ther's brother, tho' he is much nearer.-2d. THUS ALSO, The male line of the part of the father ascending, shall for ever exclude the female line of the part of the father ascending as if a son, purchase lands and die without issue, the fifter of the father's grand-father, or of his great grandfather, and so ad infinitum, shall be preferred before the father's mother's brother, although the father's mother's brother be a male, and the father's grand-father or great grandfather's fifter be a female, and more remote; yet she is of the male line, which is more worthy than the female line, tho' the female line is alfo of the blood of the father.BUT, 3dly. As, in the male line afcending, the more near is preferred before the more remote; fo in the female line defcending, if it be of the blood of the father, the more near is preferred before the more remote: thus, if one purchafe lands and die without iffue, and the father, grandfather, and great grand-father, and fo upwards, all the males being dead, without any brother or fifter, or any defcending from them, but the father's mother or fifter has a brother; all these are of the blood of the father, and the remoteft of them fhall exclude the fon's mother's brother; and tho' the great grand-mother's blood has paffed through more males of the father's blood than the blood of the grand-mother or mother of the father; yet the father's mother's fifter fhall be preferred before the father's grandmother's brother, or the great grand-mother's brother; because they are all in the female line, and the father's mother's fifter is the nearest in the male line, so she shall have the preference, as well as in the male line afcending, the father's brother or his fifter fhall be preferred before the grand-father's brother.-4thly. BUT ALTHOUGH in this laft cafe where the fon purchases lands, and dies without iffue, and without any heir on the part of the grand-father, the lands defcend to the grand-mother's brother or fister, as heir on the part of his father; yet if the father had purchased these lands and died, and it had defcended to his fon, who died without iffue, the lands fhould not have defcended to the father's mother's brother or fifter, for the reafons in the fecond rule, but for want of brothers or fifters of the grand-father's great grand-father, and fo upwards in the male afcending-line, it fhould defcend to the father's grand-mother's brother or fifter which is his heir of the part of the father, who fhould be preferred before the fa ther's ther's mother's brother, who is the heir of the part of the mother of the purchafer, tho' the next heir of the part of the father of him that laft died feifed, and therefore, if the father who was the purchafer had died without iffue, the heirs of the part of the father, whether of the male or female line, fhould have been preferred before the heirs of the part of the mother: So the son, who stands now in the place of the father, and inherits to him primarily in his father's line, dying without iffue, the fame devolution and hereditary fucceffion fhould have been as if his father had immediately died without iffue, which should have been to his grand-mother's brother, as heir of the part of the father, tho' by the female line, and not to his mother's brother, who was only heir of the part of his mother, and who is hot to take till the father's line both male and female be fpent.-5thly. So ALSO, if the fon purchafe land, and Cie without iffue, and it defcend to any heir of the part of the father, and then the line of the father after entry and poffeffion fail, it fhall never return to the line of the mother; tho' in the firft inftance, or firft defcent from the fon, it might have defcended to the heir of the part of the mother. For now by this descent and seifin it is lodged in the father's line to whom the heir of the part of the mother can never derive a title as heir, but it fhall rather efcheat. But if the heir of the part of the father had not entered, and then the line had failed, it might have defcended to the heir of the part of the mother, as heir to the fon, to whom immediately, for want of heirs of the part of the father, it might have defcended.-AND FOR THE SAME REASON if it had once defcended to the heir of the part of the father of the grand-father's line, and the heir had entered, it fhould never defcend to the heir of the part of the father of the grand-mother's line; becaufe the line of the grand-mother was not of the blood or confanguinity of the line of the grand-father's fide.-AND 6thly. If for default of heirs of the purchafer of the part of the father, the lands defcend to the line of the mother; the heirs of the mother of the part of her father's fide fhall be preferred in fucceffion be fore her heirs of the part of her mother's fide, because the heirs of the part of her father are the more worthy. fon's very excellent and DESCENTS BY CUSTOM. Defcents in fee-fimple by cuf- See Mr. Robintom are of feveral kinds: fometimes to all the fons, or to all the brothers where one brother dies without iffue, as in gavel-kind. All the lands in England were in nature of tife upon the C gavel learned Trea nature of gavel- gavel-kind before the Norman Conqueft, and defcended kind land, and to all the iffue equally; but, as the Normans did not condescents by cuftom. quer Kent, this cuftom or tenure is ftill preferved in fome places there. Sometimes the lands defcend to the youngest fon, as in Borough English; and fometimes to the eldest daughter or the youngest. 2 Bl. Com. 202. f. 4. DESCENTS BY STATUTE, are thofe which take place in Vide ante c. 1. fees in tail per formam doni in pursuance of the ftatute of Weftminster the second, in which the descent is restrained and regulated according to the words of the original donation and does not intirely pursue the common law doctrine of inheritance. Co. Lit. 3. b. 18. a. 22. 163. I. CHAPTER THE FOURTH. The Law of Purchafe by DEEDS and LEASES. PUR URCHASE, in a legal fenfe, not only includes fuch acquifition of lands, as are obtained by way of bargain and fale for money or some other valuable confideration, but every other method of coming to an eftate, except that by inheritance or DESCENT: And therefore if a perfon grant or even freely give land to another, the grantee in the first case, and the donee in the fecond, is, in the eye of the law, A PUR CHASER. 