:

dignity of blood. And these two principles being attended to, it will not be a difficult matter to ascertain on whom the law casts the inheritance, on the death of its last possessor intestate. Suppose then J. S. dies seised of land which he acquired, and which therefore he held as a feud of indefinite antiquity:-in the first place succeeds his eldest son or his issue: and, if his line be extinct, then the second son, and the other sons respectively, in order of birth, or their issue: and in default of these, all the daughters together, or their issue. On failure of the descendants of J. S. himself, the issue of his parents, G. and L. S. is called in; viz. first the eldest brother of the whole blood, or his issue: then the second and the other whole brothers respectively, in order of birth, or their issue: then the sisters of the whole blood all together, or their issue. In defect of these, the issue of his father's parents, G. and C. S., respect being still had to their age and sex: then the issue of his paternal grandfather's parents W. and C. S.: then the issue of his paternal grandfather's father's parents R. and A. S. and so on in the paternal grandfather's paternal line, or blood of W. S. in infinitum. When all the representatives of the male stock of the paternal line are extinct, then the female stock of the paternal line in like manner succeeds; beginning, according to the doctrine laid down by Justice Manwoode in Clere and Brooke (Plowd. 450.), and adopted by Lord Bacon (Elem. c. 1.), Sir Matthew Hale (H. C. L. 240. 244.), and Lord Ch. B. Gilbert (Ten. 19.), with the heirs of the paternal grandmother, in preference to the heirs of the paternal greatgrandmother, the former being equal in dignity of blood to the latter, and nearer, in point of proximity of blood, to the propositus. And though this doctrine has been controverted by Sir William Blackstone (2 Com. 238. 240.), it has since met with very able supporters, whose arguments and reasoning on the subject have, we think, the most weight. See Remarks on the Law of Descents by William Osgoode, Esq. of Lincoln's Inn, published in 1779. 2 Woodd. 262. 3 Cru. Dig. 425. In default of the male and female stocks of the paternal line of J. S., recourse must then, and not before, be had to his maternal relations, in the same regular successive order as in the paternal line. But in case J. S. was not himself the purchaser, but the estate in fact came to him by descent from his father, mother, or any higher ancestor; then the blood of that line of ancestors, from which it did not descend, can never inherit; as was fully explained in a former part of this chapter. Ant. 12a. p. 169. The student should also bear in mind, that in the above process of tracing the heir of J. S., J. S. is the person supposed to have been last actually seised of the estate. For if ever it comes to vest in any other person, as heir to J. S., a new order of succession must be observed upon the death of such heir since he, by his own scisin, now becomes an ancestor or slipes, and must be put in the place of J. S,—[Ed.]

184

CHAP. XXX.

OF TITLE BY PURCHASE, AND BY ESCHEAT.

3 b.

Definition of purchase.

LITTLETON.

PURCHASE, is in Latin perquisitum, of the verb perqui

rere.

Littleton describeth it in the end of Chapter 1. in this manner: "Also purchase is called the possession of lands or tenements that a man hath by his deed or agreement, unto which possession he cometh not by title of descent from any of his ancestors, or of his cousins, but by his own deed." So as I take it, a purchase is to be taken, when one cometh to lands by conveyance or title; and that disseisins, abatements, intrusions, usurpations, and such like estates gained by wrong, are not said in law purchases (1), but oppressions and injuries.

ALSO, purchase is called the possession of lands or tene[Sect. 12. 18 a.] ments that a man hath by his deed or agreement, unto which possession he cometh not by title of descent from any of his ancestors, or of his cousins, but by his own deed (A).

(1) Accord. ante, 2 a. (vol.1. p. 491, 492.), and post, 18 b.-[Hargr. n. 8.3 b.]

(A) The feudal writers called purchase conquestus, or conquisitio, 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 Scotlaud, Dalrym. F. P. p. 210; as it was among the Norman jurists, who stiled the first purchaser (that is, he who brought the estate into the family which at present owns it) the conqueror or conquereur, Gr. Constum. Gloss. c. 25. p. 40: and Glanvil (lib. 7. c. 1.) uses the word questus to denote the property which a person has acquired by his own act, and not by descent. Infra, 18 b.

