Vol 5.05 Property

8/3/2019 Vol 5.05 Property

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The National Law Library

Volume Five

Property

by

Francis Samuel Philbrick, Ph.D., LLB., LLD.Professor of Law, The Law School,

University of Pennsylvania

Originally published in 1939, byP. F. Collier & Son Corporation

Republished InThe United States Of America


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N a t i o n a l L a w L i b r a r y

V o l u m e 5

P r o p e r t y

“ I t d o e s n o t r e q u i r e a m a j o r i t y t o p r e v a i l , b u t

r a t h e r a n i r a t e , t i r e l e s s m i n o r i t y k e e n t o

s e t b r u s h f i r e s i n p e o p l e ’ s m i n d s .”

– S a m u e l Ad a m s

Preface

This brief essay on a vast subject is not de-signed as an epitome of the property law, butrather as an explanation, for students, of whatproperty is, how the property law has grown, and

in a general way how its parts are related. Con-siderable space is given to historical explana-tions and to juristic discussions. It is somewhatthe fashion of the day to criticize both, but theauthor offers no apologies for his procedure.

The property law is full of complexities andanachronisms born of modes of thought we can-not share, of social judgments differing fromthose which we should, if free from precedents,make today, of classifications inadequate forpresent needs, of subtleties and in-directionsthat have distorted and delayed the laws devel-opment. It is the authors conviction, and in hisopinion nearly every brief prepared by any law-yer justifies it, that almost nothing legal can beunderstood or appliedstatutory clause, judi-cial opinion, or general principleotherwise thanby studying its origin and its past. As for theattempt to make clear, by history and otherwise,the nature of things discussed, that has seemedmore worth while than to cram these pages witha multitude of minor rules and distinctions re-garding things whose nature a beginner wouldbe puzzled to discern through a multiplicity of details.

For lack of space all annotations have beenomitted, except those giving the source of di-rect quotations. One quality likely to character-ize any brief treatment of a large subject isdogmatism; another is the accumulation of vaguegeneralities. An effort has been made to avoidboth.

Various acknowledgments must be made. Inwriting Part I, citations on occasional points werechecked, and other authorities called to my at-tention, by Mr. Morris H. Sheer and Mr. Edward I.Cutler, and particularly, on many subjects, byMr. Sydney S. Asher, the last being then a Gowen

Fellow of the University of Pennsylvania LawSchool. All of the proof has been read by Mr.Bernard Chertcoff, now a Gowen Fellow, andthanks to his care various inconsistencies, ob-scurities, and inadequacies have been eliminated.To all three of these students I am grateful foraid and criticism.

Francis S. Philbrick1939 A.D.

SUSPICIONSNEWS M AGAZINE

Anno Domini 2002

National Law Library Vol. 5

Creator, Proprietor &Christian Publisher

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7 Chapter I. Property in General

I. General Concepts2. Property3. Things4. Commercial Value

II. The Content of Property Rights More

Specifically Considered1. Rights ad Rem, in Rem, and in Re

III. “Property” a Word of Varying Meaning.1. Ownership, Possession, Property2. Changing Meaning of Property

at Different Times3. Geographical Variances of Property4. Various Meanings for Different Purposes

20 Chapter II. Seisin & Possession

as the Basis of Legal Title

1. Possession

2. Seisin3. Relation of Seisin and Possession to Title4. Consequent Role of Seisin and Possessionin Older Modes of Conveying Title5. Continuing Role of Possession in Transfersof Title

31 Chapter III. Classification

of Property Interests

I. Real Property and Personal Property .1. Origin2. Some Obsolete and Some Enduring Distinc-tions

(1) Variant Rules of Devolution(2) Liability for Debts(3) Variance in the Laws Remedies

Protecting Them(4) The Recording System(5) Modes of Alienation

3. Fixtures4. Equitable Conversion5. Persistently Varying Treatment of Realtyand Personalty .6. Tendencies toward Unification

II. Legal and Equitable Interests1. Origin of the Distinction2. General Relations of the Two Systems

III. Other Classifications1. Normal Ownership2. Abnormal Ownership

47 Chapter IV. Ownership

& Divided Ownership

1. Definition of Ownership(1) Varying Content of Rights

Labeled Ownership(2) Ownership and Rights in Rem(3) Ownership and Rights in Re

(4) Ownership and Rights of Definite orIndefinite EnjoymentContent

2. Divided Ownership3. Trusts As Example of Divided Ownership

(1) Has the Cestin Rightsin the Trust Property?

(2) Questions Narrowedto Controlling Issues

(3) He Holds Equitable Real Rightsin the Res.

(4) He Has Equitable Ownershipof the Res.

64 Chapter V. Public Policy

in the Law of Property

1. How Public Policy Has Shaped Property Law.(1) By Control of Alienation(2) By Control of the Use of Property(3) By Increasing Disregard of Title

2. A Conscious Public Policy Indispensible.

Contents2 Preface

6 Part I

Property in General; Nature, Divisions, Formative Influences




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69 Chapter VI.

Generalities Regarding Real &

Personal Property

1. Meaning of Land2. Horizontal and Vertical Subdivisions of theClose.3. Simplicity of Personalty4. Occasional Peculiar Treatment of Propertyas Realty or Personalty5. Relative Importance Today of Realty andPersonalty6. Influence of Feudalism upon the Property

Law7. Plan of Later Chapters of Part II

73 Chapter VII. Estates of Present

Enjoyment in Land

1 Distinction between Possessory and Non-Possessory Interests2. Conception of an Estate3. Some Characteristics of Possessory Estates4. Classification of Freehold and Non-Free-hold Estates

5. Estates of Right and of Wrong6. Freehold Estates

(1) The Fee Simple(2) The Fee Tail(3) Estates for Life

7. Estates Less than Freehold(1) Leases and Leaseholds(2) Classification(3) Terms for Years Certain(4) Tenancies at Will(5) Tenancies from Year to Year(6) Relations of Third Persons(7) Rent(8) Abnormal Termination

8. Estates of Present Enjoyment, Generally(1) Waste(2) Natural Rights

93 Chapter VIII.

Non-Possessory Estates in Land

1. Future Estates and Future Interests .2. The Origin of Future Interests3. Common Law Future Interests

(1) Reversions(2) Vested Remainders(3) Possibility of Reverter(4) Conditional Future Interests(5) Right of Entry for Breach of aCondition Subsequent(6) Contingent Remainders

4. Future Interests under the Statute of Uses(1) Shifting Uses(2) Springing Uses

5. Future Interests under the Statute of Wills6. Distinctions between Various Future Inter-ests7. Adjustment of Interests of Holders of Particular and Expectant Estates8. Estates Held in Co-ownership

(I) Tenancy in Common(2) Joint Tenancy(3) Tenancy by the Entireties(4) Community Property

105 Chapter IX.

Non-Possessory Interests

Less than Estates in Land

1. Modes of Restricting a Neighbors Rights inHis Land2. Easements

(1) Definition and Types(2) Appurtenant and in Gross(3) Negative and Spurious(4) Creation

3. Scope of Easements and Repairs of ServientTenement4. Protection of Easements5. Suspension and Extinction of Easements .6. Profits a Prendre7. Real Covenants

(1) At Law(2) In Equity

8. Licenses9. Rent

Part IITechnical Description of Property Interests




126 Chapter X.

Interests in Personal Property

1. Their Relative Simplicity2. Divided Ownership and Estates in Chattels3. Leases4. Bailments5. Pledges6. Liens7. Other Estates in Chattels

131 Chapter XI.Modes of Creating, Destroying,

Renouncing & Transferring

Property Interests

1. Original Titles2. Adverse Possession3. Prescription4. Voluntary and Involuntary Alienation5. The Conception of Transfer6. The General Rule of Alienability7. When May a Transferee Receive More

Than His Transferror Held?8. The Rule against Perpetuities9. Marketable Title10. Impediments to Marketability

and Restraints on Alienation11. Invalidity of Restraints on Alienation:

Of Legal and Equitable Interests12. The Ancient Basis:

Common Law Conveyancing13. Uses and Conveyances to Uses14. Essential Character of Conveyancing

before and after the Statute of Uses15. The Evolution of the Deed

16. Uses and Deeds in this Country17. Contents of a Deed

(1) Parties(2) Description of Property(3) Statement of the Interest Conveyed

18. The Execution of a Deed:in Particular, Delivery

19. Acceptance of a Deed

20. Creation and Conveyanceof Incorporeal Hereditaments

21. Covenants for Title(1) Covenant of Seisin(2) Covenant of Right to Convey.(3) Covenant against Incumbrances(4) Covenant for Further Assurances(5) Covenant for Quiet Enjoyment

22. Wills and Intestacy23. Powers of Appointment24. Fraudulent Conveyances25. The Recording System




V o l u m e 5

P r o p e r t y

Part I

Property In General:Nature, Divisions,

& Formative Influences




I. PropertyProperty is thought of by lay-

men as all the things that a manowns. Lawyers, also, ordinarilytalk of property in this sensewhen thinking of a general orunlimited interest in the thinginvolved. Strictly, the law of prop-erty is the bulwark that protectsmens interests in things; and itdoes this by recognizing or de-claring that A has, as regards aparticular thing and some or allother persons (between whom

and A there therefore exist legal relations), rights in or to thatthing, which rights may be main-tained by self-help with the lawsapprobation or maintained withits more obvious aid throughproceedings in courts of law.Courts frequently use the wordin both senses: property is morethan the mere thing which a per-son owns . . . it includes the rightto acquire, use, and dispose of it.1

Dealing, then, with rights inor over things, when the lawdeals with the entire right-com-plex held by a man as owner (orwith a large part, or at least a veryimportant part thereoffor legallanguage is inconsistent) it isgenerally regarded as dealingwith title; if with individual andlimited rights, they have indi-vidual namesbut these are like-

wise property, and are ownedby those who enjoy them. Andtherefore the laymans use of theword property to designate theobjects of legal rights, far fromadding confusion, saves confu-sionby leaving title and otherwords to designate the rightsthemselves which the law pro-tects (see p. 25).

The above simple statementscontain many obscurities anddifficulties. What is a thing, forlegal purposes; what is owner-

ship; what is the origin and ba-sis of interests; whether rightspre-date judicial decisions, whichmerely recognize them, or arecreated for all practical legal pur-poses by the decisions; what isthe nature of legal rights whenanalyzed with reference to de-cided cases ;these are all ques-tions equally fundamental andpuzzling. Moreover, since theabove statements assume thatthere are no true legal interests

except so far as interests are ef-fectively protected by law, andsince the extent of their protec-tion has always been limited bythe procedural machinery avail-able for that purpose, it followsthat the substance of legal rightswith which substantive lawdeals has been developed or de-terminedthat is, modifiedbyprocedural law: hence called ad-

jective law. This is particularlytrue of property law in its histori-cal development.

2. ThingsThe concept of things has

sometimes been given by lawyersa very narrow meaning. Austin2

defined them as such perma-nent external objects as are notpersons, sensible objects, con-sidered as the subject of rightsand duties. However, apples,though sensible, are imperma-

nent; yet are under our lawthings and capable of beingproperty. An electric current, ora definitely reasonable expect-ancy of winning a beauty contest,are not even sensible; but elec-tricity withdrawn by tapping awire has been treated, if not asproperty wrongfully taken, atleast as property is treated whenso taken; and a beautys justifiedhopes of winning a beauty con-test have been treated as an in-

terest, for unjustifiable de-struction of which damages havebeen given. On the other hand,though a loss of expected gainswill generally be allowed as anelement of damages whenproved with the requisite cer-tainty, an unconscionable frus-tration of such an expectancy, nomatter how definite the proof of imminent profit, may or may not

Part I, Chapter I

General Concepts




V o l u m e 5

P r o p e r t y

be made by equity the basis of aconstructive trust against theunconscionable actor.

As far back as we know any-thing about it our land law wasfull of incorporeal things; butpersonal property originally pre-sented few inconsistencies with

Austins definition. Not so today.Outside of that definition

would fall all incorporeal per-sonal propertycopyrights,patent rights, promissory notes,bills of exchange, insurance poli-cies, claims to annuities, bonds,corporate stock, a seat on anexchange (most of which are ca-pable of inclusion under thevague term, choses-in-action);although such interests consti-tute today by far the greatestpart, measured in money value,of all personal property. Legalremedies have, as just stated,become available for the protec-tion of all these interests that lieoutside of materialistic defini-tions. The common-law actionsof trespass, detinue, replevin andtrover were originally designedto deal solely with corporeal chat-tels. Their application to incorpo-real interestsfor example, the

use of trover for conversion of corporate stock as distinguishedfrom the stock certificatepre-sented great difficulty, and bothhampered and distorted the de-velopment of property interests.

The distinction between tan-gible and intangible, corporealand incorporeal, things wasbasic in the beginnings of ourlaw (especially that of land), buthas constantly lessened in im-portance. It was never logical,

since the law deals solely withrights, which are necessarily in-corporeal. But a right that in-volved possession of somethingtangible was of enormously pre-ponderant importance in ourearly law because of its principlesregarding title and transfers of title (see page 45)and still re-mains of exceeding importance.

Confusion might be avoided

by excluding the word thingfrom legal language, but this de-parture from men s every day lan-guage would give only a momen-tary relief, for such artificialitiesof terminology cannot be pre-served. In fact almost every otherword, as much as property, will

be found to have a history of in-definite and shifting connota-tions. In practical treatment thelegal meaning alike of thingsand property tends toward theinfinite content of everything.Almost anything may be the ob-

ject of proprietary rights; for ex-ample, expectancies, goodwill,and for some purposes family re-lationships, sentiments or emo-tional disturbances, fall comfort-ably within both.

Now, if something is admit-tedly both a thing and prop-erty, and something else is simi-larly treated in law, that fact ishighly important; but an agree-ment that the second somethingis therefore a thing or prop-erty is not absolutely necessary.Nevertheless, it will in time cer-tainly become such. Such termi-nological embarrassments areeverywhere encountered.

Whether or not something isor is to be treated as propertyfor legal purposes is determined(or was determined at some timein the past) by applying roughtests. The chief tests have beentwo. First, are ones interests inthe thing legally protectedagainst the world generally ?such protect ion is characteris-tic of proprietary rights. Sec-ondly, has the thing commercialvalue? But there is a third test,

of public policy, in applyingwhich the courts, explicitly orotherwise, emphasize the pur-pose for which classification of athing as property is sought. So,for example, since 1853 a con-tract subsisting between twopersons has, for the purpose of securing them against improperinterference by third personswith its due performance, been

increasingly assimilated to tan-gible things, whose owners havealways been protected againstsuch interference. Moreover,such contract rights (and variousother interests) have through thecenturies become assignable toan increasing extent and with

increasing ease; hence they haveacquired exchange value. Andthis increase in value has bothcalled for, and been acceleratedby, protection of the rightagainst strangers.

3. Commercial ValueCommercial value, the sec-

ond of the above mentionedtests of what is property, is un-satisfactory both historically andpractically.

Not merely the literature of fiction, but life itself abundantlyillustrates the fact that a sonsexpectancy of succeeding to apatrimony may have commercialvalue in the opinion of money-lenders; yet this expectancy isonly slowly attaining any recog-nition as a property interest bythe courts. On the other handcontingent remainders, whilethey remained for centuries eas-

ily destructible and to only a verylimited extent transferable, hadvery little commercial value, yetwere always regarded as prop-erty interests. Until varying datesin the nineteenth century, a trueowner of land could not in anystate of this country convey histitle by deed so long as somethird person was actually in theadverse possession of the land(in Infra, pp. 51-52) if a rightfulpossession, as of a tenant, of

course the title was transferablesubject to such interestandthis was pure medieval Germaniclaw; yet his interest had for sixcenturies been regarded as acontinuing property interest. Onthe other hand, some things rec-ognized today as being, for somepurposes or from some view-points, property interests meetvery well, in their historical de-




velopment, the test of exchange-value. To the transfer of chosesin action such impediments ex-isted at law as must have pre-vented an early recognition of their property aspects; and thiswould have continued to be trueof the non-equity law even after

equity compelled the assignor toallow the assignee to sue in theformers name. Again, ones re-medial right to sue for damages(perhaps properly speaking oneform of chose-in-action) couldonce not be assigned at all, be-cause to permit merchandizingin quarrels would stimulatetransfers by the impecunious toothers who could afford litiga-tion, thus encouraging what wasregarded as undesirable discord;and this prohibition of mainte-nance and champerty still tosome extent prevails. These par-ticular rights of action are, there-fore, even today, generally notthought of as property. Neverthe-less, to a large extent they sur-vive the death of the personwronged, passing usually to hispersonal representative, if not aspart of at least as does, thedecedents personal property;

and they may be assets of hisestate in bankruptcy.

II. The Content of PropertyRights More Specifically

Considered

1. Rights ad Rem, in Rem,and in Re

If A is the creditor of ormakes a contract with B, he is

said to have against the latter aright in personam, and B is saidto be under a personal duty; andan action to collect the debt, orto collect damages for breach of the contract, is called an actionin personam. The same phraseis used if the claim is not againstone individual, but against vari-ous individuals.

One may have a contract

right to receive a thing, and vari-ous writers have called this a jus ad rem, and, of course, a rightin personam. But the most im-portant right to receive a thingin our law is a property rightan owners right to regain hisproperty which another is wrong-

fully holding. The phrase jus ad rem might therefore well be dis-carded, or confined to its propri-etary meaning.

On the other hand, if A ownsland he is generally said to havea rightwhich properly meansa legally enforcible claimagainst the world generally thatnobody shall without his consentcome thereupon, even beforeanybody identifies himself, bydoing so, as the one person inthe world against whom theright is to have substantialmeaning. There is a practical jus-tification for this somewhatstrange language. It is only whenthe coming onto the land iswrongful, a trespass, that dam-ages are collectible; and menhave come to feel (though the lawdid not always have this theoryor any theory) that an act can bewrongful only if a pre-existing

duty, correlative to a pre-exist-ing right, forbade it. However,since one legal relation betweena landowner and persons gen-erally would be anomalous, ithas recently become usual to saythat A holds against such per-sons a multitude of primaryrights corresponding to theirdutiesnotably their duty to for-bear from entering upon theland; and that against one of them who actually trespasses he

thereby acquires a secondary orderivative remedial right in personam correlative to thewrongdoers duty to expiate thewrong. The pre-existing primaryrights, because held against in-dividuals, have sometimes beencalled rights in personam, al-though such individuals are notin the usual sense determinate.The more common usage is to

call them rights in rem. The con-cept of rights in rem is manifestlyunsatisfactory at best. Some willagree that it is both useless andpernicious.

A real right or right in re isa right in or over a particular res (thing). That is, it is a right which

men once thought of as exer-cised by the owner directlyagainst, or held directly in, thething; although, of course, onecan only hold rights againstother persons with reference toa thing. All real rights are alsorights in rem; but the latter qual-ity is merely characteristic of (butnot confined to) property rights,whereas real rights are exclu-sively proprietary. In our law theywere originally rights evidencedby seisin, and protected by ac-tions based upon seisin. Everyright that assumed the form of seisin thereby become realthiswas Germanic law, and Englishlaw.

In preceding sections it hasalso been noted that mere rightsmay be treated as things. Rightsin rights were a vitally character-istic feature of our medieval law;indeed, the real-izing (which un-

der our legal system also becamerealtyizing) of rights was themost characteristic feature of that law. If one owns a thing,say land, one holds a complex of real rights therein. If one has orholds only an isolated right overanothers thing, as a right of wayover his land, one owns the landto that extent (p. 138). In eithercase there is an interesta de-sired enjoyment or economicbenefit; the law concedes a right

or rights or enjoymentin onecase a single right in the landknown as an easement, in theother case varied rights that con-stitute what is known as owner-ship .of the land. Since both of these rights are protectedagainst interference by any otherpersons generally they are rightsin rem. It has seemed to someimproper to say that one can




V o l u m e 5

P r o p e r t y

own what is only a right in theland of another (jus in re aliena),because it then follows that onehas real rights in it as ones in-corporeal thing (jura in re propria), and these rights beingenforcible against people gener-ally are jura in rem. The only dif-

ficulty lies in the foreign phases,which lead one to Roman law,which thought differently fromour own on this subject. The pre-ceding has always been the atti-tude of our law. If valuable it willbe treated as property; and wecannot avoid thinking of prop-erty as what we own. Jura in reare proprietary and protected inrem, but rights in rem are notlimited to proprietary rightsmany rights of personality beingso protected.

Unusual things treated asproperty is treated have beenreferred to (p. 3). It is also ap-parent from the examples theregiven that something may be-come legally a thing, and furtherbecome property, by develop-ment. The law being a livinggrowth, protecting interests thatstruggle for security, has ofteneliminated old types of property

and admitted new.Sometimes rights which, ad-mittedly, were originally effectiveonly in personam have becomeeffective in remas in the caseof a tenancy for years (see page26). Very similar has been thedevelopment of many other con-tract rights; although these, un-like the tenants right, remainpersonal as respects the agree-ment and its enforcement, yetthe relationship thereby created

becomes an interest treated asan object of jura in rem. Therights of a cestui que trustagainst his trustee until latelyhave been referred to as in personam but it is clear that in ad-dition the cestui que trusts in-terests in the trustees equitableobligation (and some contend, inthe trust res) constitute jura inre that are enforced in rem; that

is, they are enforced against allpersons save a bona fide pur-chaser for value. Likewise, in apurported present transfer of after-acquired property (futuregoods) it is a difficult problemto determine how and to whatextent true proprietary rights, as

distinguished from mere con-tract rights, are created.

On the other hand it hassometimes happened that an in-terest once broadly protected be-comes one of narrower inci-dence. In the old land law aneasement of way was ap-purtenant to both dominant andservient tenements (see page279) in the sense that a trans-feree of either necessarily tookthe attached benefit or burdenas an incident of title. But in thiscountry, because of our record-ing acts (see page 290), the bur-den does not bind a grantee of the servient land who gives valueand takes the title without no-tice of the burdens existenceeither actual notice, or construc-tive notice resulting from the re-cording of the conveyance creat-ing the easement. Yet of coursethe right is not the less a jus in

rea property right; nor wouldanybody deny that it remains ef-fective in rem, though notagainst literally everybody.

2. Content of the BroadConcept of Right

Social life involves innumer-able relationships between in-dividuals, most of which are non-

jural. But relations of great im-portancenot merely to two in-dividuals as such, but to all oth-

ers in like circumstancescometo be regarded as involving so-cial interests, and many of theseare regulated by law. That is, theybecome legal relations. It is gen-erally agreed that law deals ex-clusively with legal relations; thatlegal relations exist within thearea of constraint by law; andthat where the authorities of menover each other within such re-

lationships end, there law ends.Now, A may (1) be entitled tocontrol in some manner Bs con-duct. If that be disputed, he maycall upon a court of equity tocompel B to act or to abstainfrom acting in a certain manner;or may call upon a court of law

either to compel him to give upproperty which he detains or tocompel him to pay damages fornot having acted or for not hav-ing abstained from acting in acertain mannerin either case incontravention (allegedly) of prin-ciples regulating the relationshipexisting between them. Again,(2) A may hold an authority, un-der other legal principles, him-self to act in such manner as toalter the existing legal relationsuniting B to A or to other per-sons. If his action be challenged,his authority must, here too, bevindicated in court.

In the first case A asserts aRight in a narrow sense; an au-thority to control anothers con-duct within the framework of anexisting legal relation. In the sec-ond he exercises a Poweranability to alter an existing legalrelation. Both of these authori-

ties are included in right as or-dinarily used in legal speech andwritings. Correlative to As claimis Bs duty; and correlative to Aspower is Bs liabilityso calledno matter whether its exercise bebeneficial to B or detrimental.These two relationships of Claim-Duty and Power-Liabiity seem tobe fundamental.

