1911 Encyclopædia Britannica/Real Property

REAL PROPERTY. The land law of England and of countries whose law is based upon that of England stands in peculiar position, which can be understood only by an outline of its history.

History.—Such terms as “fee” or “homage” carry us back into feudal times. Rights of common and distress are based upon still older institutions, forming the very basis of primitive law. The conception of tenure is the fundamental ground of distinction between real and personal estate, the former only being strictly entitled to the name of estate (q.v.). The division into real and personal is coincident to a great extent with that into immovable and movable, generally used by systems of law founded on the Roman (see Personal Property.) That it is not entirely coincident is due to the influence of the Roman law itself. The Greeks and the Romans of the republic were essentially nations of citizens; the Teutons were essentially a nation of land-folk; the Roman empire bridged the gulf between the two. It is probable that the English land law was produced by the action of the policy adopted in the lower empire, finally developed into feudalism, upon the previously existing course of Teutonic custom. The distinguishing features of the Teutonic system were enjoyment in common and the absence of private ownership, except to a limited extent. The principal features of the old English land law before the Conquest, from which the modern law has developed, were (1) liberty of alienation, either by will or inter vivos, of such land as could be alienated, chiefly, if not entirely, bocland, subject always to the limits fixed by the boc; (2) publicity of transfer by enrolment in the shire-book or church-book; (3) equal partition of the estate of a deceased among the sons, and failing sons among the daughters; (4) cultivation to a great extent by persons in various degrees of serfdom, owing money or labour rents; (5) variety of custom, tending to become uniform, through the application of the same principles in the local courts; (6) subjection of land to the trinoda necessitas, a burden imposed for the purpose of defence of the realm. The rudiments of the conceptions of tenure and of the crown as lord paramount were found in the old English system, and lænland was an anticipation of the limited interests which afterwards became of such importance.^[1] The connexion of political privileges with the ownership of land is not peculiar to the pre-Conquest or any other period. It runs through the whole of English history.

The elements of feudalism so far existed in England under the Anglo-Saxon and Danish kings as to make it easy to introduce it in full at the Norman Conquest. What the Norman Conquest did was not to change all at once allodial into feudal tenure, but to complete the association of territorial with personal dependence in a state of society already prepared for it.^[2] “Nulle terre sans seigneur” was one of the fundamental axioms of feudalism. There might be any number of infeudations and subinfeudations to mesne lords, but the chain of seignior was complete, depending in the last resort upon the king as lord paramount. Land was not owned by free owners owing only necessary militia duties to the state, but was held of the king by military service of a more onerous nature. The folkland became the king's land; the soldier was a landowner instead of the landowner being a soldier. Free owners tended to become tenants of the lord, the township to be lost in the manor.^[3] The common land became in law the waste of the manor, its enjoyment resting upon a presumed grant by the lord. On the other hand, the whole of England did not become manorial; the conflict between the township and the manor resulted in a. compromise, the result of which aftfects English tenure to this day. But it was a compromise much to the advantage of the privileged class, for in England more than in any other country the land law is the law of the nobility and not of the people. One reason of this is that, as England was never so completely feudalized as were some of the European continental states, the burden of feudalism was not so severely felt, and has led to less agitation for reform.

