natural or legal extinction of all his hereditary blood: where a man gains an interest by occupancy, the former owner has previously relinquished his right of possession: where one man claims by prescription or immemorial usage, another man has either parted with his right by an ancient and now forgotten grant, or has forfeited it by the supineness or neglect of himself and his ancestors for ages: and so, in case of forfeiture, the tenant by his own misbehavior or neglect has renounced his interest in the estate; whereupon it devolves to that person who by law may take advantage of such default: and, in alienation by common assurances, *the two consid- [*201 erations of loss and acquisition are so interwoven, and so constantly contemplated together, that we never hear of a conveyance, without at once receiving the ideas as well of the grantor as the grantee.

The methods therefore of acquiring on the one hand, and of losing on the other, a title to estates in things real, are reduced by our law to two: descent, where the title is vested in a man by the single operation of law; and purchase, where the title is vested in him by his own act or agreement. (a)(1) (2)

(a) Co. Litt. 18.

(1) Purchase in law is used in contradistinction to descent, and is any other mode of acquiring real property, viz., by a man's own act and agreement, by devise, and by every species of gift or grant; and, as the land taken by purchase has very different inheritable qualities from that taken by descent, the distinction is important. See post, pages 241, 243.-CHRISTIAN.

The principal distinctions between these modes of acquiring estates are these:-1. That by purchase the estate acquires a new inheritable quality, and is rendered descendible to the blood in general of the person to whom it is limited as a feud of indefinite antiquity. 2. That an estate acquired by purchase will not, like a title by descent, render the owner answerable for the acts of his ancestors. Cru. Dig. title xxx. s. 4. H. Chit. Desc. 4. Com. Dig. Descent, A. B. Bac. Abr. Descent, E.-CHITTY.

Allen v. Bland, 134 Ind. 78, 80 (1892). Washburn on Real Property, p. 401; also p. 414, sec. 36. Hoyt v. Van Alstyne, 15 Barb. (N. Y.) 568, 571 (1853). The law of Real Property, Boone, sec. 247, 262. Titles by curtesy and in dower, arising by operation of law upon the death of the wife or husband, as the case may be, seem to fall properly under the head of title by descent. See Co. Litt. 18 b. and n. 106. Chancellor Kent then quotes an authority in support of this proposition in the following language: "The learned author of the article Alienage, in the American Law Magazine for October, 1843, has referred to authorities in favor of the proposition, and particularly to the strong case of Pemberton v. Hicks, 1 Binny 1. The learned author" above referred to is the Hon. George W. Biddle, of the Philadelphia bar. See IV. Kent Com. 374. At common law an estate taken by descent subjects the heir to pay, to the extent of the value of the land, all the debts of the ancestor due by any contract of record (e. g. a judgment or recognizance) or any contract of specialty; that is under seal, which expressly binds the heirs. Alexander v. Boyd, 85 Va. 690, 699 (1889). Piper v. Douglass, 3 Gatt. 354. 2 Min. Insts. 451-2 The fact that the grantee was a married woman at the time the agreement was made did not prevent title from vesting in her by the conveyance, though encumbered with a condition. Bortz v. Bortz, 48 Pa. 382, 387 (1864). Patterson v. Robinson, I Casey, 81. Ramborger v. Ingraham, 2 Wright, 146. Black v. Galway, 12 Harris, 18.

(2) It is a rule, that where the heir takes any thing which might have vested in the ancestor, the heir shall be in by descent, (1 Co. 98, a., Moore, 140. H. Chit. Desc. 51;) but where a person takes an estate which never vested or attached, or might have vested or attached, in the ancestor, he shall take by purchase: as if a son buys an estate and takes a conveyance to him and his heirs; or if à remainder be limited by a stranger to the right heirs of A., who has no estate in the premises, (for the remainder might otherwise have been attracted to the particular estate of A. under the rule in Shelley's case, I Co. 104,) this will be an estate by purchase. Id. 4. The instances of persons taking by descent may be classed under the following heads:-1. Where an estate devolves in a regular course of descent from father to son, or from any other ancestor to his heir at law. 2. Where the ancestor by any gift or conveyance takes an estate of freehold, and in the same conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, (the estates becoming both united in the ancestor under the rule in Shelley's case). ì Coke, 93. I Preston, 263. 3. Where an ancestor devises his estate to his heir at law, (the heir then taking by his preferable title, viz., by descent). Saund. 8,

Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as his heir at law. (3) An heir therefore is he upon whom the law casts the estate immediately on the death of the ancestor: and an estate, so descending to the heir, is in law called the inheritance. (4)

The doctrine of descents, or law of inheritances in fee-simple, is a point of the highest importance; and is indeed the principal object of the laws of real property in England. All the rules relating to purchases, whereby the legal course of descents is broken and altered, perpetually refer to this settled law of inheritance, as a datum or first principle universally known, and upon which their subsequent limitations are to work. Thus a gift in tail, or to a man and the heirs of his body, is a limitation that cannot be perfectly understood without a previous knowledge of the law of descents in fee-simple. One may well perceive that this is an estate confined in its descent to such heirs only of the donee as have sprung or shall spring from his body; but who those heirs are, whether all his children both male and female, or the male only, and (among the males) whether the eldest, youngest, or other son alone, or all the sons together, shall be his heirs; this is a point that we must result back to the standing law of descents in fee-simple to be informed of. *202] *In order therefore to treat a matter of this universal consequence the more clearly, I shall endeavor to lay aside such matters as will only tend to breed embarrassment and confusion in our inquiries, and shall confine myself entirely to this one object. I shall therefore decline considering at present who are, and who are not, capable of being heirs;

note 4.

