To whom. Lands efcheat. S 22. Whenever lands efcheat, they become the property of the lord of the feignory, or person of whom they were held. Now, by the ftatute 12 Cha. 2. § 24. for changing all the ancient tenures into free Tit. 1. f. 32. and common focage, the rents and services (among which fealty is accuftomably due) are preserved to the lord of him therefore the lands are still holden, and to him they may efcheat. But, if all these badges of tenure have been neglected to be preserved, and it be no longer known of whom the lands are mediately Booth's Real holden; then the king, as the great and chief lord, shall have them by escheat: for to him fealty belongs, May v. Street, and of him they are certainly holden by presumption Cro. Eliz.120. of law, and without the necessity of proof. A&. 135. The Lord. by cumbrances. Roll. Rep. 402. 7 Rep. 7 6. § 23. The lord, who acquires the land by escheat, fubject to In- is liable to all the incumbrances of the last tenant. Thus, if a perfon dies without heirs, having granted a rent, the lord by efcheat will hold the lands, fubject to fuch rent. So, if he die leaving a wife, fhe will be entitled to dower: and, in the cafe of a woman, her husband will be entitled to curtefy. For, as the tenant has a power to defeat the lord's right to efcheat by any mode of alienation; he muft confequently have every inferior power. Turner v. Hut. R. 102. § 24. Where a copyhold eftate efcheats to the lord of the manor, he will hold it fubject to any leafe, made by the copyholder, with the licence of the lord; and also to the free bench of the widow. $ 25. The $25. The reafon, that the lord by efcheat is fubject to the above mentioned incumbrances, is, because they are annexed to the poffeffion of the land, without refpect to any privity. But the lord, who comes in by efcheat, is not subject to any incumbrances annexed to the privity of the eftate; for he comes in, in the post and therefore he was not bound to execute a use, for his title was paramount, namely by force of the condition in law tacitly annexed to the land, at the time of the creation of the feignory; and the tenancy comes in lieu of the feignory, which he had to his own ufe. § 26. It appears doubtful whether, at prefent, a lord by efcheat (being a private perfon) is fubject to a truft. in It is faid, indeed, by the Mafter of the Rolls, the cafe of Eales v. England, that if a trustee dies without heir, the lord by efcheat will have the land, yet fubject to the truft in Chancery. § 27. This doctrine is contradicted in another cafe, where a perfon, feifed in fee, contracted to fell his eftate, and died before affurance, and without heir, fo that his lands efcheated to the lord; and the court refufed to compel the lord to convey to the vendee : which could only be on the principle, that the lord Vide in ra. by efcheat was not compellable in equity to execute a trust. § 28. It is laid down by Lord Chancellor Maccles- 1 Stra. 454. field, that, if a trustee of a copyhold fhould die with VOL. III. Kk out Vice Burgess v. Wheate, infra L. 41. May diftrain for Rent. out heir, the lord would be entitled by efcheat, without being fubject to the truft. 3. c. 88. § 12. his S 29. The King is clearly not fubject to a truft in a case of this kind. But, by the statute 39 & 40 Geo. Majefty is enabled by warrant, under the sign manual, to direct the execution of any trufts, to which lands efcheated are liable; and to make any grants of fuch lands to any trustee or trustees, or otherwife, for the execution of fuch trufts. $ 30. The Lord by efcheat may diftrain for rent, due to the last tenant: as, if there be lord and tenant, and the tenant makes a leafe for life, rendering rent; if he afterwards dies without heir, whereby the reverfion comes to the lord by way of efcheat, 1 Inft. 215 b. he may distrain for the rent, because it is incident to the reverfion. But he cannot take advantage of a condition of re-entry; because he is not heir to the leffor. Entitled to a Term to attend. S 31. Where the inheritance efcheats, and there is an outstanding term which is attendant on the inheritance, the lord by efcheat will be entitled to fuch term. Thruxton v. 1 Vern. 340. § 32. A perfon, feifed in fee, limited a term for 100 years to trustees, in trust to attend the inheritance. He afterwards died without an heir (being a bastard): and the question was, whether this term fhould efcheat to the King, with the inheritance. It was determined, that the King was entitled to the term: for he was not not in barely in the poft, but in the per alfo; and the term for years goes with the inheritance, by the express limitation of the party. § 33. The lord by efcheat is entitled to all the charters, concerning the lands efcheated. And it is faid in Brook's Abridgement, that, if a tenant is attainted of felony, the lord fhall have his lands by efcheat, and alfo the charters; though the charters are not forfeited. efcheat. § 34. All lands and tenements held in focage, whe- What Things ther of the King, or of a fubject, are liable to efcheat, upon failure of heirs of the laft tenant. But lands, Rob. Gav. held by the tenure of gavelkind, do not efcheat for 226. felony, but defcend to the heir of the felon: from which Sir William Blackstone concludes, that the tenure 2 Comm.252. of gavelkind is of Saxon, and not of Norman, origin. § 35. Eftates, held by copy of court roll, are alfo fubject to efcheat to the lord of the manor, of whom they are held. But, before the lord enters on the lands escheated to him, the homage ought to prefent the death of the tenant without heirs and proclamation ought to be made, to give notice that, if any perfon comes in and juftly claims as heir to the last tenant, he fhall be admitted. § 36. No fpecies of real property, however, is fubject to escheat, but what lies in tenure: for efcheat is a confequence and fruit of tenure. Co. Cop. f. 28. 170. 3 Inft. 21. Tit. Efcheat, pl. 6. Tit. Ten. pl 15. § 37. Thus, if a perfon feifed in fee of a rentcharge, right of common, free warren, or any other fpecies of inheritance, that is not holden, is attainted of felony; the King fhall have the profits of them during his life; but, after his decease, as they cannot defcend to his heir, on account of corruption of blood, they become extinct. For, in efcheats, on account of petit treason or felony, a tenure is requifite, as well in the cafe of the King as of the fubject. § 38. It is faid in Roll's Abridgement, that, if a man grants an advowfon in grofs to another in fee, and the grantee dies without heir; it feems that it fhall revert to the grantor, not being held of any man: and he adds, it seems, if the grantor fhall not have it, the King fhall have it, as fupreme ruler. But, in title Tenures B. pl. 1. it is expressly said, that an advowfon in grofs lies in tenure. § 39. In Brook's Abridgement a case is stated, where, in quare impedit, the plaintiff entitled himself, that the advowfon was held of him by homage and fealty; and it was not contradicted that the advowfon well lay in tenure. A Truft does not efcheat. $ 40. A ufe was not liable to efcheat, because it was a fpecies of property that did not lie in tenure. And as trufts are now, what uses were before the ftat. Hen. 8.; it has been determined in the following cafe, after great confideration, that a truft eftate is not liable to efcheat; but that, where ceftui que 27 truft |