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UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY
THE GIST OF
REAL PROPERTY LAW
THE GIST
of
Real Property
Law
By
HAROLD G. ARON, M.A., LL.B.
Of the New York and New Jersey Bar,
Instructor in Real Property Law, and Code Pleading and
Practice at the New York Law School
WRITERS PUBLISHING COMPANY
20 VESEY STREET NEW YORK CITY
>
\9lfc
COPTBIGHTBD, 1916
HAROLD G. ARON
Press of
J.J. Little &Ives Co.
New York
Affectionately inscribed to Hamilton College whose
many fine traditions include the beginnings of the work
of Professor Theodore Dwight upon that great method
of legal instruction which now bears his name.
FOREWORD
This work was prepared primarily to meet the re-
quirements of the summer school course in New York
Law School. It is hoped that it may furnish a means
whereby the student of the law of real property may
get a comprehensive view of the subject, which will
crystallize principles learned from cases, lectures and
more complete and scholarly text books. The great
problem of real property instructors is to bring the stu-
dent to the end of his course with an orderly under-
standing of the subject as an entirety which will facili-
tate the application of his knowledge in actual practice.
There is no dearth of excellent texts on the subject,
and the author acknowledges his debt to several of them,
including Professor Washburn's scholarly treatise and
more particularly the recent and splendid work of
Professor Reeves, to which is largely due whatever
merit lies in the present volume. For the student who
has from these or other sources studied the law of real
property, it may serve a useful purpose to summarize
what he has there learned.
The author has striven for two things: accuracy and
succinctness. The appendix is only a tool box of useful
references; it does not pretend to be a table of cases,
and is confined largely to the law of New York and
New Jersey; a later edition may similarly supply the
working principles of the real property law of other
states.
If the book is found useful by the practitioner, this
will be a great satisfaction to the author, especially if
it serves to dissipate the idea that the law of real
property is a trackless desert to be ventured into only
in the company of corporate guides.
HAHOLD G. AROK.
NEW YORK CITY, March 15, 1916.
CONTENTS IN OUTLINE
PART I
PAGE
Origin, Nature and Kinds of Property:
Element of Property 1
Kinds: Personal, Real and Mixed 3
Stock of a corporation; Choses in action;
Buildings; Rolling Stock of Railroads ... 3
Water, Oil and Gas, 4
Vegetable Products: Fructus Naturales; Fruc-
tus Industrials; Trees 4
Manure; Church Pews; Burial Rights ... 5
Fixtures Under Modern Law 6
Distinction Between Personal and Real Prop-
erty:
Historical and Natural Differences .... 6
Feudal Attributes . . . . - 7
In Legal Remedies 7
Descent and Distribution 7
Liability for Debt 8
Law which Governs 8
Method of Transfer 9
PART II
Legal Systems Under Which Property in Land is
Recognized:
Historical Development of Land Holding . . 10
The Alodial System 10
The Feudal System 11
Important Feudal Terms 13
Feud, Subinfeudation . . . .; ; . . . 14
Tenures and Seisin ........ 15
Important Feudal Effects ...... 16
vii
CONTENTS IN OUTLINE
PART III
PAGE
Kinds of Real Property:
Land, Including Fixtures ....... 18
Definition and Kinds of Fixtures .... 19
Criteria to Determine Nature of Fixture:
Reasonably Presumable Intent .... 20
Method of Annexation 20
Relation of Parties 20
Vendor and vendee, Grantor and grantee;
Heirs and next of kin; Co-owners;
Mortgagor and mortgagee; Mortgagee
of realty and chattel mortgage:
Rules in Massachusetts, New York and
New Jersey:
Landlord and Tenant 21
Exceptions as to trade, domestic and
agricultural fixtures.
Effect of Renewal of Lease.
Hold-over Tenants.
Tenements, Origin and Kinds: Corporeal and
Incorporeal:
Franchises 23
Rents . . 23
Definition 24
Rent Service 25
Rent Sec 26
Rent Charge 27
Important Rules of the Law of Rent ... 28
Easements and Servitudes:
Origin and Definition 31
Kinds of Easements 32
Common Law Easements 33
Easement in Gross ....... : . . 35
Natural Easements . . . . > : ,. . 35
Equitable Easements . , ; >. . ,< . ,. 36
Kinds of Servitudes:
Servitudes by Grant . . . . .. ; . . . 37
Prescriptive Servitudes . . ..-. .- > . 37
Customary Servitudes . . . . r . . . 38
Legal Servitudes and Highways ... 39
viii
CONTENTS IN OUTLINE
PAGE
Natural Servitudes:
Right to Light, Air and Access ... 40
Lateral and Subjacent Support ... 41
Water Rights 42
Surface:
Non-navigable Streams.
Navigable Streams.
Subterranean Waters.
Artificial Waterways.
Conventional Servitudes 43
Party Walls; Division Fences .... 44
Important Rules Governing Easements and
Servitudes 45
Profits a Prendre:
Definition, Origin and Kinds 47
Rules Governing Profits a Prendre ... 48
Licenses :
Definition and Origin ....... 48
Kinds of Licenses > . 49
PART IV
Estates in Real Property:
Explained as to Courts in Which Recognized:
Historical Development of Equitable Estates 51
Transition from Use to Trust 52
Statute of Uses 52
Decision in Jane Tyrell's Case . . '. . 53
Kinds of Trusts:
Active Passive 54
Express Implied 54
Public Private 54
Executed Executory 54
Express Trusts: How created and proved . . 55
Precatory Trusts .... z .... 55
Separate Use Trusts for Married Women . 56
Spendthrift Trusts . 56
Charitable Trusts 57
Statutory Trusts in New York .... 58
Implied Trusts:
Resulting to Effectuate Intent .... 60
Constructive to Avoid Fraud 64
Actual Fraud or Wrongdoing .... 64
ix
CONTENTS IN OUTLINE
PAGE
Presumed Fraud 65
Fraud on Third Persons 66
In the Absence of Fraud 67
Doctrine of Notice and Consideration . . 68
Explained as to Duration 70
Estates in Fee:
Fee Simple Absolute 71
Qualified Fees 72
Fee Conditional at Common Law . . 73
Statute De Donis Conditionalibus . . 74
Fee Tail Estates 75
By condition; by limitation; by condi-
tional limitation 76
Estates for Life:
Conventional, including pur auter vie . . 77
Legal :
Estate During Marriage 79
Curtesy Its Nature and Requisites . . 80
Curtesy Initiate.