However, different writers haveregarded a varying number of le-gal relationsfrom one to four

as fundamental. The number de-pends upon slight alterations indefinition. Salmond, for example,used the following: A liberty is thatwhich Imay do innocently; a poweris that which I cando effectively; aright is that which others ought todo on my behalf. On the otherhand, Hohfeld and his adherentshave used (substantially) the follow-ing table:




The middle line of this tableseems to be of no value unless itbe linguistic. A court often finds,indeed, that A has no claim orno power against B; but this canonly mean that their relations liein the non-jural field of freedom,that there is no legal relationbetween them (within the area of

present litigation).As for the privilege panel of the table, the peculiar relation of its terms to those in the claimpanel was due to Hohfelds defi-nition of privilege as freedomfrom right or claim of anothernot including freedom, also, fromanothers power; but save forthat restriction the conceptmight, evidently, cover the wholefield of non-jural freedom. Im-munity was defined as freedom

from the legal power or controlof another as regards some le-gal relations; the last words con-fining it (unlike privilege) to thefield of constrained conductthat is, of law. Hence the immu-nity panel necessarily merely re-peats the power panel in reverse.To read from the former that Bis immune to any power in Awhen A has no power or is under

a disability, but that (reading theopposite) sometimes B instead of being immune is under a liabil-ity, is the same as to read fromthe power panel that when Aholds a power B is under a liabil-ity to it, but that (reading the op-posite) sometimes A has nopower or is under a disability. All

these statements amount to say-ing that B is free from any powerheld by A.

If A voluntarily buys Bs landat a tax sale and thereafter paystaxes upon it, an equity courtmay declare that A lacked anypower (authority) to obligate B,by such acts, to reimburse him;thereby merely establishing thatA acted in the field of liberty out-side all law (or in Kocoureks bor-derland of mesonomic rela-

tionssee p. 22); all claims forreimbursement to prevent unjustenrichment remaining merelymoral until the remedy of quasi-contract takes them in. But if inthe same proceedinga suit byB in equity to have removed fromhis title the cloud of As taxtitlethe court declares that he can-not have that relief until after re-imbursing A for the latters ex-

penditures, this decision recog-nizes a true power in B to createin his own favor (by reimbursingA) a claim against A; the exer-cise of the power creating anenforcible legal relation. It is justas concise to say that A has nopower as to say that he is under(or has) a disability.

On the other hand, to saythat the beneficiary of a spend-thrift trust has an immunityagainst a seizure of the trustproperty by a creditor, or that adebtor is similarly immune asrespects his homestead or thetools of his trade, or that any-body enjoys an immunity againsta taking of his property withoutdue process of law (for exampleby a wrongful levy), may of course be linguistically permis-

sible and even usefuland thedecisions in many legal contro-versies have been so stated; butthese decisions merely mean, atbest, under Hohfelds defini-tions, that the creditor has nopower. However, the power,here involved would be that of setting in motion the judicial ma-chinery for enforcement of a

judgment that has sustained a

(1) One may have:

(2) The opposites of the preced-ing (i.e., the contrapositions of the same person when he lackssuch authorities or such exemp-tions) being, respectively:

(3) The correlatives of the au-thorities and exemptions under(1) descriptive of the positionof a second person against whomthe authority or exemption ex-

istsbeing respectively:

CONCEPTS OF NON-SUBJECTION

TO ANOTHERS CONTROL

BECAUSE OF:

A Privilege An Immunity

CONCEPTS OF LEGAL

AUTHORITY OVER ANOTHER

BECAUSE OF:

A Claim A Power(or Right)

A No-Right A Disability A Duty A Liability

A Duty A Liability A No-Right A Disability




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claim of the creditor. Aside fromthe possible undesirability of looking upon this as a power, itseems that such decisions intruth hold that the debtor has aright to control the acts of oth-ers who seek to take the prop-erty in these forbidden ways.

These cases, therefore, seemalso to fall outside of the field of power.

They fit perfectly, however,under claim and immunity asused by Kocourek. For Kocourekuses privilege and immunity asaffirmative concepts. To him animmunity is not merely freedomfrom anothers act (which wouldtake us into the non-jural fieldboth as to claims and powers)but is the capability of prevent- ing anothers act, positive ornegative; and that capabilitymust reside in a claim, becauseof his definition of the latter asa legal capability to require apositive or negative act of an-other person. Likewise, he usesthe word only when the protec-tion is an exception to the gen-eral rule of law. Thus immunityis a special kind of claim; onlya claim to the contrary kind of

act. The word is thus useful,though not adding any new formof relation.

A privilege in Kocourekssense, which is its ordinary senseboth in and outside the law, is afreedom of action or inaction re-sulting from the removal of aprohibition normally existingagainst such action by some ruleof lawor, outside law, of mo-rality or etiquette. Because theholder of a privilege has a capa-

bility of effectively refusing to actas another could normally de-mand, Kocourek defines a privi-lege as a special kind of power.But it is to be noted that itsholder does not himself alterexisting legal relations; the lawplaces him exceptionally outsidethe normal relations. The exist-ence of a privilege, moreover,always depends upon the choice

of the normal rule escape fromwhose constraint creates theprivilege. Usually the form andthe exception are both fixed bytraditional language; not neces-sarily logically fixed.

That this is not always so,however, is illustrated by the fol-

lowing examples. A tenant for lifeor years who is unimpeachablefor waste is privileged to use theland in a manner which gener-ally subjects a tenant to a claimfor damages. A sheriff may justi-fiably enter any close to serve awrit; a landlord may properlyenter the leased tenement atproper times to inspect them. Amay rightfully enter upon Bsland to take As chattels, wrong-fully placed there by B or with Bsconsent, or sold to A by B or withhis consent while on Bs land;may enter to reput thereon Bschattels wrongfully left on Aspremises; may enter to save hisown or some other persons life.He may pass over Bs land toavoid a flooded portion of a pub-lic road; or to collect cattle stray-ing therefrom without his fault.He may destroy his neighborsproperty to check a conflagra-

tion. In all these cases there areprivileges both in the Kocour-ekian and the Hohfeldian sense.But in all of them, also, the dis-regard of normal restrictions thatare not binding upon the actualactor causes no alteration of le-gal relations previously existingas to him, nor does it involve thecreation of new ones; that is, itdoes not involve the exercise of a power in the ordinary sense.Again, it is said that a land owner

is privileged, in Kocourekssense, to go upon anothers landto exercise a power to abate anuisance thereon maintained;and that he is privileged to mu-tilate on his own land aneighbors trees in abating thenuisance of their encroachmentupon the destroyers soil and air-space. In each case the departurefrom a norm is clear, but there

seems to be no power. The meretermination of a course of wrong-ful conduct does not alter exist-ing legal relationsthe wrong-doer remains a wrongdoer; theother partys act merely ends theperiod for which a claim for dam-ages is available. The act in ex-

ercise of the privilege merelymakes manifest that the normalrelation is, by rule of law, absent.

On the other hand a landlordmay (particularly in early timeshe could) distrain upon histenants chattels as security forthe payment of rent in arrear.The exercise of the privilege ishere incidental to the exercise of a true power that creates a lien.

Hohfelds privilege is suffi-ciently broad in terms to includeall the foregoing Kocourekianprivileges. Privileges in bothsenses are also present if Astrikes B in self-defense; if A pub-lishes statements that would bedefamatory but for Bs publiccharacter or As character (as awitness or legislator) when theyare uttered; if A enters upon Bsland by license. But to find inthese cases a power exercised byA, an alteration of legal relations,

seems impossible. On the otherhand, when a constable kills Bsstray dog, or when a landownerejects a trespasser without un-due force, there are present aHohfeldian privilege and power,but a Kocourekian power onlyprovided we choose as our normin the first case (for in the sec-ond doubt can scarcely exist) therule that constables may undercertain restrictions kill dogs with-out liability therefor, and not the

rule: one citizen may notormay not except in self-defensekill anothers dog without liabil-ity therefor.

Hohfelds privilege includesa field often conceived of as out-side all lawwhere one may, forexample, destroy a neighborsbusiness by fair competition,sue or show leniency to onesdebtor, cultivate or walk in ones




garden, drive one s car, study orburn ones book. Certainly allthese acts are called lawful; thelast three are said to be inci-dents of title, and are at leastnaturally referred to in explain-ing that conception. Courts haveoften declared that the right to

acquire and enjoy property in-cludes a right to make con-tracts to secure it; and the Su-preme Court of the United Stateshas held the right to contractto be property. That the latterright is essential to the enjoy-ment of property is evident. Yetsuch privileges and rightsseem to be liberties; just as theright to engage in private bank-ing was a liberty until statutesmade that area of freedom anarea of law. And even where truerights are involved, as JusticeHolmes has remarked, a largepart of the advantages enjoyedby one who has a right are notcreated by the law.... What thelaw does is simply to preventother men to a greater or lessextent from interfering with theacts of enjoyment.3 Freedombeing particularly precious, menare litigious and courts corre-

spondingly much occupied inprotecting it. Particularly, menhave realized that one mansproperty may restrict anothersliberty, or insure his own. Hencethe protection, even constitu-tional in this country, of the lib-erty to acquire property. But thesuperabundance of judicial dis-cussions and delimitations of that liberty, or of other liberties,does not make them a part of thefield of law as ordinarily defined:

mens steady desire is that theyshall remain outside that field. If the acts above referred to areacts-within-the-law, then almostall human actsincident to theenjoyment of contract and prop-erty, and lawful expression of personalityare equally so; andlegal relations would exist as toall of them between each citizenand all other members of the

community. Inasmuch as legaltraditions and general customsare such that few of these actsare ever challenged, hence needand receive no protection by ju-dicial pronouncement, perhapsno great harm results from theirrecognition as privilegesthey

are like the infinitude of rightsand duties in rem which neverhave a practical existence; but,seemingly, their recognition asprivileges has no advantage.Under Kocoureks definitionsthey are mere extra-legal liber-ties; liberty ending where theconstraint of law begins.

The word power has longbeen used to designate an abil-ity in A to alter Bs legal relations,with A or other persons, withoutBs concurrent action and usuallyindependently of positive actionor immediate control by a court(such as is present in the distri-bution of a decedents estate tohis next of kin made by the ad-ministrator).

Sometimes such exercise of a power is in performance of aduty, as when a conveyance of land is made in pursuance of acontract with B or an agency for

C, or when A exercises a specialpower of appointment held intrust (i.e., he passes Bs title, bydeed or will, to some of a groupthat is the beneficiary of thetrust). In these cases the exer-cise of the power plainly createsvarious new legal relations, andit terminates the potential con-straint by judicial process towhich the holder of the powerhad been subject. Manifestly, noHohfeldian privileges can here be

present. Whether Kocourekianprivileges are present again de-pends upon the choice of thenormal rule (that applicable topersons generally or that appli-cable to administrators and do-nees-ofpowers) whose relaxationwould create privileges.

In the vast majority of cases,however, powers are exercisedneither in performance nor in vio-

lation of a duty. This is true of any landowners power to makeany person a gratuitous granteeof land; of any chattel ownerspower to abandon title thereto,and his further power to create,by such abandonment, in anyother person who desires the

chattel a power to acquire origi-nal title thereto by occupancy; of the power of a devisee or gratu-itous grantee to refuse the titlealready conveyed, thereby divest-ing himself of his new legal rela-tions. If A licenses B to cross landno trespassory relation ariseswhen B enters, but A has a powerto restore, by revoking the li-cense, Bs duty not to cross un-permitted. In all these casesthere is a Hohfeldian privilege toexercise a power, but none inKocoureks meaning of the word.

Other examples are thepower of some bailees to gainliens on chattels by improvingthem; the power to subject theowner of an abandoned ship toclaims for salvage; the power of one assignee of a credit-claim togain priority over earlier assign-ees thereof by giving prior no-tice to the debtor; a pledgees

power to sell his debtors pawnafter default. If land is limited toA in fee, subject to a conditionallimitation over to B in fee that isdependent upon Bs conduct, Bhas a power to gain the title bysatisfying the condition. If A benamed grantee in an instrumenthanded to a third person with in-structions to give it to A whenhe satisfies a condition, he re-ceives immediately at least apower to acquire the title. And

where a creditor holds a claimbarred by the statute of limita-tions the debtor has a power toreestablish, by a part payment ora promise to pay, the originalclaim-duty relationship. In allthese cases there is a Hohfeldianprivilege, but whether there isone in Kocoureks sense depends(as stated above) upon what istaken as the field of operation of




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the normal rule. In the last threecases such a privilege seemsabsent. In the three precedingcases there is no such privilegeunless the normal rules are takento be those which, respectively,regulate the unsolicited improve-ment of anothers property gen-

erally (not merely abandonedships), fix the general ranking of similar claims in order of time,and deny to creditors generally(and even to lien-holders) powerto sell by sell-help their debtorsproperty. In the first case such aprivilege is more clearly, by ordi-nary legal phraseology, recog-nized as present.

All the terms are manifestlyartificial. Rightlong used tocomprehend Hohfelds right andpower, and privilege in theKocourekian senseis restrictedto one of those three authorities.Duty, which has apparentlyserved as the correlative of all inserving as that of Right in itscomprehensive sense, is similarlynarrowed. Again, a layman wouldunderstand privilege to be re-lease from any normal con-straintwhether imposed byanothers claim or by his power

(or possibly by his privilege); butthis is not so under Kocoureksdefinition. The employment of disability as the negation of Power alone carries an implica-tion that Power comprehends allability to constrain others. It isequally arbitrary to limit liabil-ity exclusively to constraint byanothers Power. Immunitywould mean to laymen absenceof constraint by any of the threeauthorities with a correspond-

ing complexity of opposites andcorrelatives; but Hohfeld con-fined it to the field of power.However, arbitrariness of defini-tions seems to be an inescapableprerequisite to obtaining anysatisfactory terms.

There are other difficulties of more substance. It seems evidentthat the vast scope of theHohfeldian privilege lessens its

usefulness in analysis. But someillustrations are useful. Considerthe offer of a contract to buyland. Such an offer does alter theofferees legal relations, provided we assume that every possibleofferee stands, before any offeris made, in legal relations with

all other persons as possibleofferors.

At any rate, the actual offereeacquires a power to bind the of-feror, by acceptance, to a right-duty relationship. In Kocoureksterminology, therefore, the offeris the exercise of a mesonomicpowernot totally outside thelaw (anomic) nor already coer-cive (zygnomic), but potentiallycapable of becoming coercive.The offer restricts, in a sense, Bspreexisting total freedom fromcontractual alliances, but only byenlarging his capabilities of ac-tion, enabling him to step, byacceptance, from outside the lawinto its field of coercive relations.On the other hand, if the offerbe one of a gratuitous convey-ance of land, or an oral offer of agift of a chattel not handed over,no legal results whatever followacceptance; and it would there-

fore seem impractical, lookingbackward, to regard the originaloffer-power as other than a lib-erty (Hohfeldian privilege) out-side the law. By the same test, itmight seem practical that void-able legal relationssuch as arescindable sale induced byfraud, or the sales and convey-ances of infants and bankruptseven though ultimately actuallynullified by exercise of a power,should be meanwhile regarded

as true albeit destructible legalrelations; yet also practical thatacts which are presently withoutlegal effect, although not voidas an infants executory promise,or a contract made for one per-son by another who lacks author-ityshould be regarded(Kocourek) as lacking legal char-acter,- albeit capable of vivifica-tion by affirmance. But it does

not seem possible to include, asKocourek does, among legal re-lations (relations existingthrough and for the law) pow-ers to break contracts or com-mit crimes or torts; although truelegal relations are of course created by such wrongful acts

which relations are alterations of legal relations theretofore exist-ing under the accepted doctrineof rights in rem.

In short, analysis of the looseconcept of right still presentsdifficulties, and terminology can-not be regarded as settled. It alsoseems clear that if the distinc-tions between the componentelements of that general conceptshould be made the basis for dis-tinguishing decided cases inseeking precedents they arelikely to cause more harm thangood: the vague term rightseems sufficiently -to cover thesubstance of the interest towhich the law should attend.

It is due to the varied con-tent of what are loosely calledrightsfrom inattention tothat variety, or emphasis for im-mediate purposes upon one oranother elementthat there

have resulted the divergentmeanings of property- above il-lustrated (pp. 3, 4), and which willnow be further illustrated.

III. PROPERTY A WORD OFVARYING MEANING

I. Ownership, Possession,Property

The words owner and ownership apparently date from the

mid-fourteenth century and latesixteenth century respectively. Intheir place the phrases generalproperty and special propertywere earlier (and are still) em-ployed, but apparently onlyrarely down into the sixteenthcentury. In the sense of a mansvaluable belongings, the wordproperty was apparently rarebefore the eighteenth century.




The place of all the precedingwords was long filled in commonlegal usage by the words possessor, possessions, estate, or bysuch phrases as he who has thething, he to whom the thingbelongs. In other words, thegeneral signification of the words

property and ownership was de-veloped, under other names, be-fore those words were used;moreover, all the words abovereferred to remained words of common speech.

Even under more favorablecircumstances the vast changesthat have taken place, in thecourse of centuries, in the lawreflecting alterations in the pro-cedure of the courts, in the na-ture of commerce and business,and even in the social funda-ments underlying thesewouldhave prevented that fixation of content which is essential toterms of precise meaning. Of those modes of user whichpeople generally consider in-separable from the ownership of property some have apparentlyalways existed as liberties out-side the law, some have a rela-tively modern origin in statutes,

most have for centuries beenregulated by the non-statutorylaw; but the limits of their enjoy-ment have varied much histori-cally and from place to place.Title is not today what it oncewas even as regards land, al-though that has for many centu-ries been the best protected of all mens belongings. Much lesshave rights remained unalteredregarding even the most com-mon and important of particular

interests in land, or regardingmany forms of personal property.

As for property in thelaymans sense of interest pro-tected, variations in these inter-ests have been vast; not merelybe-cause shrinkages in protec-tive rights have wholly removedsome things from the field of property while expanded pro-tection has fortified the position

of others, but also because to-tally new interests have comeinto the domain of law; that is,have by its protection been madeproperty.

As already said, it is usuallymost convenient as a matter of words to refer to the thing or in-

terest protected as property,although in legal effect the ref-erence is to the complex of pro-tective rights that give legal con-tent to. the. interest.

2. Changing Meanings of Property at Different Times

The changes in the meaning of property at different times areillustrated in a multitude of ways.In considering a few examples itis useful to bear in mind the twosenses in which the word is used.

Consider the development of leaseholds. These scarcely wereheard of before the late twelfthcentury; at that time the tenanthad only a contract claim againsthis lessor; he had notand neveracquiredseisin, which was thebasis of the only interests rec-ognized by the feudal land law;and consequently his interestwas not, and it has never be-

come, real property. Yet he had,as soon as leases are heard of,somewhat of a real remedyi.e., the land was specificially re-coverable by him. First from hislessor, against whom covenantsecured specific performance,orif that was impossible be-cause a second tenant had re-ceived itother lands of equalvalue under a warranty impliedfrom the lessors mere covenantthat the termor should enjoy the

land. Then (before 1250), againstsuch a second lessee. And finallyagainst all persons, mainlythrough the long development of the action of ejectment out of trespass, partly by statutes. Thesecurity of occupation thus as-sured him must steadily haveincreased the desirability andpromoted the assignability of leaseholds; the statute of 32

Hen. viii c. (1540) transformedthe covenants of the parties into

jura in re (see page 296); thewhole institute became one of property law. It is evident in thiscase how a widening conceptionof wrongs, and correspondingdevelopment of duties, were at

once made effective through andrecorded in legal remedies; andas the duties acquired a gener-alized and stable character theircorrelative rights entered thelaws consciousness. Such hasbeen the general course of legaldevelopment. The effectivenessof rights means the security of interests thereby protected. Inboth senses property is simulta-neously established.

The common law declares allcontingent estates, when theperson to take it is not ascer-tained, to be a mere possibilitynot coupled with an interest, andto be neither devisable, descend-ible, alienable by voluntary con-veyance, nor subject to execu-tion... Such a naked possibility isin law neither an estate, property,right nor claim. One having sucha possibility may in the futurehave a right or claim, but cannot

be correctly said to have any ex-isting claim.4 Contingent re-mainders have been recognizedproperty interests for centuries,but it is only since statutes have,very recently, been making themindestructible, that they have at-tained importance as assets inbankruptcy. Most of the forms of incorporeal personal propertynamed above (p. 3) are, substan-tially, of very modern origin;some of them are throwing out

new forms of still indefinite ex-tent. So far as regards attach-ment of or execution against adebtors property, it is onlywithin the last century that eq-uitable interests have beenbrought within that description.

Powers to dispose of land byconveyance inter vivos have var-ied exceedingly from age to age.Originally, they could not be con-




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veyed free of the preemptionrights of the grantors heirs. Inboth England and the UnitedStates public policy has at differ-ent times been very marked inimpeding or obstructing trans-fers of landed property (see page162). The modes of conveyance

have been subject to require-ments whose strictness andsubtlety made the law of realproperty infinitely complex.

As regards wills much thesame is true. A man is today per-mitted to dispose by his will of any property which, were thereno will, would pass either to hisheirs or, through his personalrepresentative, to his next of kin;and today rights of action maygenerally be so disposed of,since they have come generallyto survive the death of theirholder. But great limitationsupon such powers of disposalexisted in our earlier law. Indeed,even today there by no meansprevails judicial unanimity in as-serting the existence of a basicconstitutional rightas part of the title to property either todispose of this by will, or to haveones heirs or kindred take it

under the intestacy laws. On thecontrary, the majority of courtsconcur in excluding these fights,save by tolerance of legislatures,from the right-content of prop-erty.

Similarly, the fights of entryof a disseisee and the right of entry to enforce forfeiture forbreach of a condition subse-quent (pp. 52, 254), although de-scendible, were in the old law notalienable by will or deed.

3. GeographicalVariances of Property

Geographical variances in themeaning of property, even fromstate to state in this country, areequally clear, notwithstandingour background of common ex-perience and the general similar-ity of our basic legal purposes.This is particularly true of prop-

erty in the sense of right-contentor titlefor the objects (or sub-

jects, as many prefer to say) of property rights are probably al-most identical throughout thecountry.

If one owns land in differentstates, ones enjoyment thereof

may be restricted by infinitelyvarying public control under thepolice powermunicipal ordi-nances respecting fire-risks, thekeeping of hogs, utilization of the land under zoning ordi-nances, state statutes regulatingrural drainage and school dis-tricts, and so on. The non-statu-tory law respecting nuisanceswill similarly vary; the ownersstatus will not be precisely thesame in any two states as mort-gagor or mortgagee, or as re-spects the rights of creditorsagainst the property under judg-ment and equitable liens, andthrough executions. In case of the owners death intestate, therules of different states will varyin fixing the degree of relation-ship to the decedent withinwhich persons sharing the landas heirs must fall; or in determin-ing what other persons (particu-

larly widows, adopted and illegiti-mate children, collaterals of thehalf-blood) shall be statutoryheirs. In the few states recogniz-ing community property of spouses the whole conception of individual title varies from thatelsewhere prevailing. If land bea- homestead the owner enjoysin all or nearly all states an im-munity, as regards it, to attacksby creditors; this being of veryrecent origin, created in two-

thirds of our states in the lastfifty years.

If one buys an automobile inone state and drives it into oth-ers, the sum-total of rights thatconstitute title, obligations at-tached thereto and liberties or-dinarily associated therewith,may differ very considerably fromstate to state; for example, withreference to requirements regu-

lating transfers of the title, driv-ing with a foreign operators li-cense, liability for injuries to pas-sengers taken in as guests, at-tachment of liens, penalties formechanical defects, regulation of the number of permissible pas-sengers, etc. In recent years a to-

tally new encroachment on thefield of liberty formerly enjoyedhas appeared in some states;they have imposed upon driversof automobiles licensed in otherstates, as a precondition to law-ful use of their highways, a con-sent to the acquisition of per-sonal jurisdiction over them bylocal courts, in actions broughtagainst them for damage to per-sons or property done in drivingtheir cars in the state visited,through service upon a publicofficial thereof.

Another mode of statingthese geographical variations inthe rights and duties of a prop-erty owner is the rule of conflictof laws that title to land is deter-mined by the law of the locusas respects existence, mode of creation, and the nature of rightsand obligations included; andthat the same is true, though

today in lesser degree, of corpo-real chattels. Of course, the rulearose, not from consciousness of the variations now under discus-sion, or of any sense of theirimportance, but from the doc-trine of territorial sovereignty,under which the law of eachcountry or state is supreme.

Probably even greater varia-tions of the meaning of title ex-ist in the case of incorporeal per-sonalty. When physical evidences

of such exist, convenience fre-quently gives to the law of theplace where such evidence is lo-cated dominance in determiningthe creation, existence, and con-tent of title; but these are mod-ern departures, steadily enlarg-ing, from a medieval doctrine,then applicable even to corporealchattels, that movables followthe personthat is, are subject




to the same law as their owner(in our legal system the law of his domicil, or legal residence).

