This section is from "Every Woman's Encyclopaedia". Also available from Amazon: Every Woman's Encyclopaedia.
True Meaning of the Term Landowner - Real and Personal Estate - How Money can be Land Emblements - Local Customs - Holding during Widowhood
In dealing with a subject such as land and the ownership of land it is impossible to avoid legal technicalities, because right of property in land arises through a creation of law.
The English law does not recognise absolute ownership in land in the case of a subject; he must hold his estate of the king either directly or indirectly through some intermediate lord. Land is the object of tenure; and he who has it is said to hold rather than own it. The largest property in land which a subject can hold is an estate in fee simple, to which are now incident the rights of free enjoyment and free disposition, so that such an estate is well-nigh equivalent to absolute property.
Ownership comprises the possession, use, and enjoyment of the thing, either immediately or at a future time, and usually also the power of disposing of it. A right of ownership entitles the owner to deal with the subject of the right as he may think fit, provided he does not in so dealing with it infringe upon the rights of any other person. And this has given rise to a celebrated legal maxim, which may be translated: "Make such use of your own property as not to injure your neighbour's."
There once lived a lady who was the proprietor of some ornamental lakes in Chester, which had existed time out of mind. One summer, owing to a tremendous storm, the floods came, the lakes overflowed and swept away two or three of the county bridges. Now the rule of law is that when a person brings on to his land anything that will do damage to his neighbour if it escapes, he keeps it at his peril. And, proceeding on this principle, the county surveyor brought an action against the lady for allowing her lakes to escape and damage the bridges. And undoubtedly the lady would have had to make good the damage if it had not been shown that the lakes had been carefully constructed and maintained, and that the downpour of rain was so exceptional as to amount to an act of God.
The terms "real and personal" were first applied to actions which were real, personal, or mixed. Real actions were in connection with realty, or land, for recovery of free tenements; personal, to obtain compensation for a violation of a right by way of damages; and mixed, partaking of the nature of both a claim for damages along with a claim for specific recovery of some tenement, as in an action for ejectment.
The word realty was originally equivalent to freehold. Real estate, or "things real," mean real hereditaments, or things inheritable. Realty given by will passes at death immediately to the person to whom it is given. On the death without a will of a person who has an inheritable interest in things real, the interest passes directly to the heir at law. In other words, if you inherit an estate it becomes yours immediately.
Whereas personalty, or personal property, whether given by will or passing on the death of a person who dies without making
Law a will, goes in the first instance to his legal personal representative; or, to put it more clearly, if money is left you by will, on the death of the person who has left it to you it goes to his executor or administrator, whose duty it becomes to pass it on to you in due course. And if someone dies without a will to whom you are related, you cannot touch any personal property which he may have left until the nearest relation has taken out letters of administration.
Moreover, on the death of a person his personalty is liable to be applied in discharge of his debts before his realty. The tax known as probate duty is payable on the personal estate only.
Land, in the ordinary legal sense, includes everything terrestrial, soil (whether arable, woods, wastes, or waters), and all buildings and structures erected upon it, all trees and plants growing in it, and all things permanently affixed to it or buildings upon it; also the space above - aviators will please take note - and the earth below the area of the surface, including all mines and minerals.
Words of Description The following technical words of description are constantly found in deeds and documents relating to land: "Farm" comprises a farmhouse and all the land belonging to or occupied with it. "Messuage" means a dwelling-house, and includes the house itself, with adjacent buildings, orchard, garden, and curtilage, or courtyard. "Toft" is the site of a house which has been pulled down. "Water," strangely enough, does not include the land on which it stands; to have this effect it must be described as " land covered with water." "Pool," on the other hand, includes the land beneath the water. "Manor" includes the demesne lands and the freehold of the copyhold lands; that is to say, that the term includes that part of the lands of a manor which the lord has reserved for his own use and occupation. "Advowson," the patronage of an ecclesiastical benefice; or, in other words, the right of presenting upon a vacancy a person as rector or vicar according to the laws of the Established Church. The right of presentation originally belonged to the person who built or endowed the church, and as the founder of the church was usually the lord of the manor, advowsons became appendant to manors, and the right of presentation belonged to the lord of the manor for the time being, and passed on any transfer of the manor unless expressly excepted.
Money which is to be applied by trustees in the purchase of land is regarded for most purposes as already converted into land, because " equity regards that as done which ought to be done," and so is subject to the law applicable to land. And the purchase-money of land sold under certain powers, or purchased under statutory powers, and of lands belonging to infants and lunatics, is governed by the same rules. Deeds and documents of title to land, generally known as "title-deeds," or "muniments of title" and heirlooms are often, for legal purposes, regarded as land. In this connection it is desirable to point out that we are not using the word heirloom in its popular sense to denote family plate, pictures, etc., which accompany the ownership for the time being of a house, but only in its strictly legal sense, in which heirlooms, so-called, are rarely met with. But the rules applicable to them extend to monuments or tombstones in churches, deed-boxes, and so forth.
This is one of the exceptions to the rule that things planted in or affixed to land pass with it unless expressly reserved. Emblements are those vegetable products, or crops, of land which are produced yearly by agricultural labour, and extends to roots planted or other annual artificial profit, but not to fruit-trees, grass, and the like, which are not planted annually. Hops, however, though growing out of the old roots, are included.
Where a lease expires by coming to the end of its term, the lessee or tenant is not entitled to emblements, because it was his own folly to sow where he could never reap the profits; but the lessee or tenant is entitled to emblements where the lease comes to an end at a time that could not be previously known to him and otherwise than by his voluntary act. And in such cases, if the estate is ended by the tenant's death, his personal representative has the same right.
Local customs modifying the general rule as to emblements exist in many counties of England. In some instances to the effect that the tenant may retain possession or re-enter to take the crops after the determination of the term; in other instances the incoming tenant or the landlord takes at a valuation the crops raised by the outgoing tenant.
Where a woman holds an estate during widowhood, and commits a breach of the conditions by remarrying, she loses her right to emblements. But where a woman holding an estate during widowhood grants a life estate to another person and then marries, thereby determining both her own and the other person's estate, the latter is entitled to emblements, unless he is the tenant of farm or lands at a rackrent, in which case he continues to hold upon the terms of his lease till the end of the current year of his tenancy instead of his claim for emblements.