257 real estates whatsoever; and his next of kin being a proteftant, fhall hold them to his own ufe till fuch time as he complies with the terms impofed by the act. This incapacity is merely perfonal; it affects himself only, and does not deftroy the inheritable quality of his blood, fo as to impede the defcent to others of his kindred. In like manner as, even in the times of popery, one who entered into religion and became a monk profeffed was incapable of inheriting lands, both in our own" and the feodal law; eo quod defiit effe miles feculi qui factus eft miles Chrifti; nec beneficium pertinet ad eum qui non debet gerere officium". But yet he was accounted only civiliter mortuus; he did not impede the defcent to others, but the next heir was entitled to his or his ancestor's estate. THESE are the feveral deficiencies of hereditary blood, recognized by the law of England; which, fo often as they happen, occafion lands to escheat to the original proprietary or lord. 1 CHAPTER THE SIXTEENTH. OF TITLE BY OCCUPANCY. CCUPANCY is the taking poffeffion of thofe things, which before belonged to nobody. This, as we have fcen, is the true ground and foundation of all property, or of holding thofe things in feveralty, which by the law of nature, unqualified by that of fociety, were common to all mankind. But when once it was agreed that every thing capable of ownership fhould have an owner, natural reafon fuggefted, that he who could firft declare his intention of appropriating any thing to his own use, and, in confequence of fuch intention, actually took it into poffeffion, fhould thereby gain the abfolute property of it; according to that rule of the law of nations, recognized by the laws of Rome", quod nullius eft, id ratione naturali occupanti conceditur. THIS right of occupancy, fo far as it concerns real property, (for of perfonal chattels I am not in this place to fpeak) hath been confined by the laws of England within a very narrow compafs; and was extended only to a fingle inftance: 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 ceftuy que vie, or him by whofe life it was holden: in this cafe he, that could first enter on the land, might lawfully retain the poffeffion fo long as ceftuy que vie lived, by right of occupancy. THIS feems to have been recurring to firft principles, and calling in the law of nature to afcertain the property of the land, when left without a legal owner. For it did not revert to the grantor, though it formerly was fuppofed so to do; for he had parted with all his intereft, fo long as ceftuy que vie lived: it did not efcheat to the lord of the fee; for all efcheats must be of the abfolute entire fee, and not of any particular eftate carved out of it; much lefs of fo minute a remnant as this: it did not belong to the grantee; for he was dead: it did not defcend to his heirs; for there were no words of inheritance in the grant: nor could it veft in his executors; for no executors could fucceed to a freehold. Belonging therefore to nobody, like the haereditas jacens of the Romans, the law left it open to be seised and appropriated by the first perfon that could enter upon it, during the life of celuy que vie, under the name of an occupant. But there was no right of occupancy allowed, where the king had the reverfion of the lands; for the reversioner hath an equal right with any other man to enter upon the vacant pofleflion, and where the king's title and a fubject's concur, the king's fhall be always preferred: against the king therefore there could be no prior occupant, becaufe nullum tempus occurrit regi. And, even in the cafe of a fubject, had the estate pur auter vie been granted to a man and his heirs during the life of cefluy que vie, there the heir might, and ftill may, enter and hold poffeffion, and is called in law a Special occupant; as having a fpecial exclufive right, by the terms of the original grant, to enter upon and occupy this haereditas jacens, during the residue of the eftate granted: though fome have thought him fo called with no very great propriety; and that fuch estate is rather a defcendible freehold. But the title of common occupancy is now reduced almost to nothing by two ftatutes: the one 29 Car. II. c. 3which enacts (according to the antient rule of law ) that d Bract. 1. 2. c. 9.1.4. tr. 3. c.9.54. Flet 1. 3. c. 12. § 6. 4. 5. 6. 5. § 15. f Vaugh. 201. g Bract. ilid, Flet, ibid. e Co. Litt. 41. where Book II. where there is no fpecial occupant (1), in whom the estate may veft, the tenant pur auter vie may devife it by will, or it fhall go to the executors or adminiftrators and be affets in their [260] hands for payment of debts: the other that of 14 Geo. II. c. 20. which enacts, that the furplus of fuch eftate pur auter vie, after payment of debts, fhall go in a courfe of distribu tion 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; fuch heir being held to fucceed to the ancestor's eftate, not by descent, for then he must take an eftate of inheritance, but as an occupant fpecially marked out and appointed by the original grant. But, as before the ftatutes there could no common occupancy be had of incorporeal hereditaments, as of rents, tithes, advowfons, commons, or the like, (because, with respect to them, there could be no actual entry made, or corporal feifin had; and therefore by the death of the grantee pur auter vie a grant of fuch hereditaments was entirely determined) fo now, I apprehend, notwithstanding these ftatutes, fuch grant would be determined likewife; and the hereditaments would not be devifeable, nor veft in the executors, nor go in a course of diftribution. For thefe ftatutes muft not be construed fo as to create any new eftate, or keep that alive which by the common law was determined, and thereby to defer the grantor's reverfion; but merely to difpose of an interest in being, to which by law there was no owner, and which therefore was left open to the first occupant (2). When there is a refidue g Co. Litt. 41. Vaugh. 201. (1) That is, where it is not granted to a man and his heirs. (2) Lord keeper Harcourt has declared, there is no difference fince the 29 Car. II. c. 3. between a grant of corporeal and incorporeal hereditaments pur auter vie; for by that ftatute every estate pur auter vie is made devifeable, and if not devised, it shall be affets in the hands of the heir, if limited to the heir; if not limited to the heir, it shall go left, the ftatutes give it to the executors and administrators, inftead of the first occupant; but they will not create a refidue, on purpose to give it to either. They only meant to provide an appointed inftead of a cafual, a certain inftead of an uncertain, owner of lands which before were nobody's; and thereby to supply this cafus omiffus, and render the difpofition of law in all refpects entirely uniform: this being the only inftance wherein a title to a real estate could ever be acquired by occupancy. THIS, I fay, was the only inftance; for I think there can [ 261 ] be no other cafe devifed, wherein there is not fome owner of the land appointed by the law. In the cafe of a fole corporation, as a parfon of a church, when he dies or refigns, though there is no actual owner of the land till a fucceffor be appointed, yet there is a legal, potential ownership, subsisting in contemplation of law; and when the fucceffor is appointed, his appointment shall have a retrospect and relation backwards, fo as to entitle him to all the profits from the instant that the vacancy commenced. And, in all other inftances, when the tenant dies inteftate, and no other owner of the lands is to be found in the common courfe of descents, there the law vests an ownership in the king, or in the subordinate lord of the fee, by escheat. So alfo in fome cafes, where the laws of other nations give a right by occupancy, as in lands newly created, by the rifing But fee now the ftatute 5 Geo. III. c. 17. which makes leafes for one, two, or three lives by ecclefiaftical perfons or any eleemofynary corporation of tithes or other incorporeal hereditaments, as good go to the executors or administrators of the grantee, and be affets in their hands; and the ftatute in the cafe of rents and other incorporeal hereditaments, does not enlarge, but only preferve the estate of the grantce. P. Wms. 264. In p. 113, ante, it is faid, that an estate pur auter vie cannot be entailed; yet if fuch an eftate be limited to A in tail, with remainder to B, thefe limitations are defignations of the perfons who fhall take as fpecial occupants; but any alienation of the quafi tenant in tai! will bar the intereft of him in remainder. See Cox P. W'ms. 265. of |