I. RIGHTS TO REAL PROPERTY. CHAP. IV. vided for its security. 2ndly. Therefore an alien was not allowed to acquire an interest therein, it being the policy of the law to exclude him from any permanent interest in the soil. 3rdly. In respect, also, of such permanency, its owner has always been entitled, when a freeholder, to vote for representatives in parliament, and on other occasions, which the owner of personalty, until recently, was not. (b) 4thly. It descends from ancestor to heir, instead of becoming the property of an executor or administrator on the death of the owner, as in the case of personalty. 5thly. If freehold property be devised there must be three witnesses to the will, whereas no witness is in general essential to a bequest of personalty. (c) 6thly. In case of alienation it must, in general, be made by deed, (d) and in presenti, (e) whereas leases for years may commence in futuro, and mere personal chattels may be transferred by parol, or mere delivery. 7thly. Only a part of the annual value can be taken under an elegit against the owner, when the whole interest in personalty may be sold under an execution. (ƒ) 8thly. In case of attainder of felony the interest in realty is only forfeited for life, whereas the entire interest in personalty vests in the crown. These, it will be observed, are exceedingly important distinctions between the two descriptions of property. Mixed property partaking of personalty and realty. Personalty to be converted vice versa. We shall find, however, that there are some interests arising out of or connected with real property, which partake in some respects of the qualities of personalty, being of a mongrel amphibious quality. (g) Such as heir-looms, title deeds, &c. which though in themselves moveable, yet relating to the land, descend from ancestor to heir, or from a vendor to a purchaser.(h) There is also another very important doctrine in equity, into realty and according to which substantially the nature of personal property, as money, and goods, &c., may be completely changed, and become as it were, for all the purposes of beneficial enjoyment, real property. Thus in a Court of Equity money directed to be laid out in lands will pass by the words, "lands, tenements, and hereditaments whatsoever and wheresoever," (i) it being a maxim in equity, that things to be done shall be con (b) But now by the late reform act, 2 W. 4, c. 45, s. 20, a right of voting is conferred on copyholders, leaseholders, and occupiers of land of a certain annual value. (c) 2 Bla. C. 501, 502; Comyns, 452, note (16); 2 Phil. Ec. C. 213, 177; 1 Phil. Ec. C. 12. (d) 5 Bar. & C. 221. (e) That is when by a common law con veyance; but secus if under the statute of uses. (f) But if there be two contemporaneous elegits, each plaintiff may take a moiety, and thus the whole, 5 Bing. 327. (g) 2 Bla. C. 387, 388. (h) 4 Bing. 106. (i) Rushley v. Master, 3 Bro. C. C. 99; 1 Thomas's Co. Lit. 219, n. T. I. RIGHTS TO REAL PROPERTY. under seven sidered as done, (k) and vice versâ; for trees, though growing, CHAP. IV. if sold by a tenant in fee, who dies before severance, are considered as personalty, and the executor, and not the heir, is entitled to receive the purchase money from the vendee. We have now to take a practical view :-I. Of the Rights to General division Real Property, and these are to be considered as regards, first, of the subject the nature of the thing, or the several sorts or kinds of real heads. property. Secondly. The tenures by which they are holden, as whether free socage, (being freehold,) or copyhold, &c. Thirdly. The estates, or extent and nature of the interests therein, as whether of inheritance, or only for life, or less than freehold, as for years, or at will, or sufferance, and whether legal or equitable. Fourthly. As respects the time of enjoyment; as whether in possession, or only in remainder or reversion. Fifthly. As regards the number of owners, as whether in severalty, joint-tenancy, coparcenary, or in common. Sixthly. The modes by which the title or right may be acquired on the one hand, or lost on the other; as by mere possession, or by descent, or by purchase, whether technically or really so, as by alienations of different descriptions, or by devise, and Seventhly. The distinctions between legal and equitable estates. the thing, or the property. First. A very accurate knowledge of the different descrip- First. Nature of tions and legal properties of every kind of real property, is several sorts or essential as well to owners and occupiers, as to conveyancers kinds of real and every other member of the legal profession, whether practising in the civil or criminal courts; and in particular as regards the construction