Nor need such variations restupon a statutory basis. Even theincidents of ownership may becut down by the laws and usagesof a state. 5

4. Various Meanings forDifferent Purposes

Finally, the things or inter-ests included under the descrip-tion property vary with the purposes for which that descriptionis adopted.

The determination of what isproperty for the purpose of taxa-tion has given rise to an immenseamount of litigation; and the con-clusions of different courts havevaried greatly as respects thesame objects. Of course, any-thing treated as property musthave existence in the eye of thelaw; but for different purposes itconcedes or denies existencewith exceeding inconsistency.There can be a sale or a mort-gage, spoken of as immediatelyconsummated, of things not yetin existencewhich things havenever been regarded as subject

to taxation; and even if thosetransactions be regarded as re-ally only creating present inde-feasible rights to future title bysale or mortgage, then theserights are agreed to be propertyrights, which nevertheless arenot taxable. And if contracts aremade to sell or to mortgage or-dinary chattels the former willcreate no property right what-ever, whereas the latter will cre-ate an equitable rightan equi-

table lien.In general, even the complete

power of disposition conferredby a general power of appoint-ment is never spoken of or re-garded otherwise than as apower in one person overanothers property; yet, in a ma-

jority of our states, realty or -per-sonalty actually appointed by theinsolvent holder (donee) of

such a power to a volunteer istreated in equity as assets for thecreditors of the former in prior-ity to the claims of the appoin-tee. Whether this is on the theorythat it was fraudulent not to ap-point to his creditors or to him-self for them, or on the theory

that a complete control (jus disponendi) of the title amounts inequity to full title (particularlywhen joined to rights of imme-diate enjoyment; the donee be-ing for example a life tenant),matters not in substance; for, asalready several times remarked,whether the things be assetsbecause they are property orbecause they are treated asproperty is treated, is a tenu-ous and usually undesirable dis-tinction. Yet all courts agree thatthese things were not propertyof the power-donee under com-mon law principles, nor thereforefor purposes of taxationsinceby tradition one is taxed only onproperty to which one holds le-gal title, and the common lawdid not regard the complete jus disponendi as title. However,most of our states do now, un-der inheritance tax statutes, tax

the property as though owned bythe donee, and this even thoughthe power has not been actuallyexercised, and some states dothis even when the power is spe-cial (see page 458); whereas un-der the Federal statute the powermust be general and must havebeen exercised.

Things may be assets forcreditors in equity which are notproperty for such legal purposesas taxation. Since a creditors

right is not possessory, but onlyone to realize on his debtorsassets by sale, nothing can beassets that is not alienable. Theinterest of the beneficiary of aspendthrift trust may be reachedby some creditors and not byothers. Expectanciesthough,as already noted (p. 6), not prop-erty for most purposesmay beassets of a bankrupt; and which

of them are such has varied un-der different bankruptcy statutesof this country.

The word goods in the origi-nal English Statute of Frauds wasearly held not to include chosesin action; and this exclusion hasnecessarily exercised a great in-

fluence in the United States.Goods unlawfully manufac-

tured or owned (such as in-toxicating liquors during prohi-bition, narcotics, gambling de-vices and the like) may be prop-erty for some purposes, such astaxation, and not for the otherpurposes, such as the commis-sion of the crime of larceny. Thesame is true of cats and dogs.

An unfortunate dictum of Lord Eldon (1818), to the effectthat equity acts to protect prop-erty only, has greatly hinderedthe extension of equitable relief by compelling courts of equityeither to adopt artificial defini-tions of property or to repudi-ate Eldons dictum. The latter hassubstantially been done in manyinstancesin protecting the po-litical rights of voters and candi-dates, sentimental interests incorpses, rights to privacy, in

ones non-literary letters, in es-tablishing a putative fathersright to have cancelled a regis-tered false birth-certificate underwhich the alleged child couldclaim the status and propertyrights of legitimate offspring,rights to preserve the familyreputation, prevent alienation of a spouses affection or prevent adaughters seduction, or to en-

joy security against unwelcomeamatory pursuit, against im-

proper expulsion from member-ship in non-proprietary clubs,and against libel or slander thatis merely personal. (although,strictly, none such can exist if theperson libelled has any propertyor does any business). Underdecisions by other courts, how-ever the tendency has been totake the first of the two alterna-tives above stated; for example,




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in protecting a complainantagainst libel or slander involvingor exclusively constituting defa-mation of business products inprotecting interests in gatherednews, in protecting a manu-facturers expectancy that laborwill flow to his factory in ad-

equate amount if unimpeded bystrikers, and in recognizing aright to be protected againstimproper interference with busi-ness goodwill or methods of transacting business. And evenin some of the instances of thefirst group confusion has re-sulted from an anxiety to avoida direct contradiction of Eldonsproposition.

As respects the prohibitionin our Federal Constitutionagainst taking property withoutdue legal process, not only afranchise and an existing con-tract, but a right to contract havebeen held within the protectionof the prohibition this last with

momentous social consequencesin making impossible the regu-lation by Congress of wages, andtherefore of labor conditions.The right to sue (for moneyperhaps unsuccessfully, andtherefore apparently the mereright to sue) has been protected

under the same clause of theConstitution. True, rights to con-tract, to labor, or to sue have re-peatedly been declared by the Su-preme Court to be part of the lib-erty, as well as part of the prop-erty, which are guaranteedagainst such a taking. A gen-eral course of business has beensimilarly regarded. Although theSupreme Court has queriedwhether reputation is property,it has recognized that a corpo-rate name may be property;which it could only be as a partof good-will, which .of course hascommercial valuewhich, inturn, as has been noted (p. 6), isa very common test of property.

It is clear from the examplesgiven in the preceding pages thatthere is no definiteness in themeaning of title. This may, of course, be otherwise expressedby saying that the liberties, pow-ers, and claims, of the ownerhis legal relations to other per-

sons in regard to the propertyare endlessly variable. Neverthe-less, the general concept and la-bel are indispensable.

(1) Buchanan v. Warley, 245

U.S. 60, 74 (1917).

(2) Austin, Jurisprudence

(5th ed., 1885), 358, 776.

(3) Common Law, 220.

(4) In re Banks Will, 87 Md.

425, 440 (1898).

(5) Per Holmes, J., in Otis v.

Ludlow Co., 201 U.S. 140, 1512,

154 (1906).




I. Possession.Possession is a concept that

has played a primary role in thedevelopment of our property law,and some knowledge of that roleis indispensable to an under-standing of the laws large divi-sions and basic principles.

Physical possession (de factoor actual possession; custody,

detention) may exist in the senseof physical control, yet if this isnot recognized and protected bythe law there will be no legal possession. This is particularlytrue of the custody held by a ser-vant when acting as such (andtherefore particularly in hismasters presence); he enjoys nolegal remedies. Few exceptionsaside, however, whoever hasphysical possession has legalpossession. To the constitution

of physical possession two ele-ments are necessary: first, andsomewhat vaguely, a sufficient,a reasonable, actual control of the thing of which possession isclaimed; secondly, a certain men-tal state or animusnamely, anintent to maintain that controlagainst the world generally.This does not mean all theworld, nor does it necessarily

include the true owner (for thenthere would be no difference be-tween possession and adversepossession), be he known or notknown as such to the possessor;nor need the claim to excludeothers be made on ones own ac-count.

Of the first element it hasbeen said tht any power to use

and exclude others, howeversmall, will suffice, if accompaniedby the animus possidendi, pro-vided that no one else has alsothe animus possidendi and anequal or greater power. Butthere must be actual control,however weak.

Thus, a little girl who picksup a pretty beaded purse mayhave little strength to hold it, buther control is actual, whereas aruffian walking beside her and

about to seize it has no controluntil the seizure; and though heranimus be only directed to thebeads, the law would not attemptto measure its intensity as com-pared with the ruffians animustoward the bags pecuniary con-tents; hence she has possession.But a hunter chasing a wild ani-mal has no actual control over itunless it is so severely wounded

and he in such close pursuit thatit is, reasonably speaking on thebasis of general experience, inthe bag. And a fisherman rais-ing his nets is not in possessionof fish, although he will certainlysecure them if nobody frightensthem away, until the net is sonearly closed that their escapeis practically impossible. The

control may exist, of course, onlyindirectly through control of something else; as, for example,of a house, a yard, an automo-bile, a safe or vault, the clothingon ones person.

As regards the second ele-ment, it is not necessary to claimas owner in the literal sense.But when the law says that ac-tual control of a thing coupledwith an intent to maintain con-trol against the world generally

creates legal possession, the lawalso says that such possessorhas a right to maintain and toregain possession against theworld generallyi.e., against allwho hold no higher right. Andthese rights are the essence, theyindicate the practical meaning, of title in our law (see pp. 5556,58).

The concept and therefore

Part I, Chapter II

Seisin & Possessionas the Basis of

Legal Title




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the word possession have, of course, been subject to change,and the meaning of the word istherefore subject to the indefi-niteness that in varying degreescharacterizes nearly all words,and to which even those of theexact sciences are not wholly

immune. The older any word is,and the more active has been itsusethe more fundamental theconcept it expresses and themore varied its applicationthemore evident, always, are histori-cal influences. For example, awindow has not long had thecharacteristic of glass that chieflydistinguishes it today. The con-cept which that very old word em-bodies is so indefinite that onlythe vaguest definition can coverits development; for nothingsave the history of buildings andwords and the past uses of bothcan explain why in different cir-cumstances the wordsbalistraria, crenel, eyelet, peep-hole, loophole, porthole, andFrench-window have been usedwithin the field which any usualdefinition of the word windowwould include. The only impor-tant difference between the con-

cepts of a wall-opening for sightor air and of possession is thatthe former, whatever be the wordused to express it, is infinitelyless likely than the latter to bethe subject of litigation. Whetherit is desirable or regrettable, inrelation to the administration of

justice, that fundamental con-cepts such as that of possessionshould be somewhat indetermi-nate, and therefore flexible intheir application to facts, is a

question upon which the opin-ions of lawyers are divided. How-ever that may be, almost all le-gal concepts, like other concepts,are in fact characterized by theseequivocal and casual qualities.

The theoretical requirementsof many property concepts arefairly definite. But a paucity of facts, evidence of inconsistantfacts, or the difficulty of inter-

preting conduct, may render im-possible a definite conclusionthat a particular concept fits thefacts of a given situation. Yet,since courts must decide thecases brought before them,some conception of public policy(usually as intuitively felt by the

judges, because indeterminableby exact balancing of social in-terests) will then necessarily de-termine their decision. Such ob-scure situations are often pre-sented in problems of posses-sion or its disturbance. If thephysical facts are in equipoiseand one disputant holds title,possession will be attributed tohim. Particularly, the line be-tween a mere disturbance of possession (trespass) and anouster therefrom (whether anoriginal dis-possession or a re-possession by entry) is neces-sarily vague. In these cases, as amatter of policy, the law has forcenturies permitted an injuredparty to exercise an election intreating a dis-possessor (dis-seisor) as such or as a mere tres-passer, or to treat a former ten-ant who remains wrongfully onthe land as a trespasser or a con-

tinuing tenant. A sense of pub-lic interest may cause a relax-ation of technical requirementsin favor of an officer of the courtlevying an attachment or an ex-ecution. Again, in interpretingstatutes which make posses-sion of prohibited articles crimi-nal, but to the end of enforcingthe legislatures supposed realintent to punish only serious of-fenders (possessors as directors,of an unlawful enterprise, pos-

sessors in bulk, or for a consid-erable time), courts may care-lessly deny any possession tomerely casual and momentarypossessorsinstead of denyingonly the type of possession sup-posedly contemplated by thelegislature.

Of these cases, however, onlythat of the attaching officer trulyillustrates variations in the mean-

ing of possession. The rest areessentially exceptions to the nor-mal or expected consequences of possession. The cases whichmost complicate the law of pos-session are those of crimes. Inthem a desire to find the defen-dant guilty ormore fre-

quently innocent (as in thecases just referred to, but with-out the excuse of statutory con-struction to serve as an expla-nation) results in extraordinaryrefinements upon, or distortionsof, the concept of possessionwhich generally prevails in non-criminal cases.

Despite all such variations,the concept of possession is inthe great majority of civil casesapplied usefully and with consid-erable consistency. Had it beenimpractical in application it couldnot have retained for seven cen-turies basic importance in ourlaw.

2. SeisinSeisin, speaking loosely, was

the legal possession of old Ger-manic law. For at least three cen-turies after the Norman Con-quest our lawyers had no other

word whereby to describe pos-session. 1 It is true, however,that possession, apparently, hasnever had in any century pre-cisely the same meaning whichattached to seisin in any othercentury. Before the end of thesixteenth century, both conceptsand words were well established.

While the word possessionhad not appeared, many situa-tions which we today cover withthat labelindeed, the vast ma-

jority of themwere includedwithin the concept of seisin. Onthe other hand there were cer-tain exceedingly important formsof dispossession (described bythe terms abatement and in-trusion) that were treated asdisseisins, yet were not typicaldisseisins because they lackedan actual ouster. Also, after atrue disseisin seisin might in




some cases (probably actuallynumerous) be regained by actswhich we would not today de-scribe as amounting to a repos-session, although Littleton(1485) did so describe them;namely by mere continual claimagainst a disseisor whose

strength made an actual entryupon the land impossible or dan-gerous. Nor is this analogous tothe constructive possession of our modern law, since the latteris attributed to one person onlywhen no other person is in ac-tual possessionthough theanalogy does fit Littletons us-age.

When seisin existed, it enjoyed a protection analogous toand in the main coincident withthat accorded today to legal pos-session. But possession alsothen existed in the case of a ten-ant for years, and the laws pro-tection of such possession wasnot the same as its protection of seisin; nor was it identical withthe protection given today to atermors possession. Also, with-out even the single exception (asLittleton stated the law) men-tioned in the preceding para-

graph, actual seisin could not begained without acquiring actualpossession. Both could begained, however, by any wrong-doer; and the usurper could passboth to anybody else. And, as willappear in the next section, whenthe man whom we would callowner lost his seisin he was leftwith a mere right which wewould call an imperfect title; andthe way he recovered both sei-sin and what we would call com-

plete or perfect title was bymerely reacquiring possession.On the one hand the freehold[estate] could not be transferredbut by livery of

seisin; on the other, livery of seisin could not be made by anyperson who had the possessionwithout transferring the free-hold. 2

After the word possession

entered the law, it and seisingradually acquired definitely vari-ant meanings. In the fifteenthcentury possession became theproper term to designate legallyprotected control of chattels per-sonal, whereas in the two preced-ing centuries it was constant us-

age to speak of the seisin of suchchattels. The reasons why seisinwas thus detached from chattelsyet for centuries retained vital-ity in the land law can only beconjecturally stated. On onehand seisin was quite uncon-nected, in origin, with feudal-isms basic concept of tenure,and the application of its prin-ciples very often totally defeatedthe claims of feudal lords towardship, escheat, and other feu-dal derivatives of tenure. Thismust have tended to delay theultimate development, althoughnot greatly, since the feudal in-cidents began to lose vitalitywhen tenure received in 1290from the statute of Quia Emptores the blow which ulti-mately destroyed it. Of a contraryand vastly greater influence wasthe exclusive position in the landlaw, and special importance in

early governmental arrange-ments, of freehold estates, of which seisin was the basis. Par-ticularly important was the factthat the common law rules gov-erning the inheritance of land,with the basic principle of seisina facit stipitem, although also de-rived from Germanic law andquite independent from feudal-ism in origin, were perfectlyadapted to the desires of thegreat landownersespecially, of

course, the rule of primogeni-ture. To these associations withvital social interests seisin appar-ently owed its preservation as aconcept of the land law. The prac-tical differences between it andpossession gradually decreaseduntil finally, long after its own im-portance was gone and long af-ter feudalism had lost all reality,seisin became a technical term

to denote the completion of thatinvestiture by which the tenantwas admitted into the tenure,and without which no freeholdcould be constituted or pass.3

This last phrase was old and ac-tual law; the preceding explana-tion was a fictitious legal prin-

ciple of literary feudalism.Before these changes in the

meaning of seisin had morethan well begun terms for yearshad become of vast importance.Originally not a property instituteat all (see page 26), when theybecame such they were perforce,for lack of seisin, denied recog-nition as real property, and thusbecame personalty as chattelsreal. The landlord was then re-garded as seised of his reversion-ary estate (if a freehold) while thetermor was possessed of the landitself; and this usage persists inour law today.

The differentiation of the twoconcepts was also unavoidable indistinguishing the rights of aguardian from those of his wardactually on the land, and therights of any feudal lord fromthose of his vassal occupying thefeudal tenement. True, some

confusion of the two concepts in-evitably continued; but such in-stances were exceptional. Theway out of the difficulty lay, of course, in applying thedifferentiation (present and clearas far back as reversions and re-mainders were recognized, andnecessarily accentuated by thedevelopment of leaseholds justreferred to) between seisin inlaw of an estate and actual sei-sin of the land. Legal speech fol-

lowed this development. An illus-tration is found in the fact thatafter the Statute of Uses (1536) declared that persons havingthe use of lands should thereafterhave a corresponding legal sei-sin, estate and possession of them, the courts proceeded toconcede acquisition of the seisin,but not of the possession, with-out actual physical entry.




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At times the perduring doc-trines of the old law made it es-sential to recognize a double sei-sina distinction between seisinin law and in fact. For ex-ample, before his actual entryupon the inheritance an heir wasnevertheless seised in law (i.e.,

enjoyed the remedies of seisin)unless somebody else hadwrongfully entered and usurpedthe actual seisin; just as anowner away from his propertytoday has constructive posses-sion provided nobody else hastaken actual possession of it.

There was also a distinctionbetween actual disseisin and dis-seisin at election. Originally thelatter included, quite logically,only cases of factitious disseisin;the freeholder being allowed asagainst a trespasser to supposehimself disseised, merely for thesake of taking his remedy by as-size or other real action. ButLord Mansfield (with the supportof some medieval relaxationsthat had marked the way) ex-tended the privilege to include afactitious seisin; that is, he madeit cover the case of a freeholderwho, although actually disseised,

preferred to treat the disseisoras a mere trespasser. This doc-trine is similar to the election al-lowed a landholder today in ig-noring or taking advantage of atrespass.

Disseisin on one hand, anddispossession on the other hand,became distinct. Disseisin re-quired an actual ouster; it there-fore required the adverse claim-ant to be a willful wrongdoer.Adverse possession required

neither. It requires only a claimof right hostile to that of the trueowner, and this is inferred fromacts of user such as would bedone by an owner. Variant stat-utes of limitationeven morethan variant remediesmade thedistinction important, for eventhe old undesired real actionswould be used when circum-stances required it. But the dis-

tinction between them hasended; in England by the statu-tory abolishment of both in1833, in the United States partlyby legislation and partly without.Probably the doctrines ceasedlargely to be living law in colo-nial times; yet the one conse-

quence of disseisin which wasmost important, inability of thedisseised owner to transfer histitle, persisted generally in thiscountry until very recently; andsome more recondite and lessimportant doctrines of disseisinlived into the nineteenth century.

As will appear in the nextsection, the situation with re-spect to seisin (and disseisin) of land was substantially duplicatedin the case of chattels, thoughwith greater simplicity of inci-dents.

As used today in ourlawbooks, words of seisin anddisseisin can all be more prop-erly displaced by words of possession and dispossessionexcept where the former areused with reference to freeholdestates as distinguished from theland in which they exist.

3. Relation of Seisin& Possession to TitleWith the exception of a few

rare situations our law has neverundertaken to determine in oneproceeding that one person,among all persons in the world,is the sole or true owner of cer-tain land or chattels. Our doc-trine of title has been for sevencenturies one purely of relativity.It merely determines which of theparties to an actual dispute and

(subject today to the new prac-tice of declaratory judgments)between whom litigation hasbegun, holds the relatively bet-ter right. The non-equity law heldeven the applications of the nar-row rule within a further nar-rowed fieldby rules of pleadingthat eliminated all disputed is-sues save one, which was nar-rowed to the utmost possible

extent, by rules of parties thatexcluded all claimants save thoseimmediately interested underthat issue, and by rules of evi-dence that similarly confined alltestimony. Equity, with greaterliberality of principle in all thesematters, disposed in one pro-

ceeding of as many reasonablyimminent potential claims aspossible, and our modern non-equity law has adopted the eq-uity practice. Still, the generalprinciples remain as abovestated; and in determiningwhose is the better relative right,possession has always exercisedin our law an overwhelminglypreponderant influence. To de-termine ownership we can com-pare one possession with an-other, to the older subordinatethe newer.

Possession is a fact, but itsmere existence engenders arighta possessory title, a rightto retain or regain the propertyfrom anyone who has no betterright to hold it. Just so far aspossession is protected, it is asmuch a source of legal rights asownership is when it receives thesame protection.4 And the fact

and the right being inseparable,it is common judicial languageto say that possession is title;instead of saying that it is thebasis of a limited title (or, as isconstantly but inaccurately said,is prima facie evidence of titlein fee). In all cases in which apossessory title suffices to sup-port plaintiffs action, the require-ment in common-law pleading of certainty in laying the title wassatisfied either by mere allega-

tions of possession in the plain-tiff, or by alleging that the prop-erty was the goods and chattels,the land, the close, or the free-hold of the plaintiff. Possessorytitle is alienable; it may be taxed,although this is apparently rarelydone; it may be sold on execu-tion; it is a sufficient estate withwhich convenants for title willrun, and one which will prevail




when united with one of twocompeting equal equities; theremay be a homestead interest init; its holder may collect damagesfor a permanent injury to the re-alty.

All this rests on principles of Germanic law that have come

down substantially unmodifiedsince the Middle Ages. An under-standing of it requires attentionto two matters: one, the chang-ing relation during the last sevencenturies between possessionand ownership; the other, thechanges which have taken placein the apportionment, as be-tween a wrongful possessor of property and its dispossessedowner, of those rights of userwhich constitute the enjoyment-content of title.

As regards the first, even inthe thirteenth century nothingwas commoner than separationof seisin from right. The small-est degree of civilization will pro-duce the phenomenon of owner-ship divorced from possession,5

as in cases of loss or loan. Allthe more inevitably, therefore,menand the lawhave alwaysbeen conscious of their normal

coexistence: Man, by an instinctwhich he shares with the domes-tic dog, will not allow himself tobe dispossessed of what heholds.6 Whether the concept of possession or

that of title was first the con-scious production of juristicspeculation, might be disputed,but apparently it was the first.Moreover, our law has never, inpractical application, separatedthe two. As Salmond says, Own-

ership without possession isright unaccompanied by thatenvironment in which it normallyrealizes itself7; and this wasequally true, of course, of own-ership and seisin six centuriesagoalthough, as will again benoted, the relation of the oldmere right to seisin was not thesame as that of modern title topossession.

In the interest of public peacein a lawless age when self-helpmust be rigidly curtailed, the writof Novel Disseisin restored mereseisin, however untitled, againstanybody even the true ownerwho usurped or disturbed it; andfor a short while protected it for

a year and day against judicialinterference if it originated un-der a judicial ban. But the formerdoctrine (outside the statutes of Forcible Entry, be-ginning in1381, which enforced the samepolicy through criminal law) wasobsolete by the mid-fifteenthcentury except as to a seisin heldunder certain very exceptionalcircumstances. With those excep-tions one who (1) owned land,and who (2) was entitled to bepresently seised thereof, (3)could rightfully enter upon itagainst a wrongdoer. And whenthose exceptions finally disap-peared-both in England and inthis country in the first half of the nineteenth century the tri-umph of title over mere posses-sion was in one aspect complete.

However, the right of anowner to enter forcibly, withoutcivil liability, upon a former ten-

ant for years upon the expira-tion of the term was establishedonly very recently. Moreover, itis a mistake to imagine that theright to exercise self-help byphysical entry is one that hassteadily been increasingly exer-cised ever since government be-came powerful. Entry by actionof ejectment long ago replacedphysical entry in perfecting aforfeiture of land for breach of a condition subsequent. In En-

gland it is apparently scarcelyever exercised in the case of land, but is unrestrained by anyrule of law, statutory or other-wise in the case of chattelsand is as to them presumablyfreely exercised. And the sameis substantially the situation inthe United States, despite (orshould one say in accord with?)what might have been expected

to develop as the rule underfrontier conditions. Particularlyinteresting is the abundance of statutory restrictions upon itsexercise.