The land forfeited to the Conqueror was regranted by him to be held by military service due to the king, not to the mesne lord as in European continental feudalism. In 1086 at the council of Salisbury all the landholders swore fealty to the crown. In the full vigour of feudalism the inhabitants of England were either free or not free. The free inhabitants held their lands either by free tenure (liberum tenementum, franktenement) or by a tenure which was originally that of a non-free inhabitant, but attached to land in the possession of a free man. Franktenement was either military tenure, called also tenure in knight service or chivalry (including barony, the highest tenure known to the law, grand serjeanty and the special forms of escuage, castle-guard, cornage and others) or socage (including burgage and petit serjeanty), or frankalmoign (libera eleemosyna) or divine service, by which ecclesiastical corporations generally held their land.^[4] The non-free inhabitants were in Domesday Book servi, cotarii or bordarti, later natiiri or vtllani, the last name being applied to both free men and serfs. All these were in a more or less dependent condition. The free tenures all exist at the present day, though, as will appear later, the military tenures have shrunk into the unimportant and exceptional tenure of grand serjeanty. The non-free tenures are to a certain extent represented by copyhold. The most important difference between the military and socage tenures was the mode of descent. Whether or not a feudal benefice was originally hereditary, it had certainly become so at the time of the Conquest, and it descended to the eldest son. This applied at once in England to land held by military service as far as regarded the capital fief. The descent of socage lands or lands other than the- capital fief for some time followed the old pre-Conquest rule of descent. Thus in the socalled “ Laws of Henry I.” the lands other than the capital lief, and in Glanvill, who wrote in the time of Henry II., socage lands, if anciently partible (antiquitus divisum), were divided among all the sons equally. But by the time of Bracton (Henry III.) the course of descent of lands held by military service had so far prevailed that, though it was a question of fact whether the land was partible or not, if there was no evidence either way descent to the eldest son was presumed. Relics of the old custom still remain in the case of gavel kind. The military tenant was subject to the feudal incidents, from which the tenant in socage was exempt. These incidents, especially wardship and marriage, were often oppressive. Alienation of lands by will, except in a few favoured districts, became impossible; alienation inter vivos was restrained in one direction in the interests of the heir, in another in the interests of the lord. At the time of Glanvill a tenant had a greater power of alienation over land which he had purchased (terra acquietata) than over land which he had inherited. But by the time of Bracton the heir had ceased to have any interest in either kind of land. The lords were more successful. It was enacted by Magna Carta that a free man should not give or sell so much of his land as to leave an amount insufficient to perform his services to his lord. In spite of this provision, the rights of the lords were continually diminished by subinfeudation until the passing of the Statute of Quia Emptores. Alienation by a tenant in chief of the crown without licence was a. ground of forfeiture until 1 Edw. III. st. 2, c. 12, by which a fine was substituted. The modes of conveyance at this time were only two, feoffment with livery of seisin for corporeal hereditaments, grant for incorporeal hereditaments. Livery of seisin, though public, was not officially recorded like the old English transfer of property. The influence of local custom upon the land law must have become weakened after the circuits of the judges of the King's Court were established by Henry II. jurisdiction over litigation touching the freehold was taken away from the lord's courts by 15 Ric. II. c. 12.

The common law as far as it dealt with real estate had in the main assumed its present aspect by the reign of Henry III. The changes which have been made since that date have been chiefly due to the action of equity and legislation, the latter sometimes interpreted by the courts in a manner very different from the intention of parliament. The most important influence of equity has been exercised in mortgage and trusts in the doctrine of specific performance of contracts concerning real estate, and in relief from forfeiture for breach of covenant.

