Jurisdictions, Part 103
Eſcheats.
Where it ſhall Eſcheat and not diſcend, and where not. And for that in the ſame ſecond Article is alſo inquirable what advantage the Lord may have by the death of his Tenant, that is to ſay, Ward, or Eſcheat: Now let us ſee what is impediment by attainder, and otherwiſe, that the Iſſue of the Lands in Fee, cannot be heire by diſcent, not that his Father and Mother were marryed, and where the Lord ſhall have that by Eſcheat, and where not.
IF an Infant of the Age of ſeven or eight yeares marry a Wife, and his Wife have Iſſue within one yeare or two after marriage, this Iſſue ſhall not be his heire, and if he have no other heire generall or ſpeciall, the Land ſhall Eſcheat, 38 Book of Aſſiſes, 24.
If the Father being an Alien, hath a Son, and after the Father is made Denizen, and after hath another Son, and after purchaſe Lands and dyes, the youngeſt Son is heire, and if he dye without Iſſue, the Lord ſhall have the Land by Eſcheat, and not the eldeſt Son, for he is an Alien, Doctor and Student, fol. 12.
The eldeſt Son is attaint of Felony in the life time of his Father, and is hanged, the Father dyes, the youngeſt Son ſhall inherite, and it ſhall not Eſcheat: But if the eldeſt Son be attaint in the life time of his Father, and ſurvive the Father, the Land ſhall Eſcheat, 20 Booke of Aſſiſes 2.46 Ed. 3. tit. Diſcent 6.49 Ed. 3. fol. 11. & 31 Ed. 1. tit. 17. accordingly.
If the Son be attaint of Felony or Treaſon, and after is pardoned, and after that his Father dyes ſeiſed of land, the Lord ſhall have that by Eſcheat, rather then the Son, 13 H. 4. fol. 8.1 E. 3. lit. 15. accordingly: See before that Doctor and Student, fol. 25.
Where the Husband is attaint of Felony, and purchaſe his pardon, and after dyes, his Wife ſhall not be endowed of Land, which he had before the attainder, but it ought to Eſcheat; but of thoſe which he purchaſes after, ſhee ſhall have Dower, and ſhall not Eſcheat, Littleton, fol. 11.
If the Husband ſeiſed of Land, commit Felony, and after alien, and after is attaint, the Wife ſhall have Dower againſt the Feoffee; but otherwiſe it is if it were Eſcheated, Nat. bre. fol. 7.
If the Son be outlawed of Felony, in the life time of his Father, and hath a pardon, and after the Father dyes ſeiſed of Land, the Son ſhall not have theſe Lands, but the Lord by Eſcheat, though he hath diverſe Sons, 31 E. 1. tit. 17.11 H. 4. fol. 11. & 22 H. 6. fol. 38.
The Father outlawed of Felony, purchaſeth a pardon, and after purchaſeth Lands, the Son hee had before the Felony may inherite them, and the Lord ſhall not have them by Eſcheat, 9 H. 5. fol. 9.
If one dye Tenant to the Lord, without heire generall or ſpeciall, as if the Tenant be diſſeiſed, and dyes without heire generall or ſpeciall, the Lord ſhall have the Eſcheat of this Land, though he did not dye ſeiſed, for that, that he dyed Tenant, 2 H. 4. fol. 9. 7 H. 4. fol. 18. accordingly, 32 H. 6. fol. 31.36 H. 6. fol. 1.6 H. 4. fol. 5. the ſame; And Nat. bre. fol. 103. the ſame.
Where an Alien purchaſes, the King may ſeiſe, 11 H. 4. fol. 25. & 14 H. 4. fol. 20. accordingly.
And if a Denizen purchaſe, and dye without Iſſue born within the obedience of the Queen, this Land ſhall Eſcheat to the Lord.
If an Engliſh Tenant marry an Alien, ſhe is forthwith upon the marriage, of the Kings allegiance, and their Iſſue ſhall inherite, and it ſhall not Eſcheat, Abridgement of the Book of Aſſiſes, fol. 39.
Where there is Lord and Tenant, and the Tenant grants Rent charge, and dyes without heire generall or ſpeciall, the Lord ſhall have the Land by Eſcheat, Raſtall, Eſcheat 15.but hee ſhall hold it charged, 3 Book of Aſs. 1. The ſame Law is of the Kings Tenant, which grants Rent and dyes, &c. and his heire in Ward by the Statute, 2 & 3 E. 6. chap. 8.
Lord and Tenant, the Tenant is diſſeiſed, and the diſſeiſor dyes ſeiſed, and the diſſeiſee dyes without heire, the Lord ſhall not have that as by Eſcheat, for I intend hee dyes not in his Homage, 32 H. 6. fol. 31. B.
