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heir, or should the grant be to a corporation, and the corporation be dissolved, the rent, advowson, &c. would be extinct(o). Yet a rent charge, advowson, common or other thing which is not held, will be forfeited by attainder of treason or felony (p).
And on attainder of felony the lord shall have the title deeds, though they are said not to be forfeited by such attainder (9).
It should seem that a trust of freeholds is forfeitable for high treason since the statutes of 27 H. 8, c. 10, and 33 H. 8, c. 20 (r), but not for felony (s). Nor is the trust of a term attendant on the inheritance forfeitable for felony (t). The lord, however, is intitled to a term attendant on an escheated inheritance (u).
A right of action cannot escheat (2), but a right of entry may, that is, the lord, the author conceives, may enter by virtue of the right, but could not have had a writ of escheat (y).
If a trustee of freehold land died without an heir, the lord was intitled at law by escheat (2), and according to the more general opi
(o) Br. Extinguishment, pl. 2, cites 27 H. 8, 10; ib. Prerogative, pl. 1, cites S. C. Co. Lit. 13 b; Dean and Canons of Windsor v. Webb, Godb. 211 ; 3 Inst. 21. And a sole corporation is equally within the rule. There are authorities, however, against a donor, and favourable to the lord by escheat, Johnson v. Norway, Winch, 37; S. C. (Johnson v. Morris), Mich. 20 Jac. C. B. Hal. MSS., cites 21 E. 4, 1; 21 H. 7, 9; Southwell v. Wade, Poph. 91 ; S. C. 1 Roll. Abr. 816 A. Vide also n. 2, Co. Lit. 13 b.
(p) Br. Eschete, pl. 9, cites 24 E. 3, 72; ib. Corodies, pl. 5, cites S. C. and 24 E. 3, 33.
(9) Br. Chart. de Terre, pl. 59.
(s) 1 Hal. H. P. C. 248; Att. Gen. v Sands, 3. Ch. Rep. 34; S. C. Nels. Ch. Rep. 131 ; S. C. Hardr. 495. But it was not forfeitable at common law; Ford & Sheldon's case, 12 Co. 2; Marquis of Winchester's case, 3 Co. 3 a.
(s) Att. Gen. v. Sands, sup.
(t) Ib. But a chattel real not attendant on the inheritance is forfeitable to the king for felony by his prerogative; Rex v. Executors of Sir John Daccombe, Cro. Jac. 513; Att. Gen. v. Sands, sup.!
(u) Thruxton v. Att. Gen. 1 Vern. 340.
(r) Br. Eschete, pl. 26; argo. Godb. 310; Marquis of Winchester's case, 3 Co. 2b. And see 10 Co. 48 a.
(y) 6 H. 7, 9; Br. Eschete, pl. 16 ; ib. pl. 26, cites 32 H. 6, 27; Godb. 309, argo. A right of entry is forfeited to the king by attainder of high treason, but a right of action is not forfeited for treason either at common law or by the stat. 33 H. 8. Considerations on the law of forfeiture for high treason, p. 82. And see Dowtie's case, 3 Co. 10 b. Vide also reference to 3 & 4 W. 4, c. 27, abolishing the writ of escheat, &c., ante, p. 629, n. (h); post, p. 637, n. (u).
(z) Jenk. 190, ca. 92 ; ib. 245, ca. 30; Eales v. England, Ch. Pr. 200, 202; Burgess o. Wheate, i Sir W. B). 141. See this case, Eden's Ca. Ch. 177.
N.B.-By the 4 & 5 W. 4, c. 23, lands no longer escheat or become forfeited by reason of the death of a trustee or mortgagee without an heir; but the Court of Chancery may appoint a person to convey, in like manner as under the provisions of 11 Geo.4 & 1 Will. 4, c. 60; nor are lands forfeited by reason of the attainder of a trustee or mortgagee. See the act in the Appendix; and see ante, pt. 1, pp. 84, n., 407, n., 447, 526, n.
nion, without being subject to the trust in equity (a). If, however, a cestuy que trust of freehold land die without an heir or is attainted of felony, there is no escheat or forfeiture, for a use was not forfeited for treason or felony at common law, but the trustee shall hold the land discharged of the trust (6).
But in copyhold cases, where the lord is privy to the creation of the trust, a very powerful argument suggests itself for the interposition of equity in favour of the cestuy que trust in the former instance, and of the lord in the latter (c).