History of Real Estate Legislation.—The reign of Edward I. is notable for three leading statutes, all passed in the interests of the superior lords. The Statute of Mortmain (7 Edw. I. st. 2, c. 13) is the first of a long series directed against the acquisition of land by religious and charitable corporations. The statute De Donis Conditionalibus (13 Edw. I. c. 1) forbade the alienation of estates granted to a man and the heirs of his body, which before the statute became on the birth of an heir at once alienable (except in the case of gifts in frank marriage), and so the lord lost his escheat. The statute Quia Emptores (18 Edw. I. c. 1) preserved those rights of the lords which were up to that time subject to be defeated by subinfeudation, by enacting that in any alienation of lands the alienee should hold them of the same lord 'of the fee as the alienor.^[5] Since 1290 it has been impossible to create an estate in fee-simple to be held of a mesne lord, or to reserve a rent upon a grant of an estate in fee (unless in the form of a rent-charge), or to create a new manor. The statute, however, does not bind the crown. The practical effect of the statute was to make the transfer of land thenceforward more of a commercial and less of a feudal transaction. The writ of elegtt was introduced by the Statute of Westminster II. in 1285 as a creditor's remedy over real estate. It has, however, been considerably modified by subsequent legislation. From 1290 to the reign of Henry VIII., there is no statute of the first importance dealing with real estate. The reign of Henry VIII., like the reign of Edward I., is signalized by three acts, the effects of which continue to this day. The one which has had the most lasting influence in law is the Statute of Uses, 27 Hen. VIII. c. 10 (see Conveyancing; Trust). The Statute of Uses was intended to provide against secrecy of sales of land, and as a necessary sequel to it an act of the same year (27 Hen. VIII. c. 16) enacted that all bargains and sales of land should be duly enrolled. Bargain and sale was a form of equitable transfer which had for some purposes superseded the common law feoffment. It applied only to estates of inheritance and not to terms of years. The unforeseen effect of 27 Hen. VIII. c. 16 was to establish as the ordinary form of conveyance until 1841 the conveyance by lease and release.^[6] Uses having become legal estate by the Statute of Uses, and therefore no longer revisable, 32 Hen. VIII. c. 1 (explained by 34 & 35 Hen. VIII. c. 5) was passed to remedy this inconvenience. It is still law as to wills made before 1838 (see Will). In the reign of Elizabeth the acts of 13 Eliz. c. 5 and 27 Eliz. c. 4 avoided fraudulent conveyances as against all parties and voluntary conveyances as against subsequent purchasers for valuable consideration. Early in the reign of Charles II. the act of 1661 (12 Car. II. c. 24) turned all the feudal tenures (with the exception of frankalmoign and grand serjeanty) into tenure by free and common socage and abolished the feudal incidents. The Statute of Frauds (29 Car. II. c. 3) contained provisions that certain leases and assignments, and that all agreements and trusts relating to land, should be in writing (see Fraud). The land registries of Middlesex and Yorkshire date from the reign of Anne (see Land Registration). Devises of land for charitable purposes were forbidden by the Mortmain Act (9 Geo. II. c. 36). In the next reign the first general Inclosure Act was passed, 41 Geo. III. c. 109 (see Commons). In the reign of William IV. were passed the Prescription, Limitation and Tithe Commutation Acts; fines and recoveries were abolished and simpler modes of conveyance substituted by 3 & 4 Will. IV. c. 74; and the laws of inheritance and dower were amended by 3 & 4 Will. IV. cc. 105, 106. In the reign of Victoria there was a vast mass of legislation dealing with real estate in almost every conceivable aspect. At the immediate beginning of the reign stands the Wills Act. The transfer of real estate was simplified by 8 & 9 Vict. c. 106 and by the Conveyancing Acts of 1881 and 1882. Additional powers of dealing with settled estates were given by the Settled Estates Act 1856, later by the Settled Estates Act 1877, and the Settled Land Act 1882. Succession duty was levied for the first time on freeholds in 1853. The strictness of the Mortmain Act has been relaxed in favour of gifts and sales to public institutions of various kinds, such as schools, parks and museums. The period of limitation was shortened for most purposes from twenty to twelve years by the Real Property Limitation Act 1874. Several acts were passed dealing with the enfranchisement and commutation of copy holds and the preservation of commons and open spaces. The Naturalization Act 1870 enabled aliens to hold and transfer land in England. The Felony Act 1870, abolished forfeiture of real estate on conviction for felony. The Agricultural Holdings Acts 1883 and 1900, and other acts, gave the tenant of a tenancy within the acts a general right to compensation for improvements, substituted a year’s notice to quit for the six months’ notice previously necessary, enlarged the tenant’s right to fixtures, and limited the amount of distress. By the Intestate Estates Act 1884 the law of escheat was extended to incorporeal hereditaments and equitable estates. Among other subjects which have been dealt with by legislation in the 19th century may be mentioned land transfer, registration, mortgage, partition, excambion, fixtures, taking of land in execution, declaration of title and apportionment. Hardly a year passes in which the land law is not altered to a greater or less degree.

Real estate at the present day is either legal or equitable, a difference resting mainly upon historical grounds. The following observations apply in general to both kinds of estate. The usual classification of interests in real estate regards either the extent, the time or the mode of enjoyment. The division according to the extent is in the first instance into corporeal and incorporeal hereditaments, a division based upon the Roman law division of res into corporales and incorporales, and open to the same objection, that it is unscientific as co-ordinating subjects of rights with the rights themselves.^[7] Corporeal hereditaments, says Blackstone “consist of such as affect the senses, such as may be seen and handled by the body; incorporeal are not the objects of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation.” Corporeal hereditaments are all necessarily freehold;^[8] an interest in land less than freehold, such as a term of years, is personalty only. There was no room for such an interest in the feudal gradation of tenure; it was regarded as a mere personal contract and was incapable of the incidents of tenure. By the Conveyancing Act 1881 the residue of a long term of years could in certain cases be enlarged into the fee-simple. A copyhold is in strict law only a tenancy at the will of the lord. Estates of freehold are either estates for life or in fee (called also estates of inheritance), the latter being in fee-tail or in fee-simple. An estate for life may be, either for the life of the tenant or for the life of another person, the latter called an estate pur autre vie. The former kind of estate includes estates of dower and curtesy. An estate in fee is called a fee simply, an obvious sign of its feudal origin. Estates tail are either general or special, the latter being in tail male or (rarely) in tail female. There may also be a quasi entail of an estate pur autre vie. An estate in fee-simple is the largest estate known to English law. Its ordinary incidents are an oath of fealty (never exacted), escheat, and (in a manor) suit of the court baron, and occasionally a small quit-rent and relief. All these are obviously relics of the once important feudal incidents. incorporeal hereditaments consist chiefly, if not wholly, of rights in alieno solo. They are divided by Joshua Williams (Real Property, pt. ii.) into (1) reversions, remainders and executor interests, (2) hereditaments purely incorporeal, the last being either append ant, appurtenant or in gross. Examples are profits a prendre (such as rights of common), easements (such as rights of way),^[9] seigniories, advowsons, rents, tithes, titles of honour, offices, franchises. Before 1845 corporeal hereditaments were said to lie in livery, incorporeal in grant. But by the Real Property Act 1845 all corporeal hereditaments are, as regards the conveyance of the immediate freehold thereof, to be deemed to lie in grant as well as in livery. With regard to the time of enjoyment, estates are either in possession or in expectancy—that is, in reversion or remainder or executor interests (see Remainder). With regard to the mode of enjoyment, estates are either joint, in common, in coparcenary or in severalty.

