Abbildungen der Seite
PDF
EPUB

by lord Bacon (viz. that in any degree, paramount the first, the law respecteth proximity, and not dignity of blood) is directly contrary to many instances given by Plowden and Hale, and every other writer on the law of descents. 7. Because this position seems to contradict the allowed doctrine of sir Edward Coke'; who lays it down (under different names,) that the blood of the Kempes (alias Sandies) shall not inherit till the blood of the Stiles's (alias Fairfields) fail. Now the blood of the Stiles's does certainly not fail, till both n° 9 and n° 10 are extinct. Wherefore n° 11 (being the blood of the Kempes) ought not to inherit till then. 8. Because in the case, Mich. 12 Edw. IV. 14. (much relied on in that of Clere and Brooke) it is laid down as a rule, that cestuy, que doit inheriter al pere, doit inheriter al fits.” ↳ And so sir Matthew Hale says, C "that though the law ex"cludes the father from inheriting, yet it substitutes and [240] "directs the descent as it should have been had the father inherited." Now it is settled, by the resolution of Clere and Brooke, that n° 10 should have inherited before n° 11 to Geoffrey Stiles, the father, had he been the person last seised; and therefore n° 10 ought also to be preferred in inheriting to John Stiles, the son.

66

a

In case John Stiles was not himself the purchasor, but the estate in fact came to him by descent from his father, mother, or any higher ancestor, there is this difference; that the blood of that line of ancestors, from which it did not descend, can never inherit: as was formerly fully explained. And the like rule, as there exemplified, will hold upon descents from any other ancestors.

THE student should also bear in mind, that during this whole process, John Stiles is the person supposed to have been last actually seised of the estate. For if ever it comes to vest in any other person, as heir to John Stiles, a new order of succession must be observed upon the death of such heir; since he, by his own seisin, now becomes himself an

[blocks in formation]

ancestor or stipes, and must be put in the place of John Stiles. The figures therefore denote the order in which the several classes would succeed to John Stiles, and not to each other and before we search for an heir in any of the higher figures, (as n° 8) we must be first assured that all the lower classes (from n° 1 to n° 7) were extinct, at John Stiles's de

cease.

CHAPTER THE FIFTEENTH.

OF TITLE BY PURCHASE, AND FIRST BY ESCHEAT.

PURCHASE, perquisitio, taken in it's largest and most extensive sense is thus defined by Littleton a; the possession of lands and tenements which a man hath by his own act or agreement, and not by descent from any of his ancestors or kindred. In this sense it is contradistinguished from acquisition by right of blood, and includes every other method of coming to an estate, but merely that by inheritance: wherein the title is vested in a person, not by his own act or agreement, but by the single operation of law.

eye

PURCHASE, indeed, in it's vulgar and confined acceptation, is applied only to such acquisitions of land, as are obtained by way of bargain and sale for money, or some other valuable consideration. But this falls far short of the legal idea of purchase: for, if I give land freely to another, he is in the of the law a purchasór, and falls within Littleton's definition, for he comes to the estate by his own agreement: that is, he consents to the gift. A man who has his father's estate, settled upon him in tail, before he was born, is also a purchasor: for he takes quite another estate than the law of descents would have given him. Nay, even if the ancestor devises his estate to his heir at law by will, with other limitations, or in any other shape than the course of descents would direct, such heir shall take by purchase". But if a

[blocks in formation]
« ZurückWeiter »