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when the lands fall by accident to the lord, of whom they are holden; in which cafe, we fay the fee is efcheated.

§ 7. The doctrine of efcheats was originally derived from the feudal law, and was introduced into England by the Normans. It is founded on this principle, that the blood of the person last seised in fee is, by fome means or other, utterly extinct and gone: and, fince none can inherit his eftate but fuch as are of his blood and confanguinity, it follows as a regular confequence, that the inheritance itself muft fail. The land must become what the feudal writers call feodum apertum, and must result back to the lord of the fee, from whom, or from whose ancestor, it was originally derived.

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§ 8. An efcheat was, therefore, in fact, a fpecies of reverfion, and is fo called and treated by Bracton. Bract. 23 d. And when a power of alienation was introduced, the change of the tenant changed the chance of the efcheat, but did not destroy it: and, as foon as a general liberty of alienation was allowed, without the confent of the lord, this right became a fort of caducary fucceffion, the lord taking as ultimus hæres.

Fitz. N. B.

S 9. Fitzherbert says, a writ of efcheat lies where a tenant in fee-fimple of any lands or tenements, which 143. he holds of another, dies feifed, without heir general or fpecial; the lord fhall have a writ of efcheat against him who is tenant of the lands after the death of his tenant, and fhall recover the land; because he shall have the fame in lieu of his fervices.

§ 10. Mr.

I Inft. 18 b.

8. 2.

Efcheat for

Default of
Heirs,

1 Inft. 13 a.

Lit. f. 4.

§ 10. Mr. Hargrave has justly observed, that an escheat, in appearance, participates of the nature both of a purchase and of a defcent. Of the former, because some act of the lord is requifite to perfect his title; and the actual poffeffion of the land cannot be gained till he enters, or brings his writ of efcheat. Of the latter, because it follows the nature of a feignory, and is inheritable by the fame person.

§ 11. Lord Coke fays, an escheat doth happen in two manner of ways; aut per defectum fanguinis, that is, for the default of heir, aut per delictum tenentis.

Efcheats arifing from deficiency of blood, whereby the descent is at an end, can only be in the three folTit. 29. c. 3. lowing cafes: 1ft, Where the tenant dies without any relations on the part of any of his ancestors: 2d, Where he dies without any relations on the part of thofe ancestors from whom the eftate defcended: and, 3d, Where he dies without any relations of the whole blood. In all these cafes the lands efcheat, because there is no one capable of inheriting them,

E cheat from Corruption of Blood,

Tit. 29. c. 2.

f. 20.

§ 12. Efcheats propter delictum tenentis arife in confequence of a perfon's being attainted of treafon or felony, by which he becomes incapable of inheriting from any of his relations, or of tranfmitting any thing. by heirship; so that, if any one dies feifed in fee of Jands, whose heir at law is attainted, the lands escheat. And, where a perfon attainted dies feised of lands, as he cannot have an heir, they will alfo efcheat, unless forfeited where that happens, they are interrupted in

their paffage by the crown; in the case of treafon, for ever; in the case of felony, for a year and a day; after which, they efcheat to the lord of whom they were held.

§ 13. There is one inftance, in which lands, held in fee-fimple, are not liable to efcheat: for, if lands held of 7. S. be given to a dean and chapter, or to a 1 Inft. 136. mayor and commonalty, and to their fucceffors; if fuch corporation be diffolved, the land fhall not efcheat to the lord, but fhall revert to the donor. And Lord Coke fays, the reafon of this diverfity is, that, in the cafe of a body politic, the fee-fimple is vested in them, in their political capacity: and, therefore, the law annexes a condition to every fuch gift, that, if fuch body politic be diffolved, the donor fhall re-enter, for that the cause of the gift faileth. But no fuch condition is annexed to an estate in fee-fimple, vested in any man in his natural capacity; except in cafes where the donor reserves a tenure, and then the law implies a condition by way of escheat.

§ 14. As the lord's right to an efcheat arifes folely from the want of a tenant to do the fervices, it follows that, whenever there is a tenant, the lord cannot claim the lands by efcheat.

No Efcheat, where there

is a Tenant.

Sect. 390.

Gilb. Ten.

Thus, Littleton fays, if there be lord and tenant, and the tenant be diffeifed, and the diffeifor alien to 25. another in fee, and the alienee die without iffue, and the lord enters as in his escheat, the diffeifee may enter

upon

1 Inft. 240 a.

7. I.

N. B. 144.

I Inft. 268 a & b.

Fitz, N. B. 144.

upon the lord, because the lord does not come to the land by descent, but by escheat.

Mr. Butler obferves upon this paffage, that when the lord comes to the land by escheat, the law only casts the freehold on him for want of a tenant. The dif feisee,, notwithstanding the diffeifin, continues the rightful tenant: and, as by his entry, he fills the poffeffion, the lord's title, which was good only while a tenant was wanting, muft neceffarily be at an end.

§ 15. Fitzherbert fays, if the tenant be diffeifed, and afterwards die without heir, it seemeth the lord shall have a writ of efcheat, because the tenant died in the homage.

§ 16. Lord Coke fays, if the diffeifor dies feised, and the diffeifee dies without heir, and afterwards the lord accepts rent from the heir or feoffee of the dif feifor, this fhall bar him of his escheat; because they are in by title. For, if the diffeifor had made a feoffment in fee, or died feifed, and after the diffeifee died without heir, there would be no efcheat; because the lord had a tenant in by title.

§ 17. Where a man hath title to a writ of escheat, and he accepts homage of the tenant, he fhall not afterwards have the writ against him; because he hath accepted him as his tenant. So, if he accepts fealty of him but acceptance of rent will not bar the writ of efcheat.

$ 18. From

S 18. From this principle it follows, that any alienation of the tenant will bar the lord of his efcheat and this doctrine has been carried fo far, that a feoffment, made by an infant in perfon, will prevent an escheat.

§ 19. A mere contract for fale, however, does not bar the lord of his escheat, as will be fhewn hereafter.

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214.

I Inft.236 4.

"..

3 Bulft. 43. Godb. 411.

§ 20. A devife, although it only takes effect at the Roll. Rep. moment of the teftator's death, will prevent an escheat: and, in a note of Lord Nottingham's to the first Institute, it is said that, where a woman, feised of lands in London, devised them to be fold by her executors, and died without an heir, the devise prevented the escheat which the king pretended to have, and the executors could enter and fell; therefore more than a bare authority paffed. Yet in 1651, on evidence at the bar between Wilkinson and White, this cafe was stated; and Lord Ch. Juft. Roll doubted of this opinion, because he faid it was only a defcent according to the words of Littleton; and that it appeared to him, that when lands are devised to be fold by executors, there no intereft paffes, as in the last clause before.

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Reeve v.

Att. Gen.
2 Atk. 233.

§ 21. A void devife will not prevent an efcheat: as, Idem. where an eftate in fee is devifed to T. remainder to a Vaugh. Rep. 270. ftranger, this remainder will not prevent the lands from efcheating, on the death of T. without heirs.

S 22. Whenever

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