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messuage (10), toft (11), croft (12), or the like, nothing else will pass, except what falls with the utmost propriety under the term made use of (13); but by the name of land, What passes by

it.

the

(10) A messuage, in intendment of Doe v. Collins, 2 T. R. 502). And law, prima facie comprehends land, and when a man departs with a messuage it will be presumed that a curtilage, at cum pertinentiis, even by feoffment, or least, belongs thereto. (Scholes v. Har- other common law conveyance, not greaves, 5 T. R. 48. Hockley v. Lamb, only the buildings, but the curtilage 1 L. Raym. 726. Scamler v. Johnson, and garden (if any there be) will pass. T. Jones, 227. Patrick v. Lowre, 2 (Bettisworth's case, 2 Rep. 32. Hill Brownl. 101; it should be observed, v. Grange, 1 Plowd. 170 a; S. C. however, that North v. Coe, Vaugh. Dyer, 130 b). A fortiori, in a will, 253, is contra). Rights of common, although lands will not pass under the and even of several pasturage, may be word appurtenances, taken in its strict appurtenant to a messuage; (Potter v. technical sense; they will pass if it Sir Henry North, 1 Ventr. 390); or to appear that a larger sense was intended a cottage; (Emerton v. Selby, 1 L. to be given to it. (Buck v. Nurton, Raym. 1015); and where common is 1 Bos. & Pull. 57. Ongley v. Chambers, appurtenant, in right, to a tenement, 1 Bingh. 498. Press v. Parker, 2 it goes with the inheritance. (1 Bulst. Bingh. 462). 18). So, a garden may be said to be (11) “When land is built upon, parcel of a house, and by that name space occupied by the building changes will pass in a conveyance. Smith v. its name into that of a messuage. If the Martin, 2 Saund. 401 a. S. C. 3 Keb. building afterwards falls to decay, yet 44). It has also been held, that land it shall not have the name of land, may pass as pertaining to a house, if it although there be nothing in substance hath been occupied therewith for ten left but the land, but it shall be called or twelve years, for by that time it has a toft, which is a name superior to land gained the name of parcel or belong and inferior to messuage.” (Hill v. ing, and shall pass with the house in a Grange, 1 Plowd. 170). will or lease. (Higham v. Baker, Cro. (12) Croft, is a small inclosure near Eliz. 16. Wilson v. Armourer, T. to the homestead. Raym. 207. Loftes v. Barker, Palm. (13) So long as fines and recoveries 376). And by the devise of a messuage, were looked upon strictly as adversary a garden and the curtilage will pass, suits, it was held that a reputed manor, without saying cum pertinentiis. (Car- which was not a manor in truth, would den v. Tuck, Cro. Eliz. 89). For this not pass by the name of a manor in a purpose the word messuage seems for- fine or common recovery, though it merly to have been thought more effi- might in a conveyance, where the incacious than the word house. (Thomas tent of the parties would help the v. Lane, 2 Cha. Ca. 27. S. P. Keilway, inaccuracy of description. (Mallet v. 57).

But the subtilty of such a dis- Mallet, Cro. Eliz. 524). But since tinction has been since disapproved. fines and common recoveries have been

which is nomen generalissimum, every thing terrestrial will

pass (1).

(n) Co. Litt. 4, 5, 6.

assurances

looked upon as common

upon slight objections to the accuracy only, they will pass, under the word of description in the præcipe, that he manor, not only a reputed manor, but strongly said, “the consequences of also, where it is a manor indeed, lands these objections are great; they are not in fact parcel of the manor, but void of the least glimmering of common which are so reputed. (Thynne v. sense; and it would be attended with Thynne, 1 Lev. 28. Sir Moyle Finch's vast inconveniences to the public in 6 Rep. 67). Lord Mansfield

many cases, without a possibility of (in Massey v. Rice, Cowp. 349), was so doing good in any, if in common refully impressed with a sense of mis- coveries, which are a species of conveychief likely to result from allowing ance and common assurance, such nice a common recovery to be reversed, exceptions were to prevail.”

case,

20

CHAPTER III.

OF INCORPOREAL HEREDITAMENTS.

An incorporeal hereditament (1) is a right issuing out of Definition of a thing corporate (whether real or personal), or concerning, redicaments.

incorporeal he

(1) See ante, in note (6) to the last Incorporeal hereditaments may be chapter, Mr. Fearne's definition of in- conveyed either by grant, or by bargain corporcal hereditaments, which is ana- and sale; by covenant to stand seised, logous to that given by our author; the or by lease and release, for they are closeness of resemblance was to be ex- within the Statute of Uses, (27 Hen. pected, as both drew from the same VIII. c. 10), in construing which the original.

