2090. The colonial governments of France and Spain also granted many concessions and titles to land, under special circumstances, to many individuals, and not unfrequently the validity of these claims has been examined in our courts. 173 2091. The public lands of the United States are generally surveyed in townships of six miles square; these are subdivided into sections of six hundred and forty acres; and the sections into half and quarter sections; and these again into quarter quarter sections. The lines in these cases run north and south, and east and west; when a quarter section is divided, the line runs north and south. These lands are in some instances directed to be sold at public sale, and then the government grants a patent to the grantee, giving all the title the United States had in the land, with a reservation of a certain proportion of all the gold and silver found there. But, more generally, they are selected by purchasers who enter them at the regular land offices, and after they have been paid for, a patent is granted to the purchaser. But a title to lands, or a grant, (by which is meant not only a formal grant, but a concession,) may be made and confirmed by law, as well as by a patent pursuant to law." 174 A patent is declared by the whole legislation of congress to be the superior and conclusive evidence of legal title.175 But such a patent cannot effect a preexisting title.176 Until the patent issues, the fee is in the government, which, by the patent, passes to the patentee; 177 and if the land is unimproved and wholly unoccupied, it gives legal seisin and constructive possession of all the land within the survey." 178 As the patent is the deliberate act of the government, it is presumed that every thing required to be done before it is granted has been done, and no facts behind the patent will be investigated. It is sufficient that the land is identified; if so, the defect of an entry and survey cannot be taken advantage of at law.179 But when an elder equitable right is set up, a court of equity may inquire into the preliminary steps.' 180 But though the patent has this binding effect, it gives no title unless authorized by law; a patent for lands lying within the Indian territory, which could not be sold under the laws of the United States, would, therefore, be invalid; this, however, would take place only when there was no power to issue it, for if a patent were issued for a tract of land, and a part was within the boundaries authorized to be sold, and part beyond it, such patent would be valid for a part and void as to the rest.181 2092. Fines and common recoveries are conveyances of record, and both founded on fictions.182 The origin of both these conveyances was to avoid the necessity of livery of seisin, and, under the form of a suit or legal proceeding, to obtain the title to the land. Though they have been used in some of the states, these forms of conveyance are nearly obsolete; easier and less expensive modes of making conveyances which have their effect having been substituted. 173 See White's New Coll. 174 Struther v. Lucas, 12 Pet. 410. 177 Bagwell v. Broderick, 13 Pet. 436. 178 Peyton v. Stith, 5 Pet. 485; Miller v. McIntyre, 6 Pet. 61. 179 Lessee of Brown v. Galloway, Pet. C. C. 291. 180 Boardman v. Lessee of Read and Ford, 6 Pet. 328; Vowles v. Craig, 8 Cranch, 371. 181 Winn v. Patterson, 9 Pet. 663; Patterson v. Jenks, 2 Pet. 235; Danforth v. Wear, 9 Wheat. 673. 182 Cruise, Fines; Sheppard, Touchst. c. 2; Bacon, Abr. Fines; Piggot, Preston, Wilson, Bailey, Hands; Comyn, Dig. Fines. 2093. A fine is an amicable composition or agreement of a suit, actual or fictitious, by leave of the court, by which the lands in question in such suit become, or are acknowledged to be, the right of one of the parties.183 A fine is so called because it puts an end, fin, not only to the suit thus commenced, but also to all other suits and controversies concerning the same matter. 2094. The statute of 18 Edw. I, called modus levandi fines, declares and regulates the manner in which they should be levied and carried on, and that is as follows: The party to whom the land is to be conveyed or assured commences an action at law against the other; generally, an action of covenant on a pretended contract by suing out a writ of præcipe called a writ of covenant, that the one shall convey the lands to the other, on the breach of which agreement the action is brought. The suit being thus commenced, then follows, The licentia concordi, or leave to compromise the suit which is asked of the court, and granted of course. The concord, or agreement itself, after leave obtained by the court; this is generally an acknowledgment from the deforciants that the lands in question are the lands of the complainant. The note of the fine, which is only an abstract of the writ of covenant and the concord, naming the parties, the parcels of land, and the agreement. The foot of the fine, or the conclusion of it, which includes the whole matter, reciting the parties, day, year, and place, and before whom it was acknowledged or levied. 