the collateral heirs of fuch perfon, will be the collateral heirs of the inteftate, of the blood of the perfon from whom the land came, and the estate by law will defcend to fuch perfon among them, as is of nearest kin to the inteftate. Such is our law of defcents, but before I close this fubject, let us compare it with the English, and Imperial codes, the most celebrated that have ever beeen established. The rules of the English law are,--1. That inheritances fhall lineally defcend to the iffue of the perfons last feifed in infinitum, but fhall never lineally afcend. 2. That the male iflue shall always be admitted before the female. 3. That where there are two or more males in equal degree, the eldest only shall inherit, but the females altogether. 4. That lineal defcendants in infinitum fhall always reprefent their ancestor and stand in the fame place he would have done, had he been living. 5 That on failure of lineal defcendants, the inheritance shall defcend to the blood of the first purchafer, fubject to the preceeding rules. 6. That the collateral heir of the perfon last feiled, must be his next collateral kinfman of the whole blood. 7. That in all collateral inheritances, the males flock, fhall be prefered to the female, unlefs where the lands have in fact defcended from a female. The rules of the Imperial law as promulgated by the Emperor Juftinian are, 1. That all the lineal defcendants of the inteftate, whether male, or female, and their legal representatives fhall inherit his eftate in equal shares. 2. That where there are no lineal defcendants, then the afcendants, as parents and grand parents, are prefered to all collaterals except brothers, and fifters, of the whole blood; but if there be no fuch brothers and fisters, then all the afcendants in the nearest degree shall inherit in preference to remoter degrees, whether male or female, paternal, or maternal; and if feveral degrees concur, the inheritance must be equally divided between the paternal, and maternal afcendants. 3. If there be brothers and fifters of the whole blood, they shall be confidered as the nearest afcendants and the eftate fhall be equally divided among the brothers, and fifters, and the afcendants, according to the number of perfons. 4. If the intestate leave neither defcendants, nor afcendants, then the eftate fhall be equally divided among the brothers and fifters of the whole blood, Juftinian Nov. CXVIII Chapters 1, 2, 3. and and their children by the right of reprefentation. 5. On failure of brethren of the whole blood, and their children, brothers of the half blood fhall inherit. 6. The right of reprefentation among collaterals, is allowed no further than to brothers and fifters children. 7. Where there are no defcendants, afcendants, brothers, or fifters, or brothers or fifters children, the eftate defcends to all collaterals in equal fhares that are of nearest kin to the inteftate, in equal degrees. : Tho our law of defcents, bears a great refemblance to the Im perial law, yet it may justly be deemed a great improvement upon it but when we compare it to the English law, which is of feudal origin, the fuperiority is very manifeft: and we may venture to affert that it is the moft liberal, and equitable system of hereditary fucceffion, that ever was adopted, and the most confonant to the laws of nature. The odious and unjust doctrine of primogeniture, fo well calculated to aggrandize the families and fupport the pride of feudal ariftocracy, is wholly exploded. Parents may inherit the estate of their inteftate fons, when it was acquired by purchafe or by gift, or devise from a stranger; and brothers of the half blood shall not be excluded by collateral `kinfmen in remote degrees. The female fex are placed upon the fame footing with the other fex, in refpect of their fucceffion to property. CHAPTER SIXTEENTH. OF TITLE BY DEED. IN the preceeding chapter, we explained, and illuftrated the rules of defcent according to our law. We next come to contemplate the various modes of acquiring titles to real estates by purchase. Purchafe in its moft extended legal fignification, comprehends every method by which real property can be acquired, excepting defcent; and is faid to be the acquifition of a title by a man's own a, and agreement, and not by the mere operation of law. The diftinction Co. Litt. 18. 2 Black Com. 241. diftinction between a title acquired by purchase and by defcent, is very apparent. The latter must be an eftate coming from fome ancestor, and vefting in the heir, according to certain rules eftablished by law. But where a proprietor in fee devifes his estate to his heirs at law, to hold in the fame manner and proportion, as if no devife had been made, they fhall be confidered as taking by defcent. Purchase is where the title is obtained in fome manner different from defcent. Thus a title obtained by the levy of an execution, by devife, or poffeffion is as much a title by purchafe as where the full confideration is paid in money, and a deed of bargain and fale executed. So are mere gifts for the confideration of love and good will, or blood and affection. The difference between eftates acquired by purchafe and defcent are, that the heirs who have received eftates from their ancestors, are obliged to fulfil his covenants and contracts, to the value of the estate that defcended to them. By the English law, an action on a contract, fuch as a bond,which binds the heirs, my be maintained againft