CHAPTER II.

OF REAL ESTATE, ITS NATURE, QUALITY AND QUANTITY OF INTEREST.

The most comprehensive definition of real property is into lands, tenements and hereditaments. Land, according to Coke, (1 Inst. 4 a,) in its legal signification, comprehends any ground, soil, or earth whatsoever, and all buildings erected thereon. (Mott v. Palmer, 1 Comst. 569, 570.) It extends indefinitely upwards as well as downwards; the maxim being cujus est solum ejus est usque ad cælum. Tenement signifies that which may be holden. It is a word of a larger signification than land, and by it not only land and other inheritances which are holden will pass, but also offices, rents, commons, profits apprender out of lands and the like wherein a man hath a frank-tenement and whereof he is seised ut de libero tenemento. (1 Inst. 6 a.)

Hereditament is a term of still larger import, for it comprehends whatsoever may be inherited, be it corporeal or incorporeal, real, personal or mixt. (Id.)

Real property is thus either corporeal or incorporeal. The first consisting wholly of substantial permanent subjects, all which might, at common law, be comprehended under the name of land; the last such as are not the subject of the senses, but exist in the mind only, as rents, commons, ways and the like, being rights issuing out of the realty. Indeed, the New York revised statutes expressly provide that the term "real estate," and "lands," as used in the chapters relative to real estates and to title by descents, shall be construed as coextensive in meaning with lands, tenements and hereditaments. (1 R. S. 750, § 10. Id. 755, § 27.)

It must be remembered that the legal meaning of the word estate is different from its popular acceptation. In the latter sense it is often, and perhaps generally, used to denote the land itself. But in the appropriate legal signification, it is used to denote the particular right which the owner may exercise in a certain piece of land. An estate in land, therefore, is the interest which the owner has therein. (Van Rensselaer v. Poucher, 5 Den. 40. 1 Prest. on Estates, 7, 20. 1 Cruise's Dig. ch. 3, tit. 1, § 11.) Such estate may

greatly vary in quantity or duration, as it may also in respect to the time of enjoyment, the number and connection of the tenants, and the provisoes, conditions and limitations under which it is held. A seisin of land should never be pleaded, but of an estate in land. This is conclusively shown by the authorities. (Van Rensselaer v. Poucher, supra.) The quantity of an estate signifies the time of continuance or degree of interest, and the quality of an estate has reference to the manner of its enjoyment, as whether it be absolutely, solely, in common, in coparcenary, or in joint tenancy. (1 Prest. on Est. 21.) In some cases it is said that there is so near a relation between the quantity and quality of an estate, that the quality of the estate is the measure of its quantity. The determinable quality of the estate is marked by the clause, if the grantee should so long live; and this phrase also forms part of the quantity or measure of the estate. (Id. p. 22.) Mr. Preston illustrates it more fully by putting the case of a grant to a man and his heirs, so long as a tree shall stand. In this instance, he observes, that the words which relate to the tree form an essential part of the measure of the estate, and at the same time, render the estate a determinable fee, (being its quality,) instead of being an absolute fee. (Id.)

The foregoing observations are sufficient by way of introduction to the distribution of estates under the provisions of the revised statutes of 1830. (1 R. S. 722, et seq. 3 id. 10, et seq. 5th ed.) The statute recognizes the distinctions between the quantity and the quality of estates; and with a view to simplify the subject and to incorporate the improvements, in their proper place, it adopts from writers of approved authority the classification existing in the common law, with such modifications as their experience and wisdom had pointed out.

The first six sections of the statute relate mainly to estates with reference to their quantity of interest. Thus, (§ 1,) estates in lands. are divided into estates of inheritance, estates for life, estates for years, and estates at will and by sufferance. (§ 2.) Every estate of inheritance, notwithstanding the abolition of tenures, shall continue to be termed a fee simple, or fee; and every such estate, when not defeasible or conditional, shall be termed a fee simple absolute, or an absolute fee. (§ 3.) All estates tail are abolished; and every estate which would be adjudged a fee tail, according to the law of this state, as it existed previous to the 12th day of July, one thou

sand seven hundred and eighty-two, shall hereafter be adjudged a fee simple; and if no valid remainder be limited thereon, shall be a fee simple absolute. (§ 4.) Where a remainder in fee shall be limited upon any estate, which would be adjudged a fee tail, according to the law of this state, as it existed previous to the time mentioned in the last section, such remainder shall be valid as a contingent limitation, upon a fee, and shall vest in possession on the death of the first taker, without issue living, at the time of such death. (§ 5.) Estates of inheritance and for life shall continue to be denominated estates of freehold; estates for years shall be chattels real; and estates at will or by sufferance shall be chattel interests, but shall not be liable as such to sale on executions. (§ 6.) An estate during the life of a third person, whether limited to heirs or otherwise, shall be deemed a freehold during the life of the grantee or devisee, but after his death it shall be deemed a chattel real.

The essential characteristics of a freehold estate are 1. Immobility, the subject matter must be either in the land, or some interest issuing out of or annexed to land. 2. A sufficient legal indeterminate duration, for if the utmost period of time to which an estate can last is fixed and determined, it is not an estate of freehold. (2 Bl. Com. 386. 1 Cruise, tit. I, p. 45.)

