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 .
In connection with the law of land we find frequent reference to "real property" and "real estate." These expressions are derived from the names formerly given to different classes of actions, "real actions" and "personal actions." Real actions were those in which one who had been deprived of a freehold interest in land, or of any of those "incorporeal" things which are assimilated to land by the English law,16 could obtain restitution of the very thing itself of which he had been deprived; while personal actions were those to which one deprived of goods or chattels was compelled to resort, and in which he could not insist upon recovery of the very thing itself, but might, at the option of the defendant, be compelled to take the pecuniary value of the thing. The two classes of action were accordingly said to "sound in the realty" or "in the personalty," respectively.17 From this use of the expressions "real" and "personal" as descriptive of the two classes of actions, it came about that the same expressions were applied to the respective subjects of actions, those tilings which were recoverable specifically being termed "things real,"18 or "the realty"19 while those things not so recoverable, and for the wrongful withholding of which damages only could be recovered, were termed "things personal."20 At a subsequent date, apparently in the earlier half of the seventeenth century, the aggregate of one's possessions, having become known as his "estate," his things of a real character came to be known as his "real estate" and his things of a personal character as his "personal estate." And at the present day the expression "real estate," or its equivalent "real property" is frequently applied in connection with proprietary interests in land, without specifying any person as the owner thereof. That is, the land, or some interest therein, is referred to as real estate, or real property, and not as a particular person's real estate or real property.
16. See post Sec. 4.
17. Litt. Sec.Sec. 492, 500; Co. Litt. 118b, 285a, 288b. This distinction between the two classes of actions originated with Bracton, who appropriated the terms of Roman law, "actio in rem" and "actio in personam" (see 2 Pollock & MaitSec. 3 ]
While one who had an estate of a freehold character21 could, from an early period in the development of the English law, recover the land itself if wrongfully deprived thereof, it was not until a comparatively late period that one who had an interest in land, Hist. Eng. Law, 173), on the theory that the former phrase properly designated an action in which the thing itself could be recovered, and the latter an action in which the final recourse was against the person only. These terms were afterwards changed into the forms actio realis and actio personalis, and these latter were translated as above. The distinction between "actiones in rem" and "in personam" in Roman law was, however, not based on the character of the relief granted, but purely on the character of the rights involved. See on this subject, the learned article by Mr. T. Cyprian Williams in 4 Law Quart. Rev. 394, on whose researches, as incorporated in that article and in the later editions of Williams on Real Property, the statements here made are based.
18. Co. Litt. 288b.
19. Litt. Sec. 500; Co. Litt. 20a
20. Litt. Sec.Sec. 496, 497; Co. Litt 198a, 288b.
21. See, as to estates of freehold and less than freehold, post Sec. 19.
[ Sec. 3 land, not of a freehold character, such as a tenant for years, could do so.22 Consequently such interests were not regarded as real things, or as constituting part of the realty, and even after the right of the tenant to recover possession had been fully established, estates less than freehold were regarded as a part of one's "personal estate," which passed to his personal representative and not, as did a freehold estate of inheritance, to his heir.23 Such estates less than freehold, thus identified with personal property, are frequently referred to as "chattels real," and sometimes as "leasehold" estates or interests, they being ordinarily created by an instrument called a lease.
In view of what has been said above, it would appear that estates less than freehold in land are properly to be referred to as personal estate or property rather than as real estate or property, and the usage of some courts is in accord with this view, the expression real estate or real property being confined to estates of freehold.24 The courts frequently, however, use the expressions real estate and real property in a broad sense as applicable to any estates in land, whether freehold or less than freehold, as well as to land itself, regarded as the object of rights. And such use of these expressions by the legislatures is exceedingly frequent,25 partly owing, it may be presumed, to the fact that it corresponds to the ordinary use of the expression "real estate" 'among the members of the community generally.26
22. Post Sec. 38.
23. Post Sec. 54(c).
24. See Summerville v. Stockton Milling Co., 142 Cal. 529, 76 Pac. 243; Meni v. Rathbone, 21 Ind. 454; Combs Lumber Co. v. Chinn, 28 Ky. L. Rep. 715, 90 S. W. 251 (statute); Allender v. Sussan, 33 Md. 11, 3 Am. Rep. 171; Bubl v. Kenyon, 11 Mich. 249, 83 Am. Dec. 738; Hutchinson v. Bramhall, 42 N. J. Eq. 372, 382, 7 Atl. 873; Westervelt v. People, 20 Wend. (N. Y.) 416; Springfield
Southwestern R. Co. v. Schweitzer, 246 Mo. 122, 151 S. W. 128; Jones v. State, 70 Ohio St. 36, 1 Ann. Cas. 618, 70 N. E. 752; Townsend v. Boyd, 217 Pa. 386, 12 L. R. A. (N. S.) 1148, 66 Atl. 1099; Brown v. Robinson, 49 Tex. Civ. App. 157. 107 S. W. 873; Eadle v. Chambers, 96 C. C. A. 561, 172 Fed. 73: 24 L. R. A. (N. S.) 879, 18 Ann. Cas. 1096 (statute).
25. See "Words and Phrases Judicially Defined," sub. tit., Real Property.