1. Property means things owned, and is divided into:
(a) Real property, and
(b) Personal property.
Real and Personal Actions.
For our present purposes, property Is divided into two classes,- real property and personal property.1 The terms come from the old division of the actions given a man deprived of his property into real actions and personal actions. All things which could be recovered in real actions were real property, and all other property was personal.2 In real actions there was an actual recovery of the land itself, but in personal actions there could be no recovery of the real thing, except in the action of replevin. The person detaining it could not be compelled to deliver the identical thing, but might elect to pay damages.3 The action was accordingly in personam to obtain damages, and the property involved was called "personal property."
1 This division, and similar ones in other systems of law, is historical, and not philosophical. See Maine Anc. Law (3d Am. Ed.) p. 266. Real prop. - 1
Importance of Distinction between Real and Personal Property. The principal differences between real and personal property are as follows: On the death of the owner, realty passes at once to the heir or devisee,4 while personalty goes to the personal representative, and through him to the distributee or legatee.5 The personal property of a decedent is to be used in paying his debts before his realty.6 The modes of transferring real and personal property are different. The ownership of realty is now transferred by means of a written instrument, executed with certain prescribed formalities,7 while personalty passes generally by sale and delivery, without more.8 So, also, there are different requirements as to the form and recording of mortgages affecting them.9 Then, again, a transfer of real property is governed by the law of the place where the land is situated,10 but of personal property by the law of the domicile of the owner.11 There are differences in form and place of bringing action for damages to lands and to chattels.12
2 Co. Litt. 121a, Butler & H. note 1; Bouv. Law Dict tit. "Real Property." It has been suggested that the term "mixed" be added to cover those things which may be real or personal according to circumstances. Kelke, Real Prop. 4.
3 Dig. Real Prop. (4th Ed.) 71, note 2.
4 1 Woerner, Adm'n, pp. 15, 408. 5 1 Woerner, Adm'n, p. 409.
6 2 Woerner, Adm'n, p. 1093.
7 Post, p. : 398.
8 Tiff. Sales, p. 83.
9 stim. Am. St. Law, arts. 185-194, 453; post, p. 218; 1 Schouler, Pers. Prop. (2d Ed.) c. 6.
10 Post, p. 474.
11 Story, J., in Black v. Zacharie, 3 How. (U. S.) 483, 614; Woerner, Adm'n, p. 131.
12 l Jag. Torts, p. 102 et seq.