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to whom real and personal property will pass on intestacy the same. 42

The rights of the husband or wife of a decedent as to the latter's real and personal property are different in England, and are quite frequently so in this country.43

The distinction between real and personal property is, however, at the present day, not generally so important as that between land and chattels personal, or "movables," as we may call them, which exists in the very nature of the two things. The fundamental distinction between land and movables, from a legal point of view, lies in the fact, as we shall see later," that what we call "estates" exist in land, and not in movables, and that, on this doctrine of estates, there has been built up an elaborate system of rules as to the ownership of land and the creation of rights therein, which differ materially from those prevailing in the case of chattels,

In the case of land, as we have seen, some of the uses thereof are capable of detachment from the general ownership, and may be given to another person, while the other uses and the possession remain with the owner. This division of use cannot generally exist in the case of movables, since the use is almost of necessity confined to the person actually in possession. Furthermore, such rights as to the use of another's land quite generally appertain to the ownership of neighboring land, and, in the case of movables, there is no such continuous juxtaposition as will support rights of this character. For these reasons, what we treat of under the name of "Rights as to the use or profits of another's land" have counterparts to but a very limited degree in the case of movables.

42 See 1 Stimson, Am. St. Law, §§ 3101, 3104.

43 See 1 Stimson, Am. St. Law, §§ 3105, 3106. Also see, as to dower and curtesy, post, §§ 179-212.

44 See post, § 17.

A distinction is generally made by statute between land and movables as regards the form of creation or transfer of rights therein; the mere delivery of possession being generally sufficient in the case of chattels, while, for the transfer of any but the smallest interests in land, a written instrument is required.*

45

Land, having a fixed location, is controlled in all respects, including the mode of its transfer, and the rights of succession on intestacy, by the law of the place where it is located, the lex rei sitae, as it is called; while movable chattels are regarded by fiction of law as accompanying the person of the owner, and are therefore controlled by the law of the place of his domicile.**

The remedies for the recovery of land and of movables have always, except in case of the abolition of the forms of action by statute, been entirely different. Furthermore, actions involving land must generally be brought in the jurisdiction where the land lies, as "local actions," while those involving movables are generally "transitory" in their nature.47

45 Williams, Pers. Prop. 36; Browne, Statute of Frauds, c. 1; 1 Stimson's Am. St. Law, § 4143.

46 Minor, Conflict of Laws, § 13; Dicey, Conflict of Laws (Am. Ed.) 72; Freke v. Lord Carbery, L. R. 16 Eq. 461.

By some of the earlier English cases, the distinction in this respect was made between real and personal property, and not between movables and immovables, and so it has been held in New York-erroneously, it would appear-that leasehold interests are governed by the law of the domicile. Despard v. Churchill, 53 N. Y. 192. Compare authorities above cited.

47 3 Bl. Comm. 294; Brantley, Pers. Prop. §7; notes to Mostyn v. Fabrigas, 1 Smith's Lead. Cas. 652; McGonigle v. Atchison, 33 Kan. 726, Finch's Cas. 65.

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"Tenure" is the term used to designate the specific feudal relation existing between a feudal lord and his tenant, it being based on a grant by the lord of land to be held by the tenant on condition of the rendition of certain services. In England, all land was and is held of the king as "lord paramount," either directly, or through the interposition of "mesne" lords.

The feudal holdings of the tenants were usually descendible to their heirs, and could be alienated. By the statute of Quia Emptores, alienations by tenants, conditioned that the grantees should hold of them, rather than of their lords (subinfeudation), were forbidden.

By statute (12 Car. II., c. 24), the burdens incident to the feudal tenures were removed, and the various systems of tenure changed to that "in free and common socage." At the present day in England, mesne lordships are but seldom recognized, and land is generally held directly of the crown, free from the rendition of any services or other evidences of the feudal relation. In some, but not all, of the states of this country, land may be regarded as held of the state as the lord, free from any claim for services.

Seisin of land was the possession thereof by one claiming a (17)

freehold therein, and might exist rightfully, or by wrong, as when obtained by the disseisin or ouster of the rightful tenant.

At common law, the alienation of land by a tenant in possession was by transfer of the possession, called "livery of seisin." Incorporeal things and future estates in land were, on the other hand, transferable only by grant.

87. The feudal system.

For a full understanding of the law of real property as it exists at the present day, even in this country, some knowledge of the doctrine of tenures on which the English law was based is necessary. The fundamental principle

of the feudal system of property in lands, as it was estab lished in England after the Norman Conquest, was that all land held by a subject was derived originally by grant from the crown, and that the subject held the land merely on condition of his performance of certain duties and services,

1 "The principles of the feudal system underlie all the doctrines of the common law in regard to real estate, and, wherever that law is recognized, recourse must be had to feudal principles to understand and carry out the common law. The necessity of words of limitation in deeds, the distinction between words of limitation and words of purchase,-the principle that the freehold shall never be in abeyance, that a remainder must vest during the continuance of a particular estate or eo instanti that it determines, that the heir cannot take as a purchaser an estate the freehold of which by the same deed is vested in the ancestor, and many more rules and principles of very great practical importance, and meeting us at every turn in the American as well as the English law of real estate, are all referrible to a feudal origin. "The principles of the feudal system,' said Chief Justice Tilghman, ‘are so interwoven with our jurisprudence that there is no removing them without destroying the whole texture.' Lyle v. Richards, 9 Serg. & R. 333. Though our property is allodial,' said Chief Justice Gibson, yet feudal tenures may be said to exist among us in their consequences and the qualities which they originally imparted to estates; as, for instance, in precluding every limita tion founded on an abeyance of the fee.' McCall v. Neely, 3 Watts,

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imposed either by law or the terms of the grant. The relation thus established between the crown and the person to whom, either actually or by fiction of law, the grant was made, was termed "tenure.” 2 The persons who thus held lands of the crown could themselves make grants of parts of their lands to others, creating thereby a "subtenure" between themselves and their grantees, without af fecting the tenure already existing between themselves and the crown. These subtenants could again grant out parts of the land held by them to others, who would hold of them. This process of the creation of subtenancies could, in theory, continue to an indefinite degree, and in fact sometimes there were as many as six or seven persons (mesne lords) standing between the king (the lord paramount) and the lowest in the scale of tenants, the one who actually enjoyed possession of the land, termed the tenant "in demesne," or tenant "paravail." Each person in the scale, except the tenant in demesne, while tenant merely as to those above him, was lord as regards those below him, and was accordingly termed a "mesne" or "middle" lord."

While the tenant in demesne alone had the general rights of use in the land, those above him in the scale were all regarded as having certain rights in the land, and, in a sense, as possessed of it. Furthermore, the land itself was regarded as owing the services due by the respective tenants, so that the same land might owe to one of the lords in the scale, on behalf of his immediate tenant, services of one kind, of a military nature, perhaps, and to another of such lords, on behalf of the latter's tenant, another service, the payment of rent, for example, and so on, and the right to any or all of the services due to the various lords of

21 Pollock & Maitland, Hist. Eng. Law, 210 et seq.; Digby, Hist. Real Prop. 34; Co. Litt. 65a, and Hargrave's note.

1 Pollock & Maitland, Hist. Eng. Law, 211; 2 Bl. Comm. 59.

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