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has no notice, and in respect of which no action or suit has been actually commenced (i). Moreover, a suit already commenced will not bind Lis pendens must be registered to him, unless it has been registered within five years from the date bind purchasers. of the purchase in suitable books kept in the Common Pleas for ('rown debts. that purpose (k). Lastly, the land must be free from those special liabilities which arise from debts of record, specialty debts, or "accountants"" debts, when due to the crown (7). But a purchaser is protected even from these if they are not registered within five years in a manner similar to that requisite for lites pendentes (m).

The modes of ing, and acquir

property.

Descent.

Escheat.

*CHAPTER XIV.

TITLE BY DESCENT.

[*371]

THE several gradations and stages, requisite to form a complete title to lands, tenements, and hereditaments, having been briefly stated in the preceding chapter, we have to consider the several manners in which losing, continu- this complete title may be reciprocally lost and acquired: whereby ing a title to real the dominion of things real is either continued, or transferred from one man to another. And here we must first of all observe, that (as gain and loss are terms of relation, and of a reciprocal nature) by whatever method one man gains an estate, by that same method or its correlative some other man has lost it. As where the heir or devisee acquires by descent or devise, the ancestor or testator has first lost or abandoned his estate by his death: where the lord gains land by escheat, the estate of the tenant is first of all lost by the natural or legal extinction of all his hereditary blood: where a man gains an interest by occupancy, the former owner has previously relinquished his right of possession: where one man claims by prescription or immemorial usage, another man has either parted with his right by an ancient and now forgotten grant, or has forfeited it by the supineness or neglect of himself and his ancestors; and so, in case of forfeiture, the tenant by his own misbehaviour, or neglect has renounced his interest in the estate; whereupon it devolves to that person who by law may take advantage of such default; and, in alienation by common assurances inter vivos the two considerations of loss and acquisition are so interwoven, and so constantly contemplated together, that we never hear of a conveyance, without at once receiving the ideas as well of grantor as grantee.

Occupancy.
Prescription.

Forfeiture.

Alienation.

[* 372]

The various methods of acquiring on the one hand, and of losing on the other, a title to estates in things real, are reduced by our law to the following: These are reduci- descent, where the title is vested in a man by the single operation of law, upon the decease of a former owner and by reason of consanguinity to him; purchase, where the title is vested in him

ble to descent,

purchase, and escheat.

(i) Sug. V. & P. 758, 14th ed.

(k) 2 & 3 Vict. c. 11, s. 7.

(1) Ante, p. 313, note (d).

VOL. I.-83

(m) 2 & 3 Vict. c. 11, s. 8. The same act provides means of releasing lands from crown debts, ss. 9, 10. As to other crown debtors, see Sug. V & P. 545.

by his own act or agreement (a); and, thirdly, by escheat, of which we shall see more presently (b). There are also some modes of vesting which for some purposes are considered as falling under the general term purchase, but for other purposes must be distinguished from it. They are where the title vests through partition or inclosure, which, by the recent act to amend the law of inheritance, are distinguished from purchase.

Descent, or hereditary succession, is the title whereby a man on the death of another acquires his estate by right of representation, as his heir-at-law. Definition and na- An heir is he upon whom the law casts the estate immediately ture of descents. on the death of the ancestor: and an estate, so descending to the heir, is in law called the inheritance.

Importance of doctrine of descents.

The doctrine of descents, or law of inheritance in fee-simple, is a point of the highest importance; and is indeed one principal object of the laws of real property in England. All the rules relating to purchases, whereby the legal course of descents is broken and altered, perpetually refer to this settled law of inheritance, as a datum or first principle universally known, and upon * which their subsequent [* 373] limitations are to work. Thus, a gift in tail, or to a man and the heirs of his body, is a limitation that cannot be perfectly understood without a previous knowledge of the law of descents in fee-simple. One may well perceive that this is an estate confined in its descent to such heirs only of the donee as have sprung or shall spring from his body; but who those heirs are, whether all his children both male and female, or the male only, and (among the males) whether the eldest, youngest, or other son alone, or all the sons together, shall be his heir; this is a point that we must refer back to the standing law of descents in fee-simple to be informed of.

Since, in the year 1833, an act (c) was passed materially altering the rules of descent as regards the inheritance accruing upon the death of any person who may have died since the 31st of December, 1833, we will, in this chapter, exhibit the present law of inheritance, briefly noting by the way the rules which formerly prevailed but do so no longer, the importance of which, in connection with existing titles to land, is now nearly extinct (d). (318)

The alterations in the law made by the act alluded to apply to every kind of hereditament, whether it be subject to the common law of England or to any peculiar custom, such as that of gavelkind, Borough English.

be traced from the last purchaser.

I. The first rule or canon of descent is, that inheritance shall be traced from the last purchaser of the property, and for this purpose the person last entitled (I.) Descent shall to the property shall be deemed to be the purchaser, unless it be proved that he inherited it (e). But where there is a total failure of heirs of the purchaser, or where the land shall be descendible and as incident to the lord's seignory, and is therefore merely a fruit or practical result of it, see post, p. 394.

(a) Co. Litt. 18.

