Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/325

REAL ESTATE 307 exist only in contemplation." Corporeal hereditaments are all necessarily freehold ; l an interest in land less than freehold, such as a term of years, is personalty only. There was no room for such an interest in the feudal gradation of tenure ; it was regarded as a mere personal contract and was incapable of the incidents of tenure. By the Conveyancing Act, 1881 (44 and 45 Viet. c. 41, s. 65), the residue of a long term of years may in certain cases be enlarged into the fee-simple. A copyhold is in strict law only a tenancy at the will of the lord (see Cor YH OLD). Estates of freehold are either estates for life or in fee (called also estates of inheritance), the latter being in fee-tail or in fee-simple. An estate for life may be either for the life of the tenant or for the life of another person, the latter called an estate pur autre vie. The former kind of estate includes estates of dower and curtesy (see HUSBAND AND WIFK). An estate in fee is called a fee simply, an obvious sign of its feudal origin. Estates tail are either general or special, the latter being in tail male or (rarely) in tail female. There may also he a quasi-entail of an estate pur autre vie (see ENTAIL). An estate in fee-simple is the largest estate known to English law. Its ordinary incidents are an oath of fealty (never exacted), ESCHEAT (q.v.), and (in a manor) suit of the coiirt baron, and occasionally a small quit-rent and relief. All these are obviously relics of the once important feudal incidents. Incorporeal heredita- ments consist chiefly, if not wholly, of rights in alicno solo. They are divided by Mr Joshua Williams (Real Property, pt. ii. ) into (1) reversions, remainders, and executory interests, (2) hereditaments purely incorporeal, the last being either appendant, appurtenant, or in gross. Examples are profits a prendre (such as rights of common), easements (such as rights of way), 2 seigniories, advowsons, rents, tithes, titles of honour, offices, franchises. Before 1845 corporeal hereditaments were said to lie in livery, incorporeal in grant. But by 8 and 9 Viet. c. 106, s. 2, all corporeal hereditaments are, as regards the conveyance of the immediate freehold thereof, to be deemed to lie in grant as well as in livery. With regard to the time of enjoyment, estates are either in possession or in expectancy, that is, in reversion or remainder or executory interests (see KEMAINDEU). With regard to the mode of enjoyment, estates are either joint, in common, in coparcenary, or in severalty. Exceptional Tenures. It has been already stated that there are still to be found survivals of the old pre-Conquest customary law. They are found both in the tenure and in the conveyance of land. The only customs of which judicial notice is taken are GAVELKIND (q.v. ) and BoROUGH-ExGLLSH (q.v.). Any other local customs, as in manors, must be proved by evidence. The tenures of frankalmoign and grand serjeanty were specially preserved by 12 Car. II. c. 24. Tenure in frankalmoign is the nearest approach in English law to absolute ownership. An estate in frankalmoign has no incidents, as it is held simply by divine service and is not subject to escheat. All tenures in frankalmoign must (except where created by the crown) be older than Quia Emptores. The tenure of grand serjeanty is the holding of lands by doing a personal service to the king, as carrying his banner or sword. Petit serjeanty consists in the pay- ment to the king yearly of a bow, sword, dagger, or such other small things belonging to war (Littleton, 159). It is in effect socage. Title. -This is the name given to the mode of acquisition of rights over real estate. Title may arise either by alienation, voluntary or involuntary, or by succession. Voluntary alienation is either inter vivos or by will. The former branch is practically synonymous with conveyance, whether by way of sale, settlement, mortgage, or otherwise. As a general rule alienation of real estate inter vivos must be by deed since 8 and 9 Viet. c. 106. Since that Act a deed of grant has superseded the old forms of feoffment and lease and release. Considerable alterations in the direction of shortness and simplicity have been made in the law of transfer of real estate by the Conveyancing Acts, 1881, 1882 (44 and 45 Viet. c. 41, 45 and 46 Viet. c. 39). The word "grant" is no longer necessary for a conveyance, nor are the old words of limitation " heirs " and " heirs of the body." It is sufficient to use the words "in fee-simple," "in tail," "in tail male," "in tail female." Many provisions usually inserted in deeds, such as covenants for title by a beneficial owner and powers of appointment of new trustees, obtain statutory sanction. Forms of mortgage, conveyance, and settlement are appended to the Act. The Solicitors' Remuneration Act, 1881 (44 and 45 Viet. c. 44), was passed as a necessary sequel to the Conveyancing Act, and the remuneration of solicitors now stands upon a different and more satisfactory basis. For acquisi- tion by will and succession, see WILL, INHERITANCE. Involuntary alienation is by BANKRUPTCY (q.v.) and by other means of enforcing the rights of creditors over land, such as distress or execution. It may also arise by the exercise by the state of its right of eminent domain for public purposes, as under the Lands Clauses and other Acts. 3 In sales of real estate title is generally traced in an abstract delivered by the vendor (see SALE). 1 In the category of corporeal hereditaments are also included, certain acces- sories to corporeal hereditaments proper, such as growing crops, fixtures, title- deeds, &c. 2 It should be noticed that an easement in gross cannot exist. 