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THE objects of dominion or property are things, as contra- The objects of distinguished from persons: and things are by the law of property. England distributed into two kinds; things real and things personal. Things real are such as are permanent (1), fixed, Real. and immoveable, which cannot be carried out of their place;

as lands and tenements: things personal are goods, money, Personal. and all other moveables; which may attend the owner's person wherever he thinks proper to go (2).

(1) Mr. Preston, referring to the passage in the text, says, "In the language of Mr. Justice Blackstone, nothing is a tenement which is not of a permanent nature. The term, whether applied to the subject or the interest therein, is equally vague; perhaps it is not too much to add, erroneous. rent-charge is not, in any respect, necessarily more permanent than an annuity; yet one is a tenement, and the other is not. These contrasted examples prove, that the epithet may be omitted, and that the definition which excludes it will, if not more certain and precise, be at least open to less objection." (Essay on Est., part 1, p. 10).

(2) When he comes to the 24th chapter of this volume, the reader will be taught, by Blackstone himself, that the definition of things personal, which is given in the text above, is inaccurate. He will learn, that "things personal, by our law, do not only include things A moveable, but also something more: the whole of which is comprehended under the general name of chattels. The idea of goods, or moveables only, is not sufficiently comprehensive to take in every thing that the law considers a chattel interest. For, there are two requisites to make a fief or heritage: duration as to time, and immobility with regard to place; whatever wants

Things real are



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In treating of things real, let us consider, first, their several sorts or kinds; secondly, the tenures by which they may be holden; thirdly, the estates which may be had in them; and, fourthly, the title to them, and the manner of acquiring and losing it.

First, with regard to their several sorts or kinds, things real are usually said to consist in lands, tenements, or hereditaments. Land comprehends all things of a permanent, substantial nature; being a word of a very extensive signification (3), as will presently appear more at large. Tenement is a word of still greater extent, and though in its vulgar accep*tation it is only applied to houses and other buildings, yet in its original, proper, and legal sense, it signifies every thing that may be holden, provided it be of a permanent (4) nature; whether it be of a substantial and sensible, or of an unsubstantial ideal kind. Thus liberum tenementum, frank tenement, or freehold, is applicable not only to lands and other solid objects, but also to offices, rents, commons, and the like (a): and, as lands and houses are tenements, so is an advowson a tenement (5); and a franchise, (a) Co. Litt. 6.

either of these qualities is not, accord-
ing to the Normans, an heritage or fief,
or, according to us, is not a real estate:
the consequence of which in both laws
is, that it must be a personal estate."
Our author then proceeds to distribute
chattels into two kinds; chattels real,
and chattels personal. The latter, only,
it will be seen, come strictly within the
definition given above; the former, as
comprising interests which, though less
than freehold, are issuing out of land,
acquire their character of personalty,
not from their mobility, but from their
determinate duration. This subject is
also touched upon, post, in chapter 9.

(3) Whatever may be the subject of

a feoffment, and lies in livery, is a corporeal hereditament, in other words, land. (Prest. on Est. 1, p. 8, citing Shep. Touch. 202, 209).

(4) See supra, note (1).

(5) In the case of Hopewell v. Ackland, as reported in 1 Salk. 238, Trevor, C. J., is represented to have said, that "advowsons in gross are not comprised in the words lands and tenements." This dictum, however, does not appear in the report of the same case, in Comyns, 168, though it certainly was cited, without any expression of disapprobation, in Pocock v. The Bishop of Lincoln, 3 Brod. & Bing. 47; and in Kensey v. Langham, Cases temp. Talb. 144, Lord

an office, a right of common, a peerage, or other property of the like unsubstantial kind, are, all of them, legally speaking, tenements (b). But an hereditament, says Sir Edward Coke (c), is by much the largest and most comprehensive expression; for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal, or incorporeal, real, personal, or mixed. Thus, an heir-loom, or implement of furniture, which by custom descends to the heir together with an house, is neither land, nor tenement, but a mere moveable; yet, being inheritable, is comprised under the general word hereditament: and so a condition,

(b) Co. Litt. 19, 20.

Chancellor Talbot said, "he was not clear that the word tenement did extend to such incorporeal hereditaments as advowsons:" but his Lordship by no means gave a decisive opinion on the subject; on the contrary, he said, "he did not think it necessary to enter it at that time." The true ground, however, on which the judgment in Kensey v. Langham proceeded, was, that the advowson did not pass, under the words of the will in that case, only because what was given to the trustees was given to raise money, and none could be raised from a void church. This is so stated in the recent case of Gully v. The Bishop of Exeter, 4 Bing. 297, in which all the previous leading authorities are considered; and, by the result, it seems to be satisfactorily established, that an advowson in gross will pass in a will under the word tenement: it follows, a fortiori, that an advowson appendant to a manor lies strictly in tenure. The extra-judicial dictum in Hopewell v. Ackland, and the equally unnecessary declaration of uncertainty upon the subject expressed in Kensey v. Langham, cannot have any weight, when opposed

(c) 1 Inst. 6.

to the numberless cases (many of which are adverted to in Rennell v. The Bishop of Lincoln, 3 Bing. 233, and 7 Barn. & Cress. 147) in which parties are judicially declared to be seised as in fee, or in tail, of an advowson: for "seisin is a technical term, to denote the completion of that investiture, by which the tenant was admitted into the tenure.” (Per Lord Mansfield, in Taylor on dem. Atkyns v. Horde, 1 Bur. 107).