Curtesy Consummate.
Dower Its Nature and Requisites ... 84
As an inchoate right; as chose in action 86
As an Estate 87
Assignment Its effect and damages for
detention 88
Rule of Dos de Dos, Peti non Debet . 92
Jointure Its Nature and Development . 94
Legal Jointure 94
Equitable Jointure 94
Testamentary Provision 95
Statutory: Homestead 95
Incidents of Life Estates 96
The Law of Waste in Life Estates:
Estovers and Emblements 97
Voluntary Waste 98
Permissive Waste 99
Equitable Waste 99
Penalties, Damages and Remedies . . . 100
Estates Less Than for Life 100-127
Estates for Years Definition and Develop-
ment 102
Relation of Landlord and Tenant . . . 103
Nature and Effect of Lease . 104
CONTENTS IN OUTLINE
PAGE
Covenants and Conditions in Leases . . 106
Important Rules and Incidents .... 127
Estates at Will Definition and Origin . . 128
Estates by Sufferance Definition and Nature 131
Estates Explained as to Number and Inter-rela-
tion of Ownerships:
Joint Tenancy Unities of Time, Title, Inter-
est and Possession 132
Ownership per my et per tout:
Doctrine of Survivorship 133
Coparcenary Between Female Heirs . . . 135
Tenancy in Common Unity of Possession . . 135
Ownership per my et non per tout,
Tenancy by Entirety All Unities .... 136
Ownership per tout et non per my.
Partnership Estates in Land 137
Joint Mortgages 137
Partition as It Affects All Co-ownership . . 138
Estates Explained as to Absolute or Qualified
Character of Ownership:
Estates on Condition 139
Estates on Limitation 142
Estate on Conditional Limitation .... 142
Mortgages on Real Property 143
History and Development of the Equity of
Redemption 144
Legal Mortgages 147
Common Law or Conveyance Theory . . 149
Lien Theory Recognized in New York . 150
Combination Theory as in New Jersey . 151
Legal Rules Governing Mortgages . . . 152
Assignment of Mortgages 157
Equitable Rules Governing Mortgages . 162
Equitable Mortgages :
Deposit of Title Deeds 165
Vendor's Lien 165
Vendee's Lien 166
Deed Intended as Security 167
Charges on Land 167
Doctrine of Lis Pendens 167
Priority of Mortgages 168
Foreclosure of Mortgages 170
Strict foreclosure 172
xi
CONTENTS IN OUTLINE
PAGE
By entry, notice and lapse of time . . . 173
By advertisement under power of sale . 173
Equitable foreclosure 173
Foreclosure under the Codes .... 174
Estates Explained as to When Ownership Vests:
Reversions Nature and Origin 176
Important Rules Governing Reversions . . 177
Remainders Nature and Kinds 179
Vested Various Stages of Vesting . . . 180
Rule of Moore vs. Littel in New York 181
Contingent Fearnes' Classification . . 18$
Uncertainty of Event 183
Uncertain Order of Events 184
Uncertain Remaindermen 185
Rule in Shelley's Case 186
Rules Governing Remainders 188
Springing Uses 191
Shifting Uses 192
Powers Over Real Property 193
Origin and Kinds 195
Collateral, appendant and in gross
General and Special
Beneficial and in Trust
Important Rules Governing Powers .... 196
Executory Devises 201
The Rule Against Perpetuities 202
The Rule Against Accumulations 209
PART V
Title to Real Property:
By Descent: The Canons of the Common Law 212
Statutory Changes 214
By Purchase: Other than by Alienation . . . 216
By Occupancy 216
By Abandonment 216
By Estoppel In Pais, by Deed and of Record 216
By Dedication 218
By Custom and Prescription 219
By Adverse Possession Important Rules
Thereof 219-225
By Escheat and Forfeiture 224
By Prerogative and Eminent Domain . . . 225
xii
CONTENTS IN OUTLINE
PAGE
By Purchase: Through Alienation:
Four Common Assurances of the Realm . . 226
By Matter of Record Fines and Common
Recoveries.
By Special Custom Gavelkind and Borough
English
By Deed:
Common Law Conveyances 227
Conveyances Under Statute of Uses . . 230
Forms and Requisites of Deeds . . . 232
Execution of Deeds 236
Recording of Deeds 238
Analysis of Deeds 239
Covenants and Warranty 242
By Devise: Rules Affecting Wills of Real
Property 246
Conclusion . . . , . 247
APPENDIX . ; .. . k* M . . * i. M . . 249
Xlll
THE GIST OF
REAL PROPERTY LAW
THE GIST
OF REAL PROPERTY LAW
PART I. ORIGIN, NATURE AND KINDS
OF PROPERTY
Property in its general sense is that which
one owns to the exclusion of every one else;
ownership including both the right to control
its use as well as its disposition or transfer.
