not forfeited by reason of the attainder or conviction of the trustee for any offence (v); nor does a trust of inheritance escheat for want of inheritable blood: for the defect of an heir confers no title, in this case, on the lord; it merely enables the trustee to hold the land discharged of the trust (w). Nor does such a trust of inheritance escheat to the lord on the attainder of the cestui que trust (x), though it seems forfeitable to the crown on his attainder for treason (y). In these incidents the modern trust, it will be observed, follows the principle of the antient use.

It may be proper before we conclude, to take some notice of the subject of terms held in trust to attend the inheritance. Upon the purchase of real property it has been common to assign upon a trust of this description, any mortgage term or trust term connected with the title, but of which the purposes have been satisfied. Thus, where land held in fee is mortgaged for a long term of years (as a thousand years), and, upon the estate being sold, the mortgagee is paid off out of the purchase money,—it has been usual for the purchaser (instead of taking a surrender of the term to himself and so merging it in the inheritance) to keep it on foot and have it assigned to a trustee of his own nomination, in trust for himself (the purchaser), "and to attend and protect the inheritance." The reason

of this practice was, that the beneficial or equitable interest in a term assigned upon such a trust, followed (though a mere chattel) all the limitations of the inheritance-belonged to the heir or devisee of the new owner, and not to his executor or administrator-and was subject to the other incidents of a fee simple (z); so that for all purposes of

(v) 1 Sand. Us. 206; Hob. 214; Attorney-General v. Sands, Hard. 490; 13 & 14 Vict. c. 60, ss. 46, 47. There was formerly an exception as to this in the case of treason. (See 33 Hen. 8, c. 20; 1 Sand. Us. 207.)

(w) 2 Bl. Com. 337; and see Burgess v. Wheate, 1 W. Bl. 123; 1

Eden, 177; Barclay v. Russell, 3
Ves. 430.

(x) See 1 Sand. Us. 288.
(y) 1 Hale, P. C. 249.

(z) Best v. Stamford, Prec. Ch. 252; 2 Freem. 288, S. C.; Wray v. Williams, 1 P. Wms. 137; 1 Sand. 229; Cooke v. Cooke, 2 Atk. 67.

convenience, the case was the same as if it had merged into the inheritance; while on the other hand it afforded the purchaser, a security which he could not have had if a merger had actually taken place. For if it afterwards turned out that prior to the purchase, but posterior to the creation of the term, there had been an intermediate alienation or incumbrance of the fee in favour of another person, to which the then trustee of the outstanding term had been no party, and of which the subsequent purchaser had had no notice when he took his conveyance and paid his purchase money, he would be protected against it, through the medium of the term: for this, being the elder title, would also take the priority in point of legal effect; and, being assigned expressly in trust for him, became, for all beneficial purposes, his property. No such protection, however, resulted from a satisfied term where the precaution of thus assigning it over was neglected; for though, by construction of equity, the term would in that case also become attendant on the inheritance, the effect of this was only to make it attendant for the benefit of the different persons who from time to time became entitled to the inheritance; so that, in the example above given, the mortgage term, if left outstanding and not assigned, would be held in trust for the first and not for the second purchaser,-the title of the former being preferable in point of date(a). And by a recent change in the law, the practice of assigning satisfied terms is now altogether at an end. For the protection afforded by that practice being for several reasons precarious, and, even when effectual, being obtained at the expense of an innocent party, whose title was in point of natural justice at least as good as that of the party protected, it has been with great wisdom provided by 8 & 9 Vict. c. 112 (b),—with respect to satisfied terms of years,-that such as should, either by express declaration or by construction of law, on

(a) Second Report of Real Property Commissioners, p. 8.

VOL. I.

(b) As to this provision, see Doe d. Hall v. Moulsdale, 16 Mee. & W.

CC

the 31st December, 1845, be attendant upon the inheritance or reversion of any lands, should on that day absolutely cease and determine as to the land upon the inheritance or reversion whereof they should be so attendant; with a proviso, however, that every such term of years made so attendant by express declaration (although thereby made to cease and determine,) should afford to every person the same protection against every incumbrance, charge, estate, right, action, suit, claim and demand, as it would have afforded him if it had continued to subsist, but had not been assigned or dealt with after 31st December, 1845; and should, for the purpose of such protection, be considered in every court of law and of equity to be a subsisting term. And with respect to terms of years (then subsisting or thereafter to be created) becoming satisfied after the 31st December, 1845, that such as should, either by express declaration or by construction of law, after that day become attendant upon the inheritance or reversion of any lands should, immediately upon the same becoming so attendant, absolutely cease and determine as to the land upon the inheritance or reversion whereof such term should become so attendant.

We have now touched the principal points in the law of Uses and Trusts, considered as species of estates; and for the present may dismiss them from our view. With respect to uses, indeed, there is another aspect under which they will very soon require to be again examined, viz. in their important (but incidental) connection with our system of conveyances. But this is a subject which belongs not to the present chapter. It will find a more proper place when we are engaged in the consideration of Title, or the manner in which estates may be acquired or lost (c).

(c) As to conveyances under the statute of uses, vide post, bk. 11. pt. 1.

c. XVIII.

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 such as are of free tenure, we are next to consider, in pursuance of the division before laid down, the title to them, or manner of acquiring and losing estates therein (a). 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 introdnced 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 (c).

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 gains an estate, by that same method, or its correlative, some other man has lost it. As

(a) Vide sup. p. 177.

(c) Vide sup. p. 384.

(b) Goodright v. Wells, Doug. 771.

[where the heir acquires by descent, the ancestor has first lost or abandoned his estate by his 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 (e); 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

(e) This division is, in substance, suggested by Mr. Hargrave, Co. Litt. by Harg. 18 b, n. (2). Blackstone, (vol. ii. pp. 201, 241,) considers all title as either by descent or purchase, and defines purchase (after Littleton, sect. 12) as "the pos"session 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." "And according to Blackstone, (Ib.

"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 agree"ment." (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. 394.