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(| A. J. GUNNISON.




THE LIBRARY

OF

THE UNIVERSITY

OF CALIFORNIA

LOS ANGELES

SCHOOL OF LAW




"Ihm^



\



DIGEST



THE LAW OF REAL PHOPERTY.

BY WILLIAM ,CRUISE, ESQ.

BARRISTER AT LA-W.



REVISED AXD CONSIDERABLY ENLARGED

BY HENRY HOPLEY WHITE, ESQ.

BAEEISTEE AT LAW, OF THE MIDDLE TEMPLE.



FURTHER REVISED AND ABRIDGED, WITH ADDITIONS AND NOTES FOR THE
rSE OF AMERICAN STUDENTS,

BY SIMON GREENLEAF, LL.D.

E3IEKITUS PROFESSOR OF LAW ly HAEVAKD L">T\'ERSITT.



IN SEVEN VOLUMES.



VOLUME III.



coxTAI^^XG



Title 21. Abvowson.

22. Tithes.

23. Common.

24. "Ways.

25. Offices.

26. DlGXITIES.-



Title 27. Feaxchises. *

28. Rests.

29. Descent.

30. Escheat.

31. Presckiption.



S EC OND edition,



BOSTON:
LITTLE, BROWN AND COMPANY.

1856.



Entered according to Act of Congress, in the year 1856,

By James Greenleaf,

in the Clerk's Office of the District Court of the District of MassachusctlF









RIVERSIDE, CAMBRIDGE:
rRINTED BY H. O. HOUGHTON AND COMPANY.



ADVERTISEMENT.



The reader will doubtless observe, that in the lists of
"Books of Reference/' under the respective Titles in these
volumes, the editor has not affected to make a complete
catalogue of authors ; it being his intention only to direct
the student to a few elementary treatises on the subject
of each Title. Of course it was not within his plan to
include the several Abridgments, both of English and Amer-
ican Law, — works not only in almost every lawyer's library,
but designed rather for the use of the practitioner than for
the student. To obviate any misconception, which may
have arisen, he deems it proper to state, that it was for
this reason, and not from any light estimation of their
merits, that some of those valuable Abridgments are not
inserted in the list, and that the others are so rarely
referred to.



671572



CONTENTS OF THE THIKD VOLUME.





TITLE XXI.










AD vows ON.




TITLE XXII.





TITHES.




TITLE XXIII.




COMMOX.


Sect-


Slar page.


1. Nature of .


65


2. Common of Pasture










id.


3. Appendant .


.....








id.


10. Appurtenant


.








67


15. Because of Vicinage


. . . •








68


19. In Gross .


• • « « *








69


21. Stinted Commons


. . . . <








id.


23. Common of Estovers










id.


BO. Common of Turbary


« >








70


34. Common of Piscary


. . .








71


35. A Right to Common cannot be devested








72


36. Common may be apportioned








id.


41. Rights of the Lord


.








73


48. Rights of the Commoners








. . 75


53. Approvement of Common .








76


72. Extinguishment of Common








81



VI



CONTENTS OF VOL. III.



Sect.

73. I. By Release ....

74. II. By Unity of Possession

82. III. By Severance

83. IV. By Enfranchisement of Copyholds
8G. Common may be revived



Star page.

81
id.

83
id.
84



TITLE XXIV.

WAYS.



1. Nature of .
4. How claimed
14. How to be used

21. Cannot be devested

22. Who are bound to repair

23. How extinguished
25. How revived



85
86
88
89
id.
90
id.



TITLE XXV.



OFFICES.



1. Nature of ...... .

4. How created ......

5. Offices incident to others ....

6. How Offices may be granted
11. What Offices may be granted to two Persons
14. What Estate may be had in au Office .
27. What Offices may be granted in Reversion .
31. Some Offices may be assigned

33. Who may hold Offices

40. When exercisable in Person, and when by Deputy
46. Statutes against selling or buying Offices
52. Where Equity will interpose

55. How Offices may be lost ....

56. By Forfeiture . . . . .
62. By Acceptance of an incompatible Office

65. By the Destruction of the Principal
76. By Suspension ......

66. Officers' Half-pay not assignable .



92

93

id.

