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reason why it might not be taken by a creditor, or a volunteer, as well as by the personal representative. (Id. Mooers v. White, supra. Wilcox v. Smith, supra. Willard on Executors, 317.)

With respect to an application by a creditor to the surrogate for an order on the executors or administrators to show cause why he should not be required to mortgage, lease or sell so much of the real estate as may be necessary to pay the debts of the deceased, there is no limitation of time within which it may be made. In this respect it is the same as the former statute in relation to the application of executors and administrators. And yet, under that statute, Chancellor Kent held that the application should be made within a year from the granting of letters testamentary or of administration. (Mooers v. White, supra.) And the supreme court, without prescribing any definite period, expressed an opinion that the lapse of fourteen years between the granting of administration and an application to a surrogate for the sale of real estate, was a sufficient cause, without explanation, for the rejection of the application. (Jackson v. Robinson, 4 Wend. 436.) In the last mentioned case, the question arose in an action of ejectment brought by a party claiming title under a deed executed by an administratrix under and in pursuance of a sale by virtue of the order of the surrogate made while the law of 1813 was in force. It did not appear that the objection had been taken before the surrogate, that an unreasonable period had elapsed between the granting of the letters and the application for the order of sale. The defendant claimed under a deed from the heirs at law, and raised this question for the first time on the trial of the ejectment, and called upon the court to hold that the sale under the surrogate's order was void. But the court, while holding that the surrogate should, in the absence of satisfactory explanation, have denied the order of sale, had the objection been taken, thought it could not be pronounced void in this collateral action. The proper remedy doubtless was to raise the objection before the surrogate, and on its being overruled, appeal.

It was perhaps impossible to prescribe a limit within which a creditor might be required to make the application. In most cases it may be presumed that estates will be fully settled up during the period which the law has given to the executors and administrators for that purpose. The right given to the creditors to become actors probably applies only to the exceptional cases of neglect of the

personal representatives to make the application within the time prescribed for them. Public policy, says Chancellor Kent, in Moores v. White, (supra,) requires that a power of such formidable import, and which affects the bona fide purchaser equally with the devisee, should be strictly construed. Nor will the creditor for whose benefit the whole provision is intended, be materially affected. In analogy to the cases of Mooers v. White, and Jackson v. Robinson, (supra,) it would seem that the surrogate should limit the creditor to a period not exceeding a year from the expiration of the three years from the date of the letters testamentary or of administration, unless under peculiar circumstances, a longer time might be adjudged necessary consistently with sound policy and justice. The defense should be interposed before the surrogate at the time for showing cause.

The real estate may also be charged by the testator with the payment of debts and legacies. Such charge will be an incumbrance on it in whose hands soever it may be. It will be necessary for the conveyancer who investigates the validity of the title, to examine the last will and testament of the former owner to see whether the real estate is well charged with debts or legacies, and to ascertain whether those debts and legacies have been paid off and extinguished.

To inquire what language in a will operates to create a charge upon the real estate of the testator, a more appropriate occasion will arise, when we come, in a subsequent chapter, to consider the doctrine of wills and devises. We shall therefore postpone a more full discussion of this branch of our subject, till then. (See post, ch. 9, § 4.)

CHAPTER IV.

OF TITLE BY PURCHASE.

We stated in a former chapter, that the mode of acquiring title to real property might be reduced to two, by descent and purchase. In the former the title is vested in a person by the operation of law, and in the latter by the act and agreement of the party. If by the term purchase we are to understand with Littleton, that it embraces every other method of coming to an estate, but merely that

of inheritance, the reducing the number of modes by which a title can be acquired to two, descent and purchase, is sufficiently accurate for all purposes.

We have treated in the last chapter of title by descent. We shall treat in the present of title by purchase. It embraces, among others, the following methods of acquiring and defending the title to estates: 1. Escheat; 2. Forfeiture; 3. Prescription; 4. Adverse enjoyment; 5. Occupancy; 6. Election; 7. Estoppel; and 8. Alienation. We shall treat of them in their order.

SECTION I.

Of Escheat and Forfeiture.

It

1. An escheat is one of the incidents of the feudal tenures. denotes, according to the systematic writers on this subject, 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. (2 Bl. Com. 244.)

An escheat at common law is partly of the nature of a purchase, and partly of descent. It was a purchase so far as it was necessary for the lord to enter on the reverted property in order to complete his full ownership of it; and it was a descent because the escheated property followed the seignory, and was inherited along with it, by the lord's heir at law. It occurred in England on the death, intestate, of the tenant without heir capable of inheriting, and on his attainder for certain crimes.

