CHAPTER THE FIFTEENTH. OF TITLE PURCH BY PURCHASE, AND FIRST BY ESCHEAT. URCHASE, perquifitio, taken in it's largest and most extenfive fenfe, is thus defined by Littleton *; the poffeffion 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 fenfe it is contradiftinguished from acquifition by right of blood, and includes every other method of coming to an estate, but merely that by inheritance: wherein the title is vefted in a perfon, not by his own act or agreement, but by the fingle operation of law b. PURCHASE, indeed, in it's vulgar and confined acceptation, is applied only to fuch acquifitions of land, as are obtained by way of bargain and fale, for money, or fome other valuable confideration. But this falls far fhort of the legal idea of purchase: for, if I give land freely to another, he is in the eye of the law a purchafor; 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 eftate fettled upon him in tail, before he was born, is also a purchafor; for he takes quite another eftate than the law of defcents would have given him. Nay even if the anceftor devises his estate to his heir at law by will, with other limitations, or in any other shape than the courfe of defcents. would direct, fuch heir fhall take by purchase. But if a man, seised in fee, devises his whole eftate to his heir at law, fo that the heir takes neither a greater nor a less estate by the a §. 12. b Co. Litt. 18. VOL. II. c. Ibid. d Lord Raym. 728. devife Book II. devife than he would have done without it, he fhall be adjudged to take by descent, even though it be charged with incumbrances f; 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 eftate, his heirs fhall take as pur chafors. But, if an eftate be made to A for life, remainder to his right heirs in fee, his heirs fhall take by defcent: for it is an ancient rule of law, that wherever the ancestor takes an estate for life, the heir cannot by the fame conveyance take an eftate in fee by purchase, but only by defcent". And, if A dies before entry, ftill his heir fhall take by defcent, and not by purchase; for, where the heir takes any thing that might have vested in the ancestor, he takes by way of defcenti. The ancestor, during his life, beareth in himself all his heirs ; and therefore, when once he is or might have been feifed of the lands, the inheritance fo limited to his heirs vefts in the ancestor himself: and the word " heirs" in this cafe is not esteemed a word of purchase, but a word of limitation, enuring fo as to increase the estate of the ancestor from a tenancy for life to a fee-fimple. And, had it been otherwise, had the heir (who is uncertain till the death of the ancestor) been allowed to take as a purchafor originally nominated in the deed, as must have been the cafe if the remainder had been exprefsly limited to Matthew or Thomas by name; then, in the times of ftrict feodal tenure, the lord would have been defrauded by fuch a limitation of the fruits of his figniory, arifing from a defcent to the heir. WHAT we call purchase, perquifitio, the feudifts called conqueft, conquaeftus, or conquifitio: both denoting any means of acquiring an eftate out of the common courfe of inheritance. And this is ftill the proper phrase in the law of Scotland as it was among the Norman jurifts, who ftiled m Roll. Abr. 626. f Salk. 241. Lord Raym. 728. 1 Rep. 104. 2 Lev. 60. Raym. i 1 Rep. 98. k Co. Litt. 22. 1 Crag. l. 1. t. 10. §. 18., the the first purchafor (that is, he who brought the eftate into the family which at prefent owns it) the conqueror or conquereur". Which seems to be all that was meant by the appellation which was given to William the Norman, when his manner of afcending the throne of England was, in his own and his fucceffors' charters, and by the hiftorians of the times, entitled conquaeftus, and himself conquaeftor or conquifitor; fignifying that he was the firft of his family who acquired the crown of England, and from whom therefore all future claims by descent must be derived: though now, from our disuse of the feodal fenfe of the word, together with the reflexion on his forcible method of acquifition, we are apt to annex the idea of victory to this name of conqueft or conquifition: a title which, however just with regard to the crown, the conqueror never pretended with regard to the realm of England; nor, in fact, ever had ". THE difference in effect, between the acquifition of an estate by descent and by purchase, confifts principally in these two points: 1. That by purchase the eftate acquires a new inheritable quality, and is defcendible to the owner's blood in general, and not the blood only of fome particular anceftor. For, when a man takes an estate by purchase, he takes it not ut feudum paternum or maternum, which would defcend only to the heirs by the father's or the mother's fide: 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 anfwerable for the acts of the ancestor, as an eftate by defcent will. For, if the ancestor by any deed, obligation, covenant, or the like, bindeth himself and his heirs, and dieth; this deed, obligation, or covenant, fhall be binding upon the heir, so far forth only as he (or any other in trust for him 4) had any eftate of inheritance vefted in him by defcent from (or any estate pur auter vie coming to him by special occupancy, as heir to ') that anceftor, fufficient to answer q Stat. 29 Car. II. c. 3. §. 10. Ibid. §. 12. a Gr. Couftum. Gloff. c. 25. pag. 40. • Spelm. G. 145. See book I. ch. 3. the charge; whether he remains in poffeffion, or hath aliened it before action brought; which fufficient eftate is in the law called affets; from the French word, affez, enough". Therefore if a man covenants, 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 affets, by descent from the covenantor for though the covenant descends to the heir, whether he inherits any eftate or no, it lies dormant, and is not compulfory, until he has affets by defcent". THIS is the legal fignification of the word perquifitio, or purchase; and in this fense it includes the five following methods of acquiring a title to estates: 1. Escheat. 2. Occupancy. 3. Prefcription. 4. Forfeiture. 5. Alienation. Of all these in their order. I. ESCHEAT, we may remember ", was one of the fruits and confequences of feodal tenure. The word itself is originally French or Norman, in which language it fignifies chance or accident; and with us it denotes an obstruction of the course of defcent, and a confequent determination of the tenure, by fome unforeseen contingency: in which cafe the land naturally refults back, by a kind of reverfion, to the original grantor or lord of the fee . ESCHEAT therefore being a title frequently vefted in the lord by inheritance, as being the fruit of a figniory to which he was entitled by defcent, (for which reafon the lands efcheating fhall attend the figniory, and be inheritable by fuch only of his heirs as are capable of inheriting the other 2) it may seem in such cases to fall more properly under the former general head of acquiring title to eftates, viz. by descent, (being vested in him by act of law, and not by his own act & IP. W5. 777. t Stat. 3 & 4 W. & M. c. 14. Finch. law. 119. v Finch. Rep. 86. w See pag. 72. * Efchet or ê het, formed from the verb efchoir or choir, to happen. y Feud. 86. Co. Litt. 13. z Co. Litt. 13. |