One very important factor inthis whole development was thefact that the necessity of prov-

ing seisinwhich, as will appearin the following paragraphs, wasa condition of right almostinseverable and indistinguish-able from titleas a preconditionto effective dealings with thetitle, led to the recognition of mere formal entries as sufficientto revest a disseisee with seisin,though falling short of actualrepossession. Such formal en-tries (which were really only for-mal assertions of the right) wereabolished in England in 1833.Various statutes of similar kindin the United States were doubt-less due to similar causes. Theresult has been to bring closertogether seisin and possession,as indicated at the end of the pre-ceding section.

Notwithstanding the some-what inconsistent character of these developments regardingentry, it is plain that the mean-

ing of title was in their coursefundamentally altered.There had theretofore been

no effective title save as a rightto enter; for if that right of anowner was cut off (in the anoma-lous cases above mentioned) andhe nevertheless wrongfully en-tered, he could not retain pos-session. Today, however, titleequally justifies entry or deten-tion; supports equally a declara-tion or a plea. But the title which

thus triumphed was no abstractconcept of general ownership. Itwas merely the better right to theimmediate possession as be-tween two disputants.

For the better understandingof the nature of our present doc-trines of title it remains to com-pare the practical meaning of possessory title today and undermedieval law.




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Secondly, then, seisin beingthe normal relationship to landalike as matter of fact and of right, and possession being in-distinguishable from seisin savein a few abnormal cases (and thatof the lessee falling wholly out-side the land law), anybody who

clearly occupied land acquiredthereby a wrongful seisin. Underthe old law (and perhaps still inEngland, although not in theUnited States) this was necessar-ily seisin of a fee simple; not forthe strange reason frequentlygiventhat a wrongdoer maynot qualify his wrong but be-cause the old law made in nofield inquiries into limitations of intent. Likewise, any such dis-seisor could by feoffment trans-fer to another the fee estate thustortiously acquired. A mere freshtrespasser, without precedentoccupation, could in one instant,by the ceremony of feoffment,invest himself with and divesthimself of the full seisin. Onerightfully seised of an estate forlife could usurp and tortiouslyenfeoff another with a fee simple,although at the cost of forfeitinghis own rightful interest. A ten-

ant for years could do the same.The only thing anomalous wasthat in some of these cases therewas disseisin without physi.. calouster.

The estate thus acquired bythe disseisor (or his grantee) wasof course an imperfect one asagainst the disseisee until tem-poral limitations cut off thelatters higher rights;flrst hisright, while the disseisor lived,of physical entry; then the right

to use the possessory assizesthat protected a mere prior sei-sin; then the right to have re-course to a writ based upon aright of entry under judgment of court; finally, even recourse to awrit of right. At this last stage(the anomalous circumstancesabove referred to having the ef-fect of eliminating the right of self-help), there was a separation

of both possession and posses-sory title from the mere rightthat constituted highest title.

But this old-time contrast be-tween seisin and right is utterlyunlike the modem contrast be-tween possession and title. Thedifference lies in the fact that the

incidents of effective title, as weunderstand the word, were theninseparable from the seisin, andwere not included in the right;this last meaning merely a rightto enter (which one whom wewould call owner did not havein the anomalous cases alreadyrepeatedly mentioned) or right tobring an action. The disseisorstortious seisin gave him the in-dicia and powers of ownership;his estate, subject to its imper-fections, was heritable, alienableinter vivos, and (after 1540)devisable. The disseisee, on theother hand, had nothing to alien-ate in an age whose standardconveyance was effected by liv-ery of seisin. His right of entrywas not one of the few interestsalienable by grant, nor was helater able to devise it by will. Hisright of action was a chose-in-action that has never been alien-

able otherwise than as a convey-ance of his title, and which be-came alienable in that manneronly in the nineteenth century.His only incident of ownership,onginally, was that his right of entry and his right of actionwould descend to his heir, butfrom any heir who was never him-self in possession absolutelynothing descended, since inher-itance was traced not [from] theperson last entitled, but [from]

the person who, under that title,had last had seisin in deed of thelands.8 This was the law until1834 in England, and at leastvery generally until earlier datesin the United States. No rightsof dower or curtesy sprang fromthe disseisees right of entry. If while disseised he died heir-less,his feudal lord had no escheat;if he left infant heirs, the lord had

no wardship. In all these in-stances the reverse was true of the disseisors estate.

American law has only re-cently escaped from the mostfundamental incidents, and in-deed also from some of the mostcurious refinements (such as de-

scent cast), of these medievaldoctrines.

In particular, the medievalpreference of the disseisor, andof our adverse possessor whostands in his place, prevailed inmost of our states down to vary-ing dates in the 19th century(and even into the 20th) as re-spects the disseisees inability toconvey, by will or deed, title toland that is in the adverse pos-session of another. Moreover, aspointed out above, this disabil-ity continued without counter-vailing relaxations of the require-ments for an entry that wouldend the disability. On the otherhand the adverse possessorsinterest could always be, and istoday, inherited and alienated bydeed or will as an estate in feesimple. All our statutes of limita-tion still embody, of course, thesame preference. They are stat-

utes (in the words of their par-ent Act of 1623) for the quiet-ing of mens estatesto wit, of wrongdoers estates, not of thetitles of dispossessed owners.They presuppose the effectivethough defeasible title of the dis-possessor, and make that perfectby cutting off the former ownersright of entry. True, we think to-day of the adverse holders in-terest as being only an incho-ate titlebut it has the actual

incidents of present title. It maybe abandoned, and never ripen;but so also, undoubtedly, mightthe interest of the medieval dis-seisor have been abandoned. Are-entry by the true owner imme-diately and completely recreateshis title, but the same was trueof re-entry by the old-time dis-seisee. It has been noted that apossessory estate in land may be




taxed as such; neverthelesswhen land is under adverse pos-session it is the dispossessedowner who is habitually taxed.Although this appears superfi-cially, to be a triumph of (paper-)title over (title-by-)possession,its true explanation is a very

practical one resting on twosimple factsone, that the gov-ernment will always tax some-body; the other that the asses-sor prepares his roll by takingfrom the recorder s books thenames of record titleholders.Were it not for our recording sys-tem the result would doubtlessbe reversed. Similarly, land un-der adverse possession is todayhabitually sold under executionas property of the dispossessedowner. This does embody a mod-ern aggrandizement of paper-title, for it results from the dis-possessed record ownerspresent power to convey thattitle; only property capable of voluntary alienation being levi-able and involuntarily alienableby law.

But there is no very great tri-umph, even here, of record titleover possessory title; for both are

subject to levy and sale, such asthey are.No fictitious seisin in law

was ever attributed to one whowas actually ousted; nor even toheirs and remaindermen after anabator or intruder had actual sei-sin; nor to the holders of incor-poreal hereditaments whoserights were obstructed by ad-verse claimants. However, inmodern law an owner off his landis conceded a legal possession

usually called constructivewhen there is no other personactually in possession of theland.

So also in the case of chat-tels, the position of the disseisorof a chattel was the converse of that of the disseisee. The con-verter, like the disseisor of land,had the power of present enjoy-ment and the power of alien-

ation. If dispossessed by astranger he might proceedagainst him by trespass, re-plevin, detinue, or trover. Hecould sell the chattel, or bail it.It would go by will to the execu-tor or be cast by descent uponthe administrator; was forfeited

to the Crown for felony [of thedisseisor]; and was subject to ex-ecution [as his property]. Inshort, the disseisin of land findsits almost perfect counterpart inthe conversion of chattels.9 Butthe wrongful taking of chattelswas ... a more effectual disseisinin medieval times than the ousterfrom land. The dispossessedowner of land ... could alwaysrecover possession by an action.Though deprived of the res, hestill had a right in rem. The dis-seisor acquired only a defeasibleestate. One whose chattel hadbeen taken from him, on theother hand, having [in the MiddleAges, pp. 8o] no means of recov-ering it by action, not only lost[control and enjoyment of] theres, but had no [enforcible, andtherefore in practical legal fact,had no] right in rem. 10 In themedieval Year Books, title was

therefore often attributed to tres-passers (including those whomight also be, in present termi-nology, converters or thieves),vendees or bailees or trespassorytakers from trespassers, andpurchasers without delivery froman owners bailee.

Even when the right of thedispossessed chattel owner hadfound relatively adequate protec-tion by detinue, replevin, and tro-ver, still his right in rem means

a right to recover possession byrecaption or action. But theserights are as personal in theirnature as the correspondingrights of entry or action in thecase of land. It follows, then, thatthey were not transferable. Andsuch was the law.11 The dis-possessed owner of chattels was,and until into the nineteenth cen-tury continued everywhere to be

regarded, like the disseisee of land, as holding only an inalien-able chose in action. As to thenature of his interest there is notyet agreement; and for that rea-son, primarily, he has not fullygained the power of alienation byvoluntary transfer inter vivos or

by will; nor, therefore, has hisinterest become unquestionablycapable of involuntary alienationby law.

It was an inescapable conse-quence from the history just re-viewed that proof of actual sei-sin or possession, existing as be-tween the occupant and claim-ant peacefullythat is, not origi-nating in the occupant by ousterof the claimantconstitutesprima facie title in the former as against the latter. Otherwisestated, mere possession, by onewho has no other or betterclaimbe he squatter on land,finder or converter or would-bethief of a chattelconfers theright to retain undisturbed pos-session against all persons whoneither themselves hold nor actunder another who holds ahigher title to the property. Thepower of the occupants posses-

sory title is wholly unaffected byits possible wrongful nature asagainst third persons unless theplaintiff is claiming in their right.It is good, nevertheless, againstall others. If the plaintiff hassome right and puts defendantto proof of more than a bare pos-sessory title, the defendant suc-ceeds if he proves either that heis the true owner or holds un-der the true owner, or that hispossessory title is older than the

plaintiffs or than any possessorytitle under which the plaintiff claims.

On the other hand, if plain-tiff in ejectment or other re-cuperatory action was in posses-sion of the property until de-fendant took it from him, theplaintiff receives the benefit of the rule that possessory title isgood against any person not




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holding a higher title. Proof byhim of earlier peaceable posses-sion enables him to regain pos-session from any person whowithout a higher title ousted himor excluded him therefrom;hence the rule of common lawpleading, already referred to,

that he might declare indiffer-ently on his possession or hisownership. The defendant mustprove his better right to over-come the plaintiffs prima faciecase. If the action be trespass,such a defense will show that thedisturbance of possession wasrightful. If the action be eject-ment, detinue, replevin, or tro-ver, judgment follows proof of the better right to immediatepossession.

To have a good title to landis to have the essential part of ownership, namely the right tomaintain or recover possessionof the land against all others;and the same as to chattels. Andsimilarly, title short of perfecttitle is only this same rightagainst all except those who canshow a better title.12

A myriad of judicial pro-nouncements have declared that

possession of land is prima fa-cie evidence of seisin in fee;meaning, as thus used, evidenceof true and general title. But sucha presumption can play no part,properly, in legal proceedingsnot concerned with absolute,true, or general title; and conse-quently can only rarely play anypart whatever in our propertylaw. When A litigates with B theissue of their relative rights, thealleged presumption can prop-

erly have no effect outside thatissue. In trespass, with a pleathat the disturbance was by com-mand under a jus tertii higherthan plaintiffs, old precedentsholding the command non-traversible were properly over-ruled, since plaintiffs generaltitle could not be in issue untilafter proof of such command. Byparity of reasoning, a presump-

tion of general title cannot logi-cally enter into an action betweenA and B which tests merely therelative or better right to imme-diate possession (as in eject-ment, trover, detinue, or re-plevin) of the two litigants. Theonly presumption is that the par-

ticular peaceful occupant hasbetter right than the particularclaimant, who must thereforefirst give evidence of right to possess and, to prevail, mustcarry the burden of establishingsuch higher title by a preponder-ance of evidence.

Considerable confusion hasresulted from a failure to bear inmind the principles just stated.Even in the modern case whichhas done most to clarify the En-glish law one distinguished Jus-tice said: The fact of possessionis prima facie evidence of seisinin fee. If this were so, then (1) itis evident that a prior possessorytitle would not necessarily pre-vail over a later one, and the bal-ancing of their relative meritswould involve endless difficul-ties, if not utterly arbitrary pref-erences. Moreover, (2) clearly thepresumption would be rebutted

if either partythe defendant in-tentionally or the plaintiff, whocould safely rely upon his merepossession, inadvertentlyshows that a third person holdsa title superior to the rights of the plaintiff. Some Americancases have been decided on thatprinciple, and some Englishcases. But the leading Englishcase for this view has been thererepudiated and overruled and itsdoctrine is contrary to the de-

cided weight of authority in theUnited States. The true principlewas stated in Asher v. Whitlockby Chief Justice Cockburn: pos-session is good title against allbut the true owner.8 And theview of that great judge almostcertainly correctly expresses theEnglish law. But whatever be thesituation in England, in this coun-try the general and the better

view is that the plaintiff in eject-ment (as well as the defendant)need prove no absolute title, butonly a relatively better right thanthe defendants.

From the above principles italso follows that one who wrongfully disturbs or dispossesses an-

other can never defeat thelatters action (recuperatory orfor damages) by mere plea andproof of a jus tertii higher thanplaintiffs. Consequently, underthis rule a mere possessor recov-ers full value from a later pos-sessor who has wrongfully taken.This view very heavily predomi-nates, but there are various casescontra. By parity of reasoning anadverse possessor of land shouldreceive its full value when takenby eminent domain; and that isapparently the prevailing view,although here also authority isdivided. Although the majorityview on these points is in agree-ment with the rule allowing fullrecovery by a bailee against astranger, it is true that bothviews date from a time when titleapart from possession was al-most in-conceivable. It is equallytrue that the minority view is in

accord with the rules, which re-flect ideas dominant in the latertimes when they originated, thatregulate recoveries againstwrongdoers by tenants for yearsor for life, mortgagors andmortagees, and other personsholding definitely limited inter-ests in land. These more mod-ern cases naturally lend them-selves to the argument that fullrecovery by a mere possessor isbased upon a presumptive title

in fee. As has been stated, thatview is quite irreconcilable witha vast mass of authority, both oldand modern. Whether it is morein harmony with conditions andneeds of the present day is de-cidedly open to doubt.

But of course one sued as atrespasser or converter mayprove that he was not such byshowing a jus tertii under the




authority of which he acted; forit is then not, properly speaking,the right of a third party. Like-wise he can defeat ejectment,detinue or replevin if he provethe rightfulness of the disposses-sion by connecting himself withthe jus tertii.

When the plaintiff bringsejectment, trover, detinue, or re-plevin against one who has not dispossessed plaintiff, the defen-dant is the party protected by therule that a mere possessory titleis good against all save thosewith a title of higher type. Here,the rule that the plaintiff can onlysucceed on the strength of histitle, not on the weakness of de-fendants, means that plaintiff must prove at least a possessorytitle earlier than defendants,though not necessarily ul

timate or highest title; andthe defendant (by way of narrow-ing the issue) may be allowed toeliminate the latter claim by pleaand proof of jus tertii in thatsense. He is not, however, by thebetter and majority view allowedto succeed merely by proving ahigher title, of whatever quality,than plaintiffs without regard to

his own lack of better title.On these points there hasbeen much confusion in the caseof ejectment, as to which thecases are not wholly harmonious,the confusion being caused bymisunderstanding of the phrasesthat the action tries title, andthat plaintiff must recover onthe strength of his title. Thecases are almost wholly harmo-nious, on the other hand, in ac-tions of trover and detinue,

which turn upon precisely thesame principles as ejectment. Inreplevin, which should equallyturn solely upon the issue of bet-ter right to immediate posses-sion, the weight of modern au-thority is in accord with that prin-ciple.

Notwithstanding the state-ment by most distinguished au-thorities that there is hardly any

case in which possession can beabsolutely extinguished exceptby destruction of the thing,which would imply that all find-ers are trespassers, they are notso treated in applying the prin-ciple stated above regardingpeaceable acquisition of title in

connection with a plea of jus tertii.

But in ejectment by a merepossessor against a subsequentbare possessor of land the priorpossession may exist as a con-structive possession for the pur-pose, in applying the jus tertii principles, of holding the laterpossessor necessarily a tres-passer. His status as such is not,apparently, limited to cases inwhich he actually ousts the firstpossessorthat is, is a disseisorin its original sense.

4. Consequent Role of Seisinand Possession in OlderModes of Conveying Title

As in the constitution of title,so also in its transfer seisin wasvital in our ancient law, and pos-session has until very recentlybeen little less so. Before 1535,though there were more than a

dozen forms of conveyance, twowere particularly important, thegrant and the feoffment.

(1) The feofiment was a pub-lic and somewhat ceremonialtransfer of possession, also des-ignated in law-books as livery of seisin and as one form of trans-mutation of possession. By it thefeoffee, or transferee of the feu-dal fieff, was clothed or investedwith the seisin that was indis-pensable to the holding of any

freehold interest in landthat is,of any estate for life or of inher-itance.

By a feoffment there could besimultaneously created, not only(a) any freehold estate of presentenjoyment, but also (b) certainpresent freehold estates of fu-ture enjoyment which were totake effect in enjoyment uponthe termination of the particular

estate of immediate enjoyment.Indeed, they could be createdonly in this manner. Thesepresent interests of future enjoy-ment were known as reversionsand remainders; and they werethe most important future in-terests known to the ancient law,

as they are also of the presentlaw. All these estates, if fees,were called corporeal heredita-ments; that is, they entitled theirowner to actual possession,sooner or later, of the land.

(2) The grant was a deed;and usually a deed of conveyanceof an interest already existing.Of all future interests, and alsoof incorporeal hereditamentsso-called because they nevergave possession of the landitis commonly said that they layin grant. It is true that for thetransfer of future interests afterthey were once created, and forboth the creation and subse-quent transfer of some incorpo-real hereditaments, a grant wasemployed. But there were severalqualifications of the general ruleas it is commonly stated.

(a) Some incorporeal her-editaments were created just as

were reversions and remainders.This was so of the incorporealhereditaments later most impor-tant in our law; namely, ease-ments and profits. Because therecould be no seisin of these (northerefore estates in the ancientsense in them) they could notthemselves be passed by livery.But because they were said to beappurtenant to, and held to betherefore inseparable from theland, they could also not be

passed separately by grant.Hence they were created andtransferred with corporeal her-editaments when these were ei-ther created or transferred by liv-ery.

(b) In the case of certainother incorporeal hereditaments,unimportant in our own later law,a mere grant sufficed for eithertheir creation or transfer. But (c)




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in the case of still others the deedalone was ineffective. This wastrue of the advowson, the mostimportant incorporeal heredita-ment of medieval times; also of one which is of primary impor-tance in modern law, namely rentreceivable from anothers land.

The grant of the former was per-fected when the appointed clerkwas admitted to the benefice andreceived the profits thereof (orperhaps when he had grasped,in presence of a witness, thehandle of the church door); thatof the latter, by the terre-tenantsrecognition of the transferee (at-tornment) This last was neces-sary, (d) to perfect the grant of aremainder or reversion; and tothat of rent-charges.

It is clear law that our ances-tors could not conceive of atransfer of title without transferof seisin. These acts perfectinggrants are analogues to livery.The ideas underlying possessionhave always been control, andenjoyment through control;these may be perfectly satisfiedin the case of incorporeal inter-ests. It is equally evident that theconfusion in procedure results

from the fact that landed inter-ests originating at differenttimes could not be exactly fittedinto existing categories; nor didtheir variant development permita later rationalization of the law.

Similar general ideas origi-nally prevailed regarding chat-tels. Chattels personal weremanually delivered. Chattels realwere created, on the same prin-ciple of publicity that was satis-fied by feoffment in the creation

of freeholds, by parol agreementand entry; and attornment satis-fied the same need in their sub-sequent assignment. However,between the thirteenth and mid-fifteenth century actual deliverycame to be unnecessary in apresent sale (bargain and sale)or a gift by deed of a chattel per-sonal.

5. Continuing Role of Possession in Transfers of Title

In the course of the nine-teenth century the concepts of title and possession had becomequite distinct. But there is still avery close connection between

them in many legal transactionsbecause of the continuingpublicital value of possession;that is, it gives public notice thatsome right is claimed.

Leaseholds of short durationare still everywhere creatable bymere agreement and entry.

For centuries an actual entrywas required to create the leasethat was the basis of ejectment;and in England this remainedpositively necessary in somecases down into the nineteenthcentury; but in this country it wasapparently never required. Thepropriety of such a possession,taken only to try the title, wasoriginally doubted, but the prac-tice seemed to be required be-cause it was in England a penaloffence to convey any title whenthe grantor was out of pos-session. The very recent dates,throughout this country, at

which owners gained the powerto convey their titles to land un-der adverse possession havebeen referred to (p. 47).

In English law, until . . .1845, land could in theory beconveyed in no other methodthan by the delivery of pos-session. No deed of conveyancewas in itself of any effect. It istrue that in practice this rule wasfor centuries evaded by takingadvantage of that fictitious de-

livery of possession which wasrendered possible by the Statuteof Uses. But it is only by virtue of a modern statute [of 1845] . . .that the ownership of land canin legal theory be transferred [inEngland] without the possessionof it.14 In the United States muchthe same is true, the differencesbeing, first, that although in vari-ous states for a century or more,

by express statutory or judicialdeclaration, no livery of seisinhas been essential to the trans-fer of title, such declarations arenot universal; and, secondly, thatalthough deeds are everywhereunderstood to pass title withoutlivery, great doubt exists regard-

ing the mode of their operationwhether by virtue of the EnglishStatute of Uses (1535) adoptedas local law, or by virtue of simi-lar local enactments, or (withoutregard to any such roundaboutprocedure) by virtue simply of statutory provisions regardingdeeds that imply a legislativedeclaration of their power to passtitle directly.

But it is in the law of person-alty, in which present-day trans-actions are of enormous dailyextent, and in which slow andexpensive transfers are both im-possible and undesirable, thatthe importance of possession ismost strikingly revealed.

Aside from present sales andgifts by deed, a delivery of pos-session (control) is still as indis-pensable as it was under our oldlaw for the transfer of title tochattels, and apparently for the

same reasonsas an expressionof the actor s intent and for itspublicital value. In order to un-derstand the present law it isnecessary to note that in thethirteenth century every sort andkind of alienation ... is a gift;including sales, exchanges,mortgages, leases, as well as thegratuitous transfers which weknow as gifts today. On the otherhand, at that time the giver al-most always kept something.

We may take it as a general prin-ciple of ancient Germanic lawthat the courts will not undertaketo uphold gratuitous gifts or toenforce gratuitous promises...Every alienation of land . . . is agift, but no gift of land is gra-tuitous; the donee will alwaysbecome liable to render service,though it be but the service of prayers15that is, before Quia




Emptores (1290) ended subin-feudation. Our gift, whether of land or chattels, has become gra-tuitous, but both as to it and non-gratuitous transfers of chattels(unlike land) the change of pos-session remains. Transfer of pos-session-that is, of reasonably ef-

fective controlis still necessary,although manual tradition or itsequivalent is not, for the consum-mation of a chattel gift unlessmade by deedwhich was al-ready practised in the fifteenthcentury. If so made, then by thegreat weight of authority tidepasses today (as in the case of land) by delivery of the deed with-out delivery of the property.

In the law of sales, also, verymuch remains of the ancientideas. Once the specific goodsintended to be sold are agreedupon, and in the absence of acontrary intent, titleas betweenbuyer and sellerpasses todayregardless of delivery. This wasscarcely law before 1800; al-though since perhaps 1500 nodelivery was required when thepurchaser had paid the price orgiven earnest money, or if creditwas expressly agreed upon.

Moreover, an absolute and un-qualified legal title is not trans-ferred: the property passes sub-

ject to the unpaid vendorsrights. Normally he retains pos-session until paid, by presump-tion of common intent; but if thebuyer becomes insolvent beforepayment, then regardless of in-tent the vendor has not only alien but also, after shipment of the goods, a right of stoppagein transitu until they come into

the buyers possession.Under the statutes against

fraudulent conveyances, in de-termining whether fraud againstcreditors has been present, pos-session has played a dominantrole resting squarely on the me-dieval relation between posses-sion and title. In the UnitedStates retention of possession iseverywhere at least evidence of

fraud against creditors, and inabout a third of the states, bystatute, there must be an imme-diate, notorious, and continuouschange of possession in order tomake a sale valid as against ei-ther creditors or purchasers.16 Inthis country, too, without the aid

of statutes, the rule has becomegenerally established that deliv-ery of possession alone can per-fect a sale as against third par-ties; a second buyer who firstlawfully secures possession hastitle against an earlier purchaser.Under our Uniform Sales Act (in33 states) the same is true; as-suming that the earlier bill of sale, if one be given, has notbeen recorded.