94

97

98

100

103

104

105

109.

112

113

id.

115

116

id.

117



CONTENTS OF VOL. III.



vu



TITLE XXVI.

DIGNITIES.



TITLE XXVn.



FRANCHISES.



Sect.

1. Nature of ...

2. A free Fishery

7. Fairs and Markets

14. How Franchises may be claimed

16. How they may be lost

17. Re-union in the Crown

19. Surrender ....

20. Misuser or Abuser

24. Non-user ....



Siai' pajre.

244
261
264
266
267

id.

id.
268

id:



TITLE XXVIIL

RENTS.



CHAP. I.

Of the Ongin mid Nature of Rents.



1. Origin of Rents .......


271


4. Rent Service


272


6. Rent Charge ........


273


11. Rent Seek


274


12. Other kinds of Rents


id.


13. Fee Farm Rents


id.


15. "What gives Seisin of a Rent ......


id.


16. Out of what a Rent may be reserved ....


216


24. Upon what Conveyances ......


276


33. To what Persons . . . . .


277


46. At what time payable . . . ...


281


55. When it goes to the Executor, and when to tlie Heir .


283


64. Remedies for Recovery of Rents ....


285


65. Distress .........


id.



VIU



CONTENTS OF VOL. III.



Sect.

68. Clause of Reentry

72. Right of Entry by way of Use

73. Ejectment ....

76. Actions of Debt and Covenant

77. Courts of Equity



Slar pasfc.

286
287

id.
288

id.



CHAP. II.

Of the Estate which may he had in a Rent, and its Incidents.

1. An Estate in Fee ....

2. An Estate Tail ....

3. An Estate for Life or Years

4. Occupancy of a Rent
10. Subject to Courtesy
13. And to Dower

21. Rents may be granted in Remainder
24. And to commence in futuro

26. And to cease for a Time

27. Are within the Statute of Uses
31. Cannot be devested
34, How forfeited or lost .



289

id.

id.

id.
291

id.
292
293

id.
294

id
295



CHAP. HI.

Of the Discharge and Apportionment of Rents.

1. Discharge of Rent Service .
16. Discharge of Rent Charge .
22. Apportionment of Rent Charge .
27. Apportionment of Rent Service at law
44. By the Statute 11 Geo. II. c. 19.



297
300
302
303
306



TITLE XXIX.

DESCENT.



CHAP. I.

Title to Tilings real.



2. Description of a Title .

3. Possession .



311
312





CONTENTS OF


VOL.


III.


IX


Sect






' Star page.


4.


Effect of an Entiy


.


. 312


6.


Eight of Possession






. 313


9.


Apparent or actual






id.


12.


Right of Property






. 314


13.


Discontinuance of Estates






id.


16.


What constitutes a complete Title






.315


18.


Eeniitter






. 316




CHAP.


II.







Descent and Consanguinity.



1. Nature of Descent

3. What goes to the Heir .

5. Consanguinity

7. Who may be Heirs

8. They must be legitimate
12. And natural-born Subjects

19. Or Naturalized or made Denizens

20. A Title may be deduced through an Alien

21. Persons attainted cannot inherit or transmit
24. Corruption of Blood ....



318

id.
319

id.

id.
320
322

id.

id.
323



CHAP. III.



Rules or Canons of Descent.

1. I. Canon — Inheritances lineally descend

2. Rule that Nemo est Hoeres viventis ....

3. The Ancestor must die seised .....
7. Exceptions to this Rule ......

10. Explanation of the first Canon .....

11. A Descent may be defeated by the Birth of a nearer Heir

15. Exclusion of the ascending Line ....

16. II. Canon — Males preferred to Females' ';

17. III. Canon — The eldest Male succeeds

20. But Females equally .......

21. IV. Canon — Right of Representation ....

25. V. Canon — Collateral Descents . . . • .

26. The Heir must be of the Blood of the first Purchaser

31. Descents ex jxcrte 23C'te7'nd et maternd ....

32. What Acts will alter the Descent

41. What Acts will not have that Effect ....

45. VI. Canon — Proximity ......

46. Exclusion of the Half-Blood .....
49. What Seisin necessary to exclude ....



327
328

id.
329
330

id.

id.
331
332
333

id.
334
335
337

id.
340
341
342
344



CONTENTS OF VOL. III.



