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word descendere, id est, loco superiore in inferiorem movere' and in legal understanding it is taken when land, &c., after the death of the ancestor is cast by course of law upon the heir, which the law calleth a descent. And this is the noblest and worthiest means whereby lands are derived from one to another, because it is wrought and vested by the act of law, and right of blood, unto the worthiest and next of the blood and kindred of the ancestor; and therefore, it hath not in the common law altogether the same signification that it hath in the civil law; for the civilians call him, hæredem, qui ex testamento succedit in universum jus testatoris. But by the common law he is only heir which succeedeth by right of blood. And this agreeth well with the etymology of the word? (heir) to whom the lands descend, for hæres dicitur ab hærendo, quia qui hæres est haeret, hoc est, proximus est sanguine illi cujus est hæres. So as he that is hæres, sanguinis, est haeres, et heres haereditatis.
“And the learning of degrees set out in the civil and canon law (wherein I find some difference) is worth the knowledge, to the end that Littleton and the law may the better be understood, which I will divide into certain rules; whereof the first is:
“That a person added to a person in the line of consanguinity maketh a degree. And it is to be understood, that a line is threefold, viz., the line ascending, descending, and collateral. And first, for example, of the ascending line, take the son and add the father, and it is one degree ascending; add the grandfather to the father, and it is a second degree ascending.
“So as how many persons there be, take away one, and you have the number of degrees. If there be four persons it is the third degree, if five the fourth, for one must exceed, and then you have the degree. Likewise by the descending, take the father and add the son, and it is one degree; then take the son and add the grandchild, and it is the second degree; and so likewise further. Wherein observe that the father, son, and grandchild, albeit there are three persons, yet they make but two degrees, because (as it hath been said) one must exceed for making a degree.
"It is to be noted, that in every line the person must be reckoned from whom the computation is made. And there is no difference between the canon and civil law in the ascending and descending line; for those whom the civilians do reckon in the second degree, the canonists do reckon in the first; and those whom they place the fourth, these place in the second. Therefore, if we will know in what degree two of kindred do stand according to the civil law, we must begin our reckoning from one, by ascending to the person from whom both are branched, and then by descending to the other to whom we do count, and it will appear in what degree they are. For example, in brothers' and sisters' sons, take one of them and a second to his father, there is one degree; from the father to the grandfather, that is the second degree; then descend from the grandfather to his son, that is the third degree; then from his son to his son, that is the fourth. But by the canon law there is another computation, for the canonists do ever begin from the stock, namely, from the person of whom they do descend; of whose distance the question is. For example, if the question be, in what degree the sons of two brothers stand by the canon law, we must begin from the grandfather and descend to one son, that is one degree; then descend to his son, that is another degree; then descend again from the grandfather to his other son, that is one degree; then descend to his son, that is a second degree; so in what degree either of them are distant from the common stock, in the same degree they are distant between themselves; and if they be not equally distant, then we must observe another rule. In what degree the most remote is distant from the common stock, in the same degree they are distant between themselves; and so the most remote maketh the degree. Gradus dicitur a gradiendo, quia gradiendo ascenditur et descenditur. And thus much of the civil and canon law is necessary to the knowledge of the common law in this point.”
It is to be noted that the Common law rule and the Canon law rule for determining the degree of relationship existing between two collateral relatives was the same, and that both differed from the Civil law rule. The Civil law rule on this point has been adopted in this country.
The following are Blackstone's famous seven canons of descent:
1. Inheritances shall lineally descend to the issue of the person who last died actually seized, but shall never lineally ascend. Actual seisin is necessary. Thus, if A should die leaving two sons, B, the elder, C, the younger, and B should die, never having been actually seised, C, the younger son, would inherit to the exclusion of B’s heirs, as being the heir of A, the person last actually seised.
2. Male issue shall be preferred to female. A dies leaving three daughters and one son. The son inherits the whole estate to the exclusion of the daughters.
3. Where there are two or more males in equal degree, the eldest only shall inherit; where there are two or more female heirs in the same degree, they take as co-partners, and share and share alike.
4. The lineal descendants of any person deceased shall represent their ancestor, i. e., shall stand in the same place that the person himself would have stood, had he been living.
5. On the failure of lineal descendants of the person last seised, the inheritance shall descend to his collateral relations.
6. The collateral heir of the person last seised must be his next collateral kinsman of the whole blood. The half-blood, at common law, could never inherit.
7. In collateral inheritances, kindred derived from male ancestors, however remote, shall be admitted before those derived from female ancestors, however near.
Some of these canons, particularly the first three and the last, have been changed by statute in many of the States, the subject of descent now being entirely regulated by State statutes in this country.
SECTION 57. TITLE BY PURCHASE. Title by purchase covers all methods of acquiring property other than by descent. The word "purchase,” therefore, is used here in a much broader significance than in its ordinary use. There are many divisions and subdivisions of title by purchase and these will be considered in the following sections.
SECTION 58. TITLE THROUGH ACT OF THE PARTIES.
Titles through the act of the parties includes title derived from a deed and title derived from a will.
Ownership of nearly all the land in the country is derived through this general division. Title by deed or by grant (as it is otherwise called) is subdivided into public grant and private grant. This classification is based upon the character of the grantor; a public grant being one from the government, and a private grant one from an individual.
SECTION 59. PUBLIC GRANT. In this country land belonging to the public can only be granted away by authority of the legislative department. Such authority can be given by the legislative department of the United States or of a particular State in one of two ways: First, there may be a special legislative act expressly transferring certain land to certain parties; or second, there may be a general legislative act providing how individuals in general may acquire title to a portion of the public lands. In the first class of cases the legislative act will serve as evidence of the title and no deed or patent is generally given. All persons acquiring title from the government under a general legislative act receive a patent from the government.
“A patent is a complete appropriation of the land it describes, and passes to the grantee, or, as he is sometimes styled, the patentee, all the interest of the State or the United States, whatever it may be, in everything connected with the soil, or forming any portion of its bed, or fixed to its surface; in short, in everything embraced within the term “land.” It is conclusive evidence of the right of the patentee to the land described therein, not only as between himself and the government, but as between himself and a third person who has not a superior title from a source