The difference between the acquisition of an estate by descent, and by purchase, consists principally in two points: 1st. That, by purchase, the estate acquires a new inheritable quality, and is descendible to the owner's blood in general, as a feud of indefinite antiquity; whereby it becomes inheritable to his heirs general, first of the paternal, and then of the maternal line. 2dly. An estate taken by purchase will not make the person who acquires it answerable for the acts of his ancestor, as an estate by descent will. For, if the ancestor by any deed, obligation, or cove nant, binds himself and his heirs, and dies; this deed, obligation, or covenant, shall be binding upon the heir, so far only as he (or any other in trust for him, stat. 29 Car. 11. c. 3. s. 10.) had any estate of inheritance vested in him by descent from, (or any estate pur auter vie coming to him by special occupancy, as heir to (Ibid. s. 12.)) that ancestor, sufficient

Purchase, in Latin, is either acquisitum, of the verb acquiro, for so I find it in the original Register, 234. In terris vel tenementis, quæ *viri et mulieris conjunctim acquisiverunt, Bract. lib. 2. fol. 63. &c. Bracton calleth it perquisitum; and by Glanvill (a) it is called quastus or perquisitum.

A purchase is always intended by title, and most properly The different kinds. by some kind of conveyance, either for money or some other consideration, or freely of gift; for that is in law also a purchase (2). But a descent, because it cometh merely by act

to answer the charge, 1 P. Wms. 777; whether he remains in possession,
or has aliened it before action brought, stat. 3 & 4 W. & M. c. 14; which
sufficient estate is in law called assets, from the French word ussez, enough.
2 BI. Com. 242, 243, 241. And by stat. 49 Geo. 3. c. 74. where a person,
being at the time of his death a trader within the meaning of the bankrupt
laws, dies scised or entitled to real estate, which he shall not by his last
will have made subject to the payment of his debts, and which before
the passing of this act would have been assets for the payment of his
debts by specialty, in which the heirs were bound, the same shall be assets
in the hands of the heir, or devisee, to be administered in equity for
payment of all his debts, whether by simple contract or by specialty;
creditors by specialty, in which the heirs are bound, to be first paid.
[Ed.]

case, 47 b. 1 H. 5.

Pl. Com. Wimbishey's of law, is not said to be a purchase; and accordingly the eap. 5. makers of the act of parliament in 1 H. 5. c. 5. speak of them that have lands or tenements by purchase or descent of inhe ritance. And so it is of an escheat or the like, because the inheritance is cast upon, or a title vested in the lord by act in law, and not by his own deed or agreement, as our author here saith (3). Like law of the state of tenant by the curtesy, tenant in dower, or the like. But such as attain to lands by mere injury or wrong, as by disseisin, intrusion, abatement, usurpation, &c. cannot be said to come in by purchase, no more than robbery, burglary, piracy, or the like, can justly be termed purchase (4).

LITTLETON. [Sect. 9. 16 a.]

The word "inheritance" applicable to inheritable property acquired by purchase, as well as by descent.

AND it is to wit, that this word (inheritance) is not only intended where a man hath lands or tenements by descent of inheritage, but also every fee-simple or tail (5) which a man

(3) "The abbot of Fountains of the order of Cistercians before the council of Lateran makes a feoffment, and the land escheats to him after the connèil of Lateran. It seems, that he shall not be charged with tithes, because it is not a purchase. Quære, M. 7 Jac. B. R. Dickson and Waller." Hal. MSS. It was decreed by the general council of Lateran in 1215, that the privilege of exemption from tithes, enjoyed by the Cistercians and other religious orders, should not extend to lands purchased after that council. Ne occasione privilegiorum suorum ecclesiæ ulterius prægraventur, decernimus, ut de alienis terris et a modo acquirendis, &c. decimas persolvant, &c. Gibs. Cod. 1st ed. 2 vol. p. 700, 701. This explains the case cited by Lord Hale.-An escheat in appearance participates of the nature both of a purchase and a descent; of the former, because some act by the lord is requisite to perfect his title, and the actual possession of the land cannot be gained till he enters or brings his writ of escheat; of the latter, because it follows the nature of the seignory, and is inheritable by the same persons. But strictly speaking an escheat is a title neither by purchase nor descent. It should be considered, that though the lord must do some act to put himself into the actual possession; yet his title to take possession commences immediately on the want of a tenant, and this title is vested in him without waiting for his own deed or agreement, and as

