t. 10, s. 18. What we call purchase, perquisitio, the feudists called con- Purchase called by the quest, conquæstus, or conquisitio: both denoting any means of feudists conacquiring an estate out of the common course of inheritance. quest. And this is still the proper phrase in the law of Scotland: as it Craig, 1. 1. was among the Norman jurists, who styled the first purchaser Dalrymple of the conqueror or conquereur; which seems to be all that was feuds, 210. meant by the appellation, that was given to William the Gr. Coustum. Norman, when his manner of ascending the throne of Eng- p. 40. land was in his own and his successors' charters, and by the Spelm. Gloss. historians of the time, entitled conquæstus, and himself conquestor, or conquisitor. Gloss. c. 25, 145. The difference quisition by descent and by purchase. between ac The difference in effect between the acquisition of an estate by descent and by purchase, consists in these points: That by purchase the estate acquires a new inheritable quality, and is descendible to the owner's blood in general, and not the blood only of some particular ancestor; and an estate taken by purchase will not make the heir answerable for the acts of the ancestor, as an estate by descent will. For the obligation or covenant of the ancestor shall be binding upon the heir, so far only as he (or any other in trust for him) had any estate of inheritance vested in him by descent from (or any estate, pur 29 Car. 2, c.3, autre vie coming to him by special occupancy as heir to) that ancestor sufficient to answer the charge whether he remains in possession, or has aliened it before action brought; which 3 & 4 Wm. & sufficient estate is in the law called assets, from the French M. c. 14. word assez, enough. This is the legal signification of the word perquisitio, or purchase; and in this sense it includes the following methods of acquiring a title to estates: escheat; occupancy; prescription; forfeiture, and alienation. s. 10. Ibid. s. 12. Finch Law, 119. Methods of acquiring title included in the word purchase. Escheats. Escheat was one of the fruits and consequences of feodal tenure. The word itself is originally French or Norman, in which language it signifies chance or accident; and with us it denotes an obstruction of the course of descent, and a consequent determination of the tenure, by some unforseen contingency: in which case the land naturally results back by a kind 1 Feud. 86. of reversion to the original grantor or lord of the fee (e). The in remainder. There are two cases, however, in which the resulting use is excluded; as where the use is declared to another person for the life of the grantor, and also where it is declared to the grantor himself for a term of years, which is thought inconsistent with his taking by implication the freehold also.-Burton's Comp. Law Real Property. 4th ed. pp. 120, 121. (e) Escheate, eschaeta, is a word of art, and derived from the French word escheat (id est) cadere, excidere, or accidere, and signifies properly when by accident the lands fall Co. Litt. 13. of the law of escheats. law of escheats is founded upon this single principle, that the The principle blood of the person so seised in fee simple, is, by some means or other, utterly extinct and gone: and since none can inherit his estate but such as are of his blood; it follows that when such blood is extinct, the inheritance itself must fail (ƒ). The cases wherein inheritable blood is wanting, are when the tenant dies without any relations on the part of any of his ancestors; when he dies without any relations on the part of those ancestors from whom his estate descended; and when he dies without any relations of the whole blood (g). A monster has no inheritable blood, and cannot be heir to any land, although born in marriage, Yet if it has human shape it may be heir. Bastards are incapable of being heirs, having no inheritable blood in them, except in the case of bastard eignè and mulier puisnè. Which happens when a man has a bastard son, and afterwards marries the mother and by her has a legitimate son. Here the eldest son is bastard or bastard eignè; and the A monster cannot be heir. Co. Litt. 7, 8. An to the lord, of whom they are holden, in which case the fee is escheated; and therefore of some escheats are called excadentiæ, or terræ excadentiales, dominus vero capitalis loco hæredis habetur, quoties per defectum vel delictum extinguitur sanguis sui tenentis. Loco hæredis et haberi poterit cui per modum donationis fit reversio cujusque tenementi. escheat happens aut per defectum sanguinis, for default of heir, aut per delictum tenentis, for felony; and that is, by judgment in three ways: aut quia suspensus per collum, aut quia