ticular tenant, of all which our author speaks hereafter. 9thly. By bargain and sale by deed indented and enrolled, ordained by statute since Littleton wrote. 10thly. By devise by custom of some particular place, as he shews hereafter, and since he wrote, by will in writing generally by authority of parliament. Our author speaks of feoffments and grants, whereby is implied lawful conveyances; and therefore this rule extends not to disseisins, abatements, or intrusions into lands or tenements, or to usurpations to advowsons, &c. in which cases estates in fee-simple are gained by the act and wrong of the disseisors, abators, intruders, and usurpers; and if a disseisin, abatement, or intrusion be made to the use of another, if cestui que use agrees thereunto in pais [that is, openly in the face of the country, or before witnesses] by this bare agreement he gains a fee-simple, without any livery of seisin, or other ceremony. Disseisin and usurpation is always in fee. SECTION 2. descent, AND if a man purchase land in fee-simple, and die without issue, Collateral he who is his next cousin collateral of the whole blood, how far soever he be from him in degree, may inherit and have the land as heir to him. Littleton shews here who shall be heirs to lands in fee-simple; for he intends not this case of an estate tail, for he speaks of an heir of the whole blood, which extends not to estates tail, as shall be said hereafter in this Chapter, Sect. 6. and sisters. [106] Next cousin collateral.] Neither excludes he brothers or sisters, after brothers because he hath a special case concerning them in this Chapter, Sect. 5, and in his Chapter of Parceners; but this is intended where a man purchases lands and dies without issue, having neither brother nor sister, then his next cousin collateral shall inherit. So that here is implied a division of heirs, viz. lineal (whoever shall first inherit), and collateral (who are to inherit for default of lineal). For in descents it is a maxim in law, quòd linea recta semper præfertur transversali. Lineal descent is conveyed downwards in a right line; as from the grandfather to the father, from the father to the son, &c. Collateral descent is derived from the side of the lineal; as grandfather's brother, father's brother, &c. "Next cousin collateral shall inherit" gives a certain direction to the next cousin to the son, [that is, the cousin to the son shall be preferred to the next cousin of the father,] and, therefore, the father's brother and his posterity shall inherit before the grandfather's brother and his posterity. Et sic de cæteris ; for propinquior includit propinquum, et propinquus remotum, et remotus, remotiorem. Upon this word (next) I put this case. One has issue two sons A. and B. and dies; B. has two sons, C. and D. and dies. C. the eldest son has issue, and dies. A. purchases lands in fee-simple, and dies without issue. D. is the next cousin, and yet shall not inherit; but the issue of C.; for he that is inheritable is accounted in law next of blood. And therefore here is understood a division of next, viz. next jure representationis, and next jure propinquitatis ; that is, by right of representation and by right of propinquity. And Littleton means of the right of representation, for legally in course of descents, he is next of blood inheritable. And the issue of C. represent the person of C.; and if C. had lived, he had been legally the next of blood. And whensoever the father, if he had lived, should have inherited, his lineal heir by right of representation shall inherit before any other, though another be jure propinquitatis, nearer of blood; and therefore Littleton intends this case of next cousin of blood immediately inheritable. So that this produces another division of next blood, viz. immediately inheritable, as the issue of C., and mediately inheritable as D., if the issue of C. die without issue; for the issue of C. and all that line, be they never so remote, shall inherit before D. and his line; and therefore Littleton says well, how far so ever he be from him in degree. And here arises a diversity in law between next of blood inheritable by descent, and next of blood capable by purchase; and therefore, in the case before-mentioned, if a lease for life were made to A., with remainder to his next of blood in fee, in this case, as hath been said, D. shall take the remainder, because he is next of blood and capable by purchase, though he be not legally next to take as heir by descent. SECTION 3. BUT if there be father and son, and the father hath a brother that is uncle to the son, and the son purchase land in fee-simple, and dies without issue, living his father, the uncle shall have the land as heir to the son, and not the father, yet the father is nearer of blood; because it is a maxim in law, that inheritances may lineally descend, but not ascend. Yet if the son in this case die without issue, and his uncle enters into the land as heir to the son, (as by law he ought), and after the uncle dies without issue, living the father, the father shall have the land as heir to the uncle, and not as heir to his son, for that he cometh to the land by collateral descent and