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SELECT CASES

AND OTHER

AUTHORITIES ON THE LAW OF PROPERTY.

BOOK VII.

ACQUISITION OF PROPERTY ON DEATH OF FORMER

OWNER.

CHAPTER I.

ESCHEAT.

LIT. § 348. Also, if lord and tenant be, and the tenant make a lease for term of life, rendering to the lessor and his heirs such an annual rent, and for default of payment a re-entry, &c., if after the lessor dieth without heir during the life of the tenant for life, whereby the reversion cometh to the lord by way of escheat, and after the rent of the tenant for life is behind, the lord may distrain the tenant for the rent behind; but he may not enter into the land by force of the condition, &c., because that he is not heir to the lessor, &c.

Co. LIT. 13 a. Escheat, eschaeta, is a word of art, and derived from the French word escheat (id est) cadere, excidere or accidere, and signifieth properly when by accident the lands fall to the lord of whom they are holden, in which case we say the fee is escheated. And therefore, of some, escheats are called excadentiæ or terræ excadentiales. "Dominus vero capitalis loco hæredis habetur, quoties per defectum vel delictum extinguitur sanguis sui tenentis. Loco hæredis et haberi poterit cui per modum donationis fit reversio cujusque tenementi.” And Ockam (who wrote in the reign of Henry the Second) treating of tenures of the king, saith, "porro eschaetæ vulgo dicuntur, quæ decedentibus hiis qui de rege tenent, &c., cum non existit ratione sanguinis hæres, ad fiscum relabuntur." So as an escheat doth happen two manner of ways, "aut per defectum sanguinis," i. e. for default of heir, "aut per delictum tenentis," i. e. for felony, and that is by judgment three manner of ways, "aut quia suspensus per collum, aut quia abjuravit regnum, aut quia utlegatus est." And therefore they

VOL. IV. 1

which are hanged by martial law "in furore belli" forfeit no lands; and so in like cases escheats by the civilians are called "caduca."

The father is seised of lands in fee holden of I. S., the son is attainted of high treason, the father dieth, the land shall escheat to I. S., propter defectum sanguinis, for that the father died without heir. And the king cannot have the land, because the son never had anything to forfeit. But the king shall have the escheat of all the lands whereof the person attainted of high treason was seised, of whomsoever they were holden.

Co. LIT. 13 b. And it is to be well observed that our author saith, if he hath no heir, &c., the land shall escheat. In which words is implied a diversity (as to the escheat) between fee simple absolute, which a natural body hath, and fee simple absolute, which a body politic or incorporate hath. For if land holden of I. S. be given to an abbot and his successors, in this case if the abbot and all the convent die, so that the body politic is dissolved, the donor shall have again this land, and not the lord by escheat.1 And so if land be given in fee simple to a dean and chapter, or to a mayor and commonalty, and to their successors, and after such body politic or incorporate is dissolved, the donor shall have again the land, and not the lord by escheat. And the reason and the cause of this diversity is, for that in the case of a body politic or incorporate the fee simple is vested in their politic or incorporate capacity created by the policy of man, and therefore the law doth annex the condition in law to every such gift and grant, that if such body politic or incorporate be dissolved, that the donor or grantor shall re-enter, for that the cause of the gift or grant faileth; but no such condition is annexed to the estate in fee simple vested in any man in his natural capacity, but in case where the donor or feoffor reserveth to him a tenure, and then the law doth imply a condition in law by way of escheat. Also (as hath been said) no writ of escheat lieth but in the three cases aforesaid, and not where a body politic or incorporate is dissolved.

3 INST. 21. If a man seised in fee of a fair, market, common, rentcharge, rent-seck, warren, corody, or any other inheritance, that is not holden, and is attainted of felony, the king shall have the profits of them during his life: but after his decease, seeing the blood is corrupted, they cannot descend to the heir, nor can they escheat because they be not holden, they perish and are extinct by act in law: for in escheats for petit treason or felony, a tenure is requisite, as well in the case of the king, as of the subject.

1 Vid. tamen Mich. 20 Jac. C. B. Johnson and Morris, that it shall escheat. Hal. MSS. which also cites 21 E. 4, 1, and 21 H. 7, 9. See further on this subject, Godb. 211, and Mo. 283, which are with Lord Coke. But the case of Johnson and Norway, in Win. 37, which seems to be the same as that cited by Lord Hale, is against the donor, though it is not mentioned in Winch that the judges finally decided the point. See also contra Lord Coke, the case of Southwell and Wade, in 1 Ro. Abr. 816 A, pl. 1, and s. c. in Poph. 91. - Hargrave's note ad loc. See Gray, Rule against Perpetuities, SS 44-51.