Some changes in the law thatare of interest in connection withpossession have been intro-duced in recent decades in rela-tion to bills of lading and ware-house receipts. The practice of selling goods, while being trans-ported by a carrier, by deliveryof the bill of lading is old; and inthis country similar use of ware-house receipts and delivery or-ders upon warehousemen is verycommon. All these documents of

title are receipts by or ordersupon a bailee. Normally, theymerely serve as evidence of thebailment contract, and facilitatethe application of common-lawrules governing the rights andliabilities of bailor, bailee, andtransferee of the document. Suchis their function in the normalcase when used to pass title tothe goods which they represent;the intent of the parties effectu-ating that result, and the title-

document proving the intent. Allnon-negotiable documents of title have merely this evidentiaryquality.

As such documents wereconstantly used in business asproof of possession or control of the goods, and as authority forthe holder of the document totransfer or receive the goodsthereby represented by indorse-

ment or delivery of the docu-ment, the idea necessarily arosethat a transfer of the documentis a transfer of the possession,that is, a symbolical delivery, of the goods. But unless the title-document actually controls pos-session of the goods, these and

the document might pass intothe hands of rival claimants. It istherefore provided under theUniform Sales Act, Uniform Billsof Lading Act, and Uniform Ware-house Receipts Act, that title-documents by which delivery isdue to bearer or to the baiorsorder must be surrendered forcancellation when the bailee de-livers the goods; that negotiationof the receipt to a bona fide pur-chaser for value passes to himwhatever title to the goods hisnegotiator and the original bailorheld; and that his rights prevailagainst all claims of the bailorhimself and against the claim of any prior vendee of the goods towhom the bailor may have givena bill of sale. The effect of theseprovisions, strengthened by thefact that even a non-negotiablewarehouse receipt, unless bear-ing upon its face the words non-

negotiable, becomes negotiableif a purchaser for value believesit to be such and elects so totreat it, is to make the negotiabletitle-document in very truth therepresentative of the goods,dealings with which prevail overdealings with the goods them-selves. These developments arenot modifications of nor incon-sistent with the general doc-trines of possession, but merelypresent those doctrines in a new

form demanded by commercialconvenience.

In the field of chattel mort-gages and conditional sales, stat-utes based upon the notice valueof possession have required reg-istration of such mortgages andcontracts in order to protect theright of the mortgagor or vendoragainst strangers dealing withthe mortgagee or vendee on the




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faith of his actual possession andsupposedly unincumbered title.

Our law, of course, is veryfar from treating any possessoras capable of giving a good title.Nevertheless the tendency of thelaw is distinctly in the direction

of giving to one who has beenentrusted with possession thecapacity of an owner, and in fa-vor of this tendency it is to beobserved both that convenienceof trade, which is alwayssubserved rather by the certaintyof the newly acquired title thanby the protection of an anteriorright, is promoted thereby, andalso that it is fairer in a conflictbetween two innocent persons toprefer one who relied upon theownership of the possessor of goods rather than one who vol-untarily entrusted the possessorwith the property. 17

(1) Pollock and Maitland, II,

31.

(2) Butler, in Coke on

Littleton, 330b.

(3) Lord Mansfield, in Taylor

d. Atkyns v. Horde, 1 Burr. 6o, 107

(1757).

(4) Holmes, Common Law,

214.

(5) Holdsworth, History (4th

ed., 1936), II, 79.

(6) Holmes, Common Law,

213.

(7) Jurisprudence, Sec. io6

(4th ed., 1913, 265).

(8) Challis, Real Property,,, *

p. 180.

(9) Ames, Lectures, 189

91.

(10)Ames, Lectures, 179.

(11)Ames, Lectures, 1856.

(12)Williams, Real Property

(23d ed., 1920), 637.

(13)L.R. 1 Q.B. 1 (1865).

(14)Salmond, Jurisprudence

(4th ed., 1913), 413.

(15)Pollock and Maitland, II,

12, 13 (note 1), 82, 213; Ames,

Lectures, 185n.

(16)Williston, Delivery as a

Requisite in the Sale of Chattel

Property (1922), 35 Harv. L. Rev.

797, 8o6.

(17)Williston, Transfers of

After-Acquired Personal Property

(1906), 19 Harv. L. Rev. 557.




I. Real Property& Personal Property

1. OriginThis has been for centuries

the most important classifica-tion of the property law. The no-menclature is explainable onlyby history. So far as it coincideswith an older underlying divi-

sion of property into movables and immovables there was oncenothing artificial about it. If oneconsiders only the few most im-portant belongings of primitivetimes land, clothing, imple-ments of husbandry, weaponsthe naturalness of the latterclassification is evident. Appliedto such property, the medievallaw phrase mobilia sequunter personam, if freely translated asmovables are personal, would

have suggested a type of per-sonal property readily identifi-able and understandable. Forcenturies, too, land played inEnglish Society, and to a lessextent in American, a prepon-derant role: economically, as abasis of class distinctions, as thebasis of political rights, and of governmental organization.Naturally enough the landowner

was a favorite of the law, and incountless detailssome for rea-sons of policy, others for conve-niencethe treatment of landand chattels varied. And this isstill true. What was, from apresent-day point of view, re-grettable (aside from confusedterminology) was the applicationto realty and personalty of dif-

ferent rules of succession; or, atall events, the continuance of that difference long after itceased to have, or where it neverhad, any social justification.

But the division of propertyinto realty and personalty is notat all identical with the distinc-tion between movables and im-movables. The former is not atall the simple one above sug-gested, but purely adventitiousand artificial. It arose in the fol-

lowing manner. In Roman law anaction in rem was used to vindi-cate a jus in rem, and an actionin personam to assert a jus inpersonam. The distinction wastherein based upon the natureof the right, or duty, involved.But Bracton (following Germaniclaw despite his discussion of theRoman) restricted the action inrem to actions effective in recov-

ering specific property; and theonly res that could in his day cer-tainly be recovered by its ownerwas land, because, being mostimportant, it was best protectedby legal remedies. The highestin power of these remediestherefore became real actions.His classification rested uponthe results of legal action, and

not upon the nature of the claimasserted. When Bracton wrote,the only action available to re-cover chattels was debt in thedetinet, in which the plaintiffquite properly, since a movablemight have been lost or de-stroyeddeclared the chattelsvalue. Either because the recov-ery of such things was inher-ently uncertain, or because thedeclaration of value madeequivocal the demand for the

thing, Bracton classified debt inthe detinet as an action in personam; and later law so classi-fied the recuperatory chattelactions of detinue and replevin.Thus land, and a few isolatedrights in land treated as insepa-rable therefrom, became realtyor real property; and all otherproperty became personalty orpersonal property. So, as above

Part I, Chapter III

Classification of Property Interests




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noted, a term for years was per-sonalty; for though an actionwas early devised by which thetermor recovered possession, hedid not have or recover seisin,had no real right, had no real action.

Although the distinction be-

tween realty and personalty, asit exists, is unfortunate, somedistinction is inevitable and de-sirable between movables andimmovables. This latter bulksunduly large in our law as a sur-vival from medieval Germaniclaw, in which it was a distinctionof primary importance; in thatlaw as in ours today there was adouble law of property. As re-gards possession, acquisition of ownership, real rights, the lawof pledge, of family estates, andof succession, it subjected im-movables to legal rules differentfrom those applying to mov-ables.1 Of the whole medievallaw it can be said that movableshave no duration and are not ca-pable of being mortgaged; mov-ables can be freely disposed of,whereas the alienation of im-movables is subject to everykind of restriction; debts are

payable out of movables but notout of immovables, for thiswould be an indirect way of alienating the latter. Movablescan be confiscated, but not im-movables, for the same reason;the rights of the husband orguardian are much more exten-sive over movables than over im-movables; the inheritance of movables is founded on the pre-sumed will of the deceased,whereas the inheritance of im-

movables is planned, taking intoaccount the rights of the vari-ous interested parties; . . .mov-ables are controlled by the-cus-tom of the domicile of theowner, immovables according tothe place where they are located.The majority of these rules wereunknown to . . . Roman legisla-tion ... This division of posses-sion corresponds to the eco-

nomic state of the early MiddleAges. 2 The development of feu-dalism only strengthened thecontrast, by giving land the pe-culiar and predominant positionabove indicated.

To some extent the varianttreatment of realty and person-

alty has resulted logically fromthe original basis of the distinc-tion between them. To a farlarger degree it corresponds tothe differences between mov-ables and immovables. Bothprinciples frequently appear to-gether. For example, leaseholdsare today regarded by many asobviously immovable becausethe land ishence their creationand incidents depend upon thelaw of the lands location; butfor purposes of devolution theleasehold is personalty. A con-sistent theory is impossible. Theoriginal procedural basis of thedistinction between realty andpersonalty has greatly alteredthrough the centuries. The dis-tinction between movables andimmovables is both meaninglesswhen applied to incorporealthings, and often of slight im-portance when applied to land

and corporeal chattels. Theconsequence is that the law iscomplicated by both distinc-tions. The first should be abol-ished, and the latter minimizedas it was in the late Roman law.There would then be one systemof property law instead of twosystems.

2. Some Obsolete and SomeEnduring Distinctions

(1) VARIANT RULES OF

DEVOLUTION. English publicpolicy of the feudal age led tovarying treatment of realty andpersonalty when the owner diedintestate. Title to the personaltywent to the personal represen-tative, and from and

through him, after adminis-tration of the estate, to the nextof kin. Title to the realty passeddirectly and instantly to the heir.

In half of the states of thiscountry since varying dates of the nineteenth century (none,apparently, before 1850) andin England since 1926the per-sonal representative takes pos-session or (in varying degrees)control of the realty, although

very rarely title thereto. In thefew states where he takes titleit is one qualified by coincidentinterests held by the heir or de-visee. In other states the lattertake full title, but subject to acontingent power in the per-sonal representative to sell forthe payment of debts, and inmost of them the power can beexercised only under an orderof the probate court.

Two of the common-law can-ons of descent excluded (a) allfemales and (b) all males savethe first born. Both of these weresuited to, though they did notoriginate in, feudal conditions.Both of them were suited to anaristocratic society, and their ef-fects were strengthened in thatrespect by the institution of en-tails. Doubtless because admit-tedly unfitted to a democraticsociety both canons have ceased

to exist in English law since1926. In this country primo-geniture prevailed in half of thecolonies until the Revolutionaryperiod, and in some other colo-nies the eldest son enjoyed adouble portion, but except per-haps in entails no trace of hispreferred status survived theeighteenth century. The prefer-ence of males over females, how-ever, had not wholly disap-peared at the middle of the nine-

teenth century.

(2) LIABILITY FOR DEBTS.Another distinction, long sinceabandoned, was the originalfreedom of land from claims bycreditors. Although the break-ing down of that exemption be-gan in 1285, a slow develop-ment ever since that time hasbeen required to bring to their




present inclusiveness andstrength the rights of creditorsagainst their debtors interestslegal or equitable, andwhether he be living or dead.

In England, although per-sonalty could be sold under awrit of fieri facias or execution

from 1285 onward, thecreditors right against hisdebtors land was, until 1864,merely to have his claim reducedby the rents and profits col-lected and sequesteredunlessthe debtor by his will chargedhis land with such debts and insuch order as he preferred; usu-ally he had not, himself, posses-sion of the land, but if he hadhe must account for receipts. Inthis country, as a result of anEnglish statute of 1732 whichgeneralized earlier develop-ments in Massachusetts andPennsylvania, lands have for twocenturies been dealt with onexecution much as has person-alty; and the power to deal simi-larly with lands of decedentswas more or less generally as-sumed in colonial and latertimes without statutory basis.Likewise the lien of mere judg-

ments was in some states as-sumed without statutory author-ity. All three of these practiceshave in this country becomeuniversal and statutory. Powersof sale are exercised, generally,alike by courts of law, of equity,and of probate. Traces, however,of the old English remedy of se-questering the rents and prof-its (extending the land under anelegit) still remain.

A creditor, merely as such,

has no interest in his debtorsproperty. Liens upon landsrarely upon personaltyare se-cured by judgment, and by ex-ecution; the duration and effectsof such liens depending uponeach local statute. Save understatutes the jurisdiction of eq-uity courts to deal with credi-tors bills was entirely depen-dent upon the existence of some

lien creating an interest in re-alty; and this was afforded by a

judgmentthe heir being liable,also (with the same result of lossof the land), for specialty debtsof his ancestor.

Even today many forms of real and personal property are

exempt. Both in sales under ex-ecutions and in the adminis-tration of decedents estates,however, real estate is still liableonly after the exhaustion of per-sonalty. This situation pre-sumably arises not merely fromthe laws inertia but from an un-varying judgment of what is so-cially desirable.

(3) VARIANCE IN THE LAWSREMEDIES PROTECTING THEM.

The freehold interests whichalone the feudal land law recog-nized were fully protected by agreat variety of writs, some (pos-sessory) merely based on rightto possession, some (droituralor proprietary) based on mereright, and writs of entry inter-mediate between the two pre-ceding. All of these were re-placed by a mere possessory ac-tion in England in 1833, and in

this country either professionalignorance or a reforming spirithad earlier accomplished thesame result. These variousrecuperatory remedies assuredthe specific recovery of land. Thesubstitution of ejectment for theold real actions reduced the costand delay of such recovery, andsummary remedies under mod-ern statutes have still furtherreduced them. For the protec-tion of chattels and leaseholds

a few remedies were only slowlyand painfully developed duringthe last four centuries of the me-dieval period, and even thenthey were very imperfect. Notonly did the variant protectiongiven to land and to other prop-erty create our double system of property law, but within eachform the remedies availablehave controlled the develop-

ment of substantive principles.The vastly greater social impor-tance of land in a feudal societyresulted in a correspondinglyfuller remedial system protect-ing it (and likewise in otherforms of special favor, such asits originally complete exemp-

tion from creditors claims); andit has been seen that this differ-ence in procedural protectionwas the origin of the differen-tiation of realty from personalty.

It is a commonplace of ourlegal history that much of thelaws older theory is only discov-erable from its forms of proce-dure. Illustrations of this truthhave appeared in the earlier dis-cussion of the relation betweenpossession and title, and of theuse of the common-law actionsfor their protection. But somefurther reference to the matteris desirable. As already indi-cated, even the medieval writsof right did not test or vindicatetitle in any absolute sense. Theydealt with relative seisins, rela-tive rights to have actual seisin.Nevertheless, these writs andtheir procedure dealt with theassertion of a mere right when

possessory remedies had beenlost, and they did distinguishbetween the simple assertion orvindication of titlealbeit rela-tive and claims for redressagainst specific injuries.3 Buteven this ceased long ago to bepossible in our law. Nearly allthe old real and mixed actions,possessory and droitural, wereabolished in England in 1833,and never had any actual exist-ence in this country. Ejectment

replaced all of them; and al-though it is substantially ouronly means of trying title toland, its peculiar remotenessfrom any concept of absolutetitle will appear in a moment.Similarly in the case of chattels,the law started withrecuperatory ideas, however lim-ited, in its actions of debt, deti-nue and replevin; but those




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ideas never held ground againstthe substitutional remedy of damages which characterizedassumpsit and trover; and thesetwo actions were rapidly displac-ing all others long before thecommon-law actions were abol-ished (in the second half of the

nineteenth century) in nearlytwo-thirds of our states. Thus,the distinction between pro-ceedings taken on a disputedclaim of right, and those takenfor the redress of injuries wherethe right was assumed not to bein dispute tends to becomeobliterated.4 This tendency wasaccentuated by other technicalchanges in the common-law ac-tions. Trespass, for the protec-tion of possession againstwrongful disturbance, has al-ways been an absolute remedy:no distinction has even beenmade between acts by the de-fendant for another or indepen-dently, nor any distinction be-tween his various possiblestates of mind. In detinue andreplevin all acts have been re-duced to onea wrongful deten-tion. In trover much old law hasbeen sloughed off, leaving req-

uisite but one act (to be sure oneof most uncertain content)wrongful assertion of defendants right to control thechattel of another. Thus, the lawof wrongful injuries is used totry questions of property right;with ideas of absolute liabilitystill supreme in trespass. Abso-lute title is never dealt with savein a few extraordinary situa-tions; relative right is only indi-rectly tested; alike in the work

of students and of practitionersthere is a slurring of rights, anexclusive attention to wrongsand remedies.

As respects ejectment its re-markable character must greatlyhave accentuated the generaltendency. The common-law dis-tinctions between real actionsthat were truly recuperatory,personal actions that merely

gave damages for breach of apersonal duty, and mixed ac-tions that returned both dam-ages and repossession of theproperty, had become somewhatconfused as early as the twelfthcentury. Into that system eject-ment never clearly fitted. It was

certainly long regarded as per-sonal, perhaps because (no truereason of the law) it was devisedto protect leaseholds, whichwere personalty. By it the termorregained possession; it wastherefore a true real action. Butlater it also gave the plaintiff damages, and became a mixedaction. This made it difficult tothink of ejectment as a true title-action. Another of its character-istics made this even more diffi-cult. To try disputes involvingfreehold titles it was made overin form by using John Doe andRichard Roe as fictitious tenantsunder imaginary leases of thefreeholders whose titles were indispute and who were the actualparties; the defendants sup-posed tenant having supposedlyousted the plaintiffs. But Doeand Roe could not be identified,hence the action escaped the

bar of the doctrine of res judicata: the same issue could betried over and over between thesame freeholders, because theDoe and the Roe might be dif-ferent. Hence, even as a trial of relative title the action becameutterly inconclusive. Until veryrecently one might have said, inLord Mansfields words of nearlytwo centuries ago:

In truth and substance, a

judgment in ejectment is a re-covery of the possession . . . with-out prejudice to the right, as itmay afterwards appear, even be-tween the [same] parties.5

Finally, the action tried titleonly against a wrongdoer in pos-session; one who was himself inpossession must resort to a billin chancery to remove from his

title clouds thrown upon it bythe claims of persons out of pos-session. Ejectment, therefore, asabove remarked, has alwaysbeen peculiarly far removedfrom a clear-cut action to trytitle. Its celerity and cheapnessrecommended it to litigants, and

possibly also its very inconclu-siveness. Certainly that qualityhas been entirely harmoniouswith the general qualities of ourlegal system.

Great changes, however,took place in the last century.In all the code states the land-lord became the real party in in-terest who alone could sue. Inall the code states, and by spe-cial statutes in other states, allfictions were removed from theaction by statute, thus subject-ing the judgment to the rule of res judicata (the decision bind-ing parties and privies). In stillother states legislation givesuch effects to the old style

judgment after two trials, or oth-erwise. Thus the action has beenmuch improved as one to trytitle. And some other advanceshave been made. The substitu-tion of ejectment for the old real

actions reduced, and summaryremedies under modern stat-utes have still further reduced,the cost and delay of such re-covery. The old ejectment andold bills to quiet title or removeclouds from title have in variousstates been combined in onestatutory action; and even moresummary statutory actions bywhich to recover possessionhave everywhere been providedfor special circumstances.

However the remedies be judged which existed for theprotection of land, those whichhave protected chattels havebeen much weaker. Title to themunder our medieval law wasweak. If one then voluntarilyparted with possession of achattel, he had a remedy againsthis bailee onlynone againstthird persons taking by delivery,




trespass, or theft from the bai-lee. But the only action availableagainst the bailee was detinue,which was recuperatory in ap-pearance but not in realty, sincethe defendant could be held onlyfor damages if the chattel couldbe secreted. If possession of

ones goods, on the other hand,was involuntarily lost there ex-isted, indeed, a criminal action(actio furti) that made possiblethe recovery of the goods fromthe thief or any subsequent pos-sessor, however innocent. How-ever, (and this long remainedtrue) the crown kept them; sothat remedy was also, as regardsthe owner, not recuperatory.

It was displaced by trespassde bonis asportatis, which ac-tionunless as used in the lo-cal courtsgave only damages,and could not be used at allagainst other persons than theoriginal wrongful taker. As fordetinue, which originally lay onlyagainst a bailee, by the late four-teenth century it had becomemaintainable against anybodywho wrongfully detained a chat-tel, no matter how he originallyacquired possession. However,

the precision necessary in de-scribing the goods (and in En-gland the defense of wager of law allowed the defendant untila century ago) made the remedyundesirable. Nor was it ever inthis country made trulyrecuperatory. Replevin likewisestarted with a narrow field, be-ing originally available onlyagainst a landlord who wrong-fully distrained for rent upon theplaintiffs chattels. In England,

although soon extended to anywrongful taking, it was not avail-able for merely wrongful deten-tion, but it became so in thiscountry early in the nineteenthcentury by judicial authority orby statute. Naturally, therefore,it generally superseded detinue,although not in our southernstates. It might apparently havebeen established as a genuinely

recuperatory action; but forsome reason the laws develop-ment was otherwise, the actionbeing everywhere regulated bystatutes, and these everywherepermitting the defendant to paydamages in lieu of returning thechattel. This result was further

accentuated by the developmentof trover. Since every wrongfultaking or detention included inthe facts required for the main-tenance of detinue or replevinwas also a conversion, and sincethose actions had become es-sentially actions for damages,like trover, that action verylargely superseded in this coun-try both the others.

Thus, precisely as in the thir-teenth century, chattels are to-day unprotected by any truerecuperatory action. In six cen-turies we have progressed little.It is for this reason that self-helpis uncurbed and still active inthe recaption of chattels.

The lack of such an actionseems to be the explanation of passages in the medieval YearBooks which attributed title totrespassers and thieves. For al-though it would have been in-

evitable, when there was suchwrongful seizure analogous toa disseisin of land, to regard theconverter, like a disseisor of land, as for most substantialpurposes the owner, it wouldhave been equally inevitable toheedhad they existedthedisseisees rights to recaption orof action. The difficulty was that,in any comparable sense, theydid not exist, for neither tres-passer nor thief fell within the

purview of the old replevin ordetinue. But even had those ac-tions been applicable, the dis-seisin analogy would have ledmen to think of ownership ashaving passed to the wrongdoerby his act, preceding the pay-ment of damages. We have seenthat even as to land the medi-eval law did not succeed inclearly separating the concepts

of title and possession. Even af-ter it became clear that title to achattel does not pass to a con-verter until after judgment ren-dered in favor of the owner, ithas cost much troubleandvery recentlyto establish theprinciple that in fact the title

passes only when the judgmentis satisfied.

The remedies just referredto were designed for the pro-tection of tangible, specificallyidentifiable chattels. The prob-lem of adapting them to incor-poreal personalty was one un-like anything presented in thedevelopment of remedies to pro-tect realty. Not the least of thedifficulties of protecting suchproperty, which is for the mostpart a product of complex indus-trial society, have arisen in thefield of criminal law. The verylimited list of common lawcrimes against property (almostwholly crimes against per-sonalty) have proved themselvesto be very inadequate as ananalysis of and check uponwrongful conduct under presentday conditions.

Equity has supplemented

the common law protection of both realty and personalty. Be-cause of their flexibility troverand assumpsit, the two great en-gorging actions of the law, wereloosely known as equitable; andsome of the general counts of assumpsit were deservedly char-acterized by Lord Mansfield asbills in equity in a more techni-cal sense. Every common law ac-tion was supplemented, andsome were profoundly influ-

enced internally, by the remedialsystem of the chancellor. Theoverwhelming importance of land in English society, and thefact that it alone could positivelybe recovered in specie, made itonce veritably unique in the

eye of the law, and it is onlywithin the last century that itsimportance has in England beenappreciably lessened. No doubt




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land was unique in England inthe eyes of the early law judges,too; but the law had no remedyto offer save damages; hencethe inadequacy of its remedy,and the basis for intervention bythe court whose proceduremade effective aid possible. Of

contracts for the conveyance of interests in land equity hastherefore for centuries com-pelled, when feasible, specificperformance. And since equityrarely renounces a jurisdictiononce gained, however greatlycircumstances change, the situ-ation is the same in this coun-try, even though land has neverbeen unique among us in thesense and to the degree that itwas unique in England, but verymuch more of a commercial ar-ticle. On the other hand thelaws substitutional remedy of damages, given in lieu of chat-tels when a contract for theirsale is broken, has always beenequally regarded by equity as asatisfactory remedy when ordinary chattels are involved. Butspecific performance is given of contracts for the purchase of unique chattels or for their use.

