BEFORE I Conclude this head, of efcheat, I must mention one fingular inftance in which lands held in fee-fimple are not liable to efcheat to the lord, even when their owner is no more, and hath left no heirs to inherit them. And this is the cafe of a corporation; for if that comes by any accident to be diffolved, the donor or his heirs fhall have the land again in reverfion, and not the lord by efcheat; which is perhaps the only inftance where a reverfion can be expectant on a grant in fee-fimple abfolute. But the law, we are told', doth tacitly annex a condition to every fuch gift or grant, that if the corporation be diffolved, the donor or grantor fhall re-enter; for the cause of the gift or grant faileth. This is indeed founded upon the felf-fame principle [257] as the law of efcheat: the heirs of the donor being only fubstituted instead of the chief lord of the fee: which was formerly very frequently the cafe in fubinfeudations, or alienations of lands by a vafal to be holden as of himself; till that practice was restrained by the ftatute of quia emptores, 18 Edw. I. ft. 1. to which this very fingular inftance ftill in fome degree remains an exception.

THERE is one more incapacity of taking by defcent, which, not being productive of any efcheat, is not strictly reducible to this head, and yet must not be paffed over in filence. It is enacted by the ftatute 11 & 12 Will. III. c. 4. (3) that every papist who fhall not abjure the errors of his religion by taking the oaths to the government, and making the declaration against tranfubftantiation, within fix months after he has attained the age of eighteen years, fhall be incapable of inheriting, or taking, by defcent, as well as purchase, any

t Co. Litt. 13.

(3) This act was repealed by the 18 Geo. III. c. 6. fo far as to permit fuch Roman catholics to inherit real property, as would take the oath of allegiance prescribed in the statute; which is the fame oath that is directed to be taken by the 31 Geo. III. c. 32; which has repealed all the other odious restrictions upon those who profefs the Roman catholic religion.

Book II. real estates whatsoever; and his next of kin being a protestant, 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 destroy 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 foedal law; eo quod defiit effe miles feculi qui factus eft miles Chrifii; 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 eftate.

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.

CHAPTER THE SIXTEENTH.

OF TITLE BY OCCUPANCY.

OCCUP

CCUPANCY is the taking poffeffion of thofe things, which before belonged to nobody. This, as we have feen, is the true ground and foundation of all property, or of holding those 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 should have an owner, natural reason fuggefted, that he who could first declare his intention of appropriating any thing to his own ufe, and, in confequence of such intention, actually took it into poffeffion, should 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 compass; and was extended only to a single instance: 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 cefluy que vie lived, by right of occupancy.

THIS feems to have been recurring to first 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 fo 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 vest 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 feifed and appropriated by the first person that could enter upon it, during the life of ceftuy 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 poffeffion, and where the king's title and a subject's concur, the king's fhall be always preferred: against the king therefore there could be no prior occupant, because nullum tempus occurrit regie. And, even in the cafe of a subject, had the estate pur auter vie been granted to a man and his heirs during the life of ceftuy que vie, there the heir might, and ftill may, enter and hold poffeffion, and is called in law a Special occupant; as having a special exclufive right, by the terms of the original grant, to enter upon and occupy this haereditas jacens, during the refidue of the estate granted : though some have thought him so called with no very great propriety; and that fuch eftate 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. 3. which enacts (according to the antient rule of law) that

where there is no fpecial occupant (1), in whom the estate may veft, the tenant pur auter vie may devise it by will, or it shall go to the executors or adminiftrators and be affts in their hands for payment of debts: the other that of 14 Geo. II. [260] c. 20. which enacts, that the furplus of fuch eftate pur auter vie, after payment of debts, fhall go in a courfe of diftribution like a chattel intereft.

By these two ftatutes 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 estate of inheritance, but as an occupant fpecially marked out and appointed by the original grant. But, as before the statutes there could no common occupancy be had of incorporeal hereditaments, as of rents, tithes, advowfons, commons, or the like &, (because, with refpect 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 devisable, nor veft in the executors, nor go in a course of diftribution. For these ftatutes must not be conftrued 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 reversion; but merely to dispose 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 & 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 eftate pur auter vie is made devifable, 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 to the executors or adminiftrators of the grantee, and be VOL. II. affets

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