A devise by a person who afterwards dies without an heir will prevent an escheat(d); and a power given to executors to sell the land will bind it in the hands of the king by escheat (e).
But the lord may enter for an escheat upon the death of a disseisee
Cary, 14, 15; Marquis of Winchester's case, ubi sup.; 1 Hargr. Juris. Exer. p. 387, &c. And see 1 Sir W. BI, 184, in Burgess & Wheate, as to an equity of redemption. Vide also Middleton v. Spicer, 1 Bro. C. C. 202, 203 ; and Mr. Hargrave's note thereon in 1 Juris. Exer.
(@) Burgess v. Wheate, ubi sup. ; 1 Harg. Juris. Exer. 390. And see Jenk. 190, ca. 92, where it is stated that the king or lord by escheat cannot be seized to any use or trust, for they are in the post and paramount the confidence; ib. 245, ca. 30; ante, p. 632, n. (u). But there is now no distinction between those in the per and post as to relief in equity, except in the case of dower, founded not upon reason but practice; 1 Sir W. BI. 155, 162. Vide also Nels. Ch. Rep. 107, in Stephens v. Baily. But see contrà, Eales v. England, ubi sup. Vide also Cart. 67. And it has been held that a mortgagor may redeem after a forfeiture by one claiming under the mortgagee; Pawlett v. Att. Gen., Hardr. 469.
See an extract in the Appendix from the stat. 39 & 40 Geo. 3, c. 88, authorizing the king to direct the execution of any trust of lands which escheat, and to make grants of escheated lands for the purpose of restoring the same to the family of the person whose estate the same had been; which act recites that lands, &c. might become vested in the crown by escheat, which in the hands of a subject. would be chargeable with certain trusts.
(6) See Jenk. as in notes (x) and (a) sup; Şir G. Sand's case, Hardr. 494; S. C. 1 Sid. 403; S. C. 2 Freem. 129; S.C. Nels. Ch. Rep. 131; S. C. 3 Ch. R. Br. Feoffinents to Uses, pl. 34, cites 5 E. 4,7;
As to forfeiture for high treason by cestuy que trust of freeholds since 33 H. 8, see ante, p. 634.
(c). But see 3 Ves. jun. 752; 1 Stra. 454. Vide as to an equitable escheat of copyholds, ante, pt. 1, p. 406 et seq. And see the recent case of Weaver v. Maule, 2 Russ. & Myl. 97.
(d) 1 Roll. Rep. 214, cites 48 E. 3, 3. And an escheat is prevented even by the title of a moiety of an heir; 2 P. W.614, in Eastwood & Vinke.
Where a testator died without an heir and without any next of kin, the M. R. decided that the king, by his prerogative, was intitled to a sum charged by the testator on his estate for the benefit of a charity; Henchman v. Attorney-General, 2 Sim. & Stu. 498. But on an appeal to the Lord Chancellor, it was held that the legacy was to be considered as real estate, undisposed of, and that the devisee, ani not the crown, was intitled to it; 3 Myl. & Keen, 485; ante, pt. 1, pp. 201, 408.
(e) Manning v. Andrews, 1 Leo. 260. And see 10 Mod. 361,362,citing 49 E. 3,16.
without heir (f), unless the disseisor should have aliened by feoffment, for then the lord would have a tenant by title (g): it follows that a disseisee may enter on the lord by escheat, unless there has been a descent of the land either from the lord or from the disseisor (h); and the law is the same upon an ordinary alienation by a disseisor, and the death of the alienee without issue (i).
The lord after recovery by writ of escheat could not have avoided a term of years created by a tenant who, subsequently to the lease, died without an heir or was attainted of felony, but would take charge with the term (k).
And any avoidable estate, as a feoffment by an infant or person non compos mentis, shall bind the lord by escheat(1). So also a lease by husband seized in right of his wife made without the concurrence of the wife (m). So again as to an alienation by the husband by fine, where the wife afterwards died without an heir (n).
And the author apprehends that an escheat of freehold lands will not alter the course of descent where the law takes notice of a peculiar custom, as in gavelkind and borough english tenure (o), even if the
W) Br. Ent. Cong. pl. 63, cites 27 cheat; Evans v. Brown, 5 Beav. 114. Ass. 32.
