hands of the heir cannot be sold on a judgment against the ancestor, until the personal estate is exhausted. Boyd v. Armstrong, 1 Yerger, 40. The Massachusetts Revised Statutes of 1836, part 2, tit. 3, c. 62, make ample provision for the marshalling of assets as against heirs, devisees, and legatees, when a part of the real estate is wanting for the payment of debts, or when one or more of the persons who ought to contribute become insolvent. It is the application by statute of the principles of courts of equity in marshalling assets and enforcing contributions in the cases of estates descended or devised, or when one of the parties bound to contribute becomes in solvent. Hays v. Jackson, 6 Mass. 149. Livingston v. Livingston, 3 Johns. Ch. 148. Livingston v. Newkirk, Ibid. 312. In respect to the distribution of assets in equity for the payment of debts, it is to be observed that a creditor may go into chancery against executors and administrators for the discovery and distribution of assets; and after the usual decree to account in a suit by one or more creditors, the decree is for the benefit of all the creditors, and is in the nature of a judgment for all. They are all entitled, and should have notice to come in and prove their debts before the master, and they will be paid ratably without preferences, after the judgment-creditors are satisfied, and creditors suing at law will in the mean time be stayed by injunction, and not allowed to disturb the ratable and equal distribution of the assets in chancery. Morrice v. Bank of England, Cases temp. Talbot, 218. 4 Bro. P. C. 287. Paxton v. Douglas, 8 Vesey, 520. Clarke v. Earl of Ormonde, Jacobs, 108. Thompson v. Brown, 4 Johns. Ch. 619. So, also, a suit against the heir and decree for a sale enures for the benefit of all the creditors against the heir, and draws the entire distribution of the assets of the heir into chancery. Martin v. Martin, 1 Vesey Sen. 211. The same rule applies in the case of a devise to trustees to pay debts, or to a charge on land for the payment of debts. The estate becomes a trust estate for the purpose, and as the assets are placed under the jurisdiction of chancery, to be distributed as equitable assets, suits at law by creditors for the purpose of gaining a preference, will be enjoined. Benson v. Leroy, 4 Johns. Ch. 651. Helm v. Darby, 3 Dana (Ken.), 186. Stroud v. Barnett, Ibid. 391. Executors pay in their own wrong after decree for administration. Mitchelson v. Piper, 8 Sim. 64.1

1 Appropriation of Debtor's Payments. — The rules on this subject are thus mentioned by Chancellor Walworth, in Stone v. Seymour, 15 Wendell, 23:

1st. If two debts are due at the time of a partial payment, the debtor may apply the payment as he pleases, subject to the restriction, that the creditor is not obliged to receive partial payment.

2d. Where the debtor does not make the application at the time of payment, the creditor may, at the time he receives the money, make the application.

3d. If one part of the debt consists of interest, and another of principal, the payment is first applied to the interest due, and the residue to the principal.

4th. If no application is made by the debtor, and there are two debts, of which one only is due, the payment is not to be applied to the debt which is not due.

In cases not coming within these four rules, the chancellor admits there are numerous con flicting decisions, as to the time within which the creditor must make the application, and as to his right to make any. See Cremer v. Higginson, 1 Mason, 323, 338.

In some cases it is held, that the creditor may make the application at any time before the matter comes to the consideration of a jury. Philpott v. Jones, 4 Nev. & Man. 16. Wilkir son v. Sterne, 9 Mod. 427. Mayor of Alexandria v. Patten, 4 Cranch, 320. See contra, United States v. Kirkpatrick, 9 Wheaton, 787; Simson v. Ingham, 2 Barn. & Cress. 65; Hill v. Southerland, 1 Wash. 128.

Again, as to the right of the creditor to make the application, in Gass v. Stinson, 3 Sumner, 98, Mr. Justice Story was strongly inclined to adopt the doctrine of the Roman law, and

confine the right to casas, when it was indifferent to the debtor to which of his debts the pay ment was applied. See, also, Pattison v. Hull, 9 Cowen, 747, 773. This would be, in effect, taking from the creditor the right of application, where no express application, at the time of payment, was made. The Supreme Court of Pennsylvania, on the other hand, in Logan v. Mason, 6 Watts & Serg. 1, held, that the propriety of an application, instantly made by a creditor (where none had been made by the debtor), could not be questioned; and Gibson C. J., in a strong opinion, denies the authority of this provision of the civil law. Such seems to be the decision in England. Mills . Fowkes, and cases supra. See, also, Upham r. Lefavour, 11 Metcalf, 174; Allen v. Culver, 3 Denio, 284; and such, also, is Chancellor Walworth's opinion in Stone v. Seymour, supra. And such is the rule in Connecticut. Sherwood v. Haight, 26 Conn. 432. And in Mississippi, also. Crisler v. McCoy, 33 Miss. (4 George) 445. And in Arkansas. Armistead v. Brooke, 18 Ark. 521.

