In this country, however, the state steps in, in the place of the feudal lord, by virtue of its sovereignty, as the original and ultimate proprietor of all the lands within its juris diction ; 4 Kent 424. See Matthews v. Ward, 10 Gill & J. (Md.) 450 ; 3 Dane, Abr. 140. And it escheats to the state as part of its common ownership, either by mere operation of law, or upon an inquest of office according to.the law of the particular state ; Hamil ton v. Brown, 161 U. S. 256, 16 Sup. Ct. 58; 40 L. Ed. 691; Smith v. Doe, 111 N. Y. Supp. 525. See 21 Harv. L. Rev. 452. It is, per haps, questionable how far this incident ex ists at common law in the United States gen erally. In Maryland the lord proprietor was originally the owner of 'the land, as the crown was in England. In most of the states the right to an escheat is secured by statute ; 4 Kent 424; 1 Washb. -R. P. 24, 27 ; 2 id. 443.
Such a statute is "not unconstitutional, but only asserts an indisputable, but long neglected and dormant right in the common wealth ;" Com. v. Blanton's Ex'rs, 2 B. Mon. (Ky.) 393; Crane v. Reeder, 21 Mich. 24, 4 Am. Rep. 430; and the state, in a just and proper exercise of its police power, may de dare new causes of escheat of lands within its territory ; Com. v. R. Co., 124 Ky. 497, 99 S. W. 596.
In Indiana and Missouri it was held that at common law, if a bastard died intestate, his property escheated ; Doe v. Bates, 6 Blackf. (Ind.) 533 ; Bent's Adm'r v. St. Vrain, 30 Mo. 268 ; but this is now otherwise by statute in those states and in most of the others. See BASTARD. So at common law there was an escheat if the purchaser or heirs of the decedent were aliens ; Montgom ery v. Dorion, 7 N. H. 475 ; Co. Litt. 2 b; but it is usually otherwise by the statutes of the several states. See ALIEN.
Hereditaments which, although they may be held in fee-simple, are not strictly subjects of tenure, such as fairs, markets, commons in gross, rents charge, rents seek, and the like, do not escheat, but become extinct upon a failure of heirs of the tenant; Challis, R. P. 30.
The method of proceeding, and aubject matter. To determine the question of es cheat a proceeding must be brought in the nature of an inquest of office or office found ; Jackson v. Adams, 7 Wend. (N. Y.) 367 ; Peo ple v. Folsom, 5 Cal. 373 ; Gresham v. Rick enbacher, 28 Ga. 227 ; State v. Tilghman, 14 Ia. 474 ; Louisville School Board v. King, 127 Ky. 824, 107 S. W. 247, 15 L. R. A. (N. S.) 379; In re Miner's Estate; 143 Cal. 194, 76 Pac. 968 ; and to give the inquisition the ef fect of a lien the same must be filed, as the record of it is the only competent evidence by which title by escheat can be estab lished ; Crane v. Reeder, 21 Mich. 24, 4 Am. Rep. 430 ; People v. Cutting, 3 Johns. (N. Y.) 1; and such action must also be taken to re cover escheated lands held in adverse pos session ; after which an entry must be made to give the state a right of possession; Jack son v. Adams, 7 Wend. (N. Y.) 367 ; Com. v.
Hite, 6 Leigh (Va.) 588, 29 Am. Dec. 226; Reid v. State, 74 Ind. 252; and the facts which support the escheat must be stated ; Catham v. State, 2 Head (Tenn.) 553 ; Ap peal of Ramsey, 2 Watts (Pa.) 228, 27 Am. Dec. 301; a bill of information must be filed and a scire facias issued against all alleged to have, hold, claim, or possess such estate ; Wallahan v. Ingersoll, 117 Ill. 123, 7 N. E. 519; and the names of all persons in posses sion of the premises, and all who were known to claim an interest therein, must be set forth and the scire facias served on them personally ; to all other persons constructive notice is sufficient ; id. In Texas, no pro ceedings can be had, except under and ac cording to an act of the legislature ; Wieder anders v. State, 64 Tex. 133; Hamilton v. Brown, 161 U. S. 256, 16 Sup. Ct. 585, 40 L. Ed. 691.
In many of the states, however, the doc trine in force is, that land cannot remain without an owner ; it must vest somewhere, and on the death of an intestate without heirs it becomes eo instante the property of the state; Mooers v. White, 6 Johns. Ch. (N. Y.) 360 ; Hall v. Gittings' Lessee, 2 Harr. & J. (Md.) 112; State v. Reeder, 5 Neb. 203 ; Montgomery v. Dorion, 7 N. H. 475; Rubeck v. Gardner, 7 Watts (Pa.) 455; Haigh v. Haigh, 9 R. I. 26; Colgan v. McKeon, 24 N. J. L. 566. In Wallahan v. Ingersoll, 117 Ill. 123, 7 N. E. 519, it was held that on the death of an intestate without heirs, the title to his es tate devolves immediately upon the state, but, in order to make that title available, it must be established in the manner prescribed by law by proceedings in the proper court, in the name of the people, for the purpose of establishing by judicial determination the title of the state. After a long lapse of time an inquest will be presumed ; Doe v. Roe, 26 Ga. 582. A right of action for the recovery of lands is vested in the state at the death of the owner whose property escheats; John ston v. Spicer, 107 N. Y. 185, 13 N. E. 753. Persons claiming as heirs may come in under the statute and obtain leave to make up an issue at law to have their rights determined ; Ex parte Williams, 13 Rich. (S. C.) 77; In re Alton's Estate, 220 Pa. 258, 69 Atl. 902 ; State v. Knott, 54 Fla. 138, 44 South. 744. The legislature is under no constitutional ob liga don to leave the title to such property in abeyance, and a judicial proceeding for ascer taining an escheat on due notice, actual to known, and constructive to all possible un known, claimants, is due process of law ; and a statute, providing for such proceeding does not impair the obligation of any contract, contained in the grant under which the for mer owner held whether from the state or a private person ; Hamilton v. Brown, 161 U. S. 256, 275, 16 Sup. Ct. 585, 40 L. Ed. 691.