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CHAPTER XII.

MODES OF ACQUIRING AND LOSING A TITLE TO REAL PROPERTY.

Having considered the several ingredients requisite to form a complete title to lands, tenements, and hereditaments, let us next consider the several manners in which a complete title may be reciprocally acquired and lost, whereby the dominion of "Things Real" is either continued or transferred from one man to another.

Explain the various methods of acquiring on the one hand, and of losing on the other, a Title to Estates in "Things Real."

The methods of acquiring on the one hand, and of losing on the other, a title to estates in THINGS REAL are, by our law, reduced into two main divisions:-1. By Descent, where the title is vested in a man by the operation of law.- -2. By Purchase, where the title is vested in him by his own act or in pursuance of some agreement, and not by descent from any of his ancestors or kindred. This latter mode, as will be seen hereafter, includes several sub-divisions.

I. By Descent.

Descent depends materially on the nature of kindred and the several degrees of consanguinity of the kindred or alliance in blood.

Consanguinity, or kindred, is the connection or relation of per

sons descended from the same stock or common ancestor. This consanguinity is either lineal, or collateral.

Lineal consanguinity is that which subsists between persons of whom one is descended in a direct line from the other, as between John Jones and his son, grandson, great-grandson, and so downwards in the direct descending line; or, between John Jones and his father, grandfather, great-grandfather, and so upwards in the direct ascending line. Every generation, in this lineal direct consanguinity, constitutes a different degree, reckoning either upwards or downwards: the father of John Jones is related to him in the first degree, and so likewise is his son; his grandfather and grandson in the second; his great grandfather and great-grandson in the third.

Collateral kindred are such as lineally spring from one and the same ancestor, who is the stirps, or root—the stipes, trunk or common stock, whence these relations are branched out. As

if John Jones hath two sons, who have each a numerous issue; both these issues are cousins and are collateral kinsmen to each other, because they are all descended from this common ancestor, and all have a portion of his blood in their veins, which denominates them consanguineos. The very being of collateral consanguinity consists in their descent from one and the same common ancestor.

Explain Title by Descent, and briefly state the substance of the Rules of Descent as prescribed by the Act of 1833. Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation as his heir-at-law, and by the Act, "the word descent shall mean the title to inherit land by reason of consanguinity, as well where the heir shall be an ancestor or collateral relation, as where he will be a child or other issue." In every case the descent is to be traced to the purchaser.

In the year 1833 an Act,* called the "Inheritance Act," was passed, materially altering the former rules of descent; and these alterations apply to every kind of hereditament, whether it be subject to the common law of England or to any peculiar custom, such as that of gavelkind or borough-English; but in those

* 3 & 4 Wm. IV., c. 106, amended by 22 & 23 Vict., c. 35, es. 19 & 20.

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cases only to the extent of providing that, on failure of direct lineal descendants, the direct lineal ancestor inherits in preference to collateral relations. It does not alter the descent where there are direct lineal descendants. This Act does not extend

to any descent on the decease of any person who may have died before January 1, 1834.

The "Canons of Inheritance," according to the new law, grafted upon the old, are the following:

1. That inheritances shall lineally descend in the first place to the issue of the last purchaser or person entitled, unless it be proved that he inherited the same, in which case "the person from whom he inherited the same shall be considered to have been the purchaser; and in like manner the last person from whom the land shall be proved to have been inherited shall in every case be considered to have been the purchaser, unless it shall be proved that he inherited the same.' That when any

land shall have been devised by any testator who shall die after December 1, 1833, to the heir, or to the person who shall be the heir of such testator, such heir shall be considered to have acquired the land as a devisee, and not by descent.

2. That the male issue shall be admitted before the female, and that where the issue are two or more males in equal degree, the eldest only shall inherit, but the females all together. Thus, if a man has two sons, John and James, and two daughters, Mary and Eliza, and dies, John, his eldest son, shall alone succeed to his estate, in exclusion of James and the two daughters; but if both the sons die without issue before the father, the daughters shall both inherit the estate as co-heiresses.

3. That all the lineal descendants, in infinitum, shall represent the ancestor; that is, shall stand in the same place as the person himself would have done had he been living. Thus the child, grandchild, or great-grandchild, either male or female, of the eldest son, succeeds before the younger son, and those representatives shall take neither more nor less, but just as much as their principal would have done. As, if there be two sisters, Jane and Eliza, and Jane dies, leaving six daughters, and then John Jones, the father of the two sisters, dies without other issue, these six daughters shall take among them exactly the

same as their mother Jane would have done; that is, a moiety of the lands of John Jones in coparcenary; so that upon partition made, if the land be divided into twelve parts, Eliza, the surviving sister, shall have six thereof, and her six nieces, the daughters of Jane, one apiece. This taking by representation is called succession in stirpes, according to the roots, since all the branches inherit the same share that their root whom they represent would have done.

4. That on failure of lineal descendants or issue of the purchaser, the lineal ancestor shall be heir to any of his issue, so that the father shall be admitted before a brother or sister; and a more remote lineal ancestor to any of his issue other than a nearer lineal ancestor or his issue.

5. That none of the maternal ancestors of the person from whom the descent is to be traced, nor any of the descendants, shall be capable of inheriting until all his paternal ancestors and their descendants shall have failed; and also that no female paternal ancestor of such person, nor any of her descendants, shall be capable of inheriting until all his male paternal ancestors and their descendants shall have failed; and that no female maternal ancestor of such person, nor any of her descendants, shall be capable of inheriting until all his male maternal ancestors and their descendants shall have failed.

6. That the mother of the more remote male ancestor be admitted before the mother of the less remote male ancestor.

7. That a kinsman of the half-blood shall be capable of being heir; and that such relation by the half-blood shall inherit next after a kinsman in the same degree of the whole blood and his issue where the common ancestor shall be a male, and next after the common ancestor where such common ancestor is a female; so that the brother of the half-blood on the part of the father shall inherit next after the sisters of the whole blood on the part of the father and their issue; and the brother of the half-blood on the part of the mother, shall inherit next after the mother.

8. Where there shall be a total failure of heirs of the purchaser, or where any land shall be descendible as if an ancestor had been the purchaser thereof, and there shall be a total failure of the heirs of such ancestor, then and in every such case the land shall

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