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SECTION I. REAL PROPERTY.
Considerable confusion has arisen on account of the double use of the term real property; the term being used to represent both the tangible property itself and interests in such property. Not all interests in real property, however, are considered as real property; estates less than a freehold being considered personal property. A freehold is a life estate or an estate of inheritance. The reason why estates less than freehold are considered real property is to be found in the Feudal system. Under this system a life estate was the only estate which was considered worthy of acceptance by a freeman and all lesser estates were considered of such small importance that instead of being classed with freeholds, they were classed with the less important personal property.
SECTION 2. FEUDAL SYSTEM. The English law of real property from which the American law on this subject is taken in its entirety is based upon the Feudal system. The Feudal system has already been discussed under the subject of Legal History' and the following account from the Appendix to Thomas's Edition of Coke's Institutes is here inserted:
The feudal law was established by the nations which overturned the Roman empire. The first of these were the Vandals, the Suevi, and the Alani. They inhabited the countries bordering on the Baltic. About the year 406, they made an irruption into Gaul; from Gaul, they advanced into Spain; about the year 415, they were driven from Spain by the Visigoths, and invaded Africa, where they formed a kingdom. About the year 431, the Franks, the Allemanni, and the Burgundians penetrated into Gaul. Of these nations, the Franks became the most powerful; and having either subdued or expelled the others, made themselves masters of the whole of those extensive provinces, which from them received the name of France. Pannonia and Illyricum were conquered by the Huns; Rhætia, Noricum and Vindelicia, by the Ostrogoths; and these were, some time after, conquered by the Franks. In 449, the Saxons invaded Great Britain. The Herulians marched into Italy, under the command of their king Odoacer, and in 476, overturned the empire of the West. From Italy, in 493, they were expelled by the Ostrogoths. About the year 568, the Lombards, issuing from the Mark of Brandenburgh, invaded the Higher Italy, and founded an empire, called the kingdom of the Lombards. After this, little remained in Europe of the Roman Empire, besides the Middle and Inferior Italy. These, on the final division of that empire, between the sons of Theodosius, in 395, had fallen to the share of the emperor of the East, who governed them by an officer called the exarch, whose residence was fixed at Ravenna, and by some subordinate officers, called dukes. In 743, the exarchate of Ravenna, and all the remaining possessions of the emperor in Italy, were conquered by the Lombards. This, as it was the final extinction of the Roman empire in Europe, was the completion, in that quarter be,
1 Vol. I, Subject 2.
of the globe, of those conquests which established the law of the feud.
The nations by whom these conquests were made, came, it is evident, from different countries, at different periods, spoke different languages, and were under the command of separate leaders; yet they appear to have established in almost every state, where their polity prevailed, nearly the same system of laws. This system is known by the appellation of the feudal law.
Sir Henry Spelman, after Cujus, defines a fief to
" A right which the vassal hath in land, or some immovable thing of his lord's, to use the same and take the profits thereof, hereditarily, rendering unto his lord such feudal duties and services, as belong to military tenure; the mere propriety of the soil always remaining to the lord.” This definition appears accurate and comprehensive; and an analysis of it may point out those peculiar and characteristic marks, which distinguish the feudal law from every other.
1st, Where the soil and the right of the profits of the soil, meet in the same person, he may be said to have an absolute and unmixed estate in his lands. This absolute and unmixed estate, the subject of every kingdom, not governed by the feudal polity so far as respects the relation between sovereign and subject, appears to possess. But, by the feudal law, with respect to the relation between the sovereign and the subject, the right to the soil and the right to the profits of the soil, were separate; the tenant being invested with the latter, the sovereign continuing to be entitled to the former. This right to the profits was of the most extensive nature; it gave the tenant, except for the purpose of alienation, the complete power or dominion over the land, during the term of his tenure. Thus his estate and interest, as to the right of ownership, far exceeded that of the usufructuary in the civil law, to which it has sometimes been compared, as the usufructuary had a mere right to the ordinary profits of the usufruct, and was not permitted to make any change in it, even for its amelioration. It approached nearer to the estate of the emphyteuta, in the same law, as the Dominium directum was absolutely vested in him. It approached, perhaps, still nearer to the estate of a cestui que trust in the actual law of England, which has been termed a feudal idea, grafted on Roman jurisprudence. The precise nature of it, is no where, perhaps, better explained, than in lord Stair's Institutes. “It is,” says his lordship, “essential to a fee, and common to all kinds thereof, that there must remain a right in the superior, which is called Dominium directum, and withal a right in the vassal, called Dominium utile; the reason of this distinction, and terms thereof, is, because it can hardly be determined, that the right of property is either in the superior or vassal alone, so that the other should only have a servitude upon it; though some have thought superiority but a servitude, to wit, the perpetual use and fruit; yet the conciliation and satisfaction of both have been well found out in this distinction, whereby neither's interest is called a servitude; but by the resemblance of this distinction in law between jura et actiones directo, and those, which for resemblance, were reductive thereto, and therefore called utiles, the superior's right is called Dominium directum, and the vassal's Dominium utile, and without these the right cannot consist.” This right in the vassal to the use and profits of the land, while the direct dominion of the land remained in the lord, was, with respect to the relation between the sovereign and the subject, a new and original point of connection, and one of those marks which distinguish the feudal from every other law.
2. Another of these marks, is, that immovable or rea, property only, was admitted to be held in feudality, or in other words, to be the substance of a fee. Wherever the conquerors, we speak of, established themselves, they seized whatever they desired of the property of the conquered, and the General allotted it to the superior officers of the army, and these again divided it, in smaller parcels, among the inferior officers. The moveable, as well as the immovable property of the conquered, was seised and divided by the conquerors; but moveable property, from its fluctuating and perishable nature, was ill calculated to serve, either as the sign, or the subject, of a permanent connection. This was particularly the case in those days, when it had in no point of view acquired, or was considered susceptible of those artificial modifications, or other durable qualities, in the intendment of law, which it now possesses. Land, therefore, or immovable property, alone, became the subject of feudal tenure. As the notions of men respecting property increased, the modifications of it were also multiplied, and all of them were considered as susceptible of feudality. Thus every species of right or servitude, to which land is subject, was given in fee. At an early period of the feudal law, we find mention of fiefs de camera and
The former was a pension granted by the lord to be paid out of his treasury; the latter was a quantity of corn, or other grain, granted by the lord, to be delivered out of his granary. In progress of time, money charged upon land was, in some countries, held to be feudal; and even mere money was, at last, in