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Eminent domain is the right possessed by the government to take property for public use, upon giving due compensation, or to authorize such a taking by a corporation or individual engaged in a quasipublic occupation. The subject of eminent domain has already been treated under the subject of Constitutional Law.14

Escheats is the right of the government to take the property of an intestate who dies without leaving any heirs to inherit.

Confiscation is the right of a government to take the property of its enemies in time of war.

This right is mainly, but not entirely confined to the case of personal property.

“The term forfeiture, when employed to designate a method of acquiring title, has several distinct meanings. In its primary signification it is the means whereby the property of the citizen inures to the state by reason of the violation of law or neglect of legal duty. In the United States this occurs only in case of attainder of treason or non-payment of taxes. In either case it is in the nature of a penalty, and results as an incident of our reciprocal duties and obligations. In England attainder of treason worked corruption of blood and perpetual forfeiture of the estate of the person attainted to the disinheritance of his heirs. When the Federal Constitution was framed, this was felt to be a great hardship, if not a positive injustice, and, for this reason, it was ordained that no attainder of treason should work corruption of blood or forfeiture of estate, except during the life of the person attainted. A forfeiture for non-payment of taxes is based upon the principle that every owner of lands holds his estate 14 See Vol. II, Subject 3, Section 89.

upon the implied condition that he will promptly pay his share of the common burdens assessed against the entre community, and if he fails to comply with this condition, and his estate is offered at public sale, for such delinquency, and no purchaser can be found for it, the title is transferred from the owner to the State, the latter being always ready to bid for the land when no other bidder appears.

The subject of tax titles is regulated by statutes in the several states. The law looks with disfavor upon tax titles, and will, whenever possible, set them aside upon the repayment of the amount of the taxes with interest and costs.



Under this heading there are to be considered the subjects of prescription and limitation.

Prescription is the method of acquiring title by the continued occupancy of a piece of property for a certain period, even if such occupancy was in its origin without right. To secure title in this manner the occupancy may have been open, notorious, uninterrupted, and hostile to the rights of the true owner.

A statute of limitations is one providing that no action shall be brought upon a cause of action after the lapse of a certain period.

In order that the statute may operate against the right of recovery of real property, the possession must have been adverse for the entire period of limitation. There must not only have been an actual and complete disseisin, but such disseisin must be continuous and uninterrupted during the statutory period. The adverse possession need not, however, be continuous in one person. The Title may be assigned, and it w Warvelle on Real Property, pp. 186–7, 2nd Ed.

descends to the disseisor's adverse heirs. If two or more disseisors hold successively and in privity with each other, whether by purchase or descent, and their several periods of holding make up the requisite statutory period, the owner will be effectually barred. In some states, however, it is held that the holding must be continuous by a person or his heirs for the statutory period. The statute runs against the rightful owner and all other persons standing in privity with him. The statute begins to run against the person only from the time that he has a right to bring action.




In every valid transfer of real property there must be a grantor competent to give and a grantee capable of taking. Every person of legal age and sound mind is competent to grant away any estate in land of which he may be the owner. All persons, both natural and artificial are capable of taking as grantees in the absence of statutory prohibitions. The statutory prohibitions upon the taking or holding of land, are confined in this country, to the cases of corporations and non-resident aliens.

SECTION 68. REQUISITES OF A DEED. The requisites of a deed were thus enumerated by Lord Chief Justice Coke;

“This word (deed) in the understanding of the common law is an instrument written in parchment or paper, whereunto ten things are necessarily incident; viz.; First, writing. Secondly, in parchment or paper. Thirdly, a person able to contract. Fourthly, by a sufficient name. Fifthly, a person able to be contracted with. Sixthly, by a sufficient name. Seventhly, a thing to be contracted for. Eighthly, apt words required by law. Ninthly, sealing. And tenthly, delivery. A deed cannot be written upon wood, leather, cloth, or the like, but only upon parchment or paper, for the writing upon them can be least vitiated, altered, or corrupted."'2 i See statutes of the several states. • Coke's Institutes, Vol. II, p. 232.

This enumeration is substantially correct at the present time.


Under the old method of transfer of land by feoffment ? no writing, of course, was, or could be, required. Under the new system of deeds which grew out of the Statute of Uses, written deeds became necessary. The Statute of Frauds (enacted half a century after the time of Coke) expressly required deeds of land to be in writing.

The requirement that the deed must be written upon either paper or parchment has been somewhat modified. It is now sufficient if the deed be written upon either of these materials or upon any other material equally or more durable.


A consideration was not necessary in conveyances under the common law, but was held to be necessary to the validity of a deed of bargain and sale. At the present time, the only practical effect of a consideration in a deed is to prevent a resulting trust.

SECTION 71. PARTS OF A DEED. Coke enumerates the eight parts of a deed as follows: "There have been eight formal or orderly parts of a deed or feoffment, viz.; 1. the premises of the deed implied by Littleton, (section 1), 2, the habendum, whereof Littleton (section 1) speaketh; 3, the tenendum, mentioned by Littleton; 4, the reddendum; 5, the clause of warranty, 6, the incujus rei testimonium, comprehending the sealing; 7, the date of the deed, containing the day, the month, the year, and stile • See Section 86.

* See Section 88.

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