Charters, &c.

38. The lord by escheat is entitled to all the And to all charters concerning the lands escheated: and it is Tit. Charters, said in Brooke's Ab. that if a tenant is attainted of pl. 39. felony, the lord shall have his lands by escheat; and also the charters; though the charters are not forfeited.

to Incumbrances.

402.

1 Roll. R. 7 Rep. 7 b.

39. The lord who acquires the land by escheat, is Is subject liable to all the incumbrances of the last tenant: thus if a person dies without heirs, having granted a rent, the lord by escheat will hold the lands subject to such rent. So if he dies leaving a wife, she will be entitled to dower; and in the case of a woman, her husband will be entitled to curtesy: for as the tenant has the power to defeat the lord's right to escheat by any mode of alienation, he must consequently have every inferior power.

40. Where a copyhold estate escheats to the lord Turner v. Hodges, of the manor, he will hold it subject to any lease made Hut. 102. by the copyholder, with the licence of the lord; and also to the free bench of the widow.

167.

Lord Mansfield has said, that in all manors where 1 Black. R. admission is necessary to alienation, the escheat is absolute, the lord's consent being still necessary. In those copyholds, the lord is not bound by debts, alienation, or trusts; they are all void against him: but if he consents to a condition or trust on the courtroll, then he is bound by it; for he cannot claim against his own act: but in freeholds, the form of his concurrence not being necessary, he is always considered as much bound as if he was party to the deed of alienation which makes the trust; because the power which the tenant now has by law, is equivalent to the lord's consent to the grant, when it was a strict reversion.

Was not bound to execute a Use.

41. The reason that the lord by escheat is subject to incumbrances is, because they are annexed to the possession of the land, without respect to any privity: but the lord who comes in by escheat is not subject to any incumbrances annexed to the privity of estate; Tit. 11. c. 2. for he comes in, in the post, therefore was not bound $12. to execute a use, his title being paramount, namely, by force of the condition in law tacitly annexed to the land, at the time of the creation of the seigniory, which he had to his own use.

Is not subject to a Trust.

47 Geo. III.

c. 29. infra, Tit. 34.

pa. 67.

42. It follows, by a strict analogy from the case of a use, that the lord by escheat is not bound to execute a trust. In the case of the Crown, it is laid down in all the books that the King could not be seised to a use; therefore cannot be a trustee for any one and that where the King acquires land by escheat, he is not compellable to execute a trust, appears from a modern statute, 39 & 40 Geo. III. c. 88. § 12., by which the Crown is enabled to direct the execution of any trusts to which lands escheated are liable, and to make any grants of such lands.

43. With respect to private persons, Carter reports Lord Bridgeman to have said, that where a man conveys land in trust, and the trustee is attainted of felony, the lands shall be forfeited; though the cestui Prec. in Cha. que trust may have relief in equity. And Sir J. Trevor, M. R. lays it down, that if a trustee dies without heir, the lord by escheat shall have the land; yet subject to the trust in equity.

200.

Juris. Exer.

vol. 1. 390.

Mr. Hargrave has controverted these authorities. As to the first, he says he was in possession of Lord Bridgeman's own manuscript reports of his judgements whilst he was Chief Justice of the Common Pleas: compositions far exceeding Carter's account

of the judgements, in copiousness, depth, and correctness in which there was not an iota which in the least imported an opinion, that upon escheat the lord comes in subject to any trust: and as to the second, the opinion seemed too much of a loose dictum to command much attention.

Nels. 107.

44. In a case determined in 17 Cha. II., where a Stevens person seised in fee contracted to sell his estate, and v. Bailey, died before assurance, without any heir, so that the lands escheated to the lord, the Court refused to compel the lord to convey to the vendee; which could only be upon the principle that the lord by escheat was not compellable, in equity, to execute a trust.

45. It is said by Lord Macclesfield, that if a trustee 1 Stra. 454. of a copyhold dies without heir, the lord becomes entitled by escheat, without being subject to the trust.

Williams v.
Lonsdale,
3 Ves. Jun.

752.

4

c. 43.

46. There were formerly officers called escheators, whose duty it was to find offices after the death of Escheator. the King's tenants, and to certify their inquisitions 1 Inst. 13 b. into the Exchequer. These offices have long since ceased; and now, where a person is supposed to have Doe v. Redheld his lands of the Crown, and to have died without form, 12 East, heirs, a commission of escheat is issued to ascertain Ex parte the facts.

96.

Webster,
6 Ves. 809.

47. In a modern case, Lord Eldon said it was usual 7 Ves. 71. for the Crown to give to the person making discovery Vide Tit. 34. of an escheat as good a lease as it could.

22. Must be beyond Time of 44. Descent of prescriptive Es

Origin of
Prescription.

BY

Y the law of nature, occupancy not only gave a right to the temporary use of the soil, but also a permanent property in the substance of the earth itself; and to every thing annexed to, or issuing out of it. Hence possession was the first act from which the right of property was derived: it has therefore been established as a rule of law, in every civilized country, that a long and continued possession should give a title to real property.

Lib. 2. Tit. 6.

2. This mode of acquisition was well known in the Vin. ad Inst. Roman law by the name of usucapio; because a person who acquired a title in this manner, might be said, usu rem capere. And is thus defined by Modestinus.-Adjectio dominii per continuationem possessionis temporis lege definiti. In the English law it is called 1 Inst. 113 b. prescription.-Prescriptio est titulus ex usu et tempore substantiam capiens, ab auctoritate legis.

Domat.

vol.

3. Every species of prescription by which pro- 461. perty is acquired or lost, is founded on this presumption, that he who has a quiet and uninterrupted possession of any thing for a certain number of years, is supposed to have a just right; without which he could not have been suffered to continue in the enjoyment of it. For a long possession may be considered as a better title than can commonly be produced; as it supposes an acquiescence in all other claimants; and that acquiescence also supposes some reason for which the claim was forborne.

4. The doctrine of prescription appears to have been very soon established in England. And from what is said of it in Bracton, seems to have been derived from the Roman law; for he lays it down, that a title may be gained both to corporeal and incorporeal hereditaments by a long and uninterrupted possession,-Dictum est in precedentibus quali- Lib. 2. c. 22. ter rerum corporalium dominia ex titulo, et justa causa acquirendi, transferuntur per traditionem. Nunc autem dicendum qualiter transferuntur sine titulo, per usu captionem; scil. per longam continuam et pacificam possessionem, ex diuturno tempore, et sine traditione.

5. Our legal writers, however, have only allowed prescription to operate in the case of incorporeal hereditaments; such as rights of common, rents, &c., where the person who claims can show no other title