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tion for treason; and, by a law of the colony of Massachusetts, as early as 1641, escheats and forfeitures, upon the death of the ancestor, “natural, unnatural, casual, or judicial," were abolished for ever.
It is a rule of law, that the state, on taking lands by escheat, and even by forfeiture, takes the title which the party had, and none other. It is taken in the plight and extent by which he held it, and the estate of a remainderman is not destroyed or devested by the forfeiture of the particular estate.
Besides the forfeiture of property to the state, for the conviction of crimes, estates less than a fee may be forfeited to the party entitled to the residuary interest by a breach of duty in the owner of the particular estate. If a tenant for life or years, by feoffment, fine, or recovery, conveys a greater estate than he is by law entitled to do, he then, under the English law, forfeits his estate to the person next entitled in remainder or reversion; for he puts an end to his original interest, and the act tends, in its nature, to devest the expectant estate in remainder or reversion. The same consequences followed, whenever the vassal, by any act whatever, was, in the eye of the feudal law, guilty of an act of disloyalty, and a renunciation of the feudal connexion. But, a conveyance by deed, of things lying in grant, or conveyances by release, and bargain and sale, under the statute of uses, do not
a Dane's Abr. vol. v. p. 4. Mr. Dane says, that forfeiture of estates for crimes is scarcely known in our American practice or laws. Ibid. p. 11.
6 Case of Capt. Gordon, Foster's Crown Law, 95. Borland v. Dean, 4 Mason's Rep. 174. Dalrymple on Feudal Property, ch. 4. p. 145-154. gives an interesting history of the law of forfeiture in Scotland, and the gradual conformity on the point in the text between the Scotch and English law.
c Wright on Tenures, p. 203. Co. Litt. 251. a. b.
work a forfeiture, for they convey no greater interest than what the party lawfully owns, and is entitled to convey. Such forfeitures by the tenants of particular estates, hare become nearly, or quite obsolete in this country; and the just and rational principle prevails, that the conveyance by the tenant operates only upon the interest which he pos sessed, and does not affect the persons seised of ulterior interests. An act of assembly in Pennsylvania gives to all deeds and conveyances of land, proved, or acknowledged, and recorded, the same force and effect as to passession, seisin, and tille, as deeds of feoffment with livery: and yet it has been held, that such a deed worked no for feiture, on the common law doctrine of alienation by tenang for life or years. In Massachusetts it has, however, beer! decided, that a conveyance in fee by a tenant for life, by bargain and sale, was a forfeiture of his estate to those in remainder or reversion. This was pressing the severe doctrine of the common law, in the case of such a species of conveyance, beyond what we should naturally have expected in this country; and I apprehend that the solidity of the decision may be justly questioned, and that the precedent will never become contagious.
There are other causes of forfeitures, as for waste, and for breaches or conditions in leases, grants, and converances, which have been sufficiently considered in the for
a See supra, p. 34. 81, 82.
c Commonwealth v. Welcome, cited in 5 Dane's Abr. 13. sec. 7. The extraordinary industry, and great experience, of the author of the Abridgment and Digest of American Law, (vol. v. x. xi.) was not able to lead him to any case in our American courts, in which there had been a forfeiture of the estate of a tenant for life or years, by resson of a breach of duty as tenant, by way of plea, or default upon record.
mer part of this volume. I shall, therefore, proceed to treat:
(3.) Of title by execution
This species of title owes its introduction to modern statutes, and it was unknown to the common law. The remedy given to the judgment creditor by the English law, is a sequestration of the profits of the land by writ of levari facias, or the possession of a moiety of the lands by the writ of elegit, and, in certain cases, of the whole of it by extent. In all these cases, the creditor holds the land in trust until the debt is discharged by the receipt of the rents and profits. This limited remedy against the real estate of the debtor, was not deemed sufficient security to British creditors, in its application to the American colonies, and the statute of 5 Geo. II. c. 7. was passed, in the year 1732, for their relief. It made lands, hereditaments, and real estate, within the English colonies, chargeable with debts, and subject to the like process of execution as personal estate. Lands were dealt with, on execution, precisely as personal property ; and it was, consequently, the practice, in some of the states, and particularly in New York, before, and even since the American revolution, down to the year 1786, to consider lands as assets in the hands of executors and administrators, and to sell them as such, Mr. Dane says, it is still the practice in Massachusetts. But though the statute of George II. introduced the sale of real estate on execution throughout the colonies, that statute was not the entire origin of the practice; for, in Massachusetts, as early as 1696, and in Pennsylvania, as early as 1700, and 1705, lands were, by colonial statutes, rendered liable to sale on execution for debt.b
a Abr. of American Law, vol. v. p. 20.