(1) 7 Co. 7b, in the Earl of Bedford's (8) Co. Lit. 268 b. [Or granted and case; 1 Roll. Rep. 402; 8 Co. 42 b, 44 a, rendered the land by fine, Fitz. Ent. Cong. in Whittingham's case, (sup.); 4 Co. pl. 38; but this, the author apprehends, 125, in Beverley's case. But if an infant presupposed a bar by non-claim.] make livery by attorney the feoffinent is
(h) Br. Ent. Cong. pl. 92. And see not voidable, but ipso facto void; Bever10 Mod. 362, argo. And if the lord ley's case and Whittingham's case, sup. would plead a release made by the dis- (m) Per Coke, C. J., 1 Roll. Rep. 402. seisee to the disseisor, he must show it; 10 (n) Per Hobart, Ch. J., Hob. 261. Co. 93, in Dr. Leyfield's case.
But it should seem that the lord is not (i) Co. Lit. 240 a.
bound by every estoppel, for if a person (k) Per Coke, 8 Co. 45, in Whitting- were to take a lease by indenture of his ham's case; Br. Extinguishment, pl. 23, own lands, though binding upon him, the cites 3 Ass. 1; ib. Prerog. pl. 120, cites lord would not be bound by it iv case of 11 H. 6,7; Needham & Poole, Dy. 115 b, an escheat; 1 Leo. 158, ca. 224. marg.
(o) Custum. of Kent, cited Rob. Gav. On the death without heirs of a tenant by Wils. 85; Somn. 144, 149; 14 H. 4, holding lands of a manor by free and com- 9 b; 11 H. 7, 25 b; Br. Custom, 19; mon socage, but which lands were subject Extinguishment, 14, cites 14 H. 4, 2, 3. to a mortgage term, the equity of re- But see contrà per Windham, J., 1 Keb. demption passes to the lord by way of es- 505; Gouldsb. 106; Lamb. 594, Dub. cheat, and he may redeem the mortgage; N. B.-Escheat is not a title by deViscount Downe v. Morris, 3 Hare, 394. scent:-strictly speaking, indeed, it is a
Where the tenant of lands holden of a title neither by purchase nor descent, Co. manor dies without heirs, and without Lit. 186, n. 2; Lord Coke calls it a casual having charged the lands with his debts, profit, Co. Lit. 92 b; Bracton, 1. 2, f. 23, they are assets for the payment of such considers it as a species of reversion. debts as against the lord claiming by es
escheat were to the king, and the lands were afterwards re-granted by him, reserving other services (p).
The reader is here reminded, that though gavelkind lands are forfeited for high treason, yet they do not escheat for felony, nor the king intitled to a year and day waste (9): but this is only where the party submits to the judgment of the law, and does not hold in the case of outlawry for felony (r).
If an alien purchase lands and die, the law casts the inheritance on the king, who upon office found shall have them; and if an alien have issue a son, and be made denizen, and shall afterwards have another son, and purchase lands and die, the lands will not escheat, but shall go to the youngest son (s). If, however, an alien be made denizen, and shall purchase lands, and die without issue, the lands will escheat to the lord (t).
In enforcing the lord's right by escheat, it is to be recollected that when lands were held by distinct services there must have been distinct writs of escheat (u).
It is also proper to notice, that by particular acts the lord might have been barred of his writ of escheat, as by a fine come ceo levied with proclamations in the Court of Common Pleas (x), or by accept
(p) 2 Bac. Abr. 243 (G.); Lamb. Peramb. 591, 593; Dal. 23; 3 Keb. 216; 1 Sid. 138; 2 Sid. 83. And see Doe d. Lushington v. The Bishop of Landaff and others, 2 N. R. 508. Nor would the customary descent be altered on an escheat of copyhold lands which were afterwards regranted by the lord to hold by copy; but if copyholds which escheat are not regranted, they merge in the freehold, or rather the copyhold interest is extinguished, the two tenures being incompatible ; ante, pt. 1, pp. 14, 15, 98, 545.
See 8 H. 6, c. 16, and 18 H. 6, c. 6, preventing grants of lands seized into the king's hands before escheators, unless the king's title be found, and until a month after the return of the inquest in the Chancery or Exchequer, except to the party grieved and who tenders bis traverse, and which are held to extend to an escheat where no immediate tenure of the crown is found ; Doe & Redfern, 12 East, 109. In this case it was also held that the 8th sect. of 2 & 3 Ed. 6, c. 8, avoids an inquisition not finding the tenure equally with one alleging total ignorance. Semble, that the king's right shall not be
presumed against a mesne tenure without office found; ib.