(b) As to the distinction between escheat and purchase in their practical effects, see Anon. 12 Mod. 138; Vin. Abr. Manor. R. 2, pl. 7; Holmes v. Hanby, 1 Sid. 284; s. c. 2 Keb. 28; Fleta, vi. i. s. 18; and Mr. Hargrave's note to Co. Litt. 18 b, where, however, the learned writer to some extent loses sight of the fact that escheat takes place because of

(c) 3 & 4 Will. 4, c. 106.

(d) Some further illustrations of the cases
in which descent may or may not be claimed
will appear in the next chapter.
(e) Sect. 2.

(318) The law relating to descents is regulated by statute in most of the States of the Union. Extracts from many of these statutes may be found in 3 Washb. Real Prop. 21 to 44, in note, 3d ed.

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as if an ancestor had been the purchaser, and there should be a total failure of the heirs of such ancestor, then the descent shall henceforth be *traced from the person last entitled to the property as

Exception.

if he had been the purchaser (f).

[* 374]

In order to understand this rule, we must bear in mind that the word purchaser means the person who last acquired the property otherwise than by descent, or than by escheat, partition, or inclosure, by the effect of which the property "shall have become part of, or descendible in the same manner as other land acquired by descent" (g).

Moreover, it is enacted (h), that when any land shall have been limited by an assurance executed after the 31st of December, 1833, to the person, or the heirs of the person, who shall thereby have conveyed the land, such person shall be considered to have acquired the land as a purchaser by virtue of such assurance, and shall not be entitled thereto as his former estate (i).

Differs from the

This first rule or canon is an alternation of the former law under which the person who last died actually seised of the property constituted the stirps or stock from whom descent was to be traced: the maxim being former rule. seisina facit stipitem: and a person was only considered actually seised when he had himself, or by his own or his ancestor's lessee entered, or had received rent from the lessee (k).

The rule which is now in force is not free from objection, and it may be remarked is not in accordance with the recommendation of the real property commissioners, *upon whose first report the Inheritance Act was to a [* 375] great extent founded. They recommended that descent should be always traced from the person last entitled, a simpler and more convenient arrangement, as the title, when it depends upon the inability to show whether or not a proposed stirps inherited, must always be in some degree uncertain. It has been held, however, that another objection which seems not unnaturally to arise out of this rule is invalid. Suppose a purchaser to die intestate, leaving two daughters, Elizabeth and Mary. Then suppose Elizabeth to die, without having in any manner dealt with her share, and leaving a son, it might seem that the descent of the moiety which Elizabeth took, ought, if in accordance with the rule to be traced from the purchaser, go as to half only to her son and the remainder to Mary. It has been held in accordance with a natural sense of what under such circumstances would appear fair, that the moiety in question descends entirely to the son (1).

Although the rule declares that the descent is to be traced, not from the person who was last entitled or possessed, but from the person who last took by purchase, yet a person who has taken by descent may in several ways so change his estate or acquire a new estate, as to constitute himself for the pur

(f) 22 & 23 Vict. c. 35, s. 19. (g) 3 & 4 Will. 4, c. 106, s. 1. (h) Sect. 3.

(i) The doctrine before the act was that when there was a devise to the testator's heir, the devisee was considered to take the land by his prior title as heir, and not under the will, unless the testator altered the estate, and limited it in a manner different from that in which it would have descended to the heir. See Lord Raym. 728, 829; 2 W. Bl.

687; and the case was the same even if there was an executory devise over. Doe d. Pratt v. Timmins, 1 B. & Al. 530; Manbridge v. Plummer, 2 M. & K. 93; Watk. Desc. 229, 231. Upon this section, see Honeywood v. Honeywood, 34 Beav. 317.

(k) Co. Litt. 15 a n.; 32 a ; 3 Rep. 42 a; Doe v. Keen, 7 T. R. 390; Doe v. Whichelo, 8 T. R. 213.

(1) Paterson v. Mills, 19 L. J. Ch. 310; Cooper v. France, ib. 313

poses of further devolution of title a purchaser, or "break the descent" as it is termed. But as to what dealings with the estate will have this effect, questions of some nicety sometimes arise.

Before the recent act the law distinguished between the cases where a man who died intestate seised of lands had inherited them from his father and where from his mother; and if the intestate had inherited from his mother then the heir was to be sought ex parte materná as it was called (m). Thus, if Mary Farrifield was seised of law, and having married John Sandie, died a widow, leaving a son William Sandie; William Sandie, being his mother's *heir-at-law, succeeded to the land. If then William Sandie died seised [*376] intestate and without having in any manner dealt with the land, the descent was to be traced not according to the then usual rule from William Sandie simpliciter as the person last seised, but from William Sandie ex parte materná through the mother's blood. It will be seen that in some respects this was like the present rule of seeking the heir by descent from the last purchaser and not the last person who died seised. Now it was held as a settled doctrine that William Sandie, in the case we have put, could in many ways break the descent, so as to constitute himself a stock of descent according to the common rule. Thus, if he made a feoffment in fee, so as to part with the estate absolutely and then took a reconveyance, the descent was broken (n), but if he made a conveyance for the purpose of creating particular estates, and limited the ultimate fee to himself, this was held to be the same estate that he had before and it descended to the heir ex parte materna. The estate which is taken back must be in reality a new estate, and not merely a part of the old estate, unless it comes within the enactment already quoted (o). The same principles now apply to determine by what means a person who has inherited may constitute himself a purchaser (p).

