ANALYSIS. BOOK II. OF THE RIGHTS OF THINGS. CHAPTER I. OF PROPERTY IN GENERAL... ......... Page 2 to 14 1. All dominion over external objects has its original from the gift of the Creator to man in general..... 2 3 2. The substance of things was, at first, common to all mankind; yet a temporary property in the use of them might even then be acquired and continued by occupancy. 8. In process of time a permanent property was established in the substance, as well as the use, of things; which was also originally acquired by occupancy only....... 4, 5 4 Lest this property should determine by the owner's dereliction, or death, whereby the thing would again become common, societies have established conveyances, wills, and heirships, in order to continue the property of the first occupant; and where, by accident, such property becomes discontinued or unknown, the thing usually results to the sovereign of the state, by virtue of the municipal law....... 5. But of some things, which are incapable of permanent substantial dominion, there still subsists only the same transient usufructuary property which originally subsisted in all things... ....9-11 CHAPTER II. 14 16 OF REAL PROPERTY; AND, 1st. OF CORPOREAL HEREDITAMENTS......16 to 18 1 In this property, or exclusive dominion, consist the rights of things; which are, I. Things real. II. Things personal...... 2. In things real may be considered, I. Their several kinds. II. The tenures by which they may be holden. III. The estates which may be acquired therein. IV. Their title, or the means of acquiring and losing them..... 8. All the several kinds of things real are reducible to one of these three, viz. lands, tenements, or hereditaments: whereof the second includes the first, and the third includes the first and 1. Hereditaments, therefore, or whatever may come to be inherited, (being the most comprehensive denomination of things real,) are either corporeal or incorporeal. Corporeal hereditaments consist wholly of lands, in their largest legal sense; wherein they include not only the face of the earth, but every other object of Mense adjoining thereto, and subsisting either above or beneath it......... CHAPTER III. OF INCORPOREAL HEREDITAMENTS... Page 201: 1. Incorporeal hereditaments are rights issuing out of things corporeal, or concerning, or annexed to, or exercisable within, the same................................................ 2. Incorporeal hereditaments are, I. AdVowsons. II. Tithes. III. Commons. tive 20 IV. Ways. V. Offices. VI. Dignities. VII. Franchises. VIII. Corodies or pensions. IX. Annuities. X. Rents........21-41 3. An advowson is a right of presentation to an ecclesiastical benefice; either appendant, or in gross. This may be, I. Presentative. II. Collative. III. Dona.......21-23 4. Tithes are the tenth part of the increase yearly arising from the profits and stock of lands and the personal industry of mankind. These, by the ancient and positive law of the land, are due of common right to the parson, or (by endowment) to the vicar; unless specially discharged, I. By real composition. II. By prescription, either de modo decimandi, or de non decimando .24-81 16 16 17 ..17, 18 2. Pure and proper feuds were parcels of land allotted by a chief to his followers; to be held on the condition of personally rendering due military service to their lord......... .............. Page 45 3. These were granted by investiture; were held under the bond of fealty; were inheritable only by descendants, and could not be transferred without the mutual consent of the lord and vassal............53-57 4. Improper feuds were derived from the other, but differed from them in their original, their services and renders, their descent, and other circumstances.. b. The lands of England were converted into feuds, of the improper kind, soon after the Norman conquest: which gave rise to the grand maxim of tenure; viz. that all lands in the kingdom are holden, mediately or immediately, of the king...48-53 CHAPTER V. OF THE ANCIENT ENGLISH TENURES.. 58 61 to 77 . The distinction of tenures consisted in the nature of their services: as, I. Chivalry, or knight-service; where the service was free, but uncertain. II. Free Bocage; where the service was free, and certain. III. Pure villenage; where the service was base, and uncertain. IV. Privileged villenage, or villein socage; where the service was base, but certain 61-78 2. The most universal ancient tenure was that in chivalry, or by knight-service; in which the tenant of every knight's fee was bound, if called upon, to attend his lord to the wars. This was granted by livery, and perfected by homage and fealty; which usually drew after them suit of court........... 8. The other fruits and consequences of the tenure by knight-service were, I. Aid. II. Relief. III. Primer seisin. IV. Ward of court; subject to relief, to wardship, and to escheat, but not to marriage; subject also formerly to aids, primer seisin, and fines for alienation............... Page 86-89 4. Pure villenage was a precarious and slavish tenure, at the absolute will of the lord, upon uncertain services of the basest nature.. 5. From hence, by tacit consent or encroachment, have arisen the modern copyholds, or tenure by copy of courtroll; in which lands may be still held at the (nominal) will of the lord, (but regulated) according to the custom of the manor. 6. These are subject, like socage lands, to services, relief, and escheat; and also to heriots, wardship, and fines upon descent and alienation... 98 99 95 97 7. Privileged villenage, or villein socage, is an exalted species of copyhold tenure, upon base but certain services; subsisting only in the ancient demesnes of the crown; whence the tenure is denominated the tenure in ancient demesne..... ...... 99 8. These copyholds of ancient demesne have divers immunities annexed to their tenure; but are still held by copy of court-roll, according to the custom of the manor, though not at the will of the lord... 9. Frankalmoign is a tenure by spiritual services at large; whereby many ecclesiastical and eleemosynary corporations now hold their lands and tenements: being of a nature distinct from tenure by divine service in certain.... CHAPTER VII. 62 OF FREEHOLD ESTATES OF INHERITANCE... 100 101 74 3. A freehold estate, in lands, is such as is created by livery of seisin at common law; or, in tenements of an incorporeal nature, by what is equivalent thereto..... 104 4. Freehold estates are either estates of inheritance, or not of inheritance, viz. for life only: and inheritances are, I. Absolute, or fee-simple. II. Limited fees.. 77 CHAPTER VI. 104 Page 110 8. Conditional fees, at the common law, were such as were granted to the donee, and the heirs of his body, in exclusion of collateral heirs...... 