case never yet occurred in practice) (35) to give the preference to no 10 before n° 11; for the following reasons; 1. Because this point was not the principal question in the case of Clere and Brooke: but the law concerning it is delivered obiter only, and in the course of argument by justice Manwoode; though afterwards said to be confirmed by the three other justices in separate, extrajudicial conferences with the reporter. 2. Because the chief justice, Sir James Dyer, in reporting the resolution of the court in what seems to be the same case, (w) takes no notice of this doctrine. 3. Because it appears from Plowden's report that very many gentlemen of the law were dissatisfied *with this position of [*239] Justice Man woode; since the blood of n° 10 was derived to the purchaser through a greater number of males than the blood of no 11, and was therefore in their opinion the more worthy of the two. 4. Because the position itself destroys the otherwise entire and regular symmetry of our legal course of descents, as is manifest by inspecting the table: wherein n°16, which is analogous in the maternal line to n° 10 in the paternal, is preferred to no 18, which is analogous to n° 11, upon the authority of the eighth rule laid down by Hale himself: and it destroys also that constant preference of the male stocks in the law of inheritance, for which an additional reason is before (x) given, besides the mere dignity of blood. 5. Because it introduces all that uncertainty and contradiction, which is pointed out by that ingenious author; (y) and establishes a collateral doctrine (viz.: the preference of n° 11 to n° 10) seemingly, though perhaps not strictly, incompatible with the principal point resolved in the case of Clere and Brooke, viz.: the preference of n° 11 to n° 14. And, though that learned writer proposes to rescind the principal point then resolved, in order to clear this difficulty; it is apprehended, that the difficulty may be better cleared, by rejecting the collateral doctrine, which was never yet resolved at all. 6. Because the reason that is given for this doctrine by Lord Bacon (viz.: that in any degree, paramount the first, the law respecteth proximity, and not dignity of blood) is directly contrary to many instances given by Plowden and Hale, and every other writer on the law of descents. 7. Because this position seems to contradict the allowed doctrine of Sir Edward Coke; (2) who lays it down. (under different names) that the blood of the Kempes (alias Sandies) shall not inherit till the blood of the Stiles's (alias Fairfields) fail. Now the blood of the Stiles's does certainly not fail, till both n° 9 and no 10 are extinct. Wherefore n° 11 (being the blood of the Kempes) ought not to inherit till then. 8. Because in the case, Mich. 12 Edw. IV, 14, (a) (much relied on in that of Clere and Brooke) it is laid down as a rule, that "cestuy, que doit inheriter al pere, doit inheritor al fils." (b) And so Sir Matthew Hale (c) says, "that though the law excludes the father from inheriting, yet it substitutes and directs the descent as it should have been had the father inherited. (36) Now it is settled, by the resolution of Clere *and Brooke, that n° 10 should have inherited before [*240] n° 11 to Geoffrey Stiles, the father, had he been the person last seised; and therefore n° 10 ought also to be preferred in inheriting to John Stiles, the son. In case John Stiles was not himself the purchaser, but the estate in fact came to him by descent from his father, mother or any higher ancestor, there is this difference; that the blood of that line of ancestors, from which it did not descend, can never inherit: as was formerly fully explained. (d) And the like rule, as there exemplified, will hold upon descents from any other ancestors. The student should also bear in mind, that during this whole process, John Stiles is the person supposed to have been last actually seised of the estate For

(w) Dyer, 314.
(z) Co. Litt. 12.
(b) See page 223.

(x) Pages 235, 6, 7. Hawk, abr, in loc.

(c) Hist. C. L. 243.

(y) Law of Inheritance, 2d edit, pages 30 31. 61, 62, 66. (a) Fitzh. Ab. tit. discent. 2. Bro. Abr. tit. discent. 3. (d) See page 236.

(35) [The point has since arisen, and been decided in favor of the learned commentator's opin ion. Davies v. Lowndes, 7 Scott, 22, 56. And the legislature has adopted the same rule. Infra, p. 240, note.]

(36) [This rule, however, does not apply in all cases; for a brother of the half blood would suc ceed to the father, though he could not to the son.]

if ever it comes to vest in any other person, as heir to John Stiles, a new order of succession must be observed upon the death of such heir; since he, by his own seisin, now becomes himself an ancestor or stipes, and must be put in the place of John Stiles. The figures therefore denote the order in which the several classes would succeed to John Stiles, and not to each other: and before we search for an heir in any of the higher figures (as n° 8), we must be first assured that all the lower classes (from n° 1 to n° 7) were extinct, at John Stiles's decease. (37)

CHAPTER XV.

OF TITLE BY PURCHASE.

AND

I, BY ESCHEAT.

PURCHASE, perquisitio, taken in its largest and most extensive sense, is thus defined by Littleton; (a) the possession of lands and tenements, which a man hath by his own act or agreement, and not by descent from any of his ancestors or kindred. In this sense it is contradistinguished from acquisition by right of blood, and includes every other method of coming to an estate, but merely that by inheritance, (1) wherein the title is vested in a person, not by his own act or agreement, but by the single operation of law. (b)

Purchase, indeed, in its vulgar and confined acceptation, is applied only to such acquisitions of land, as are obtained by way of bargain and sale for money, or some other valuable consideration. But this falls far short of the legal idea of purchase for, if I give land freely to another, he is in the eye of the law a purchaser, (c) and falls within Littleton's definition, for he comes to the estate

:

(37) Some of the important changes made in the English law of descents by the statute 3 and 4 Wm. IV, c. 106, have been referred to in the preceding notes. Mr. Sweet gives the following as the existing canons of descent under that statute:

1. The de cent shall be traced from the last purchaser, or the last person entitled to the land who cannot be proved to have inherited it.

