IN the preceding chapter we have seen that, according to the present use of the terms, title by descent is set in opposition to and distinguished from title by purchase. But the law also takes notice of other modes of acquiring dominion over land, and therefore in a sense acquiring or completing a title; these are, as we have seen, escheat, partition, and inclosure. As to partitions, since they only occur where the person who claims title thereunder has previously an estate in joint-tenancy, tenancy in common, or other similar estate, by virtue of which he receives the lands acquired in severalty, and in lieu of his former estate, there is little to add to what has already appeared in our disquisitions concerning those estates. Such further remarks as the subject may require will occur when the forms and ceremonies requisite to the validity of deeds come under our notice. And as to inclosures, the lands which are so acquired become in general subject to all the incidents relating to the title of the lands, in respect of which the allotment is made, and therefore they in a manner do not possess a title of their own further than is indicated by the facts of inclosure and allotment. But we are led here to say somewhat of the third method of acquiring or completing title, which is called escheat. This, like partition and inclosure, is not so much an acquisition by a new title of the lands, as a conversion of that which was a barren seignory-or nearly sointo a practical enjoyment of the lands. [*394] Escheat. *Escheat, we may remember (a), was one of the fruits and consequences of feudal tenure. The word itself is originally French or Norman (b), 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 unforeseen contingency: in which case the land naturally results back, by a kind of reversion, to the original grantor or lord of the fee (c). Requisites to a complete title by escheat. But it must be remembered that, in order to complete this title by escheat, it is necessary that the lord perform an act of his own, by entering on the lands and tenements so escheated, or bringing an action of ejectment, which action has been substituted for the old writ of escheat, a writ which the legislature has abolished (d). Except, indeed, when the seignory is in the crown, in which case there first issues a commission of escheat, and office is found thereby (e). If, however, any act is done which amounts to an implied waiver of the lord's right, as the acceptance of homage, or rent of a stranger who usurps the possession, the title by escheat is barred (ƒ). The estate in the seignory carries with it as an accessory or part of it, the right to the lands on their escheat, so much so, indeed, that an (a) Ante, p. 155. (b) Eschet, or échet, formed from the verb eschoir or échoir, to happen. (c) 1 Feud. 86; Co. Litt. 13. See Burgess v. Wheate, 1 Eden, 191, 193, 227; 3 Cruise, Dig. 397; R. v. Wilson, 5 M. & Ry. 140; Dela cherois v. Delacherois, 11 H. L. 62. (d) By 3 & 4 Will. 4, c. 27, s. 36. (e) 8 Hen. 6, c. 16; 18 Hen. 6, c. 6; Doe v. Redfern, 12 East, 96. (f) Bro Abr. tit. Acceptance, 25; Co. Litt. 268. incumbrance upon the seignory will bind the lands which accrue to the lord by escheat (g), and the inheritance of the escheated lands will be identical with that of the seignory (h). Nevertheless, inasmuch as the lands may, without impropriety, be said to be acquired by the lord by reason of the escheat, the law concerning escheats may with advantage be here considered before entering upon the second branch of title, that by purchase. [* 395] The law of escheats is founded upon a simple principle, which those who have completely comprehended the system of tenure, which was introduced in the feudal ages, will readily understand. All inheritances are supposed to be the result of a grant by a lord. Originally this grant was to the tenant, and after him to his heirs, who were so far entitled to the benefit of the grant that they could not be deprived of it by any act of their ancestor. Such a grant necessarily reserved to the lord the full dominion over the land if there should be no heirs (i), for whenever such a failure took place, there was no person to take under the grant, which therefore ceased to have any operative effect. This theory of grants was considerably broken into by the introduction of the power of alienation, whereby the heirs of the original grantee could be deprived of their hopes of succession in favor of those of the alience. Nevertheless, this did not affect the right of the lord