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INTRODUCTION.

work.

THE object of this work is, first, to present to the Object of the student an elementary view of the various forms of ownership of land which exist at the present day; and, next, to examine the simpler forms of conveyance used in transferring land from one person to another.

erty.

Land acquired, from an early date, the name of Land known Real Property. For, since it is immovable, the owner as Real Propof it could always recover the thing (res) itself from any person who had wrongfully deprived him of it; whilst in respect of movable property, such as furniture, or money, his only remedy was to bring an action for damages against the person (persona) who had done him the wrong, and such property was, accordingly, distinguished as personal property.1

Land, again, and property connected with land, are Heredita

[The terms "real" and "personal," as applied to property, are of modern origin, not having come into use until the feudal system had lost its hold. Wins. Real Prop. 7. In the early law these ideas were expressed by the words "movable" and "immovable." Ib. 2; Glanvill, lib. 10, c. 6. The terms "real" and "personal" have, however, been used from the earliest times in the designation of actions, having been borrowed from the Roman law. The author is not strictly accurate in saying that in actions relating to personalty the only remedy was in damages against the person; in detinue the movable itself might be recovered.]

ments.

Corporeal hereditaments.

Incorporeal hereditaments.

said in legal phrase to consist of hereditaments; because when any owner of them dies without having disposed of them by his will, the law transfers his ownership (with an exception to be presently noticed) to a person, selected in accordance with certain fixed rules, who is known as the heir (heres) of the deceased. Hereditaments are of two kinds, Corporeal and Incorporeal. Corporeal hereditaments have been defined as those which affect the senses, and may be seen and handled bodily incorporeal as those which are not the object of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation.1 In other words, corporeal hereditaments comprise land, and tangible property annexed to, and forming part of, land; whilst incorporeal hereditaments consist of rights derived from the ownership of land; such, for example, as the right of presentation to an ecclesiastical benefice, a right of way, and many others. Of these incorporeal herements only to ditaments some will be considered, incidentally, in be treated of. various parts of this work; but we do not propose, except to that extent, to treat of this particular subject. And since the special way in which a man owns corporeal hereditaments is called (for a reason which will be explained hereafter) his estate in them, it follows that estates in corporeal hereditaments and modes of assurance relating to them are alone to be the direct object of our attention.

Corporeal heredita

Term of years is personal property.

It was mentioned above that there is one form of estate in land which does not in the event of its owner's intestacy go to his heir. This is the limited ownership which arises when a person is entitled to the use of land for a term of years, and which is considered by the law as personal, and not as real, property. Such property is, however, so closely con

1 2 Bl. Com. 17.

nected with land that it may, it is thought, be appropriately included amongst the subjects of a work which does not, otherwise, deal with personal property.

an acquaintance with the

which earlier tenThese

ures of land.

A knowledge of the law relating to estates in land Necessity of would be insufficient unless accompanied by a slight acquaintance with the circumstances under their characteristics were gradually changed. causes can only be ascertained by studying the history of the ownership of land, and of the gradual modifications which took place in it. The system which now obtains even yet bears marks of its ancient origin: indeed the old rules of real property law are still almost literally preserved in the case of copy holds. We will, consequently, devote our first chapter to a brief inquiry into the earlier modes of tenure, and the way in which they have been modified; by which means we shall also arrive at a knowledge of the different varieties of estates in corporeal hereditaments which exist in our own times.

PART I.

OF CORPOREAL HEREDITAMENTS.

tween the present and former systems of land tenure.

Tenure by the family.

CHAPTER I.

OF THE EARLIER TENURES OF LAND.

Difference be- IT is well known that the system of land tenure which obtains in this country at the present day permits of land being, practically, the subject of absolute property; so that its owner may do as he pleases with it during his lifetime, and dispose of it unrestrictedly by a will to take effect after his death. But in the earlier systems from which our own is derived no such absolute proprietorship was recognized. If a tribe settled down on a tract of country, part of the land was distributed in lots amongst the families who composed the tribe, whilst the rest was allowed to remain uncultivated, and formed the common property of all. At first the portion allotted to each family did not belong to it absolutely, but might be taken from it with a view to a fresh distribution of the land amongst the various members of the State.1 In time, however, each family acquired a right to hold its lard in perpetuity, the management of the estate, and its ostensible ownership, belonging to the head of the family. But his interest in it did not extend beyond his own lifetime, and he had no power to prevent it from devolving on his descendants after his death. He had, therefore, that which we now call

1 See the account of Irish Gavelkind, 3 Hallam, Con. Hist. 458.