remote, shall be admitted before those from the blood of the female, however near); unless where the lands have, in fact, descended from a female.

Thus the relations on the father's side are admitted in infinitum, before those on the mother's side are admitted at all; and the relations of the father's father, before those of the father's mother, and so on.

Purchase, perquisitio, taken in its largest and most extensive sense, is thus defined by Littleton: 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: wherein the title is vested in a person not by his own act or agreement, but by the single operation of law.

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, and falls within Littleton's definition, for he comes to the estate 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. 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 less estate by the devise than he would have done without it, he shall be adjudged to take by descent, even though it be charged with incumbrances: 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. 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. And if A dies before entry, still his heirs. shall take by descent, and not by purchase; for where the heir takes anything that might have vested in the ancestor, he takes by way of descent. The ancestor, during his life, beareth in himself all his heirs; 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, inuring so as to increase the estate of the ancestor from a tenancy for life to a fee-simple.

Difference in Acquisition of Estate by Purchase and by De

scent.

The difference, in effect, between the acquisition of an estate by descent and by purchase, consists principally in these two points: 1. That by purchase the estate acquires a new inheritable quality, and is descendible to the owner's blood in general, and not the blood only of some particular ancestor. For, when a man takes an estate by purchase he takes it not ut feudum paternum or maternum, which would descend only to the heirs by the father's or mother's side; but he takes it ut feudum antiquum, as a feud of indefinite antiquity, whereby it becomes inheritable to his heirs general, first of the paternal and.then of the maternal line. 2. An estate taken by purchase will not make the heir answerable for the acts of the ancestor, as an estate by descent will. For if the ancestor, by any deed, obligation, covenant or the like, bindeth himself and his heirs, and he dieth, this deed, obligation, or covenant shall be binding upon the heirs so far forth only as he (or any other in trust for him) had any estate of inheritance vested in him by descent from (or any estate pur auter vie coming to him by special occupancy, as heir to) that ancestor, sufficient to answer the charge; whether he remains in possession, or hath aliened it before action brought; which sufficient estate is in the law called assets; from the French word assez, enough. Therefore, if a man covenant, for himself and his heirs, to keep my house in repair, I can then (and then only) compel his heir to perform this covenant, when he has an estate sufficient for this purpose, or assets, by descent from the covenanter; for though. the covenant descends to the heir, whether he inherits any estate or no, it lies dormant, and is not compulsory, until he has assets by descent.

Five Modes of Acquiring Title by Purchase.

This is the legal signification of the word perquisitio, or pur

chase, and in this sense it includes the five following methods of acquiring a title to estates: 1, Escheat. 2, Occupancy. 3, Prescription. 4, Forfeiture. 5, Alienation. Of all these in their

order.

Escheat.

I. Escheat, we may remember, was one of the fruits and consequences of feodal tenure. With us it denotes 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.

But it must be remembered that, in order to complete this title by escheat, it is necessary that the lord perform an act of his own, by entering on the lands and tenements so escheated, or suing out a writ of escheat; on failure of which, or by doing any act that amounts to an implied waiver of his right, as by accepting homage or rent of a stranger who usurps the possession, his title by escheat is barred. It is therefore in some respects a title acquired by his own act, as well as by act of law.

The law of escheats is founded upon this single principle, that the blood of the person last seised in fee-simple is, by some means or other, utterly extinct and gone; and since none can inherit his estate but such as are of his blood and consanguinity, it follows, as a regular consequence, that when such blood is extinct, the inheritance itself must fail: the land must become what the feodal writers denominate feudum apertum; and must result back again to the lord of the fee, by whom, or by those whose estate he hath, it was given.

Divisions of Escheats.

Escheats are frequently divided into those propter defectum sanguinis, and those propter delictum tenentis: the one sort, if the tenant dies without heirs; the other, if his blood be attainted. But both these species may well be comprehended under the first denomination only; for he that is attainted suffers an extinction of his blood, as well as he that dies without relations. The inheritable quality is expunged in one instance, and expires in the other. Deficiency of Inheritable Blood.

Escheats therefore arising merely upon the deficiency of the blood, whereby the descent is impeded, their doctrine will be better illustrated by considering the several cases wherein hereditary blood may be deficient than by any other method whatsoever.