Lord and Tenant, the Tenant lets for life, and dyes without heire, though he dyed not ſeiſed, the Lord ſhall have Eſcheat, 2 H. 4. fol. 9.
If one be attaint of high Treaſon, the King ſhall have Eſcheat, of whomſoever he hold, notwithſtanding if it be of petty Treaſon, the Lord ſhall have the Eſcheate, 22 Book of Aſs. 49.
If the Tenant be beheaded for Felony, the Lord ſhall have Eſcheat, and ſhall ſay (for which he was hanged) Natura brevium, fol. 100. 8 E. 3. in the Regiſter, f. 165. accordingly.
If my Tenant within age, alien to one in Fee▪ and within age dye without heire, the Lord may enter by Eſcheat, 16 E. 3. tit. Statham, fol. 84.3 E. 3. Journey to North: See 6 H. 4. fol. 3. North: that he cannot enter, but he may have Eſcheat.
It ſeemes that the Lord cannot enter by Eſcheat, where his Tenants entry is taken away; as if the Husband diſcontinue, the Lands of his Wife, and the VVife dyes without heire, the Lord cannot enter by Eſcheat, 32 H. 6 fol. 27. by Littleton.
If a man goe over the Sea without licenſe, and there takes a Wife, and there by her hath Iſſue, if the Iſſue ſurvive his Father, the Land of the Father ſhall Eſcheat, 22 H. 6. fol. 38. by Newton.
1 R. 3. fol. 3. by Huſsey, He which is borne beyond the Sea, and his Father and Mother were Engliſh, that their Iſſue ſhall inherite by the common Law, but by the Statute aforeſaid it is cleer.
The ſame Law is where an Alien borne, purchaſe lands of the King before he be made Denizen, or if hee be a Denizen, and purchaſe Lands, and dyes without heire borne under the obedience of the King, there the King ſhall have that Land as Perquiſite, in manner as Eſcheat.
Where the Tenant hath an Eſtate in fee, and dyes without heire generall or ſpeciall, his Land ſhall Eſcheat to his Lord, Fitzh. 143. T.
32 H. 6. fol. 31. The Lord cannot enter, but where his Tenant might enter, and for that if the Husband and the Wife diſcontinue, and the Wife dyes without heire, the Lord cannot enter by Eſcheate: And if the Tenant be diſſeiſed, and the Diſſeiſer dyeth ſeiſed, and his heire enter, and after the Diſſeiſee dyes without heire, the Lord cannot enter.
37 H. 6. fol. 1. It ſeemes by Forteſcue, that the Lord ſhall have Eſcheat or Ward, though his Tenant did not dye ſeiſed.
2 H. 4. fol. 9. The Lord ſhall have a Writ of Eſcheat, though his tenant dyed not ſeiſed, for if he dye his tenant, that ſufficeth: If my tenant lets for life, and dyes without heire, he doth not dye ſeiſed; and yet the Lord ſhall have the Eſcheat, 7 H. 4. fol. 18. the ſame.
6 H. 4. fol. 5. Lord and Tenant within age, the Tenant is diſſeiſed, and dyes without heire, the Lord may enter by Eſcheat: The ſame Law is if he being an Infant tenant alien and dyes without heire, the Lord ſhall have by Eſcheat.
Fitzh. fol. 144. A. If Tenant in taile dye without heire, he in reverſion ſhall not have a Writ of Eſcheat; But if Tenant in taile, the remainder to his right heires, and dyes without heire; then the Lord of whom the Tenant in taile holds, ſhall have a Writ of Eſcheat.
Fitzh. 144. E. Where the Tenant is a Baſtard, and dyes without Iſſue, this Land ſhall Eſcheat, Tit. Eſcheat 34. B. Where there is a Baſtard eldeſt, and a legittimate younger, and the Baſtard enters, and dyes ſeiſed without Iſſue, the Land ſhall not Eſcheat.
Natura brevium, fol. 103. If the Tenant be diſſeiſed, and is attaint of Felony, the Lord may enter by Eſcheate, Abridgement of Aſſiſe, fol. 88. Lord and Tenant, the tenant being within age, aliens and dyes without heire, the Lord may enter by Eſcheat.
6 E. 3. Statham, If my Tenant within age alien in Fee, and dyes without heire, I may enter by Eſcheat; the ſame Law is, if my tenant within age be diſſeiſed, and dyes without heire, I may enter by Eſcheat.
Stamf. 42. If any free tenant of any Biſhop be attaint for Felony, during the time of the vacation the King ſhall have Eſcheat of his Lands: By Prerogative, ch. 14.
