Commentaries on American Law (1826-30)

Chancellor James Kent

Of Title by Escheat, by Forfeiture, and by Execution

TITLE to land is usually distributed under the heads of descent and purchase, the one title being acquired by operation of law, and the other by the act or agreement of the party.1 But titles by escheat and forfeiture, are also acquired by the mere act of law; and Mr. Hargrave this, that the proper general division of title to estates, would have been by purchase, and by act of law, the latter including equally, descent, escheat, and forfeiture. Our American authors2 have added an additional title, and one unknown to the English common law, and which they treat separately. It is title by execution, and I shall take notice of it in regular order.

(1.) Of title by escheat.

This title, in the English law, was one of the fruits and consequences of feudal tenure. When the blood of the last person seized became extinct, and the title of the tenant in fee failed from want of heirs, or by some other means, the land resulted back, or reverted to the original grantor, or lord of the fee, from whom it proceeded, or to his descendants or successors. All escheats, under the English law, are declared to be strictly feudal, and to import the extinction of tenure.3 The opinions given in the great case of Burgess v. Wheate,4 concur in this view of the doctrine of escheat. But, as the feudal tenures do not exist in this country, there are no private persons who succeed to the inheritance by escheat; and the state steps in the place of the feudal lord, by virtue of its sovereignty, as the original and ultimate proprietor of all the lands within its jurisdiction. It is a general principle in the American law, and which, I presume, is every where declared and asserted, that when the title to land fails from defect of heirs, it necessarily reverts, or escheats, to the people, as forming part of the common stock to which the whole community is entitled.5 Whenever the owner dies intestate, without leaving any inheritable blood, or if the relations whom he leaves are aliens, there is a failure of competent heirs, and the lands vest immediately in the state by operation of law.6 No inquest of office is requisite ill such cases;7 and, by the New York Revised Statutes,8 the Attorney General is authorized to bring an action of ejectment, whenever he shall have reason to suspect that the people have title to lands by escheat.

In the Roman law, there was an officer appointed in the character of an escheator, whose duty it was to assert the right of the emperor to the haereditas jacens, or caduca, when the owner left no heirs or legatee to take it.9 That property should, in such cases, vest in the public, and be at the disposal of the government, is the universal law of civilized society.10 It was, as early as the age of Bracton, regarded as a part of the jus gentium — ubi non apparet dominus rei, quae olim fuerunt inventoris, de jure naturali, jam efficiuntur principis de jure gentium.11 The principle lies at the foundation of the right of property, that when the ownership becomes vacant, the right must necessarily subside-into the whole community, in whom it was originally vested when society first assumed the elements of order and subordination.12 In New York, all escheated lands, when held by the state, or its grantee, are declared to be subject to the same trusts, encumbrances, charges, rents, and services, to which they would have been subject had they descended.13 This provision was intended to guard against a very inequitable rule of the common law, that if the king took lands by escheat, he was not subject to the trusts to which the escheated lands were previously liable. The statute of 39 and 40 Geo. III. c. 88. mitigated the rule, by the provision which enabled the king, by warrant or grant, to direct the execution of the trust. In the case of Sir George Sands,14 Hale, Ch. B., and Turner, B., held, that there could be no escheat of a trust, and, in case of the death of the cestui que trust without heirs, the trustee would hold discharged of the trust. The opinion in England is understood to be, that upon the escheat of the legal estate, the lord will hold the estate free from the claims of the cestui que trust. The statutes I have referred to, are calculated to check the operation of such an unreasonable principle.

(2.) Of title by forfeiture.

The English writers carefully distinguish between escheat to the chief lord of the fee, and forfeiture to the crown. The one was a consequence of the feudal connection, the other was anterior to it, and inflicted upon a principle of public policy.15 But while the chief lord of the fee is none other than the same community which has been injured by the crime, there is no essential distinction between escheat for treason, and forfeiture for treason. The law of escheat went, indeed, upon feudal principles, beyond the law of forfeiture. It extinguished, and blotted out for ever, all the inheritable quality of the vassal’s blood, so that the sons could not inherit, either to him, or to any ancestor, through their attainted father. He was rendered incapable, not only of inheriting, or transmitting his own property by descent, but he obstructed the descent of lands to his posterity, in all cases in which they were obliged to derive their title through him from any more remote ancestor. The forfeiture of the estate is very much reduced in practice in this country, and the corruption of blood is, I apprehend, universally abolished.16 In New York, forfeiture of property for crimes, is confined to the case of a conviction 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.17

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 divested by the forfeiture of the particular estate.18

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 tenth, in its nature, to divest 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 connection.19 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 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, have 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 possessed, and does not affect the persons seized of ulterior interests.20 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 possession, seizin, and title, as deeds of feoffment with livery; and yet it has been held,21 that such a deed worked no forfeiture, on the common law doctrine of alienation by tenant for life or years. In Massachusetts it has, however, been 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.22 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 of conditions in leases, grants, and conveyances, which have been sufficiently considered in the former 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 facial, 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,23 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.24