1, 2, 3. The first three cases, wherein inheritable blood is wanting, may be collected from the rules of descent laid down and explained in the preceding chapter, and therefore will need very

little illustration or comment. First, when the tenant dies without any relations on the part of any of his ancestors; secondly, when he dies without any relations on the part of those ancestors from whom his estate descended; thirdly, when he dies without any relations of the whole blood.

4. A monster, which hath not the shape of mankind, but in any part evidently bears the resemblance of the brute creation, hath no inheritable blood, and cannot be heir to any land, albeit it be brought forth in marriage; but, although it hath deformity in any part of its body, yet if it hath human shape it may be heir. But our law will not admit a birth of this kind to be such an issue as shall entitle the husband to be tenant by the curtesy; because it is not capable of inheriting. And therefore, if there appears no other heir than such a prodigious birth, the land shall escheat to the lord.

Bastards.

5. Bastards are incapable of being heirs. Bastards, by our law, are such children as are not born either in lawful wedlock, or within a competent time after its determination. Such are held to be nullius filii, the sons of nobody. Being thus the sons of nobody, they have no blood in them, at least no inheritable blood: consequently none of the blood of the first purchaser: and therefore if there be no other claimant than such illegitimate children, the land shall escheat to the lord.

There is, indeed, one instance, in which our law has shown them some little regard; and that is usually termed the case of bastard eigné and mulier puisné. This happens when a man has a bastard son, and afterwards marries the mother, and by her has a legitimate son, who, in the language of the law, is called a mulier, or, as Glanvil expresses it in his Latin filius mulieratus; the woman before marriage being concubina, and afterwards mulier. Now, here the eldest son is bastard, or bastard eigné; and the younger son is legitimate, or mulier puisné. If then the father dies, and the bastard eigné enters upon his land, and enjoys it to his death, and dies seised thereof whereby the inheritance descends to his issue; in this case mulier puisné, and all other heirs (though minors, feme-coverts, or under any incapacity whatsoever), are totally barred of their right.

As bastards cannot be heirs themselves, so neither can they have any heirs but those of their own bodies. For, as all collateral kindred consists in being derived from the same common ancestor, and as a bastard has no legal ancestors, he can have no collateral kindred; and, consequently, can have no legal heirs but such as claim by a lineal descent from himself. And, therefore, if a bastard purchase land and dies seised thereof without issue, and intestate, the land shall escheat to the lord of the fee.

Aliens.

6. Aliens, also, are incapable of taking by descent, or inheriting for they are not allowed to have any inheritable blood in them; rather indeed upon a principle of national or civil policy, than upon reasons strictly feodal. Though, if lands had been suffered to fall into their hands who owe no allegiance to the crown of England, the design of introducing our feuds, the defense of the kingdom, would have been defeated. Wherefore if a man leaves no other relations but aliens, his land shall escheat to the lord.

As aliens cannot inherit, so far they are on a level with bastards; but as they are also disabled to hold by purchase, they are under still greater disabilities. And, as they can neither hold by purchase nor by inheritance, it is almost superfluous to say that they can have no heirs, since they can have nothing for an heir to inherit; but so it is expressly holden, because they have not in them any inheritable blood.

And, further, if an alien be made a denizen by the king's letters-patent, and then purchases lands (which the law allows such a one to do), his son, born before his denization, shall not (by the common law) inherit those lands; but a son born afterwards may, even though his elder brother be living; for the father, before denization, had no inheritable blood to communicate to his eldest son; but by denization it acquires an hereditary quality, which will be transmitted to his subsequent posterity. Yet if he had been naturalized by act of parliament, such eldest son might then have inherited; for that cancels all defects, and is allowed to have a retrospective energy, which simple denization has not.

It is now held for law, that the sons of an alien born here, may inherit to each other; the descent from one brother to another being an immediate descent. And reasonably enough upon the whole; for, as (in common purchases) the whole of the supposed descent from indefinite ancestors is but fictitious, the law may as well suppose the requisite ancestors as suppose the requisite de

scent.

Persons Attainted.

7. By attainder also, for treason or other felony, the blood of the person attainted is so corrupted, as to be rendered no longer inheritable.

In Case of Corporations.

Before I conclude this head of escheat, I must mention one singular instance in which lands held in fee-simple are not liable to escheat to the lord, even when their owner is no more, and hath left no heirs to inherit them. And this is the case of a corporation; for if that comes by any accident to be dissolved, the donor