not by lineal ascent. Father not heir through an to son, except uncle. "next of blood," take. [5 B. & C. 48.] Yet the father is nearer of blood.] And therefore some do hold Remainder to upon these words of Littleton, that if a lease for life were made to the son, the remainder to his next of blood, that the father shall take the remainder by purchase and not the uncle, for that Littleton says the father is next of blood, and yet the uncle is heir. As if a man has issue two sons, and the eldest son has issue a son and dies, then a remainder is limited to his next of blood, the younger son shall take it, yet the other is his heir. It is a maxim in law, that inheritances may lineally descend, but not ascend. [11a] Maxim, i. e. a sure foundation or ground of art, and a conclusion Maxim, what. of reason, so sure and uncontrollable as that they ought not to be questioned. And that which our author here and in other places calls a maxim, hereafter he calls a principle, and it is all one with a rule, a common ground, postulatum, or an axiom, and it were too much curiosity to make nice distinctions between them. And his uncle enters into the land.] For if the uncle in this case does not enter into the land, then cannot the father inherit the land; for there is another maxim in law herein implied, that a man that claims as heir in fee-simple to any man by desceut, must make himself heir to him that was last seised of the actual freehold and inheritance. And if the uncle in this case does not enter, then The uncle must be actually seised. [116] His title defeated by posthumous heir. What seisin of incorporeal hereditaments sufficient for a possessio fratris. Advowson. Same of a re version. Warranty. [12a] had he but a freehold in law and no actual freehold, but the last that was seised of the actual freehold was the son to whom the father cannot make himself heir; and therefore Littleton says, and his uncle enters into the land (as by law he ought), to make the father inherit as heir to the uncle. Note, that true it is that the uncle in this case is heir, but not absolutely heir; for if, after the descent to him, the father has issue a son or daughter, that issue shall enter upon the uncle. And so it is if a man has issue a son and a daughter, the son purchases land in fee and dies without issue, the daughter shall inherit the land; but if the father has afterwards issue a son, this son shall enter into the land as heir to his brother, and if he has issue a daughter and no son, she shall be coparcener with her sister. As by law he ought.] These words as a key do open the secrets of the law; for hereupon is concluded, that where the uncle cannot get an actual possession by entry or otherwise, there the father in this case cannot inherit. And therefore if an advowson be granted to the son and his heirs, and the son dies without issue, and this descends to the uncle, and he dies before he does or can present to the church, the father shall not inherit, because that would make him heir to the son, which he cannot be. And so of a rent and the like. But if the uncle had presented to the church, or had seisin of the rent, there the father should have inherited. For Littleton puts his case of an entry into land but for an example. If the son make a lease for life, and dies without issue, and the reversion descends to the uncle, and he dies, the reversion shall not descend to the father, because in that case he must make himself heir to the son. A. infeoffs the son with warranty to him and his heirs, the son dies, the uncle enters into the land and dies, the father if he be impleaded shall not take advantage of this warranty, for then he must vouch A. as heir to his son, which he cannot do; for albeit the warranty descended to the uncle, yet the uncle leaves it as he found it, and then the father by Littleton's (ought) cannot take advantage of it. For Littleton, Sect. 603, says that warranties shall descend to him that is heir by the common law ; and Sect. 718, he says that every warranty which descends, doth descend to him who is heir to the person that made the warranty by the common law, which proves that the father shall not be bound by the warranty made by the son, for that the father cannot be heir to the son who made the warranty. And a warranty shall not go with tenements whereunto it is annexed, to any special heir, but only to the heir at the common law. And therefore if the uncle be seised of certain lands, and is disseised, and the son releases to the disseisor with warranty, and dies without issue, this shall bind the uncle; but if the uncle dies without issue, the father may enter, for the warranty cannot descend upon him. So if the son concludes himself by pleading concerning the Estoppel. tenure and services of certain lands, this shall bind the uncle; but if the uncle die without issue, this shall not bind the father, because he cannot be heir to the son, and consequently not to the estoppel in that case; but if it be such an estoppel as runs with the land, then it is otherwise. SECTION 4. Descent. Paternal line preferred, except it be a maternal estate. AND in case where the son purchases land in fee-simple, and dies |