Slike strani
PDF
ePub

tenement, and whereof he is seised, ut de libero tenemento." 11

SECTION 9. HEREDITAMENTS. "But haeretidtamentum, hereditament, is the largest word of all in that kind; for whatsoever may be inherited is an hereditament, be it corporeal or incorporeal, real or personal or mixt."' 12

“An heirloom, though neither land nor tenement, but a mere moveable, yet being inheritable, is comprised under the general word, 'hereditament' and a condition, the benefit of which may descend to a man from his ancestor, is also an hereditament.”' 13

Hereditaments are divided into corporeal and incorporeal hereditaments. Most authors on real property state the distinction between corporeal and incorporeal hereditaments to be that the former is the thing itself and the latter only some interest in it. This view is however, entirely erroneous, as hereditaments of either class, are merely interests in the land.

SECTION 10. INCORPOREAL HEREDITAMENTS.

The true distinction between corporeal and incorporeal hereditaments has been quoted as follows:

'While the term 'incorporeal' is still employed to designate certain kinds of real property of an invisible or intangible nature, yet its original and early significance has wholly disappeared. The test or distinction between corporeal and incorporeal property, as these terms were used at common law, lay in the fact of susceptibility of actual delivery, and such things as were incapable of same, because of their intangible nature, were denominated incorporeal. Being inca11 Coke's Institutes, Vol. I, page 219.

12 Id.

13 Id.

pable of an actual delivery, they could be transferred or conveyed only by grant or deed; hence incorporeal property was said to lie in grant, while corporeal property, or such as admitted of some manual and visible act of delivery, was said to lie in livery.”' 14

The ten important species of incorporeal hereditaments at common law were as follows: adowsons, tithes, commons, ways, offices, dignities, corodies, annuities, franchises, and rents.

The only incorporeal hereditament recognized in this country at the present time, is that of right of way.

SECTION 11. EASEMENTS. An easement is sometimes classified as an incorporeal hereditament, but at other times it is a mere license.

An easement is a right in favor of some person of property imposed upon another piece of property. The land to which the right is attached is called the dominant tenement and that in which it exists is called the servient tenement. Easements themselves are classified as appurtenant and in gross. The former are attached to a certain part of land and passed with it. The latter belong to some individual and are not assignable.

Easements are also classified as affirmative and negative. An affirmative easement is one which allows the owner of the dominant tenement to do some act on the servient tenement, as to cross over it, in the case of a right of way. A negative easement is one which prohibits the owner of a servient tenement from doing a certain thing on or in relation to his land. An illustration of this would be where a land owner was 14 Warvelle on Real Property, page 50

prohibited from building on a certain portion of his land for the benefit of the adjacent land-owner.

SECTION 12. FIXTURES.

The term "fixtures” is one of doubtful meaning, being used in different works and decisions in a diametrically opposite significance. Applied in the former sense is to apply the terms trade, agricultural and domestic fixtures to those fixtures which may be severed from the land contrary to the general rule. Ordinarily, however, personal property is annexed to the land in a substantial and permanent manner and becomes itself, real property. Also what is known as constructive annexation which exists in the case of those articles which are not fastened to the realty themselves are made for the purpose of being used in connection with property so annexed. Keys and blinds would furnish illustrations of constructive annexation.

The law makes exceptions to the general rule governing annexation in the case of property annexed to the realty by the person rightfully in possession, but not the owner, for trade in domestic or agricultural purposes. Such can be removed, provided such removals will not inflict substantial injury upon the property, and provided also, that the property is severed from the realty before the termination.

[blocks in formation]

Emblements is the rights which the owner of an estate of uncertain duration has in crops which were planted but not harvested, at the time of the termination of the estate. Emblements do not exist in favor

Vol. VI.-3

of the holder of an estate for a certain period as in such a case the termination of the estate could have been foreseen and the tenant had no right to plant the crops.

.

SECTION 14. ESTATES AND TITLES.

The greater part of this subject is taken up with the treatment of the various species of estate and titles in real property. It is important at the outset to clearly understand the distinction between the meaning of these two terms.

An estate in the interest which a person holds in land, while a title is the method by which such interests is acquired or the authority for holding it. Chapters II to V are taken up with subject of estates, while chapter VI is devoted to that of Titles,

CHAPTER II.

ESTATES CLASSIFIED AS TO QUANTITY.

SECTION 15. CLASSIFICATION. Estates as to their quantity are first divided into freeholds and less than freeholds. Freeholds are subdivided into estates of inheritance and freeholds less than inheritance. Freeholds of inheritance include estates of fee-simple and fee-tail. Freeholds less than inheritance include the various kinds of life estates. Estates less than inheritance are subdivided into estates for years, estates at will, estates from year to year and estates at sufferance.

SECTION 16. FREEHOLDS. “Freeholds, or estates of indeterminate duration, are in turn divided into estates of inheritance or in fee, and estates not of inheritance, or for life. The former being, where the interest devolves upon successors without end, i. e., when there is no assignable event, certain to happen, upon which the rights will come to an end; the latter is where the interest does not devolve and the rights terminate on the happening of an assignable but uncertain event. At Common Law the former was subject to a further division into absolute and limited estates of inheritance, but this distinction has been abolished in the United States, although a very faint resemblance yet exists in some states.? See Appendix A to Real Prop- · Warvelle on Real Property, p. 69.

erty for Charts showing the classification of estates.

« PrejšnjaNaprej »