ESCHEAT is from the Norman French eschet, which is from the word eschier or eschoir, to fall ;' for an escheat is a casual profit, which comes to the lord of a fee.
An escheat may happen in two ways, as it is stated by the old law writers, Per deecturn sangums, for want of heirs, or Per delictum tenentis, for the crime of the tenant. There can only be an escheat of the whole fee ; and this happens when the tenant of lands in fee simple dies in testate and without an heir : the lands, if freehold, escheat to the king, or other lord of the fee ; if corvhold, to the lord of the manor. All such lands therefore either escheat to the king as the supreme lord, or to the intermediate lord, if there is one. Lands which have descended to the last tenant from a pa ternal or maternal ancestor, escheat, if there are no heirs on the part of that ancestor from whom the lands descended.
Since the 1st day of January, 1834, there can be no escheat on failure of the whole blood, wherever there are persons of the half-blood capable of inheriting under 3 & 4 Wm. IV. c. 106, § 9.
If a bastard dies intestate and without issue, his lands escheat to the lord of whom they are held [BasTanz, p. 330]. Escheats propter delictum may happen in consequence of a man being attainted for treason or felony, by which he becomes incapable of inheriting from any of his next of kin, or transmitting an inheritance to them. This is the consequence of At tainder and the legal corruption of blood. The 3 & 4 Wm. IV. c. 106, § 10, which is referred to under Avrairrnita, some what modifies the old law, so as to pre vent escheat in some cases.
By the 4 & 5 Wm. IV. c. 23, no pro perty vested in any trustee or mortgagee shall escheat or be forfeited by reason of the attainder or conviction for any of fence of such trustee or mortgagee, except so far as such trustee or mortgagee may have a beneficial interest in the property.
In 1838 an act was passed (1 & 2 Viet. c. 69) for removing doubts which had arisen respecting the acts 1 Wm. IV. c. 60, and 4 Wm. IV. c. 23, with reference to mortgagees; and it enacts that these acts shall extend only to cases where any person seised of any land by way of mort gage shall have died without having been in possession of such land, or in receipt of the rents and profits, and the money due thereon shall have been paid to his executor, and the devisee or heir of such mortgagee shall be out of the jurisdiction of the Court of Chancery, or it shall be uncertain whether he be living or dead, or who are his heirs ; or when such mortgagee, or devisee, or heir shall have died without an heir, or such devisee, &c., neglect or refuse to convey for twenty eight days after tender of a deed. In any of these cases the court may direct any person to convey such land as di rected by 1 Wm. IV. c. 60.
The words Escheat and Forfeiture are carelessly used even by law writers. Es cheat arises solely because there are no heirs to take the land, for one or the other of the two reasons stated above. Forfeiture is a direct consequence of an illegal act: it is a punishment of feudal origin in flicted on a tenant who breaks his fealty (fidelity) to his lord.
The doctrine of escheat seems to hay. been adopted in every civilized country to avoid the confusion which would °thee wise arise from the circumstance of any property becoming common ; and the sovereign power, or those who claim un der it, are consequently the ultimate heirs to every inheritance to which no other title can be found.