abjuravit regnum, aut quia utlegatus est; and therefore they which are hanged by martial law in furore belli forfeit no lands; Co. Litt. 13 a. (f) By 54 Geo. 3, c. 145, no attainder for felony, except in cases of high treason, petit treason, or murder, shall disinherit any heir, or prejudice the right or title of any other person than the offender during his natural life only; and it shall be lawful for the person to whom the right or interest in any lands or hereditaments after the death of such offender, would have appertained if no such attainder had taken place to enter into the same. By 3 & 4 Wm. 4, c. 106, s. 10, when the person from whom the descent of any land is to be traced shall have had any relation, who having been attainted, shall have died before such descent shall have taken place, then such attainder shall not prevent any person, from inheriting such land, who would have been capable of inheriting the same, by tracing his descent through such relation, if he had not been attainted, unless such land shall have escheated in consequence of such attainder before 1st January 1834. (g) But see now 3 & 4 Wm. 4, c. 106, s. 9, and note (c) in the last chapter. In descents since December, 1833, the half-blood, if on the part of a male ancestor, is to inherit after the whole blood of the same degree, and if on the part of a female ancestor, next after her. By 4 & 5 Wm. 4, c. 23, if a trustee or mortgagee of any land die without an heir, the court of chancery may appoint a person to convey; and lands, &c. vested in any trustee shall not be escheated by reason of the attainder or conviction of such trustee, except where a trustee has a beneficial interest in the same. Where any person possessing lands, &c. as a trustee, shall have died without heirs, or have been convicted before June, 1834, the lands, &c. shall become subject to the control of the court of chancery. c. 1. younger son is legitimate, or mulier puisnè. If then the father Glanvil, L. 7, dies and the bastard eignè enters upon the land and enjoys it to his death, and dies seised thereof, whereby the inheritance descends to his issue; in this case the mulier puisnè and all other heirs (though minors, feme coverts, or under any incapacity) Litt. s. 299. are totally barred of their right. Aliens also are incapable of Co. Litt. 44. taking by descent, or inheriting; for they are not allowed to have Co. Litt. 8. any inheritable blood in them. If an alien be made a denizen Nor aliens. by the king's letters patent, and then purchases lands (which the law allows such a one to do), his son, born before his denization, shall not (by the common law) inherit those lands; but a son born afterwards may, even though his elder brother be living; for the father, before denization, had no inheritable blood to communicate to his eldest son; but by denization it acquires an hereditary quality which will be transmitted to his subsequent posterity. Yet if he had been naturalized by act of parliament, such eldest son might then have inherited; for that cancels all defects, and is allowed to have a retrospective energy, which simple denization has not. The sons of an alien Co. Litt. 129. born in England may inherit to each other; the descent from one brother to another being an immediate descent (h). By 11 & 12 Wm. 3, c. 6, all persons being natural born subjects of the king, may inherit and make their titles by descent from any of their ancestors lineal or collateral; although their father or mother, or other ancestor from whom they derive their pedigrees were born out of the king's allegiance. But this statute is qualified by 25 Geo. 2, c. 39, by which no right of inheritance can accrue by virtue of the former statute to any persons unless they are in being, and capable to take as heirs at the death of the person last seised; with an exception to the case where lands shall descend to the daughter of an alien; which descent shall be devested in favour of an after-born brother, or the inheritance shall be divided with an after-born sister or sisters, according to the usual rule of descents by the common law. the By attainder also for treason or other felony, the blood of Of attainder. person attainted is so corrupted as to be rendered no longer inheritable (i). Care must be taken to distinguish between (h) By 3 & 4 Wm. 4, c. 106, s. 5, no brother or sister shall be considered to inherit immediately from his or her brother or sister, but every descent from a brother or sister shall be traced through the parent. This enactment does not extend to any descent before January 1834. (See the next note. forfeiture of lands to the king, and this species of escheat to the lord. Forfeiture was the doctrine of the old Saxon law, and