The term property is used to include both the
object or thing possessed, the estate or inter-
est therein, i.e., the dominion thereover. In
personal property, ownership includes com-
plete appropriation with the power of absolute
disposition for all or any purposes, including
the right and ability to destroy the thing it-
self; but ownership in land, that is real prop-
erty, can not amount to complete appropria-
tion and is by its very nature limited to the
use for a general or restricted purpose, i. e.
dominium utile, coupled usually with the power
to dispose of the right to use the property, i. e.
dominium directum, although either may exist
without the other as real property. Property
in land depends entirely upon a legal fiction of
ownership for the thing itself can not, any more
than air and water, be appropriated or owned
in the same way as personal property around
which the law of property developed long be-
fore property in land was recognized.
1
THE GIST OF REAL PROPERTY LAW
The elements of property are illustrated in
the history of the human race: There have
been times when serfdom was so absolute as to
give the owner a complete right to appropriate
his serf's life and liberty even to the point of
physical destruction.
In this we find all elements of property com-
bined: use, appropriation and disposition. At
another period and place in the world's his-
tory, the serf is owned and may be sold, but he
is protected by law from physical destruction.
He is still property, but a certain element of
chattel ownership has disappeared and the own-
ership of the serf is now much the same as the
ownership of the land, both may be used and
disposed of, but neither may be destroyed.
Eventually slavery is abolished through leg-
islation. All property in serfs is destroyed,
but the individual serf is still in being. He is
no longer property because the law has taken
away from his master all the elements : use, ap-
propriation and disposition, and a similar re-
sult might follow such legislation as to land.
There are two leading theories of the origin
of real property, by which we mean the recog-
nition of exclusive ownership in land, while cer-
tain economists contend that land is not sus-
ceptible of exclusive ownership and is therefore
not property. The generally accepted view is
Blackstone's, that the ownership of land orig-
inated in occupancy, the land being originally
res nuttius. Sir Henry Maine . advances the
more scholarly theory that individual ownership
of land developed from the gradual disintegra-
KINDS OF PROPERTY
tion of family or tribal control of land, occu-
pied by the primitive, patriarchal families in a
kind of communistic holding.
Property is divided into three kinds: a.
Personal, which is property capable of com-
plete appropriation.
b. Real, which is property wherein ownership
can not actually result in more than use or en-
joyment Coupled with the right to direct its
future use and enjoyment.
c. Mixed, which is property alternately
or interchangeably real or personal, depending
on its relation to or association with real prop-
erty. This term "mixed property" is a purely
artificial one and has reference to legal attri-
butes imposed by law on a particular thing in-
herently real or personal which take it out of
its natural class permanently or for the time be-
ing. Thus a key fitted into the door of a build-
ing becomes realty and a part of the building ;
and money directed to be invested in land is
converted into real property; e converse real
property directed to be sold and the proceeds
divided is treated in courts of equity as per-
sonal property.
STOCK OF A COEPORATION is always personal
property, even though the corporate assets are
nothing but land.
CHOSES IN ACTION for injury to land are per-
sonal property except where the action is for
a continuing trespass.
BUILDINGS are usually but not necessarily
real property.
ROLLING STOCK or RAILROADS is treated as
3
THE GIST OF REAL PROPERTY LAW
real property in the Federal Courts ; but as
personal property in New York and New Jer-
sey.
WATER, OIL AND GAS in their natural state
are not property, in the same sense that no
property right exists in wild animals until cap-
tured. When confined artificially, as in a car-
boy, cistern or tank, even water may be prop-
erty. There are real property rights in nat-
ural streams and bodies of water which will be
later considered as natural servitudes, but a
deed of a body of water as such passes nothing.
Water, when frozen into ice, is a part of
the land and may be treated as real or per-
sonal property. Ice, formed in navigable
streams in the absence of statute, is public
property and belongs to the first taker. In
non-navigable streams, it belongs to the owner
of land through which the stream flows or to
the riparian owners, equally, to the thread of
stream. In artificial waterways the ice belongs
to the land owner. Ice may be constructively
severed (without actually being cut) and sold
or mortgaged as personalty.
VEGETABLE PRODUCTS: Frwctus Naturales
are those which produce a substantial crop
without annual care and cultivation and are a
part of the land and real property until actu-
ally or constructively severed; for example,
strawberries, which improve under cultivation
but do not require it to produce substantially.
Fructus Industrials are those which require
care and cultivation to bring about a substan-
tial crop and are personal property passing as
4
KINDS OF PROPERTY
such upon sale or death, such as wheat, corn,
hops, etc.
TREES growing in their natural state or
blown down upon the land are realty, except
nursery trees. But standing timber may be
treated as personalty, sold orally, and so con-
structively severed if the sale is completed and
nothing remains but the delivery; an execu-
tory sale of standing timber must under the
Statute of Frauds be in writing. Trees growing
along boundary lines belong to him on whose
land the trunk stands, and, although the other
owner may lop off branches or roots on his
land, he has no claim to the fruit or produce of
the tree.
MANURE is realty if made by farm beasts
fed from the land or fodder grown on the land,
but otherwise personalty, as when it collects
in a livery stable or upon the street. In New
Jersey manure is treated as personalty under
all conditions. *
CHURCH PEWS are treated in this country as
the ownership of the land itself and so subject
to an action for trespass, but in England a pew
is a mere right. As real property, a pew dif-
fers from all other kinds of real property in
that its absolute ownership may be subject to
restraint upon alienation as well as use.
BURIAL PLOTS are either owned as so much
land or as a license or easement to bury therein
and differ from other property in that they are
peculiarly subject to municipal control and
police supervision, as well as to restraints on
alienation, like church pews.