[*377]

The last part of the rule provides for a case in which *much hardship might ensue without the provision which it makes. Thus, if lands descend from a foundling to his issue, then on failure of such issue there would be no heir, yet the person who last enjoyed the land might through his maternal ancestors have an heir, to whom naturally it would seem the lands ought to descend rather than that there should be an escheat. Accordingly this provision was introduced by a recent act to meet such a case (q).

(m) Litt. s. 4.

(n) Co. Litt. 12 a. 126, & Harg. n.; Price v. Langford, Salk. 337; 1 Show. 92. This case seems hard to reconcile with the subsequent case, Abbot v. Burton, Salk. 590. Where a person made a mortgage in fee by surrender of copyhold lands which he had inherited from his mother, and afterwards the mortgagee on being paid off surrendered to the use of the mortgagor, it was held that the descent was broken, Doe v. Morgan, 7 T. R. 103. For other cases on the point, whether a descent is broken, see Hutcheson v. Hammond, 3 Bro. C. C. 128; Wood v. Skelton, 6 Sim. 176; Buchanan v. Harrison, 1 J. & H. 662.

(o) Ante, p. 374; Abbot v. Burton, Salk. 590.

(p) See Nanson v. Burnes, L. R. 7 Eq. 250; where an absolute surrender and conveyance to A. B., and a declaration of trust by A. B. in favour of the surrenderor and his appointees, was held not to break the line of descent. See also Davis v. Kirk, 2 K. & J. 391.

(q) In Doe v. Blackburn, 1 Moo. & Rob. 547, the case mentioned in the text occurred, and the heir of the last owner was defeated in an ejectment. That case was prior to 22 & 23 Vict. c. 35; under the present law, the claim would have been supported. The difficulty was foreseen by the real property commissioners (1st Rep. p. 15), but not provided for by the Inheritance Act. For some further remarks upon this part of the law of descent, see post, p. 397.

to lineal ancestors.

II. The second rule is that an inheritance shall descend to the issue of the last purchaser, and that on failure of issue of the last purchaser, the inheri(II.) Inheritance tance shall go to his lineal ancestors, or their issue; each of the descends to issue of purancestors taking in preference to his issue, but so that a nearer chaser, and then lineal ancestor and his issue are to be preferred to a more remote lineal ancestor and his issue other than such nearer ancestor or his issue (r). This rule, as regards the latter part of it, was a great change from the former rule of descent in which no parent or other lineal ancestor I could be heir a rule probably founded on feudal reasons. For it was an express rule of the feudal law (s), that successionis feudi talis est natura, quod ascendentes non succedunt; and therefore the same maxim obtained * also in the French law till recently (t). Our Henry I., indeed, [* 378]

among other restorations of the old Saxon laws, restored the right of succession in the ascending line (u): but this soon fell again into disuse; for so early as Glanvil's time, who wrote under Henry II., we find it laid down as established law (x), that hæreditas nunquam ascendit; which remained an invariable maxim, until altered by the Inheritance Act, so as to accord more with our sense of a natural course of succession.

This rule has put an end to the possibility which formerly not uncommonly existed, of estates which have once vested afterwards being divested by the subsequent birth of a nearer heir, with the single exception of the case of a posthumous child. Formerly, when an estate might descend to a sister, or an uncle or aunt, during the lifetime of the father or grandfather of the intestate, by the birth, after any interval, however long, of a brother, or, as the case might be, a sister or an uncle, the estate would devest and go to such nearer heir (y). This can now never happen, except in the case above noticed, because all such cases supposed the existence of a lineal ancestor, who now would take in priority to all such brothers, sisters, uncles, or aunts. In the case of a posthumous child alone, then, can this devesting now take place. During the interval, before the birth of such child, the rents and profits will now belong to the person who, but for him, would be heir, as was considered to be the case formerly in the instances above noticed (z).

* III. The third rule, or canon of descent, is this: scendants repre- that the lineal descendants, in infinitum, of any person

(III.) Lineal desent their ances

[*379] tor in infinitum. deceased shall represent their ancestor: that is, shall stand in the same place as the person himself would have done, had he been living. Thus, the child, grandchild, or great-grandchild, either male or female, of

(r) The words of the act (3 & 4 Will. 4, c, 106, s. 6) are "That every lineal ancestor shall be capable of being heir to any of his issue; and in every case where there shall be no issue of the purchaser, his nearest lineal ancestor shall be his heir, in preference to any person who would have been entitled to inherit, either by tracing his descent through such lineal ancestor, or in consequence of there being no descendant of such lineal ancestor; so that the father shall be preferred to a brother or sister, and a more remote lineal ancestor to any of his issue, other than a nearer lineal ancestor, or his issue." Sec. 6.

(8) 2 Feud. 50.

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