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[ruption of blood (k). So, if a man had issue two sons, and the elder in the lifetime of the father had issue, and then was attainted and executed, and afterwards the father died, the lands of the father would not descend to the younger son; for the issue of the elder, which had once a possibility to inherit, would impede the descent to the younger, and the land would escheat to the lord (1).]

[Upon the whole it appears, that a person attainted was neither allowed to retain his former estate, nor to inherit any future one; nor to transmit any inheritance to his issue, either immediately from himself, or mediately through himself from any remoter ancestor: for his inheritable blood, which is necessary either to hold, to take, or to transmit any feudal property, was blotted out, corrupted, and extinguished for ever; the consequence of which is, that estates thus impeded in their descent, resulted back and escheated to the lord.]

But the doctrine of corruption of blood, arising as it did from feudal principles, and perhaps extending further than even those principles would warrant, was in modern times always looked upon as a peculiar hardship, at least as regarded the family of the offender. [And therefore in most (if not all) of the new felonies created by parliament since the reign of Henry the eighth, it was declared that they should not extend to any corruption of blood (m).] And now at length by the statutes 54 Geo. III. c. 145, 3 & 4 Will. IV. c. 106, and 13 & 14 Vict. c. 60 (n), the same spirit has been infused (subject to some wholesome exceptions) into the general law of the realm; and whatever savoured of inhumanity or harshness under the antient sys

(k) Co. Litt. 8 a.

(1) Dyer, 48 a.

(m) By 7 Anne, c. 21 (the operation of which was postponed by 17 Geo. 2, c. 39,) it was enacted, that after the death of the Pretender and his sons, no attainder for treason should operate to the prejudice of

other than the offender himself; but this provision was repealed by 39 Geo. 3, c. 93.

(n) The last-mentioned statute repeals 4 & 5 Will. 4, c. 23, which contained provisions of the same kind.

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tem effectually removed. For by the Act of Geo. III. it is provided that no attainder for felony, except for treason or murder, "shall extend to the disinheriting of any person, nor to the prejudice of the right or title of any person or persons other than the right or title of the offender, during "his natural life only; and that it shall be lawful to every person to whom the right or interest of any lands, tene"ments, or hereditaments, after the death of such offender, "should or might have appertained if no such attainder "had been, to enter into the same" (o). By the Inheritance Act," that when the person, from whom the descent of "any land is to be traced, shall have had any relation, "who having been attainted shall have died before such "descent shall have taken place; then such attainder "shall not prevent any person from inheriting such land "who would have been capable of inheriting the same by "tracing his descent through such relation, if he had not "been attainted, unless such land shall have escheated "in consequence of such attainder before 1st January, " 1834" (p). And by the Trustee Act, 1850, that " "lands, stock, or chose in action, vested in any person upon any trust, or by way of mortgage, or any profits "thereof, shall escheat or be forfeited to her majesty, her "heirs or successors, or to any corporation, lord or lady "of the manor, or other person, by reason of the attainder ८८ or conviction, for any offence of such trustee or mort"gagee; but shall remain in such trustee or mortgagee, "or survive to his or her co-trustee, or descend or vest in "his or her representative, as if no such attainder or con-"viction had taken place (g)." This provision, however, has no application to any beneficial interest which the trustee or mortgagee may have in the property so vested

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(o) 54 Geo. 3, c. 145.

(p) 3 & 4 Will. 4, c. 106, s. 10. (q) 13 & 14 Vict. c. 60, ss. 46, 47 ; and see 18 & 19 Vict. c. 91, s. 10. The Court of Chancery is, however,

no

empowered to appoint a fresh trustee in place of one who has been convicted of felony. (15 & 16 Vict. c. 55, s. 8.)

in him, such interest being made recoverable in the same manner as if the Act had not been passed.