The practice of selling real estate under certain checks and modifications, created to prevent abuse and hardship, has 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.25 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 provisions 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.26 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 laced by 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.27 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.28 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 execution, 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 Massachusetts; and the debtor is allowed a year to redeem, except in Vermont, where it is only six months, and on paying twelve per cent: interest. In Rhode Island, and Connecticut, the previous appraisement is requisite, and the sale or assignment of the lands to the creditor is at the appraised value but there is no time allowed to redeem.29 There are special and peculiar regulations on this subject in several of the states. In Pennsylvania and Delaware, the lands are to be appraised, and if the inquest finds that the rents and profits for seven years will discharge the debt, the lands are then extended, and possession given to the creditor, in the manner practiced upon the elegit in England; but if not so found, the lands are to be sold without redemption.30 The lands are not to be sold under the amount of two thirds of the previously appraised value, in the states of Ohio and Illinois, and of three fourths in Kentucky, and of one half of the same in Indiana. In Missouri, and Louisiana, if the lands do not bring, or the creditor will not take them at two thirds of the appraised value, there is a delay and check imposed upon a peremptory sale, on the interposition of security. Virginia is an exception to the general practice of selling land on execution. The English process of elegit and extent are used, but in special cases the lands are sold, and then they are to be first appraised, and sold on credit, with security, if they will not bring three fourths of their appraised value.

In those states in which the sheriff sells the land, instead of extending it to the creditor, he executes a deed to the purchaser and it is held, that the sheriff’s sale is within the statute of frauds, and requires a deed, or note in writing, of the sale, signed by the sheriff.31 In some of the southern states, as, for instance, in Georgia, Alabama, and Mississippi, the sales are required-to be at the court house of the county. In the New England states, with the exception of Rhode island, the sheriff’s official return of the proceedings under the execution, constitutes the title of the creditor, as does the sheriff’s return of the inquisition upon the elegit in England,32 and no deed is executed, for the title rests upon matter of record. In New York, the judgment or decree is a lien on the real estate of the debtor from the docketing of the same, and it affects equally his after-acquired lands, with the exception of mortgages taken at the time of purchasing the after-acquired lands, for the security of the purchase money.33 There is a great diversity of practice in the different states on this point. In the eastern states, as Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, and Vermont, the judgment is no lien, and the lands are not bound until execution issued; but, as a substitute for this apparent want of due protection to the creditor, the land may be attached, in the first instance, on mesne process. In Kentucky and Mississippi, lands are only bound, like chattels, from the delivery of the execution. In Pennsylvania, the judgment is a lien on the lands owned at the time by the debtor, but it does not bind after-acquired lands until the execution has issued. This distinction is established by the decision in Calhoun v. Snider,34 in which the antiquity and authority of the rule of the English common law, that a judgment binds after-acquired lands, has been ably questioned, though, I think, not successfully shaken. The distinction taken in Pennsylvania, would seem to exist also in the states of Virginia and Illinois. There is another and peculiar distinction taken in North Carolina. Lands are held to be bound from the judgment, provided the creditor sues out an elegit, but they are only bound by execution if the creditor elects to sell the land by fieri facias.35 The judgment becomes a lien, as completely as in New York, in the states of New Jersey, Delaware, Maryland, Ohio, Indiana, Missouri, Tennessee, South Carolina, Georgia, Alabama, and Louisiana. The lien, after all, amounts only to a security against subsequent purchasers and encumbrancers; for the Master of the Rolls, in Brace v. Duchess of Marlborough,36 said, it was neither jus in re, nor jus ad rem; and though the judgment creditor should release all his right to the land, he might afterwards extend it by execution.

In New York, the interest of a person holding a contract for the purchase of land, is not bound by a judgment or decree, and is not to be sold on execution. The remedy by the creditor against such an interest residing in his debtor, is by bill in chancery; and the interest may be sold under a decree for that purpose, or transferred to the creditor in such manner, and upon such terms, as to the court shall seem just, and most conducive to the interest of the parties.37

When we consider how reluctantly and cautiously real property, in England, has been subjected to the process of execution, and how reasonable it is that provision should he made, as well on account of the interests of creditors, as of the condition of the debtor, against precipitancy, and sacrifices, and iron-hearted speculation at sheriffs’ sales, there will appear to be no just ground to complain of this branch of our American remedial jurisprudence.

