we are apt to annex the idea of victory to this name of conqueft or conquifition: a title which, however juft 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 acquifition of an eftate by descent and by purchase, confifts principally in these two points: 1. That by purchase the estate acquires a new inheritable quality, and is defcendible to the owner's blood in general, and not the blood only of fome particular anceftor. For, when a man takes an eftate by purchase, he takes it not ut feudum paternum or maternum, which would defcend only to the heirs by the father's or the mother's fide: but he takes it ut feudum antiquum, as a feud of indefinite antiquity; whereby it becomes inheritable to his heirs gene 1 Crag. l. 1. t. 10. § 18. Dalrymple of feuds. 210. Gr. Couftum. Gloff. c. 25. pag. 40, o Spelm. Glo 145. ral, ral, first of the paternal, and then of the maternal line. 2. An estate taken by purchase will not make the heir answerable for the acts of the ancestor, as an estate by defcent will. For, if the ancestor by any deed, obligation, covenant, or the like, bindeth himself and his heirs, and dieth; this deed, obligation, or covenant, fhall be binding upon the heir, fo far forth only as he (or any other in truft for him 9) had any eftate of inheritance vested in him by defcent from (or any estate pur auter vie coming to him by special occupancy, as heir to) that ancestor, fufficient to answer [ 244 ] the charge'; whether he remains in poffeffion, or hath aliened it before action brought; which fufficient eftate is in the law called affets; from the French word, affez, enough". Therefore if a man covenants, for himself and his heirs, to keep my houfe in repair, I can then (and then only) compel his heir to perform this covenant, when he has an estate fufficient for this purpose, or affets, by defcent from the covenantor: for though the covenant descends to the heir, whether he inherits any eftate or no, it lies dormant, and is not compulsory, until he has affets by descent. 2. Oc THIS is the legal fignification of the word perquifitio, or purchase; and in this fenfe it includes the five following methods of acquiring a title to eftates: 1. Efcheat. cupancy. 3. Prefcription. 4. Forfeiture. 5. Alienation. Of all these in their order. I. ESCHEAT, we may remember", was one of the fruits and confequences of feodal tenure. The word itself is originally French or Norman, in which language it fignifies chance or accident; and with us it denotes an obftruction of the courfe of defcent, and a confequent determination of the tenure, by fome unforeseen contingency: in which case the land naturally refults back, by a kind of reverfion, to the original grantor or lord of the fee ". 9 Stat. 29 Car. II. c. 3. § 10. ↑ Ibid. § 12. IP. Wms. 777. Stat. 3 & 4 W. & M. c. 14. a Finch. law. 119. Finch. Rep. 86. w See pag. 72. *E Let or échet, formed from the verb ejcbir or ê.bor, to happen. yi Fead. 35. Co. Litt. 13. ESCHEAT : ESCHEAT therefore being a title frequently vefted in the lord by inheritance, as being the fruit of a figniory to which he was entitled by defcent, (for which reafon the lands efcheating fhall attend the figniory, and be inheritable by fuch only of his heirs as are capable of inheriting the other *) it may feem in fuch cafes to fall more properly under the former general head of acquiring title to eftates, viz. by descent, (being vested in him by act of law, and not by his own act [245] or agreement) than under the present by purchase. But it must be remembered that, in order to complete this title by escheat, it is neceffary that the lord perform an act of his own, by entering on the lands and tenements fo efcheated, or suing out a writ of efcheat 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 ufurps the poffeffion, his title by efcheat is barred. It is therefore in fome refpect a title acquired by his own act, as well as by act of law. Indeed this may also be faid of defcents themselves, in which an entry or other feifin is required, in order to make a complete title; and therefore this diftribution of titles by our legal writers, into thofe by defcent and by purchase, seems in this refpect rather inaccurate, and not marked with fufficient precision: for, as efcheats must follow the nature of the figniory to which they belong, they may veft by either purchase or defcent, according as the figniory is vefted. And, though fir Edward Coke confiders the lord by efcheat as in fome respects the affignee of the laft tenant, and therefore taking by purchafe; yet, on the other hand, the lord is more frequently confidered as being ultimus haeres, and therefore taking by defcent in a kind of caducary fucceffion. THE law of efcheats is founded upon this fingle principle, that the blood of the perfon last seised in fee-fimple is, by fome means or other, utterly extinct and gone: and, fince none can inherit his eftate but fuch as are of his blood and 2 Co. Litt. 13. a Bro. Air. tit. efibeat, 26. b Ibid. tit. acceptance. 25. Co. Litt. 268. CI Inft. 215. confanguinity, confanguinity, it follows as a regular confequence, that when fuch blood is extinct, the inheritance itself must fail; the land must become what the feodal writers denominate feudum apertum; and muft refult back again to the lord of the fee, by whom, or by those whofe eftate he hath, it was given. ESCHEATS are frequently divided into those propter defectum fanguinis and thofe propter delictum tenentis: the one fort, if the tenant dies without heirs; the other, if his blood be attainted. But both thefe fpecies may well be comprehended under the first denomination only; for he that is at- [246] tainted fuffers an extinction of his blood, as well as he that dies without relations. The inheritable quality is expunged in one inftance, and expires in the other; or, as the doctrine -of escheats is very fully expreffed in Fleta, " dominus capi"talis feodi loco haeredis habetur, quoties per defectum vel de"lictum extinguitur fanguis tenentis.” ESCHEATS therefore arifing merely upon the deficiency of the blood, whereby the descent is impeded, their doctrine will be better illuftrated by confidering the feveral cafes wherein hereditary blood may be deficient, than by any other method whatsoever. 1, 2, 3. THE first three cafes, wherein inheritable blood is wanting, may be collected from the rules of defcent laid down and explained in the preceding chapter, and therefore will need very little illustration or comment. First, when the tenant dies without any relations on the part of any of his ancestors: fecondly, when he dies without any relations on the part of those ancestors from whom his eftate defcended: thirdly, when he dies without any relations of the whole blood. In two of these cafes the blood of the first purchasor is certainly, in the other it is probably, at an end; and therefore in all of them the law directs, that the land fhall efcheat to the lord of the fee: for the lord would be manifestly prejudiced, if, contrary to the inherent condition tacit d Co. Litt. 13. 92. e 1. 6. c. I. ly ly annexed to all feuds, any person should be fuffered to fucceed to the lands, who is not of the blood of the first feudatory, to whom for his perfonal merit the estate is fuppofed to have been granted (3). 4. A MONSTER, which hath not the fhape of mankind, but in any part evidently 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, although it hath deformity in any part of it's body, yet if it [247] hath human fhape, it may be heir. This is a very antient rule in the law of England; and it's reafon is too obvious, and too shocking, to bear a minute difcuffion. The Roman law agrees with our own in excluding fuch births from fucceffions yet accounts them, however, children in fome refpects, where the parents, or at least the father, could reap any advantage thereby: (as the jus trium liberorum, and the like) eftecming them the misfortune, rather than the fault, of that parent. But our law will not admit a birth of this kind to be fuch an iffue, as fhall 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 fhall efcheat to the lord. (3) In the great cafe of Burgefs v. Wheate, lord chancellor Northington determined contrary to the learned opinions of lord Mansfield and of Sir Thomas Clarke mafter of the rolls, whofe affistance he had requested, that where a ceftui que truft dies without heirs, the truft does not escheat to the crown, fo that the lands may be recovered in a court of equity by the king, but that the trustee fhall hold them for his own benefit. 1 Bl. Rep. 123. |