JOHNSON v. NORWAY.

COMMON PLEAS. 1622.

[Reported Winch, 37.]

JOHNSON brought an action of trespass against Norway of trespass made in a piece of ground, and the defendant pleaded that 14 H. 7, Roger Le Strange and Anne his wife were seised of the manor of D., and one Giles Sherington, abbot of C., was seised of an acre of land in fee, and held this of the said Roger Le Strange as of the manor of D. aforesaid, and that the 22 H. 7, the abbot and all the monks died, by which the said land escheated to Roger, &c., and the manor descended to his son and heir after his death; who conveyed the manor of which the acre is parcel after the escheat by mean conveyance to Hobert in fee, and that Hobert 12 Eliz. enfeoffed one Wright of the manor, of which the said acre is parcel, and so justified by a conveyance from Wright to the defendant: the plaintiff replied by protestation that the abbot was not eligible, and for plea he said, that the aforesaid Hobert 10 Eliz. enfeoffed I. S. of the said acre of land, absque hoc, that he enfeoffed Wright of the said manor of which the said acre is parcel; and upon this the defendant demurred generally. And Serjeant Attoe argued for the plaintiff, that the plea of the defendant is evil, and then though the replication of the plaintiff is not good, yet the plaintiff shall have judgment, and he cited Turner's Case. HOBERT, It is true, if the replication be merely void, then it is as you had said, but if the replication be the title of the plaintiff, and that be insufficient, there the plaintiff shall not have judgment, though the plea in bar was evil. Attoe agreed, that if it appear by the plaintiff's own showing that he had no cause of action, and that he had no title, he shall not have judgment, but here he had made a good title by the lease of the said acre of land, and though our traverse is evil, and sounds in doubleness, yet the defendant had demurred generally, and so he had lost the advantage of the doubleness, or of the negative pregnant, for if a man plead double matter, this is only matter of form, and not of substance, and therefore after verdict it is good as hath been adjudged: but he proceeded in his argument, and he said that the bar of the defendant is not good, for by his own showing this acre of land is not parcel of the manor, for by the dissolution of the monastery by the death of all the monks, the land shall go to the founders and donors, and not to escheat to the lord of which that is holden, as appears 2 H. 6, 7, and 5 H. 7, if an annuity or rent be granted to an abbot in fee, and the abbot and all his monks do die, the annuity or the rent is extinct, and shall not escheat see the Dean of Norwich's Case, Co. 3, agreed, that by the death of the abbot and his convent the corporation is dissolved, and then the possession shall go to the founders, and shall not escheat to

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the lord of the manor of which the land was holden, and he said that this point is proved clearly by the Statute, of the 27 H. 8, and 31 H. 8, of Monasteries, in which Statutes there is an express saving to all persons, except to the donors and to their heirs; and no mention is made of the saving of the right of those of whom the land was holden; and that proves clearly, that if the makers of the Statute had thought that the land had escheated to the lords, they would have excepted them in the saving of the Act, as they had excepted the donors and founders, for if otherwise the lands and possessions shall escheat to the lords of which the land was holden, they are within the saving of the Statute; and then it will follow that after the death of all the monks, as at this day, that the lords shall have the land by escheat, which the sages of the law never dreamt of who made that Statute, that anything may accrue to the lord, and therefore they provided only for the title of the donors and founders, which is an argument that they thought that upon the dissolution of the monasteries that the lands shall go to the founders, and the same be thought concerning a corporation at this day, as. of Sutton's Hospital, &c., and so be concluded that, because in the bar of the defendant he claimed to hold from the lord, to whom he supposed the land to escheat, and did not claim, &c., by his own showing the bar is not good and though our replication and traverse is not good, yet the plaintiff shall have judgment.

