In the matter of prescription, therefore, buyer and seller were identified, like heir and ancestor.  But the question [369] remains whether this identification bore fruit in other parts of the law also, or whether it was confined to one particular branch, where the Roman law was grafted upon the English stock.

There can be no doubt which answer is most probable, but it cannot be proved without difficulty.  As has been said, the heir ceased to be the general representative of his ancestor at an early date.  And the extent to which even he was identified came to be a matter of discussion.  Common sense kept control over fiction here as elsewhere in the common law.  But there can be no doubt that in matters directly concerning the estate the identification of heir and ancestor has continued to the present day; and as an estate in fee simple has been shown to be a distinct persona, we should expect to find a similar identification of buyer and seller in this part of the law, if anywhere.

Where the land was devised by will, the analogy applied with peculiar ease.  For although there is no difference in principle between a devise of a piece of land by will and a conveyance of it by deed, the dramatic resemblance of a devisee to an heir is stronger than that of a grantee.  It will be remembered that one of the Roman jurists said that a legatarius (legatee or devisee) was in a certain sense quasi heres.  The English courts have occasionally used similar expressions.  In a case where a testator owned a rent, and divided it by will among his sons, and then one of the sons brought debt for his part, two of the judges, while admitting that the testator could not have divided the tenant’s liability by a grant or deed in his lifetime, thought that it was otherwise with regard to a division by will.  Their reasoning was that “the devise is quasi [370] an act of law, which shall inure without attornment, and shall make a sufficient privity, and so it may well be apportioned by this means.” 1 So it was said by Lord Ellenborough, in a case where a lessor and his heirs were entitled to terminate a lease on notice, that a devisee of the land as heres factus would be understood to have the same right. 2

But wills of land were only exceptionally allowed by custom until the reign of Henry VIII., and as the main doctrines of conveyancing had been settled long before that time, we must look further back and to other sources for their explanation.  We shall find it in the history of warranty.  This, and the modern law of covenants running with the land, will be treated in the next Lecture.

[371] LECTURE XI.

SUCCESSIONS. —­ II.  INTER VIVOS.

The principal contracts known to the common law and suable in the King’s Courts, a century after the Conquest, were suretyship and debt.  The heir, as the general representative of his ancestor’s rights and obligations, was liable for his debts, and was the proper person to sue for those which were due the estate.  By the time of Edward III. this had changed.  Debts had ceased to concern the heir except secondarily.  The executor took his place both for collection and payment.  It is said that even when the heir was bound he could not be sued except in case the executor had no assets. 1