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 required to bring *425 an action of ejectment, 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 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

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 remaining, of course, subject to escheat, and the state takes the land, whether the owner dying without heirs had the legal or only the equitable estate as cestui que trust. See Harr. & M'Henry's Rep. Index, tit. Escheat, passim. Ringgold v. Mallott, 1 Harr.

Johns. 299. Matthews v. Ward, 10 Gill & Johnson, 443. By the Napoleon Code, No. 723, 755, in default of lawful heirs, the property passes to the natural children; and for want of them, to the surviving husband or wife; and for want of them, to the state; and kindred beyond the twelfth degree do not succeed. The statute of North Carolina resembles the Napoleon Code in this respect, that if the husband dies intestate and without leaving any person to claim as heir, the widow takes the estate as heir. Revised Statutes, 1837, vol. i. 237.

The People v. Conklin, 2 Hill Rep. 67.

4 Co. 58, a. Comyn's Digest, tit. Prærogative, D. 70.

• Vol. i. 3d edit. 323.

North Carolina

* Code, 10. 10. 1. In Pennsylvania and Mississippi, there is an officer` appointed to take charge of escheated estates, termed escheator-general. Purdon's Digest, 342. Revised Code of Mississippi, 1824. There are similar officers charged with escheats in the other states.

• Domat, vol. i. 592, sec. 6. 616, sec. 4. Vander Linden's Institutes, by Henry, 165. Code Napoleon, sec. 723.

apparent dominus rei, quæ olim fuerunt inventoris, de jure naturali, jam efficiuntur principis de jure gentium. It is a principle which lies at the foundations of the right of property, that if 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, encumbrances, 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 statutes of 39 and 40 Geo. III., c. 88, 47 Geo. III., c. 24, 59 Geo. III., c. 94, mitigated the rule, by the division which enabled the king, by warrant

e

or grant, to direct the execution of the trust. In *426 the case of Sir George 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

• Bracton, lib. 1, c. 12, sec. 10.

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. Gall. lib. 4, c. 1. Tacit. de Mor. Germ. c. 26.

• New-York Revised Statutes, 3d edit., vol. ii. sec. 2. and Trust Co. v. The People, 1 Sandford's Ch. Rep. 139.

Cæsar, de Bell.

Farmer's Loan

But at common

law the king took the lands escheated by reason of alienage free from all incumbrances. Assistant V. Ch. Sandford, 1 Sandford's Rep. 141.

Harg. Co. Litt. 13, n. 7. Pimb's case, Moore, 196.

.3 Ch. Rep. 19.

cestui que trust.

The statutes I have referred to are

calculated to check the operation of such an unreasonable principle.

II. 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 forfeiture went, indeed, upon feudal principles, beyond the law of escheat. 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 ancestor. The forfeiture of the estate is very much reduced in this

The statute of 4 and 5 Wm. IV. c. 23, went further, and declared that when a trustee of lands died without an heir, the court of chancery may appoint a trustee to act for the party beneficially interested. The New-York Revised Statutes, 3d edit., vol. ii. p. 2, has a like provision, and no interest in lands or chattels, vested in trust or by way of mortgage, and not beneficially in the trustee or mortgagee, shall escheat or be forfeited by the attainder of the trustee or mortgagee. The escheats spoken of in the text relate exclusively to land, movables never escheated in the technical sense; and if the owner died intestate and left no lawful representatives, the personal estate in England remained at the disposition of the crown. In this country it must vest in the state, and so the statute law in some of the states has specially provided. This subject is well discussed in the case of the Commonwealth v. Blanton's Executors. 2 B. Monroe's Rep. 393.

b Wright on Tenures, 117, 118.

country, and the corruption of blood is universally abolished. In New-York, forfeiture of property for crimes, is confined to the case of a conviction for

treason; and, by a law of the colony of Massachu*427 setts, *as early as 1641, escheats and forfeitures

upon the death of the ancestor, "natural, unnatural, casual, or judicial," were abolished for ever."

It is a rule of law, that the state, on taking lands by escheat, and even by forfeiture, takes the title which the party had, and none other. It is taken in the plight and extent by which he held it; and the estate of a remainder-man is not destroyed or divested by the forfeiture of the particular estate.

Besides the forfeiture of property to the state, for the conviction of crimes, estates less than a fee may be forfeited to the party entitled to the residuary interest by a breach of duty in the owner of the particular estate. If a tenant for life or years, by feoffment, fine, or recovery, conveys a greater estate than he is by law entitled to do, he then, under the English law, forfeits his estate to the person next entitled in remainder or reversion; for he puts an end to his original interest; and the act tends, in its nature, to divest the expectant estate in remainder or reversion. The same consequences followed, whenever the vassal, by any act whatever, was, in the eye of the feudal law, guilty of an act of disloyalty, and a renunciation of the feudal connexion. But a conveyance by deed, of things lying in grant, or conveyances

d

Ibid. vol. ii. 701, sec. 22. forfeiture of estates for

New-York Revised Statutes, vol. i. 284, sec. 1. b Dane's Abr. vol. v. 4. Mr. Dane says, that crimes is scarcely known in our American laws. Ibid. 11.

Case of Captain Gordon, Foster's Crown Law, 95. Borland v. Dean, 4 Mason's Rep. 174. Dalrymple on Feudal Property, c. 4, p. 145–154, gives an interesting history of the law of forfeiture in Scotland, and the gradual conformity, on the point in the text, between the Scotch and English law.

Wright on Tenures, 203. Co. Litt. 251, a, b.

by release, and bargain and sale, under the statute of uses, do not work a forfeiture; for they convey no greater interest than what the party lawfully owns, and is entitled to convey. Such forfeitures by the tenants of particular estates, have become obsolete in this

country; and the *just and rational principle pre- *428 vails, that the conveyance by the tenant operates only upon the interest which he possessed, and does not affect the persons seised of ulterior interests. An act of assembly in Pennsylvania gave to all deeds and conveyances of lands, proved or acknowledged, and recorded, the same force and effect, as to possession, seisin, and title, as deeds of feoffment with livery; and yet it has been held, that such a deed worked no forfeiture, on the common law doctrine of alienation by tenants for life or years. In Massachusetts, it has, however, been decided, that a conveyance in fee by a tenant for life, by bargain and sale, was a forfeiture of his estate to those in remainder or reversion. But though the correctness of the decision might be questioned, the case has now become unimportant, for the statute law of Massachusetts, as well as of other states, gives to the conveyance of a tenant for life or years, no greater operation than what his interest entitled him to give it. And it was a well established principle of the common law, that if a condition on which an estate for life or years depended, be broken for non-payment, yet the lessor might waive the forfeiture by the subsequent acceptance

■ M'Kee v. Prout, 3 Dall. Rep. 486.

▸ Commonwealth v. Welcome, cited in 5 Dane's Abr. 13, sec. 7. The extraordinary industry, and great experience, of the author of the Abridgement and Digest of American Law, (vol. v. x. xi.,) was not able to lead him to any case in our American courts, in which there had been a forfeiture of the estate of a tenant for life or years, by reason of a breach of duty as tenant by way of plea, or default upon record.