But the nature of the creditor's right cannot be changed without his own consent. There must be some act by him importing his acceptance of the heritable right offered to him. A disposition, therefore, by a debtor of his lands to a trustee for the behoof of a personal creditor, without that creditor's knowledge, does not render the debts heritable. (a) Nor does such a disposition to trustees for behoof of creditors always render heritable the moveable heritable debts, even of those who accede to it. (b)

Where the debts are not made nor intended to be made a burthen upon the estate, but the sole object is to enable the trustee to sell the estate, and pay the creditors out of the purchase money, the character of the debt is not changed. But if the effect of the trust is to vest in the creditors a pro indiviso interest in the estate, and thus afford them, instead of a mere personal claim against the trustee, a right to connect themselves with the real subject, the debt becomes heritable. For this purpose, however, it would seem that the creditors must be named in the deed, and the amount of the debts intended to be created real burthens specially set forth. (c)

Where the trust gives not a mere personal claim against the trustee, but contains a direction to denude of the trust estate itself, there can be no doubt of the heritable character of the right. (d)

When an alteration is made in the nature of the creditor's right, by a sale of the subject contained in the

(a) Dirl. 342. Waugh, Feb. 17, 1676, Dict. p. 5453. Fac. Coll. Feb. 25, 1780, Grierson, Dict. 759. Fac. Coll. June 18, 1793, McEwan, Dict. p. 5596. Ersk. b. 2, tit 2, § 15.

(b) Stair, b. 3, tit. 5, note, p. 558. 2 Bell's Com. 9. Ersk. Inst. b. 2, tit. 2, § 15.

(c) Fac. Coll. Grierson, 25 Feb. 1780. Ib. Dict. p. 759.

(d) Durie, 30 Nov. 1791, Fac. Coll. Dict. pp. 4624, 5595.

David

son, 20 Dec. 1797, Fac. Coll. Dict. p. 5597. Wilson, 31 May, 1809, Fac. Coll.

deeds, the debts return to their former moveable condition.

If the sale be extrajudicial and by the consent of the creditors, all those debts which became heritable only by the incidental security, are divested of their heritable character by the completion of the sale, although the price should be unpaid, while the claim upon the unsold subjects is heritable. (a) If the sale be judicial, the debts continue heritable until payment. The statutes respecting judicial sales, and also the sequestration act relative to lands sold in the course of a sequestration, (b) preserve to the creditors the effect of their securities, and declare the price to be a real burthen upon the lands purchased. Even the reversion in the purchaser's hands, after paying the heritable debts, has been found heritable and adjudgeable. (c) If the purchaser has consigned the price in the bank, in terms of the statute, (d) as the lands are in such case disburthened of the debts, it would seem that each creditor's claim is merely personal, and subject to the diligence of moveables. (e)

As the creditor's right cannot be varied by any act of the debtor, to which the creditor does not accede, unless judicially confirmed, consigned money for redemption is heritable until declarator, by which the court by its sentence declares the wadset redeemed, and the feudal right dissolved. After declarator the consigned money is arrestable in the consignee's hands. (ƒ)

(a) Smith, 11 Nov. 1737, Dict. 5534. See Sir William Dunbar, 13 July, 1748, Kilk. 245, Dict. 5591. 2 Bell, p. 6.

(b) 54 Geo. 3, c. 137, § 42.

(c) Gardiners v. Spalding, 30 Nov. 1779, Dict. 730.

(d) 54 Geo. 3, c. 137, § 6, 42.

(e) 2 Bell's Com. p. 6.

(ƒ) Stormonth, 24 May, 1814, Fac. Coll. June 5, 1745, Duffs, Dict. p. 5429.

SECTION IV.

OF BIENS PROPRES AND ACQUETS.- ESTATES BY DESCENT AND PURCHASE. HERITAGE AND CONQUEST.

Propres and acquets under the Coutumes of Paris and Normandy.-Propres réels.-Paternels, and Maternels.-The Property which is subject to this quality. In what cases property acquired by other means than succession becomes propre.-Gifts, devises, &c.-Propres fictifs.-Subrogation.— Propres conventionnels.-Presumption that property was acquét until it was proved to be propre.-Under the Coutume of Normandy presumption that it was propre and propre paternel, until it was proved to be acquét.—Incidents to biens propres.-Estates of descent and purchase under the law of England prior to the recent Act, and the consequences attaching to estates by descent. Presumption that it was acquired by descent ex parte paterná.— Devises or dispositions which had not the effect of preventing the heir from taking by descent.-Recent alteration of the law of Inheritance.-In Scotland, the distinction between heritage and conquest.-Heirs of line, and heirs of conquest.-State of the law in the Colonies.-Lower Canada. -The United States.

