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both. To avoid confusion that might arise between the several stocks, wherein the purchasing ancestor may be sought for, another qualification is requisite, beside the proximity and entirety, which is that of dignity or worthiness of blood.

VII. In collateral inheritances, the male stocks shall be preferred to the female; that is, kindred derived from the blood of the male ancestors, however remote, shall be admitted before those from the blood of the female, however near, unless where the lands, in fact, have descended from a female.

Preference for Males.

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. This rule is warranted by the examples of the Hebrew and Athenian laws, though in the time of Hesiod, when a man died without wife or children, all his kindred, without distinction, divided his estate among them. It is also warranted by the Roman law, wherein the agnati, or relations by the father were preferred to the cognati, or relations by the mother, till the edict of the emperor Justinian abolished all distinction between them. It is also conformable to the law of Normandy, which in most respects agrees with our English law of inheritance.

Descent from Mother's Side. Whenever the lands have notoriously descended to a man from his mother's side, this rule is totally reversed, and no relation of his by his father's side can ever be admitted to them, because he cannot possibly be of the blood of the first purchaser. And so, e converso, if the lands descended from the father's side, no relation of the mother, as such, shall ever inherit. But if such first purchaser could not readily be discovered, the lawyers usually sought to find him by taking the next relation of the whole blood to the person last in possession, giving a preference to males, through the entire course of lineal descent from the first purchaser to the last tenant. If the investigation finds no heirs of the male stock, then, and then only, it resorts to the mother's side after leaving no place. untried.

Difficulty of the Search. Through all stages of collateral inheritance, there exists a constant preference of the agnatic succession, or issue from the male ancestors, founded on the capacity of the male to perform personal services. Had there been

utter exclusion of females, the original male ancestor could have been more readily traced, but as males have not been perpetually admitted, but only generally preferred, so females have not been utterly excluded, but only generally postponed to males, and the ancestor in some cases becomes only a strong probability.

CHAPTER XV.-TITLE BY PURCHASE.

Defined. Purchase, perquisitio, is the possession of lands and tenements, which a man has by his own act or agreement, and not by descent from any of his kindred. It includes every method of acquiring an estate, except 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. In a confined acceptation, purchase is applied only to such acquisitions of land, as are obtained by bargain and sale for money or other valuable consideration.

Examples. 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, for he comes to the estate by his own agreement; that is, he consents to the gift. A man, who had his father's estate settled upon him in tail, before he was born, is also a purchaser, for he takes a different estate, from the one 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.

In Certain Devises, But if a man, seised in fee, devises his whole estate to his heir at law, so that the latter takes no greater or less estate by the devise, than he would have done without it, he shall be adjudged to take by descent, even though the land be charged with encumbrances; this being for the benefit of creditors and others having demands on the estate of the ancestor.

Examples of this Distinction in Remainder Estates. If a remainder be limited to the heirs of A, here A 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 an 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.

"Heirs" as a Word of Limitation. The ancestor, during his life, bears in himself all his heirs, and 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 deemed 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.' Had the heir been allowed to take as a purchaser originally nominated in the deed, then in the times of strict feudal tenure, the lord would have been defrauded by such a limitation of the fruits of his seigniory, arising from a descent to the heir.

Conquest. Its Original Meaning. What we call purchase, the feudists called conquest, both denoting any means of acquiring an estate out of the usual course of inheritance. This is still the phrase in the Scotch law, as it was among the Norman jurists, who styled the first purchaser the conqueror. This was all that was meant by the title given to William the Norman. He was the conquaestor or conquisitor, signifying that he was the first of his family who acquired the crown of England, and from whom all future claims to descent must be derived.

Difference between Descent and Purchase. An estate acquired by descent and an estate obtained by purchase differ principally in 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 the mother's side, but he takes it ut feudum antiquum, as a feud of indefinite antiquity, whereby it becomes

1 This is termed the "Rule in Shelley's Case."

inheritable to the 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 or covenant, bind himself and his heirs, and then dies, this obligation shall bind the heir, only as he, or any one in trust for him, had any estate of inheritance vested in him by descent from such ancestor, sufficient to answer the charge, whether he remains in possession, or has alienated it before action brought; which sufficient estate is in the law called assets, from the French word assez, enough. Therefore, if a man covenants for himself and his heirs, to keep my house in repair, I can compel his heir in such case to perform this covenant, when he has an estate or assets sufficient therefor, derived from the covenantor.

Methods of Purchase. Title, how Acquired. Purchase, in its legal signification, includes the five following methods of acquiring a title to estates:

1. Escheat.

2. Occupancy.
3. Prescription.

4. Forfeiture.
5. Alienation.

TITLE BY ESCHEAT.

Defined, Escheat is a consequence of feudal tenure. The word is of French or Norman origin, and signifies chance or accident. With us it denotes an obstruction of the course of descent, and a consequent determination of the tenure, by some unforseen contingency, in which case the land reverts or results back to the original grantor or lord of the fee.

Why an Estate by Purchase. Escheat being a title frequently vested in the lord by inheritance, it may seem more properly to fall under the head of acquiring title by descent, being vested in him by act of law, and not by his own act or agreement. But in order to complete this title by escheat; the lord must 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 on doing any act which implies waiver of his right, as by accepting rent of an usurping stranger, his title by

escheat is barred. It is therefore in some respect, a title acquired by his own act, as well as by act of law.

Principle of Escheats. 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 extinct, and since none can inherit, but such as are of his blood, it follows, the inheritance itself must fail, the land become feudum apertum, and must result back to the lord of the fee.

Two Kinds of Escheats. Escheats are those propter defectum sanguinis, and those propter delictum tenentis, the former being for lack of heirs, the latter for attainted blood. Both these species may be comprehended under the first denomination only, for he who is attainted suffers an extinction of his blood also. The inheritable quality is expunged in the one case, and expires in the other. We will consider the cases, wherein hereditary blood may be deficient:

1, 2, 3. Death of the Tenant. Three cases, where inheritable blood is wanting, may be collected from the rules of descent heretofore laid down:

(1) When the tenant dies without any relations on the part of any of his ancestors.

(2) When he dies without any relations on the part of those ancestors, from whom his estate descended.

(3) When he dies without any relations of the whole blood. Blood of the First Purchaser. In two of these cases the blood of the first purchaser is certainly, and in the other is probably, at an end, and hence in all of them, the land shall escheat to the lord of the fee, who would be prejudiced, if in opposition to the inherent condition annexed to all feuds, any one, not of the blood of the first feudatory, should succeed to the lands.

4. Monsters. A monster, which has not the shape of mankind, but resembles the brute creation, has no inheritable blood, and cannot be heir to any land, albeit, brought forth in marriage.

5. Bastards. Bastards are incapable of being heirs. They are such children, as are not born either in lawful wedlock, or within a competent time after its determination. Such are held to be sons of nobody, nullius filii, and they have no inheritable blood. Hence, if there be no other claimant than such illegitimate children, the land shall escheat to the lord.

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