LECTURE LXV.

OF TITLE BY ESCHEAT, BY FORFEITURE, AND BY
EXECUTION.

TITLE to land is usually distributed under the heads of descent and purchase, the one title being acquired by operation of Taw, and the other by the act or agréement of the party. But titles by escheat and forfeiture, are also acquired by the mere act of law; and Mr. Hargrave thinks, that the proper general division of title to estates, would have been by purchase, and by act of law, the latter including equally, descent, escheat, and forfeiture. Our American authors have added an additional title, and one unknown to the English common law, and which they treat separately. It is title by execution, and I shall take notice of it in regular order.

(1.) Of title by escheat.

This title, in the English law, was one of the fruits and consequences of feudal tenure. When the blood of the last person seised became extinct, and the title of the tenant in fee failed from want of heirs, or by some other means, the land resulted back, or reverted to the original grantor, or lord of the fee, from whom it proceeded, or to his descendants or successors. All escheats, under the English law, are declared to be strictly feudal, and to im

a Litt. sec. 12. Co. Litt, ibid. note 106.

b Ch. J. Swift, in his Digest of the Laws of Connecticut, and Mr. Dane, in his Abridgment of American Law.

The opinions given in the

port the extinction of tenure. great case of Burgess v. Wheate, concur in this view of the doctrine of escheat. But, as the feudal tenures do not exist in this country, there are no private persons who succeed to the inheritance by escheat; and the state steps in the place of the feudal lord, by virtue of its sovereignty, as the original and ultimate proprietor of all the lands within its jurisdiction. It is a general principle in the American law, and which, I presume, is every where declared and asserted, that when the title to land fails from defect of heirs, it necessarily reverts, or escheats, to the people, as forming part of the common stock to which the whole community is entitled. Whenever the owner dies intestate, without leaving any inheritable blood, or if the relations whom he leaves are aliens, there is a failure of competent heirs, and the lands vest immediately in the state by operation of law. No inquest of office is requisite in such cases; and, by the New-York Revised Statutes, the Attorney General is authorized to bring an action of eject

a Wright on Tenures, 115-117. 2 Blacks. Com. 244, 245. b 1 Wm. Blacks. Rep. 123.

c N. Y. Revised Statutes, vol. i. 282. tit. 12. Ibid. 718. sec. 1, 2, 3. Swift's Digest, vol. i. 156. Tucker's Blackstone, vol. ii. 244, 245. note. Statute of Pennsylvania, 29th September, 1737. 5 Binney's Rep. 375. Dane's Abridg. vol. iii. 140. sec. 24. Ibid. vol. iv. 538. Mr. Dane says, that the New-England colonies of Massachusetts and Plymouth very early passed laws for vesting in the colony all lands escheating for want of heirs, on the ground that the colony was the sovereign who made the original grant. In Maryland, before the revolution, lands were liable to escheat to the lord proprietary of the province; and since that era, the state, as to lands of the proprietary, stand in his place under an act of confiscation, and the lands remain, of course, subject to escheat. See Harr. & M Henry's Rep. index, tit. Escheat, passim. Ringgold v. Malott, 1 Harr. & Johns. 299.

d Vol. ii. of this work, p. 47.

e 4 Co. 58. a. Comyn's Digest, tit. Prærogative, D. 70. f Vol. i. 282.

me, whenever he shall have reason to suspect that the people have title to lands by escheat.

In the Roman law, there was an officer appointed in the character of an escheator, whose duty it was to assert the right of the emperor to the hæreditas jacens, or caduca, when the owner left no heirs or legatee to take it." That property should, in such cases, vest in the public, and be at the disposal of the government, is the universal law of civilized society. It was, as early as the age of Bracton, regarded as a part of the jus gentium-ubi non apparet dominus rei, quæ olim fuerunt inventoris, de jure naturali, jam efficiuntur principis de jure gentium. The principle lies at the foundation of the right of property, that when the ownership becomes vacant, the right must necessarily subside into the whole community, in whom it was originally vested when society first assumed the elements of order and subordination. In New-York, all escheated lands, when held by the state, or its grantee, are declared to be subject to the same trusts, incumbrances, charges, rents, and services, to which they would have been subject had they descended.* This provision was intended to guard against a very inequitable rule of the common law, that if the king took lands by escheat, he was not subject to the trusts to which the escheated lands were previously liable. The statute of 39 and 40 Geo. III. c. 88. mitigated the rule, by the provision which enabled the king, by warrant or grant, to direct the execution of the trust. In the case of Sir George

a Code, 10. 10. 1.

b Domat, vol. i. 592. sec. 6. 616. sec. 4.

tutes, by Henry, 165. Code Napoleon, sec. 723.

c Bracton, lib. 1. ch. 12. sec. 10.

Vanderlinden's Insti

d This was the case with the ancient Germans, when their institutions were studied by Cæsar and Tacitus. They had not then any private property in land; it was vested in the community or tribe.

Caesar, de Bell. Gal. lib. 4. c. 1.

Tacit. de Mor. Germ. c. 26.

N. Y. Revised Statutes, vol. i. 718. sec. 2.

Sands, Hale, Ch. B., and Turner, B., held, that there could be no escheat of a trust, and, in case of the death of the cestui que trust without heirs, the trustee would hold discharged of the trust. The opinion in England is understood to be, that upon the escheat of the legal estate, the lord will hold the estate free from the claims of the cestui que trust. The statutes I have referred to, are calculated to check the operation of such an unreasonable principle.

(2.) Of title by forfeiture.

The English writers carefully distinguish between escheat to the chief lord of the fee, and forfeiture to the crown. The one was a consequence of the feudal connexion, the other was anterior to it, and inflicted upon a principle of public policy. But while the chief lord of the fee is none other than the same community which has been injured by the crime, there is no essential distinction between escheat for treason, and forfeiture for treason. The law of escheat went, indeed, upon feudal principles, beyond the law of forfeiture. It extinguished, and blotted out for ever, all the inheritable quality of the vassal's blood, so that the sons could not inherit, either to him, or to any ancestor, through their attainted father. He was rendered incapable, not only of inheriting, or transmitting his own property by descent, but he obstructed the descent of lands to his posterity, in all cases in which they were obliged to derive their title through him from any more remote ances tor. The forfeiture of the estate is very much reduced in practice in this country, and the corruption of blood is, I apprehend, universally abolished. In New-York, forfeiture of property for crimes, is confined to the case of a convic

a 3 Ch. Rep. 19.

b Wright on Tenures, 117, 118.

c See Vol. ii. of this work, p. 318. N. Y. Revised Statutes, vol. i. 284. sec. 1. Ibid. vol. ii. 701, sec. 22.