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Object of these Statutes. These statutes create no new estate, or keep that alive, which by the cominon law was determined, but merely dispose of an interest in being, to which by law there was no owner, and which was therefore left
to the first occupant. When there is a residue left, the statutes give it to the executors and administrators, instead of the first occupant, but they will not create a residue, on purpose to give it to either. They only meant to provide a certain instead of an uncertain owner to lands, which were nobody's; this being the only instance, wherein a title to real estate could be acquired by occupancy. In the case of a sole corporation, as the parson of a church, when he dies or resigns, though there be no actual owner of the land, till a successor be appointed, yet there is a legal, potential ownership, existing in contemplation of law, and the successor is entitled to the profits from the date the vacancy commenced.
Escheat to King or Lord. In all other instances, when the tenant dies intestate, and no owner is found in course of descent, the law vests an ownership in the king, or in the subordi. nate lord of the fee by escheat.
Deposits from River and Sea. So also in some cases, where the laws of other nations give a right by occupancy, as of an island rising in a river, or by the alluvion or dereliction of the waters, the law of England assigns an immediate owner. Bracton states, that if an island arise in the middle of a river, it belongs in common to those who have lands on each side thereof, but if it be nearer to one bank than the other, it belongs to him, who is proprietor of the nearer shore. If the island rise in the sea, it belongs to the crown. Lands gained from the sea, if the gain be by imperceptible degrees, belong to the owner of the land adjoining, for de minimis non curat lex, but if the gain be sudden and considerable, it belongs to the king, on the principle, that whatever has no other owner, is vested by law in the king. It is said that, when an owner of ground abutting on a river loses his ground imperceptibly by the actions of the waters, he has no remedy, but if the course of a river be changed by a sudden and violent flood, and thereby he loses his ground, he shall have as a recompense, what the river has left in any other place.
CHAPTER XVII.-TITLE BY PRESCRIPTION.
Defined. This exists, where a man can show no other title to what he claims, than that he, and those under whom he claims, have immemorially used to enjoy it. Custom is properly a local usage, and not annexed to a person; prescription is merely a personal usage. All prescription must be either in a man or his ancestors, or in a man and those whose estate he holds, which latter is called prescribing in a que estate. By the statute of limitations of Henry VIII, no person shall make any prescription by the seisin or possession of his ancestor, unless such seisin has been within threescore years next before such prescription made.
Things Prescribed for. Incorporeal Hereditaments. Nothing but incorporeal hereditaments can be claimed by prescription, as a right of way or common. No prescription can give a title to lands. But as in a right of way, there is no corporal seisin and the enjoyment will usually be at intervals, the right to enjoy it can only depend on immemorial usage.
In whom the Prescription is Laid. A prescription must be in him, that is tenant in the fee. A tenant for life, for years, at will, or a copyholder, cannot prescribe, by reason of the imbecility of their estates, for such estates commenced within the memory of man. The copyholder must prescribe under cover of the tenant in fee-simple.
Must have been a Grant. A prescription may not be for a thing, which cannot be raised by grant. The law allows prescription only in supply of the loss of a grant, and hence every prescription presupposes a grant to have existed.
Matters of Record cannot be Prescribed for. What is to arise by matter of record cannot be prescribed for, but must be claimed by grant, entered of record, such as the royal franchise of deodands and felon's goods. These not being forfeited, until the matter on which they arise is found by the inquisition of a jury, are made a matter of record, and the forfeiture cannot be claimed by an inferior title. But the franchises of treasure-trove, waifs, estrays and the like may be claimed by prescription, for they arise from private contingencies, and not from any matter of record.
In a Que Estate. Among things incorporeal, which may be claimed by prescription, a distinction is made as to the manner of prescribing, that is whether a man shall prescribe in a que estate, or in himself and his ancestors. In a que estate, that is, in himself and those whose estate he holds, nothing is claimable by this prescription but such things as are appurtenant to lands; but if he prescribes in himself and his ancestors, he may prescribe for anything that lies in grant, not only things that are appartenant, but also such as may be in gross.
Descendibility. Estates gained by prescription are not, of course, descendible to the heirs general, like other purchased estates, but are an exception to the rule. The prescription is rather to be considered as an evidence of a former acquisition, than as one de novo, and hence if a man prescribes for a right of way in himself and his ancestors, it will descend only to the blood of that line of ancestors, in whom he so prescribes, the prescription in this case being a species of descent. But if he prescribes for it in a que estate, it will follow the nature of that estate, in which the prescription is laid, and be inheritable in the same manner, whether acquired by descent or purchase, for every accessory follows the nature of its principal.