b Province Act of Massachusetts, 1696, cited in 5 Dane's Abr. 23. note. Province Acts of Pennsylvania, 1700, and 1705, cited in 6 Binncy's Rep. 145. Vol. IV.
The tactice of selling real estate under certain checks and Aodifications, created to prevent abuse and hardship, boys been continued, and become permanently established. The general regulation, and one prevalent in most of the states, is to require the creditor to resort, in the first instance, to the personal estate, as the proper and primary fund, and to look only to the real estate after the personal estate shall have been exhausted, and found insufficient. In New-York, until within a few years past, the rule was, to sell the real estate absolutely, at auction, upon due notice without any previous appraisement, and without any subsequent right of redemption. This would appear to be the practice still in the states of New Jersey, Maryland, North Carolina, Tennessee, South Carolina, Georgia, Alabama, and Mississippi. But sales of land on execution had been attended with so much oppressive speculation upon the necessities of the debtor, that the legislature of New-York, a few years past, provided some powerful, but not unreasonable checks, upon the peremptory and sweeping desolation of an execution at law. These provisionsy are essentially continued ; and it is now provided by the New-York Revised Statutes, that the real estate of the debtor may be sold on execution either at law or in chancery, in default of goods and chattels, on six weeks' notice, and in separate parcels, if required by the owner. A certificate of the sale is to be delivered by the sheriff to the purchaser, and another certificate filed in the clerk's office of the county within ten days; and redemption of the lands sold may be made by the debtor, or his representative, within one year, on paying the amount of the bid, with ten per cent. interest. Any joint tenant, or tenant in common, may redeem his rateable share of the land by
a Griffith's Register, h. t. No. 3.
b New-York Revised Statutes, vol. ii. 183. sec. 104. Ibid. 363. sec. 2. Ibid. 367. sec. 24. lbid. 368. sec. 34. Ibid. 369. sec. 38.
paying a due proportion of the purchase money. On default of the debtor, any creditor, by judgment at law, or decree in equity, and in his own right, or as trustee, within three months after the expiration of the year, may redeem the land, on paying the purchase money, with seven per cent. interest. So, any other judgment creditor may redeem from such prior creditor, on refunding his purchase money with interest, and also the amount due on his judgment or decree, if the same be a prior lien on the land.
The redemption is allowed to be carried further, and is given to a third, or any other creditor, who may redeem from the creditor standing prior to him, on the same terms. But all these subsequent redemptions must be within the fifteen months from the time of the sheriff's sale ; for the sheriff is then to execute a deed to the person entitled, and the title so acquired becomes absolute in law. I apprehend, that the sheriff's deed, when executed, will be good by relation, and cover the intervening period from the sale. This is the case as to the enrolment of a bargain and sale, in England, within the six months. The filing of the sheriff's certificate is equivalent to a deed taken and recorded, so far as respects the purchaser's security from any intervening claims, other than the right of redemption.
In many of the states, the lands are to be duly appraised by commissioners, or a sheriff's inquest, and set off, and possession delivered to the creditor, in the exceution, by metes and bounds; and they operate as a payment on the judgment to the amount of the valuation. The debtor is likewise allowed a reasonable time to redeem. This is the case in Maine, New-Hampshire, Vermont, and Massachu
a .New-York Revised Stalutes, vol. ii. p. 370. to 374. The regulations respecting the sale of lands on execution, are too minute to be more particularly detailed, and they reach from sec. 24. p. 367. to sec. 67. p. 374.
Preston on Abstracts, vol. jii. 90. Shep. Touchstone, 226.