out bringing any action to recover possession of the lands, the son gains the actual right of possession, and I retain nothing but the mere right of property. And even this right of property will fail, or at least it will be without a remedy, unless I pursue it within the space of sixty years. So also if the father be tenant in tail, and alienes the estate-tail to a stranger in fee, the alienee thereby gains the right of possession, and the son hath only the mere right or right of property. And hence it will follow, that one man may have the possession, another the right of possession, and a third the right of property. For if tenant in tail infeoffs A in fee-simple, and dies, and B disseises A; now B will have the possession, A the right of possession, and the issue in tail the right of property. A may recover the possession against B; and afterwards the issue in tail may evict A, and unite in himself the possession, the right of possession, and also the right of property. In which union consists,

IV. A COMPLETE title to lands, tenements, and hereditaments. For it is an ancient maxim of the lawe, that no title is completely good, unless the right of possession be joined with the right of property; which right is then denominated a double right, jus duplicatum, or droit droits. And when to this double right the actual possession is also united, when there is, according to the expression of Fletas, juris et seisinae conjunczio, then, and then only, is the title completely legal.

e Mirr. 1. 2. c. 27. f Co. Lätt. 266.

gl. 3. c. 15. sec. 5.

Braet. 1. 5. tr. 3. c. 5.

'CHAPTER THE FOURTEENTH

OF TITLE BY DESCENT.

THE several gradations and stages, requisite to form a complete title to lands, tenements, and hereditaments, having been briefly stated in the preceding chapter, we are next to consider the several manners, in which this complete title (and therein principally the right of propriety) may be reciprocally lost and acquired: whereby the dominion of things real is either continued, or transferred from one man to another. And here we must first of all observe, that (as gain and loss are. terms of relation, and of a reciprocal nature) by whatever method one man gains an estate, by that same method or its correlative some other man has lost it. As where the heir acquires by descent, the ancestor has first lost or abandoned his estate by his death: where the lord gains land by escheat, the estate of the tenant is first of all lost by the natural or legal extinction of all his hereditary blood: where a man gains an interest by occupancy, the former owner has previously relinquished his right of possession: where one man claims by prescription or immemorial usage, another man has either parted with his right by an ancient and now forgotten grant, or has forfeited it by the supineness or neglect of himself and his ancestors for ages: and so, in case of forfeiture, the tenant by his own misbehaviour or neglect has renounced his interest in the estate; whereupon it devolves to that person who by law may take advantage of such default: and, in alienation by common assurances, the two considerations of loss and acquisition are so interwoven, and so constantly

contemplated together, that we never hear of a conveyance, without at once receiving the ideas as well of the grantor as the grantee.

THE methods therefore of acquiring on the one hand, and of losing on the other, a title to estates in things real, are reduced by our law to two: descent, where the title is vested in a man by the single operation of law; and purchase, where the title is vested in him by his own act or agreement a (1).

DESCENT, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as his heir at law. An heir therefore is he upon whom the law casts the estate immediately on the death of the ancestor: and an estate, so descending to the heir, is in law called the inheritance.

THE doctrine of descents, or law of inheritances in feesimple, is a point of the highest importance; and is indeed the principal object of the laws of real property in England. All the rules relating to purchases, whereby the legal course of descents is broken and altered, perpetually refer to this settled law of inheritance, as a datum or first principle universally known, and upon which their subsequent limitations are to work. Thus a gift in tail, or to a man and the heirs of his body, is a limitation that cannot be perfectly understood without a previous knowledge of the law of descents in fee-simple. One may well perceive that this is an estate confined in its descent to such heirs only of the donee, as have sprung or shall spring from his body; but who those heirs are, whether all his children both male and female, or

a Co. Litt. 18.

(1) Purchase in law is used in contradistinction to descent, and is any other mode of acquiring real property, viz. by devise, and by every species of gift, or grant; and as the land taken by purchase has very different inheritable qualities from land taken by descent, the distinction is important. See page 241. post.

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the male only, and (among the males) whether the eldest, youngest, or other son alone, or all the sons together, shall be his heir; this is a point, that we must result back to the standing law of descents in fee-simple to be informed of IN order therefore to treat a matter of this universal consequence the more clearly, I shall endeavour to lay aside such matters as will only tend to breed embarrassment and confusion in our inquiries, and shall confine myself entirely to this one object. I shall therefore decline considering at present who are, and who are not, capable of being heirs; reserving that for the chapter of escheats. I shall also pass over the frequent division of descents in those by custom, statute, and common law: for descents by particular custom, as to all the sons in gavelkind, and to the youngest in borough-english, have already been often hinted at, and may also be incidentally touched upon again; but will not make a separate consideration by themselves, in a system so general as the present: and descents by statute, or fees-tail per formam doni, in pursuance of the statute of Westminster the second, have also been already copiously handled; and it has been seen that the descent in tail is restrained and regulated according to the words of the original donation, and does not entirely pursue the common law doctrine of inheritance; which, and which only, it will now be our business to explain.

AND, as this depends not a little on the nature of kindred, and the several degrees of consanguinity, it will be previously necessary to state, as briefly as possible, the true notion of this kindred or alliance in blood d.

CONSANGUINITY, or kindred, is defined by the writers on these subjects to be "vinculum personarum ab eodem stipite "descendentium;" the connexion or relation of persons de

b See Vol. I. pag. 74, 75. Vol. II. 85.

e See pag. 112, etc.

pag.

83.

d For a fuller explanation of the doctrine

of consanguinity, and the consequences resulting from a right apprehension of its nature, see an essay on collateral consanguinity. (Law tracts, Oxon. 1762, 8vo. or 1771, 4to.)

scended from the same stock or common ancestor. This consanguinity is either lineal, or collateral.

LINEAL consanguinity is that which subsists between [203] persons, of whom one is descended in a direct line from the other, as between John Stiles (the propositus in the table of consanguinity) and his father, grandfather, great-grandfather, and so upwards in the direct ascending line; or between Johu Stiles and his son, grandson, great-grandson, and so downwards in the direct descending line. Every generation, in this lineal direct consanguinity, constitutes a different degree, reckoning either upwards or downwards: the father of John Stiles is related to him in the first degree, and so likewise is his son; his grandsire and grandson in the second; his greatgrandsire and great-grandson in the third. This is the only natural way of reckoning the degrees in the direct line, and therefore universally obtains, as well in the civile, and canon f, as in the common law 8.

THE doctrine of lineal consanguinity is sufficiently plain and obvious; but it is at the first view astonishing to consider the number of lineal ancestors which every man has, within no very great number of degrees; and so many different bloods h is a man said to contain in his veins, as he hath lineal ancestors. Of these he hath two in the first ascending degree, his own parents; he hath four in the second, the parents of his father and the parents of his mother; he hath eight in the third, the parents of his two grandfathers and two grandmothers; and by the same rule of progression, he hath an hundred and twentyeight in the seventh; a thousand and twenty-four in the tenth; and at the twentieth degree, or the distance of twenty generations, every man hath above a million of ancestors, as common arithmetic will demonstrate. This lineal consanguinity, we may observe, falls strictly within the definition of vinculum personarum ab eodem stipite descendentium; since lineal relations'

e Ff. 38. 10. 10.

f Decretal. 1. 4. tit. 14.

g Co. Litt. 23.

h Ibid. 12.

i This will seem surprising to those who

are unacquainted with the increasing power of progressive numbers: but is palpably evi, dent from the following table of a geometrical progression, in which the first term is 2, and the denominator also 2: or, to speak