of conveyances and wills, the poor laws, and civil remedies and criminal punishments. () The ownership of some of the most substantial and permanent kinds of real property give a right to vote in elections, and under the now repealed act created a qualification to kill game; and some kinds of real property are rateable to the relief of the poor, whilst others, though equally or more profitable, are not. (m) Again: as regards the modes of describing various kinds of real property in deeds and civil pleadings, much accuracy is requisite, as in real actions and ejectment; and though it has been well observed, that probably so much precision would not now be required as in many of the old cases, still it is important to know what are the appropriate names (k) Cruise's Digest; 1 Thomas's Co. Lit. 755, note U. (1) See in general the enumeration of corporeal real property, Tidd, 9 ed. 1190; and Adams on Ejectment, 3 ed. chap. 2; (m) 43 Eliz. c. 2; Chit. Col. Stat. 768, CHAP. IV. 1. RIGHTS TO REAL and legal incidents of each. (n) So as respects crimes and punishments, and the liability of a hundred to make compensaPROPERTY. tion, they greatly vary according to the precise description of Buildings, &c. must answer description at time of injury. All real property must be part of or annexed to land or proceed out of same, and be permanent. the place in which the offence was committed; the law providing greater protection to dwelling-houses, and some enumerated buildings, and to gardens and land adjoining the same, and to some other descriptions of real property, than to land or other property at a distance; and the legislature has, with the same view, adopted certain terms of description, the application of which is important to be well known. (o). We may here premise, as a general rule, that when buildings or lands are particularly named in a statute, they must precisely answer the description at the time when the injury was committed, and that a mere intention to convert a building, or land, &c. to a particular purpose, will not be sufficient unless the building or the land has been completed, and actually used for the particular purpose. (p) Another very general rule is, that all real property, properly so termed, whether corporeal or incorporeal, must consist of land, or houses and buildings thereon, or of the profits or easements issuing out of the same, and must be of a perpetually continuing and permanent nature, (q) and that nothing can be deemed real property but when it is annexed to land or buildings; and, therefore, a mere stall or standing place, or booth placed in a market or fair, and not permanently annexed to the soil, cannot be treated as real property, or the subject of any action for the recovery of realty; and no action of ejectment for a supposed ouster from such a stall is sustainable, although the occupier had hired the exclusive right to use it during several days; (r) nor could such a structure by itself, any more than furniture, be rated towards the relief of the poor; (s) nor could burglary be committed in breaking into a tent or booth, erected in a fair or market, though the owner may usually sleep therein, for the law regards thus highly nothing but permanent edifices; and though it may have been the (n) Adams on Ejectment, 3rd ed. 22 to 42. (0) 7 & 8 Gco. 4, c. 29 to 31. (p) 8B. & C. 461, and post, 167, "Dwelling-house," as to the offence of burglary, &c. (q) 2 Bla. C. 384; as to the term permanent being an essential part of the definition, see 1 Preston on Estates, 10; and Hen. Chitty on Descents, 11; and no term, even for1000 years, is in law deemed real property, though as it is an interest in realty, it is properly to be considered in this chapter, ante, 84, note (a). (r) Per Lord Kenyon, Guildhall Sittings after Trin. T. 1796; and 1 Car. & P. 123; and see 2 East, 189. But if it had been a permanent building let into the ground, though only a butcher's stall in a market, to be used only on two days in the week, but the door fastened, it would have been otherwise, 4 B. & C. 683; 7 D. & R. 160. (s) Cald. 262, 266; 1 T. R. 721. I. RIGHTS TO REAL PROPERTY. choice of the owner to lodge in so fragile a structure, yet his CHAP. IV. lodging there no more makes it burglary to break it open, than it would be to uncover a tilted waggon under similar circumstances ;(†) and for the same reason it was held that the destruction of hustings erected for an election was not an offence within the 57 Geo. 3, c. 19, s. 38; (u) and the lessee of a stall in a market town, who came there weekly to sell his wares, was held not rateable to the repairs of a church, either as being an inhabitant, or occupier of a house or otherwise, (v) though if it had