the acquirer, independently of any act or interference of his own, or of any other person, for that purpose. Of these the principal kind is title by descent; but the term will also properly include title by escheat, and also that of tenant by the curtesy, and of tenant in dower (ƒ).

Purchase, on the other hand, though [in its vulgar and confined acceptation it is applied only to such acquisitions of land, as are obtained by way of bargain and sale for money or some other valuable consideration;] yet it properly includes every lawful (g) mode of coming to an estate by the act of a party, as opposed to the act of law: among which, our attention will chiefly be directed to the title by occupancy, by forfeiture, and by voluntary transfer; which last is usually described as that by alienation or conveyance (h).

This use of the term, purchase, by which it is distinguished from title by mere act of law, and more particularly from descent, corresponds, it may be remarked, with that of conquest (conquæstus or conquisitio) among the feudists (i), and in the law of Scotland (k). And in like manner, the first purchaser (or he who first brought the estate into the family which at present owns it) was styled among the Norman jurists, the conqueror or conquereur (1);

to reserve for discussion in subse-
quent divisions of the work; those
for example which the statute law
has provided for the official or judi-
cial assignment of a man's property,
such as the seizure of lands under
an execution by elegit, and the dif-
ferent forms of proceeding by which
the real estate of a bankrupt is
vested in his assignees; see 1 & 2
Will. 4, c. 56, s. 26; 12 & 13 Vict.
c. 106; 24 & 25 Vict. c. 134; et
post, bk. 11. pt. II. c. VI.

(i) Craig, 1. 1, t. 10, s. 13.
(k) Dalrymple of Feuds, 10.
(1) Gr. Coustum. Gloss. c. 25.

[which seems to be all that was meant by the appellation which was given to William the Norman, when his manner of ascending the throne of England was in his own and his successors' charters, and by the historians of the times, entitled conquæstus, and himself conquæstor or conquisitor; signifying that he was the first of his family who acquired the crown of England, and from whence therefore all future claims by descent must be derived.]

Among the different titles that have been enumerated, we have already been led incidentally to discuss those of tenant by the curtesy and tenant in dower (m). At present, therefore, we may confine our attention to descent, escheat, occupancy, forfeiture and alienation; the two first being titles by act of law, the three last titles by purchase.

(m) As to tenancy by the curtesy, vide sup. p. 269; as to dower, vide sup. p. 272.

CHAPTER XI.

OF TITLE BY DESCENT.

WE have seen in a former place that an estate of inheritance in fee simple or fee tail is on the death of the owner, without having disposed of it, cast by the law on his heirs, by a title called descent (a). We are now to consider more particularly the nature of such descent, and the rules by which it is governed (b). The discussion will turn principally, indeed, upon the nature of the descent in fee simple, for that in fee tail is only in the nature of an exception or variation upon the ordinary law of succession; and when that law is fully understood, the explanations before given with respect to estates tail in general, will throw sufficient light on the nature of the descent per formam doni.

[The doctrine of descent, or law of inheritance in fee simple, 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 descent 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.] In order [to treat a matter of this universal consequence more clearly, it will

[be expedient to lay aside such matters as will only tend to breed embarrassment and confusion in an enquirer. We shall therefore decline considering, at present, who are and who are not capable of being heirs, reserving that for the chapter of escheats (c).] We shall also pass over descents escheats(c).] by particular custom, as to all the sons in gavelkind and to the youngest in borough-English (d); for these cannot conveniently form a subject for special consideration in such a treatise as the present. And our present inquiry will therefore almost exclusively relate to the subject of descent in fee simple as generally established.

It may be right, however, before we proceed further, to make this preliminary remark with respect to the nature of the heir's title,-that [no inheritance can vest, nor can any person be the actual complete heir of another, till the ancestor is previously dead. Nemo est hæres viventis. Before that time, the person who is next in the line of succession is called an heir apparent or heir presumptive. Heirs apparent are such whose right of inheritance is indefeasible, provided they outlive the ancestor: as the eldest son, who must by the course of the common law be heir to the father whenever he happens to die. Heirs presumptive are such who, if the ancestor should die immediately, would in the present circumstances of things be his heirs; but whose right of inheritance may be defeated by the contingency of some nearer heir being born: as a brother or nephew, whose presumptive succession may be destroyed by the birth of a child; or a daughter, whose present hopes may be hereafter cut off by the birth of a son. Nay, even if the estate hath descended, by the death of the owner, to such brother or nephew, or daughter; in the former cases the estate shall be divested and taken away by the birth of a posthumous child, and in the latter, it shall also be totally divested by the birth of a posthumous son (e).]

(c) Vide post, c. XII.
(d) Vide sup. pp. 55, 216.

(e) 2 Bl. Com. 208.

It may also be material to observe, that the estate claimed by the heir must necessarily be one that remained in the ancestor, or deceased owner, at the time of his death, and of which he has made no testamentary disposition; the title of an alienee in his lifetime, or of a devisee under his will, being of course preferable to that of the heir.

These things being premised, let us now examine the doctrine of descent itself; or the rules according to which the heir to an estate in fee simple is to be ascertained, when the succession to it opens or becomes vacant upon the death of the proprietor.

This branch of law is founded for the most part not on statute, but on the custom of the realm; being in point of antiquity referable to a period at least as early as the reign of Henry the second (f). At that time, indeed, its development appears to have been in some degree imperfect; but it had attained to complete maturity in the reign of Henry the third, or at latest in that of Edward the first (g); after which, it underwent no change for the space of more than five hundred years, until at length partially reconstructed in the last reign by the act of 3 & 4 Will. IV. c. 106, passed "for amendment of the law of inheritance" (h).

In proceeding to delineate the present state of this branch of the law, it will be expedient in the first instance to mention that there are a few rare cases of descent which will require a particular and separate consideration, which consideration they will accordingly receive before the chapter closes; but passing these by for the present, and confining ourselves to the ordinary and gene

(f) This appears from the treatise of Glanville (written about 1181), whose account of the law of inheritance comprises all the principal features of the existing system.

(g) Hale's Hist. C. L. c. 11;

Reeves's Hist. Eng. Law, vol. i. p. 311; vol. ii. pp. 246, 317.

(h) This statute was founded on the first report of the commissioners appointed in 1828, to revise the laws of real property.