280 



PROPERTY. 



PKi H'KKTY. Property consist* of material things, 

 and rights growing out of such things, to and of wbk-h 

 one hiui the exclusive riirlu and possession. The earli- 

 est division of property known to the English law was 

 into "real" and personal." So far an the subject 

 matter is concerned, real property includes land, min- 

 erals in it. what is grown or built upon it, and certain 

 riffhts which are connected with or issue out of it. 

 All other forms of pro|>erty whatsoever are personal. 



REAL PROPERTY. 



The la 



governing real property was developed 

 v _. under the feudal system. The theory 

 ,,.: of this system was that the king was 

 Am^LpO. ' the absolute owner of all the land 

 in the kingdom and granted por- 

 tions of it to certain of his subjects who, in turn, sub- 

 divided their respective shares and granted portions to 

 others. What was conveyed by these grants, however, 

 was not the land itself but an interest or an estate in 

 the hind, and therefore every one who held land, ex- 

 cept the king, was called a tenant because he held 

 under some superior lord, and all held, finally, either 

 mediately or immediately, of the king, who was the 

 lord paramount. The interest in land which a subject 

 had was called his estate. 



All subjects held their lands feudally ; that is, under 

 ome superior to whom they were bound to render 

 allegiance and service in return for the land ; the king 

 held allodially ; that is, he held the land itself, and was 

 under no obligations to any superior. 



The tenure by which these tenants, if they were 

 freemen, generally held the land was upon condition 

 of performing military service ; of following their lord 

 to the war and furnishing from among their retainers a 

 certain number of armed men. The tenant also swore 

 allegiance to his lord and promised to be subject to his 

 commands. If the tenant was not a freeman the ser- 

 vices he rendered were of some menial kind. 



There were certain incidents connected with this 

 military tenure. The tenant was bound to ransom his 

 lord if he was captured ; to pay the expense of making 

 his lord's eldest son a knight ; to give his eldest daugh- 

 ter a marriage portion. He was also bound to pay fur 

 the privilege of being his lord's tenant. The lord was 

 entitled to the wardship of his tenant's heir if he was 

 a minor. The tenant was obliged to pay for the priv- 

 ilege of transferring his estate, and, by reason of the 

 lord's superior title, the land reverted to him when the 

 tenant died and left no heirs. 



As these military tenures became vexatious on ac- 

 count of the uncertainty of the amount and time of 

 service which the tenant was to render, they were all 

 changed, in the reign of Charles II., into what was 

 called tenure by free and common socage, when the 

 military feature was abolished and the service upon 

 which the estate was held was of some certain and 

 honorable nature, as payment of money, or perform- 

 ance of some work or duty, to the lord. This tenure 

 was still feudal in its nature and had many of the in- 

 cidents of military tenure, but the amounts or fines to 

 be paid were fixed by statute, and the service was ren- 

 dered loss onerous. 



This socage. tenure, as it is called, is probably the one 

 under which lands in this country were held under the 

 English grants. Every acre, as it has been said, was 

 held either mediately or immediately of the king. l!y 

 tin- Revolution the sovereign, proprietary, ana terri- 

 torial rights of the crown of (Iro.it Britain passed to 

 the people of the various colonies. As the people of 

 each colony took the place of the former sovereign, and 

 the social condition which grew up was entirely differ- 

 ent in its structure from the old order, the superior 

 lords diMppwmd, and most of the incidents of the 

 feudal tenure fell into disuse. Whether the holding 

 of lands in the United States is feudal or allodial is a 

 lncMioii alxuit which the opinions nf jurists of ci|ii.il 

 eminence differ. No State, it is believed, ever a 



the claims of tenure and fealty from its citisens by 

 reason of their holding of lami. Some States have 

 rejected the existence of tenure and fealty ; and others 

 have, by statute, abolished feudal tenure. Some of the 

 courts of last resort have declared that lands are held 

 allodially. Perhaps the true view is, that while the 

 nomenclature of real-estate law and the forms of con- 

 veyancing still suggest some traces of feudal tenure, 

 lands are actually held as nearly allodially as they can 

 be when the holders are mnnlicrs of society under any 

 form of government. Allegiance of the citizen to the 

 government is still obligatory, but is independent of 

 the holding of real estate. And the claim- of 'eminent 

 domain and escheat are not put upon the ground of 

 any superior title in the government, but are enforced 

 I iy reason of the agreement and consent of the citizens. 



Land titles in parts of this country as Louisiana 

 and some of the South-western Territories are derived 

 from thecivil, and not from English common, law. The 

 nature of the estates, and the rights and obligations of 

 their owners, are, however, essentially the suuie for all 

 practical purposes at present under either system. 



The interest which a man has in lands is still called 

 his estate, and may be of greater or less duration. 

 Under the feudal system a man could not have posses- 

 sion of the soil unless he had a freehold estate, which 

 was defined to be "the possession of the soil by a free- 

 man." This did not mean the unqualified and abso- 

 lute ownership of the land, but the possession of it 

 under the superior rights ami title of his lord, as dis- 

 tinguished from the mere riirht to use the soil. Under 

 the artificial system of the English law it was thought 

 a freeman could not have the po.-scssion of the soil for 

 a less period than his life a freehold estate came to be 

 an estate for life at least; and so now the smallest 

 estate in real property is an estate for life, and a free- 

 hold is cither an estate for life or a greater interest. 

 An estate for life may be created to last cither during 

 the life of the person to whom it is granted or during 

 the life of some other person. In either case its exist- 

 ence is measured by a life, and the rights of the owner 

 are limited to that period ; he cannot sell a larger 

 interest than he possesses, nor can he dispose of it by 

 will. At the expiration of the life the estate ceases to 

 exist. A life-estate may be created by deed or will or 

 by operation of law. Upon the death of a husband or 

 wife the law gives to the survivor an estate for life in 

 the hinds of the decedent. What portion of the de- 

 cedent's estate shall go to the survivors is generally 

 fixed by the intestate laws of the different States. The 

 homestead estate is an interest in lands which is created 

 by statute in most of the United States. Its general 

 incidents are similar to those of a life-estate, although 

 it sometimes continues after the death of the husband 

 for the benefit of the wife during widowhood, or of the 

 minor children. This interest is intended lor the ben- 

 efit and support of the family, and is therefore allowed 

 to a householder, who is also the head of a family, or 

 to the widow and minor children. Sometimes, how- 

 ever, it is allowed to any householder, although unmar- 

 ried. It cannot be taken in execution for the owner's 

 debts, and its disposal is generally restrained so far an 

 not to allow the object for which it is created, that is, 

 the support of the family, to I" 1 defeated. 



The largest freehold known to the law is an estate 

 in fee-simple, which is created by granting or devising 

 land to one and his heirs forever. This interest is 

 without end. The owner inny change, but the estate 

 will not diminish. The then owner may grant or 

 devise out of his fee-simple a smaller estate, as for life, 

 to another person, but at. the expiration of this life- 

 estate the fee will return to the owner, or those who 

 then represent him : or he may. by selling his fee. give 

 to the purchaser tlic same unending interest that he 

 possessed. He may dispose of his entire interest by 

 will, subject to the rights of his surviving wife and to 

 special statutory limitations peculiar to individual 

 States, and, if he die without a will, his estate will 