In an account current between parties, the law, in the absence of any specific arrangement, applies the first item on the credit side to the first item on the debit side, and so on. Clayton's case, 1 Meriv. 572. Bodenham v. Purchas, 2 B. & Ald. 45. Cushing v. Wyman, 44 Maine, 121.

Where neither party makes the application, the law appropriates the payment according to the justice of the case. Allen v. Culver, supra. See, on the subject generally, Goddard r. Hodges, 3 Tyrwh. 213; James v. Child, 2 Id. 735; Ribbans v. Crickett, 1 Bos. & Pull. 264; Wright v. Laing, 3 Barn. & Cress. 166; Marryatts v. White, 2 Stark. 101; Plomer v. Long, 1 Stark. 153; Jencks v. Alexander, 11 Paige, 620; United States v. Bradbury, Daveis, 146; Bangor B. Corporation v. Whiting, 29 Maine, 123; Miller v. Leflore, 32 Miss. (3 George) 634.

Payment made by a debtor to a creditor to whom he owes several distinct debts, without any direction as to its application, and immediately applied by the creditor to a debt barred by the statute of limitations, will not take the remainder of that debt out of the statute of limitations. Pond v. Williams, 1 Gray, 630. But see Ayer v. Hawkins, 19 Vermont, 26. Another rule is to apply the payment in the way most beneficial to the creditor; thus, where there are several debts, to the one least secured, unless such course is to the prejudice of a surety. Upon the general subject of appropriating payments, see further, Pierce v. Sweet, 33 Penn. St. 151; Patty v. Milne, 22 Wendell, 558; Truscott v. King, 6 N. Y. 147; Van Rensselaer v. Roberts, 5 Denio, 470; Allen v. Culser, 3 Id. 284; Hunter v. Osterhaut, 11 Barb. (N. Y.) 33; Seymour v. Marvin, 11 Barb. (N. Y.) 80.

LECTURE LXVI.

OF TITLE BY ESCHEAT, BY FORFEITURE, AND BY EXECUTION

TITLE to land is usually distributed under the heads of descent and purchase, the one title being acquired by operation of law, and the other by the act of agreement of the party. (a) But titles by escheat and forfeiture are also acquired by the mere act of law; and Mr. Hargrave thinks that the proper general division of title to estates, would have been by purchase and by act of law, the latter including equally descent, escheat, and forfeiture. Our American authors (b) have added an additional title, and one unknown in the English common law, and which they treat separately. It is title by execution; and I shall take notice of it in regular order.

1. Of title by escheat.

This title, in the English law, was one of the fruits and consequences of feudal tenure. When the blood of the last person seised became extinct, and the title of the tenant in fee failed, from want of heirs, or by some other means, the land resulted back, or reverted to the original grantor, or lord of the fee, from whom it proceeded, or to his descendants or successors. All escheats, under the Eng

lish law, are declared to be strictly feudal, and to import *424 *the extinction of tenure. (a) The opinions given in the

great case of Burgess v. Wheate, (b) concur in this view of the doctrine of escheat; and in that case it was held to be the rule, that if lands were held in trust, and the cestui que trust died without heirs, the lands did not escheat to the crown, but the trustee,

(a) Litt. sec. 12. Co. Litt. Ibid. note, 106.

(b) Ch. J. Swift, in his Digest of the Laws of Connecticut; and Mr. Dane, in his Abridgment of American Law.

(a) Wright on Tenures, 115-117. 2 Blacks. Comm. 244, 245.