5
THE GIST OF REAL PROPERTY LAW
FIXTURES might be treated as a most impor-
tant kind of mixed property under modern law,
where a thing annexed to land may either re-
main a chattel or become realty, but the term
fixture in its origin meant only a chattel which
had become realty by annexation. It is more
usual, therefore, to consider fixtures when dis-
cussing kinds of real property rather than now
when considering kinds of property in general.
DISTINCTIONS BETWEEN REAL AND
PERSONAL PROPERTY
HISTORICAL AND NATURAL DISTINCTIONS
There can be no such thing as property un-
til the law stands ready to protect and enforce
the exclusive ownership on which the whole le-
gal conception of property is based. Primitive
mankind recognized no property in land until
long after property in flocks and herds was well
developed. Land was too abundant to require
more than the natural protection of personal
presence. Personal property was protected by
law. This is the early classification of res
mancipi and res nee mancipi, which had nothing
to do with the question of movability. Per-
sonal property is usually movable and real
property immovable, but this is an apparent
and not a real or universal difference; for ex-
ample, the fastest moving railroad locomotive
may be real property and the tallest building
personalty after it has been sold to a house
wrecker to be torn down.
6
CLASSIFICATION OF PROPERTY
FEUDAL DISTINCTIONS
The chief difference in kinds of property rec-
ognized by the Feudal System is that real prop-
erty will support a feud and is susceptible of
tenure. Anything not a feud was a chattel.
This is probably the origin of the modern re-
fusal to recognize estates in personal property.
There may be numerous interests co-existing
in the same piece of land but personalty or
chattels are at any given time completely
owned except in cases of bailment where we
meet so called special properties.
DISTINCTIONS IN LEGAL REMEDIES
Real property is conceived legally to be sui
generis and where one is wrongfully deprived of
his real property, it can be specifically recov-
ered in what is known as a real action; the rem-
edy for the loss of or refusal to deliver person-
alty gives rise except in rare cases only to an
action for damages, on the theory that with
money damages the chattel may be replaced
and the status quo ante completely restored,
whereas no two pieces of land or interests in
land are exactly the same or capable of being
substituted one for the other.
DISTINCTIONS IN DESCENT AND DISTRIBUTION
Real property at death descends instantly,
by operation of law, to those persons whom the
law designates as heirs. Personal property
passes to an administrator or executor, if one
7
THE GIST OF REAL PROPERTY LAW
is appointed, who is a functionary of the law
designated to pay the debts of the decedent;
when these are paid the personalty is distrib-
uted to the next of kin, who are not necessarily
the heirs, but those persons designated by law
under a statute of distributions. A widow
would be a distributee, but not a next of kin
and never an heir. The tendency of modern
statutes is to make heirs and next of kin iden-
tical. The reasons for the difference in devolu-
tion upon death is due to two causes: (1)
Real property was not generally at the com-
mon law subject to the payment of the owner's
debts either during his lifetime or at his death ;
(2) real property acquired the attributes of
alienability and descendibility artificially with
due regard to the requirements of the Feudal
System wherein descendibility was not viewed
as inherent in the ownership of real property;
the converse was true of personalty, which was
treated as naturally alienable and transfer-
able at death.
DISTINCTION AS TO LIABILITY FOR DEBT
Personalty has always been applicable to
the payment of its owner's debts and realty is
made so available only by statutes, which still
provide that the chattels or personalty shall
be exhausted on execution before realty is
reached.
DISTINCTIONS IN THE LAW WHICH GOVERNS
The lex loci situs controls real property ; the
lex loci domicilii governs personal property ; so
8
CLASSIFICATION OF PROPERTY
a married woman would have dower in prop-
erty located in New York, although she and
her husband were domiciled at his death in a
state where dower had been abolished, i. e., his
legal domicile, the place to which he intends to
return. Actions affecting title to land are as
a rule local and must be brought where the
property is located, subject, however, to statu-
tory regulations, as in New York. Similarly
of taxation, real property is taxed where it lies ;
personalty where the owner is, except where
modified by so called secured debt legislation.
Taxes are moreover enforcible directly against
real property, whereas a personalty tax is
merely a personal claim to be enforced by a
judgment and execution in personam, except
where the right to distrain is added, as recently
in New York by statute.
METHOD OF TRANSFER INTER VIVOS
Real property and every interest therein is
within the Statute of Frauds and ownership or
rights can not be established or enforced with-
out written evidence, usually of a formal char-
acter, as a deed, except in rare cases such as
the oral partition of land and the creation of
implied trusts. Title to personalty passes by
mere delivery and oral agreements and trans-
fers are enforcible. Occasionally an oral agree-
ment to sell real property will be validated by
part performance, but this only where there
are the strongest equitable reasons therefor,
and where the purchaser or vendee has first ac-
quired possession under the contract.
9
PART II. LEGAL SYSTEMS UNDER
WHICH PROPERTY IN LAND IS
RECOGNIZED
Conceding the possibility of exclusive own-
ership in land, any such ownership must and
does grow out of some well defined theory of
the extent of the ownership, the right to trans-
fer it and its devolution upon death. Such
theory results in a system of holding. Holdings
of real property must not be confused with
"estates," which are the interests recognized by
the system of holding, or with the word "title,"
which is the series of facts or chain of legal
events by which, under a particular system of
land holding, the ownership of the estate, what-
ever it may be in nature or quantity, is estab-
lished or proved. There are two important
kinds of land holding in English real property
law, alodial and feudal.
ALODIAL, SYSTEM: Antedating the feudal
system and being well established among the
Anglo-Saxons and later overshadowing the
feudal system entirely in this country, the alo-
dial system conceives of land as being inde-
pendently and absolutely owned, subject to no
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY
THE GIST OF
REAL PROPERTY LAW
THE GIST
of
Real Property
Law
By
HAROLD G. ARON, M.A., LL.B.
