and conditions which are imposed by the seller. It is true that title to real estate may be acquired without any writing by long possession under a claim adverse to the owner but this is in no sense a transfer of title from one to another by a voluntary act. On the other hand, personal property is transferred either by bill of sale or memorandum of some sort or, in the more usual case, by mere delivery without any writing whatever, as where one buys goods at a store. In fact we may say that the transfer of land consists in the deed itself while a bill of sale in personal property is ordinarily not the transfer of title but only evidence of the transfer; that is to say, one cannot transfer title to real estate except by a deed while he may transfer and usually does transfer title to personal property by mere delivery, sometimes completing the transaction at the time when the title passes or thereafter by delivering a bill of sale as evidence of what has transpired.

(3) As to Dower and Title by Marriage. By the common law a husband had certain rights in the property of his wife. He took her personal property as his own absolutely. In her land he got merely a temporary estate and did not acquire title to it by his marriage. This estate is called, while the wife is living, an "estate during coverture" and after her death, the husband surviving her, it is called an "estate by curtesy. These estates are only life estates and therefore cease entirely with the death of a husband just as a tenancy in land ceases when a term expires for which it was created. Modern statutes have taken away the right of the husband to his wife's personal property and many states have also changed the estate of curtesy, although in all states a husband has still certain rights in the land of his wife.

The wife by her marriage acquired no rights to the personal property of her husband and does not do so now, for we know that personal property can be freely transferred by a man without taking any consideration of the wife in the bargain. Any other rule would retard commercial dealings in which personal property must pass rapidly from hand to hand. Of course upon the husband's death the wife has certain rights and takes a part of the personal property of which he may die possessed but that is an entirely different matter. In the land of the husband the wife gets a dower interest which is called inchoate during his life and which becomes at his death if she survives him, a dower estate, which is a one-third interest for life which the wife has in the land of her deceased husband. It is only a life estate and terminates absolutely at her death.

(4) As to Right to Remove. We will see in our study of fixtures that certain property may be removed if it is to be regarded as personal estate and cannot be removed if it is to be regarded as real estate. Of course the owner of the land can always tear down his buildings or dig up his soil and thereby convert real property into personal property, but where the rights of two parties are concerned, as that of landlord and tenant, or that of seller and buyer, one claiming the real property and the other the personal property, the question becomes very important what is to be regarded as personal property and removable as such.

(5) As to Local Law Applicable. We may say as the general rule that the law of the place in which real estate is situated governs it entirely, while for some purposes personal property is to be regarded

as situated at the domicile of the owner no matter where it actually is. This is only true in certain

cases.

(6) Other Distinctions. The distinctions we have enumerated are the most important ones but by local law there may be other distinctions.

B. The Divisions of Property Into Lands, Tenements, and Hereditaments.

Land is any.

Sec. 4. THESE TERMS DEFINED. thing of a substantial nature; tenements anything permanent that can be holden; hereditaments anything that can be inherited whether of a tangible or intangible sort.

This

Blackstone and other old writers divided property into "lands, tenements and hereditaments." 1 distinction is not so very important to us but we will make a brief survey and it will tend to enlighten us upon the law of property and perhaps give us a better idea of the term. Land is defined by Blackstone as the ground and everything attached thereto and which extends indefinitely upward and downward.2

He defines a tenement as anything that may be holden; provided it be of a permanent nature; and a hereditament as anything real, personal or mixed which may be inherited.3

Sec. 5.

INCORPOREAL HEREDITAMENTS. An incorporeal hereditament is a right issuing out of a

1. Blackstone's Commentaries, Cooley's Ed., Book II, star page, 16.

2. Ibid, star page, 17.

3. Ibid.

thing corporate whether real or personal or concerning or annexed to or exercisable within the same.4

This sort of property consists in the right growing out of other property and, as Blackstone shows, is not the thing itself but some right concerning the thing, that is to say, it is not the land but is a right in the land, as rent; it is not a jewel but is an office relating to jewels, etc. The various sorts of these hereditaments are briefly enumerated below.

(1) Advowson. An advowson was an old form of property of an intangible sort signifying a right of presentation to a church,5 that is to say, it was the right which a person had because he had built a church or made some gift, to name the minister to officiate therein. This form of property is unknown in America because we have no connection between church and state.

(2) Tithes. A tithe was a right to a tenth part of the increase yearly arising from land and animals. Those things were tithable which were of annual increase. This was a species of property belonging to a church or the clergy and existed as a matter of right in various cases. Any person may now give a tenth part of his income to a church but this probably would not be called a tithe, because the church has no legal right to demand it, but tithes in the old days were legally demandable. These like advowsons are unknown to our law although they were known to the English law from early times.

4.

Blackstone's Commentaries, Cooley's Ed., Book II, star page, 19.

5. Ibid, Book II, star page, 21.

6. Ibid, star page, 24.

(3) Commons. A common was a right which a man had to make substantial profit from the land of another. This sort of right is also known by the name of "profit a prendre." Commons are of four sorts, and are discussed later."

(4) Ways or Easements. A way or an easement is the right of one to go upon the land of another.8 It differs from a common or profit in that it does not give the right to take anything from the land but merely to make a certain use of it. It differs from the right of a tenant, because he occupies the land, while the owner of an easement has no exclusive possession, but merely a right to go and come upon the land which is in the possession of another.

Easements are of two sorts, "appurtenant" or "in gross" but as they are hereafter discussed at length we may not dwell upon them here.

(5) Offices. An office was a right to exercise a public or private employment and to take the fees. and emoluments thereunto belonging.

(6) Dignities. 10 Dignities consisted in the right to honors and offices, as those of dukes, marquesses, earls, viscounts, and barons. They are unknown to our American law.

(7) Franchises.11 A franchise is a right which one has to do things which by the general law he would have no right to do: Thus we may have the right of certain persons to carry on business as a corporation. This they cannot do except by the

7. See section 134, post.

8.

9.

36.

See section 129, ff, post.

Blackstone's Commentaries, Cooley's Ed., star page,

10. Id., star page, 37.

11. Id.