does not at all relate to the feodal system, nor is the consequence of any seignory or lordship paramount; but being a prerogative vested in the crown, was neither superseded nor diminished by the introduction of the Norman tenures; a fruit and consequence of which escheat must undoubtedly be reckoned. Escheat, therefore, operates in subordination to this more ancient and superior law of forfeiture. The doctrine of escheat upon attainder taken singly, is this: that the blood of the tenant by the commission of any felony (under which denomination all treasons were formerly comprised) is corrupted and stained, and the original donation of the feud is thereby determined, it being always granted to the vassal on the implied condition of dum bene se gesserit. In consequence of which corruption of hereditary blood, the land of all felons, on legal attainder, would immediately revest in the lord, but that the superior law of forfeiture intervenes and intercepts it in its passage; in case of treason for ever; in case of other felony for only a year and a day (k); after which time it goes to the lord in a regular course of escheat, as it would have done to the heir of the felon, in case the feodal tenures had never been introduced. (k) And that this is the true operation and genuine history of escheats, will appear from this incident to gavelkind lands (which seems to be the old Saxon tenure) that they are in no case subject to escheat for felony, though they are liable to forfeiture for treason. By the law of England a man's blood is so universally corrupted by attainder, that his sons can never inherit to him, nor to any other ancestor, at least on the part of their attainted father; and this corruption of blood cannot be absolutely removed but by authority of parliament (k). There is one instance in which lands held in fee simple, are not liable to escheat to the lord, even when the owner is no more, and has left no heirs to inherit them. This is the case of a corporation; for if that be dissolved the donor or his heirs shall have the land again in reversion, and not the lord by escheat, which is, perhaps the only instance where a reversion can be expectant on a grant in fee simple absolute. (k) But see now 54 Geo. 3, c. 145, and 3 & 4 Wm. 4, c. 106, s. 10, explained in note (ƒ) to this chapter. CHAPTER XVI. OF TITLE BY OCCUPANCY. occupancy. OCCUPANCY, or the taking possession of those things which of the title hy before belonged to no man, so far as it concerns real property, has been confined by the laws of England within a narrow compass, and was extended only to a single instance; namely, where a man was tenant pur autre vie, or had an estate granted to himself only (without mentioning his heirs), for the life of another, and died during the life of cestui que vie, or him by whose life it was holden; in this case he that could first enter on the land might lawfully retain the possession so long as cestui qui vie lived by right of occupancy; but there was no right of occupancy allowed where the king had the Co. Litt. 41. reversion of the lands. And even in the case of a subject, had the estate pur autre vie been granted to a man and his heirs during the life of cestui que vie, there the heir might, and still may, enter and hold possession, and is called in law a special occupant; as having a special exclusive right by the terms of the original grant, to enter upon and occupy this unoccupied inheritance during the residue of the estate granted; but by 29 Car. 2, c. 3, where there is no special occupant in whom the estate may vest, the tenant pur autre vie, may devise it by will, or it shall go to the executors, or administrators, and be assets in their hands for payment of debts; and by 14 Geo. 2, c. 20, the surplus of such estate pur autre vie, after payment of debts, shall go in a course of distribution like a chattel interest (a). By these statutes the title of The doctrine. common occupancy is abolished; though that of special (a) And see now 3 & 4 Wm. 4, c. 104, explained ante, in note (c), p. 185, whereby freehold and copyhold estates in all cases were made assets for the payment of simple contract, as well as specialty debts. By 7 Wm. 4, and 1 Vict. c. 26, s. 6, if (after 1st January 1838), no disposition by will shall be made of any estate pur autre vie of a freehold nature, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of special occupancy, as assets by descent, as in the case of freehold land in fee simple; and in case there shall be no special occupant of any estate pur autre vie, whether freehold, or customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant; and if the same shall come to the executor or administrator, either by reason of a |