Of the New York and New Jersey Bar,
Instructor in Real Property Law, and Code Pleading and
Practice at the New York Law School
WRITERS PUBLISHING COMPANY
20 VESEY STREET NEW YORK CITY
>
\9lfc
COPTBIGHTBD, 1916
HAROLD G. ARON
Press of
J.J. Little &Ives Co.
New York
Affectionately inscribed to Hamilton College whose
many fine traditions include the beginnings of the work
of Professor Theodore Dwight upon that great method
of legal instruction which now bears his name.
FOREWORD
This work was prepared primarily to meet the re-
quirements of the summer school course in New York
Law School. It is hoped that it may furnish a means
whereby the student of the law of real property may
get a comprehensive view of the subject, which will
crystallize principles learned from cases, lectures and
more complete and scholarly text books. The great
problem of real property instructors is to bring the stu-
dent to the end of his course with an orderly under-
standing of the subject as an entirety which will facili-
tate the application of his knowledge in actual practice.
There is no dearth of excellent texts on the subject,
and the author acknowledges his debt to several of them,
including Professor Washburn's scholarly treatise and
more particularly the recent and splendid work of
Professor Reeves, to which is largely due whatever
merit lies in the present volume. For the student who
has from these or other sources studied the law of real
property, it may serve a useful purpose to summarize
what he has there learned.
The author has striven for two things: accuracy and
succinctness. The appendix is only a tool box of useful
references; it does not pretend to be a table of cases,
and is confined largely to the law of New York and
New Jersey; a later edition may similarly supply the
working principles of the real property law of other
states.
If the book is found useful by the practitioner, this
will be a great satisfaction to the author, especially if
it serves to dissipate the idea that the law of real
property is a trackless desert to be ventured into only
in the company of corporate guides.
HAHOLD G. AROK.
NEW YORK CITY, March 15, 1916.
CONTENTS IN OUTLINE
PART I
PAGE
Origin, Nature and Kinds of Property:
Element of Property 1
Kinds: Personal, Real and Mixed 3
Stock of a corporation; Choses in action;
Buildings; Rolling Stock of Railroads ... 3
Water, Oil and Gas, 4
Vegetable Products: Fructus Naturales; Fruc-
tus Industrials; Trees 4
Manure; Church Pews; Burial Rights ... 5
Fixtures Under Modern Law 6
Distinction Between Personal and Real Prop-
erty:
Historical and Natural Differences .... 6
Feudal Attributes . . . . - 7
In Legal Remedies 7
Descent and Distribution 7
Liability for Debt 8
Law which Governs 8
Method of Transfer 9
PART II
Legal Systems Under Which Property in Land is
Recognized:
Historical Development of Land Holding . . 10
The Alodial System 10
The Feudal System 11
Important Feudal Terms 13
Feud, Subinfeudation . . . .; ; . . . 14
Tenures and Seisin ........ 15
Important Feudal Effects ...... 16
vii
CONTENTS IN OUTLINE
PART III
PAGE
Kinds of Real Property:
Land, Including Fixtures ....... 18
Definition and Kinds of Fixtures .... 19
Criteria to Determine Nature of Fixture:
Reasonably Presumable Intent .... 20
Method of Annexation 20
Relation of Parties 20
Vendor and vendee, Grantor and grantee;
Heirs and next of kin; Co-owners;
Mortgagor and mortgagee; Mortgagee
of realty and chattel mortgage:
Rules in Massachusetts, New York and
New Jersey:
Landlord and Tenant 21
Exceptions as to trade, domestic and
agricultural fixtures.
Effect of Renewal of Lease.
Hold-over Tenants.
Tenements, Origin and Kinds: Corporeal and
Incorporeal:
Franchises 23
Rents . . 23
Definition 24
Rent Service 25
Rent Sec 26
Rent Charge 27
Important Rules of the Law of Rent ... 28
Easements and Servitudes:
Origin and Definition 31
Kinds of Easements 32
Common Law Easements 33
Easement in Gross ....... : . . 35
Natural Easements . . . . > : ,. . 35
Equitable Easements . , ; >. . ,< . ,. 36
Kinds of Servitudes:
Servitudes by Grant . . . . .. ; . . . 37
Prescriptive Servitudes . . ..-. .- > . 37
Customary Servitudes . . . . r . . . 38
Legal Servitudes and Highways ... 39
viii
CONTENTS IN OUTLINE
PAGE
Natural Servitudes:
Right to Light, Air and Access ... 40
Lateral and Subjacent Support ... 41
Water Rights 42
Surface:
Non-navigable Streams.
Navigable Streams.
Subterranean Waters.
Artificial Waterways.
Conventional Servitudes 43
Party Walls; Division Fences .... 44
Important Rules Governing Easements and
Servitudes 45
Profits a Prendre:
Definition, Origin and Kinds 47
Rules Governing Profits a Prendre ... 48
Licenses :
Definition and Origin ....... 48
Kinds of Licenses > . 49
PART IV
Estates in Real Property:
Explained as to Courts in Which Recognized:
Historical Development of Equitable Estates 51
Transition from Use to Trust 52
Statute of Uses 52
Decision in Jane Tyrell's Case . . '. . 53
Kinds of Trusts:
Active Passive 54
Express Implied 54
Public Private 54
Executed Executory 54
Express Trusts: How created and proved . . 55
Precatory Trusts .... z .... 55
Separate Use Trusts for Married Women . 56
Spendthrift Trusts . 56
Charitable Trusts 57
Statutory Trusts in New York .... 58
Implied Trusts:
Resulting to Effectuate Intent .... 60
Constructive to Avoid Fraud 64
Actual Fraud or Wrongdoing .... 64
ix
CONTENTS IN OUTLINE
PAGE
Presumed Fraud 65
Fraud on Third Persons 66
In the Absence of Fraud 67
Doctrine of Notice and Consideration . . 68
Explained as to Duration 70
Estates in Fee:
Fee Simple Absolute 71
Qualified Fees 72
Fee Conditional at Common Law . . 73
Statute De Donis Conditionalibus . . 74
Fee Tail Estates 75
By condition; by limitation; by condi-
tional limitation 76
Estates for Life:
Conventional, including pur auter vie . . 77
Legal :
Estate During Marriage 79
Curtesy Its Nature and Requisites . . 80
Curtesy Initiate.