the heirs, as well as executors-but by ou, law no action for a debt will lie against the heir, tho bound by the covenant, but against the executors or administrators only; for all the debts of the deceased are discharged, before a dribution to the heirs and for that purpofe, the real as well as perfonal cftate may be applied by the executor or adminiftrator. But on covenants of feifin and warranty, where the breach may happen after the death of the covenantor, and fettlement of the eftate, action will lie againft the heirs, as in cafe of eviction, and they will be liable. to the amount of the eftate received by defcent. There are feven ways of acquiring titles to real eftate by purchase, which are, by deed, by devife, by execution, by pofiction, by efcheat, by forfeiture, and by acceflion, and of thefe we fhall treat in their order. The aquifition of real estates by deed, is the most univerfal method in practice, and correfponds to the common ideas of purchate in its limited sense. This is alfo called alienation, and denotes the tranfmiflion of eftates from one proprietor to another, by a volun tary conveyance, upon a mutual contract, for a valuable confideration. The idea of a voluntary agreement in both parties, attends the alienation of eftates, and where fuch agreement cannot be fuppofed, the conveyance cannot be called an alienation: but in common language, we make ufe of the words, purchase, or bargain and fell, and rarely of the word alienation. In treating of deeds, we fhall first point out their general nature, aud then the feveral kinds. A deed is defined to be a writing, figned, fealed and delivered by the parties, containing a contract or agreement between them for the fale of lands. For a compleat illuftration of this fubject, it is neceffary to attend to the feveral requifites to conftitute a deed; and then to the manner how fuch deed may be defeated or deftroyed. 1. A deed must contain in legal and proper order, fuflicient words to evidence the intention and agreement of the parties, to render it obligatory. There is however no particular form, that is abfolutely neceflary to conflitute a deed, nor need all the parts. which commonly compofe a deed be ufed, provided there be fufficient words to exprefs with clearness and certainty, the meaning of the parties. There is however a particular form, which has been adopted, and practifed upon in this ftate, which conveys the meaning of the parties in the clearest and most effectual manner with the greatest fimplicity and concifenefs; which has been confirmed, by immemorial ufage, and fanctioned by the wifdom of ages. It is therefore the fafeft method in conveyances, to make ufe of this established form, and not rifque the decision of courts upon the legality of any new fangled modes of conveyance. In treating of the general requifites of a deed, it is neceflary to keep in view the common form. I fhall therefore in explaining the general principles of conveyancing, exhibit the compleatest and moft perfect form of a deed. 2. A deed must be in writing or printed. It may be written in any character or language, but must be on paper or parchment. Lands originally were conveyed by parole-But the uncertainty of parole contracts, and their tendency to introduce frauds and per e Statutes, 250. juries juries, has induced the legislature to nullify verbal conveyances and to require them to be reduced to writing, to render them valid. 3. There must be parties capable of contracting, and of being contracted with, who must be fufliciently and properly described—— and in this place we fhall confider the perfons who are capable of. making contracts respecting lands. In the first place, it may be remarked, that every proprietor of lands who is in poffeffion,is capable of alienating them, unless reftricted by fome legal difability, or difqualification, and that there are fome perfons who are laid under fuch difabilities by law that they are incapable of acquiring lands by purchase. ƒ Idiots, and perfons of non-fane memory, or distracted perfous, infants, and perfons under durefs are not wholly incapable of conveying and purchafing lands; for their conveyances or purchases are not abfolutely void, but merely voidable. But this fubject will be amply difcuffed, when we treat of contracts refpecting perfonal property, and therefore nothing further need now be remarked. : A married woman may purchase an estate without the confent of her husband, and the conveyance is valid during the marriage, unless he avoids it by fome act declaring his difapprobation of the bargain but if the husband never avoids it, or confents to it, the married woman may after the death of the hufband disagree to and avoid it. So may her heirs if the dies before her husband, or if during her widowhood, fhe does not expressly ratify and confirm the contract. But every other contract of a married woman, (excepting where he joins with her husband in a conveyance of lands, holden in her right,) is not merely voidable, but abfolutely void. Foreigners or aliens, are incapable to purchafe or hold lands in this ftate, by force of ftatute, which declares, that no person who is not a citizen or inhabitant of this ftate, or one of the United States of America, fhall be capable of purchafing or holding any lands within this flate, without fpecial licence from the assembly. This ftatute is conformable to the common law of England; but in Q92 e Statutes 250. f2 Black. Com. 291. g Ibid. 292. |