Exceptional Tenures.—It has been already stated that there are still to be found survivals of the old pre-Conquest customary law. They are found both in the tenure and in the conveyance of land. The only customs of which judicial notice is taken are gavelkind (q.v.) and borough-English (q.v.). Any other local customs, as in manors, must be proved 'by evidence. The tenures of frankalmoign and grand serjeanty were specially preserved by 12 Car. ll. c. 24.

Title.—This is the name given to the mode of acquisition of rights over real estate. Title may arise either by alienation, voluntary or involuntary, or by succession. Voluntary alienation is either inter vivos or by will. The former branch is practically synonymous with conveyance, whether by way of sale, settlement, mortgage or otherwise. As a general rule alienation of real estate inter vivos must be by deed since 8 & 9 Vict. c. 106. Since that act a deed of grant has superseded the old forms of feoffment and lease and release. Considerable alterations in the direction of shortness and simplicity have been made in the law of transfer of real estate by the Conveyancing Acts 1881, 1882 and the Land Transfer Acts 1875 and 1897. The word “grant” is no longer necessary for a conveyance, nor are the old words of limitation “heirs” and “heirs of the body.” It is sufficient to use the words “in fee-simple,” “in tail,” “in tail male,” “in tail female.” Many provisions usually inserted in deeds, such as covenants for title by a beneficial owner and powers of appointment of new trustees, obtain statutory sanction. Forms of mortgage, conveyance and settlement are appended to the act. The Solicitors’ Remuneration Act 1881 was passed as a necessary sequel to the Conveyancing Act, and the remuneration of solicitors now stands upon a different and more satisfactory basis. For acquisition by will and succession, see Will; Inheritance. Involuntary alienation is by bankruptcy (q.v.) and by other means of enforcing the rights of creditors over land, such as distress or execution. It may also arise by the exercise by the state of its right of eminent domain for public purposes, as under the Lands Clauses and other acts.^[10]

Restraints on Alienation.-The alienation of real estate may be

subject to almost any conditions, provided that such conditions do not contravene the law. As a general rule there can be no restrictions upon the alienation of an estate in fee-simple; the two ideas are incompatible. In the case, however, of a married woman a restraint on anticipation is allowed within certain limits (see RESTRAINT). In another direction the imposition of a course of devolution upon property is forbidden by the law against perpetuities (see PERPETUITY), while the accumulation of income is also forbidden with a few exceptions. Certain persons are by the general policy of the law disabled from exercising full proprietary rights, such as convicts, infants and lunatics.

Procedure.-In some cases rights attaching to real estate are protected by peculiar remedies. At an early period it became more convenient to try the right to the possession of, rather than the right to the property in, real estate. Possessory tended to supersede proprietary remedies, from their great simplicity and elasticity. The general mode of trying the right to both property and possession was from the time of Henry II. the real action, the form called “ writ of right " (after Magna Carta gradually confined to the court of common pleas) being used to determine the property, that called “ assise of novel disseisin " being the general means by which the possession was tried. About the reign of Elizabeth the action of ejectment became the ordinary form of possessor remedy. Real actions existed until the Real Property Limitation Act 1833, by which they were finally abolished, with the exception of writ of right of dower, writ of dower unde nihilhabet, quare impedit and ejectment. Of these quare impedit (q.v.) appears to be the only one now in use. The assise of novel disseisin, the action of ejectment in both its original and its reformed stage, and finally the action for the recovery of land in use since the judicature Acts are all historically connected as gradual developments of the possessor action. There are certain matters affecting real estate over which the court of chancery formerly had exclusive jurisdiction, in most cases because the principles on which the court acted had been the creation of equity. The judicature Act 1873 assigned to the chancery division of the high court of justice all causes and matters for (inter alia) the redemption or foreclosure of mortgages, the raising of portions or other charges on land, the sale and distribution of the proceeds of property subject to any lien or charge, the specific performance of contracts between vendors and purchasers of real estates, including contracts for leases, the partition or sale of real estates, and the wardship of infants and the care of infants' estates. In the case of rent a summary mode of remedy by act of the creditor still exists (see DISTRESS, RENT).