2095. The force and effect of a fine were very great; it barred not only those who were parties to the fine and their heirs, but all other persons in the world of full age, of sound memory, and within the four seas, the day the fine levied, unless they put in their claims within a year and a day.18 But this bar by non-claim was afterward extended to five years." 185 There were four kinds of fines, but the learning in relation to them will not repay the student for his trouble except as a matter of the history of the law. 2096. A common recovery 186 is a judgment recovered in a fictitious suit, brought against the tenant of the freehold in consequence of a default made by the person who is last vouched to warranty in such suit.187 Common recoveries are considered mere forms of conveyance or common assurances. They were invented by ecclesiastics in order to evade the statute of mortmain by which they were prohibited from purchasing or receiving, under the pretence of a free gift, any lands or tenements whatever. 2097. Although a common recovery is a fictitious suit, yet the same mode of proceeding must be pursued and all the forms strictly adhered to which are necessary to be observed in an actual suit. The proceedings are as follows: The first requisite is, that the person who is to be the demandant, and to whom the lands are to be adjudged, should sue out a writ or præcipe against the tenant of the freehold, who is then called tenant to the præcipe. In obedience to this writ, the tenant appears in court, either in person or by his attorney; but, instead of defending the title to the land himself, he calls on some other person, who upon the original purchase is supposed to have warranted the title, and prays that the person may be called in to defend the title which he warranted, or otherwise to give the tenant lands of equal value to 183 Coke, Litt. 120; 2 Sharswood, Blackst. Comm. 349. 184 Stat. 18 Ed. I. 185 Stat. 4, Hen. VII. See Jackson v. Smith, 13 Johns. N. Y. 426; Lion v. Burtris, 20 id. 483. 186 Cruise, Dig. tit. 36; 2 Saund. 42, n. 7; Piggot, Com. Rec.; Rey, Des Institutions Judiciaries de l'Angleterre, tom. ii. p. 221. 187 Bacon, Tracts, 148. those he shall lose by the defect of his warranty. This is called the voucher, vocatia, or calling to warranty. The person thus called to warrant, who is usually called the vouchee, appears in court, is impleaded, and enters into the warranty, by which he means to take upon himself the defence of the land. The defendant then desires of the court leave to imparl, or confer with the vouchee in private, which is granted of course. Soon after the demandant returns into court, but the vouchee disappears and makes default, in consequence of which it is presumed by the court that he has no title to the lands demanded in the writ, and therefore cannot defend them, whereupon judgment is given for the demandant, now called the recoverer, to recover the lands in question against the tenant, and for the tenant to recover against the vouchee lands of equal value in recompense for those warranted him and now lost by his default. This is called the recompense of recovery in value; but as it is customary for the crier of the court to act, who is hence called the common vouchee, the tenant can only have nominal, and not a real, recompense for the lands thus recovered against him by the demandant. A writ of habere facias is then sued out, directed to the sheriff of the county in which the lands thus recovered are situated, commanding the sheriff to give the possession of the lands to the plaintiff; and on the return of the execution of the writ, the recovery is completed. And thus the wary ecclesiastics, always eager for power and wealth, used the forms of the law for the very purpose of defeating the law itself. 2098. The recovery here described is with single voucher; but a recovery may and is frequently suffered with double, treble, or further voucher, as the exigency of the case may require, in which case there are several judgments against the several vouchees All the learning in relation to common recoveries is nearly obsolete, as they are nearly out of use. In some of the states of the Union they have occasionally been employed to bar estates entailed, but statutory provisions have been made. which facilitate the barring of such estates so as to render common recoveries unnecessary. Indeed, they ought to have been considered a disgrace to any system of law founded on justice and right. VOL. I.