This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Sec. 1. Land as the object of rights.
5. Lands, tenements and hereditaments.
Material things, regarded as the objects of legal rights, belong to either one of two classes, that is, they are either (1) land, or things so annexed to land as to be considered a part thereof, or (2) articles of a movable character, not annexed to land, or not so annexed thereto as, in the view of the law, to be part thereof. This classification of the objects of rights, based as it is on an essential difference in their character, was recognized in Roman law and in systems derived therefrom; but in English law it attained a peculiar importance,1 by reason particularly of the extended development of the doctrine of estates in connection with land,2 a doctrine which has received, even down to recent times, but a halting and limited recognition in connection with movables;3 and to a less degree by reason of the fact that the movables of one deceased passed, under the English law, to the executor or administrator, to be applied by him, under the supervision of the ecclesiastical courts, primarily to the payment of the decedent's debts, while land, in which the decedent had an estate of inheritance, passed, free from liability for debts, to the heir of the decedent.4
1. See Salmond's Jurispru- Ancient Law (3rd Am. Ed.) 265, dence (4th Ed.) 390; Digby, 274; Holland's Jurisprudence
Hist. Real Prop. (4th Ed.) 301: (9th Ed.) 98. Leake, Prop. in Land 1; Maine's
At the present day land is, in all jurisdictions, liable for the debts of the decedent, but in a number such liability is enforced against land in courts of equity only,5 while it is enforced against movables in courts of probate, in which courts is vested the jurisdiction formerly vested in the English ecclesiastical courts. Moreover land is for the most part not applicable to the payment of a decedent's debts until the balance of his property has been exhausted.6 In a number of states, by force of statute, all land passes on death to the executor or administrator, to be administered by him along with the other assets of the decedent, but there are quite as many in which there is no such departure from the common law.7 In some jurisdictions the persons to whom land descends on the owner's death intestate, the heirs, are different from those who succeed to the ownership of movables, the distributees.8
Apart from the legal differences between land and movables, arising from the extended development of the doctrine of estates in connection with land, and those existing in connection with the disposition of a decedent's property, there are important classes of rights existing in the case of land which have practically no counterparts in the case of movables, such rights arising in part from the natural juxtaposition of pieces of land owned by different persons, and in part from the fact that land is in its nature capable of diverse uses, and that of these uses one is frequently susceptible of detachment from the ownership and possession of the land itself. In the case of movables there is no natural juxtaposition, and they are usually capable of but one use, which is dependent on the possession of the thing itself.
2. See post Sec. 17.
3. As to the doctrine of estates in connection with personal chattels, see Gray, Perpetuities, Appendix F; Article by David T. Oliver in 24 Law Quart. Rev. at p. 431; Williams, Personal Prop. (17th Ed.) 393; Schouler, Personal Prop. ch. 7.
4. Post Sec. 487.
5. Post Sec. 551.
6. Woerner, Administration, Sec. 489 et seq.
7. Woerner Sec.Sec. 337, 463.
8. But the tendency of the statutes is to make interests in land and in movable chattels pass to the same persons. See Stimson,
A distinction is, in modern times, generally made by statute between land and movables as regards the form of creation or transfer of rights therein; the mere delivery of possession being ordinarily sufficient in the case of the former, while, for the transfer of any but the smallest interests in land, a written instrument is required.9
Land, having a fixed location, is controlled in all respects, including the mode of its transfer, and the rights of succession on intestacy, by the law of the place where it is located, the lex rei sitae, as it is called; while movable chattels are regarded by fiction of law as accompanying the person of the owner, and are therefore controlled by the law of the place of his domicile.10
Am. Stat. Law Sec.Sec. 3101, 3104; Woerner, Administration Sec.Sec. 67-70. "Heirlooms," in ancient times, were chattels which, by the custom of an estate or a place, descended to the heir. Co. Litt. 18b. 185b. Such heirlooms are now obsolete even in England, and what are now called heirlooms are merely chattels expressly limited, so that they will pass along with the land. Deer, fish, and the like in a private park, mentioned by Blackstone (2 Comm. 428) as be ing heirlooms, are not such, but when they pass to the heir, do so as being ferae naturae. See Leake, Uses and Profits of Land 77, 136. Heirlooms by custom have never existed in this country.
9. Williams, Pers. Prop. (17th Ed.) 69; Browne, Statute of Frauds, c. 1; 1 Stimson's Am. St. Law, Sec. 4143.
10. Minor, Conflict of Laws, Sec. 13; Dicey, Conflict of Law (2nd Ed.) 77; Westlake, Private International Law (5th Ed.) Sec. 164;
The remedies for the recovery of land and of movables have always, except in case of the abolition of the forms of action by statute, been entirely different. Furthermore, actions involving land must ordinarily be brought in the jurisdiction where the land lies, as "local actions," while those involving movables are generally "transitory" in their nature.11