Curtesy Consummate.
Dower Its Nature and Requisites ... 84
As an inchoate right; as chose in action 86
As an Estate 87
Assignment Its effect and damages for
detention 88
Rule of Dos de Dos, Peti non Debet . 92
Jointure Its Nature and Development . 94
Legal Jointure 94
Equitable Jointure 94
Testamentary Provision 95
Statutory: Homestead 95
Incidents of Life Estates 96
The Law of Waste in Life Estates:
Estovers and Emblements 97
Voluntary Waste 98
Permissive Waste 99
Equitable Waste 99
Penalties, Damages and Remedies . . . 100
Estates Less Than for Life 100-127
Estates for Years Definition and Develop-
ment 102
Relation of Landlord and Tenant . . . 103
Nature and Effect of Lease . 104
CONTENTS IN OUTLINE
PAGE
Covenants and Conditions in Leases . . 106
Important Rules and Incidents .... 127
Estates at Will Definition and Origin . . 128
Estates by Sufferance Definition and Nature 131
Estates Explained as to Number and Inter-rela-
tion of Ownerships:
Joint Tenancy Unities of Time, Title, Inter-
est and Possession 132
Ownership per my et per tout:
Doctrine of Survivorship 133
Coparcenary Between Female Heirs . . . 135
Tenancy in Common Unity of Possession . . 135
Ownership per my et non per tout,
Tenancy by Entirety All Unities .... 136
Ownership per tout et non per my.
Partnership Estates in Land 137
Joint Mortgages 137
Partition as It Affects All Co-ownership . . 138
Estates Explained as to Absolute or Qualified
Character of Ownership:
Estates on Condition 139
Estates on Limitation 142
Estate on Conditional Limitation .... 142
Mortgages on Real Property 143
History and Development of the Equity of
Redemption 144
Legal Mortgages 147
Common Law or Conveyance Theory . . 149
Lien Theory Recognized in New York . 150
Combination Theory as in New Jersey . 151
Legal Rules Governing Mortgages . . . 152
Assignment of Mortgages 157
Equitable Rules Governing Mortgages . 162
Equitable Mortgages :
Deposit of Title Deeds 165
Vendor's Lien 165
Vendee's Lien 166
Deed Intended as Security 167
Charges on Land 167
Doctrine of Lis Pendens 167
Priority of Mortgages 168
Foreclosure of Mortgages 170
Strict foreclosure 172
xi
CONTENTS IN OUTLINE
PAGE
By entry, notice and lapse of time . . . 173
By advertisement under power of sale . 173
Equitable foreclosure 173
Foreclosure under the Codes .... 174
Estates Explained as to When Ownership Vests:
Reversions Nature and Origin 176
Important Rules Governing Reversions . . 177
Remainders Nature and Kinds 179
Vested Various Stages of Vesting . . . 180
Rule of Moore vs. Littel in New York 181
Contingent Fearnes' Classification . . 18$
Uncertainty of Event 183
Uncertain Order of Events 184
Uncertain Remaindermen 185
Rule in Shelley's Case 186
Rules Governing Remainders 188
Springing Uses 191
Shifting Uses 192
Powers Over Real Property 193
Origin and Kinds 195
Collateral, appendant and in gross
General and Special
Beneficial and in Trust
Important Rules Governing Powers .... 196
Executory Devises 201
The Rule Against Perpetuities 202
The Rule Against Accumulations 209
PART V
Title to Real Property:
By Descent: The Canons of the Common Law 212
Statutory Changes 214
By Purchase: Other than by Alienation . . . 216
By Occupancy 216
By Abandonment 216
By Estoppel In Pais, by Deed and of Record 216
By Dedication 218
By Custom and Prescription 219
By Adverse Possession Important Rules
Thereof 219-225
By Escheat and Forfeiture 224
By Prerogative and Eminent Domain . . . 225
xii
CONTENTS IN OUTLINE
PAGE
By Purchase: Through Alienation:
Four Common Assurances of the Realm . . 226
By Matter of Record Fines and Common
Recoveries.
By Special Custom Gavelkind and Borough
English
By Deed:
Common Law Conveyances 227
Conveyances Under Statute of Uses . . 230
Forms and Requisites of Deeds . . . 232
Execution of Deeds 236
Recording of Deeds 238
Analysis of Deeds 239
Covenants and Warranty 242
By Devise: Rules Affecting Wills of Real
Property 246
Conclusion . . . , . 247
APPENDIX . ; .. . k* M . . * i. M . . 249
Xlll
THE GIST OF
REAL PROPERTY LAW
THE GIST
OF REAL PROPERTY LAW
PART I. ORIGIN, NATURE AND KINDS
OF PROPERTY
Property in its general sense is that which
one owns to the exclusion of every one else;
ownership including both the right to control
its use as well as its disposition or transfer.