2. The word purchase, when used in its legal fenfe, includes 2 Bl. Com. 241. the five following methods of acquiring a title to real ef (a) By 6 & 7 Ann c. 20. all deeds of purchase, &c. in the counties of Middlefex and York are to be registered. tates, viz. by efcheat, occupancy, prescription, forfeiture, and alienation; but the most usual and univerfal method of acquiring fuch title is by this laft fpecies called ALIENATION, Conveyance, or purchafe in its more limited fignification. Of alienation alfo there are feveral kinds, as by deed, record, fpecial custom, and devife; but, upon the present occafion we shall only take notice of the mode of alienating eftates by the kind of deed called A LEASE (a) that being the inftrument by which the relation of LANDLORD AND TENANT, or, in other words, of lessor and leffee is, in general, conftituted; it may, however, be created as well by an AGREEMENT for a leafe, as by a LEASE itself. 3. ALEASE is a fpecies of conveyance, ufually made in confideration of RENT or other annual recompence, by which an an eftate for life, for years, or at will may be created in lands, tenements, or hereditaments whether corporeal, or incorporeal, by the words " demife, grant, and to farm, let." It must always be made for a lefs time than the leffor hath in the premiffes; for, if it be made for the whole intereft, it is more properly an affignment than a leafe.-A leafe for years may be made to commence at a day to come, provided it be certain; for every fuch estate must have a certain beginning and ending; (a) but a leafe for life cannot be made to (4) Vide ante commence in futuro, because a leafe for life is, in contem- P. 7. plation of law, a freehold, (b) and no freehold can com- (6) Vide ante mence in futuro. A leafe does not veft the estate in the lef- p 6. fee, but only gives him a right to enter and poffefs it; and therefore the eftate is not vefted in him till actual entry. To a lease for life of incorporeal hereditaments, livery of feizin is a neceffary incident, but to no other. 4. A tenant in fee-fimple being poffeffed of the whole intereft in the eftate may let leafes of any duration; a tenant for life can only make leafes during his own life, but cannot bind the reverfioner unless he be empowered fo to do by the perfon from whom his ef tate was derived. Co. Lit. 44. 3 398. Bac. Abr. 2. Lit. 47. 6 Co. 15. 3 Bac. Abr. Co. Lit. 45. 5. A tenant in tail alfo by the common law could not make any leafes which should bind the iffue in tail, but by 32 Hen. 8. c. 28. he is enabled to make leases to en- 2 Bl. Com. 318. dure, for three lives, or one and twenty years, fo 3 Com. Dig. as to bind the iffue in tail, but not thofe in remain- 239. der or reverfion, provided, 1ft. That the leafe be by indenture and not by deed poll, or by parol. 2dly. That it begin from the making or day of the making, and not at any greater diftance of time. 3dly. That if there be any old leafe in being it be first absolutely furrendered, or be within a year of expiring. 4thly. That it be either for twenty-one years or three lives and not for both. 5thly. That it exceed not the term of three lives or twenty-one years. 6thly. That it be of corporeal hereditaments (a). 7thly. That it be of lands and tenements most commonly letten for twenty years paft; that is for above half the time, or eleven years out of the twenty. (a) By 5 Geo. 3. c. 17. A leafe of tithes or other incorporeal heredicaments alone, may be granted by any bishop or ecclefiaftical or eleemofynary corporation, and the fuc ceffor fhall be intitled to recover the 8thly. 3 Bac. Abr. Co. Lit. 45. 8thly. That the most usual and customary rent for twenty years paft be referved yearly on the leafe. And 9thly. That it be not made "without impeachment of wafte." 6. A husband feifed of lands jure uxoris, could not, at the common law, make a firm or valid lease for any longer term than the joint lives of himself and his wife, for then his intereft expired; but by the abovementioned ftatute 32 Hen. 8. c. 28. a husband so seised of lands in fee-fimple or fee-tail, provided the wife join in the conveyance, may make a leafe for three lives or one and twenty years to bind her and her heirs; but the fame requifites must be obferved as in leafes made by a tenant in tail. 7. Ecclefiaftical perfons, that is all colleges, cathedrals and other ecclefiaftical or elcemofynary corporations, are (a) 32 Hen. 8. alfo by the enabling and difabling ftatutes (a) as they are c. 28. 1 El. c. 19. 13 El. c. 10. 14 El. c. 11. 14 El. c. 14. 18 El. c. 11. 43 El. c. 29. Co. Lit. 44. called, authorised to make leafes to bind their fuccef fors, provided, 1ft. they do not exceed twenty-one years or three lives from the making. 2dly. That the accuftom ed rent or more be yearly referved thereon. 3dly. That when there is an old leafe in being, no concurrent lease shall be made unless where the old one will expire within three years. 4thly. That such lease be not made without impeachment of wafte-THEY are alfo empowered by the faid statute to let houfes in corporation or market towns for forty years provided they be not the manfion houfes of the leffors, nor have above ten acres of ground belonging to them, and the leffee be bound to keep them in repair. 8. Parfons or vicars, are by the above statutes reftrained 2 Bl. Com. 321. from making longer leafes than for twenty-one years or three lives: but to enable them to make any leases at all fo as to bind the fucceffor, they must first obtain the confent of the patron and ordinary; and though leafes contrary to these acts are declared void, yet they are good against the leffor during his life; for they were intended for the benefit of the fucceffor only; and no man fhall take advantage of his own wrong. In cafe alfo, that any beneficed clergyman (b) be abfent from his cure above fourfcore days in any one year he fhall not only forfeit a year's profit of his benefice, to be diftributed among the poor of the parish, but all leafes made by him of the profits of fuch benefice, and all covenants and agreements of like nature shall cease and be void; except in the cafe of licenfed pluralifts who are allowed to demife the living on which they are non-re (b) 13 El. €. 20. 14 El. c. 11. 18 El. c. 11. 43 El c. 9. |