If the personal estate of a testator and intestate be insufficient to pay his debts, the executor or administrator, as the case may be, is authorized to sell so much of the real estate as shall be requisite to pay the debts. This is done in the several states under the direction of the Court of Probates, or other court having testamentary jurisdiction; and the title so conveyed to the purchaser. will vest in him all the right and interest which belonged to the testator, or intestate, at the time of his death. The proceedings, in such cases, depend upon local laws; and in New York in particular, they are specially detailed in the revised statutes, with cautious provisions to guard against irregularity and abuse.38


     1.    Litt. sec. 12. Co. Litt. ibid. note 106.
     2.    Ch. J. Swift, in his Digest of the Laws of Connecticut, and Mr. Dane, in his Abridgment of American Law.
     3.    Wright on Tenures, 115-117. 2 Blacks. Com. 244, 245.
     4.    1 Wm. Blacks. Rep. 123.
     5.    N.Y. Revised Statutes, vol. i. 282. tit. 12. Ibid. 718. sec. 1, 2, 3. Swift’s Digest, vol. i. 156. Tucker’s Blackstone, vol. ii. 244, 245. note. Statute of Pennsylvania, 29th September, 1787. b Binney’s Rep. 375. Dane’s Abridg. vol. iii. 140. sec. 24. Ibid. vol. iv. 538. Mr. Dane says, that the New England colonies of Massachusetts and Plymouth very early passed laws for vesting in the colony all lands escheating for want of heirs, on the ground that the colony was the sovereign who made the original grant. In Maryland. before the revolution, lands were liable to escheat to the lord proprietary of the province; and since that era, the state, as to lands of the proprietary, stand in his place under an act of confiscation, and the lands remain, of course, subject to escheat. See Harr. & McHenry’s Rep. index, tit. Escheat. Passim. Ringgold v. Malott, 1 Harr.& Johns. 299.
     6.    Vol. ii. of this work, p. 47.
     7.    4 Co. 58. a. Comyn’s Digest, tit. Prerogative, D. 70.
     8.    1 Vol. i. 282.
     9.    Code, 10. 10. 1.
   10.    Domat, vol. i. 592. sec. 6. 616. sec. 4. Vanderlinden’s Institutes, by Henry, 165. Code Napoleon, sec. 723.
   11.    Bracton, lib. 1. ch. 12. sec. 10.
   12.    This was the case with the ancient Germans, when their institutions were studied by Caesar and Tacitus. They had not then any private property in land; it was vested in the community or tribe. Caesar, de Bell. Gal. lib. 4. c. 1. Tacit. de Jtlor. Germ. c. 26.
   13.    N.Y. Revised Statutes, vol. i. 718. sec. 2.
   14.    3 Ch. Rep. 19.
   15.    Wright on Tenures, 117, 118.
   16.    See Vol. ii. of this work, p. 318. N.Y. Revised Statutes, vol. i. 284. sec. 1.Ibid. vol. ii. 701. sec. 22.
   17.    Dane’s Abr. vol. v. p. 4. Mr. Dane says, that forfeiture of estates for crimes is scarcely known in our Americas practice or laws. Ibid. p. 11.
   18.    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.
   19.    Wright on Tenures, p. 203. Co. Litt. 251. a. b.
   20.    See supra, p. 34. 81, 82.
   21.    McKee v. Prout, 3 Dall. Rep. 486.
   22.    Commonwealth v. Welcome, cited in 5 Dane’s, Ibr. 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 reason of a breach of duty as tenant, by way of plea, or default upon record.
   23.    Abr. of American Law, vol. v. p. 20.
   24.    Province Act of Massachusetts, 1696, cited in 5 Dane’s Abr. 23, note. Province Acts of Pennsylvania, 1700, and 1705, cited in 6 Binney’s Rep. 145.
   25.    Griffith’s Register, h. t. No. 3.
   26.    New York Revised Statutes, vol. ii. 183. sec. 104. Ibid. 363. sec. 2. ibid. 367. sec. 24. Ibid. 368. sec. 34. Ibid. 369. sec. 38.
   27.    New York Revised Statutes, 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.
   28.    Preston on Abstracts, vol. iii. 90. Shep. Touchstone, 226.
   29.    Dune’s Abr. vol. v. 22. 25. Swift’s Digest, vol. i. 154, 155. Griffith’s Register.
   30.    It has been adjudged, under the Pennsylvania statute, that an estate for life, belonging to the debtor, is not within the statute, and it may be sold on execution without an inquest on its value. Howell v. Woolfort, 2 Dalf. Rep. 75.
   31.    Simonds v. Catlin, 2 Caines’ Rep. 60. Barney v. Patterson, 6 Harr.& Johns. 182. The N.Y. Revised Statutes, vol. ii. 374. require a regular conveyance from the sheriff.
   32.    Den v. Abingdon, Doug. Rep. 473.
   33.    N. Y Revised Statutes, vol. ii. 182. sec. 96 Ibid. 359. sec. 3.
   34.    6 Binney’s Rep. 135.
   35.    Jones v. Edmonds, 2 Murphy, 43.
   36.    2 P. Wms. 491.
   37.    N.Y. Revised Statutes, vol. i. 744. sec. 4, 5. 6.
   38.    N.Y. Revised Statutes, vol. ii. 99-113.