2. That inheritances shall lineally descend to the issue of the last purchaser.

3. That on failure of issue of the last purchaser, the inheritance shall go to his nearest lineal ancestor, or his issue; the ancestor taking in preference to his issue, but so that a nearer lineal ancestor and his issue are to be preferred to a more remote lineal ancestor and his issue, other than such nearer lineal ancestor or his issue.

4. That a relation of the whole blood, and his or her issue, shall be preferred to a relation of the same degree of the half blood, and his or her issue. Collateral relatives of the half blood may therefore inherit, but after the common ancestor, and after collateral relations of the whole blood.

5. Each male ancestor and his ancestors, whether male or female, and his and their issue, shall be preferred to all other female ancestors and their ancestors, whether male or female, and their issue.

6. That the male issue shall be admitted before the female.

7. That when there are two or more males in equal degree, the eldest only shall inherit; but the females altogether.

8. That (subject to the third rule) a parent shall be preferred to his issue; but the issue in infinitum of any person deceased shall represent their ancestor; that is shall stand in the same place as he would have done had he been living.

For the rules of descent prevailing in the United States, the reader is referred to 4 Kent Com. Lec. 75. The differences between them and the English rules are alluded to in the preceding notes, but there is not such uniformity in the American statutes as to make any attempt at an analysis of them in this place desirable.

(1) See reference to statute 3 and 4 Wm. IV, c. 106, in note to p. 201.

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489

by his own agreement; that is, he consents to the gift. A man who has his father's estate settled upon him in tail, before he was born, is also a purchaser; for he takes quite another estate than the law of descents would have given him. Nay, even if the ancestor devises his estate to his heir at law by will, with other limitations, or in any other shape than the course of descents would direct, such heir shall take by purchase. (d) But if a man seised in fee, devises his whole estate to his heir at law, so that the heir takes neither a greater nor a [ *242 ] less estate by the *devise than he would have done without it, he shall be adjudged to take by descent, (e) (2) even though it be charged with incumbrances; (f) this being for the benefit of creditors, and others, who have demands on the estate of the ancestor. If a remainder be limited to the heirs of Sempronius, here Sempronius himself takes nothing; but if he dies during the continuance of the particular estate, his heirs shall take as purchasers. (g) But if an estate be made to A for life, remainder to his right heirs in fee, his heirs shall take by descent: for it is an ancient rule of law, that whenever the ancestor takes an estate for life, the heir cannot by the same conveyance take an estate in fee by purchase, but only by descent. (h) (3) And if A dies, before entry, still his heirs shall take by descent, and not by purchase: for where the heir takes any thing that might have vested in the ancestor, he takes by way of descent. (i) The ancestor, during his life, beareth in himself all his heirs; (k) and therefore, when once he is or might have been seised of the lands, the inheritance so limited to his heirs vests in the ancestor himself: and the word "heirs" in this case is not esteemed a word of purchase, but a word of limitation, enuring so as to increase the estate of the ancestor from a tenancy for life to a fee-simple. (4) And, had it been otherwise, had the heir (who is uncertain till the death of the ancestor) been allowed to take as a purchaser originally nominated in the deed, as must have been the case if the remainder had been expressly limited to Matthew or Thomas by name; then, in the times of strict feudal tenure, the lord would have been defrauded by such a limitation of the fruits of his signiory arising from a descent to the heir.

What we call purchase, perquisitio, the feudists called conquests, conquæstus, or conquisitio: (1) both denoting any means of acquiring an estate out of the common course of inheritance. And this is still the proper phrase in the law [ *243 ] of Scotland: (m) as it was among the Norman jurists, who styled *the first purchaser (that is, he who brought the estate into the family which at present owns it) the conqueror or conquereur. (n) Which seems to be all that was meant by the appellation which was given to William the Norman, when his manner of ascending the throne of England was, in his own and his successor's charters, and by the historians of the times, entitled conquæstus, and himself conquestor or conquisitor; (0) signifying that he was the first of his family who acquired the crown of England, and from whom therefore all future

(d) Lord Raym. 728. (g) 1 Roll. Abr. 627.

(e) 1 Roll. Abr. 626. (f) Salk. 241. Lord Raym. 728. (h) 1 Rep. 104. 2 Lev. 60. Raym. 334. (i) Shelley's Case, 1 Rep. 98. (1) Craig. 1. 1, t. 10, § 18. (m) Dalrymple of Feuds, 210. (n) Gr. Coustum. Gloss. c. 25, page 40. (0) Spelm. Gloss, 145.

(k) Co. Litt. 22.

(2) [This rule was abrogated by the Inheritance Act, 3 and 4 Wm. IV, c. 106, 3. Even before that statute, if the devise to the heir gave him a different estate to that which he would have taken by descent, he took under the devise. Lord Raym. 728. The origin of the old rule of law seems to have been similar to that stated in the text as the ground of the rule in Shelley's Case, viz. the advantage of the lord. An heir who is made devisee may now disclaim the devise and take as heir, though such a course is never adopted, since no advantage can arise from it.]

(3) That is, as her he cannot take under the conveyance otherwise than by descent; but if an estate is given to A for life, there is nothing in the rules of law to preclude the remainder in fee being given by the same conveyance to the person who will be heir to A, provided some other word than the technical one of "heir" is employed to designate him.

(4) [This is the rule or maxim known among lawyers, as "the rule in Shelley's Case." 1 Co. 88; see Harg. and Butl. Co. Litt. 376, B. N. 1o; Fearne Cont. Rem. 28; Preston on Estates,! vol. 263 to 419.]

And see 2 Washb. Real Prop. 268 to 276.