the period, within which that right can be asserted, to twenty years, from the time at which it first accrued.

*

This right is deemed to have first accrued when the person who claims the land, or some person through whom he claims, was dispossessed, or discontinued his possession or receipt of rent, in case he was previously in possession; but as this limitation might produce hardship in cases where the person entitled laboured under disability at the time of his right accruing, infants, women under coverture, idiots, lunatics or persons of unsound mind, and those who were beyond seas, have ten years further allowed them, from the time of their ceasing to be under their several disabilities. To prevent, however, the title of an actual possessor being held too long in suspense, the extreme period of forty years is fixed, beyond which no person, whether under disability or no, can have any remedy; so that if a right accrue to a person under disability, who continues so during forty years, he is wholly barred.

As to advowsons a longer period is fixed, during which the right may be recovered; namely, sixty years, or three successive incumbencies. But here also the extreme period of a hundred years is fixed, beyond which no remedy remains to the person claiming.

As a general rule, then, possession for a period of twenty years, without payment of rent, or acknowledgment of the title of any other person, constitutes a sure and sufficient title. And, therefore, where the overseer of parish let a person into possession of a cottage, a part of the parish property, at the rent of 1s. 6d. a-week, to quit at a month's notice, and the tenant remained for twenty years without paying rent or making any acknowledgment, his title was held to be unassailable. Bare possession had here, by effluxion of time, matured into a right of property, which constituted a complete title against all the world.

* After 1st January, 1879, twelve years.

CHAPTER XI.

OF TITLE BY DESCENT.

THE several manners in which real property may be lost and acquired, are, by our law, two in number: descent, where the title is vested in a man by the operation of law; and purchase, where the title is vested in him by his own act or agreement.

Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation. An heir, therefore, is he upon whom the law casts the estate on the death of the ancestor; and an estate, so descending, is in law called the inheritance. The doctrine of descent is accordingly the principal object of the laws of real property. For all the rules relating to purchases, whereby the legal course of descents is altered, perpetually refer to this law of inheritance, as a datum or first principle universally known, and upon which their subsequent limitations are to work. In order therefore, to treat a matter of this consequence more clearly, I shall lay aside such matters as tend to embarrassment or confusion; and confine my remarks in this place to the common law doctrine of descents, as modified by the statute 3 & 4 Will. IV. c. 106, which is now the law of inheritance in England.

These modern rules or canons of inheritance, operate upon no descent which took place before the 1st January, 1834. When therefore, an heir is to be sought for a succession which opened up previously to that date, the old rules of inheritance must be consulted; to which I must shortly allude, not only on that account, but also to enable the student to understand more readily the alterations which been made therein.

Firstly, then, by law no inheritance can vest, nor can any person be the heir of another, till the ancestor is dead. Nemo est hæres viventis. Before that time the person next in the line of succession is called an heir apparent, or heir presumptive. Heirs apparent are such whose right of inheritance is indefeasible, provided they outlive the ancestor; as the eldest son, who must be heir to the father whenever he dies. Heirs presumptive

are such who, if the ancestor should die immediately, would in the present state of things be his heirs; but whose right of inheritance may be defeated by a nearer heir being born: as a brother, or nephew, whose presumptive succession may be destroyed by the birth of a child; or a daughter, whose present hopes may be cut off by the birth of a son. Nay, even if the estate has descended, by the death of the owner, to such brother, or nephew, or daughter; in the former cases, the estate shall be divested and taken away by the birth of a posthumous child; and, in the latter, it shall also be divested by the birth of a posthumous son.

Now, it was formerly a rule of law, that no person could be such an ancestor, as that an inheritance could be derived from him, unless he had had actual seisin of the lands, either by his own entry, by the possession of his own or his ancestor's lessee, or by receiving rent. The law required this notoriety of possession, as evidence that the ancestor had that property in himself which was to be transmitted to his heir; and he was not accounted an ancestor, therefore, who had had only a bare right to enter or be otherwise seised. Seisin therefore made a person the root or stock, from which inheritance by right of blood was to be derived. Seisina facit stipitem. The right was not regarded, until the rule was altered by the statute already mentioned; and the person last entitled made the root of descent.