3 The right of the state to contribution from land for revenue purposes and Restraints on Alienation. The alienation of real estate may be subject to almost any conditions, provided that such conditions do not contravene the law. As a general rule there can be no restric- tions upon the alienation of an estate in fee-simple ; the two ideas are incompatible. In the case, however, of a married woman a restraint on anticipation is allowed within certain limits. The power of imposing such a restraint is preserved by the Married Women's Property Act, 1882 (45 and 46 Viet. c. 75, s. 19), subject to the right of the court to bind the interest of the married woman where it would be for her benefit to do so (44 and 45 Viet. c. 41, s. 39). In another direction the imposition of a course of devolution upon property is forbidden by the law against perpetuities, under which no executory interest can be made to commence unless within the period of any fixed number of existing lives, and an additional period of twenty-one years (with a few months added, if necessary, for the period of gestation). Accumulation of income is forbidden (with a few exceptions) by the Thelusson Act (39 and 40 Geo. III. c. 98) for any longer term than the life of the grantor or settlor, or twenty-one years from his death, or during a period of minority. Certain persons are by the general policy of the law disabled from exercising full proprietary rights, such as married women (see above), convicts, infants, and lunatics. Estates tail are in general alienable under the Fines and Recoveries Act (see ENTAIL). But in a few cases estates tail are settled inalienably by Act of Parliament, generally as a reward for public services. Estates are thus settled to go with the titles of Marlborough, Wellington, Abergavenny, and Shrewsbury. Exceptional Modes of Alienation. In some of these cases, like those of the exceptional tenures, the influence of the old customary law is to be traced. The transfer of copyholds especially depends to a great extent upon the custom of particular manors, but, subject to that, it usually takes place by surrender and admittance (see COPYHOLD). Gavelkind lands may be conveyed by feoffment by any infant above the age of fifteen. For mines in the Forest of Dean a peculiar mode of transfer is provided by 1 and 2 Viet. c. 43. In the Isle of Portland there seems to be a distinct survival of the pre-feudal conveyance. The vendor and purchaser meet in the parish church, where a deed is signed by the parties in the presence of two householders of the island. These deeds are called "church gifts." Procedure. In some cases rights attaching to real estate are pro- tected by peculiar remedies. At an early period it became more convenient to try the right to the possession of, rather than the right to the property in, real estate. Possessory tended to super- sede proprietary remedies, from their great simplicity and elasticity. The general mode of trying the right to both property and posses- sion was from the time of Henry II. the real action, the form called " writ of right " (after Magna Charta gradually confined to the Court of Common Pleas) being used to determine the property, that called " assise of novel disseisin " being the general means by which the possession was tried. About the reign of Elizabeth the action of ejectment became the ordinary form of possessory remedy. Real actions existed until 3 and 4 Will. IV. c. 27, by which they were finally abolished, with the exception of writ of right of dower, writ of dower unde nihil habct, quare impcdit, and ejectment. Of these QUARE IMPEDIT (q.v.) appears to be the only one now in use. The assise of novel disseisin, the action of ejectment in both its original and its reformed stage (see EJECTMENT), and finally the action for the recovery of land in use since the Judicature Acts are all historic- ally connected as gradual developments of the possessory action (see POSSESSION). The action for the recovery of land is still sub- ject to special provisions and is not quite in the same position as an ordinary action (see Rules of the Supreme Court, 1883, Ord. xii. rr. 25-29, Ord. xviii. r. 2, &c.). There are certain matters affecting real estate over which the Court of Chancery formerly had exclusive jurisdiction, in most cases because the principles on which the court acted had been the creation of equity. The Judicature Act, 1873 (36 and 37 Viet. c. 66, s. 34). assigns to the Chancery Division of the High Court of Justice all causes and matters for (inter alia) the redemption or foreclosure of mortgages, the raising of portions or other charges on land, the sale and distribution of the proceeds of property subject to any lien or charge, the specific performance of contracts between vendors and purchasers of real estates, including contracts for leases, the partition or sale of real estates, and the wardship of infants and the care of infants' estates. In the case of rent a summary mode of remedy by act of the creditor still exists (see DISTRESS, RENT). For the economical aspect of the English law, see LAND. For a list of the main points of difference between real and personal estate, see PERSONAL ESTATE. Authorities. Those cited at the end of LAND, and in addition Digby, History of the IMW of Real Property ; Elton, Tenures of Kent ; Goodeve, Modern Law of Real Property; Pollock, Land Laws; Stephen, Commentaries, vol. i. ; Seebohm, English Village Cnmmunity; Williams, Real Property; Wolstenholme and Turner, Conveyancing Acts. Ireland. The law of real estate in Ireland is the English law, to stamp duties on deeds perhaps falls under this head. These imposts are really involuntary alienations of part of the profit of the land.