[ocr errors][ocr errors][ocr errors][merged small][ocr errors][ocr errors]
[merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small]
[ocr errors]






a § 12.

b Co. Litt. 18.


JRCHASE, perquifitio, taken in its largest and most extenfive fenfe, is thus defined by Littleton; the poffeffion 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 fenfe it is contradiftinguished from acquifition by right of blood, and includes every other method of coming to an eftate, but merely that by inheritance: wherein the title is vested in a perfon, not by his own act or agreement, but by the fingle operation of law .

PURCHASE, indeed, in it's vulgar and confined acceptation, is applied only to fuch acquifitions of land, as are obtained by way of bargain and fale, for money, or fome other valuable confideration. But this falls far fhort of the legal idea of purchase: for, if I give land freely to another, he is in the eye of the law a purchafor; and falls within Littleton's definition, for he comes to the eftate by his own agreement, that is, he confents to the gift. A man who has his father's estate settled upon him in tail, before he was born, is also a purchafor; for he takes quite another estate than the law of defcents would have given him. Nay even if the anceftor devises his eftate to his heir at law by will, with other limitations, or in any other shape than the courfe of descents would direct, fuch heir fhall take by purchase (1). But if a

c Ibid.

d Lord Raym. 728.

(1) A man having two daughters his heirs, devifes his lands to them and their heirs, and dies. They fhall take by purchase as

man, feised in fee, devifes his whole eftate to his heir at law, so that the heir takes neither a greater nor a less estate by the devise than he would have done without it, he fhall be adjudged to take by defcent, even though it be charged with incumbrances; this being for the benefit of creditors, and others, who have demands on the eftate of the ancestor. If a remainder be limited to the heirs of Sempronius, here Sempronius himself takes nothing; but if he dies during the continuance of the particular eftate, his heirs fhall take as purchafors. But, if an eftate be made to A for life, remainder to his right heirs in fee, his heirs fhall take by defcent: for it is an ancient rule of law, that wherever the ancestor takes an eftate for life, the heir cannot by the fame conveyance take an estate in fee by purchase, but only by defcent h. And, if A dies before entry, ftill his heir shall take by descent, and not by purchase; for, where the heir takes any thing that might have vested in the ancestor, he takes by way of descenti. The ancestor, during his life, beareth in himself all his heirs ; and therefore, when once he is or might have been feifed of the lands, the inheritance fo limited to his heirs vests. in the ancestor himself: and the word " heirs" in this cafe is not esteemed a word of purchase, but a word of limitation, enuring fo as to increase the estate of the ancestor from a tenancy for life to a fee-fimple (2). And, had it been otherwise, had the heir (who is uncertain till the death of the ancestor) been allowed to take as a purchafor originally nominated in the deed, as must have been the cafe if the remainder had been exprefsly limited to Matthew or Thomas by name; then, in the times of strict feodal tenure, the lord would

1 Roll. Abr. 626.

f Salk. 241. Lord Raym. 728. g1 Roll. Abr. 627.

h Rep. 104. 2 Lev. 60. Raym. 334. i1 Rep. 98.

k Co. Litt. 22.

joint-tenants for the estate of joint-tenants, and tenants in common, is different in its nature and quality from that of coparcenors. Cro. Eliz. 431.

(2) See ante, p. 172. n. 3.

« ForrigeFortsett »