Land. 1 Inst. 9 a. 1 Inst. 4 a. 2. Real property is corporeal or incorporeal; corporeal consists wholly of substantial and permanent objects; all which may be comprehended under the general denomination of land. 3. Lord Coke says, the word land, in its legal signification, comprehends any ground, soil, or earth whatsoever, as meadows, pastures, woods, waters, marshes, furzes and heath. It has also, in its legal signification, an indefinite extent, upwards as well as downwards; for it is a maxim of law, that cujus est solum, ejus est usque ad cœlum; therefore land legally includes all castles, houses, and other buildings standing thereon; and downwards, whatever is in a direct line between the surface and the centre of the earth; such as mines of metal and other fossils, which are the property of the owner of the surface; exPlowd. 336. cept mines of gold and silver: these, by the royal prerogative, belong to the Crown. 4. The greater part of England was formerly divided into manors, of which an account has been Dissert. c. 3. already given. The word manor is still frequently § 32. used as synonymous with the lands comprised within 2 Ves. Jun. 652. Money to be laid out in land. its boundaries. 5. A share in the New River water is held to be real property, as also a share in the navigation of the river Avon; under a private act of parliament in 10 Ann. and a share in some navigable canals. 6. Money agreed or directed to be laid out in the purchase of land, is considered in equity as land; because there, whatever is agreed to be done, is con-> Treat. of Eq. sidered as actually done. Where money, directed to B.1.c.6.§9. be laid out in the purchase of land, comes into the hands of the person who would have had the absolute Denne, 2 Ves. Jun. property of the land, in case a purchase had been Walker v. made, it will be considered as money, and may be claimed accordingly. But where it is in the hands of 170. a third person, some act must be done by the person Biddulph, entitled to it, to shew that he considers it as money; otherwise it will still be deemed land. 7. There are some chattels which are considered as so annexed, and necessary to the enjoyment of the inheritance, that they are deemed in law to be a part of it, and are called heir looms. Thus deer in a real authorized park, fishes in a pond, rabbits in a warren, doves in a dove-house, are held to be part of the inheritance, and belong to the heir. 8. It is the same of charters, court rolls, deeds, and other evidences of the land; together with the chests and boxes in which they are contained. 9. Where an antient horn had immemorially gone with the estate, and had been delivered to the plaintiff's ancestors, to hold their land by, it was decreed that it should go with the land as an heir loom. Biddulph v. 12 Ves. 161. Heir Looms and Charters. 1 Inst. 8 a. 185 b. 7 Rep. 17 b. Cro. Eliz. 372. Bro. Ab. Charters, Pusey v. 1 Vern. 273. Property. 10. Incorporeal property consists of rights and Incorporeal profits arising from or annexed to land; such as advowsons and rents, which are held to be of a real nature. Even offices exercisable within certain places, though not annexed to land, are said to savour of the realty. And dignities or titles of honour, having been originally annexed to land, are also considered as real property. Land. 11. With respect to the nature and properties of Of Estates in the different estates which may be acquired in land; it is necessary to premise, that an estate in land means such an interest as the tenant hath therein. It is called in Latin status, because it signifies the condition 1 Inst. 345 a. or circumstance in which the owner stands with regard to his property. To ascertain this with precision and 2 Black. Comm. 103. Estates of Britton, c.32. 2Comm.386. 1 Inst. 42 a. accuracy, estates in land may be considered in a threefold view: first, with regard to the quantity of interest which the tenant has in his tenement; secondly, with regard to the time at which that quantity of interest is to be enjoyed; thirdly, with regard to the number and connexion of the tenants. 12. First, with regard to the quantity of interest which the tenant has in his tenement; this is measured by its duration and extent; and occasions the primary division of estates into such as are freehold, and such as are less than freehold. 13. An estate of freehold is an estate in lands, or other real property, held by a free tenure, for the life of the tenant, or that of some other person; or for some uncertain period. It is called liberum tenementum, frank tenement or freehold; and was formerly described to be such an estate as could only be created by livery of seisin, a ceremony similar to the investiture of the feudal law. But since the introduction of certain modern conveyances, by which an estate of freehold may be created without livery of seisin, this description is not sufficient. 14. There are two qualities essentially requisite to the existence of a freehold estate. 1. Immobility; that is, the subject matter must either be land, or some interest issuing out of or annexed to land. 2. A sufficient legal indeterminate duration: for if the utmost period of time to which an estate can last, is fixed and determined, it is not an estate of freehold. 15. Thus if lands are conveyed to a man and his heirs, or for his life, or for the life of another, or until he is married, or goes to Rome; he has an estate of freehold but if lands are limited to a man for 500 years, or for 99 years, if he shall so long live, The law was Bracton, a. he has not an estate of freehold. 16. It has been shewn that, upon the introduction Dissert. of the feudal law, all lands became holden, either by c. 2, a free, or a base tenure. The tenant who held by a free tenure had always a right to the enjoyment of the land, for his life at least; and could not be dis- Black. Cons. possessed even for the non-payment of his rent or the on Copyholders, 233. non-performance of his services; whereas the tenant 4to edit. who held in villenage might be turned out at the pleasure of his lord; and his possession, being perfectly precarious, was considered to be the possession of his lord; to whom he was, in a great degree, a mere slave. 17. The person thus holding lands by a free tenure was therefore called a freeholder, because he might maintain his possession against his lord: and for this reason liberum tenementum, or freehold, was opposed to villenage. Thus Bracton says-Item dicitur liberum 207 a. tenementum, ad differentiam ejus quod est villenagium; quia tenementorum aliud liberum, aliud villenagium. And an estate of freehold, once created, could not 1 Inst.218 a. cease without entry or claim. 18. The acquisition of an estate of freehold was attended with several valuable rights and privileges. The freeholder became a member of the county court, Coke, Cop. $15. 1 Inst. 4 a. Welden v. Bridgewater, Cro. Eliz. 421. one of the pares curia in the court baron, or lord's court; was entitled to be summoned on juries in the king's court; and to vote at the election of a knight of the shire. 19. In subsequent times, the word freehold was, in some cases, applied to the estate or interest only of the tenant; as where a person had an estate for life in lands held in villenage, he was said to have a freehold interest. Thus Lord Coke says-"A freehold is taken in a double sense: either it is named a freehold in respect of the state of the law, and so copyholders may be freeholders; for any that hath an estate for his life, or any greater estate, in any land whatsoever, may in this sense be termed a freeholder or in respect to the land, and so it is opposed to copyholders: that what land soever is not copyhold, is freehold." 20. It is however fully proved by Sir William Blackstone, in his Considerations on Copyholders, that no person can be considered as a freeholder, or entitled to the privileges of a freeholder, unless his estate consists of free land: so that although the determination of an estate be uncertain, yet if it is held by a base tenure, it is not considered in law as a freehold, nor has the tenant any of those privileges which the law gives to freeholders; for in that case he has a freehold interest only, whereas no estate is, strictly speaking, freehold, unless the possessor holds it by a free tenure; therefore all freehold estates must now be held in socage. 21. Lord Coke says, a freehold estate may at several times be moveable, sometimes in one person, and, alternis vicibus, in another; as if there be 80 acres of meadow, which have been used, time out of mind, to be divided between certain persons; |