PART II. T. 10, CH. 4. no other income than the profits of a benefice with cure of souls (). It is, however, to be observed, that the composition in this case was held to be void, not only on this ground, but also because it was not signed by the clergyman. 1242. 2. But although an instrument may have been clearly intended to create a charge exclusively upon a benefice, and although of its own nature it has the effect of charging such benefice in common with other property, yet it is not void if such intention is only proved by affidavit, or only appears from words of another instrument which are not incorporated into the former instrument by recital or otherwise. And this has been held even though such other instrument be connected with the former by recital or otherwise, and both in fact constitute parts of one and the same transaction (m). Hence it has been held, that, where the warrant of attorney to confess judgment, though it recites a deed granting an annuity and charging it on a living, yet does not contain a reference to a sequestration, it is good; notwithstanding the fact, that "an execution against the living is the common and inevitable consequence of such judgment against a beneficed person" (n). So it has been held, that if the warrant neither recites the annuity deed, nor contains any reference to a sequestration, it is good, even though the deed granting the annuity and charging it on the living recites that the judgment was to be a collateral security for the annuity, and alludes to a sequestration (o). And it has been held that the warrant is good even if it refers to a bond which recites the annuity deed and an agreement that the pay (1) Alchin v. Hopkins, 1 Bing. N. C. 99. (m) But see Walthew v. Crofts, 6 Exch. 1. (n) Faircloth v. Gurney, 9 Bing. €22; Gibbons v. Hooper, and Kirlew v. Butts, 2 B. & Ad. 734, 736, note; Aberdeen v. Newland, 4 Sim. 281; Moore v. Ramsden, 7 Ad. & El. 898. (0) Britten v. Wait, 3 B. & Ad. 915. T. 10, CH. 4. ment of the annuity should be further secured by a bond PART II. and warrant of attorney, with a judgment to be entered up thereon, for the purpose of charging the living, but yet the warrant does not incorporate the objectionable parts of the bond so referred to, or the instrument recited therein, and contains no reference to a sequestration (p). 1243. Although the judgment, in such cases, be for a gross sum of a large amount, yet the sequestration will be confined to arrears that have become due on the annuity, with liberty to issue a fresh writ of sequestration for any future arrears (q). 1244. 3. Even where an instrument is void on this account, it is void so far only as it goes to charge the benefice, and is not void in toto, if there are any other ways in which it can operate. Hence a deed granting an annuity and charging it on a benefice, is good as a grant of an annuity, and only void so far as it goes to charge the annuity on the living (r). 1245. 4. A judgment entered up against a beneficed clergyman is not a charge on his benefice, under the stat. 1 & 2 Vict. c. 110, s. 13 (s). 1246. (p) Colebrook v. Layton, 4 B. & Ad. 578. (q) Britten v. Wait, 3 B. & Ad. 915; Kirlew v. Butts, 2 B. & Ad. 736, note. (r) Faircloth v. Gurney, 9 Bing. 622; Gibbons v. Hooper, 2 B. & Ad. 734. (s) Hawkins v. Gathercole, 6 D. M. & G. 1, and 3 Com. Law & Eq. Rep. 348 (L. J.), overruling the decision of the Court below, 1 Sim. N. S. 63; Bates v. Brothers, 2 Sm. & Gif. 509. See supra, par. 1156. РАКТ ІІІ. Definition of a title. Title by descent and title by purchase. Different senses of the word "purchase." PART III. Of the Title to Things constituting the Subjects of Conveyancing. A TITLE to property is the means by which a person has a right to it. 1247. The title to land is either by purchase, meaning thereby the act or agreement of the party, or by mere act of law, as by descent or escheat (a). But the different modes of acquiring real property have usually been distributed into two general classes-title by descent or hereditary succession, and title by purchase (b). 1248. Purchase, therefore, in this its widest technical sense, is the acquisition of an estate in any other manner than by descent. And hence, if a person takes even by free gift, he is a purchaser in this technical sense of the word. And so a person is called a purchaser in reference to an estate. tail which he takes originally under a limitation contained in a settlement made before he was born, and not derivatively by descent from his ancestor (c). Sometimes, however, the word purchase signifies an acquisition for valuable consideration. And at other times it signifies an acquisition by act of the party, as opposed to an acquisition by act of law. But in this sense it does not include such a mode of acquisition as escheat (d). 1249. (a) Co. Litt. 18 b (3). (b) 2 Bl. Com. 201; 3 Cruise T. 29, c. 1, § 22; Co. Litt. 13 b, 18 b. (c) See 2 Bl. Com. 241. senses of the chaser. The word purchaser also has various significations. PART III. Sometimes it comprehends every one who has acquired Different property otherwise than by descent. At other times it is word "purconfined to a person who has acquired property for valuable consideration, whether by sale, mortgage, or otherwise, though such a person is usually styled a purchaser for valuable consideration. And at other times it is used in a still narrower and popular sense, to signify a person who has bought property. 1250. kinds of The different modes of acquiring property according to a specific more specific distribution, and so far as they are connected titles. with conveyancing, are these I. Marriage. II. Descent, Succession, and Administration. III. Escheat. IV. Occupancy. V. Alluvion and Dereliction. VI. Prescription. VII. Adverse Possession and the Operation of the Sta tute of Limitations. VIII. Forfeiture. IX. Bankruptcy and Insolvency. X. Alienation. 1251. marriage. Curtesy and dower arise by marriage; but these we Title by have already considered. And the law as to the acquisition of personal property by marriage is stated in the chapter on Married Women, in the Fourth Part of this Compendium. 1252. TITLE I. OF DESCENT, SUCCESSION, AND ADMINISTRATION. CHAPTER I. OF DESCENT. CH. 1, s. 1. Definition of SECTION I. Of Descent generally. PT. III. T. 1, DESCENT or hereditary succession is the title whereby, on the death of the owner of an estate in fee or in tail, without descent having disposed of it in his lifetime or by his will, it deof an heir- volves on his heir. An heir, therefore, is he upon whom the law casts the estate immediately on the death of the of an inheri- ancestor; and an estate so descended on the heir is called an inheritance (a). 1253. tance. Lineal and collateral descent. Consanguinity or kindred. Lineal descent is the devolution of real estate to an heir who is lineally related to the last deceased owner, whether as an ancestor or as a descendant. Collateral descent is the devolution of real estate to an heir who is only collaterally related to the last deceased owner (b). 1254. The right of hereditary succession depends on the nature and the several degrees of consanguinity or kindred. Consanguinity or kindred is defined to be, vinculum personarum ab eodem stipite descendentium, the connection or (a) 2 Bl. Com. 201; 3 Cruise T. 29, c. 2, § 1. () As to the word "descendants" meaning collateral descendants, see Best v. Stonehewer, 34 Beav. 68; 2 D. J. & S. 537. |