The term property is used to include both the
object or thing possessed, the estate or inter-
est therein, i.e., the dominion thereover. In
personal property, ownership includes com-
plete appropriation with the power of absolute
disposition for all or any purposes, including
the right and ability to destroy the thing it-
self; but ownership in land, that is real prop-
erty, can not amount to complete appropria-
tion and is by its very nature limited to the
use for a general or restricted purpose, i. e.
dominium utile, coupled usually with the power
to dispose of the right to use the property, i. e.
dominium directum, although either may exist
without the other as real property. Property
in land depends entirely upon a legal fiction of
ownership for the thing itself can not, any more
than air and water, be appropriated or owned
in the same way as personal property around
which the law of property developed long be-
fore property in land was recognized.
1
THE GIST OF REAL PROPERTY LAW
The elements of property are illustrated in
the history of the human race: There have
been times when serfdom was so absolute as to
give the owner a complete right to appropriate
his serf's life and liberty even to the point of
physical destruction.
In this we find all elements of property com-
bined: use, appropriation and disposition. At
another period and place in the world's his-
tory, the serf is owned and may be sold, but he
is protected by law from physical destruction.
He is still property, but a certain element of
chattel ownership has disappeared and the own-
ership of the serf is now much the same as the
ownership of the land, both may be used and
disposed of, but neither may be destroyed.
Eventually slavery is abolished through leg-
islation. All property in serfs is destroyed,
but the individual serf is still in being. He is
no longer property because the law has taken
away from his master all the elements : use, ap-
propriation and disposition, and a similar re-
sult might follow such legislation as to land.
There are two leading theories of the origin
of real property, by which we mean the recog-
nition of exclusive ownership in land, while cer-
tain economists contend that land is not sus-
ceptible of exclusive ownership and is therefore
not property. The generally accepted view is
Blackstone's, that the ownership of land orig-
inated in occupancy, the land being originally
res nuttius. Sir Henry Maine . advances the
more scholarly theory that individual ownership
of land developed from the gradual disintegra-
KINDS OF PROPERTY
tion of family or tribal control of land, occu-
pied by the primitive, patriarchal families in a
kind of communistic holding.
Property is divided into three kinds: a.
Personal, which is property capable of com-
plete appropriation.
b. Real, which is property wherein ownership
can not actually result in more than use or en-
joyment Coupled with the right to direct its
future use and enjoyment.
c. Mixed, which is property alternately
or interchangeably real or personal, depending
on its relation to or association with real prop-
erty. This term "mixed property" is a purely
artificial one and has reference to legal attri-
butes imposed by law on a particular thing in-
herently real or personal which take it out of
its natural class permanently or for the time be-
ing. Thus a key fitted into the door of a build-
ing becomes realty and a part of the building ;
and money directed to be invested in land is
converted into real property; e converse real
property directed to be sold and the proceeds
divided is treated in courts of equity as per-
sonal property.
STOCK OF A COEPORATION is always personal
property, even though the corporate assets are
nothing but land.
CHOSES IN ACTION for injury to land are per-
sonal property except where the action is for
a continuing trespass.
BUILDINGS are usually but not necessarily
real property.
ROLLING STOCK or RAILROADS is treated as
3
THE GIST OF REAL PROPERTY LAW
real property in the Federal Courts ; but as
personal property in New York and New Jer-
sey.
WATER, OIL AND GAS in their natural state
are not property, in the same sense that no
property right exists in wild animals until cap-
tured. When confined artificially, as in a car-
boy, cistern or tank, even water may be prop-
erty. There are real property rights in nat-
ural streams and bodies of water which will be
later considered as natural servitudes, but a
deed of a body of water as such passes nothing.
Water, when frozen into ice, is a part of
the land and may be treated as real or per-
sonal property. Ice, formed in navigable
streams in the absence of statute, is public
property and belongs to the first taker. In
non-navigable streams, it belongs to the owner
of land through which the stream flows or to
the riparian owners, equally, to the thread of
stream. In artificial waterways the ice belongs
to the land owner. Ice may be constructively
severed (without actually being cut) and sold
or mortgaged as personalty.
VEGETABLE PRODUCTS: Frwctus Naturales
are those which produce a substantial crop
without annual care and cultivation and are a
part of the land and real property until actu-
ally or constructively severed; for example,
strawberries, which improve under cultivation
but do not require it to produce substantially.
Fructus Industrials are those which require
care and cultivation to bring about a substan-
tial crop and are personal property passing as
4
KINDS OF PROPERTY
such upon sale or death, such as wheat, corn,
hops, etc.
TREES growing in their natural state or
blown down upon the land are realty, except
nursery trees. But standing timber may be
treated as personalty, sold orally, and so con-
structively severed if the sale is completed and
nothing remains but the delivery; an execu-
tory sale of standing timber must under the
Statute of Frauds be in writing. Trees growing
along boundary lines belong to him on whose
land the trunk stands, and, although the other
owner may lop off branches or roots on his
land, he has no claim to the fruit or produce of
the tree.
MANURE is realty if made by farm beasts
fed from the land or fodder grown on the land,
but otherwise personalty, as when it collects
in a livery stable or upon the street. In New
Jersey manure is treated as personalty under
all conditions. *
CHURCH PEWS are treated in this country as
the ownership of the land itself and so subject
to an action for trespass, but in England a pew
is a mere right. As real property, a pew dif-
fers from all other kinds of real property in
that its absolute ownership may be subject to
restraint upon alienation as well as use.
BURIAL PLOTS are either owned as so much
land or as a license or easement to bury therein
and differ from other property in that they are
peculiarly subject to municipal control and
police supervision, as well as to restraints on
alienation, like church pews.
