CHAPTER II.

CHATTELS REAL.

BRACTON, 27. If, moreover, a gift be made for a term of years, though of exceeding length-longer than the life of man-nevertheless this will not give the donee a freehold, since a term of years is fixed and ascertained, and the limit of life is uncertain, and because, although nothing is more certain than death, nothing is more uncertain than the time of death.

ID., 220. I must now speak of the case of a person being ejected from the use and occupation of any tenement which he holds for a term of years before the expiration of his term. For in one and the same tenement one man may have a freehold and another use and occupation. The usual remedy open to such lessees, when they are ejected before the expiration of their term, is by action of covenant. But inasmuch as this action was not available, except as between lessor and lessee, and third persons could not be bound by the covenant, and even as between lessor and lessee it was an insufficient and inconvenient mode of determining the matter, by the advice of the Curia Regis a remedy was provided which the farmer could avail himself of as against any person whatsoever who should. turn him out of possession. This was by means of the following writ: "The king to the sheriff, greeting. Command A. that he duly and without delay do restore to B. so much land with the appurtenances in such a township, from which the said A., who demised the land to B. (has wrongfully ejected him, etc.)." Or thus: "If A. gives proper security, summon B. to show cause why he ejects and keeps ejected A. from so much land with the appurtenances which C.

demised to A. for a term which is not yet passed, and within the said term the said C. sold the land to B., by reason of which sale the said B. afterward ejected A. from the said land, as he saith, etc." And if such a writ is available against a stranger on account of a sale to him, much more is it available against the lord himself who demised to, and without reason ejected, the lessee, than against a stranger who had some sort of excuse, if at the time of the sale made to him his vendor ejected the farmer, or if on any other ground any one other than the original lessor has ejected the lessee. In that case the writ speaks of "the land which C. of N demised for a term which has not yet expired, within which term the aforesaid A. or C. wrongfully ejected B. from the said land, as he alleges, etc."

DIGBY, HIST. REAL PROP., Ch. III., § 17. Terms of Years. -The characteristic of this class of interests in land is that ́ the estate is sure to come to an end on the lapse of some specified time, however remote that time may be. The passage is very remarkable, as noting the precise point at which terms1 of years came to be recognized as estates in land. Before the change here mentioned the termor or lessee had no interest which the law would protect against third persons, nor indeed against the lessor, unless the interest in the lands rested on a conventio, or covenant by deed. It had been the practice from very early times to grant leases by deed, and in such a case, if the lessor wrongfully ejected the lessee, the lessee had his remedy by action on the covenant (per breve de conventione), as in the case of any other covenant under seal. The new writ which was introduced, as stated in this passage, afforded the lessee a remedy against his lord, whether the lease was by deed or not; and also gave him a right to protection against ejectment by a third person, and probably an additional remedy, by en

1 It should be observed that by the word "term" is meant not only the period during which the interest lasts, but the interest or estate itself.

abling the lessee to recover possession of the land, and not merely damages for breach of covenant. This was called the writ of quare ejecit infra terminum.

Thus the interest of the termor or lessee for years, instead of resting at best upon a covenant with his lessor, and therefore being enforceable only as against him, became a right of property which could be enforced against any wrongdoer by a remedy analogous to that provided for a wrongful ouster of a freeholder from his possession. Thus these interests became estates or rights of property in land. There was, however, an important difference in the devolution of the estate on the death of the lessee. Under the earlier law, the persons who, upon the death of the lessee within the term, would have been entitled to the benefit of the covenant, were the executors or administrators of the deceased, and, therefore, it was natural that this new estate or interest should descend not to the heir-at-law, but to the personal representatives, the executors, or administrators of the lessee. Thus, freehold interests came to be classed with personal and not with real property.

LIT., § 740. But where such lease or grant is made to a man and to his heires for terme of yeares, in this case the heire of the lessee or the grantee shall not after the death of the lessee or the grantee have that which is so let or granted, because it is a chattell reall, and chattels realls by the common law shall come to the executors of the grantee, or of the lessee, and not to the heire.

Co., LIT., 388, a. Here is a generall rule, that chattels reals as well as chattels personals shall goe to the executors or administrators of the lessee, and not to his heires. For as estates of inheritance or freehold descendible shall go to the heire, so chattels, aswell reall as personall, shall goe to the executors or administrators.

2 BL. COM., 385-388. But things personal, by our law, do not only include things movable, but also something

more: the whole of which is comprehended under the general name of chattels, which Sir Edward Coke says1 is a French word signifying goods. The appellation is in truth derived from the technical Latin word catalla, which primarily signified only beasts of husbandry, or (as we still call them) cattle, but in its secondary sense was applied to all movables in general. In the grand coustumier of Normandy a chattel is described as a mere movable, but at the same time it is set in opposition to a fief or feud; so that not only goods, but whatever was not a feud, were accounted chattels. And it is in this latter, more extended, negative sense, that our law adopts it: the idea of goods, or movables only, being not sufficiently comprehensive to take in everything that the law considers as a chattel interest. For since, as the commentator on the coustumier observes, there are two requisites to make a fief or heritage, duration as to time, and immobility with regard to place; whatever wants either of these qualities is not, according to the Normans, an heritage or fief; or, according to us, is not a real estate; the consequence of which in both laws is that it must be a personal estate or chattel.

Chattels, therefore, are distributed by the law into two kinds; chattels real and chattels personal.

1. Chattels real, saith Sir Edward Coke,2 are such as concern or savor of the realty; as terms for years of land, wardships in chivalry (while the military tenures subsisted), the next presentation to a church, estates by a statute-merchant, statute-staple, elegit, or the like; And these are called real chattels, as being interests issuing out of, or annexed to, real estates; of which they have one quality, viz., immobility, which denominates them real; but want the other-namely, a sufficient, legal, indeterminate duration; and this want it is that constitutes them chattels. The utmost period for which they can last is fixed and determinate, either for such a space of time certain, or till such a particular sum of money be raised out 11 Inst. 118. * I Inst. 118.

of such a particular income; so that they are not equal in the eye of the law to the lowest estate of freehold, a lease for another's life; their tenants were considered upon feodal principles as merely bailiffs or farmers, and the tenant of the freehold might at any time have destroyed their interest, till the reign of Henry VIII. .

2. Chattels personal are, properly and strictly speaking, things movable; which may be annexed to or attendant on the person of the owner, and carried about with him from one part of the world to another. Such are animals, household stuff, money, jewels, corn, garments, and everything else that can properly be put in motion and transferred from place to place. And of this kind of chattels it is that we are principally to speak in the remainder of this book; having been unavoidably led to consider the nature of chattels real, and their incidents, in the former chapters, which were employed upon real estates; that kind of property being of a mongrel amphibious nature, originally endowed with one only of the characteristics of each species of things; the immobility of things real, and the precarious duration of things personal.