CHAPTER X. OF TITLE IN GENERAL. HAVING described the tenures by which lands or corporeal hereditaments may be held, and the kinds of estate that may be had in them, we are next to consider, in pursuance of the division before laid down (a), the manner of acquiring and losing estates therein. And it is to be observed, that the learning on this subject applies to equitable as well as to common law estates, but principally to the latter; because, though the rule of descent is the same in both (b), and conveyances of the same kind are commonly used to create or transfer both, yet equitable estates are capable of being also created or transferred by simpler methods, and indeed by any instrument sufficiently indicating the intention of the parties, the only formality to which they are in general subject, being that introduced by the provision of the statute of frauds, referred to in the last chapter, which requires that all grants and assignments of any trust or confidence shall be in writing, and under the signature of the party. In proceeding to treat of the manner in which estates. may be acquired and lost, it is obvious that we shall not have occasion to detach the consideration of loss from that of acquisition, but that they are reciprocal ideas;. because, by whatever method one man gain an estate, by that same method or its correlative some other man has lost it. As where the heir acquires by descent, the ancestor has first lost or abandoned his estate by his (b) Goodright r. Wells, Doug. 771, (a) Vide sup. p. 160. VOL. I. A A [death; where the lord gains land by escheat, the estate of the tenant is first of all lost by the natural or legal extinction of all his hereditary blood; where a man gains an interest by occupancy, the former owner has previously relinquished his right of possession. So in case of forfeiture, the tenant by his own mistaken view or neglect. has renounced his interest in the estate; whereupon it devolves to that person who by law may take advantage of such default. And in alienation by common assurances the two considerations of loss and acquisition are so interwoven and so constantly contemplated together, that we never hear of a-conveyance without at once receiving the ideas as well of the grantor as the grantee.] The acquisition, then, of an estate in land is commonly said to be either by descent or purchase (these being the principal methods); but, more accurately speaking, it is either by act of law or act of the party (c); which last is technically called purchase (perquisitio). Title by act of law expresses all those modes of acquisition where the law itself casts the right to the estate upon the acquirer, independently of any act or interference of his own, or of any other person, for that purpose. Of these the principal kind is title by descent; but the term (c) This division is, in substance, suggested by Mr. Hargrave. Co. Litt. by Harg. 18 b, n. (2). Blackstone considers all title as either by descent or purchase, and defines purchase (after Littleton, sect. 12) as "the posses"sion of lands and tenements which a "man hath by his own act or agree"ment, and not by descent from any "of his ancestors or kindred." 2 Bl. Com. 201, 241.) And according to Blackstone, purchase comprises escheat (ibid. 244), which however, it may be observed, falls under the negative part only, and not the positive part of Littleton's definition. And accordingly Lord Coke remarks, "that an escheat "or the like" is "not said to be a purchase," because the inheritance is cast upon, or a title vested "in the lord, by act in law, and not "by his own deed or agreement." Co. Litt. 18 b. The truth is, that it is impossible to reduce all titles to the alternative of descent or purchase ; and as to escheat more particularly, it seems clear that it is neither the one nor the other. We may observe here, that in the Inheritance Act, 3 & 4 Will. 4, c. 106, the meaning of the word purchaser is settled by a definition contained in the act itself. But this is only so far as its particular provisions are concerned; vide post, p.360. will also properly include title by escheat, and also that of tenant by the curtesy, and of tenant in dower (d). Purchase, on the other hand, though [in its vulgar and confined acceptation it is applied only to such acquisitions of land as are obtained by way of bargain and sale for money or some other valuable consideration, yet properly includes every lawful (e) mode of coming to an estate by the act of a party, as opposed to the act of law; among which, our attention will chiefly be directed to the title by occupancy, by forfeiture, and by voluntary transfer, which last is usually described as that by alienation or conveyance (ƒ). This use of the term, purchase, by which it is distinguished from title by mere act of law, and more particularly from descent, corresponds, it may be remarked, with that of conquest (conquestus, or conquisitio) among the feudists (g), and in the law of Scotland(h). And in like manner the first purchaser (or he who first brought the estate into the family which at present owns it) was styled among the Norman jurists the conqueror or conquereur (i), [which seems to be all that was meant by the appellation which was given to William the Norman when his manner of ascending the throne of England was (d) Co. Litt. 18 b. (e) According to Lord Coke, the term purchase imports only a lawful acquisition, for he says, that "such "as attain to lands by mere injury or wrong, as by disseisin, intrusion, "abatement, usurpation, &c. cannot "be said to come in by purchase, no "more than robbery, burglary, piracy, or the like, can justly be termed "purchase."-Co. Litt. 18 b; et vide acc. 3 b. (f) Other methods of transfer be. long to the head of purchase; those for example which the statute law has provided for the official or judicial assignment of a man's property, such as the seizure of lands under an execution by elegit, and the different forms of proceeding by which the real estate of a bankrupt or insolvent is vested in his assignees; see 1 & 2 Vict. c. 110, ss. 37, 45; 1 & 2 Will. 4, c. 56, s. 26. But these and all other modes of purchase not enumerated in the text, are subordinate or collateral only to subjects of a more general description, and it is in the discussion of those subjects that the most convenient opportunity of considering them will be found to arise. (g) Crag. l. 1, t. 10, s. 13. in his own and his successors' charters, and by the historians of the times, entitled conquæstus, and himself conquæstor or conquisitor, signifying that he was the first of his family who acquired the crown of England, and from whence therefore all future claims by descent must be derived.] Among the different titles that have been enumerated we have already been led incidentally to discuss those of tenant by the curtesy and tenant in dower. At present, therefore, we may confine our attention to descent, escheat, occupancy, forfeiture, and alienation; the two first being titles by act of law, the three last titles by purchase. CHAPTER XI. OF TITLE BY DESCENT. We have seen in a former place (a) that there are certain estates called estates of inheritance, which descend to a man and his heirs: and that these are either in fee simple or fee tail. We are now to consider more particularly the nature of such descent (b), and the rules by which it is governed. The discussion will turn principally, indeed, upon the nature of the descent in fee simple, for that in fee tail is only in the nature of an exception or variation upon the ordinary law of succession; and when that law is fully understood, the explanations before given with respect to estates tail in general will throw sufficient light on the nature of the descent per formam doni. [The doctrine of descent, or law of inheritance in fee simple, is a point of the highest importance, and is indeed the principal object of the laws of real property in England. All the rules relating to purchases whereby the legal course of descent is broken and altered, perpetually refer to this settled law of inheritance as a datum or first principle universally known, and upon which their subsequent limitations are to work.] [In order to treat a matter of this universal consequence more clearly, it will be expedient to lay aside such matters as will only tend to breed embarrassment and confusion in an inquirer. We shall therefore decline considering, at present, who |