TITLE I. PART I. to the ground or incident to it, whether above it, upon it, or under it; such as houses, woods, waters, mines, fossils. The maxim of the law is, cujus est solum, ejus est usque Tenements. ad cœlum. The word tenements, though popularly applied to buildings only, yet in its legal signification includes everything of a permanent and immoveable nature which may be holden, whether it be of a substantial and sensible, or of an unsubstantial and ideal kind (a). 3. Peculiar kinds of real property. Things personal. Chattels real. Chattels personal. Hereditaments. A share in the New River is real property (b). And extraordinary profits incident to and dependent upon the title to and the user of land are part of it; and hence, the profits arising from the tolls of a lighthouse are real estate, and, as such, not subject either to probate or legacy duty (c). 4. Things personal are divided into chattels real and chattels personal. Chattels real are so called, because they concern the realty, and comprise such interests in things real as were in former days either of short duration or of inconsiderable value, and were therefore classed with things personal, as things of comparatively little importance such as terms for years, which were in early times only created for purposes of agriculture, trade, or residence, and were very short; the next presentation to a church; and estates by statute merchant, statute staple, and elegit. Chattels personal are so called, because for the most part they are connected with or may accompany the person of the owner, and do not concern realty. They comprise such things as are moveable; as money, garments, furniture, cattle (d). 5. Things real are usually and conveniently designated by the comprehensive word hereditaments. Under that desig (a) See 2 Bl. Com. 16-19; 1 Cruise T. 1, § 12; Co. Litt. 4 a, 6 a; 4 Cruise T. 32, c. 20, § 51; Burton, § 1, 2, 3. (b) 1 Cruise T. 1, § 3; Davall v. The New River Company, 3 De G. & S. 394. (c) Att.-Gen. v. Jones, 1 Mac. & G. 574, 590. (d) See Co. Litt. 118 b; 2 BL Com, 386-7. nation all things real are included. But it also extends to some things personal: for it includes everything that may descend to the heir; comprising not only lands and other tenements, but also some personal property which may be inherited; such as an heirloom or a condition, the benefit of which may descend to a man from his ancestor, or an annuity in fee, as distinguished from a rent charge (a). And a subject of property, whether real or personal, may be an hereditament, though held for a chattel interest or an interest of freehold not of inheritance, when that interest is carved out of an estate of inheritance. So that lands or houses held on lease for years are leasehold hereditaments; and an annuity for years, if carved out of an annuity in fee, is also an hereditament (b). 6. A person may have an inheritance in an upper chamber, although the lower buildings and soil be in another (c). 7. The freehold of a chapel, or lesser chancel, though forming an integral portion of the parish church, may be vested in a private person, and may be conveyed by him to others; and the enjoyment of it need not be annexed to a dwelling-house; and of such ownership, immemorial repair and other proprietary acts are evidence (d). 8. PART I. TITLE I. law may be in equity, verså. Sometimes that which is real estate at law, is treated as Realty at personal estate in equity. Thus real estate bought and personalty held for the purposes of a partnership, as a part of the and vice stock in trade, will be considered in equity, although not at law, as personal estate to all intents and purposes, whatever may be the form of the conveyance; so as to be subject to all the equitable rights and liabilities of the partners and their creditors; and so as to pass to the personal representatives and distributees, on the death of (a) Co. Litt. 6 a; 2 Bl. Com. 17; 1 Cruise T. 1, § 1; 4 Cruise T. 32, c. 20, § 52; 1 Pres. Shep. T. 91. (b) 1 Pres. Shep. T. 91; 2 Jarm, & Byth. by Sweet, 235. (d) Chapman v. Jones, L. R. 4 PART I. TITLE I. a partner, except, perhaps, where there is a clear and determinate expression of the deceased partner that it shall go to his heir-at-law beneficially (a). Other instances will be mentioned hereafter, in treating of conversion. And under that head it will also be seen, that, on the other hand, an interest in personal estate at law is sometimes treated as real estate in equity. 9. (a) Story's Eq. Jur. § 674. But see 2 Spence's Eq. Jur. 208-211; Steward v. Blakeway, L. R. 4 Ch. TITLE II. OF THINGS CORPOREAL AND INCORPOREAL. CHAPTER I. THINGS CORPOREAL AND INCORPOREAL DISTINGUISHED. PART I. corporeal incorporeal The disstr. tinction between them THINGS are further divided into things corporeal, and things T. 2, CH. 1 incorporeal. Corporeal things are things which are the Things objects of sense, consisting of such things as may be seen denied. and handled; such as houses and land. Incorporeal things Things are things which are objects of the mind alone, consisting defined. of rights to certain benefits derivable from or connected with corporeal things, whether real or personal (a). 10. To obtain a correct notion of an incorporeal thing, we must be careful not to confound together the profits produced and the hereditament or thing which produces them -the benefits arising, and the right from which they arise. An annuity, for instance, is an incorporeal thing; for although the money, which is the fruit or product of the annuity, is of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, and has only a mental existence (b). So the right to shoot, kill, and take game is an incorporeal hereditament (c). 11. and rever. The term incorporeal hereditaments is sometimes applied Remainders to remainders and reversions; but it would seem more sions accurate to treat of them rather as interests in things, than termed as things or subjects of property themselves (d). 12. (a) See 2 Bl. Com. 17, 20; 1 Cruise T. 1, § 2, 7; Burton, § 4. (b) 2 Bl. Com. 20; 3 Cruise T. 21, c. 1, § 1. (c) Hooper v. Clark, L. R. 2 Q. B. 202. (d) 1 Steph. Com. 623. sometimes incorporeal hereditament Some incorporal bereditaments which are rights of mere accommodation, are termed easements. Of these there are a great number; such as rights of way, rights to receive air, light, ani water. Others willch are directly profitable, are called profits à prendre; such as rights of common (a). A profit à prendre in another's soil cannot be claimed by custom, for this reason, among others, that such person's property might thus be subject to the most grievous buriens in favour of successive multitudes, as the inLabitants of a parish or other district, who could not realise the right (b). 13. We may here notice the division of things real into things lying in livery and things lying in grant, in cases not within the stats. 7 & 8 Vict. c. 76, s. 2, and 8 & 9 Vict. Qya c. 106, s. 2 (). Things lying in livery are such things real as are capable of actual delivery, and comprise corporeal hereditaments in possession, and also certain legal aggregates, of which corporeal hereditaments form the principal part; such as a manor consisting of land and yazwigniories. Things lying in grant comprise remainders and reversions, and all incorporeal hereditaments; because these are from their very nature incapable of actual delivery, and therefore are transferred by deed of grant. But a freehold reversion expectant upon a lease for years lies in livery as well as in grant; although, indeed, the consent of the termor is necessary to the feoffment (d). A rectory consisted of glebe as well as tithes, and is a corporeal hereditament, and, as such, lies in livery. But although a rectory is a corporeal hereditament, the advowson of a rectory is an incorporeal hereditament, and lies (a) Burt. Comp. § 1165; Shelf. (c) See infra, Part III. T. 12, Ch. 3, s. 3. (d) Co. Litt. 9 a. 49 a; Burton, § 40, 42; Watk. Conv. 3rd ed. by Prest. 168, 171. |