Ireland.-The law of real estate in Ireland is the English law, which finally superseded the native law in James I.'s reign, as modified by subsequent legislation. The main difference is in the law of landlord and tenant, modified by the various land acts (see IRELAND) and the operation of the Irish Land Commission. United States.-The law of real estate in the United States is the law of England modified to suit a different state of circumstances. The main point of difference is that in the United States the occupiers of land are generally wholly or in part owners, not tenants, as in England. This is to a great extent the effect of the homestead laws (see HOMESTEAU AND EXEMPTION LAws). The traces of the feudal origin of the law are, as might be expected, considerably less prominent than in England. Thus estates tail are practically obsolete; in some states they are specially forbidden by the state constitutions. The law of descent is the same in real and personal estate. Manors do not exist, except in the state of New York, where they were created by the crown in colonial days (Bouvier, Law Dict., “ Manor ). Registration of deeds is general. In some states forms of deed are prescribed by statute. Conveyancing is for the most part simpler than in England. The holding of real estate by religious or charitable corporations is generally restricted by the act creating them rather than by anything like the English law of mortmain. Perpetuities are forbidden in most states. The right of eminent domain is at once acknowledged and limited by the Constitution of the United States. By art. 5 of the Amendments private property is not to be taken for public use without just compensation. A similar- provision is found in many of the state constitutions. By an Act of Congress of 9th April 1866, c. 31, all citizens of the United States have the same ri ht in every state and Territory as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property. In most states aliens may hold land; but in some states they cannot do so without becoming naturalized or at least filing in the specified manner a declaration of intention to become naturalized. International Law.-The law of the place where real estate is situated (lex loci rei sitae) governs its tenure and transfer. The laws of England and of the United States are more strict on this point than the laws of most other countries. They require that the formalities of the locus rei sitae must be observed, even if not necessary to be observed in the place where the contract was made. The lex loci rei sitae determines what is to be considered real estate. A foreign court cannot as a general rule pass title to land situated in another country. The English and United States courts of equity have to a certain extent avoided the inconvenience which this inability to deal with land out of the jurisdiction sometimes causes by the use of the theory that equity acts upon the conscience of the party and not upon the title to the foreign land. Thus in the leading case of Penn. v. .Lord Baltimore in 1750 (1 Vesey, 444) the court of chancery on this ground decreed specific performance of articles for settling the boundaries of the provinces of Pennsylvania and Maryland. The difficulty always arises that, although the court professes to act upon the conscience, it must indirectly act upon the property, and that it cannot carry its decision into execution without the aid of the local tribunals.

1. The name has not remained as in Germany and Denmark. A fief is still Lehen in Germany, Lehn in Denmark.
2. “The relation of vassalage, originally personal, became annexed to the tenure of land ” (Palgrave, Rise and Progress of the English Commonwealth, vol. i. p. 505).
3. It is a disputed point whether the manor organization existed before the Conquest; but its full development seems to have been later than that event.
4. Frankalmoign was not always regarded as a distinct tenure. Thus Littleton (§ 118) says that all that is not tenure in chivalry is tenure in socage.
5. Tenants in chief of the crown were liable to a fine on alienation until 12 Car. II. c.
6. From the reign of Edward IV. at latest up to the Fines and Recoveries Act of 1833 fines and recoveries were also recognized as ab means of conveyance. They are so regarded in the Statute of Uses.
7. In spite of this objection the division is adopted by the legislature; see, for instance, the Intestate Estates Act 1884.
8. In the category of corporeal hereditaments are also included certain accessories to corporeal hereditaments proper, such as growing crops, fixtures, title-deeds, &c.
9. It should be noticed that an easement in gross cannot exist.
10. The right of the state to contribution from land for revenue purposes and to stamp duties on deeds perhaps falls under this head. These imposts are really involuntary alienation’s of part of the profit of the land.