To quiet justified fears eq-uity uses the injunctionto pro-tect a reversioner against waste;to protect a possessor of landagainst unreasonable interfer-ence with his enjoyment of lifethereon (nuisances); to preventrecurring or continuous tres-passes that lie beyond relief atlaw. It is used to prevent simi-larly threatened torts againstunique chattels and interfer-ences with interest of personal-

ity; to prevent breaches of con-tracts for services of uniquequality; and (labor controveries)to prevent interference bystrangers with subsisting con-tracts of other persons. Thegreat modern expansion of theremedy has been outside theland law. Equity enforces agree-ments that cannot be enforcedat law regarding the use of land;

and to a slight degree this is al-ready paralleled in the field of personalty. There is the begin-ning of a parallel developmentin bills to remove clouds on thetitle to personalty. As will beseen in a moment even actionsto recover land and chattels

based upon purely equitablerights have had some recogni-tion.

This entire development evi-dences, of course, the deficien-cies of the common law reme-dial system.

The moral imperfections of that system are similarly evi-denced by the maintenance of equitable defenses against com-mon law actions or claims. Sincethese defenses have becomeavailable, legal title cannot pre-vail against an equitable titlethat is, the equitable right tohave the legal title. LordMansfield apparently thought anequitable title sufficient basisfor an action to recover land, butthe question is still an open onein England. In only a few statesof this country has suchprogress been attained, al-though it is overdue. There are

similar, but even fewer, in-stances of equitable replevin.

(4) THE RECORDING SYS-TEM. Under this system real andpersonal property are very dif-ferently treated.

As respects land (see page474), the idea of the system isto give to one who desires to ac-quire title security against op-posing title claims that are un-registered. Thus, all must reg-

ister instruments under whichthey hold land in order to besafe; and an intending pur-chaser must, in order to be safe,inspect all registered deeds of grantors in his chain of title, andtake notice of their contents. Butas respects personalty, fewtransfers are recorded, and suchas are so treated have only re-cently been brought under op-

eration of the system as exigen-cies demanded. The system,speaking generally, is designedto protect only subsequentgrantees (purchasers) of landas against earlier grantees whofail to register their deeds; notto protect subsequent creditors

against such unregisteredgrantees. In the case of per-sonalty, on the other hand, re-cording statutes have been de-signed to protect creditors quiteas much as subsequent buyers.

In general, the variant treat-ment of the two types of prop-erty is not to be regarded asmerely a survival of old atti-tudes, but as an independentpresent recognition of landsrelative rarity and dominant so-cial importance; and as due,also, to the inconceivable incon-venience that would result fromrequiring registration of the in-finitude of sales of personalty of little value, such as our dailypurchases of household sup-plies.

As a matter of fact we are insuch transactions almost alwayssecured by the honesty of themerchants with whom we deal.

They hold adequate title docu-ments; and the aggregate of thecommunitys daily transactionsin personalty vastly exceeds, pe-cuniarily measured, its transac-tions in land. The practice of making formal examination of title in one case (at very greatexpense) and not in the other isvery largely a matter of habit. Sogreat are the defects of the re-cording system in the case of land, and so great the risks run

notwithstanding any feasibleexamination of registered docu-ments, that our practices as toland can hardly be regarded asone satisfying the demands of intelligent precaution. Verymuch is taken on faith, as indealing with chattels.

Credit transactions upon thebasis of book-account assign-ments and trust-receipts have,




however, increased so enor-mously in recent years that theuniform acts prepared by theCommissioners on UniformState Laws have provided filingrequirements for these securitytransactions.

(5) MODES OF ALIENATION.In general, the distinction be-tween realty and personalty haslong been little emphasized inconveyancing. Somewhatgreater formality is required torid oneself of title to land; fortitle to chattels may be lost bymere abandonment, whereasthis is not true of land. That is,it is not true of corporeal her-editaments held of right, al-though incorporeal heredita-ments and the imperfect title of an adverse possessor may beabandoned. Since the passage of the Statute of Frauds a writinghas been necessary for thetransfer of any interest, with fewexceptions, in land; whereassuch has never been requiredfor sales of personalty of slightamount. By the Uniform SalesAct this amount is now fixed at500. Of course, the writings

used to transfer titlethe deedand the bill of saleare very dif-ferent in form; but the tradi-tional differences go far beyondpositive requirements. Varyingrequirements for the executionof proof of devises of realty andbequests of personalty havepractically disappeared.

In this country realty haslong been equally liable withpersonalty for debts; transfersof both have been, as above

pointed out, equally subject tonullification when in fraud of creditors; and realty, which wasnot subject in England to thedoctrine of reputed ownershipin bankruptcy proceedings, hasin this country been made sub-

ject to a substantially equivalentdoctrinenamely, estoppeloperating over a much widerfield.

The rule of Caveat Emptor has nearly disappeared from thelaw of chattels, but in the con-veyance of land it remains intact.The right of the contract pur-chaser of land to avoid the con-tract for complete failure of thevendors title does not (in this

country) exist before the timeset for performance. It is there-fore somewhat doubtful pre-cisely what is a complete failure;and, as to mere defects of quan-tity or quality, the doctrine isqualified by equitys doctrine of specific performance with com-pensation, even in favor of avendor. Aside from these diffi-culties, the contract purchaser,when the contract is silent onthe point, is entitled to a deedwith all the warranties usual inthe jurisdiction of the locus. Butif the purchaser accepts a deedcontaining less, his protectiondoes not extend beyond what-ever convenants, if any, it con-tains. He cannot recover thepurchase price paid, on theground that the considerationtherefore has failed. And thereare no implied warranties in anyactual conveyance of land. The

strong tendency in the law of sales of personal property towiden and strengthen warran-ties, is paralleled by an equallyplain tendency (in the UnitedStates) to make all covenants fortitle available to remote grant-ees of land; that is, to minimizethe common-law distinction be-tween those covenants whichdo, and those which do not,run.

3. FixturesThe inconvenience of the

distinction between realty andpersonalty is strikingly illus-trated by the doctrine of fix-tures. When a movable is firmlyattached to land there results,subject to qualifications, a con-version of personal into realproperty-as a contrary conver-sion results when trees or

marble are severed from theearth. Therefore, subject still toqualifications, a shift of title re-sults if the chattel and land be-long to different persons and if the chattel is affixed by itsownerfor if it be affixed bysome mere wrongdoer the ma-

jority of courts have held thatthe owner keeps his title,though a minority have not. Thelaws original rule was that theconversion and the change of title necessarily followed: every-thing affixed to the soil becameparcel thereof; and fixtures werethese things, originally chattels,which became realty by such an-nexation. This is the definitionstill given of fixtures by somewriters, and the sense in whichit is frequently used in judicialopinions; and this meaning, be-cause the literal meaning, seemsmost acceptable.

As early as the fourteenthcentury, however, a relaxation of principles became visible whenchattels were affixed for pur-poses of trade; after the right todetach these was conceded as amatter of public policy to pro-mote trade, a like favor was al-

lowed termors who affixed chat-tels, particularly in houses, asornaments or for personal com-fort and greater enjoyment of the premises. All litigation inthis field necessarily presentsthe question whether there hasbeen a definitive fixation of achattel, thereby madeinseverable, or only as it were apseudo-fixation, temporary orprovisional, that does not forbiddetachment. Now Chancellor

Kent, at least a century agostated that the courts had madethe right of removal almost . . ageneral rule, instead of being anexception,6 and it is perhapsthe detachable chattel that ismost generally known today asa fixture, precisely reversingthe original meaning of theword.

In the case of a chattel be-




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fore attachment and again afterseverance, the law has not beenwholly consistent in treating iteither as land or chattel duringthe attachment. But the formeris the better view, and more con-sistent with the precedents.

When the question whether

attachment was definitive arosebetween the common-law heirand the kindred of an affixingowner in fee, the former waslong accorded preference, undera maxim that the law favors theheir, which finds illustration invarious fields of the old law. InEngland, too, the privilege earlyconceded to trade tenants of re-moving trade fixtures was neverconceded to agricultural ten-ants; presumably because the

judges, almost all of whom forcenturies were of the landedclass, considered public policyas plainly against the latter con-cession, as it was in favor of theformer; although Parliament, ina more democratic age, has es-tablished the privilege by legis-lation that began in 1851. In thiscountry there should never havebeen any such distinction; andauthority on the point, although

scanty, seems all opposed to it.Partly because some agriculturalproductssuch as plants raisedfor saleare clearly removable;partly because many such prod-ucts are removable as emble-ments; partly because of theloose inclusion under the termfixtures of many things treatedas chattels, but really never af-fixed at all; and partly becauseeven some true agricultural fix-tures are difficult of distinction

from trade fixturesand tradehas come to be substantially anygainful occupationit is prob-able that there exists a practiceof removal much broader thanthe base of decisions supportingthe right. Again, since in thiscountry heirs and next of kinhave so long and generally beenidentical, the old favor to theheir could not properly exist, al-

though English precedents haveto a surprising extent beenblindly followed by our courts.The question has also con-stantly arisen between the per-sonal representative of tenantfor life and the reversioner or re-mainderman, and between the

owner of land and his grantee,or contract purchaser, or mort-gagee. The decisions in all thislitigation, great in amount, re-veal few definite principles. Onecannot say that under ourpresent social policy all claim-ants are equal; for a bona fidepurchaser enjoys a general pref-erence, and legislation has alsocreated various arbitrary priori-tiesfor example, in favor of mechanics liens; moreover, infinding intent the relation of the parties is made the basis of various assumptions that affectthe result, in which assumptionslogic seems to be blended withpublic policy. It is only possibleto say that whether or not achattel is a fixture depends pri-marily upon the intention of theparties, and only secondarilyupon physical facts. The appli-cation of these two tests is very

difficult.By definite agreement of both parties the character of chattels actually annexed toland can generally (though notin some states) be made whatthey choose as between them-selves; as when a chattel mort-gage is given of things actuallyannexed to the land, or when acontract vendor reserves title tochattels which the buyer, withthe sellers consent, thereafter

affixes to land; or when one bylicense affixes chattels toanothers land. Conflicting prin-ciples make difficult the ques-tion whether such agreementsbind third persons.

Suppose a chattel is affixed,but title is agreed to be not inthe landowner. Now, on onehand, a would-be buyer whogives money in good faith to a

person who is not the owner or-dinarily secures no title to eitherland or a chattel (pp. 68, 111,152); how, then, can the land-owner in the case supposedpass title (either outright or byway of mortgage or even passa mortgage lien) to the chattel

affixed but owned by another?Yet, in the great majority of states such a grantee of landwith annexed fixtures acquirestitle to these. Statutes havemade some exceptions to thegeneral rule first stated: anotherexception is, in effect, made inthis situation by judicial legis-lation. Recourse is had to thefact that a conveyance of landby the holder of only a naked le-gal title, to a purchaser for valueand without notice of equitiesavailable against the grantor,gives such purchaser perfecttitle. The affixers legal title istreated, in disregard of strictprinciples, as a mere equityei-ther because he is charged witha misrepresentation to the pur-chaser of the land or from a ten-dency to ignore all unrecordedclaims to realty.

Regarding the parties indi-

vidually, it is of course the ownerand affixers intent that is mostimportant. His claims may bebarred by application of therules that a deed shall be con-strued against a grantor, andhence against a mortgagor (nomatter whether conveying titleor lien); although the basis forthe strict rule prevailing in thesecases is often overlooked. Whenhis claims are not so foreclosed,his intent, or an implied agree-

ment, may be inferred. If found(1) from the intimacy of fixation,this must be reasonably consis-tent with the alleged intent,there being no fixture resultingfrom bare intent without annex-ation, and nothing actually an-nexed remaining a chattel if sev-erance is impossible withoutmaterial damage to the land. Or(2) the annexers intent may be




inferred from his relation to thelandan owner might morenaturally intend permanent an-nexation than would a tenant;or from (3) the character of thething, as either lending itself toremoval and use elsewhere or,on the contrary, as better

adapted to a permanent loca-tion. The varying emphasis uponthe physical test leads on thathead to bewildering and some-times ridiculously in-consistentdecisions. The other test is evenmore difficult. Both are appliedas presenting mixed issues of law and of fact.

Owing to the prevalent cus-tom of using the word fixturesto indicate severable chattels, itis also very common (a) to in-clude under that rubric thingswhich neither historically norlinguistically have any relationto fixtures properly speaking.That is to say, things are calledfixtures (and go with the land)which neither are nor ever wereaffixedas keys, fish in pondsand deer in parks, piled fenceposts, and piles of manure pro-duced on the land. Likewisechattels once affixed but tempo-

rarily severedas the screensand blinds of a house, gardenpoles, and doors and windows.And as these things are said tobe constructively annexed, inorder to bring them under theprimary meaning of fixtures asthings affixed, likewise (b) manythings are said to be construc-tively severed in order to bringthem within the secondarymeaning of the term. Logically,none of these things should

have been regarded as fixtures,but all should have been treated,like emblements, indepen-dently. Linguistic usage, how-ever, in this country, has ignoredlogic for over a century.

4. Equitable ConversionAlthough there cannot be an

actual physical transsubstan-tiation of money into land, yet

as realty and personalty are onlyconceptsit is possible to shiftthings from one classification of property to the other. There areseveral varieties of conversion,and that which is called equi-table must be distinguishedfrom the others.

(1) Actual conversion resultswhen a chattel becomes realtyby annexation to, and whenmovables are created by sever-ance from, land. (2) It is also con-stantly said by courts that landwhen sold is converted intomoney and the money into land;meaning, that one type of prop-erty is replaced by the other. Inaddition (3) there may exist whatis known as equitableor, sinceits application is no longer con-fined to chancery courts, con-structiveconversion; that is tosay merely conceptually, for thepurpose of applying rules thatwere first developed in chan-cery. In other words courts maytreat either type of actual prop-erty as being already what theowner intended it to become;more accurately, as if the sub-stitution just referred to had

taken place. This is called eq-uitable conversion. Or a courtmay refuse to recognize the ac-tual substitution (which law per-force recognizes) in the secondcase above mentioned and treatthe money as if it were still land,and the land as if it were stillmoney; and this fiction is calledre-conversion. In England eq-uitable conversion was oftenresorted to in order to removeland from the common-law rules

of inheritance.

(a) Equitable conversion bya contract for the conveyance of land in exchange for moneycomes into play when one of theparties dies before the perfor-mance date and the property, forpurposes of devolution, istreated as already altered in na-ture.

(b) Equitable conversion by will arises from a testamentaryorder that lands be sold orbought by the executor not amere power to sell, nor mereprocedural instructions, but animperative and unconditional di-

rection, express or necessarilyimplied. Of course, propertyonly constructively converted re-mains taxable and alienable ac-cording to its actual nature. Aconversion may be complete, orout and out; but if made for aspecial purposeparticularlythe sale of land to pay debtsthere is, notionally, a conversiononly to the extent which thatpurpose requires. That is, theresidue of purchase moneywhich would go to the personwho would have taken the land.

(c) Equitable conversion mayalso result when land is acquiredby a partnership for firm pur-poses. Since the partnersshare is only a right to sharemoney remaining after all assetshave been sold and debts paidfrom the proceeds, the land isin England and in some of our

states treated as personaltyexcept that its devolution de-pends upon the legal rules gov-erning realty. That is, it istreated as personalty as be-tween living partners, or be-tween living partners and theheirs and personal representa-tives of a deceased partner, orbetween the heirs and personalrepresentatives as regards suchdecedents share. But the gen-eral American rule recognizes

no such conversion in the ab-sence of a partnership agree-ment to that effect; that is, apartners interest in firm prop-erty is realty. To this principlethere is a qualification. Partner-ship property being primarily li-able for firm debts and inter-partner claims, the legal title of any firm land held by an indi-vidual partner devolves upon his




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death subject to a trust, and istreated as personalty when nec-essary for those purposes; butthen there is an actual sale. Un-til then, the firm has only anequitable interest in such land.And the share of the dead part-ner in the firm realty is, in view

of the substantial nature of hisshare above stated, likewiseonly equitable. However, if onepartner, in settling the affairs of the firm and in good faith, actually converts firm realty intopersonalty, or vice versa, to anextent which is not required bythe adjustment of claims, theexcess retains the legal charac-ter so given to it.

Finally, outright conversion,fictionally, of firm realty into per-sonalty for all purposes resultsfrom an agreement of the part-ners to that effect. The word conversion need not be used northe process contemplated.

Upon the fact of conversionmay depend the taxability of theproperty according to its natureas real or personal, or the rateat which or state in which it istaxable. The issue of conversionis necessarily involved in the ad-

ministration of the estate of adecedent who has made a con-tract (unexecuted at his death)such as above indicated, or whohas in his will given such an or-der as that above indicated, orwho has been a member of apartnership.

The simplest applications of constructive conversion are puz-zling; but particularly in thesettlement of decedents estatestheir combination with other

subtletiesthe distinction be-tween real and equitable assetsand the doctrine of marshallingresults in a procedure that is of formidable difficulty. The prob-lem is covered by local statutes.

5. Persistently VaryingTreatment of Realtyand Personalty

It is quite evident that so far

as the distinction between realtyand personalty coincides withthat between immovables andmovables some distinctions be-tween them are necessary andothers desirable.

For example, there must bedifferences in mere legal pro-

cedure, such as the attachmentof the movables of a debtorlikely to remove from the juris-diction property subject to ex-ecution, or the garnishment of his credit claims. His land, obvi-ously, is always available tocreditors. The remedies forwrongs done to property of thetwo types must perhaps varysomewhat; but the lasting influ-ence of the common-law actionsundoubtedly leads us to lookupon many distinctions as un-avoidable which in truth arosemerely from medieval conditionsor attitudes.

Again, land being immov-able both convenience and thedoctrine of territorial sover-eignty have always dictated thatits taxation, the creation andalienation of interests therein,and the rules determining suc-cession to the owners rights

upon his death intestate, shouldbe controlled by the law of thesitus. With movables the situa-tion was very different. As a re-sult of a complicated historicaldevelopment their regulationwas until very recently con-trolled by the law which deter-mines the owners personal sta-tus, namely the law of his domi-cil; which in England and in thiscountry is the place where onehas ones habitual home or

place of residence, with nopresent intention (rare excep-tions aside) of leaving it. In thiscountry cases of variance be-tween an owners domicil andthe place where his property islocated have been excessivelyfrequent, and variant treatmentof his land and chattels equallycommon. But in very recent dec-ades the current of decision has

run very strongly against the oldview, and it is evident that theprinciple will soon be authorita-tively established that the law of the situs should control corpo-real chattels whenever attribu-tion to them of an actual ha-bitual location can possibly be

made. Land and chattels arethus becoming increasingly sub-

ject to a common rule. Only inrare cases is there doubt eitherof the habitual location of cor-poreal chattels or of theirowners domicil. When difficul-ties do exist, however, proof of domicil is, because of the men-tal element, likely to be moreperplexing; and the situs rulehas the advantages of avoidingthis, and of spreading succes-sion taxes more widely amongthe states when the owner dies.Nevertheless, in administrationcases, the greater convenienceof the domiciliary rule is shownby the actual practice of thecourts of the situ:, which in thevarious states where chattels arelocated habitually apply the do-miciliary laws to succession.

On the other hand advan-tages seem clearly to favor, and

indeed to require, continuanceof the rule that incorporeal chat-tels should ordinarily be con-trolled by the law of the ownersdomicil as respects distributionon death, succession taxes, andgarnishment. But even here thecourts more and more find anactual situs of such property,particularly if used in businessaway from their owners domi-cil.

Likewise, it seems conve-

nient to permit of abandonmentof title to movables by (for ex-ample) renouncing possessionwith that intent; and equally con-venient to apply that doctrine toinchoate titles to corporeal andincorporeal hereditamentsgained by adverse possessionand adverse user, but desirableto deny its applicability to otherinterests in land.




It has likewise seemed con-venient to record interests inland and to require for the trans-fer of such interests a publicityand formality not required in thecase of chattels, although mod-ern problems are lesseningthese differences between the

two forms of property.It is very difficult, however,

to determine what distinctionsare socially desirable. Whetherland or chattels should be pri-marily liable for debts is a ques-tion which, apparently, shouldpermit of an easy answer. Forexample, in 1808 Illinois pro-vided by statute that a debtormight elect to offer either landsor chattels in satisfaction of anexecution, and in 1845 wasready to break more completelywith tradition by an enactmentthat lands should be taken first;and for a frontier state wherelivestock and household belong-ings were rare and precious, andwild lands abundant and cheap,that seems a perfectly reason-able view. Yet it seems remark-able that perhaps no other staterejected the rule which aroseunder the economic conditions,

and was adapted to the views,of a society totally different fromthat of this country; !t is equallyremarkable that Illinois has ad-hered to its rule notwithstand-ing that her social interestsmust long since have become in-distinguishable from those of neighboring states that neverdeparted from the common-lawrule. Similar remarks may bemade upon the peculiar Pennsyl-vania rule (since 1813) which

denies extension of a judgmentlien to after-acquired lands.

But very many minute dis-tinctions between the two typesof property remain without ba-sis in necessity or present con-venience. They are residualtraces of rules supposedly onceadapted to conveniences of longpast times. So, for example, inthe long struggle between the

heir-at-law, representative of alanded aristocracy, and hisancestors creditors who desiredto subject land to their claims,the heir was long ago van-quished in this country; yettraces of his former pre-eminence linger as absurdities

in our present lawas in thedoctrines of constructive con-version (seemingly due in gen-eral, and some of its illustrationsclearly so, to that struggle) andof fixtures above referred to.The rules of marshalling seemalso to preserve distinctionsthat are, in our society, inept.

6. Tendenciestoward Unification

The distinction between re-alty and personalty is one of thetwo causes that have producedinfinite complexity in our prop-erty law; although, as alreadypointed out, its, most deplorableincidents did not spring directlyfrom the distinction, but fromthe different rules of descentand distribution that were basedthereon. The distinction origi-nated in an historical accidentof procedure which was substan-

tially corrected centuries ago. Itspractical importance, and al-most its existence, dependedupon a rule of inheritance, longsince abandoned in this coun-try, of an ancient society thathad even earlier disappeared.For centuries the necessity of their constant comparison hascounseled amalgamation of thetwo forms of property, and therehas been steady progress to-ward the end. In a country domi-

nated by a landed aristocracysuch a consummation was im-possible, but both in the UnitedStates and in modern Englandit has been to an encouragingextent realized.

In this country land has al-ways been a cheap and com-mercial commodity. It has longbeen equally subject with chat-tels to the payment of debts;

and exemption of the home-stead is merely the equivalentof exemptions of a workmanstools or wages. For over a cen-tury and a half the country hasbeen substantially clear of theEnglish canons of descent; sincea century ago in a majority of

our states real and personalproperty of intestates have goneto the same persons and in thesame proportions, under rulessubstantially those of old En-glish statutes regulating the dis-tribution of personalty. Amongus, therefore, there has neverbeen justification for any differ-ence between heirs and next of kin; nor therefore excuse eitherfor the existence of varying rulesof descent and distribution orfor withholding realty from thepersonal representative. What

Judge Dillon said in 1894 7 couldhave been said with completeaccuracy at any time in the nine-teenth century, and with slightqualifications at any time in ourhistory:

Real property with us doesnot serve as the foundation forpersonal distinction or family

grandeur, and is invested withno peculiar sanctity. Its uses arethose of property simply. It is anarticle of commerce, and its freecirculation is encouraged. Thedivision of property into real andpersonal, whereby each classpossesses distinct qualities andis governed by different rules asto acquisition, mode of transfer,devolution, etc., is largely, al-though not wholly, artificial; andso far as it is artificial it must

be abrogated, and the law of realand personal property made, asfar as practicable, substantiallyuniform, and thereby simpli-fied.

Of the five great distinctionsnoted above (see pp. 7388) thefirst two should wholly, or al-most wholly, disappear. Thethird distinction should be re-




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moved except so far as mov-ables demand special procedurebecause of their mobility. In par-ticular it should be lessened byprogress toward specific perfor-mance of contracts for the saleof personalty; and a consider-able step in this direction has

been taken by the Uniform SalesAct, which has been adopted inthirty-three states. It seems veryclear that systematic reform of property law will be based uponcontinued assimilation of thetwo types of property. Thiswould accord with social andeconomic conditions in thiscountry, and is already far ad-vanced by casual and piecemeallegislation or by judicial innova-tions.