(b) 1 Wm. Blacks. 123. S. C. 1 Eden, 177.

being in esse and in the legal seisin of the land, took the land discharged of the trust, and bound as owner for the feudal services. But, as the feudal tenures do not exist in this country, there are no private persons who succeed to the inheritance by escheat; and the state steps in the place of the feudal lord, by virtue of its sovereignty, as the original and ultimate proprietor of all the lands within its jurisdiction. It is a general principle in the American law, and which, I presume, is everywhere declared and asserted, that when the title to land fails from defect of the heirs or devisees, it necessarily reverts or escheats to the people, as forming part of the common stock to which the whole community is entitled. (e) Whenever the owner dies intestate, without 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

(c) New York Revised Statutes, vol. i. 282, tit. 12. Ibid. 718, secs, 1, 2, 3. Swift's Digest, vol. i. 156. Rhode Island Statutes of 1768 and 1822. Tucker's Blackstone, vol. ii. 244, 245, note. Statute of Pennsylvania, 29th September, 1787. 5 Binney, 375. Dane's Abr. vol. iii. 140, sec. 24. Ibid. vol. iv. 538. Mass. Revised Statutes of 1836. Statute Laws of Ohio, 1831, p. 253; of Alabama, 1811, 1818, p. 288; of Illinois, edit. 1833; of Georgia, Prince's Dig. 2d edit. 198; of New Jersey, 1828, Elmer's Digest; of Mississippi, Revised Code of 1824. Revised Statutes of Missouri, 1835.1 The law of Alabama says that the real and personal estates of persons dying intestate, and leaving no lawful heirs within the limits of the United States, shall escheat. The words, as they stand, want explanation to render their operation just or liberal. Mr. Dane says, that the New England colonies of Massachusetts and Plymouth very early passed laws for vesting in the colony all lands escheating for want of heirs, on the ground that the colony was the sovereign who made the original grant. In Maryland, before the 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, stands 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, Index, tit. Escheat, passim; Ringgold v. Malott, 1 Harr. & Johns. 299; Matthews v. Ward, 10 Gill & Johns. 443. By the Napoleon Code, Nos. 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. North Carolina Revised Statutes, 1837, vol. 1, 237. Similar provision in Mass. Sup. Rev. St. 1849, ch. 87.

1 Puckett v. State, 1 Sneed (Tenn.), 355.

operation of law. (d) 2 No inquest of office is requisite in such cases; (e) and by the New York Revised Statutes, (ƒ) the attorney-general is required to bring an action of ejectment, whenever he shall have reason to suspect that the people have title to lands by escheat.1

* 425 *

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. (a) 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. (b) It was, as early as the age of Bracton, regarded as a part of the jus gentium-ubi non apparet dominus rei, quæ olim fuerunt inventoris, de jure naturali, jam efficiuntur principis de jure gentium. (c) 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

(d) The People v. Conklin, 2 Hill, 67.

(e) 4 Co. 58, a. Comyn's Digest, tit. Prerogative, D. 70.8

(f) Vol. i. 3d edit. 323.

(a) Code, 10, 10, 1. In Pennslyvania 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.

(b) Domat, pt. 2, b. 1, tit. 1, sec. tutes, by Henry, b. 1, c. 10, sec. 3. (c) Bracton, lib. 1, c. 12, sec. 10.

4, art. 6, sec. 13, art. 4. Van der Linden's InstiCode Napoleon, sec. 723.

2 There is no presumption of law in favor of an escheat that a person, proved to be dead, left no heirs; but some negative proof will be required; nor will the court even presume that he died under the age of ninety years, in the absence of all testimony upon the point. Hammond v. Inloes, 4 Md. 138. By the common law, lands conveyed or devised (but not descended) to an alien, vest in him subject only to the right of the sovereign or people to enforce the escheat; and the New York statutes relative to aliens, and their right to hold real estate, have not changed the rule. Wright v. Saddler, 20 N. Y. 320.

3 Farrar v. Dean, 24 Missou. (3 Jones) 16. Colgan v. McKeon, 4 Zabr. (N. J.), 506. The law is otherwise in California. See the very interesting case of The People v. Folsom, 5 Cal. 373. In South Carolina, the legislature may, by act, grant future escheats. Nettles v. Cummings, 9 Rich. Eq. (S. C.) 440.

4 Colgan v. McKeon, 4 Zabr. (N. J.) 566.

1 As to when a person in New York dies seised of lands, so as to authorize the commissioners of the land-office to release the escheat, see Englishbe v. Helmuth, 3 Comst. 294.

The 6th article of the treaty of 1783 not only barred the escheat of land held by British subjects, but gave them capacity to transmit them by descent to a citizen. Brown v. Sprague, 5 Denio, 545. Lands that have escheated, may be conveyed by the state before entiș. McCaughal v. Ryan, 27 Barb. (N. Y.) 376.