Sect. '

60. Trust Estates are within this Eule

61. VII. Canon— The Male Stocks preferred
63. Mode of tracing an Heir at Law .



Star page.

. 350

. 351

id.



CHAP. IV.

Descent of Estates in Remainder and Reversion.

1. Go to the Heirs of the Person in whom they first vested
8. A Right to a Remainder goes to the Half-Blood .
18. An Act of Ownership operates as a Seisin



378
380
382



CHAP. V.

Descent hj Statute and Custom."



TITLE XXX.



ESCHEAT.

1. Title hy Purchase

G. Escheat

10. For Default of Heirs .

1 1 . For Corruption of Blood

14. No Escheat where there is a Tenant

17. Any Alienation prevents an Escheat

21. What Things escheat .

23. A trust Estate does not escheat

26. Nor an Equity of Redemption

27. Nor Money to be laid out in Land

28. To whom Lands escheat

29. The Lord by Escheat may distrain for

30. Entitled to a Term to attend

32. And to all Charters

33. Is subject to Incumbrances .

34. Was not bound to execute a Use

35. Is not subject to a Trust
41. Office of Escheator



Rent



396
397
398

id.
399
400
401
402
415

id.
416

id.

id.
417

id.

id.

id.
419



CONTENTS OF VOL. III.



XI



TITLE XXXI.

PKESCRIPTION.



CHAP. I.



Prescription hy Immemorial Usage.



1. Origin of Prescription .
6. Prescription by immemorial Usage
8. May be in the Person or in the Estate
10. What may be claimed by
21. Must be beyond Time of Memory
25. And have a continued Usage
28. And be certain and reasonable
34. How a Prescription may be lost .
41. Descent of prescriptive Estates



Star page.

420
422

id.

id.
425
426

id.
428
429



CHAP. 11.

Statutes of Limitation.

1. Negative Prescription .

4. Statutes of Limitation

5. As to Writs of Right .

7. As to Prescriptive Rights

8. As to Avowries
10. As to Writs of Formedon
14. As to Entry on Lands .
20. Eflfect of twenty Years' Possession
22. The Possession must be adverse .
29. A Lease postpones the Right of Entry
34. Where a new Right accrues a new Entry is given
37. How an Entry is to be made

40, Must be followed by an Action

41. Savings in the Statute 21 Jac.
44. To what Persons and Estates they extend

46. What are not within them

47. Ecclesiastical Corporations .

48. Rents created by Deed . . ^.

51. Bond Debts ^.

52. Nidlum Tempus Act , . . .
55. Equity adopts the Doctrine of Limitations



430
431

id.
432

id.

id.
434
436

id.
439
447
450
451

id.
452
453

id.
455
457

id.

458



DIGEST



LAW OF REAL PROPERTY.



* TITLE XXI.

ADVOWSON.



37* * TITLE XXII.

TITHES.



Note. — These two titles, being foreign to any American institutions, are omitted
in this edition.



VOL. II.



TITLE XXIII.

COMMON, f
BOOKS OF REFERENCE UNDER THIS TITLE.

Blackstone's Commentaries. Book II. cb. 3, § 3.
Kent's Commentaries. Vol. III. Lect. 52.
CoMYNS's Digest. Tit. Common.
LoMAx's Digest. Vol. I. tit. 18.



Sect. 1. Nature of.

2. Common of Pasture.

3. Appendant.
10. Appurtenant.

15. Because of Vicinage.
19. In. Gross.
21. Stinted Commons.
23. Common of Estovers.
30. Common of Turhary.

34. Common of Piscary.

35. A Right to Common cannot

he devested.



Sect. 36. Commonmay be apportioned.
41. Rights of the Lord.
48. Rights of the Commoners.
53. Approvement of Common.

