PBOPEKTT. 



rilOI'KUTV. 



600 



thus man may enjoy an estate solely or in joint-tenancy ; hu enjoy 

 meat may be oo-exteoaire with the largest amount of legal enjoyment 

 of any Mtate, or it may be limited by the contemporaneous right* of 

 other* in or to the property in which he baa an estate ; that U, ho may 

 hare the legal enjoyment for a il< t< iminate time, subject to various 

 limitations mid abridgments of the fullest enjoyuient of property. The 

 time when the enjoyment of the estate shall commence ia also con- 

 sidered a part of iU quality ; and the time of enjoyment commencing 

 U either present that ia, contemporaneous with the acquisition of the 

 estate or future. It may not be unelcas to remark, that here and 

 elsewhere, where the word estate ia used in its technical sense, it does 

 not mean the thing enjoyed, but the quantity and quality of enjoyment 

 of the thing. 



Independent of the quality and quantity of an estate, there is another 

 modification of projwrty which requires notice. A person may hare 

 the estate both as to quantity and quality in the sense above explained, 

 either with or without the right to the beneficial enjoyment. The 

 person who has merely the estate in quantity and quality, has the bare 

 legal estate. He who has not the right to the estate in quantity and 

 quality, as above explained, but merely to the enjoyment of such 

 estate, while the other has not, is said to have the equitable estate. 

 The term quality of estate might be used to express this equitable 

 interest ; but inasmuch as we want a word to extras* the manner and 

 mode of enjoying an estate as distinct from the time of enjoyment, 

 and as quality is the word used to express that manner and mode, it 

 must not be used iu a different sense. The explanation of the nature 

 of an equitable as distinguished from a legal estate belongs to Uses and 

 Trusts. 



It ha* been said that this distinction between legal and beneficial 

 or equitable property is peculiar to the English law. (Lord Mansfield, 

 1 ' T. It,' 75S>, n.) l!ut these two kinds of property existed in the 

 Roman law, and the theory of the division of ownership or property 

 into '/uirilarian, or legal, and bonilarian, beneficial, or equitable, was 

 fully developed. Its origin in the Roman law is not certain ; but it is 

 a probable conjecture that its origin so far resembled the origin of the 

 like division in English law, that it was due to the attempt to get lid 

 of the difficulties attending the alienation of property by the old legal 

 forms. " There is," says Oaius (ii. 40), "among other nations (pere- 

 yrini) only one kind of ownership or property (itomiiiium), so that a 

 man is either owner or not ; and it was the same in the old Roman 

 law, for a man was either owner e.rjure quiritium, or he was not. But 

 ownership was afterwards divided, so that one man may now be owner 

 of a thing ejr jure quiritium, and another may have the same thing in 

 txmit. For if, in the case of a res mancipi, I do not transfer it to you 

 by waiwipafio, or in jure cetrio, but only deliver it, the thing indeed 

 will become yours beneficially (in toni*), but it will remain mine 

 legally (ex jure quiritium), till you have acquired the property by 

 usucapion ; for as soon as the time of usucapion is completed, from 

 that time it begins to be yours in full ownership (pleno jure) ; that is, 

 the thing begins to be yours both in bonu and in jure, just as if it had 

 been transferred by manci patio or in jure cemio." This passage seems 

 to suggest a conjecture as to the origin of the distinction between legal 

 and equitable property which was of so much importance in Roman 

 law. The distinction between the two kinds of ownership or property 

 was as clearly marked as in our system, though it was not applied to 

 all the purposes to which this divided or double ownership in applied 

 in our system. 



8. The modes in which property is legally transferred from one 

 person to another. 



Property may either be acquired in a single thing, or in several 

 things of the same kind at one time ; or it may be acquired in a great 

 variety of different kinds of things at the same time, which pass to the 

 new owner, not as individual things, but as the component parts of a 

 whole property. The Roman law designated the former mode of 

 acquisition by the term atquiritio rerun tinrfularum ; and the latter by 

 the term omMNs per unirrrtitattm. Though the two modes of 

 acquisition exist in our law, there are no names for them by which 

 they are placed in opposition to one another. The case of acquitilio 

 per umirenitalnn , or of universal succession, occurs when a man is 

 made a bankrupt or insolvent, and an assignee or assignee* are 

 appointed [B*xitBfiT; INSOLVENT], in which cases the whole of a 

 man's property, real and personal, as well as his righto and obligations 

 generally, become the legal property of the assignee or assignees, and 

 > applicable ami must be applied according to the rules of law in the 

 ease* of bankruptcy and insolvency. With respect to personal pro- 

 perty, universal succession occurs when a man by his last will ap|>ints 

 an executor; and an administrator with the will annexed, or without 

 the will annexed when there is none, thereby acquire* the whole per- 

 sonal property of the intestate-. Both the heir and devisee also, in 

 a sense take by universal raccewion. 



A* to both singular and universal succession, the modes of acquisition 

 of estate* in thing* real arc reducible to two general heads descent 

 and purchase. "Descent, or hereditary succession, is the title whereby 

 a man on the death of his ancestor acquires hi* estate by right of repre- 

 sentation a* his heir at law " (Blackstone) ; and an estate so acquired U 

 commonly called an estate of inheritance. 



