them. Finally, personal estate, in many cases, passes by mere delivery, and can in all cases be transferred by a deed in any form, properly evidencing the owner's intention to dispose of it; whereas real estate can only be conveyed by assurances founded upon ideas having their origin in the feudal system, or by certain expedients founded upon the statute of uses.

Conversion of property.]-Property which in its nature is real may, by act of parliament, or by the act of the owner, be impressed with the character of personalty, and made subject to all its legal incidents and liabilities. Thus, canal, railroad, or turnpike bonds, and assignments of poor and county rates, which in their nature would seem to partake of the character of realty, are generally, by the act of parliament under which they are created, declared to be personalty*. A testator by his will

* Monies laid out upon navigation shares (Buckeridge v. Ingram, 2 Ves. jun. 652; Howse v. Chapman, 4 Ves. 544; The Earl of Portmore v. Bunn, 1 Barn. & Cress. 703), upon turnpike tolls (Knapp v. Williams, 4 Ves. 430, n.), on poor and county rates (Finch v. Squire, 10 Ves. 41; Rex v. Bates, 3 Pri. 341), have been held to be real estate. In the greater part of these cases, the question arose upon the construction of the mortmain act. It being more convenient that this species of property should participate of the character of personalty, it is usual in the act by which it is established to declare that it shall be so considered. Thus, in Rex v. The Hull Company, (1 T. R. 220), lands were purchased by the company, and converted into a dock, according to an act of parliament which declared that the shares of the proprietors should be considered as personal property. Per Cur." As between the heir and the executor this is to be considered as personal property; but the legislature did not intend to alter the nature of it in any other respect." In the Case of the Vauxhall Bridge Company, (1 Gl. &

Jam. 106), the act declared that the
shares should "be deemed personal
estate, and transmissible as such, and
not of the nature of real property;" yet
it was held, clearly, however, by mis-
take, as is shewn by Lord Lyndhurst,
(Ex parte The Lancaster Canal Com-
pany, 1 Mont. & Bligh, 114), to be in
the nature of realty. In the last-cited
case, the act declared "that the shares
be deemed personal estate, and shall
be transmissible as such;" and it was
insisted, on a question of reputed own-
ership, that the act did not make the
property personal generally, i. e., to
all intents and purposes, but only for
a particular purpose, namely, to be
transmissible as such; and the language
of the court, in Rex v. The Hull Com-
pany, already cited, was referred to in
support of that proposition.
"The
words, however," observes Lord Lynd-
hurst, in delivering judgment, "do
not authorize such a limited con-
struction; the words are, that 'they
shall be personal estate, and trans-
missible as such.' It is contended
that they are to be considered as
chattels real. On what argument
that is founded I find it difficult to

may impress the character of personal estate upon his realty, so that such parts of it as are undisposed of shall go among his next of kin instead of the heir-at-law; and of course the same thing may be done by deed in his lifetime. And so, e converso, in respect of property which in its own nature is personal.

Title deeds.]-Charters, deeds, and other documents relating to the freehold or inheritance, although in the nature of personalty, belong to the owner of the land; and they, as well as the chest or box containing them, pass to the heir or devisee, and not to the executor1. On the same principle, deeds relating to the personalty belong to the personal representative, together with the chattels to which they refer 2.

1 Co. Lit. 6. a. Com. Dig. Charters (A). Swin. Law Test. 381.

When the ownership of the whole inheritance is vested in one 23 Bac. Ab. 65. person, there can be no question as to who is entitled to the possession of the title deeds: but, where the ownership is divided, as, for instance, between the tenant for years or for life, and the remainderman in fee or reversioner; between several persons, as tenants in common or coparcenary; between the feoffee to uses and the cestui que use-questions of considerable difficulty have arisen, which will be considered in their proper places.

Heir-looms.]-Finally, it may be observed, that, by special custom of some parts of the country, what are called heir-looms, though in their own nature personal estate*, are considered as so annexed to, and so necessary to the enjoyment of, the land, that they are deemed in law to be a part of it, and upon the death of the owner descend to the heir along with and as part of the

collect. Why they should be considered as chattels real, or why the legislature by these words meant that they should be considered as chattels real, not having so expressed it, I find no means of ascertaining. The persons who are shareholders are absolute holders of the entire interest in the property. Whatever that is, the legislature has declared that it shall be personal estate; and there is nothing in the act of parliament, so far as I can discover, at all controlling the effect of that provision." (Ib. 112.)

* "An heir-loom, or implement of

furniture, which by custom descends
to the heir, together with an honour,
is neither land nor tenement, but a
mere moveable." (2 Black. Com. 17).
In Les Termes de la Ley an heir-loom
is said to be "any piece of household
stuff, (ascun parcel des utensils d'un
mease), which, by the custom of some
countries, having belonged to the
house for certain descents, goes with
the house (after the death of the
owner) unto the heir, and not to
the executors." And see Spelman's
Gloss. Heir-loome.

Heir-loomes.