Hence, the primary division of freehold estates is into freehold estates of inheritance, and into freehold estates not of inheritance.

SECTION I.

Of freeholds of inheritance—absolute.

Under the New York revised statutes, every freehold of inheritance must either be an estate in fee simple absolute, or a defeasible or conditional fee. Tenant in fee simple is (according to Littleton, §1,) he which hath lands or tenements to hold to him and his heirs forever. An estato in fee simple is the entire and absolute interest and property in the land; from which it follows that no one can have a greater estate. (1 Cruise's Dig. p. 59.) It was essential at common law that the word heirs should be inserted in the conveyance in order to create an estate in fee simple. For if, says Littleton, a man purchase by these words, to have and to hold to him forever; or by these words, to have and to hold to him and his

assigns forever; in these two cases he hath but an estate for term WILL-4

of life, for the lack of these words, his heirs, which words only make an estate of inheritance. This strictness of the common law has been abrogated in this state. The term heirs, or other words of inheritance have not, since 1830, been requisite to create an estate in fee. On the contrary, every grant or devise of real estate, or any interest therein, executed after the first of January, 1830, is made adequate to pass all the estate or interest of the grantor or testator, unless the intent to pass a less estate or interest appears by express terms, or is necessarily implied in the terms of the grant. And it is made the duty of the courts, in the construction of every instrument creating or conveying, or authorizing the creation or conveyance, of any estate or interest in lands, to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument and is consistent with the rules of law. (1 R. S. 748. 3 id. 38, §§ 1, 2, 5th ed.)

The great nicety of the common law with respect to the insertion of the word heirs, in order to vest a fee, is said to have been a relic of the feudal strictness. (2 Black. Com. 107.) It was never required in the transfer of personal property, and the rigor of the rule had been greatly relaxed in the constructions of wills; the courts. accepting in lieu of those words, any equivalent expressions, plainly denoting an intention to pass a fee. The statute places deeds, in this respect, upon the same footing as wills, and allows the intention of the parties to be gathered from other language. The change thus introduced into our conveyances had previously been adopted in other states, and it is now a part of the jurisprudence of more than half the states of the union. It is the rule which has always prevailed in the civil law.

An estate in fee simple is the entire and absolute interest and property in the land. Hence it follows that no one can have a greater estate. And he who has granted an estate in fee simple has no farther interest remaining in him. Such an estate, however, may be granted upon condition, and in numerous instances a fee simple may be rendered defeasible on the happening of some future event.

The owner of the fee simple has the entire control, as such, of all houses and other buildings erected on the premises, and of all timber and other trees growing thereon. He is entitled to all mines of metal, except gold and silver, and to dig up and dispose of all minerals and fossils which are under the land. (1 Cruise's Dig. 60.)

The right to mines of gold and silver belonged, at common law, to

the sovereign, and in this state, by statute, it is reserved to the people in their right of sovereignty. (Plowden, 336. Seaman v. Vawdrey, 16 Vesey, 393. 1 Black. Com. 307. 1 R. S. 281, 684, 5th ed.) Numerous questions with respect to the right to mines of the precious metals, have arisen in those states in which those mines are found, but the consideration of them does not seem appropriate to the present treatise. All inferior estates and interests in land are derived out of the fee simple. It is on this ground that when a limited estate vests in the same person who has the fee simple of the same land, the particular estate is merged in the fee, upon the principle that omne majus continet in se minus. The doctrine of merger, which will hereafter be considered, has its origin in this principle. (1 Cruise's Dig. 61. Roberts v. Jackson, 1 Wend. 478.)

The power of alienation is an inseparable incident to an estate in fee simple. Hence, any general restriction of this power annexed to the creation of such an estate is absolutely void, and of no effect. (1 Cruise's Dig. 63.) In De Peyster v. Michael, (2 Seld. 467,) the court of appeals held that a reservation, in a conveyance in fee, of a pre-emptive right of purchase by the grantor, his heirs, &c., in every case of sale by the grantee, his heirs or assigns, and the reservation, by the grantor, of a right or portion of the sale money or cash sale by the grantee &c. are void as being repugnant to the estate granted, and illegal restraints upon the power of alienation. By the common law, restraint upon the alienation of lands could only be imposed by persons having the reversion, or at least a possibility of reversion. (Id.)

The power of alienation necessarily implies the existence of inferior powers. As the owner may convey the whole, so he may grant out of it, while he is the absolute owner, smaller interests, retaining in himself the reversion. He may thus lease, for a term of years, the whole or any portion of it; he may charge it with debts or legacies, or both; and he may dispose of it by will if he continues the owner till his death. If he fails to make a testamentary disposition of it, by a will executed in conformity to law, it descends to his heirs.

A freehold of inheritance is subject to the dower of the wife, and the curtesy of the husband. These estates will be noticed in their proper places.

This estate also is liable to the debts of the owner on his death, and it may be charged in his will with the payment of debts and legacies, or of either.