In conclusion of the chapter we may remark, that even where an escheat has actually taken place, its consequences are now frequently remitted, where the crown is the party entitled to take the benefit. For by modern acts of parliament, in all cases where a title has accrued to the crown by escheat for want of heirs, or by reason of any forfeiture, the sovereign is empowered, (notwithstanding the statute (r) which has restrained the alienation of the royal demesnes in general to leases for thirty-one years,) to make grants to any person or persons, for the purpose of restoring the land to the family of the former owner; or carrying into effect any grant, conveyance, or devise of it, that he may have intended to make (s).

(r) 1 Anne, stat. 1, c. 7, s. 5. See 48 Geo. 3, c. 73, s. 3.

(s) See 39 & 40 Geo. 3, c. 88,

s. 12; 47 Geo. 3, sess. 2, c. 24; 59 Geo. 3, c. 94; 6 Geo. 4, c. 17.

CHAPTER XIII.

OF TITLE BY OCCUPANCY.

[OCCUPANCY is the taking possession of those things which before belonged to nobody. This, as we have seen (a), is the true ground and foundation of all property; or of holding those things in severalty, which by the law of nature, unqualified by that of society, were common to all mankind. But when once it was agreed that everything capable of ownership should have an owner, natural reason suggested, that he who could first declare his intention of appropriating anything to his own use, and in consequence of such intention actually took it into possession, should thereby gain the absolute property of it; according to that rule of the law of nations, recognized by the laws of Rome (b), quod nullius est, id ratione naturali occupanti conceditur.

This right of occupancy, so far as it concerns real property (for of personal chattels we do not in this place speak), hath been confined by the laws of England within a very narrow compass, and was extended only to a single instance; namely, where a man was tenant pur autre vie, or had an estate granted to himself only (without mentioning his heirs) for the life of another man, and died] without alienation, [during the life of cestui que vie, or him by whose life it was holden: in this case, he that could first enter on the land might lawfully retain the pos(b) Ff. 41, 1. 3.

(a) Vide sup. p. 156.

[session so long as cestui que vie lived, by right of occupancy (c).

This seems to have been recurring to first principles, and calling in the law of nature to ascertain the property of the land, when left without a legal owner. For it did not revert to the grantor, though it formerly was supposed so to do (d); for he had parted with all his interest so long as cestui que vie lived: it did not escheat to the lord of the fee, for all escheats must be of the absolute entire fee, and not of any particular estate carved out of it, much less of so minute a remnant as this; it did not belong to the grantee, for he was dead; it did not descend to his heirs, for there were no words of inheritance in the grant; nor could it vest in his executors, for no executors could succeed to a freehold. Belonging therefore to nobody, like the hæreditas jacens of the Romans, the law left it open to be seized and appropriated by the first person that could enter upon it during the life of cestui que vie, under the name of an occupant.] But if [the estate pur autre vie had been granted to a man and his heirs during the life of cestui que vie,] and the grantee died without alienation, and while the life for which he held continued, there could not be a title by common occupancy, but the heir would succeed, and was called a special occupant (e). And so the law continues to this day, in the absence of any alienation during the life of the grantee or any devise by him, (for such an estate as we shall presently see is now devisable);-the heir succeeding, according to the doctrine most commonly received, in

(c) Co. Litt. 41 b. As to title by occupancy, see Geary v. Bearcroft, Carter, 59; Vaughan, 187.

(d) Bract. 1. 2, c. 9; 1. 4, tr. 3, c. 9, s. 4; Flet. 1. 3, c. 12, s. 6 ; l. 5, c. 5, s. 15.

(e) As to the case where an estate pur autre vie is granted to a man and “his executors, administrators, and

assigns," and the right in which the executor, &c. in that case takes, see Westfaling v. Westfaling, 3 Atk. 460; Williams v. Jekyl, 2 Ves. sen. 683; Ripley v. Waterworth, 7 Ves. 425; Fitzroy v. Howard, 3 Russ. 230. As to the grant of such estate to a man "and his heirs," see Carpenter, v. Dunsmure, 3 Ell. & Bl. 918.

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