being expressly mentioned: the property in the deeds passes out of the vendor to the purchaser simply by the grant of the land itself (b). In like manner a devise of lands by will entitles the devisee to the possession of the deeds; and if a tenant in fee simple should die intestate, the title deeds of his lands will descend along with them to his heir at law (c). In former times, when warranty was usually made on the conveyance of lands (d), the rule was that the feoffor should retain all deeds containing warranties made to himself or to those through whom he claimed, and also all such deeds as were material for the maintenance of the title to the land (e). But if the feoffment was made without any warranty, the feoffee was entitled to the whole of the deeds; for the feoffor could receive no benefit by keeping them, nor sustain any damage by delivering them (f). Warranties have now fallen into disuse; but the principle of the rule above stated still applies when the grantor has any other lands to which the deeds relate, or retains any legal interest in the lands conveyed; for in either of these cases he has still a right to retain the deeds (g). And if the grantor should retain merely an equitable right to redeem the lands, as in the case of a mortgage in fee simple, it has been said that this equitable right is a sufficient interest in the lands to authorize him to withhold the deeds, unless they are expressly granted to the mortgagee (h). It is very questionable, however, whether a legal right ought to be attached to an interest (b) Harrington v. Price, 3 Barn. & Adol. 170; Philips v. Robinson, 4 Bing. 106; S. C. 12 Moore, 308. (c) Wentworth's Office of an Executor, 14th ed. 153; Williams on Executors, pt. 2, book 2, c. 3, s. 3. (d) See Principles of the Law of Real Property, 344, 1st ed.; 346, 2nd ed.; 365, 4th ed.; 376, 5th ed.; 399, 6th ed.; 407, 7th ed. (e) Buckhurst's case, 1 Rep. 1 b. (f) 1 Rep. 1 a. (g) Bro. Abr. tit. Charters de Terre, pl. 53; Yea v. Field, 2 T. Rep. 708; see however Sugd. Vend. & Pur. 367, 13th ed.; 2 Prest. Conv. 466. (h) Davies v. Vernon, 6 Q. B. 443, 447. merely equitable. And the doctrine last mentioned is opposed by more recent decisions in another court (i). veyance is by If a conveyance of lands should be made by way of When the conuse, thus, if lands should be granted to A. and his heirs, way of use. to the use of B. and his heirs, it has been said that the title deeds of the land will belong to A., the grantee; because, although the Statute of Uses (k) conveys the legal estate in the lands from A. to B., it does not affect the title deeds, which must consequently still remain vested in A. (1). But this doctrine has been justly questioned, on the ground that the legislative conveyance from A. to B., effected by the Statute of Uses, ought to be at least as powerful as the common law conveyance of the lands to A.; and if the latter conveyance can carry with it the deeds relating to the land, the former conveyance should be considered as powerful enough to do the same (m); and it has accordingly been so decided in a case in Ireland (n). The tenant of an estate in fee simple in lands possesses the highest interest which the law of England allows to any subject; and such a tenant possesses also an absolute property in the title deeds, which he may destroy at his pleasure, or sell for the value of the parchment (o). But if the lands to which deeds relate should When the be settled on any person for life or in tail, a qualified settled. ownership will arise with respect to the deeds, different in its nature from that simple property which is usually held in chattels personal. As the lands are now held for a limited estate, so a limited interest in the deeds belongs to the tenant. The tenant for life or in tail, (i) Goode v. Burton, 1 Exch. Rep. 189; Newton v. Beck, 3 H. & N. 220. (k) 27 Hen. VIII. c. 10. (7) 1 Sand. Uses, 4th ed. 119; 5th ed. 117. (m) Sugd. Vend. & Pur. 366, 13th ed.; Co. Litt. 6 a, n. (4). (n) Malone v. Minoughan, 14 Ir. Com. Law Rep. 540, dissentiente Hayes, J. (0) Cro. Eliz. 496. lands are Heir-looms. when in possession of the lands, being the freeholder for the time being, is entitled also to the possession of the deeds (p); whereas the tenant for a mere term of years, of whatever length, not having the freehold or feudal possession of the lands, has no right to deeds which relate to such freehold (q); although deeds relating only to the term belong to such a tenant, and will pass, without any express grant, to the assignee of the term (r). The tenant for life or in tail in possession, though entitled to the possession or custody of the deeds which relate to the inheritance, has no right to injure or part with them (s): he has an interest in the title deeds correspondent only to his estate in the lands; and if he should part with the deeds, even for a valuable consideration, the remainder-man, on coming into possession of the lands, will nevertheless be entitled to the possession of the deeds, just as if the tenant for life or in tail had kept them in his own custody (t). Heir-looms, strictly so called, are