been a permanent building let into the soil the occupation of it might, before the recent acts, have given a settlement. (a) So where a windmill was made of wood and had a foundation. of brick, but the wood-work was not inserted in the brick foundation but rested upon it by its own weight alone, and no part of the machinery of the mill touched the ground or any part of the foundation, it was held that the windmill, not being fixed to the freehold, nor to any thing connected with it, was not parcel of a tenement, and consequently that a pauper by occupying it gained no settlement. (y) land, &c. how But although personal property, originally separated from Annexations to any land or building, such as machinery and engines, cannot far privileged as for all purposes be deemed real property, yet the very circum- realty. stance of the same being annexed to the realty will sometimes give the same some peculiar properties, liabilities, privileges or protections, and therefore they may here be properly noticed. Thus with respect to liability to the poor rate, when the annual value of land or houses has been enhanced by the annexation of a personal chattel, as a steelyard of a weighing machine, or a carding machine, or any other collateral circumstance, then the same may be rated according to the aggregate annual value, though the greater part may spring from the personal chattel so annexed;(z) and fixtures, when annexed to a building by a freeholder, cannot be taken under an execution against his goods; (a) and some fixtures would pass to the heir, and not to the executor of the owner, in the nature of heir-looms, being generally chattels which cannot be taken away without damaging or dismembering the freehold ; (b) such as the posts or rails of (t) 1 Hale, P. C. 557; 3 Inst. 64; Hawk. B. 1, c. 38, s. 17; 4 Bla. C. 225, 226. (u) 3 Dowl. & Ry. 96. (r) 2 Rol. Rep. 238; 1 Bott, 123. (y) 1 Bar. & Adolph. 161; and see 1- (b) 2 Bla. C. 427. CHAP. IV. First, CORPO and distinction an inclosure, furnaces or coppers fixed, (unless severed in the lifetime of the testator or ancestor,) the wainscots to a house, and pictures, or glasses fixed instead of wainscots, the glass in a window, or the doors and locks of a house, and the like. (b) So fixtures in a distillery or brewery, demised or suffered to remain in possession of a trader, would not pass to his assignees as goods or chattels in his possession as reputed owner. (c) The principal divisions and distinctions of Real Property, are REAL Property, those kinds which are Corporeal and those which are Incorpobetween the same real. The former having a corpus, and being visible and tangiand incorporeal. ble, and capable of actual seisin and possession; the latter not so, but merely issuing out of or incident to permanent corporeal property, and not being the thing itself, nor capable of actual visible seisin or possession. Thus a church, and the glebe land belonging to it, are obviously corporeal and tangible, and capable of actual seisin and possession, and of which the parson, after he has been presented and inducted, has actual possession, and may maintain ejectment or trespass for being ousted therefrom. (d) But the advowson (being the mere right to present a parson to such church or other ecclesiastical benefice, and the owner of the advowson himself never being in the actual or even supposed possession of the church or glebe) is merely incorporeal property, because such right is not visible or tangible. This instance of an advowson completely illustrates the nature of an incorporeal hereditament; it is not itself the bodily possession of the church and its appendages, but is a mere right to give some other man a title to such bodily possession. The advowson is not the object of either the sight or the touch, and yet it perpetually exists in the mind's eye and in contemplation of law. It cannot be delivered from man to man by any visible bodily transfer, nor can corporeal possession or livery of seisin be had of it; such right itself produces no corporeal fruit or advantage to its owner, but is merely a right to place some clerk, whom the patron shall please to nominate, in the possession and enjoyment of the benefits resulting from the church and glebe. (e) Like all other incorporeal real property, in order to convey the freehold interest in an advowson, a grant by deed under seal is essential. (f) So with respect to another (b) 2 Com. Dig. 280, 5th ed.; Hen. Chitty's Desc. 257. (c) 9 East, 215; and see 3 B. & Cres. 368; 5 D. & R. 240, S. C. (d) 12 Mod. 420, 433. (e) 2 Bla. C. 21, 22. (ƒ) 1 lust. 9; 2 Wood, 64; 1 Saund. 228; 5 Bar. & C. 221. See 2 Bla. C. 22, contrá, but clearly a mistake as to an advowson passing by parol. |