A sure remedy for the recov-ery of chattels in specie shouldbe provided (in which case theywould also become real prop-erty in the old sense), and noman should be forced to sellthem to a wrongdoer at a jurysvaluation. Some transactions in-volving chattels should un-doubtedly be brought within theprotection of the recording sys-tem, in addition to those which

it already covers (page 465); butboth as regards this and as re-gards some differences in trans-fers of title, including distinc-tions under the Statute of Frauds, the treatment of landand other property must remainsomewhat different.

It is not always easy to saywhether a given type of propertyis properly to be classed as re-alty or personalty; and sometypes are classified differently

for different purposes.

II. LEGAL& EQUITABLE INTERESTS

1. Origin of the DistinctionMuch of what was developed

in the chancellors court as eq-uity had earlier analogues inremedies of the common-lawcourts. Much of it, also, it has

been thought, need not have de-veloped if the chancellors ad-ministrative office had usedboldly the powers conferred onit by the Statute of WestminsterII (1285) to develop new actionson the case. Still, the law hadhad at its disposal. hundreds of

writs, yet it could not give satis-factory justice; and the failureunder the Statute of Westminster was perhaps prima-rily caused by the rigid plead-ing required under all writs bythe judges, rather than by iner-tia in framing writs. What weknow of the conditions underwhich injunctions and specificperformance developed justifiesone in believing that equity didin fact originate, as has beenstated countless times, in at-tempts to correct the rigor andsupplement the deficiencies of legal rules, and also to do jus-tice where for other reasons,such as the intimidation of ju-ries by local magnates, the lawcould not. It would therefore doinjustice to equitys whole de-velopment to accept literally thestatement that the principleEquity acts upon the person is,

and always has been, the key tothe mastery of equity 8 al-though that is the complete keyto its administrative processes,and therefore to much of its suc-cess, and consequently to muchof its growth. The real key to anunderstanding of equitys prin-ciples is the fact that circum-stances alter cases; as LordEllesmere stated in 1615, and asAristotle had pointed out, andas all men are sufficient philoso-

phers to recognize. And con-stant attention to that truth putequity on a higher moral planethan that of the common-lawcourts. Equity was no body of ancient tradition, but grew bythe deliberate fashioning of doc-trines to control, on a generalprinciple of emergency, the op-eration of the common law, ei-ther to avoid hardship by con-

fining or to enlarge justice byextending the working of itsrules. That it gave a completerand a better justice explains itsorigin, its continual expansion;indeed, its continued vitalityeven today. Its superiority haslong been so manifest that very

much of legal reform lies in aprogressive subordination to itsdoctrines of conflicting legalprinciples.

2. General Relationof the Two Systems

The natural (though not in-evitable) consequence of thefact that equity has always dealtprimarily with property has beenthat nowhere else has it checkedand displaced legal principles sogreatly as in the field of prop-erty. A very great authority hassaid:9

The Courts of Law... neces-sarily held, that where the lawwas silent, no person ought tobe disturbed, and that any suchdisturbance was equally a viola-tion of the law . .. as the takingaway a right which was posi-tively given by the law. The

Court of Chancery, in the exer-cise of . . . [its jurisdiction basedon principles of equity and con-science] . . . necessarily in someway interfered with the co-exist-ing state of law, positively ornegatively, and affected the con-dition of some party relatively tohis legal rights. This was donein various ways. The court insome instances infringed uponsome legal right of enjoyment,or of action, or of defense; some-

times it gave and enforcedrights unknown to the law;sometimes it extended or variedthe remedies given by the law;sometimes it found itself obliged to usurp, as it were,upon the law in giving a remedy,where one might be obtained atlaw, and in some instances itafforded means for the enforc-ing or protection of rights be-




yond what could be obtained bythe ordinary course of the law.

The accuracy of these asser-tions is illustrated in infinite de-tail in our case law. Indeed, thefacts are notorious.

It is true that in some fields

equity merely aided or sup-plemented the common lawsrules and remedies respectingproperty and those claiming in-terests therein. But if one ac-cepts the test stated above bySpence, such instances are notnumerous.

When Chancery actually re-vised partitions already com-pleted at law, this was a directdenial of legal rights just de-clared and made of record. Eq-uity led in according to villeinsrights against their lords whenat law they were rightless. Wasthis not a contradiction of thelawuntil it followed and tookthem under its protection? Whenequity went beyond the law increating equitable waste (seepage 228) it encroached upon afield of legal liberty. As LordHardwicke stated in one of thesecases, I always incline to ad-

here, as near as justice will admit, to the rule equitas sequiterlegem; and in another, Whenthe court finds the rules of lawright, it will follow them, butthen it will likewise go beyondthem; and in another, Courtsof equity will break in upon thecommon law where necessityand conscience require it.10 Onthe basis of fraud, accident, andmistake equity has exercised

jurisdiction over the legal right

or interest itself, by extinguish-ing, shifting, or controlling it, asregards tangible property, realor personal, and rights of action,without introducing any coexist-ing equitable title.11

The common law made thewealthiest woman virtually apauper by the act of marriage,but equity gave her relief underthe doctrine of separate prop-

erty. No one could deny that,in substance, the law took herproperty from her and gave it tothe husband; how can one denythat, in substance, equity tookit in turn from him and restoredit to her? Equity forbade a mort-gagee to enforce a forfeiture for

non-payment precisely on thedate due. It restrained the en-forcement of judgments whosefruits would be property, andeven restrained actions assert-ing rights of property. As re-gards various uses of propertytolerated liberties, at least, un-der the lawit provided the pre-ventive weapon of the injunc-tion. Indeed, in all the abovecases it clearly cut down eitherthe actual incidents of legal titleor extra-legal liberties respectedby the law.

Particularly, seizing uponthe distinction between title andits beneficial content, by its doc-trine of uses equity circum-vented and nullified the prop-erty laws two most fundamentaldoctrines, those of tenure andof seisin, and their various con-sequences (pp. 396, 402). Thepreamble to the Statute of Uses

was a wholly justifiable indict-ment. And when, after most of the equitable consequences be-came legal doctrines by thatStatute, uses revived in morelimited (but, as they have cometo be today, nevertheless im-mense) extent as trusts, theycontinued to be chancerysmost violent invasion of thelaw. For through that institute,as Spence says, equity

introduced a right of enjoy-ment of property distinct fromthe legal right, and has madethe legal right subservient tothis beneficial title to enjoy-ment, and regulated the exer-cise of the legal title in referenceto the beneficial title, accordingto principles of its own; thus es-tablishing a distinct right of en-

joyment of property ... founded

on a title purely equitable, ...depriving some party of thecommon-law rights incident tolegal ownership, and giving tosome other party rights over theproperty not recognized by thelaw.12

Moreover, by extensions of the trust concept, it laid hold of other whole provinces of thelaw.

Manifestly, the law courtsduring equitys infancy regardedthe chancellors jurisdiction asconstantly conflicting with thelaw, although Coke admittedequity to be a just correctionof law in some cases. 13 As St.Germain put it, Equity takethnot away the very right, but onlythat that seemeth to be right bythe general words of the law ...Equity followeth the law . . .where right and justice re-quireth; notwithstanding thegeneral rule of the law be to thecontrary.14 This view was doubt-less the accepted rationalizationof chancerys powers in 1523,but it is impossible to view it asother than sophistry, in view of equitys justified boast that it

looks through form to sub-stanceon which principle trulyrests much of its moral contri-bution to the administration of

justice. For transparently, inpoint of substance, a legal rightconsists wholly in the beneficialuses that may lawfully be madeof it.15 Such pleas of confessionand avoidance as St. Germainslater gave way to the more cleverformula used by Lord Ellesmere:that equity, as Coke truly con-

tended, did not act upon nor af-fect the legal rightand there-fore law could not complain if itdid act in personam, throughthe corrupt consciences of re-spondents. This proved to be forthe chancellor an impregnable,albeit sophistical, defense.

In recent years there hasbeen much discussion whetherequity has collided with law and




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even nullified legal doctrines, orwhether it was powerless to dothat, did not conflict with law,and constitutes a mere mass of addenda to the laws principles.Certainly it is not a self con-tained independent legal sys-tem. But it is more than a body

of addenda to the non-equitylaw, for displacements and nul-lifications cannot be regarded asmerely glosses of primary rules.

In thirty states of this coun-try the administration of whatwere once law and equity is en-trusted to a single court in whichthere are only civil actions, theold-time distinction between ac-tions at law and suits in equitybeing abolished. The merger of substantive law and equitywhich such unified administra-tion might have been expectedto produce has been retardedand minimized by a judicial viewthat the distinction between le-gal and equitable rights isindestructible. This is true onlyin the sense that history isindestructible. Since the rules of the two systems often conflict,and since the equitable right al-ways prevails when they do con-

flict, that is clearly the only ulti-mate or true rule of our legalsystem, the only true legal rule.The devitalized and im-posturous rule of law, oncedominant, is necessarily an-nihilated. Of course it may stillbe called equitable to indicateits origin, or to indicate that itretains from such origin pecu-liarly equitable characteristics.This is useful. On the otherhand, the continued use of the

label retards realization of thefact that the equity rule has be-come also that of the one-timenon-equity portion of our legalsystem.

This diffusion and domi-nance of equity progressedthrough the establishment of equitable defenses to legal ac-tions. The phrase has become amisnomer except as a historical

label. At one time a person suedin ejectment for land which theplaintiff had contracted to con-vey to him could go into equity,secure specific performance,and then plead his new legaltitle if secured in time, or havecontinuance of the action en-

joined if it was too late to makethat plea, or have enforcementof the judgment enjoined if al-ready rendered against him.Such affirmative procedure inequity was really only a defense(except in a narrow pleadingsense), and a truly equitable de-fense, to the law action. Hence,when in all the code states andin many others (all today) stat-utes enabled the defendant atlaw to plead his equity directlyas a bar to the further prosecu-tion of a legal action, the nameequitable defense was natu-rally continued, although theequity was now in fact a legaldefense.

Such defenses were first de-veloped by equity in the field of specialty contracts (incorporealpersonalty) and only much laterin the field of realty.

It has already been pointed

out that although the merger of law and equity should logicallyhave proceeded in the codestates to the point of permittingaffirmative action at law uponwhat was formerly only an eq-uity, this development has noteven there been attained; and of course in other jurisdictionsspecial statutes would be nec-essary to at-tam it. Moreover,some equities have been muchmore uniformly recognized than

others as legal defenses, andtheir recognition has been car-ried farther. The result has beencharacterized as chaotic. It is,for example, not at all true thateverywhere a defendant in eject-ment can defeat the plaintiffslegal title by pleading an equityfor reformation of a deed essen-tial to plaintiffs claim, or a con-tract entitling him to get

plaintiffs title by specific perfor-mance, or even a decree of spe-cific performance already ren-dered, much less by pleading atrust in defendants favorthatis, that equity would regardplaintiff as trustee of the landfor defendant. Difficulties of old

procedure, and particularly con-fusion as to the role of the juryunder such pleadings, havebeen great obstacles in the wayof merger.

As has been said with regardto the continued assimilation of real and personal property, soalso as respects the relation of equity to law it seems clear thatsystematic property reform inthis country should continue thestrong tendency hitherto pre-vailing toward an increasingdominance of equitable prin-ciples in our legal system. Thecontrary attitude of the recentstatutes reforming the Englishproperty law must seem to anAmerican reactionary. A host of what were for centuries legalinterests have, under those stat-utes, been made henceforth eq-uitable; and with few exceptionsall equities are made ineffective

against a purchaser of the legaltitle, even though he have priornotice thereof.

Something must thereforebe added regarding the doctrineof bona fide purchaser for value.Two matters, likely to be con-fused, are constantly denomi-nated by the preceding words.One is a technical doctrine of purely equitable origin and eq-uitable application. The lan-guage is equitable in origin. In

equity a purchaser is, as oftenused, one who is not a volun-teer, without adding for value;a volunteer being, in equity,not one who offers to give or dosomething for nothing but onewho wishes to take somethingfor nothing. And a purchaseris, secondly, one who actuallyacquires legal title. A personwho gives money in good faith




expecting to get title, but whoreceives none because his ven-dor has none to convey, is onlya would-be purchaser, not-withstanding that the courtsconstantly call him a purchaser.Equity follows the law and doesnot contradict the fundamental

legal principle that generally onecan only convey such title as oneholds. As already pointed out,however, the law, acting (understatute or independently thereof in different cases) upon ideas of

justice which are equitable ina loose sense, abandons its fun-damental dogma in some casesand makes a true purchaser of one who otherwise would havebeen but a would-be purchaser(pp. 68, 92, 371).

This is a matter quite dis-tinct from the equitable doc-trine, although the influence of the latter may have been potentin the other. The equitable doc-trine is an illustration of equitysrespect for legal title. It is this:that a purchaser for value (in thesense above explained) of thelegal title, who takes this with-out notice of existing equitiesagainst it, is a bona fide pur-

chaser thereof and will hold itfree of such equities. They arecut off. But the absence of goodfaith does not mean the pres-ence of literally bad faith. No-tice is knowledge, reason toknow (inquirystimulatingfacts), duty to know, and notifi-cation (notice based on formal-ity).16 Value generally includesa pre-existing debt, and theamount is important only as itbears on the claim of good faith;

even promises to pay have bysome courts been deemed suf-ficient.

There has been much dis-cussion in recent years of the ra-tionale of the doctrine, and opin-ions are much divided. The longunchallenged view was thatequitys end was to restrain cor-rupt consciences, by maintain-ing attaching equities against

buyers taking with notice. An-other view is that equitys ob-

ject was rather to reward, bynullifying the equities, thosewho bought with a good con-science. From this point of viewwhich is merely the ob-verse of the other (unless, as a

mere matter of words we statethe second object as one to pro-mote commercial transactionsby clearing titles of qualifica-tions)the equitable doctrinemust have influenced the devel-opment of the legal doctrine justreferred to.

Dispute has centeredmainly, however, on the ques-tion whether the equities thuscut off are rights in rem or inpersonam This question has, in-herently, nothing whatever to dowith the doctrines general na-ture or purpose. They becameneedlessly entangled because of the contention of Langdell andAmes that an equity (or a legalright) in rem must be goodagainst everybody, and there-fore such an equity must begood against a bona fide pur-chaser of the legal title; where-fore the equities cut off must be

rights held personam But thiswas a misconception. The viewis steadily strengthening thatmany equities are held in rem,although both legal and equi-table rights in rem may be cutoff.

III. OTHER CLASSIFICATIONS

1. Normal OwnershipNormal ownership is of legal

interests, and the holder of thetitle ordinarily holds it for hisown benefit. Also, ownership isnormally in one person, ordi-narily confers present enjoy-ment of property, and enjoy-ment under it is ordinarily sub-

ject to no conditions or re-straints other than those whichpublic policy imposes uponproperty owners generally.

2. Abnormal OwnershipThere are various exceptions

to the normal situation juststated. In particular there arethe following exceptions of great importance. The first, isthat of equitable interests, dis-

cussed in the preceding section.Where such exist, ownership(whether legal or equitable) isnot held for the benefit of theowner but for that of the equi-table beneficiary, under equi-table principles.

The second is that of estatesof postponed enjoyment, some-what misleadingly called futureinterests. The third is that of conditional interests of variouskinds. The fourth is that of co- ownership of a single thing byseveral persons. The fifth is thatof ownership by one person of isolated rights in the property (or thing) of another person;which is manifestly, as respectsthat thing, only an instance of co-ownership, although it isnever so called. All of these ex-ceptional types of ownershipexcept the first will be some-what discussed below. All of

them except the third are typesof divided ownership, which inour legal system is a character-istic of basic importance. Itsgeneral discussion in advance of detailed consideration of itsvarious manifestations will ex-plain why they fit so naturallyinto our law.

(1) Huebner, History, at 164.

(2) Brissaud, History of

French Private Law (Howells

transl., 1912), 26869.

(3) The words are quoted

from Pollock, Torts (11th ed.,

1920), 12.




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(4) The words are again those

of Pollock, op. cit., 13.

(5) Taylor ex dem. Atkyns v.

Horde, 1 Burr. 6o, 114 (England,

1757).

(6) Commentaries, II, * p.

343.

(7) Dillon, Laws and Jurispru-

dence (1894), 238-40, 385.

(8) Ames, Lectures (1913),

233.

(9) Spence, Equitable Juris-

diction (1846), 1, 42930.

(10)Respectively, Barth v.

Cotton, 1 Dick., 183, 205 (1743);

Paget v.Gee, Ambl. 807, 810

(1753); Wortley v. Birkhead, 2 Ves.

Sr. 571, 574

(11)Spence, Equitable Juris-

diction (1846) 1, 432, 621.

(12)1 Idem, 431.

(13)Cokes Fourth Institute

(ed. 1797), 79.

(14)St. Germain, Doctor andStudent, Dial. I, c. 16 (Muchalls

ed., 1874), p. 45.

(15)Billson, Equity and

Common Law (1917), 69.

(16)The analysis of the

American Law Institute as stated

in Merrill, The Anatomy of

Notice, 3 U. of Chicago L. Rev.

417, 427 (1936).




Part I, Chapter IV

1. Definition of OwnershipThe definition of ownership

has caused much difficulty toanalysts of our legal system. Inthis essay emphasis has in vari-ous places been given to thefact that our law has neverknown any other meaning fortitle or ownership than a rela-tively better right to possess;which of course means a betterright to enjoy through suchcontrol.1 But the matter has

become needlessly involvedwith complexities, mistakenlysupposed to be essentials, thatmust be discussed in order thatthey may be eliminated.

(1) VARYING CONTENT OFRIGHTS LABELED OWNERSHIP.

Austin pointed out a cen-tury ago the variable meaningof ownership: Let us defineperfect ownership, followinghim, as involving (a) indefinite

and exclusive liberties of userprotected (b) by the right to ex-clude others from participationtherein, and (should they oustthe owner) by the right (c) torecapture the thing which is theobject of ownershipplus (d)indefinite duration of such lib-erties of user. This definitionmanifestly assumes an owner inpossession of the property. The

situations presenting difficultyare those in which the personcalled owner lacks posses-sion, i.e., lacks liberties of di-rect user. Assuming, further, ageneral coincidence of owner-ship and rights in rem, since itis convenient to deal with themtogether, we may now considervarious situations in which per-sons not in possession are nev-ertheless habitually called own-ers or said to have rights in

rem. They will clearly reveal theperplexingly varied content of rights, powers and libertieswhich may be covered by theterm ownership, and will throwlight upon the role of rights inrem in the constitution of own-ership.

(1) The owner of land who was dispossessed was alwaysrecognized as retaining a para-mount mere right akin to the

ownership; of present law. Yetit is only within a century thathe has been able to convey histitle; he has never had an ac-tion against trespassers; he hasalways had only a right of entryto recover the land, enforceableby a fleeting power of sell-helpand by a right of action (bothright and remedy passing to hisheir). But the dispossessed me-

dieval owner of a chattel, be-cause he was without effectiverecuperative remedy or powersof alienation, was not evenknown as owner and did notcome to be known as owner un-til he had gained the limitedrights of action against strang-ers which are all that our lawhas ever afforded. These rights,however, were broader thanthose of disseisees of land.

(2) In the case of a bailment, the bailor is labeledowner. Not only does he lackliberties of user; the bailees lib-erties depend upon all the cir-cumstances of the case; in largepart, user is ordinarily sus-pended as to both parties. Thebailor has a transferable inter-est, but unless he has the im-mediate right to possession asbailor at will he cannot sue thirdpersons for trespass. He cannot

bring recuperatory actionsagainst them, or even sue fordamage to his reversionary in-terest if the bailee has recov-ered judgment for full damagesor, possibly, made a voluntarysettlement for them. The bailor,nevertheless may intervene ina pending action brought by thebailee. At the same time, as al-ready noted, the bailee, as pos-

Ownership &Divided Ownership




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sessor, has always been treatedby our law as holding againstthird persons all the rights of an owner. For centuries legalspeech has recognized the di-vision of the enjoyment-contentof title by calling the interests.of the two parties general

property and special propertyrespectively.

(3) In the analogous case of a lease for years, the lessor islabeled owner. His reversionis the title; and is alienable;he lacks possessory remedies(trespass and ejectment)against strangers; but his ac-tion for damage to the rever-sionthe lessees right to re-cover damages for harm theretobeing much less generally rec-ognized than the bailee sisscarcely entangled with thetenants rights.

(4) When the bailee hap-pens to hold a common-law lien, a considerable number of decisions have allowed thebailor to maintain trespass andlikewise trover and replevinagainst a stranger, on the

ground that the lien is a privi-lege which the lienholder alonemay assert. But other caseshave held that the bailor shouldfirst extinguish the lien. Thisview should logically prevail inactions which rest upon animmediate right to possession,for it alone is consistent withprevailing doctrines regardingthe bailees rights and withthose regarding the plea of jus tertii.

(5) When the lien-holder isa pledgee, the pledgor is like-wise known as owner. Againsta third party he can, speakinggenerally, only maintain an ac-tion on the case, but the verynature of the action logicallyrequires that damages be re-stricted to the harm done indi-rectly to the reversionary inter-

est. If, however, the thirdpartys act substantially frus-trates the purpose of thepledge, various cases have al-lowed the pledgor recuperatoryactions inconsistent with thegeneral doctrine of bailments.

(6) A conditional seller wasat common law treated asowner against even bona fidewould-be purchasers for valuefrom the conditional buyer inpossession; and we still so pro-tect him if he properly recordsthe contract of sale. The ven-dor purports by the contract toreserve ownership pending fullpayment, but his title is a baresecurity title pending default bythe buyer. The buyer has theusual rights of a bailee as re-spects actions against andsettlements with third personsfor interference with the goods;in addition he is in most statesand for various other purposestreated as owner by the law.After default the vendors rightsbecome dominant, but not im-mediately absolute.

(7) On the other hand, the

law has never regarded asowner the man who has con-veyed land subject to a condition subsequent. He holds aftersuch conveyance a present in-terest of possible future enjoy-ment, and its content or pro-tection is a single real righta

jus ad dandum aliquid which isenforceable against any trans-feree of the title. After conditionbroken, nothing is lacking tothe reconstitution of his perfect

title save an entry upon the landthat consummates forfeiture of the covenantors title; until thatconsummation the covenanteeis not spoken of as owner.

(8) The holder of an optionto purchase land has no legalaction for injury to the land, norhas equity protected him, as ithas the contract purchaser,

against spoliation of land by theoptionor. Nevertheless, thepower of the option holder topurchase is transferable inter vivos, while, inconsistently, theweight of authority holds thispower to be beyond the reachof creditors unless through a

creditors bill. This option topurchase passes on theholders death to his executorsor his heirs. But though he mayown the option-right or thepower, he is not even a contractpurchaser of the land; and asregards the devolution of hisproperty is therefore, by thebetter view, not treated as eq-uitable owner in case of hisdeath before exercise of theoption.

(9) Finally, dower inchoate,if it be accepted as a real rightbecause it cannot be cut off bysubsequent transfers of thehusbands title, is one thatgives no action against an ad-verse possessor or one commit-ting waste, and is inalienableand therefore not available tocreditors unless by bill in eq-uity. When the dower becomes

consummate, the widow isclearly entitled to compensa-tion if all the land in which shehas dower rights is taken un-der eminent domain. There ismuch confusion, however, as toher right to have an injunctionagainst waste or to maintainactions for damages or to re-cover the land in which she isto enjoy her life interest. Canshe have these remedies be-fore, or only after assignment

of the specific land? It is clearthat she should have equitablerelief before the assignment of the specific land if the injury oradverse possession involve allthe lands of which she could bypossibility be dowable. It is bet-ter agreed that all common lawshe could not, until the landswere assigned, alien her inter-est otherwise than by release to




the terre-tenant, nor could hercreditors reach it unless by billin equity. Statutes in variousstates, however, have removedher disabilities in aliening be-fore assignment, and she canhave her remedy in equity. Asrespects dower consummate

there are therefore importantrights in rem in the usual senseof that phrase even before as-signment; yet, pending assign-ment it would certainly be ex-traordinary usage to refer to heras having any estate in the land,or as owning anything morethan a chose-in-action.