72. Extinguishment of Common.

73. I. By Release.

74. II. By Unity of Posses-

sion.

82. III. By Severance.

83. IV. By Enfranchisement of

Copyholds.
86. Common may be revived.



Section 1. Common is a right or privilege which one or more
persons have, to take or use some part or portion of that which
another person's lands, waters, ivoods, Sfc., produce. It com-
menced in some agreement between the lords of manors and their
tenants, for valuable purposes ; and being continued by usage, is
good and valid at present, though there be no deed or instrument
in writing to prove the original grant, {a) ^

(a) (12 S. & R. 32. 10 Wend. 647.)



t [See the Stat. 2 & 3 Will. 4, c. 71.]

1 The origin and legal import of the word " common " is examined by Mr. SchuUes
in the following very satisfactory manner. " Common is derived by some from Kolvou,
which, agreeable to the Grecian etymology, is commimico cum aliquo. By others it is
derived from communis, as compounded of con, together, and munus, a gift or office; but
according to Bracton and Fleta, the earliest of our law writers, common, in legal accep-
tation, is derived from conununia, a word compounded of una and cum, and we think



Title XXIII. Common, s. 2. 3

2. The most general and valuable Idnd of common, is common
of pasture ; which is a right of feeding one's beasts in another's



implies, according to its literal interpretation, not only a right or service exercised to-
o-etlier with others, but such an intercourse as may be freely enjoyed ; and the strongest
circumstance to justify this presumption is, that common, e. g. common of fishery,
micht be a free tenement, the nature of which we have before explained. It appears
to be an old legal term of designation, signifying a freedom of partaking some benefit
with others ; thus, for instance, common of pasture is a freedom to depasture cattle co-
extensively with others, and to receive a benefit which is not defined by separate quan-
tity, extent, or individual limitation.

"All commons, of which there are various descriptions, are rights or services, as
where one man gives to others a liberty to use or perform any thing in his own soil ;
but it seems although the grantor has certainly a power to exercise the same privilege
with them in common, yet it does not fall under the denomination of right or service
' quia nemini servit suus fundus proprius,^ because no right or liberty can be considered
as beloni-ing to a man severally and distinctly, in respect of land whereof he is the ex-
clusive owner. And so ii one purchases the land in which he is entitled to have com-
mon, such right ceases or becomes merged.

" Common in another's soil may be established by purchase, by vicinity, by grant, by
consent of parties, and it may be established without any specific constitution or grant,
but by long, uninterrupted, and peaceable usage and enjoyment ; and as it may be ac-
quired bv long usage and consent, so it may be lost by disuse and negligence.

" Common, considered as a social privilege, is not confined to pasture, fishery, tur-
bary, &c., merely, though it is commonly used substantively, but it may be applied to
the general class of rights, so often recited by Bracton and Fleta, namely, 'jura pa-
scendi iu fundo alieno, fodiendi, eundi, agendi, hauriendi, piscandi, aquamve ducendi,
venandi, et alia jura infinita,' and whether such commonable rights be mentioned sub-
stantively, or participally, can make no material alteration as to their effect.

" Where common and public rights are alluded to in the books, we consider them
usually as having the same meaning, and implying freedom. The civilians frequently
blend them together, though they profess a distinction between public, common, and
private things ; this is apparent by this passage amongst many others which might be
adduced : ' All rivers and ports are public, and therefore the right of fishing in a port or
in rivers is in common ; ' and, besides, in the old annotation on the Pandects of Justinian,
(in Bibliotheca Bodleiana,) the word puhlic is expressly defined common (publicum id est
commune.) Fleta, also, who transcribes copiously from the Imperial law, says, some
things are common, as the air, the sea, and sea-shore, and others are public, as the right
of fishing and using rivers and ports, ' alia^ communes sunt, ut aer, mare, et littus maris,
alite publicoe, ut jus piscandi, et applicandi flumina et portus.'

" This public or common right of fishing relates to public streams, and is contra-
distinguishable from rights or services belonging to private property.

