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LAWS RELATING TO REAL PROPERTY
In submitting our new book of Forms, we have revised and corrected our synopsis of the real property law which appeared in our last issue, bringing the same down to the year
1879. The criminal law of England was first introduced by the treaty signed at Paris on the 10th February, 1763. Afterwards certain other laws were introduced from time to time, by proclamations and other official instruments, and especially on the 7th October, 1763, in the reign of George the 3rd.
When the Canadas were separated as to civil rights in 1791, the laws of Canada, that is to say, the French laws, were conceded to Lower Canada, while the civil laws of England were, by express enactment of our own Legislature, declared to be in force in Upper Canada. By 32 Geo. III. cap. 1, and by the Revised Statutes of Ontario, cap. 93, sec. 1, it was enacted that, “In all matters of controversy relative to property and civil rights, resort shall be had to the laws of England, as they stood on the 15th day of October, 1792, as the rule for the decision of the same
-except so far as the said laws and rules have been since repealed, altered, varied, modified or affected by any Act of the Imperial Parliament still having the force of law in Ontario, or by any Act of the late Province of Upper Canada, or the Province of Canada,
or of the Province of Ontario, still having the force of law in Ontario, or by the Revised Statutes of Ontario."
On that day the unwritten or common law and the written or statute law of England, as it then stood, became law in Upper Canada, and generally speaking no Imperial Statute passed since 1792 has any effect in this province, unless Canada is expressly mentioned or unless re-enacted in our own Parliament. But by the 2nd section of cap. 92, of the Revised Statutes of Ontario, “ The Statutes of Jeoffails of Limitations, and for the amendment of the law, excepting those of mere local expediency, which previous to the 17th January, 1822, had been enacted respecting the law of England, and then continued in force shall be valid and effectual for the same purposes in Ontario, excepting so far as the same have since the day last aforesaid been repealed, altered, varied, modified or affected in the manner mentioned in the first section of this Act.”
The laws of this Province as to real estate are much more simple than those of the mother country, as this is comparatively a new country. All our titles to real estate are of recent date, and where evidence has been preserved can be traced to the Crown. There are several species of property in England which are not to be met with among us, owing to the difference in the customs and usages existing here from those which exist in the mother country, such as copyholds, advowsons, tithes, rights of common, and rights of common of Turbary, of Piscary, and Pasture, and Seigniories or Lordships ; neither have we ten
; ure by customs of Gavelkind, or Borough English, nor are our conveyances subject to the Stamp Duty. Tithes were abolished in this Province by 2 Geo. IV. c. 32.
The periodical revision and consolidation of the Public General Statutes afford greater facility of reference, although to secure accuracy, careful attention must be paid to the repealed as well as to the repealing Statutes.
Real property comprehends all such things as are permanent, fixed, indestructible, immovable, and which can
not be carried out of their place, and is usually denoted by the terms, “lands, tenements and hereditaments," although under the authority of our statutes relating to real property the general denomination “land” is often used. It legally includes all houses and other buildings thereon, so that by a conveyance of the land or ground the structures pass therewith, as well as everything else both above and below the surface. Hereditaments is the most comprehensive term of the three in signification, and literally embraces whatever may be inherited. The term “premises” strictly denotes that which has been before mentioned, and property is seldom spoken of as premises unless a description of it is contained in some prior part of the instrument.
The terms messuage or house comprise all outbuildings, the orchard, yard and garden attached and adjoining thereto; and appurtenances embrace all easements attached to or used with the property.
We are bound therefore by the law of England prior to 1792, and it has been the policy to adopt from time to time such improvements as have been made in the English law, so far as they have been applicable to the circumstances of this country.
It follows that the law of real property in this Province in a great measure resembles that of England. It is unnecessary in a synopsis like the present to notice at much length the objects, effects, and operation of the several important Statutes of Uses, DeDonis, Quia Emptores, Wills and Frauds, however interesting to the antiquary and legal student. It is sufficient to remark, that after a lapse of nine or ten centuries, we have come almost back to the same system of unfettered alienation of real property as existed in England before the Norman Conquest and the feudal system. It may appear strange that a common deed of a piece of freehold land in this Province cannot be explained without going back to the reign of Henry the Eighth, when the Statute of Uses was passed (27 Henry VIII. c. 10), that no man is in law the