much by mere act of law as the title
of an heir is in the case of a de-
scent; and therefore both titles are
equally excluded from being pur-
chases. On the other hand, escheat
is not a title by descent; for the lord
takes in his capacity of lord of
the seignory of which the land
escheated was holden, and not as
heir, or by right of blood. Nor is
it any objection to this way of con-
sidering the title by escheat, that
the land escheated will be inherit-
able in the lord as land by pur-
chase, where he has the seignory
by purchase, and as land by de-
scent, where he has the seignory
by descent; for the reason of this
is, not that the escheat is either a
purchase or descent, but because
the escheat follows the seignory,
from which the right to it is deriv-
ed, as an accessary to its principal.
According to this view of the sub-
ject, instead of distributing all the
several titles to land under pur-
chase and descent, it would be more
accurate to say, that the title to
land is either by purchase, to which
the act or agreement of the party
is essential, or by mere act of law,
and under the latter to consider
first descent, and then escheat, and
such other titles not being by de-
scent, as yet like them accrue by
mere act of law. See on this sub-
ject Blackst. Comment. ed. 5. v. 2.
p. 241. and 201.-[Hargr. n. 2. 18 b.
(106).]

[See ant. p. 156. n.(D).]—[Ed.]
(4) See acc. ant. 3 b. p. 184.
(5) ou taile, not in L. and M.

hath by his purchase may be said an inheritance, because his heirs may inherit him. For in a writ of right which a man bringeth of land that was his own purchase, the writ shall say, quam clamat esse jus et hæreditatem suam. And

so shall it be said in divers other writs which a man or womun bringeth of his own purchase, as appears by the Register.

and 232, and the

And in

(b) Sect. 732. Bract. lib. 2. fol. 62 b.

Fleta, lib. 6. cap. 1.

(Post, 383 b.)

Regist. fol. 4. 232.

49 E. 3. 22. 7 H. 4. 5.

10 H. 6. 9. 39 H. 6. 38. 6 E. 3. 30. PL.

Com. Wimbeshie's

case, 47. & 58 b,

“Quam clamat esse jus et hæreditatem suam.” (b) Here our author declareth the right signification of this word (inheritance). And true it is, that in the writ of right patent, &c. quando dominus remittit curiam suam, the words of the writ be, quam clamat esse jus et hæreditatem suam. the præcipe in capite, in a cui in vitâ, (c) when the defendant (c) Regist. fol. 1. 2. claimeth by purchase, the writ is, quam clamat esse et hæredi- (F. N. B. 195.) tatem suam. And with Littleton agreeth Register, fol. 4. book in 49 E. 3. 22. against sudden opinions. 7 H. 4. 5. 10 H. 6. 9. 39 H. 6. 38. Pl. Com. Wimbeshie's case, 47. And yet in 7 H. 4. 5., which is the book of the greatest weight, Sir William Thirning, chief justice of the common bench (as it scemeth doubting of it), went into the chancery, to inquire of the chancery men of the form of the writ in that case; and they said that the form was both the one way and the other, so as thereby the opinion of Littleton is confirmed, and the book in 6 E. 3. fo. 30. is notable; for there in an action of waste the plaintiff supposed, that the defendant did hold de hæreditate suá, and it is ruled, that albeit the plaintiff purchased the reversion, yet the writ should serve. And there it is said, it hath been seen, that, in a cui in vitâ, the writ was, which the demandant claimed as her right and inheritance, when it was her purchase. And so this point, wherein there might seem some contrariety in books, is manifestly cleared. But in the statute of W. 2. cap. 5., de hæreditate uxorum, by construction of the whole statute, is taken only for the wives' inheritance by descent, and not by purchase, as appeareth in 1 E. 2. tit. Quare imped, 43. 35 H. 6. 54. F. N. B. 34 b.

"And it is to wit." This kind of speech is used twice in Chapter 1. and oftentimes by our author in all his three

6 E. 3. 30.

W. 2. ca. 5. 1 E. 2.
tit. Quare Imp. 43.
35 H. 6. 54. F. N. B.
34 b.

Sect. 45. 46. 57. 59.

80. 100. 146. 164.

170. 184. 229. 243.

259. 274. 280. 293.

300, 305. 419, 420, 121. 489. 632. 697. 749.