Chap. 16.] TITLE BY OCCUPANCY. that practice was restrained by the statute of quia emptores, 18 Edw. I, st. 1, to which this very singular instance still in some degree remains an exception. There is one more incapacity of taking by descent, which, not being produc- tive of any escheat, is not strictly reducible to this head, and yet must not be passed over in silence. It is enacted by the statute 11 and 12 Win. III, c. 4, (17) that every papist who shall not abjure the errors of his religion by taking the oaths to the government, and making the declaration against transubstantiation, within six months after he has attained the age of eighteen years, shall be inca- pable of inheriting, or taking, by descent as well as purchase, any real estates whatsoever; and his next of kin, being a Protestant, shall hold them to his own use till such time as he complies with the terms imposed by the act. This incapacity is merely personal; it affects himself only, and does not destroy the inheritable quality of his blood, so as to impede the descent to others of his kindred. In like manner as, even in the times of popery, one who entered into religion, and became a monk professed, was incapable of inheriting lands, both in our own (u) and the feudal law; eo quod desiit esse miles seculi qui factus est miles Christi: nee beneficium pertinet ad eum qui non debit gerere offi- cium. (w) But yet he was accounted only civiliter mortuus; he did not impede the descent to others, but the next heir was entitled to his or his ancestor's estate. These are the several deficiencies of hereditary blood, recognized by the law of England; which, so often as they happen, occasion lands to escheat to the original proprietary or lord. (18) CHAPTER XVI. II. 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 every thing capable of ownership should have an owner, natural reason suggested, that he who could first declare his intention of appro- priating any thing 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 naturalioccupanti conceditur. This right of occupancy, so far as it concerns real property (for of personal chattels I am not in this place to 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 auter vie, or had an estate granted to himself only (without mentioning his heirs) for the life of another man, and died during the life of cestuy que vie, or him by whose life it was (u) Co. Litt. 12. (w) 2 Feud. 21. (a) See pages 8 and 8. (b) 1f. 41, 1, 3. (17) These harsh and unreasonable restrictions were very much modified by statutes 18 Geo. III, c. 60, 31 Geo. III, c. 32, and 43 Geo. III, c. 30; and by statute 10 Geo. IV, C. 7, com- monly called the Roman Catholic Relief Act, Catholics are entitled to hold and enjoy real and personal'estate without being required to take any other oath than such as by law may be required to be taken by any other subjects. See May's Constitutional History, ch. 13, for an account of the passage of this last mentioned act. (18) Where lands escheat within one of the United States, the state, and not the general government, becomes entitled. But to perfect the right some courts hold that a process must be had commonly called "inquest of office" or "office found," to determine and adjudge the facts. See 4 Kent, 424, 425, note; 2 Washb. Real Prop. 444; ante, p. 249, n. (10. 499 258 TITLE BY OccUPAcY. [Book II. holden ; in this case he that could first enter on the land might lawfully retain the possession, so long as cestuy que vie lived, by right of occupancy. (c) [*259] *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 with- out a legal owner. For it did not revert to the grantor, though it formerly (d) was supposed so to do; for he had parted with all his interest, so long as cestuy 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 hwvreditas jacens of the Romans, the law left it open to be seised and appropriated by the first person that could enter upon it, during the life of cestuy que vie, under the name of an occupant. But there was no right of occupancy allowed, where the king had the reversion of the lands: fo6r the reversioner hath an equal right with any other man to enter upon the vacant possession, and where the king's title and a subject's concur, the king's shall be always preferred: against the king therefore there could be no prior occupant, because nullum tempus occur- tit regi.(e) And, even in the case of a subject, had the estate pur auter vie been granted to a man and his heirs during the life of cestuy que vie, there the heir might, and still may, enter and hold possession, and is called in law a special occupant: as having a special exclusive right, by the terms of the orig- inal grant, to enter upon and occupy this hcereditas .jacens, during the residue of the estate granted: though some have thought him so called with no very great propriety ;(f) and that such estate is rather a descendible freehold. But the title of common occupancy is now reduced almost to nothing by two statutes: the one 29 Car. II, c. 3, which enacts (according to the ancient rule of law) (g) that where there is no special occupant, in whom the estate may vest, the tenant [*2601 pur auter vie may devise it *by will, or it shall go to the executors or administrators, and be assets in their hand for payment of debts: the other, that of 14 Geo. II, c. 20, which enacts, that the surplus of such estate pur auter vie, after payment of debts, shall go in a course of distribution like a chattel interest. By these two statutes the title of common occupancy is utterly extinct and abolished; though that of special occupancy by the heir at law continues to this day; such heir being held to succeed to the ancestor's estate, not by descent, for then he must take an estate of inheritance, but as an occupant specially marked out and appointed by the original grant. But, as before the statutes there could no common occupancy be had of incorporeal hereditaments, as of rents, tithes, advowsons, commons, or the like, (h) (because, with respect to them, there could be no actual entry made, or corporal seisin had; and there- fore by the death of the grantee pur auter vie a grant of such hereditaments was entirely determined,) so now, I apprehend, notwithstanding these statutes, such grant would be determined likewise; and the hereditaments would not be devisable, nor vest in the executors, nor go in a course of distribution. For these statutes must not be construed so as to create any new estatr, or keep that alive which by the common law was determined, and thereby to defer the grantor's reversion; but merely to dispose of an interest in being, to which by law there was no owner, and which, therefore, was left open to the first occu- pant.(1) When there is a residue left, the statutes give it to the executors and c Co. Litt. 41. d)Bract. 1. 2, e. 9, 1. tr. 3,e. 9,1 4. Flet. 1. 8, c. 12. J 6,1. 5. 5, § 15. Co. Litt. 41, (f) Vaugh. 201. (g) Bract. * d. Flet. ibid. () Uo. Ltt. 41. Vaugh. 201. (1) The statutes here referred to were repealed by 1 Vie. c. 26, , 1, except as to wills exe- cuted before January 1, 1838 ; and by § 3 an estate pur auter vie, of whatever tenure, may in all cases be devised by will, and by §6, if not so devised, it shall be assets in the hands of the heir, as special occupant, for the payment of debts as in the case of freehold lands in fee- 500 Chap. 16.] TITLE BY OccuPANcy. administrators, instead of the first occupant; but they will not create a residue, on purpose to give it to either.(i) They only meant to provide an appointed instead of a casual, a certain instead of an uncertain, owner of lands which before were nobody's; and thereby to supply this casus omissus, and render the disposition of law in all respects entirely uniform; this being the only instance wherein a title to a real estate could ever be acquired by occupancy.(2) *This, I say, was the only instance; for I think there can be no other [,61] case devised, wherein there is not some owner of the land appointed by the law.