114 Vin. Ab. inheritance1*. An heir-loom†, in its strict and proper sense, is always some loose personal chattel, as the best bed, table, pot, * Co. Litt. 18. b. pan, cart, or other dead chattel moveable 2. There are also certain species of chattels which may be considered in the nature of heir-looms, but which differ from what are more strictly heir-looms, in this, that the title of the heir does not depend upon local custom. Thus, the coat of armour of an ancestor, hung in a church, and the sword, pennons, and other ensigns of honour suited to his degree, descend to the heir in the nature of heir-looms; so do ancient portraits and family pictures, though not fastened to the walls of the house 3. The same principle has been applied to monuments, tomb-stones, and effigies affixed to the walls of a church, which otherwise would belong to the rector or vicar, as owner of the freehold. The collar of S S.‡ and garter of gold, as ensigns of honour and state in the way of heir-looms, even though there Earl of Nor- be a special bequest of all jewels5, pass to the heir; so do the

3 Vin. Ab. Descent (E) Com. Dig. Cemetery (C).

4 Spooner v. Brewster, 3 Bingh. 136.

thumberland's

Ca.§ Ow. 124.

* Heir-looms are a kind of property which are rather favorites of the court. (Per Lord Eldon, in Clarke v. The Earl of Ormonde, Jac. 145.)

"A man, by the common law, cannot be heir to goods and chattels, for hæres dicitur ab hæreditate. If a man buy divers fish, as carp, breames, tenches, &c., and put them in his pond, and dieth, the heir shall have them and not the executors, but they shall go with the inheritance; because they were at liberty, and could not be got ten without industry, as by nets and other engines. Otherwise it is if they were in a tank or the like. Likewise deer in a park, conies in a warren, and doves in a dove-house, young and old, shall go to the heir." (Co. Litt. 8. a.) So much were these things considered as part of the inheritance, that the destruction of them is waste. (Vin. Ab. Waste, (E)). Hawks and hounds belong to the heir, and go with the inheritance. (Noy, Max. 239).

For an explanation of the collar of St. Simplicius, see Selden's Titles

of Honour. Mr. D'Israeli relates from an article among the Sloane MSS., that, upon Lord Coke's disgrace, the new Chief Justice sent to purchase his collar of S S.; Lord Coke returned for answer, that he would not part with it, but leave it to his posterity, that they might one day know they had a Chief Justice for their ancestor. (Cur. of Lit. 2nd Series, Vol. I. p. 298.)

S" "The case was this,-the Earl of Northumberland devised by his will his jewels to his wife; and died possessed of a collar of Esses, and of a garter of gold, and of a buckle annexed to his bonnet, and also of many other buttons of gold and precious stones annexed to his robes, and of many other chains, bracelets, and rings of gold and precious stones. The question was, if all these would pass by the devise under the name of jewels: and it was resolved that the garter and collar of Esses did not pass, because they were not properly jewels, but ensigns of honor and state; and that the buckle in his bonnet, and the

ancient jewels of the crown, because they are necessary for the maintenance of its dignity1. The heir may sometimes claim a right to a personal chattel as incident to the tenure of his estate. Thus, an ancient horn, where the tenure of the land is by cornage, shall always descend to the heir2.

Seats in churches.]-The only remaining denomination of property to which it is necessary to advert, is the "right to a seat in the parish church." As the freehold of the church is in the parson, this right is in the nature of an easement. This right can hardly be considered as in the nature either of personalty or realty, since it can be claimed only as appurtenant to a house in respect of inhabitancy, and not as appurtenant to land; and partakes of a mixed character, having to some extent the attributes of each species of property.

buttons did not pass, because they were annexed to his robes, and were therefore no jewels; but for all the

other chains, rings, bracelets, and
jewels, they passed by virtue of the
said will."

CHAPTER II.

TENURE, AND ITS EFFECT UPON THE CREATION AND
TRANSFER OF ESTATES AT COMMON LAW.

1 Crui. 39.

Tenure, 10.-Livery of seisin, feoffment, 11.-Fine and recovery, 12.-Grant, 15.-Exchange, 17.-Lease, ib.-Assignment, 18. -Surrender, 19.-Release, 21.-What estates and interests were transferable at common law, 22.-How long the vesting of estates could be postponed, 24.-Uses at common law, 25.

Tenure.]-ACCORDING to the system of real property law established in this country, there is no such thing as the absolute or allodial ownership of land. All lands lie in tenure,—that is to say, are held mediately or immediately of the crown, by the payment and render of rents and services, more or less burthensome*. Most of the persons of whom lands are now held immediately claim their feudal dominion or seignory as lords of manors; and all lands of copyhold or customary tenure are held of particular manors. The feudal dominion or seignory, when vested in the king, may be either of his person, or as of some honour or manor which formerly devolved to the crown by forfeiture or escheat. When vested in a subject, it may be either in right of a manor of which he is lord, or of his person; in which latter case it is said to be a seignory in gross. Tenure of a subject is however now scarcely known; and where it no longer appears of whom lands are immediately held in socage, the presumption is that they are held of the king as the chief lord1. Out of the relationship between the lord and tenant created by tenure sprang a variety of maxims or arbitrary rules, extensively affecting the creation and transfer of estates, and constituting a large portion of the common law relating to real property. The effect of these maxims or arbitrary rules will be considered in this chapter.

For an account of the ancient
tenures, and of the effect of the 12 Car.
2, c.
24, for the abolition of military

tenures, see 2 Blackst. Com. 60; 1 Crui. 19.