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Esc Heat

lord, escheat, law, heirs, lands, blood, forfeiture, felony, tenant and fee

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ESC HEAT (Fr. eaclseoir, to happen). An accidental reverting of lands to the original lord.

Coke says the word "signifieth properly when by accident the lands fall to the lord of whom they are holden, in which case we say the fee is escheated." And he enumer ates the instances of failure of blood on the one hand and per delictum tenentis, i. e., for felony, on the other. Co. Litt. 13a.

An obstruction of the course of descent, and a consequent determination of the ten ure, by some unforeseen contingency ; in which case the land naturally results back, by a kind of reversion, to the original grantor or lord of the fee; 2 Bla. Com. 244 et seq.

Care must be taken to distinguish between for feiture of lands to the king and this species of es cheat to the lord ; which by reason of their simili tude in some circumstances, and because the crown is very frequently the immediate lord of the fee, and therefore entitled to both, have been often con founded together. Forfeiture of lands, and of what ever else the offender possessed, was the doctrine of the old Saxon law, as a part of punishment for an offence, and does not at all relate to the feodal system, nor is the consequence of any seigniory or lordship paramount; but, being a prerogative vest ed in the crown, was neither superseded nor dimin ished by the introduction of the Norman tenures, a fruit and consequence of which, escheat must un doubtedly be reckoned. Escheat therefore operates in subordination to this more ancient and superior law of forfeiture.

The doctrine of escheat upon attainder, taken singly, is this: That the blood of the tenant, by the commission of any felony (under which denomina tion all treasons were formerly comprised), is cor rupted and stained and the original donation of the feud is thereby determined, it being always granted to the vassal' on the implied condition of dum bene se gesserit. Upon the thorough demonstration of which guilt, by legal attainder, the feodal covenant and mutual bond of fealty are held to be broken, the estate Instantly falls back from the offender to the lord of the fee, and the inheritable quality of his blood is extinguished and blotted out forever. In this situation the law of feodal escheat was brought into England at the Conquest; and in gen eral superadded to the ancient law of forfeiture. In consequence of which corruption and extinction of hereditary blood, the land of all felons would immediately revert in the lord, but that the supe rior law of forfeiture, intervenes, and intercepts it in its passage: In case of treason, forever ; in case of other felony, for only a year and a day; after which time it goes to the lord in the regular course of escheat, as it would have done to the heir of the felon in case the feodal tenures had never been introduced. 2 Bla. Corn. 251.


The estate itself which so reverted was called an escheat. Spelman. The term in eluded also other property which fell to the lord; as, trees which fell down, etc. Cowell. All escheats under the English laws are declared to be strictly feudal and to import the extinction of tenure. Wr. Ten. 115; 1 W. Bla. 123.

It was not until after the statute of guia emptores that the title of the reversioner became distinct from that of the lord who took by escheat. Before that statute "revert" and "escheat" were used indiscriminately to express the fact that the land went back to the lord who gave it; 3 Holdsw. Hist. E. L. 115.

That if the ownership of a property become vacant, the right must necessarily subside Into the whole community In which, when society first assumed the elements of order and subordination, It was originally vested, is a principle which lies at the foundation of property ; 4 Kent 425; and this seems to be the universal rule of civilized society.

Domat, Droit Pub. lib. 1, t. 6, s. 3, n. 1. See 10 Viner, Abr. 139 ; 1 Bro. Civ. Law 250 ; Lock v. Lloyd's Estate, 5 Binn. (Pa.) 375 ; McCaughal v. Ryan, 27 Barb. (N. Y.) 376 ; People v. Folsom, 5 Cal. 373; Armstrong v. Bittinger, 47 Md. 103; Appeal of Olmsted, 86 Pa. 284. It was recognized by Justinian, and by the civil law an officer was appointed, called the escheator, whose duty it was to assert the right of the emperor to the hcereelitas jacens or caduca when the owner left no heirs or legatee to take it. Code 10, 10, 1. By the earlier English usages the estate of the vassal escheated to his lord when there were no representatives in the seventh degree, and this custom was later extended to include male de scendants ad infinitum; Lib. Feud. I. 1, s. 4. In case of escheat by failure of heirs, by cor ruption of blood, or by conviction of certain crimes, the feud fell back Into the lord's hands by a ter mination of the tenure. 1 Washh. R. P. 24. At the present day, in England, escheat can only arise from the failure of heirs. By the Felony Act, 33 and 34 Vict. c. 23, no confession, verdict, inquest, convic tion, or judgment of or for any treason or felony, or 'NU: de se, shall cause any forfeiture or escheat ; 3 Steph. Com. 660. An action of ejectment, com menced by writ of summons, has taken the place of an ancient writ of escheat, against the person in possession on the death of the tenant without heirs. The early English law is thus stated: "By the law of England, before the Declaration of Inde pendence, the lands of a man dying intestate and without lawful heirs reverted by escheat to the king as the sovereign lord ; but the king's title was not complete without an actual entry upon the land, or judicial proceedings to ascertain the want of heirs and devisees ; 8 App. Cas. 767, 772 ; 2 Bla. Corn. 245. The usual form of proceeding for this purpose was by an inquisition or inquest of office before a jury, which was had upon a commission out of the court' of chancery, but was really a pro ceeding at common law ; and, if it resulted in favor of the king, then, by virtue of ancient statutes, any one claiming title In the lands might, by leave of that court, file a traverse in the nature of a plea or defense to the king's claim, and not in the nature of an original suit; Lord Somers in 14 How. St. Tr. 1, 83 ; 6 Ves. 809 ; 4 Madd. 281; L. R. 2 Eq. 95 ; Peo ple v. Cutting, 3 Johns. (N. Y.) 1; Briggs v. Light Boat Upper Cedar Point,. 11 Allen (Mass.) 157, 172. The inquest of office was a proceeding in rem; when there was office found for the king, that was notice to all persons who had claims to come In and assert them ; and, until so traversed, it was conclusive in the king's favor ; Bayley, J., in 12 East 96, 103; 16 Vin. Abr. 86, pl. 1." Hamilton v. Brown, 161 U. S. 256, 16 Sup. Ct. 585, 40 L. Ed. 691. In medimval law there was an escheat to the lord propter defectum sanguinis, if the tenant died with out heirs ; and prop ter delictum tenentis, if the tenant committed any gross breach of the feudal bond. The, right to escheat depended on tenure alone.

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