Till the church becomes void, it is impossible, certainly, to acquire any thing more than a seisin in law of an advowson; but, presentation to the church, when it is void, is allowed to be equivalent to a corporeal seisin of the land. (1 Inst. 29 a). An advowson, then, is a tenement, of which seisin may be had, but which does not lie in livery, and of which, therefore, per se, a feoffment cannot be made; (1 Inst. 49 a); but which properly lies in grant. (1 Inst. 172 a). However, when an advowson is appendant to a manor, any feoffment which will pass the principal subject may, together with it, pass the acces sory. (Martel's case, Jenk. Cent. 265, pl. 68, and Touch. 92).

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Hereditaments are of two kinds, corporeal and incorporeal.

the benefit of which may descend to a man from his ancestor, is also an hereditament (d).

Hereditaments then, to use the largest expression, are of two kinds, corporeal and incorporeal (6). Corporeal con(d) 3 Rep. 2.

(6) Mr. Fearne, in his learned "Reading on the Statute of Inrolments," (27 Hen. VIII. c. 16), observes, “the word hereditaments, in our law, though applicable both to real and to personal property, applies to the two species of things in a different mode or degree of relation. When applied to things real, it generally denotes the things themselves which are the subjects of property, without regard to the nature or extent of property therein; but when used in relation to personal things, the word hereditaments does not import or signify the things themselves, but is only applicable to them in respect of some inheritable right, of which they are in some mode or other the subject. Of a nature in some measure intermediate between the two already noticed, there is a third application of the word hereditaments, wherein it is used to denote inheritable rights respecting lands, or something issuing therefrom, or exercisable therein, or having at least some local connection or relation separate and distinct from the enjoyment of the lands themselves. Hence we obtain the division of hereditaments into real, per sonal, and mixed. Besides this distribution, there is another general division of hereditaments into corporeal and incorporeal. The first description is confined to those subjects of property which are comprised under the denomination of things real. Incorporeal hereditaments are such as derive the denomina

tion of hereditaments, not from the things themselves, but from the inheritable rights of which they are the subject: for rights are of an incorporeal nature.

Incorporeal hereditaments therefore comprise the two divisions of mixed and personal hereditaments already noticed, and under the same description I would include such real hereditaments as consist of rights to the future enjoyment of lands, divided from the present possession; for though corporeal hereditaments are their subject, yet, whilst the rights remain distinct from the right of actual possession, I see nothing substantial in their nature; on the contrary, they seem clearly to fall within that predicament which I take to be the criterion of an incorporeal inheritance, tangi non potest, nec videri. There are also other properties common to them with other estates, which are universally arranged in the class of incorporeal inheritances; for instance, they do not lie in livery, and cannot be transferred without deed, except in some special instances, similar to some of those in which corporeal inheritances may be passed at common law, without livery of seisin."

It is proper to add, that one of the opinions held by Mr. Fearne in the work from which the above quotations are taken, has been controverted; (in 2 Prest. on Abst. 85, in 2 Saund. on Uses, 38, and in Sugden's note to Gilb. on Uses, 226); the objection, however,

sist of such as affect the senses; such as may

be seen and handled by the body: incorporeal are not the object of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation.

ditaments con

sist wholly of

permanent ob


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What is comthe term prehended in


Corporeal hereditaments consist wholly of substantial Corporeal hereand permanent objects; all which may be comprehended under the general denomination of land only. For land, substantial and says Sir Edward Coke (e), comprehendeth in its legal signification any ground, soil, or earth whatsoever (7); as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath. *It legally includeth also all castles, houses, and other buildings; for they consist, saith he, of two things; land, which is the foundation, and structure thereupon: so that, if I convey the land or ground, the structure or building passeth therewith. It is observable that water is here mentioned as a species of land, which may seem a kind of solecism; but such is the language of the law: and therefore I cannot bring an action to recover possession of a pool or other piece of water by the name of water only; either by calculating its capacity, as, for so many cubical yards; or, by superficial measure, for twenty acres of water; or by general description, as for a pond, a watercourse, or a rivulet: but I must bring my action for the land that lies at the bottom, and must call it twenty acres of land covered with water (f). For water is a moveable wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, usu(e) 1 Inst. 4. (f) Brownl. 142.

does not at all apply to any of the pas- strictly taken, only signifies arable land. sages here cited.

Mr. Fearne's criterion of an incorporeal hereditament, he adopted from Lord Coke's 1st Instit. 9 a. And see our author's account of the same subject, in the chapter next following.

(7) Mr. Cruise, (in his Dig. 4, tit. 32, ch. 20, p. 321), says, "the word land,

For in every antient præcipe we con-
stantly find the words, terra, pratum,
et pastura-land, meadow, and pasture.
(And see Silly v. Silly, 1 Vent. 260.)
But this confined meaning of the word
land was only adopted when used in
a præcipe in an adversary suit."

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