" Both Bracton and Fleta acknowledge a general distinction between public and
common things ; thus they call those things public which relate to the use of mankind
only, and those common which respect all living animals indiscriminately. And some
writers make this distinction that things are common, which do of their own nature and
original afford equal advantage to man and other animals, and they are therefore said
to be common, because they are in common according to the natural use of tliem as an-
and water, but those things are said to be public which are only for the public use and
service of men. For the word publicum is derived from the word populus. Hence, if



4 Title XXIII. Common, s. 2—6.

land ; for in those waste grounds which are called commons,
the property of the soil is generally in the lord of the manor.
This kind of common is either appendant, appurtenant, because
of vicinage, or in gross, {a)

3. Common appendant is a right annexed to the posses-
66 * sion of * land, by which the owner thereof is entitled to
feed his beasts on the wastes of the manor. The origin
of which is thus described by Lord Coke. " When a lord of
a manor, wherein were great waste grounds, did enfeoff others of
some parcels of arable land, the feoffees, ad manutefietidum servi-
tium socce, should have common in the said wastes of the lord,
for two cavises ; first, as incident to the feoffment ; for the feoffee
could not plough and manure his ground without beasts, and they
could not be sustained without pasture ; and by consequence the
tenant should have common in the wastes of the lord for his
beasts, which do plough and manure his tenancy, as appendant
to his tenancy ; and this was the beginning of common append-
ant. The second reason was for maintenance and advancement
of agriculture and tillage, which was much favored in law." {h)

4. Common appendant must be time out of mind, and can
only be claimed by prescription ; so that it cannot be pleaded by
way of custom. Thus where a person alleged a custom, that
every inhabitant of a certain town had common of pasture in a
particular place ; it was resolved that such custom was against
law, and therefore void, (c)

5. Common appendant is regularly annexed to arable land
only ; yet it may be claimed as appendant to a manor, farm, or
carve of land, though it contain pasture, meadow, and wood ; for
it will be presumed to have all been originally arable ; but a pre-
scription to have common appendant to a house, meadow, or pas-
ture is void, [d)

6. Common of pasture may be appendant to a cottage, for a

(rt) 1 Inst. 122 a. (6) 2 Inst. 85. 4 Rep. 37 a.

(c) 1 Roll. Ab. 396. Gateward's case, 6 Rep. 59. (</) 4 Rep. 37 a.-

\vc consider tlic natural advantage -which accrues from a thing, we say that such a thing
is common ; but if wc consider the use of it among men as it arises from industry, wo
call it a thing public if it extends to public use, and therefore a thing may be said to be
common by nature, and i)ublic by use and industry, and again by a promiscuous in-
tercourse and exercise of a public thing, the terms public and common, may become con-
vertible, as experience constantly shows." Schultes on Aquatic Rights, p. 62-66.



Title XXIII. Common, s. 6—10. 5

cottage has at least a curtilage annexed to it ; nor is it deemed
in law to be a cottage, unless there are four acres of land belong-
ing to it. (a)

7. It was resolved by the Court of King's Bench, in a modern
case, that the owner of a tenement may have two distinct rights
of common for his cattle, upon different wastes, in different ma-
nors, under several lords ; though it might be otherwise if the
different wastes had appeared to have been originally held under
the same lord, (b)

8. Common appendant can only be claimed for such cattle as
are necessarjj to tillage ; as horses and oxen to plough the land,
and cows and sheep to manure it. {c)

* 9. Common appendant may by usage be limited to any * 67
certain number of cattle ; but where there is no such usage,
it is restrained to cattle levant and couchani upon the land, to
which the right of common is appendant ; and the number of
cattle which are allowed to be levant and couchant shall be ascer-
tained by the number of cattle which can be maintained on the
land during the winter, (d) ^

10. Common appurtenant does not arise from any connection
of tenure, but must be claimed by grant or prescription ; and
may be annexed to lands lying in different manors from those in
which it is claimed. This species of common, though frequently
confounded with common appendant, differs from it in many cir-
cumstances. It may be created by grant, whereas common ap-
pendant can only arise from prescription. It may be claimed as
annexed to any kind of land, whereas common appendant can
only be claimed on account of ancient arable land. It may be
not only for beasts usually commonable, such as horses, oxen, and
sheep ; but likewise for goats, swine, &c. (e) ^

(a) Emerton v. Selby, 2 Ld. Kaym. 1015.