now very seldom to be met with. They may be defined to be such personal chattels as go, by force of a special custom, to the heir, along with the inheritance, and not to the executor or administrator of the last owner (u). The owner of an heir-loom cannot by his will bequeath the heir-loom, if he leave the land to descend to his heir; for in such a case the force of the custom will prevail over the bequest, which, not coming into operation until after the (p) Ford v. Peering, 1 Ves. jun. 76; Strode v. Blackburne, 3 Ves. 225; Garner v. Hannyngton, 22 Beav. 627; Allwood v. Heywood, Exch. 11 W. R. 291; 1 Hurlst. & Colt. 745. (q) Churchill v. Small, 8 Ves. 323; Harper v. Faulder, 4 Mad. 129, 138; Wiseman v. Westland, 1 You. & Jerv. 117; Hotham v. Somerville, 5 Beav. 360. (r) Hooper v. Ramsbottom, 6 Taunt. 12. (s) Bro. Abr. tit. Charters de Terre, pl. 36. As to production see Davis v. Earl of Dysart, 20 Beav. 405. (t) Davies v. Vernon, 6 Q. B. 443; Easton v. London, Exch. 12 W. R. 53. (u) See Co. Litt. 18 b. decease of the owner, is too late to supersede the custom (x). According to some authorities heir-looms consist only of bulky articles, such as tables and benches fixed to the freehold (y); but such articles would more properly fall within the class of fixtures, of which we shall next speak. The ancient jewels of the crown are Crown jewels. heir-looms (z). And if a nobleman, knight or esquire be buried in a church, and his coat armour or other ensigns Coat armour. of honor belonging to his degree be set up, or if a tomb- Tombstone. stone be erected to his memory, his heirs may maintain an action against any person who may take or deface them (a). The boxes in which the title deeds of land Deed boxes. are kept are also in the nature of heir-looms, and will belong to the heir or devisee of the lands; for such boxes "have their very creation to be the houses or habitations of deeds" (b); and accordingly a chest made for other uses will belong to the executor or administrator of the deceased, although title deeds should happen to be found in it. In popular language the term Popular use of "heir-loom" is generally applied to plate, pictures or "heir-loom." articles of property which have been assigned by deed of settlement or bequeathed by will to trustees, in trust to permit the same to be used and enjoyed by the persons for the time being in possession, under the settlement or will, of the mansion-house in which the articles may be placed. Of this kind of settlement more will be said hereafter. the term Fixtures are such moveable articles or chattels per- Fixtures. sonal as are fixed to the ground or soil, either directly, or indirectly by being attached to a house or other building. The ancient common law, regarding land as of far more consequence than any chattel which could (a) Co. Litt. 185 b. (y) Spelman's Glossary, voce Heir-Loom. See Williams on Executors, pt. 2, bk. 2, ch. 2, s. 3. (z) Co. Litt. 18 b. (b) Wentworth's Office of an New act. be fixed to it, always considered everything attached to the land as part of the land itself,-the maxim being quicquid plantatur solo, solo cedit (c). Hence it followed that houses themselves, which consist of aggregates of chattels personal (namely, timber and bricks) fixed to the land, were regarded as land, and passed by a conveyance of the land without the necessity of express mention; and this is the case at the present day (d). So now, a conveyance of a house or other building, whether absolutely or by way of mortgage, will comprise all ordinary fixtures, such as stoves, grates, shelves, locks, &c., without any express mention (e), unless an intention to withhold the fixtures can be gathered from the context (f). So on the decease of a tenant in fee simple, the devisee of a house, or the heir at law in case of intestacy, will be entitled generally to the fixtures set up in it (g). The ancient rule respecting fixtures has been greatly relaxed in favour of tenants for terms of years, who are now permitted to remove articles set up by them for the purposes of trade or of ornament or domestic convenience (h), provided they remove them before the expiration of their tenancy (i). But the old rule still prevails with regard to agricultural fixtures, which, though set up by the tenant, become, by being fixed to the soil, the property of the landlord (k); unless they (c) See 4 Rep. 64 a; 1 Lord Raymond, 738; Mackintosh v. Trotter, 3 Mee. & Wels. 184, 186; Williams on Executors, pt. 2, bk. 2, ch. 3, s. 2. (d) See Principles of the Law of Real Property, 13. (e) Colegrave v. Dias Santos, 2 Barn. & Cress. 76; S. C. 3 Dowl. & Ry. 255; Longstaff v. Meagoe, 2 Ad. & Ell. 167; Hitchman v. Walton, 4 Mee. & Wels. 409; Ex parte Barclay, 5 De G., M. & G. 403; Mather v. Fraser, 2 Kay & John. 536; Williams v. Evans, 23 Beav. 239; Walmesley v. Milne, 7 C. B. N. S. 115; Metropolitan Counties &c. Society v. Brown, 26 Beav. 454. (f) Hare v. Horton, 5 Baru. & Adol. 715. (g) Shep. Touch. 470. (h) Grymes v. Boweren, 6 Bing. 437. (i) Lyde v. Russell, 1 Barn. & Adol. 394; Leader v. Homewood, 5 C. B. N. S. 546. (k) Elwes v. Mar, 3 East, 38. |