Under the old law, again, when a person died seised, the inheritance first went to his issue. Thus, if there were Geoffrey, John, and Matthew, grandfather, father, and son; and John purchased lands, and died; Matthew succeeded him as heir; but in no case whatever could the grandfather Geoffrey do so. The land could never ascend, but was rather allowed to escheat to the lord; the rule being, 1, that inheritances should lineally descend to the issue of the person who last died actually seised, in infinitum; but, 2, should never lineally ascend. So far as it relates to descents, this rule is almost universally adopted by all nations. But the total exclusion of lineal ancestors was peculiar to our own laws; and after being long and loudly censured, was entirely abrogated. Two ancient rules of law have, therefore, yielded to what I call the modern canons of descent, viz.:—

I. "Descent shall be traced from the purchaser; the person

M

"last entitled being considered to have been the purchaser "unless he be proved to have inherited."

II. "Inheritances shall lineally descend to the issue of the "purchaser."

The next three canons of descent are the same as the old rules of law, viz. :

III. "The male issue shall be admitted before the female."

Thus sons shall be admitted before daughters; or, as our male lawgivers have expressed it, the worthiest of blood shall be preferred; a preference which seems to have arisen entirely from the feudal law. For though our British ancestors appear to have given a preference to males, yet our Danish predecessors seem to have admitted all the children to the inheritance. This preference may possibly therefore be a relic of that imperfect system of feuds, which obtained before the Conquest; but the reason of it must be deduced from feudal principles: for no female could ever succeed to a proper feud, being incapable of performing those military services, for the sake of which that system was established. Our law, however, does not totally exclude females, as the Salic law, and others, where feuds were most strictly retained: it only postpones them to males; for, though daughters are excluded by sons, yet they succeed before any collaterals. For,

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IV. “Where there are two or more males, in equal degree, the eldest only shall inherit; but the females all together."

This right of primogeniture in males seems anciently to have only obtained among the Jews, among whom the eldest son had a double portion. The Greeks, the Romans, the Britons, the Saxons, and even originally the feudists, divided the lands equally; some among all the children at large, some among the males only. But when honorary feuds, or titles of nobility began it was founa necessary, in order to preserve their dignity, to make them impartible, and descendible to the eldest son alone; who succeeded consequently to the whole of the lands in military tenure: and thus it was established by William the Conqueror.

Socage estates often descended to all the sons equally, so lately

as the reign of Henry II.; and it is said in the Mirror, that knights' fees should descend to the eldest son, and socage fees should be partible among the male children. In the time of Henry III., however, socage lands, in imitation of lands in chivalry, had almost entirely fallen into the line of succession by primogeniture; except in Kent, where they preserved their ancient gavelkind tenure, of which a principal branch was the joint inheritance of all the sons; and, except in some particular manors where the local custom continued the descent sometimes to all, sometimes to the youngest son only, or in other more singular methods of succession.

As to the females, they are still left as they were: for they were all equally incapable of performing any personal service; and, therefore, one main reason of preferring the eldest ceasing, such preference would have been injurious to the rest. However, the succession by primogeniture, even among females, took place as to the inheritance of the crown. And the right of sole succession, though not of primogeniture, was also established with respect to female dignities and titles of honour. For, if a man holds an earldom to him and the heirs of his body, and dies, leaving only daughters; the eldest shall not of course be countess, but the dignity is in abeyance till the crown shall declare its pleasure; for the sovereign being the fountain of honour, may confer it on which of them he pleases.

V. "The lineal descendants, in infinitum, of any person 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 the eldest son, succeeds before the younger son, and so in infinitum. And these representatives shall take neither more nor less, but just so much as their principals would have done; which is called succession per stirpes, according to the roots.

This is a necessary consequence of the double preference given, first, to the male issue, and next to the first-born among the males. For, if all the children of three deceased sisters were to claim the grandfather's estate, per capita, without any