[enter upon it during the life of cestui que vie. But if the estate pur auter vie had been granted to a man and his heirs during the life of cestui que vie, there could not then have been a title by common occupancy; but the heir of the grantee would succeed, and was called a special occupant.] And so the law continued until quite recently, the heir succeeding, in the absence of a will, by virtue of the original grant, and occupying the land during the residue of the estate granted, though subject, since the passing of the Administration of Estates Act, 1833, to the claims of the grantee's creditors. But now, it is presumed, estates pur auter vie will, even though there be a special occupant, pass to the personal representatives of the tenant on his decease (p). The title by common occupancy has, however, virtually been abolished by the effect of three successive statutes. The first of these is the Statute of Frauds, in 1677, which provides (s. 12) that an estate pur auter vie shall be devisable in all cases, and that, if not devised, and there is no special occupant, it shall go to the personal representatives of the tenant, and be assets in their hands for payment of debts. The second is a statute of the year 1741 (q), which enacts that, if there is any surplus in the hands of such representatives after the payment of debts, it shall be distributed among the tenant's next-of-kin, like personalty. And the third is the Wills Act of 1837, by which it has been provided, that every estate pur auter vie, of whatever tenure, and whether it be a corporeal or incorporeal hereditament, may be devised by will (r); that if no disposition by will be made of an estate pur auter vie of a freehold nature, it shall be chargeable in the hands of the heir (if it comes to him by reason of special occupancy) as assets by descent, as in the case of freehold land in fee simple; and that (p) Land Transfer Act, 1897, s. 1 (1). Presumably, however, the beneficial interest will, in default of devise, still belong to the heir. in case there shall be no special occupant of an estate pur auter vie, of whatever tenure, and whether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant, and that it shall in every case be assets of the deceased to be applied and distributed in the same manner as personal estate (s). Save in the case of the estate pur auter vie (now provided for by statute), it is difficult to mention any other instance wherein, by our law, there is not some owner of the land. [For in the case of a sole corporation, as the parson of a church, when he dies or resigns, though there is no actual owner of the land till a successor be appointed, yet there is a legal, potential ownership subsisting in contemplation of law. And when the successor is appointed, his appointment has a retrospect and relation backwards, so as to entitle him to all the profits from the instant that the vacancy commenced. And, in all other instances, where the tenant dies intestate, and no other owner of the lands is to be found in the common course of descent, there the law vests an ownership, as we have said, in the Crown, or a mesne lord, by escheat. So also in some cases, where the laws of other nations give a right by occupancy, as in lands newly created by the rising of an island in a river, or by the alluvion or dereliction of the sea; in these instances, the law of England assigns them an immediate owner. For Bracton tells us that, if a new island rise in the middle of a river, it belongs in common to those who have lands on each side thereof; but if it be nearer to one bank than the other, it belongs only to him who is the proprietor of the nearest shore (t). But when the whole soil of the river is the freehold of one man,-as usually happens when a several fishery is claimed (u)-there it seems just (s) Sect. 6. () Bract. lib. 2, ch. 2. S.C.-VOL. I. (u) Smith v. Kemp, (1692) Salk. 637. S [that the eyots or little islands, arising in any part of the river, shall be the property of him who owneth the fishery and the soil. However, in case a new island rise in the sea, though the civil law gives it to the first occupant, yet ours gives it to the Crown. And as to lands gained from the sea, either by alluvion (i.e. by the washing up of sand and earth, so as in time to make terra firma), or by dereliction, as when the sea shrinks back below the usual watermark, in these cases the law is held to be, that if this gain be little by little, it shall go to the owner of the land adjoining. For de minimis non curat lex. But if the alluvion or dereliction be sudden and considerable, in this case it belongs to the Crown. For as the Crown is lord of the sea, and the owner of the soil while it is covered with water, it is but reasonable it should have the soil, when the water has left it dry (x). In the same manner, if a river, running between two lordships, by degrees gains upon the one and leaves the other dry, the owner who loses his ground thus imperceptibly has no remedy; but if the course of the river be changed by a sudden and violent flood, or other hasty means, his land will not be lost (y).] Finally, it may be mentioned that, although the law of England does not formally recognize the acquisition of title to estates in land (in ordinary cases) by mere occupation, yet, in effect, the Real Property Limitation Acts passed in the last century produce this result. For, by the 34th section of the Act of 1833 (z), it is expressly provided that the right and title of the person whose claim has been barred by the operation of the statute, as well as his mere remedy, shall be extinguished at the determination of the period within which it might have been enforced. And, although the extinction of the title of one hostile claimant would not affect the rights of others (x) Hale, De Jure Maris, cap. iv. (y) Hindson v. Ashby, [1896] 1 Ch. 78. (z) 3 & 4 Will. 4, c. 27. who claim independently of him, yet, when all hostile claims are extinguished by lapse of time, it would seem difficult to deny that the actual occupant had obtained a title. And this is, at any rate, the view which has been taken by some eminent authorities (a). (a) Doe v. Summer, (1845) 14 M. & W. 39; Asher v. Whitlock, (1865) L. R 1 Q. B. 1. CHAPTER XIV. OF TITLE BY FORFEITURE. [FORFEITURE is a punishment annexed by law to some illegal act or negligence in the owner of lands, tenements, or hereditaments; whereby he loses all his interest therein, and they go to the party injured, as a recompense for the wrong which either he alone, or the public together with himself, hath sustained.] At one time the loss of lands by forfeiture must have been very frequent, and the subject is treated at considerable length in the old books. But, with changes in the law (b), it has now sunk into comparative unimportance, and may be disposed of under four heads: 1. Forfeiture by alienation for an unlawful purpose; 2. Forfeiture by alienation of particular tenants; 3. Forfeiture by wrongful disclaimer; and 4. Forfeiture by breach of express condition. Of these in their order (c). 1. Forfeiture by alienation for an unlawful purpose. Since the disability of aliens in the matter of land-owning was abolished by statute, the only important case which falls under this head is the case of alienation in mortmain. [Alienation in mortmain is an alienation of lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal (d). But these purchases having been chiefly made by religious houses, in consequence whereof the lands became inherent in one dead hand" (i.e., of the saint to whom the religious house was (b) e.g., Real Property Act, 1845, abolishing the tortious operation of a feoffment; Naturalization Act, 1870, enabling aliens to hold land; Forfeiture Act, 1870, abolishing forfeiture for attainder. 66 (c) Forfeiture incurred by neglect to present to, or simoniacal dealings in respect of, an ecclesiastical benefice, will be dealt with at a later stage. (See bk. iv., pt. ii. ch. 3.) (d) Co Litt. 2 b. |