The laws of this state declare that the people in their right of sovereignty are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of this state; and it is enacted, that all lands, the title to which shall fail from a defect of heirs, shall revert or escheat to the people. (1 R. S. 718, § 1.)

There are two cases with us in which lands escheat. First, when the tenant in fee dies seised, leaving no heir capable of inheriting the property, and making no valid disposition of it by will; and second, when lands are purchased by an alien who cannot hold as against the state. In both these cases, says Bronson, J. the property immediately reverts to, and vests in the people, as the original and ultimate proprietors of all the lands within the state. If there be an outstanding life estate, the people will not be entitled to the

possession until that estate has terminated; but this cannot affect their title to the fee. (The People v. Conklin, 2 Hill, 74.)

It would seem from the foregoing remarks of the learned judge, that to entitle the state to the real estate of the intestate by escheat, he must have died seised. But this is not required by the statute. In the case before the court, the testator having no relatives but aliens, devised to his wife for life, remainder in fee to aliens. It was held that the estate in remainder escheated on the testator's death, though the people could not enter until the life estate terminated.

Some of the cases decided in this state arose prior to the revised statutes, when the descent of real property was deduced from the person last seised. This was the case of Jackson v. Jackson, (7 John. 214,) in which it was held that if the next heir of the person last seised be an alien, the land does not therefore escheat, but goes. to a remoter heir, if there be any who is capable of taking.

By the common law, according to Mr. Cruise, if lands held in trust escheated to the king, he held them free from the trust. Such would have been the rule in this state, with reference to the people, who take the place of the king, but for our legislation on the subject. The revised statutes provide that all escheated lands, when held by the state or its grantees, shall be subject to the same trusts, incumbrances, charges, rents and services to which they would have been subject had they descended; and the supreme court, formerly the court of chancery, is empowered to direct the attorney general to convey such lands to the parties equitably entitled thereto according to their respective rights, or to such new trustee, as may be appointed by such court. (1 R. S. 718, § 2.)

Although all the lands within this state are declared to be allodial, so that the entire and absolute property is vested in the owners according to the nature of their respective estates; and all feudal tenures of every description, with all their incidents are abolished, an exception is made in favor of escheat, which instead of going to the lord as at common law, vests, we have seen, the estate in the people, with its burdens as well as benefits. (Id. § 3.)

The former practice in this state to obtain the possession of escheated lands was, under the statute of 24th March, 1801, (1 K. & R. 310,) by a writ of escheat, issued out of chancery on the application of the attorney general; and the inquisition found thereupon might be traversed; and on a traverse of it, the traverser was con

sidered as a defendant, and if he showed that the people had no title, though he proved nothing but a bare possession in himself, he was entitled to judgment. (The People v. Cutting, 3 John. 1.) The revised statutes have changed this practice, and substituted an action of ejectment, which is superseded in modern practice, under the code by a civil action. (1 R. S. 282; 1 id. 685, 5th ed.) The statute now contains suitable provisions for the recovery of escheated lands, and for fulfilling any contracts which may have been made by the person last seised, or by any person from whom his title is derived, so far as to convey the right and title of this state, pursuant to such contract, without any covenants of warranty or otherwise, and to allow all payments which may have been made on such contracts. It is not deemed expedient to give an abstract of the statute, or pursue the subject further.

2. We have a statute which treats of the recovery of forfeited estate. (1R. S. 284.) It assumes that such forfeiture may occur upon a conviction or outlawry for treason, and gives to the attorney general the same remedy to recover real estate so forfeited, as in the case of escheated land. That remedy, we have seen, is ejectment, or its substitute under the code. There has been no conviction and forfeiture for treason in this state since the revolution.

In an action brought by the people to recover lands escheated to the people or otherwise forfeited, the latter must prove that at the time of the commencement of the action they had a valid subsisting interest in the premises claimed, or right to recover the possession thereof. With respect to making out the proof of title in themselves, the people have an advantage over an individual. By right of sovereignty, they are deemed the owners of all the lands within the state, except such as have been granted to others, or have been lost by lapse of time. Hence it is enough for the people to prove in the first instance, that the premises in dispute were vacant and unoccupied, within a period necessary to constitute an adverse possession against them, and that the defendants subsequently entered or made claim to them. (Wendell v. The People, 8 Wend. 183. The People v. Dennison, 17 id. 313. The People v. Van Rensselaer, 5 Selden, 319.)

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