Purchase, which is corrupted from the Latin word pcrguititio, is 

 defined by Littleton (i. 12) to be "the j-onsession of lands or tene- 



ment* that a man hath by his deed or agreement, unto which possession 

 be cometh not by title of descent from any of hi* ancestors, or of hi* 

 cousins (tt>nMH</Mt'MCT), but by his own deed." Purchase, a* thus 

 defined, comprehends all the modes of acquiring property l.\ <l< 

 agreement, and not by descent; but it i* not a < "'< <>f 



purchase, as now understood, for it omits the laixlc of oo|ui ititi i y 

 will or Uwtamrnt, which, however, when Littleton wrote, w:is m 

 paratively small importance, as the pow< UK lauds did not 



then exist, except by the custom of particular plaovs. Blackstono 

 makes the following enumeration of the mode* of purchase : Escheat, 

 Occupancy, Forfeiture/and Alienation. As to escheat, there is some 

 difficulty in the classification, as the title appears to be partly by 

 descent and partly by purchase. 



The head of alienation comprehends every form by which a man 

 transfers property to another : it comprehends, tin i alien- 



ations made by a person during his life, and the disposition of his 

 property by his last will and testament. The disposition of pr^n-i-ty 

 by will has this peculiarity about it, that though the instrument 

 be completed in legal form during the lifetime of the giver, the ] 

 tn whom the property is given do not thereby obtain the pn. ; 

 they only obtain it by the death of the giver, who by 

 becomes incapable of giving, but whose continuing intention to give is 

 testified by the continuing existence of the instrument of 



The [articular modes of alienation by deed are to a certain extent 

 determined by the estate which the alienor possesses, and the estate 

 or estates which he intends to transfer. The forms of alienation on) 

 noticed under their various heads. 



4. The legal capacity for the acquisition of estates in lands, tene- 

 ments, and hereditaments, is most briefly and conveniently shown by 

 the enumeration of the classes of persons who labour under legal 

 incapacity ; and in like manner, as to the alienation or loss of estates, 

 it is most conveniently shown by enumerating the persona who, owing 

 to mental incapacity, infancy, or other causes, tab r legal 



incapacity to transfer or lose estates. This division : ids so 



much of the status of aliens, infants, lunatics, and married women, as 

 relates to the acquisition or loss of e> 



Personal property is not sufficiently described by the term " move- 

 ables," for certain estates in land ore personal property, and are 

 comprehended under the term chattels real. Terms for years 

 example of chattels real ; and they pass together with the rest of a 

 man's personal estate to the executor, the universal successor. < 

 personal are all other personal property, and are said by l)l;i 

 " to be properly and strictly speaking tilings moveable, which may be 

 annexed to or attendant on the person of the owner, and carried about 

 with him from one port of the world to another. Such are animal.", 

 household stuff, money, jewels, coin, garments, and every thin 

 that con properly be put in motion, and transferred from place to 

 place." Personal property as thus defined corresponds to the i, 

 or res mobile! of the Roman law; but this is a very imul 

 description of personal property as recognised by the English law. 

 And herein we first perceive the greater certainty and distinctness of 

 the law relating to real property compared with the law relating to 

 chattels; the things which can be the objects of real propei: 

 defineable, as well as the estates that can be had in them ; tin- 

 that can be the objects of personal property are hardly ill 

 and the estates, or more properly the interests, which a man may 

 have in them, ore perhaps also less determinate. As examples of 

 objects of personal property, which in no way come within Ulack- 

 stoue's description, we may instance patent-rights, which 

 incorporeal, though not hereditaments, and are the object, of pro 



A quantity of stock in the public funds is not money, though often 

 talked of as such, but still it is property. I - due to a 



testator or intestate are considered as property with respect to probate 

 and letters of administration ; still they are not expressed by the term 

 goods and chattels in the letters of administration, but by the 

 " credits," for as debts are not the property of a man to whom they 

 are due, so they cannot become property because he happens to dia. 

 Things can be assigned by the person who has a claim to them, though 

 they may be things which cannot be called his property : a chose in 

 action is an instance of this. Blackstone observes : " the money due 

 on a bond is a chose in action : for a property iu the debt vests at the 

 time of forfeiture mentioned in the obligation, but there is no 

 possession till recovered by course of law." lie had just before spoken 

 of the nature of property in action being such that a man " hath not 

 the occupation, but merely a bare right to occupy the thing in quc-- 

 From this it appears that he treats a debt due to a man as a ].i 

 belonging to him, whereas the debt due merely gives a right of action 

 to recover a determinate sum of money, or a sum which is U>- 

 some determinate sum. In this instance, says Blackston.-. tin' 

 property or right of action depends upon an express coutr.i 

 obligation to pay a stated sum." Here he uses property and right of 

 action as synonymous, which is incorrect; for property implies a 

 determinate thing, and a right of action may be citli rmi- 



nate thing or to compel a person to do some dctcrmin.it*! act. The 

 thing claimed is properly enough called a "thing in action." 1> 

 action i* not to have a thing, but that the defendant shall do a < 

 act Blackstone observes, in a note, that the same idea and the same 

 denomination of property prevailed in the civil law, but this is a 