4. Where an ancestor, by deed, or his will, limits a particular estate to a stranger, and either limits over the remainder (or, more properly speaking, the reversion) to his right heirs, or leaves the same undisposed of. See H. Chit. Desc. 5-10. See further as to when an heir takes by descent or purchase, post, 241, and the notes.

Mr. Hargrave (in his second note to Co. Litt. 18, b.) observes that, instead of distributing all the several titles to land under the heads of purchase or descent, it would be more accurate to say that the title to land is either by purchase, to which the act or agreement of the party is essential, or by mere act of law, and under the latter to consider, first descent, and then escheat, and such other titles not being by descent as yet, like titles by descent, accrue by mere act of law.

So we learn from lord Coke (1 Inst. 2, b.) that if an alien purchases lands he cannot hold them; the king is entitled to them: though in such case the king plainly takes neither by purchase (according to Mr. Hargrave's explanation) nor by descent. Again, (1 Inst. 3, b.) lord Coke says, "A purchase is when one cometh to lands by conveyance or title; and disseisins, abatements, intrusions, usurpations, and such like estates gained by wrong, are not purchases;" and it is equally clear they are not acquisitions by descent. And (in I Inst. 18, b.) lord Coke gives other instances of titles which, in strictness, if we admit Mr. Hargrave's explanation, can be referred neither to purchase nor descent, as escheats and tenancy by the curtesy or in dower.

The division made by Blackstone seems the clearest when we are considering the law of descents alone.-CHITTY.

(3) Yet, though the lands are cast on the heir by the law itself, the heir has not plenum dominium, or full and complete ownership, till he has made an actual corporal entry into the lands; for if he dies before entry made, his heir shall not be entitled to take the possession, but the heir of the person who was last actually seised. It is not therefore only a mere right to enter, but the actual entry, that makes a man complete owner, so as to transmit the inheritance to his own heirs, non jus sed seisina facit stipitem [Not the right, but seisin makes the stock, i. e. the source of decent or inheritance]; what a sufficient entry and seisin, and what not; Com. Dig. Descent, C. 8, 9, 10; and see post, p. 312, 209, 227, 228.-CHITTY.

2 Pingrey on Real Prop. sec. 1128; 6 Lawson's Property Rights, Remedies, and Practice, p. 3108. Jackson v. Sanders, 2 Leigh, 109, 114 (1830). Coke Litt. 237, a.

(4) Donohue's Estate. 36 Cal. 328, 332 (1868). Martindale's lessees v. Troop, 3 Md. 244, 251 (1793). Freeman v. Allen, 17 Ohio 527, 529 (1867). "Of the ancestor," Phillips v. Carpenter, 79 Iowa 600, 601 (1890). Tiedeman on Real Prop. 619. Delsy v. Chapmay, 3 Oreg. 455, 463 (1869). McCarthy v. Marsh, 1 Selden (N. Y.) 263, 276 (1851). Taylor's Admrs. v. Fickas, 64 Ind. 167, 171 (1878). I Barbour's Rights of Pers. and Prop. 331.

reserving that for the chapter of escheats. I shall also pass over the frequent division of descents into those by custom, statute, and common law: for descents by particular custom, as to all the sons in gavelkind, and to the youngest in borough English, have already been often (b) hinted at, and may also be incidentally touched upon again, but will not make a separate consideration by themselves, in a system so general as the present: and descents by statute, or fees-tail per formam doni, (5) in pursuance of the statute of Westminster the second, have also been already (c) copiously handled; and it has been seen that the descent in tail is restrained and regulated according to the words of the original donation, and does not entirely pursue the common-law doctrine of inheritance; which, and which only, it will now be our business to explain.

And, as this depends not a little on the nature of kindred, and the several degrees of consanguinity, it will be previously necessary to state, as briefly as possible, the true notion of this kindred or alliance in blood. (d)

Consanguinity, or kindred, is defined by the writers on these subjects to be "vinculum personarum ab eodem stipite descendentium." the connection or relation of persons descended from the same stock or common ancestor. This consanguinity is either lineal or collateral.(6)

[*203

*Lineal consanguinity is that which subsists between persons, of whom one is descended in a direct line from the other, as between John Stiles (the propositus in the table of consanguinity) and his father, grandfather, great-grandfather, and so upwards in the direct ascending line; or between John Stiles and his son, grandson, great-grandson, and so downwards in the direct descending line. Every generation, in this lineal direct consanguinity, constitutes a different degree, reckoning either upwards or downwards: the father of John Stiles is related to him in the first degree, and so likewise is his son; his grandsire and grandson in the second; his great-grandsire and great-grandson in the third. This is the only natural way of reckoning the degrees in the direct line, and therefore universally obtains, as well in the civil (e) and canon(ƒ) as in the common law. (g)