word hereditaments is to be understood It is to incorporeal hereditaments generally, not confining its operation to alone that prescription, using that word such as are corporeal. To make such in its strict sense as referring to im- conveyances valid, however, by aid of memorial usage, properly applies; (see the statute, the incorporeal hereditathis subject enlarged upon, post, in ments must be in actual existence at chap. 17, and the notes thereto); but the time, otherwise no use can arise; there is another kind of prescription, (Beaudeley v. Brook, Cro. Jac. 189); established by the statute law, which and where the conveyance is by grant, extends equally to corporeal heredita- the grant only operates on the estate ments, and by virtue of which an un- and interest of the grantor, and will interrupted possession for a certain pass no more than he is by law enabled number of years will give the posses- to convey. Consequently, if a tenant sor a good title, by taking away from in tail of a rent service, or a reversion all other persons the right of entering or remainder in tail, grants the same on such hereditaments, or of maintain- in fee, and dies, this is no discontinuing any action at law, or suit in equity, ance to the issue in tail. On the same for them. (See this subject exhausted, principle, a grant cannot occasion a in the arguments and judgment in the forfeiture; thus, if a tenant for life or great case of Cholmondeley v. Clinton, years of an advowson, rent, common, 2 Jac. & Walk. 1--206).

reversion or remainder of land, or other

a

or annexed to, or exercisable within, the same (a). It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto,

(a) Co. Litt. 19, 20.

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incorporeal hereditament, grants the for, whatever conveyance a tenant for same in fee, this is no forfeiture; be. life of a trust makes, he cannot decause nothing passes but that which stroy the contingent remainders vested lawfully may pass. (1 Inst. 251 b. in the trustees, he having no legal 327 b).

estate in him; and his conveyance, A particular estate, however, in any whatever be its nature, will only pass incorporeal hereditament, may be for what he can legally grant. A tenant feited by matter of record, amounting in tail of a trust may, it is true, bar to a clear renunciation of the feudal the remainders by a common recovery, connexion between the tenant and his but that is because he is really master lord. Thus, if a tenant for life, of any of the estate, and may call in the legal hereditament, corporeal or incorporeal, estate when he pleases, and have it levies a fine sur cognizance de droit executed to the trust; but a Court of come ceo, &c., this will operate a for- Equity will never execute the estate in feiture of his estate; if he accepts a fine law to a cestui que trust for life, to of the same kind from a stranger, this enable him to destroy the contingent will equally cause a forfeiture; for, by remainders. (Penhay v. Hurrell, 2 admitting the reversion to be in a Freem. 213. Lethieullier v. Tracy, stranger to convey, and hy accepting it ubi supra). himself to the prejudice of the person If the tenant for life of incorporeal in reversion, he unequivocally denies hereditaments suffers a common rethe tenure. (Margaret Poger's case, covery, wherein he is vouched, without 9 Rep. 106 b). And though the re- the concurrence of the person in reversion is not devested by a fine come mainder, this operates a forfeiture of ceo, levied by a tenant for life of an the estate for life, in the same manner advowson in gross, still the act works as a fine come ceo levied of the heredia forfeiture of the estate for life. taments would have done. Of course (Springe v. Sir Julius Cæsar, 1 Rolle's the same rule applies to corporeal hereAbr. 852). But, a fine sur concessit ditaments. (Pelham's case, 1 Rep. 15). has not the same effect; for a fine of So, if the tenant of a particular esthis description only transfers such an tate in hereditaments, is a party to any interest as the tenant for life may law. act in a court of record, whether as fully pass. (Pigott v. Earl of Salisbury, plaintiff or defendant, which act, either T. Jones, 69. Lethieullier v. Tracy, expressly or virtually, amounts to a 3 Atk. 729, 730). And even a fine denial of his tenure, he will incur a come ceo, &c., levied by a cestui que forfeiture. (Co. Litt. 251 b, 252 a. trust for life, will not cause a forfeiture; 1 Roll. Abr. 851–858). (Whetstone v. Bury, 2 P. Wms. 147);

as a rent issuing out of those lands or houses, or an office relating to those jewels. In short, as the logicians speak, corporeal hereditaments are the substance, which may be always seen, always handled: incorporeal hereditaments are but a sort of accidents, which inhere in and are supported by that substance; and may belong, or not belong to it, without any visible alteration therein. Their existence is

. merely in idea and abstracted contemplation; though their effects and profits may be frequently objects of our bodily senses. And, indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing, or hereditament, which produces them. An annuity, for instance, is an incorporeal hereditament (2): for though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand. So tithes, if we consider the pro*duce of them, as the tenth sheaf or [ *21 ] tenth lamb, seem to be completely corporeal; yet they are indeed incorporeal hereditaments: for they being merely a contingent springing right, collateral to or issuing out of lands, can never be the object of sense: that casual share of the annual increase is not, till severed, capable of being shewn to the eye, nor of being delivered into bodily possession.

Incorporeal hereditaments are principally of ten sorts: They are prinadvowsons, tithes, commons, ways, offices, dignities, fran- cipally of ten chises, corodies or pensions, annuities, and rents.

I. Advowson (3) is the right of presentation to a church, I. Advowsons.

sorts;

(2) Of course, our author meant to reference to some subject which is speak of an annuity granted to a man matter of inheritance. (Smith v. Tindal, and his heirs; not of an annuity for 11 Mod. 90). life, which in no sense of the word can (3) Our author's account of the oribe called an hereditament. The word gin and nature of advowsons is, (so far is, no doubt, often inserted in grants as he here goes into the subject,) in for life or years, but then it is only with conformity with that given in Gibson's

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