(9) Ante, pp. 632, 633. And see Lamb. 634. Consid. on the law of forfeiture for high treason, pp. 61, 62; Rob. Gav. by Wils. pp. 288, 289.
(r) Rob. Gav. by Wils. p. 290.
(u) Br. Eschete, pl. 13, cites 21 H. 7, 39. Vide reference to the 3 & 4 W. 4, c. 27, abolishing the writ of escheat, &c., ante, p. 629, n. (h).
(.r) A right of entry or action to recover land is limited by the act of 3 & 4 W. 4, c. 27, to twenty years next after the time at which the right shall have first accrued to some person through whom the party claims, or shall have first accrued to the party himself; and by the first section, or explanatory clause, it is declared that the person through whom another person is said to claim shall mean “any person who was entitled to an estate or interest to which the person so claiming, or some person through whom he claims, became entitled as lord by escheat."
ance of fealty, or avowing for rent in a court of record, or accepting rent from the feoffee or heir of a disseisor (y); but the acceptance of rent from the disseisor himself would be no bar to the lord by escheat (2), nor perhaps from the feoffee or heir, if received in ignorance of the feoffment or descent, the acceptance of rent being an act of an ambiguous nature (a).
PELO DE SB (b).- It frequently happens that the lord of a manor is entitled by grant from the crown to the goods and chattels of every person convicted of felo de se (c) within the particular manor, which naturally suggests the propriety of treating briefly of this subject under the head of the present section.
A person who, in possession of the powers of reasoning, lays violent hands on himself, and is wilfully (d) the occasion of his own death, is termed a felo de se; but in common parlance it is considered as a perfectly distinct offence from the murder of another (e), and from other felonies; so much so that a grant of bona et catalla felonum would not pass the goods and chattels of a felo de se (f).
(y) Co. Lit. 268 a & b; Br. Eschete, (f) The King v. Sutton, 1 Saund. 273; pl. 18, cites 7 E. 6; 2 Bulst. 153.
S. C. 1 Sid. 420; S. C. 2 Keb. 526, 533. (7) See Co. Lit. and Br. Abr, as in the And see the pleadings in S. C. Lex Man. last note.
App. pl. 20. Vide also 1 Vent. 32; 4 Leo. (a) Doe & Hellier, 3 T. R. 171 ; ante,
6, ca. 28. pt. 1, pp. 461, 462.
So a grant of goods and chattels of fe(6) This royalty is not specified in the lons, or felons of themselves, will not en82 clause of 4 & 5 Vict. c. 35, among the title the grantee to the debts due to such manorial rights excluded from the opera- felons; The King v. Sutton, sup. And tion of the act, unless expressly commuted, see Ford & Sheldon's case, 12 Co. 1 b, 2 but it is embraced by the general words a; The Mayor of Southampton v. Richards, or any other manorial rights whatever.” 1 Sid. 142; per Shute, Ow. 155 ; 1 Leo.
(c) It is almost needless to notice that 202; Lord Northampton v. Lord St. John, the goods and chattels of the offender 2 Leo. 56; 1 Vent. 32. But in 2 Roll. are totally forfeited by conviction of fe- Abr. 195 (E.) pl. 1, it is held that if the lony in general, and on conviction of king grant certain liberties, and (among high treason or misprision of treason, other things) grant omnia bona et catulla petit treason, manslaughter, and even of felonum de se, within such a place, it shall excusable homicide, of petit larceny, and pass obligations, specialties, and debts due by outlawry of treason or felony, standing to the felon; for though in other cases a mute when arraigned of felony, &c. &c. grant of omnia bona et catalla by the king
(d) It is said too, that he who in mali- will not pass specialties and debts, yet in ciously attempting to kill another happens the grant of a liberty it will; see also Com. to kill himself, is a felo de se, being the Dig. Waife (C.). So by a grant of goods only agent; 1 Hawk. P. C. c. 27, s. 4; 3 and chattels of felons of themselves, the Inst. 54; 3 Bac. Abr. 142(A.); 4 BI. Com. grantee shall have such felon's ready mo189.
ney; 2 Sho. 143, Anon. (e) Stam. P. C. 183, &c.