The doctrine of lineal consanguinity is sufficiently plain and obvious; but it is at the first view astonishing to consider the number of lineal ancestors which every man has, within no very great number of degrees; and so many different bloods(h) is a man said to contain in his veins as he hath lineal ancestors. Of these he hath two in the first ascending degree, his own parents; he hath four in the second, the parents of his father and the parents of his mother; he hath eight in the third, the parents of his two grandfathers and two grandmothers; and, by the same rule of progression, he hath an hundred and twenty-eight in the seventh; a thousand and twenty-four in the tenth: and at the twentieth degree, or the distance of twenty generations, every man hath above a million of ancestors, as common arithmetic will demonstrate. (i)(7) This lineal consanguinity, we may observe, falls

(b) See book i. pp. 74, 75. Book ii. pp. 83, 85. (c) See page 112, etc.

(d) For a fuller explanation of the doctrine of consanguinity and the consequences resulting from a right apprehension of its nature, see An Essay on Collateral Consanguinity. Law Tracts, Oxon. 1762, 8vo, or 1771, 4to.

(e) Ff. 38, 10, 10.

(f) Decretal. l. tit. 14.

5 [By the form of the gift].

(6) The terms kindred and consanguinity are used by Blackstone synonymously. Rector v. Drury, 4 Chandler (Wis.) 24, 28 (1851). 2 Pingrey on Real Prop. sec. 1136. Tiedeman on Real Prop. (2 ed.) sec. 665. 3 Wash. on Real Prop. (5 ed.) 9, 1o. The Law of Real Property, Boone, sec. 265.

(7) Williams on Pers. Prop. (4 ed.) 362. 315. 3 Wash. on Real Prop. (5 ed.) p. 10.

Goodeve's Modern Law of Real Prop. (1 ed.)

*204] strictly within the definition of vinculum personarum ab eodem stipite descendentium; (8) since lineal relations are such as descend one from the other, and both of course from the same common ancestor. Collateral kindred answers to the same description: collateral relations agreeing with the lineal in this, that they descend from the same stock or ancestor; but differing in this, that they do not descend one from the other. Collateral kinsmen are such then as lineally spring from one and the same ancestor, who is the stirps, or root; the stipes, trunk, or common stock, from whence these relations are branched out. (9) As if John Stiles hath *205] two sons, who have *each a numerous issue; both these issues are lineally descended from John Stiles as their common ancestor; and they are collateral kinsmen to each other, because they are all descended from this common ancestor, and all have a portion of his blood in their veins, which denominates them consanguineos. (10)

We must be careful to remember, that the very being of collateral consanguinity consists in this descent from one and the same common ancestor. Thus Titius and his brother are related; why? because both are derived from one father: Titius and his first cousin are related; why? because both descend from the same grandfather; and his second cousin's claim to consanguinity is this, that they are both derived from one and the same greatgrandfather. In short, as many ancestors as a man has, so many common stocks he has, from which collateral kinsmen may be derived. And as we

are taught by holy writ, that there is one couple of ancestors belonging to us all, from whom the whole race of mankind is descended, the obvious and undeniable consequence is, that all men are in some degree related to each other. For indeed, if we only suppose each couple of our ancestors to have left, one with another, two children; and each of those children on an average to have left two more, (and, without such a supposition, the human species must be daily diminishing;) we shall find that all of us have now subsisting near two hundred and seventy millions of kindred in the fifteenth degree, at the same distance from the several common ancestors as ourselves are; besides those that are one or two descents nearer to or farther from the common stock, who may amount to as many more. (k) And if this calculation should appear incompatible with the number of inhabitants on the earth, it is because, by intermarriages among the several descendants from the same

of ancestors at half that number of degrees. Thus, 16 (the number of ancestors at four degrees) is the square of 4,-the number of ancestors at two; 256 is the square of 16; 65536, of 256; and the number of ancestors at forty degrees would be the square of 1048576, or upwards of a million millions.

This calculation is right in numbers, but is founded on a false supposition, as is evident from the results, one of which is to give a man a greater number of ancestors all living at one time than the whole population of the earth; another would be, that each man now living, instead of being descended from Noah and his wife alone, might claim to have had at that time an almost indefinite number of relatives. Intermarriages among relatives are one check on this incredible increase of relatives. This is noticed afterwards by Blackstone, as to collateral relatives.

(k) This will swell more considerably than the former calculation; for here, though the first term is but 1, the denominator is 4; that is, there is one kinsman (a brother) in the first degree, who makes, together with the propositus, the two descendants from the first couple of ancestors; and in every other degree the number of kindred must be the quadruple of those in the degree which immediately

(8) [The connection or relation of persons descended from the same stock or common ancestor.] 3 Wash. on Real Prop. (5 ed.) p. 10.

(9) The Law of Real Property, Boone, sec. 265.

(10) [Relations.]