Real and personal.
(d) Glanville, lib. x. c. 13; Bracton, lib. iii. fol. 101 b, par. 1; 102 b, par. 4; Britton, 1 b; Fleta, lib. i. c. 1; Litt. sects. 444, 492; Co. Litt. 284 b, 285 a; 3 Black. Com. 117.
(e) The terms lands and tenements, goods and chattels, are constantly used in Coke upon Littleton and Sheppard's Touch-Btone, both of them works compiled in the early part of the 17th century. The nearest approxima-tiun the writer can find in either of the above books to the now common division into real and personal is the expression "things, whether real, personal or mixed," in Co. Litt. 1 b and 6 a, and in Touchstone, p. 91, an expression which has an obvious reference to the division of actions into the same three classes. In the early part of the last century, the terms real and personal, as applied to property, were in common use. See 1 P. Wms. 553 , 575 , anno 1719; Ridout v. Pain, 3 Atkyns, 486, anno 1747.
(f) 2' Black. Com. 16, 834; 3 Black. Cumin. 144.
But the most remarkable exception to the original rule occurs in the case of a lease of lands or houses for a term of years. The interest which the lessee, or person who has taken the lease, possesses, is not his real (l), but his personal property; it is but a chattel (m), though the rent may be only nominal, and the term ninety or even a thousand years. This seeming anomaly is thus explained. In the early times, to which we have before referred, towns and cities were not of any very great and general importance; their influence was local and partial, and then laws and customs were frequently peculiar to themselves (n). Agriculture was then, though sufficiently neglected, yet still of far more importance than commerce; and from the necessities of agriculture arose many of our ancient rules of law. That the most ancient leases must have been principally farming leases, is evident from the specimens of which copies still remain (o), and also from the circumstance that the word farm applies as well to anything let on lease, or let to farm, as to a farm house and the lands belonging to it. Thus, we hear of farmers of tolls and taxes, as well as of farmers engaged in agriculture. Farming in those days required but little capital (p), and farmers were regarded more as bailiffs or servants, accountable for the profits of the land at an annual sum, than as having any property of their own (q). If the farmer was ejected from his land by any other person than his landlord, he could not, by any legal process, again obtain possession of it. His only remedy was an action for damages against his landlord (r), who was bound to warrant him quiet possession (s). The farmer could therefore be scarcely said to be the owner of the land, even for the term of the lease; for his interest wanted the essential incident of real property, the capability of being restored to its owner. Such an interest in land had, moreover, nothing military or feudal in its nature, and was, consequently, exempt from the feudal rule of descent to the eldest son as heir at law. Being thus neither real property, nor feudal tenement, it could be no more than a chattel; and when leases became longer, more valuable, and more frequent, no change was made; but to this day the owner of an estate for a term of years possesses in law merely a chattel. His leasehold estate is only his personal property, however long may be the term of years, or however great the value of the premises comprised in his lease (t).
(g) Such loans were formerly considered unchristian. Glanville, lib. 7, c. 16; lib. 10, c. 3; 1 Reeves's History, 119, 262.
(h) New River shares are an exception, Drybutter v. Bartholomew, 2 P. Wms. 127; see also Buckeridge v. Ingram, 2 Ves. jun. 6.12; Bligh v. Brent, 2 You. & Coll. 268.
(i) Co. Litt. 20 a, n. (3); Earl Ferrer's case, 2 Eden, Appendix, p. 373.
(k) 1 Hallam's Middle Ages, 158.
(l) Bracton, lib. 2, fol. 27 a, par. 1.
(m) Co. Litt. 46 a; correct Lord Coke's reference at note (w), from ass. 82 to ass. 28.
(n) See as a specimen, Bac. Abr. tit. Customs of London.
(o) See Madox's Formulare Anglicanum.tit. Demise for Years, in which the great majority of leases given are farming 1eases.
(p) See as to the bad state of agriculture, 3 Hallam's Middle Ages, 865; 2 Hume's Hist. Eng.
(q) Gilb. Tenures, 39, 40; Watkins on Descents, 108 (113, 4th edit.); 2 Black. Com. 141.
(.r) 3 Black. Com. 157, 158, 200.
(.s) Bac. Abr. tit. Leases and Terms for Years, and Covenant, (B).
There is now perhaps as much personal property in the country as real; possibly there may be more. Real property, however, still retains many of its ancient laws, which invest it with an interest and importance to which personal property has no claim. Of these ancient laws one of the most conspicuous is the feudal rule of descent, under which, as partially modified by amending acts (u), real property goes, when its owner dies intestate, to the heir, while personal property is distributed under the same circumstances, amongst the next of kin of the intestate by an administrator appointed for that purpose by the Court of Probate (x).
Besides the division of property into real and personal, there is another classification which deserves to be mentioned, namely, that of corporeal and incorporeal. It is evident that all property is either of one of these classes, or of the other; it is either visible and tangible, or it is not (y). Thus a house is corporeal, but the annual rent payable for its occupation is incorporeal. So an annuity is incorporeal; "for, though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand"(z). Corporeal property, on the other hand, is capable of manual transfer; or, as to such as is immoveable, possession may actually be given up. Frequently the possession of corporeal property necessarily involves the enjoyment of certain incorporeal rights; thus the lord of a manor, which is corporeal property, may have the advowson or perpetual right of presentation to the parish church; and this advowson, which, being a mere light to present, is an incorporeal kind of property, may be appendant or attached, as it were, to the manor, and constantly belong to every owner. But, in many cases, property of an incorporeal nature exists apart from the ownership of anything corporeal, forming a distinct subject of possession; and, as such, it may frequently be required to be transferred from one person to another. An instance of this separate kind of incorporeal property occurs in the case of an advowson or right of presentation to a church, when not appendant to any manor. In the transfer or conveyance of incorporeal property, when thus alone and self-existent, formerly lay the practical distinction between it and corporeal property. For, in ancient times, the impossibility of actually delivering up any thing of a separate incorporeal nature, rendered some other means of conveyance necessary. The most obvious was writing; which was accordingly always employed for the purpose, and was considered indispensable to the separate transfer of every thing incorporeal (a); whilst the transfer of corporeal property, together with such incorporeal rights as its possession involved, was long permitted to take place without any written document (b). Incorporeal property, in our present highly artificial state of society, occupies an important position; and such kinds of incorporeal property as are of a real nature will hereafter be spoken of more at large. But for the present, let us give our undivided attention to property of a corporeal kind; and, as to this, the scope of our work embraces one branch only, namely, that which is real, and which, as we have seen, being descendible to heirs, is known in law by the name of hereditaments. Estates or interests in corporeal hereditaments, or what is commonly called landed property, will accordingly form our next subject for consideration.
Corporeal and incorporeal.
(t) Quaere, however, whether Lord Coke would have agreed that a lease for years is personal property or personal estate, though it is now clearly considered as such; and sec Swift v. Swift, 1 De Gex, F. & J. 1G0, 173; Belaney y. Belaney, L. R., 2 Ch. Ap. 138.
(u) 3 & 4 Will. IV. c. 10G, amended by stat. 22 & 23 Vict. c. 35, ss. 19, 20.
(x) Established by stat. 20 & 21 Vict. c. 77, amended by stat. 21 & 22 Vict. c. 95.
The distinction was in the mode of transfer.
(y) Bract, lib. 1, c 12, par. 3; lib. 2, c. 5, par. 7; Fleta, lib. 3, c. 1, sec. 4. (z) 2 Black. Com. 20.
(a) Co. Litt. 9 a.
(b) Co. Litt. 48 b, 121 b, 143 a, 271 b, n. (1).