But admitting that the bar is good, yet the replication and traverse is good, and then judgment shall be given to the plaintiff: and the case is, the defendant pleaded a feoffment of the manor 12 Eliz. to Wright after that he had showed the escheat of an acre, the plaintiff replied that the 10th Eliz. the feoffor enfeoffed C. of the acre of land, absque hoc that he was enfeoffed of the manor of which the acre is parcel, and Attoe argued that the traverse is good, and he alleged 38 H. 6, 49, the same traverse, and here when the defendant had pleaded that the acre escheated, and had alleged a feoffment of the manor, and had not expressly alleged a feoffment of the acre, the plaintiff may traverse that which is not expressly alleged, because this destroys the very title of the defendant; and he cited for that 34 H. 6, 15, a writ of privilege in trespass, as a servant to an auditor of the exchequer, the plaintiff replied that he was servant to him in husbandry, absque hoc that he was his servant to wait and attend upon him in his office, and it was holden a good traverse, and yet that was not expressly alleged by the defendant.

HOBERT, Chief Justice, said, that the traverse is not good, for by the feoffment which was made the 12th Eliz. he had confessed and avoided the feoffment which was made 10th Eliz., and so there needed no traverse, and therefore, he said, the great doubt of the case will be upon the bar of the defendant, whether by the death of the abbot and the monks the land escheat to the lords of whom that was holden, or whether that shall go to the donors and to the founders, and he thought that the land shall escheat, to which WINCH seemed to agree; and

HOBERT said, that the writ of contra formam donationis was given to the founder or donor by the Statute, and not by the common law; but in the principal case, the judges said they would advise of that, and gave day over to argue that again.1

1 See preceding note.

NOTE. -"Escheat therefore being a title frequently vested in the lord by inheritance, as being the first of a seigniory to which he was entitled by descent (for which reason the lands escheated shall attend the seigniory, and be inheritable by such only of his heirs as are capable of inheriting the other), it may seem in such cases to fall more properly under the former general head of acquiring title to estates, viz., by descent (being vested in him by act of law, and not by his own act or agreement), than under the present, by purchase. But it must be remembered that, in order to complete this title by escheat, it is necessary that the lord perform an act of his own, by entering on the lands and tenements so escheated, or suing out a writ of escheat: on failure of which, or by doing any act that amounts to an implied waiver of his right, as by accepting homage or rent of a stranger who usurps the possession, his title by escheat is barred. It is therefore in some respect a title acquired by his own act, as well as by act of law. Indeed, this may also be said of descents themselves, in which an entry or other seisin is required, in order to make a complete title: and therefore this distribution of titles by our legal writers, into those by descent and by purchase, seems in this respect rather inaccurate, and not marked with sufficient precision: for, as escheâts must follow the nature of the seigniory to which they belong, they may vest by either purchase or descent, according as the seigniory is vested. And, though Sir Edward Coke considers the lord by escheat as in some respects the assignee of the last tenant, and therefore taking by purchase; yet, on the other hand, the lord is more frequently considered as being ultimus hæres, and therefore taking by descent in a kind of caducary succession." - 2 Bl. Com. 244. See Co. Lit. 18 b, Hargrave's note.

“Great care must be taken to distinguish between forfeiture of lands to the king and this species of escheat to the lord; which by reason of their similitude in some circumstances, and because the Crown is very frequently the immediate lord of the fee, and therefore entitled to both, have been often confounded together. Forfeiture of lands, and of whatever else the offender possessed, was the doctrine of the old Saxon law, as a part of punishment for the offence; and does not at all relate to the feudal system, nor is the consequence of any seigniory or lordship paramount: but, being a prerogative vested in the Crown, was neither superseded nor diminished by the introduction of the Norman tenures; a fruit and consequence of which, escheat must undoubtedly be reckoned. Escheat therefore operates in subordination to this more ancient and superior law of forfeiture.

"The doctrine of escheat upon attainder, taken singly, is this: that the blood of the tenant, by the commission of any felony (finder which denomination all treasons were formerly comprised), is corrupted and stained, and the original donation of the feud is thereby determined, it being always granted to the vassal on the implied condition of dum bene se gesserit. Upon the thorough demonstration of which guilt, by legal attainder, the feudal covenant and mutual bond of fealty are held to be broken, the estate instantly falls back from the offender to the lord of the fee, and the inheritable quality of his blood is extinguished and blotted out forever. In this situation the law of feudal escheat was brought into England at the Conquest; and in general superadded to the ancient law of forfeiture. In consequence of which corruption and extinction of hereditary blood, the land of all felons would immediately revest in the lord, but that the superior law of forfeiture intervenes, and intercepts it in its passage: in case of treason, forever; in case of other felony, for only a year and a day; after which time it goes to the lord in a regular course of escheat, as it would have done to

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