PROPERTY is subject to a distinction founded on the manner, in which it was acquired by its owner. It consists of bona avita, and bona acquisita; or, in the language of the coutumes of Paris and Normandy, biens propres, and biens acquets; or, in that of the law of England, estates by descent, and estates by purchase; or in the language of the law of Scotland, fees of heritage, and fees of conquest.

No property can be propre but that which is really immoveable, or which the law has declared to be immoveable. The object of this distinction was to secure the continuance of estates in the family. It was unknown to the civil law, but it prevailed in the electorate of Saxony, and in many of the German States. (a)

(a) Muller's Prompt. tit. Bona Avita. Heinecc. tom. 2, exerc. 27, § 24, p. 964. Van Leeuwen, Cens. For. lib. 4, c. 20, n. 16. Gomez, in leg. 6. n. 7, et seq.

It is not admitted in Holland, or in Spain, or in the Code Civil, or in the Louisiana Code. (a)

The manner in which these two species of property are distinguished, and the qualities of each, under the coutumes of Paris, and Normandy, and the jurisprudence of England, Scotland, and the British colonies, will be considered in this section.

Biens propres are either réels, or fictifs, legaux, or conventionnel.

1st. Of Biens propres réels:

Under the coutume of Paris, property which the owner has derived from his family, either by descent, or by gift, or bequest from his father, mother, or other ascendant ancestor, is considered to be biens propres, whilst that which he has acquired, not by either of those means, but by his own act, as by purchase in its ordinary signification, or by gift, or bequest from any person not being his father, mother, or other ancestor in the ascending line, is considered to be biens acquêts.

If the property to which the son succeeded had become that of his father by purchase, in its ordinary sense, it is distinguished by the term les propres naissans, from that which had become the property of the father by descent, and to which latter, the description of les propres avitins was given.

The coutume of Normandy does not recognise the latter distinction, but treats the property in the hands of a person who has first possessed it as propre. Thus the estate first bought by the father becomes propre in the person and succession of his heir, in the collateral as well as direct line. (b)

Les propres are either de ligne, or propres sans ligne. The former are either propres paternels, or property which has descended ex parte paterná, or propres ma

(a) Code Civil, art. 732. Louisiana Code, art. 881 Van Leeuwen, Cens For. lib. 4, c. 20, n. 16. Gomez, in leg. 6, n. 7, et seq. (b) Cout. Normand, art. 247, 1 Dupless. 223, Art. 329.

ternels, or property which has descended ex parte

materná.

But property which has descended from a person who was related to the heir as well ex parte materná, as ex parte paterná, is said to be a propre sans ligne, because it does not belong to one line more than to the other.

Property acquired by descent or succession ab intestato, whether in the direct line ascending or descending, or in the collateral line, is propre. (a)

The property of the wife to which the husband succeeds is not a. propre, for he does not stand in that relation to her or her family which is required in order to confer on descended property the quality of propre. (b) Property derived from the family by gift inter vivos, or by testament, will be propre. (c)

Property which a child has received from his father, mother, or other ascendant, either by gift inter vivos, or by testament, is deemed to have been acquired on account of the succession, and is propre. It is equally propre whether the devise be direct, or by fidei commissum, for the devisee holds from the testator.

A gift or devise by such ancestor is presumed to be made in discharge of the natural obligation to leave his succession to his descendant. When he makes a gift in his life-time, he is considered to have made it in anticipation of the period when, in the course of nature, the property would have passed to the descendant. The devise of it is the substitution of another mode for transmitting it to him at his death. (d)

It is not the less propre, because the donee or devisee has not accepted, but renounced the succession.

It is also propre, although the donee or devisee should not be the presumptive heir of the donor or testator, as is the case when the donor or testator is a grandfather,

(a) Pothier, Tr. des Propres, § 1, et seq.

(c) Pothier, Ib. § 1.

(d) Pothier, Ib. art. 3. Merlin, tit. Propre, §4.

(b) Ib. § 1, art. 2.