{b) Holinshead v. Walton, 7 East, 485. (c) 1 Inst. 122 a.

((f) 1 Roll. Ab. 397, 398. Bennet v. Eeeve, 4 Vin. Ab. 583. Willes, R. 227. Benson r.
Chester, 8 Term R. 396. 1 B. & Aid. 709. (Scholes v. Hargreaves, 5 T. R. 46. 2 Dane,
Abr. 611, ^ 12.)

{«) 1 Boll. Ab. 399. 3 B. & Cr. 339. 6 East, 214. (llJohns. 498.)

1 A right of common for cattle levant and couchant upon inclosed land, extends to
such cattle as the winter, eatage of the land, together with the produce of it during
the summer, is capable of maintaining. Whitclock v. Hutchinson, 2 M. & Rob. 205, per
Parke, B.

2 [Two tenants in common making partition of the land owned between them,

1*



6 Title XXIII. Common, s. 11—13.

11. Common appurtenant may be for cattle withoiit number,
or for a certain number only ; and may be appurtenant to a manor
by prescription, or by grant, made since time of memory ; and
that as well for a certain number of cattle, as without number :
where it is without number, it is restrained to cattle levant and
couchant on the land to which it is annexed. Therefore, if a
person claims common by prescription on the land of another,
for all manner of commonable cattle, as belonging to a tenement,
this is a void prescription ; because he does not say that it is for
cattle levant and couchant on the land, {a)

12. It has been determined in a modern case, that common for
cattle levant and couchant cannot be claimed by prescription, as
appurtenant to a house, without any curtilage or land. And Mr.
Justice Buller said, the only question was, what was meant in
former cases by the words messuage and cottage, annexed to
which was the right of common claimed ; for in all of them, the
Court said, they would intend that land was included therein.
And that it was necessary there should be some land annexed to
the house was clear, from considering what was meant hy lev ancy
and couchancy ; it meant the possession of such land as would

keep the cattle claimed to be commoned, during the
68 * * winter ; and as many as the land would maintain during

the winter, so many should be said to be levant and
couchant. (b)

13. Persons entitled to common appendant or appurtenant,
cannot in general use the common but with their own cattle. If,
however, they take the cattle of a stranger, and keep them on
their own land, being there levant and couchant, they may use

(a) Fitz. N. B. 180, n. ( Co wlan i'. Slack, 15 East, 108.) 1 Roll. Ab. 398. Stevens r. Aus-
tin, 2 Mod. 185.

(b) Sclioles V, Hargreaves, 5 Term R. 46. (And see Bunn v. Clianncn, 5 Taunt. 244.)

the one granted to the other " free liberty of caiTying away gravel and sea-weed off the
beach belonging to his part of said farm, and also stones below high-water mark, and
liberty to tip the sea-weed on tlie bank of his part of said farm." It was held that this
grant created a right of common appurtenant to the land of the grantee, and that said
right was a right in common with the grantor, and restricted to the sea-weed and stone
the grantee might have occasion to use on the land set off to him, and that, as incident
to the right of common, a right of way passed to and from the land and shore; and
that both the right of common and the right of way would pass under the general term
of appurtenances, upon a conveyance of the land to which they were attached. Hall v.
Lawrence, 2 R. I. 218.]



Title XXIII. Common, s. 13—18. 7

the common with such cattle ; for they have a special property
in them, (a)

14. Common appendant or appurtenant for all beasts levant
and coiicliant cannot be granted over ; but common appurtenant
for a limited number of beasts may be granted over ; and it is
said, that in a case of this kind, the commoner may grant
over part of the right of common, and reserve the rest to



Online LibraryWilliam CruiseA digest of the law of real property (Volume 2) → online text (page 1 of 99)