-3 V 561 CHAPTER XXVIII. TITLE TO PROPERTY BY WILL. 2100. History of devises. 2106-2123. The qualities requisite in a testator. 2115. Incapacity from bodily defects. 2117-2119. Incapacity because the testator is under the power of another. 2118. Married women. 2119. Persons under duress. 2120-2122. The time when the disability attaches. 2121. Incapacity arising after the will is made. 2124, 2125. Qualities requisite in a devise. 2131. The form of wills. 2132-2138. The requisites of wills. 2132. When a will must be in writing. 2133. The date of the will. 2135. The signature of the will. 2136. The attestation of the will. 2137. The publication of the will. 2139-2145. The kinds of wills. 2140. Nuncupative wills. 2142. Mystic wills or testaments. 2144. Codicils. 2146-2165. Revocation and annulling of wills. 2149-2157. Revocation by act of the testator. 2150. Express revocation. 2151-2157. Implied revocation. 2152. From a posterior testamentary disposition. 2153. By sale of the thing devised. 2156. By destruction of the thing devised. 2157. By destruction of the will. 2158. Revocation by act of law. Lapse and ademption. 2163-2165. Annulling and recission of wills. 2164. For fear or duress. 2165. For fraud or undue influence. 2166-2168. Republication of wills. 2167. How made. 2168. Consequences of republication. 2169-2188. Executors and administrators. 2170. Appointment of executors. 2171. Who may be an executor. 2172-2178. Kinds of executors. 2173. Extent of their authority. 2175. Instituted and substituted executors. 2181. Liability for acts of co-executor. 2182. Rights of surviving executor. 2183. What interest executors have in the estate. 2186. Powers and duties of executors. 2188. Liabilities of executors. 2099. Having considered the mode of acquiring property by descent; by escheats; by forfeiture; by merger; and by alienations by deeds at common law and under the statute of uses; and by matter of record; it now remains to be ascertained, lastly, how property is acquired by will or devise. As wills generally relate to all a man's property or estate, real or personal, it will be requisite, in order to do justice to the subject, to treat as well of personal as of real estate. This subject will be considered by taking a view of the history of devises and the power of making wills; the qualities requisite in a testator; the qualities and description requisite in a devisee; the thing devised, and what estate is devised in the same; the form and requisities of wills; the kinds of wills; the revocation of wills; the republication of wills; and of executors and administrators. 2100. A will is the legal declaration of a man's intentions of what he wills to be performed after his death. The terms will and testament are synonymous, and they are used indifferently, or one for another, by common lawyers. When a will operates upon personal property it is simply called a will or testament; when upon real estate, a devise, though devise sometimes signifies the estate given by the will, and not the will itself. The definition of the civil law corresponds with the above; a will by that law is declared to be as follows: Testamentum est voluntatis nostræ justa sententia de eo quod quis post mortem suam fieri velit.1 2101. A testamentary disposition being an act by which the testator disposes of his estate during a time when he shall no longer exist, it may be well inquired, Whence does man acquire this right of empire, which extends beyond his life, over property which no longer belongs to him? Does he derive this authority from nature, or from the civil or municipal law? This question, so often and so variously agitated by different authors, will not be found difficult to resolve when we reflect on the origin of property. We have seen that before the establishment of the civil estate, property was inseparable from possession; that, in fact, it was only the right to enjoy it while it was possessed, and that as soon as the party ceased to possess, the thing became subject to the use of the first occupant. In such a state of things it is evident that the mere will of the possessor was not sufficient to transfer his right to another. It could be transferred only by delivery or putting the party in possession. There could then exist no other testaments than those of a gift causa mortis, accompanied by delivery, revocable on the recovery of the donor. 2102. When the right to property became permanent, that is, when the 1 Dig. 28, 1, 1. |