5
THE GIST OF REAL PROPERTY LAW
FIXTURES might be treated as a most impor-
tant kind of mixed property under modern law,
where a thing annexed to land may either re-
main a chattel or become realty, but the term
fixture in its origin meant only a chattel which
had become realty by annexation. It is more
usual, therefore, to consider fixtures when dis-
cussing kinds of real property rather than now
when considering kinds of property in general.
DISTINCTIONS BETWEEN REAL AND
PERSONAL PROPERTY
HISTORICAL AND NATURAL DISTINCTIONS
There can be no such thing as property un-
til the law stands ready to protect and enforce
the exclusive ownership on which the whole le-
gal conception of property is based. Primitive
mankind recognized no property in land until
long after property in flocks and herds was well
developed. Land was too abundant to require
more than the natural protection of personal
presence. Personal property was protected by
law. This is the early classification of res
mancipi and res nee mancipi, which had nothing
to do with the question of movability. Per-
sonal property is usually movable and real
property immovable, but this is an apparent
and not a real or universal difference; for ex-
ample, the fastest moving railroad locomotive
may be real property and the tallest building
personalty after it has been sold to a house
wrecker to be torn down.
6
CLASSIFICATION OF PROPERTY
FEUDAL DISTINCTIONS
The chief difference in kinds of property rec-
ognized by the Feudal System is that real prop-
erty will support a feud and is susceptible of
tenure. Anything not a feud was a chattel.
This is probably the origin of the modern re-
fusal to recognize estates in personal property.
There may be numerous interests co-existing
in the same piece of land but personalty or
chattels are at any given time completely
owned except in cases of bailment where we
meet so called special properties.
DISTINCTIONS IN LEGAL REMEDIES
Real property is conceived legally to be sui
generis and where one is wrongfully deprived of
his real property, it can be specifically recov-
ered in what is known as a real action; the rem-
edy for the loss of or refusal to deliver person-
alty gives rise except in rare cases only to an
action for damages, on the theory that with
money damages the chattel may be replaced
and the status quo ante completely restored,
whereas no two pieces of land or interests in
land are exactly the same or capable of being
substituted one for the other.
DISTINCTIONS IN DESCENT AND DISTRIBUTION
Real property at death descends instantly,
by operation of law, to those persons whom the
law designates as heirs. Personal property
passes to an administrator or executor, if one
7
THE GIST OF REAL PROPERTY LAW
is appointed, who is a functionary of the law
designated to pay the debts of the decedent;
when these are paid the personalty is distrib-
uted to the next of kin, who are not necessarily
the heirs, but those persons designated by law
under a statute of distributions. A widow
would be a distributee, but not a next of kin
and never an heir. The tendency of modern
statutes is to make heirs and next of kin iden-
tical. The reasons for the difference in devolu-
tion upon death is due to two causes: (1)
Real property was not generally at the com-
mon law subject to the payment of the owner's
debts either during his lifetime or at his death ;
(2) real property acquired the attributes of
alienability and descendibility artificially with
due regard to the requirements of the Feudal
System wherein descendibility was not viewed
as inherent in the ownership of real property;
the converse was true of personalty, which was
treated as naturally alienable and transfer-
able at death.
DISTINCTION AS TO LIABILITY FOR DEBT
Personalty has always been applicable to
the payment of its owner's debts and realty is
made so available only by statutes, which still
provide that the chattels or personalty shall
be exhausted on execution before realty is
reached.
DISTINCTIONS IN THE LAW WHICH GOVERNS
The lex loci situs controls real property ; the
lex loci domicilii governs personal property ; so
8
CLASSIFICATION OF PROPERTY
a married woman would have dower in prop-
erty located in New York, although she and
her husband were domiciled at his death in a
state where dower had been abolished, i. e., his
legal domicile, the place to which he intends to
return. Actions affecting title to land are as
a rule local and must be brought where the
property is located, subject, however, to statu-
tory regulations, as in New York. Similarly
of taxation, real property is taxed where it lies ;
personalty where the owner is, except where
modified by so called secured debt legislation.
Taxes are moreover enforcible directly against
real property, whereas a personalty tax is
merely a personal claim to be enforced by a
judgment and execution in personam, except
where the right to distrain is added, as recently
in New York by statute.
METHOD OF TRANSFER INTER VIVOS
Real property and every interest therein is
within the Statute of Frauds and ownership or
rights can not be established or enforced with-
out written evidence, usually of a formal char-
acter, as a deed, except in rare cases such as
the oral partition of land and the creation of
implied trusts. Title to personalty passes by
mere delivery and oral agreements and trans-
fers are enforcible. Occasionally an oral agree-
ment to sell real property will be validated by
part performance, but this only where there
are the strongest equitable reasons therefor,
and where the purchaser or vendee has first ac-
quired possession under the contract.
9
PART II. LEGAL SYSTEMS UNDER
WHICH PROPERTY IN LAND IS
RECOGNIZED
Conceding the possibility of exclusive own-
ership in land, any such ownership must and
does grow out of some well defined theory of
the extent of the ownership, the right to trans-
fer it and its devolution upon death. Such
theory results in a system of holding. Holdings
of real property must not be confused with
"estates," which are the interests recognized by
the system of holding, or with the word "title,"
which is the series of facts or chain of legal
events by which, under a particular system of
land holding, the ownership of the estate, what-
ever it may be in nature or quantity, is estab-
lished or proved. There are two important
kinds of land holding in English real property
law, alodial and feudal.
ALODIAL, SYSTEM: Antedating the feudal
system and being well established among the
Anglo-Saxons and later overshadowing the
feudal system entirely in this country, the alo-
dial system conceives of land as being inde-
pendently and absolutely owned, subject to no
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