9. These were held to be fees, granted on condition that the donee had issue of his body; which condition being once performed by the birth of issue, the donee might immediately aliene the land; but, the statute de donis being made to prevent such alienation, thereupon, from the division of the fee (by construction of this statute) into a particular estate and reversion, the conditional fees began to be called fees-tail. ........................................ 111, 112 10. All tenements real, or savouring of the realty, are subject to entails.... ...... 113 11. Estates-tail may be, I. general, or special; II. male, or female; III. given in frank-marriage......... ... 113-115 12. Incident to estates-tail are, I. Waste. II. Dower. III. Curtesy. IV. Bar,-by fine, recovery, or lineal warranty with assets....... 13. Estates-tail are now, by many statutes and resolutions of the courts, almost brought back to the state of conditional fees at the common law.. CHAPTER VIII. 115 117 OF ESTATES LESS THAN FREEHOLD...140 to 150 1. Estates less than freehold are, I. Estates for years. II. Estates at will. III. Estates at sufferance..... ............. 140-150 2. An estate for years is where a man, seised of lands and tenements, letteth them to another for a certain period of time, which transfers the interest of the term; and the lessee enters thereon, which gives him possession of the term, but not legal seisin of the land............. 140 3. Incident to this estate are est overs; and also emblements, if it determines before the full end of the term.................... 144-46 4. An estate at will is where lands are let by one man to another, to hold at the will of both parties, and the lessee enters thereon... 5. Copyholds are estates held at the will of the lord, (regulated) according to the custom of the manor........ 6. An estate at sufferance is where one comes into possession of land by lawful title, but keeps it afterwards without any title at all.... CHAPTER X. ........... ...... 140 14/ 150 OF ESTATES UPON CONDITION..... ..152 to 16] 1. Estates (whether freehold or otherwise) may also be held upon condition; in which case their existence depends on the happening, or not happening, of some uncertain event. 152 4. Estates on condition expressed are where an express qualification or provision is annexed to the grant of an estate.......... 154 5. On the performance of these conditions, either expressed or implied, (if precedent,) the estate may be vested or enlarged, or, on the breach of them, (if subsequent,) an estate already vested may be defeated. '54-56 6. Estates in gage, in vadio. or in pledge, are estates granted as a security for money lent; being, I. In vivo radio, or living gage; where the profits of land are granted till a debt be paid, upon which payment the grantor's estate will revive II In mortuo vadio, in dead or mort gage; where an estate is granted en condition to be void at a day certain if the grantor then repays the money borrowed; on failure of which, the estate becomes absolutely dead to the grantor... .... Page 157 1. Estates by statute merchant or statute staple are also estates conveyed to creditors, in pursuance of certain statutes, till their profits shall discharge the debt 160 Estates by elegit are where, in consequence of a judicial writ so called, lands are delivered by the sheriff to a plaintiff till their profits shall satisfy a debt adjudged to be due by law.... CHAPTER XI. UP ESTATES IN POSSESSION, REMAINDER, AND REVERSION........... 161 163 to 177 4 Remainders are, I. Vested-where the estate is fixed to remain to a certain person after the particular estate is spent. II. Contingent-where the estate is limited to take effect, either to an uncertain person, or upon an uncertain event...... An executory devise is such a disposition of lands, by will, that an estate shall not vest thereby at the death of the devisor, but only upon some future contingency; and without any precedent particular estate to support it....... 6. A reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted; to which are incident fealty, and rent....... Where two estates, the one less, the other greater, the one in possession, the other in expectancy, meet together in one and the same person and in one and the same right, the less is merged in the greater................................................ CHAPTER XII. 172 176 177 OF ESTATES IN SEVERALTY, JOINT-TENANCY, COPARCENARY, AND COMMON........... 179 to 195 : Estates, with respect to the number and connections of their tenants, may be held, I. In severalty. II. In joint-tenancy. III In coparcenary. IV. In common.... 179 2. An estate in severalty is where one tenant holds it in his own sole right, without any other person being joined with him... Page 179 3. An estate in joint-tenancy is where an estate is granted to two or more persons; in which case the law construes them to be joint-tenants, unless the words of the grant expressly exclude such construction 186 4. Joint-tenants have a unity of interest, of title, of time, and of possession: they are seised per my et per tout: and therefore, upon the decease of one jointtenant, the whole interest remains to the survivor.................................... .... 182 5. Joint-tenancy may be dissolved, by destroying one of its four constituent unities 185 6. An estate in coparcenary is where an estate of inheritance descends from the ancestor to two or more persons; who are called parceners, and all together make but one heir... 187 7. Parceners have a unity of interest, title, and possession; but are only seised per my, and not per tout: wherefore there is no survivorship among parceners.......... 188 8. Incident to this estate is the law of hotchpot.......... 190 9. Coparcenary may also be dissolved by destroying any of its three constituent unities .......... 191 10. An estate in common is where two or more persons hold lands, possibly by distinct titles, and for distinct interests, but by unity of possession, because none knoweth his own severalty...... 11. Tenants in common have therefore a unity of possession, (without survivorship; being seised per my, and not per tout,) but no necessary unity of title, time, or interest....... 12. This estate may be created, I. By dissolving the constituent unities of the two former: II. By express limitation in a grant; and may be destroyed, I. By uniting the several titles in one tenant; II. By partition of the land......... CHAPTER XIII. 191 191 191-194 |