to an escheat further than this, that the defect of heirs upon which the escheat took place was that of the heirs of the last tenant instead of the heirs of the original grantee. An escheat therefore takes place when upon the death of a tenant in feesimple there is no person who can claim title to the land either by descent or devise. This is usually described as being a defect of heirs or defectum sanguinis. But besides this case of defectum sanguinis, since a grant is supposed to continue in force only so long as the tenant does not by his conduct prove himself incapable of rendering the services due to the lord; therefore, upon attainder of the tenant, he ceases to be capable of holding his lands. And to this personal incapacity there was added by the feudal doctrines an [* 396 ] incapacity to transmit any title, or the blood was said to be corrupted (k). Thus the circumstances of an attainder were assimilated to those of a death without heirs on the part of the tenant, and the lands escheated to the lord. The inheritable quality was expunged in one instance, and expired in the other, or, as the doctrine of escheats is expressed in Fleta (1), “dominus capitalis feodi loco hæredis habetur, quoties per defectum vel delictum extinguitur sanguis tenentis." The law of escheat is not permitted to create an injustice towards those who have acquired any right in the lands. Therefore any partial estate, as for years or for life, which may have been validly created by any tenant, will hold good against the lord after the escheat. Again, a will duly executed by the last tenant in fee, as it would have defeated both his heir and the heir of the purchaser, had there been any, will also defeat the lord's title by escheat. Moreover, the lands will be assets in the hands of the lord for payment of the (g) 1 Roll. 402; Burgess v. Wheate, 1 Eden, 191. (h) Co. Litt. 13. (k) Co. Litt. 13, 92. () L. 6, c. 1. See Sir T. Clarke's description of Escheats in Burgess v. Wheate, 1 Eden, (i) Revertitur terra, as Bracton says in 191. describing an escheat, lib. 2, fo. 23. Lands vested in debts of the last tenant (m), to be administered in chancery. And an incumbrance which has been created by the tenant will have effect a trustee do not given to it against the lord (n). The legislature has also protected lands vested in a trustee from escheat through failure of heirs or attainder of the trustee (0). escheat. We must take care to distinguish escheat from forfeiture to the crown, which takes place, as we shall see presently, under some circumstances closely resembling those of escheat. In order satisfactorily to illustrate the doctrine of escheat, we will consider in order the several cases in which it now takes place. *The first case, which is where inheritable blood is wanting upon [*397] the death of a tenant, may be collected from the rules of descent laid down and explained in the preceding chapter, from which it is apparent that an escheat takes place where there is neither an heir to the last purchaser of the lands nor to the person last entitled. This combination of wants can rarely happen except where the purchaser is himself the person last entitled, and dies without an heir. We may notice, however, that the law has not provided for the case (a possible one, though so improbable that it hardly can be believed it will ever happen (p) ), of both the purchaser's heirs failing, as also those of the person last entitled, and yet there being heirs of a person who had enjoyed the property by descent from the purchaser and prior to the person last entitled. A few particular instances of defect of heirs may be here adduced, rather in exemplification of those doctrines which we have already stated than in addition thereto. A monster, not having the shape of mankind, but in any part evidently bearing the resemblance of the brute creation, has no inheritable. blood, and cannot be heir to any land, even though it be brought forth in marriage: but, although it hath deformity in any part of its body, yet, if it has human shape, it may be heir (q). This is a very ancient rule in the law of England (r); and its reason is too obvious, and too shocking, to [*398] bear a minute discussion, which, moreover, is unnecessary, since such lusus naturæ can rarely occur. The Roman law agrees with our own in excluding such births from successions (s), yet accounts them, however, children in some respects, where the parents, or at least the father, could reap any advantage thereby (t); (as the jus trium liberorum, and the like); esteeming them the misfortune, rather than the fault, of that parent. But our law will (m) Under 3 & 4 Will. 4, c. 104. (n) Hodge v. A.