Fitzh. 144. O. If the Lord have title to have a Writ of Eſcheat, if he accept Homage of his tenant, he ſhall not have a Writ of Eſcheat againſt him afterwards.
7 H. 4. fol. 18. Lord and Tenant, the Tenant is diſſeiſed, and dyes without heire, the Lord may enter, for right of entry may Eſcheat againſt a Diſſeiſor; but if the Diſſeiſor dye, or alien, the Lord cannot enter by Eſcheat upon the heire of the Diſſeiſor, nor upon the Alience.
22 Book of Aſſiſes 49. The King ſhall have the Lands by Eſcheat of one attainted of high Treaſon, of whomſoever hee hold, notwithſtanding of petty Treaſon the Lord ſhall have them.
29 Book of Aſſiſe, 61. Note that Lands in taile ſhall not Eſcheat for the Felony or attainder of his Father, but by the Statute of 5 & 6 Ed. 6. chap. 11. for high treaſon the King ſhall have his Lands.
6 H. 7. fol. 9. by Keble. Right of entry may Eſcheat, as where the Diſſeiſee dyes without heire, or is attaint of Felony, the Lord may enter.
7 Ed. 6. tit. 18. It was held, If there he Lord and Tenant by Fealty and Rent, the Tenant is diſſeiſed, the Diſſeiſee dyes without heire, the Lord accepts the Rent by the hands of the Diſſeiſor, yet he may enter for Eſcheat, or have a Writ of Eſcheat, and the receit of the Rent no Barr; contrary, if he had avowed for that in Court of Record, or if he had taken corporall ſervice, as Homage, &c. Contrary of acceptance of Rent by the hands of the heire of the Diſſeiſor, or of his Feoffee.
48 Ed. 3. fol. 2. by Belk: Where a man commits Felony, and after purchaſe Land, or Land diſcends to him after, this is forfeited and Eſcheated, as well as the Land which he had time of the Felony made.
22 H. 6. fol. 37. by Newton, A man ſeiſed of Land in fee, goes beyond the Sea to B. out of the Kings Allegiance without the Kings licenſe, and there marries a Wife, and there hath Iſſue, and dwells there all his life, and dyes without other Iſſue, his Land ſhall Eſcheat, and none other of the blood ſhall inherite.
1 R. 3. fol. 4. by Huſſey, He which is borne beyond Sea, and his Father and Mother Engliſh, and faithfull to our King, that their Iſſue ſhall inherite by the Common Law, but the Statute makes that cleer, and his Lands ſhall not Eſcheat.
9 H. 7. fol. 2. If Tenant of the King dyes without heire, and none enters, the Freehold is in the King, without Office by Eſcheate: But if Tenant of the King alien in Mortmaine, it is not in the King without Office.
27 H. 8. tit. Office, 90. Br: Where one is attaint by Parliament, his Lands are not in the King by Eſcheat, to grant over without Office.
29 H. 8. tit. 52. Charter of pardon, Br. The King may be intituled to goods without Office, by Outlawry, but not to Lands.
38 H. 8. title, Thing in action, 211. Br: By the Statute of 31 H. 8. gives to the King poſſeſſion of Lands of Monaſtries without Office, for the words are, that the King ſhall be in poſſeſſion of them; yet if an Abbat were diſſeiſed of foure Acres of land, the King cannot grant that over, before entry made by him into it.
Time of H. 8. tit. 119. Pre. Br: It ſeemes that the King ſhall not have a Precipe quod reddat, as a Writ of Eſcheat, but his title ſhall be found by Office.
Time of Ed. 6. tit. Denizen 17. Where an Alien born purchaſeth, the King ſhall have it, but the purchaſe ought to be found by Office, 33 H. 8. tit. Fines levied, 115.
Title Office before Eſcheator, 60 Br: King ſhall have Chattels without Office, but not Ward.
2 H. 7. fol. 8. The King may re-enter without demand, where there is a clauſe of re-entry in his Leaſe, but then that ſhall be found by Office.
Tit. Eſcheat 23. Br: Alien borne hath Iſſue a Son, and after is made Denizen, and after hath Iſſue another Sonne, and purchaſe Land and dyes, the youngeſt Sonne ſhall have the Land, and not the eldeſt, nor the Lord by Eſcheat.
Tit. Eſcheat 29. B. VVhere a man is attaint of Hereſie, and delivered to Lay men to be burnt, yet he ſhall not forfeit his Land, unleſſe he be put in execution, and there by the execution the Lord ſhall have Eſcheat, unleſſe the Land be held of the Ordinary, then the King ſhall have it.