CHAPTER XVIII.-TITLE BY FORFEITURE.
Forfeiture Defined. Forfeiture is a punishment annexed by law to some illegal act or negligence in the owner of lands, tenements or hereditaments, whereby he loses all his interest therein, and they go to the party injured, as a recompense for the wrong which he alone, or the public with himself, has sustained.
How it may Occur. Forfeiture may occur in various degrees, and by various means:
1. By crimes and misdemeanors.
1. Crimes and Misdemeanors. The offences, which induce a forfeiture of lands and tenements to the crown are :
(1) Treason. (2) Felony. (3) Misprison of treason. (4) Praemunire. (5) Drawing a weapon on a judge, or striking a person in a court of justice. (6) Recusancy.
II. Alienation Contrary to Law. This is either alienation in mortmain, alienation to an alien, or alienation by particular tenants. In the two former cases, the forfeiture arises from the incapacity of the alienee to take; in the latter from the incapacity of the alienor to grant.
In Mortmain. This alienation in mortua manu, is an alienation of lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal. These purchases were chiefly made by religious houses, in consequence whereof, the lands became perpetually inherent in one dead hand, the statutes permitting which having been skillfully contrived.
License to Corporations. By the common law, a man might dispose of his lands to another man at his own discretion. Yet it was necessary for corporations to have a license in mortmain from the crown, to enable them to purchase lands, for the king, as the ultimate lord of the fee, ought not, except with his own consent, to lose his privilege of escheats, and other feudal profits, by the vesting of lands in tenants, who can never be attainted or die. Where there was an intermediate lord, his license must also be obtained for the alienation of the specific land. If no license was obtained, the king or other lord might enter on the land so aliened in mortmain, as a forfeiture.
The Law Evaded. The ingenuity and influence of the clergy led to a novel contrivance to evade the prohibition, by having the tenant, who desired to alienate, first convey his lands to the religious houses, and instantly take them back again to hold as tenant to the monastery; which instantaneous seisin occasioned no forfeiture, and then by pretext of some other forfeiture, surrender or escheat, the society entered into the lands, as immediate lords of the fee. By the charter of Henry III, all such attempts were made void, and the land forfeited to the lord of the fee.
Fictitious Title by Common Recovery. But as this prohibition extended only to religious houses, bishops and other sole corporations were not included therein, and the law was again evaded, which produced the statute of Edward I, as a presumed sufficient security against alienations in mortmain. The religious houses now began to set up a fictitious title to the land, and to bring an action to recover it from the tenant, who, by collusion, made no defence, and thereby judgment was given for the religious house, which then recovered the land on supposed prior title. Thus were invented those fictitious adjudications of right, termed common recoveries. A statute thereupon enacted, that in such cases a jury should decide the demand of the religious house, and if adverse to its claim, the land should revert to the lord or the king. Then came the statute of quia emptores, which abolished all subinfeudations, and gave liberty to all men to alienate their lands, to be held of their next immediate lord, and a proviso was inserted, that this should not authorize alienation in mortmain.
1 The statute as to recusancy is repealed.
Uses and Trusts. Ecclesiastical ingenuity then devised a new plan of conveyance, by which lands were granted to nominal feoffees, to the use of religious houses, whereby they received the actual profits, while the seisin remained in the nominal feoffee, who accounted for the rents to his cestui que use. Thus was introduced uses and trusts, the foundation of modern conveyancing. But by statute of Henry VIII, all future grants of lands for such purposes were to be void, if granted for more than twenty years.
Exception as to Licenses by the Crown. During all this time, the crown, by granting a license of mortmain, could remit the forfeiture, so far as it related to its own rights, and enable a corporation to hold lands in perpetuity.
Gifts for Charitable Uses. By statute of George II, it was enacted, that no lands or tenements shall be given or charged with any charitable uses, unless by deed, executed before two witnesses twelve months before the death of the donor, and enrolled in the chancery court within six months after its execution; and unless such gift be made to take effect immediately, and be without power of revocation, and that all other gifts should be void. An exception was made as to the two universities and certain colleges.
2. Alienation to an Alien. This is cause for forfeiture to the crown of the land so alienated.