-G., 3 Y. & Coll. Exch. c. 342, where however the court refused to order a sale as against the crown. See Casberd v. A.-G., 6 Price, 411. (0) 13 & 14 Vict. c. 60, in effect re-enacting 4 & 5 Will. 4, c. 23, ss. 15, 46. It applies also to forfeitures. (p) The case might happen where the purchaser was the only child of a bastard father and bastard mother; his father married as a second wife a legitimate person, by whom he had a son A.; and afterwards married a third wife, a bastard, by whom he had a son B. After the purchaser's death, the order of succession would be, 1st, the father; 2nd, A. (who enters and dies without issue); 3rd, B.; on B.'s death without issue there would be the failure of heirs requisite for an escheat, yet A.'s heirs through his mother might be in existence. (g) Co. Litt. 7, 8. (r) Qui contra formam humani generis converso more procreantur, veluti si mulier monstruosum vel prodigiosum enixa sit, inter liberos non computentur. Partus autem qui membrorum officia ampliavit, ut si sex digitos habeat, vel si quatuor tantum, vel si tantum unum, talis inter liberos connumerabitur. Bract. 1. 1, c. 6, s. 7. Sed non dico partum monstruosum licet natura membra minuerit vel ampliaverit; minuerit, ut in defectu digi torum, vel hujus modi; ampliaverit, ut si plures digitos vel articulos sicut sex vel plures ubi non debet habere nisi quinque; si inutalia natura reddiderit membra, ut si curvus fuerit, vel gibbosus, vel membra tortuosa haberit. lb. 1. v. tr. 5, c. 30, s. 10. (8) Dig. 1, 5, 14. (t) Dig. 50, 16, 135; Paul, 4, sent. 9, s. 68. not admit a birth of this kind to be such an issue, as shall entitle the husband to be tenant by the curtesy (u); because it is not capable of inheriting. And therefore, if there appears no other heir than such a prodigious birth, the land shall escheat to the lord. Bastards. Bastards are incapable of being heirs. (323) Bastards, by our law, are such children as are not born either in lawful wedlock, or within a competent time after its determination. Such as are held to be nullius filii, the sons of nobody; for the maxim of law is, qui ex damnato coitu nascuntur, inter liberos non computantur (x). Being thus the sons of nobody, they have no blood in them, at least no inheritable blood; consequently, none of the blood of the first purchaser: and therefore, if there be no other claimant than such illegitimate children, the land shall escheat to the lord (y). The civil law differs from ours in this point, and allows a bastard to succeed to an inheritance, if after its birth the mother was married to the father, which rule has been adopted in Scotland, France, and other * countries (z): and also, if the father had no lawful wife or child, then, even if the [*399] concubine was never married to the father, yet she and her bastard son were admitted each to one-twelfth of the inheritance (a): and a bastard was likewise capable of succeeding to the whole of his mother's estate, although she was never married: the mother being sufficiently certain, though the father is not (b). But our law, in favour of marriage, is much less indulgent to bastards, and will not recognize the status of a child thus legitimated for the purpose of inheriting land in England (c). Case of bastard puisnè. There was, indeed, formerly one instance, in which our law has shown them some little regard; and that is usually termed the case of bastard eignè and mulier puisnè. This happened when a man has a bastard son, eigne and mulier and afterwards marries the mother, and by her has a legitimate son, who, in the language of the law, is called a mulier, or as Glanvil (d) expresses it in his Latin filius mulieratus; the woman before marriage being concubina, and afterwards mulier. Now here the eldest son is bastard, or bastard eignè; and the younger son is legitimate, or mulier puisnè. If then the father died, and the bastard eignè entered upon his land, and enjoyed it to his death, and died seised thereof so that the inheritance descended to his issue; in this case the mulier puisnè and all other heirs, (though minors, feme-coverts, or under any * incapacity whatsoever), were totally barred of their right (d). But this indulgence was shown [* 400] to no other kind of bastard; for, if the mother was never married to the father, such bastard could have no colourable title at all (e). Since the changes in (u) Co. Litt. 29. (x) Co. Litt. 8. (y) Finch, L. 117. (z) Nov. 89, c. 8. (a) lb. c. 12. (b) Cod. 6, 57, 5. (c) Doe d. Birtwhistle v. Vardell, 2 Cl. & Fin. 571; Boys v. Bedale, 1 H. & M. 799; Goodman v. Goodman, 3 Giff. 643. Legitimacy, according to the law of the domicile, as well as according to the law of the place where the land lies, is necessary to entitle an heir. For a child born out of wedlock, of parents domiciled in England, who afterwards married there, was not allowed to inherit lands in Scotland. 6 Bligh, 468. See 2 Ves. & B. 127. Similar rules are adopted to determine the validity of a divorce and second marriage. Shaw v. Gould, L. R. 4 H. L. E. & L. 55. As to the status of bastards during the middle ages, and on the continent, see Butl. Co. Litt. 243 b. (d) L. 7, c. 1. (d) Litt. s. 399; Co. Litt. 244; Pride v. Earl of Bath, 1 Salk. 120. (e) Litt. s. 400. (323) This subject has been sufficiently noticed. Ante, 385, note 173. VOL. I. -85 the law of inheritance, which now gives title to each successor as heir of the purchaser upon every death of a tenant, and since the statute (f) which enacted that no descent cast should defeat any right of entry, this privilege of the bastard eignè has ceased to exist. Ceased to exist. As bastards cannot be heirs themselves, so neither can they have any heirs but those of their own bodies. For, as all collateral kindred consists in being derived from the same common ancestor, and as a bastard has no legal ancestors, he can have no collateral kindred; and consequently, can have no legal heirs, but such as claim by a lineal descent from himself. And therefore, if a bastard purchases land, and dies seised thereof without issue, and intestate, the land shall escheat to the lord of the fee. Though, as we shall hereafter see, it is different if the lands be vested in a trustee (g). Aliens. Aliens, also, are incapable of taking by descent, or inheriting: for they are not allowed to have any inheritable blood in them. (324) The law prohibiting aliens from holding land is a rule stricti juris, though somewhat relaxed of late, for it was formerly more stringent than it now is. If an alien purchased any estate, unless with the king's licence (h), the lands were at once forfeited to the crown, and upon inquisition and office found, the crown might take possession (i). It will be noticed that this was not an escheat *to any lord, but a paramount right of the crown, founded, as Spel[* 401 ] man says, upon the inconsistency of the tenure of lands by fealty with allegiance to a foreign prince (j): or if not resting upon the mere technical grounds of inconsistent oaths, it depends upon analogous principles that the observance of political duties (k), if antagonistic in nature, cannot be required from the same persons. Upon similar principles, then, if the only person who can be a man's heir is an alien, there is no one who can take the lands by descent on the death of such a tenant, therefore the lands escheat to the lord. They are not forfeited, because they never were acquired by the alien. an alien. Formerly, also, the doctrine of an alien possessing no inheritable blood was carried out in its logical consequence to the extent of preventing any one Descent through claiming by descent under a pedigree containing an alien ancestor. But it has been enacted (7) that all persons, being naturalborn 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 (f) 3 & 4 Will. 4, c. 27, s. 39, passed in the covered. 2. The revenues of the realm (the same year as the Inheritance Act. sinews of war) should be taken and enjoyed by strangers. 3. It tends to the destruction (g) Post, c. 21. (h) As to the effect of this licence, see 14 of the realm by admitting strangers to fortify Hen. 4, c. 20; Co. Litt. 2 b; Harg. 2. " in the heart of the kingdom." Per Sir 0. (k) That the privileges of aliens born, as touching lands, are stricti juris, I prove, first by the politic grounds why an alien is not capable of inheritance in England. They are given in Calvin's Case, 7 Rep. 27. 1. The secrets of the realm might be thereby dis(324) See ante, 286, note 115. And, in addition to the cases there cited, see, also, Wilbur v. Tobey, 16 Pick. 177; Commonwealth v. Hite, 6 Leigh, 588; Barbour v. Nelson, 1 Lit. 60; Montgomery v. Donrion, 7 N. H. 475; Robeck v. Gardner, 7 Watts, 455; White v. White, 2 Metc. (Ky.) 185; Hinkle v. Shaddon, 2 Swan. (Tenn.) 46; O'Hanlin v. Den, 20 N. J. 31; Farrar v. Dean, 24 Mo. 16; People v. Folsom, 5 Cal. 373; Puckett v. State, 1 Sneed, 355; Colgan v. McKeon, 4 N. J. 566. |