(2) OWNERSHIP ANDRIGHTS IN REM. The distinctionbetween rights in rem andrights in personam has causedmuch controversy. That thevery concept of a right in remis of doubtful utility has beenpointed out (p. 8). In our juris-tic literature of recent decadesattempts have been made touse this poor distinction as abasis for a second distinction,namely that between legalrights and equitable rights, bywriters who contend that the

former are rights in rem and thelatter rights in personam. Andas both distinctions were ac-cepted by the authors of the re-cent property reform legislationin England, and apparentlymade the very basis thereof,they call particularly for exami-nation; all the more becauseequities received in that legis-lation an unfavorable treatmentwhich is certainly not to be de-sired in this country, and appar-

ently were so treated becauseof an exaltation of legal title (asunderstood to be a right in rem) which is equally undesirable forour own future legislation.

It has been remarked thatit is a characteristic of pro-prietary rights that they arerights in rem (p. 10); but thatthey share this characteristicwith various rights of personal-

ity. The definition of propertyas being a right in rem or con-sisting of rights in rem appar-ently originated With John Aus-tin. But two meanings are verycommonly given to that phrase;although in practical applica-tion they run together.

One meaning is that of realrights; that is, rights some-times described as in the thingitself or existing without re-gard to particular persons; actsdone to or against the thingbeing thought of as wrongs toit, and so to the rights of theowner in the thing. The concep-tion, however unsatisfactory,has greatly affected the lan-guage of our law. The proce-dure of a sheriff in seizing andselling a judgment debtorsgoods under a writ of executionis said to be in rem because hisacts directly affect the prop-erty (that is, the owners rightin it), transferring title from himto another. Similarly, an actionagainst a thing as defendant,and designed to lead to the cre-ation or extinguishment of titledirectly by a courts judgment,or by act of its agent appointed

to transfer title in accordancewith the judgment in otherwords, by its inherent powersis known as a proceeding inrem; and the judgment is saidto be in rem.

Another and equally com-mon meaning of the phrase inrem, when reference is torights, is that of validity or en-forceability against the worldgenerally. Rights of a plaintiff which are, in this sense, either

in personam or in rem may beenforced against thedefendants property by proce-dure in rem as explained in thepreceding paragraph. The judg-ments, however, under whichsuch action is taken, declare theplaintiffs right, and are there-fore in personam or in rem incorrespondence therewith. (Thecase of an action against a

thing, above referred to, is dif-ferent.)

Now real rights (in re) arein fact always enforceableagainst the world generally (inrem). But (1) not all legal ana-lysts have agreed that all realrights are proprietary since,

as will be explained below, theydo not use ownership to in-clude rights in the land of an-other; and also because theyapparently do not recognize asseparate real rights thosewhich, togetherrights in-cluding liberties, powers, andclaims,make up ownership.Also (2), possibly some woulddeny that these last rights arereal, since they have neverbeen regarded as giving pos-sessory rights in the land, andinterference with their enjoy-ment is therefore not a direct interference with land, so thatnot trespass, but trespass onthe case, was the remedyagainst such interference.

(3) Some writers (all Austin-ians particularly) must refuse torecognize rights in incorporealthings as real, because for

them there are no such thingsthat can be the objects of rights. And (4) it is not unani-mously agreed that all propri-etary rights are rights enforce-able against the world gener-ally. It depends upon the defi-nitions of ownership and of rights in rem whether thatproposition is correct.

The concepts of ownershipand of rights in rem, thoughgenerally used as interchange-

able, are of course wholly dis-tinct. Assuming that the rela-tionship between a person anda thing is correctly described bythe latter phrase, that rela-tionship might doubtless eithercoincide with or fall within thecontours of the relationship of perfect ownership as above de-fined. But if the contours of each conceptthat is, its con-




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tent of legal relationsare infact, as illustrated in the abovesituations, constantly altering,it is manifestly hazardous to as-sume an area of constant coin-cidence sufficient to justify theview that the two terms in ques-tion are synonymous. Neverthe-

less, Austin sought to classifyall property rights, or the lawof things, by distinguishingrights in rem and the rights inPersonam. In doing so he alsopostulated: first, that rightsexist only when there exist du-ties correlative to them; sec-ondly, that true proprietaryrights are exclusively in rem;thirdly, that things are exclu-sively tangible; and fourthly,that no right can exist in rem,nor therefore be a propertyright, unless its correlative dutyis negativea duty to forbearor abstain. These postulates donot fit our actual law. There arevarious interests which are ha-bitually, indeed universally, re-garded as property interestsi.e., regarded as rights in orover things in the sense aboveindicated which are byAustins postulates arbitrarily

excluded from proprietaryrights.Possibly because of the

first, he ignored all powers. Yetthe power of alienating title isevidently one of the most vitalof the rights that make up own-ership, and a power of ap-pointment can be no less aproperty right because it existsseparately. Moreover, powers of sale and powers to forfeit titles(by reentry after breach of a

condition subsequent or other-wise) had for centuries beforeAustin wrote been treated asproperty interests. Because of the third postulate, his systemcould never cover what hasbeen for six centuries a consid-erable part of our law of things.

Even more hampering, inhis day, were the other two pos-tulates. The fourth presumably

led Austin to ignore rents, andcovenants between lessors andtermors that imposed affirma-tive duties and ran at law withthe land. It would equally haverequired the exclusion fromproprietary interests of legaland equitable charges. The

same would be true of cov-enants of affirmative burdenthat run with the land in equityin the United States, althoughthese do not exist in England,and the statutory and non-statutory pseudo-easements(likewise peculiar to the UnitedStates under that name), whichentitle land owners to requireof neighbors the maintenanceof line fences and party walls.Austins second postulate aswell would have excluded theseinterests from the law of prop-erty.

If we ignore all of Austinspostulates, and ask how theabove interests should be clas-sified, the answer will in partdepend upon the emphasis putupon procedure. For example,a proprietary remedy (trespasson the case) was always avail-able to protect easements and

profits, whereas a contractualremedy for damages was em-ployed in case of the breach of covenants. As for rent, whetherdue from a termor or reservedon conveyances of fees, theremedy of debt was in originaltheory a real remedy, but itscharacter has altered; distress,which was a procedure in remavailable to recover rent ser-vice, was unavailable to enforcerents seck and rent charges.

Certainly, neither a medievalmode of thought regarding rentnor procedural ideas basedupon an abandoned medievalsystem of actions should con-trol classification. On the otherhand our substantive theorieshave perforce been expressedby procedure; to a considerabledegree they have by reactionbeen modified by procedure. So

far as substance can be de-tected through proceduralforms, the procedural test hasthe very decided merit of beingindigenous to our law.

The answer to this questionof classification would in partdepend upon the definition of

rights in rem, and here the dif-ficulty is even greater than withreference to procedural tests.There is rather general agree-ment to lay aside the Austinianrequirement that a right in remmust bind all the world; never-theless, the instant that is doneagreement becomes difficult asto the point at which to stop.If, to make a right in rem, it suf-fices that it be enforceableagainst an indeterminate num-ber of unidentified persons,then in all the nine cases aboveanalyzedboth those in whichit is usual to concede and thosein which it is usual to denyownership to the right-holderin questionthere exist rightsin rem. With reference to the in-terests just mentioned as ex-cluded from Austins propri-etary rights, the number of per-sons who might possibly buy

the fee or the leasehold that issubject to the rent obligation,the legal charge, covenant run-ning at law, or pseudo-easement, is as indefinite as isthe number of those who mayby possibility trespass upon Asland, and violate As preexist-ing right in rem that nobodyshall without his consent enterthe close. Under accepted defi-nitions, therefore, the rightsshould apparently be classified

unhesitatingly as rights in rem.Again, if one in this country ac-quires for value title to servientor encumbered land and has noactual knowledge of the ease-ment, profit, covenant or otherencumbrances on the land, hetakes it free from them, pro-vided he is not affected withconstructive notice by therecord in his chain of title of a




deed that shows the existenceof such encumbrances. A legalright is thus destructible (in thiscase and in various others) bya bona fide purchase for valueof the servient land. Were it notfor our recording system no-body could say whether the per-

sons capable of acquiring thetitle only with notice of theencumbrance would or wouldnot be a very large class of persons, nor could one, there-fore, say whether the rightwould or would not be a rightin rem. Indeed, no one couldknow whether the number ca-pable of acquiring title without,or only with, notice would bethe larger. Given the recordingsystem, one can safely say thata right good against all save abona fide purchaser for value isgood, assuming that it appearson the record, against all per-sons in the community.

But whatever be the answergiven to the question whetherparticular rights are or are notrights in rem, it is not an an-swer to the question whetherthe rights are property rights.To adopt the former as the test

of the latter is idle and inde-fensible; idle because it will notwork, and indefensible becauseit is a concept wholly foreign toour lawwhich is why it doesnot work. The classification of rights as in rem or in personamis one of neither Roman nor En-glish law, but of the glossators.So far as it entered westernEuropean legal systems as apart of the Reception of theRoman law to which it related,

it may possibly serve satisfac-torily as a basis for their classi-fications. In our law the phrasesrights in personam or in remare useful shorthand descrip-tions of loose character, buttheir application as tests to con-trol our classification of the in-digenous concepts of our ownlegal system causes more con-fusion than it removes. The in-

terests omitted by Austin fromthe law of things are propertyinterests because our law treatsthem as propertyby thepractical tests of alienabilityand commercial value, as en-cumbrances upon what we calltitle, as directly affecting and

limiting the complex of legalrelations known as ownership,as being (in convenient lan-guage) real rights. The ben-efits of such interests do notpass from the original benefi-ciary according to the theoriesand subject to the restrictionsthat relate to contracts; and theburdens do pass with the titleto the encumbered land in away that contract burdens donot. Legal or equitable, the in-terests are enforceable in remin any meaning of that phrasethat may be chosen. Each is en-forceable according to the prin-ciples regulating benefit or bur-den which prevail at law or inequity respectively; but with thecertainty that, as regards bur-dens, the practical differencebetween law and equity will inthe end be minimized by therecording acts. This holds good

as well with respect to the ninetypes of property interestsabove mentioned. They are allexamples of divided owner-shipdistribution of liberties of user, powers of alienation, andrights of control, between twopersons. Our law may call oneowner; it may to varying de-grees treat both as owners. Itmust be agreed that owner-ship, however useful, is not anexact concept. It is equally cer-

tain that we cannot determinewho is owner by looking onlyat the respective rights of con-trol against third persons, andasking against how many per-sons such are enforceable;much less, by arguing whethersuch rights against third per-sons should be called rights inrem.

(3) OWNERSHIP & RIGHTS INRE. Rights in re like rights inrem, is a somewhat obscureexpression. Moreover, opinionsdiffer regarding the relation of rights in re to ownership verymuch as they differ regardingrights in rem. The term rights

in re is nevertheless indispens-able, since our law writers useits only possible substitute,rights in rem, almost entirely toindicate the scope of incidenceof the duty which is the correla-tive of such rights. Historicallyspeaking, real rights are thosewhich in medieval law carriedthe vestment of seisin. As sei-sin was indispensable to anysubstantial existence, enjoy-ment, or protection of a prop-erty interest, the definitionabove given of real rights as un-derstood in our present lawrights namely, which so mani-festly and significantly exist inor over a thing that acts of in-terference with it are regardedas necessarily violations of theright was an inevitable resultof their historical origin. Theirexistence, and consequent pro-tection by the ancient real ac-

tions, were not confined to cor-poreal freehold interests, in-cluding reversions and remain-ders, but extended to such in-corporeal interests as were rec-ognized by the early law, par-ticularly rents and commonsand easements.

These historical facts arenot simply matters of the past,but still influence us. Realrights, real obligations, real ac-tions, real judgments, real pro-

cedure are concepts insepar-ably tied together by a commonunderlying idea. A real right isone veritably in or of theland,i.e., of the title to theland; it is a fragment of com-plete ownership. A real obliga-tion, correlative to a real right,is one borne by the property,i.e., one enforceable directlyagainst the title. A real action




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demands possession of theproperty, i.e., it asserts title. Areal judgment gives posses-sion, or it directly passes or es-tablishes title without a trans-fer of possession. Real proce-dure appears in the enforce-ment of a judgment or a decree

when the direct effect thereof,or the effect of the acts of anofficer or appointee of thecourt, is to alter title. Theseideas have been steadily implicitin our law for centuries. Debtand rents have illustrated par-ticularly well in their develop-ment the distinctions betweenreal and personal obligations,actions, and remedies, and thechanges which time has madein those relations. But in theapplication of the general con-ception underlying all the abovephrases our law has never beencontrolled by subtleties.

Speaking of Bractons at-tempts to classify institutes of the English law of his day inthe pigeon-holes provided by acosmopolitan jurisprudence(the present section certainlyshows that we have mistakenlyfollowed Austins attempts to

do the same thing), Pollock andMaitland remarked that after abrief attempt to be Roman ourlaw falls back into old Germanichabits, i.e., it fell back in thethirteenth century, and it hasstayed there.2 The fundamen-tal conception underlying thedefinitions above stated is char-acteristically Germanic. In par-ticular, Germanic law classifiedits actions according to the re-lief demanded, and so for our

law the reality of a real actionis found [was found before thefourteenth centuryas it stillis] either in the claim for pos-session of a particular thing, orin a judgment which awards tothe plaintiff or demandant pos-session of a particular thing.In other words the real actionsasserted the most fundamentalof all real rights, the right which

was for some six centuries thesole test of title in our law, andwhich with slight modificationremains, namely, the right of entry or recaption.

It is probable that suchviews as exist contrary to that

just stated go back to Austins

discussion of the distinction be-tween a jus reale and a jus ad rem. The distinction has beenthe subject of a controversy inGermany which began beforeAustins time and is not yet con-cluded. Its obtrusion Into analy-ses of our own law would forthat reason be regrettable atthe best, but it is more so forthree other reasons. First, be-cause Austin, though diffuse onminor points, made no clearpronouncement on the vitalpoint in controversy, namely,whether the jus ad rem shouldbe regarded as a concept of theproperty law or solely as one of the law of obligations. Second,because he gave to the phrasea content that was reconcilableneither with the literal meaningof the phrase nor with the En-glish law of his day. Third, be-cause such a varied content as

he gave the phrase has no ap-plication or iota of utility in ourown law of obligations. This isso, notwithstanding that suchvariety of content is entirelyconsistent with treating theconcept as purely one of the lawof obligations in the sense of Roman law or of the Pandect lawof Germany. The first pointalone is here important. Nomatter what may have beenAustins ideas, it is clear in our

law that a mere contract relat-ing to a thing does not createat law proprietary rightstherein; and this is notirreconcilable with the possiblyreal quality of equitable rightsunder a contract specifically en-forceable, nor with the propri-etary character of any contractres as against third persons oras respects creditors claims

when the right of either partyhas commercial value. The in-creasing emphasis placed uponthose developments, however,by students of our law couldonly lend aid to the view thatnothing in the doctrine of the

jus ad rem, as it ever existed

or still exists, supports a denialof the existence of a proprietaryright in rem to recover propertyfrom one wrongfully withhold-ing it. For those who devisedand for centuries used thephrase, it indicated a propertyright although one in personam. In our law we do notneed it as the description of alegal proprietary right; and inequity it could serve at most asa novel but unnecessary labelto which old controversieswould attach. It should be dis-carded. If retained, no usageprecludes us from giving it anycontent consistent with its lit-eral meaning; we should, then,exclude other meanings (suchas Austin borrowed from theobligation concepts of the civillaw, and Salmonds marital res),and include the recuperatoryrights in rem which have for

centuries been the heart of ourproperty law.The only other argument

that might be advanced againstrecognition of such a right asproprietary is based on no morethan a priori reasoning, that theduty corresponding to a pro-prietary right must be negative.As Salmond, following Austin,puts it: All real rights are nega-tive. . . A real right availableagainst all other persons can be

nothing more than a right to beleft alone by those persons. Nopersons can have a legal rightto the active assistance of allthe world. The only dutiestherefore, that can be of gen-eral incidence are negative.4 Intruth, the only active assistancerequired is on the part of, atmost, a few actual wrongdoers,in the enforcement of the reme-




dial right. The antecedent dutyin rem of all possible futurewrongdoers to return the prop-erty (and the right in rem torecover from all such) thereforeoffers no difficulty on thatpoint. Aside from the purelypresumptive reasoning just

stated, there is no authorityopposed to the recognition of the right in question as one inrem. If real rights are rights in,to, or over things in the inti-mate sense above indicated,nobody doubts that what wecall title is, at least in themain, a complex of real rights.But in our law title has for cen-turies had no other meaningthan a relatively better right toretain or regain possession..For centuries the latter right,that is, the right of entry as re-spects land, the right to recoverchattels by action so far asthere was any recuperatory ac-tion, was the sole test of title.How, then, can it be doubtedthat the right to recover pos-session is a jus in re enforce-able in rem? It was preciselythis real right and the real ac-tion which protected it which,

existing in the case of land butnot of chattels, made the formerrealty.

Despite clarification on de-tails, however important, suchas the one just discussed, thegeneral conception of a realright is vague, and always hasbeen. The difficulty lies in thepersistence of a primitive modeof thought. The objects of rights are either corporeal or in-corporeal things; and such

things are property because thelaw enforces rights held againstother persons with respect tothose things. Both Germanicand Roman legal systems, how-ever, started with the thoughtthat a man either ownedthings (i.e., his own) or heldmere rights (i.e., in the thingsof others). Both ideas still per-sist, in this country as in Ger-

many, today, and in both coun-tries laymen also think of them-selves as standing in legal rela-tions to things. All of these arerather crude conceptions. Nocode or official exposition of acode, however, has made thema part of our legal system, as

they are a part of that of Ger-many. To make the conceptionof direct relations with a thingeasier, the Code of that coun-try has even denied that nameto incorporeal interests recog-nized as things (as in our law)since medieval times. The offi-cial justificatory commentaryupon the Civil Code of 1900,after declaring that the prop-erty law regulates the legal re-lations of a person to a thing,and that a real right bearsupon (ergreift ) the thing itself,proceeds as follows: The es-sence of being real [1] lies inthe direct physical control(Macht) of a person over thething. [2] No importance at-taches to the distinctionwhether this control is exer-cised by the person entitled,himself, or is exercisable onlythrough some process con-

trolled by an organ or officer of the law. [3] The decisive char-acteristic is . . . that the rightcan be exercised independentlyof another persons volition; [4]that the presence of anotherperson under a correlative dutyis unnecessary. [5] From this itimmediately follows that real(dingliche) rights can exist . . .in corporeal things. Over thingsthat exist only in imagination... an actual control (eine reale

Macht) cannot be exercised.5

It is manifest that these propo-sitions (aside from the last) areacceptable only as a laymansdescription of real rights asthey exist in our law. In truth,no legal right can be consti-tuted by mere physical controlof a thing (corporeal or incor-poreal), but only by legal con-trol of other persons; after

which ones right can be manifested by physical acts in deal-ing with the thing. Salmond hasstated the contrast betweenreal and personal rights withclarity. Every right involves notonly a real, but also a personalrelation. . . In real rights it is

the real relation that stands inthe forefront of the juridicalconception. . . In personalrights, on the other hand, it isthe personal relation that formsthe predominant factor in theconception. . . For this differ-ence there is more than one rea-son. In the first place the realright is a relation between theowner and a vast multitude of persons, no one of whom is dis-tinguished from any other...Secondly, the source or title of a real right is commonly to befound in the character of thereal relation, while a personalright generally derives its ori-gin from a personal relation.. .If I have a real right in a mate-rial object, it is because I madeit, or found it, or first acquiredpossession of it, or because bytransfer or otherwise 1 havetaken the place of some one

who did originally stand insome such relation. . . Each of these reasons tends to advancethe importance of the real rela-tion in real rights, and that of the personal relation in per-sonal rights.6 The propositionsof the German codifiers are like-wise acceptable as the substan-tial distinction between con-tract and property rights. It isfortunate, however, that theexigencies of codification have

not forced us to remove suchobscurities as may exist in ourdistinctions between those con-ceptions, for the attempt to doso in the German Code is notwholly convincing as a modelfor our own law.

Whatever objections may bemade to it, the phrase realrights remains useful to des-ignate the characteristics of a




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property right other than thegeneral incidence of the dutycorrelative to it. It is certainlyno less usefulpossibly all themore so at presentbecauseone cannot definitely say ex-actly what those characteristicsare. A general immediacy of re-

lationship between the rightand its object, a general di-rectness of incidence by wrong-ful act to the object upon theright, are usually stated as itscharacteristics. But that is anunsatisfactory description, evenwithin the non-equity law; moreso as to equitable rights.

(4) OWNERSHIP & RIGHTSOF DEFINITE OR INDEFINITE EN-

JOYMENT-CONTENT. There pre-vails among our law writers an-other theory of ownership forwhich Austin is largely respon-sible. This is based upon thedistinction between titles of de-terminate and indeterminateenjoyment-content. This theory,also, does not wholly accordwith ordinary legal languageand conceptions. Contrastingthe bundle of rights that con-stitute normal title with these

components separately consid-ered, Sir William Markby hassaid: However numerous andextensive may be the detachedrights, however insignificantmay be the residue, it is theholder of this residuary rightwhom we always consider asthe owner but quaere in viewof the above discussion. Anowner might, therefore, be de-scribed as the person in whomthe rights over a thing do not

exist separately, but aremerged in one general right. Oran owner might be described asthe person whose rights over athing are only limited by therights which have been de-tached from it. So long as therights [detached from the ag-gregate of ownership] are in thehands of any other person theyhave a separate existence, but

as soon as they get back intothe person from whom they arederived [or a transferee of hisinterest] . . . they lose theirseparate existence, and mergein the general right of owner-ship.

Austins definition of own-

ership (property) was, ac-cordingly: any right concerninga thing which gives to the en-titled party such a power or lib-erty of disposing of the subjectas is not capable of exact cir-cumscription; as is merely lim-ited generally by the rights of all other persons, and by theduties (relative or absolute) in-cumbent on himself. This was,substantially, a definition of thedominium of the Roman law; adefinition not in the remotestapproaching the meaning of ownership in Germanic law orin our own, which in this re-spect is and always has beenpurely Germanic. Austin tookhis definition from German writ-ers on the Pandects and gave itout, ostensibly, as part of auniversal juristic scheme. Buthe was forced, later, to troublehimself with the question

whether it was consistent withEnglish law, and he did not ad-here to his own definition. Thedefinition denies the nameownership to any right of en-

joyment limited either in con-tent or in duration. Excluded,therefore, notably are all rightsheld by one landowner in theland of another, including allthose above discussed as notadjustable for other reasons tothe Austinian definition of pro-

prietary rights (pseudo-ease-ments, rents and rent charges,affirmative covenants runningat law and in equity). For all of these are determinate realrights. The exclusion of rightsin re aliena will be discussed ina moment. Before doing so wemay consider the relation of ownership to rights in onesown things (in re propria).

The matter has been littlediscussed. In a scholars editionof a famous book one reads thatalthough absolute ownershipinvolves free as well as exclu-sive enjoyment, free power of disposition, and indetermi-nate duration, those who have

rights of exclusive, though re-stricted, enjoyment, are never-theless commonly termed own-ers; and that the term ownersis commonly used to includethose who have the right of ex-clusive enjoyment of anythingfor a limited timeinstancingfor both of these exceptions En-glish tenants for life.9 Markbyreferred to the problem thus:The word ownership, and itsEnglish equivalent property,as well as the correspondingwords in other languages, ...have been used to describe gen-erally the position of any per-son who has a right or rightsover a thing. Any person hav-ing a jus in re has been calledowner; not indeed of the thing,but of that right ... Nor can itbe denied that between theownership of a thing and the so-called ownership of a right

there is much analogy. Bothowners have jus in re and inrem. Both can deal with theobject of their right (with theusual limitation) as they please.The ownership of the right aswell as the ownership of theoriginal thing can very fre-quently be divided; subordinaterights may be again detachedfrom it and made over to oth-ers.10

The language of Markby is

unsatisfactory. One may haverights in ones own things orin another persons. In Ger-manic law, as already noted, aright that carried seisin was areal right (jus in re); and cer-tainly when seisin and propri-etary rights were inseparable inmens minds such rights inones own things were propri-etary. By chance, because they




were not anciently rights thatcarried seisin, hence could notbe created or transferred by liv-ery, our rights in the land of another resembled in our lawto some extent the Roman viewthat there could be no owner-ship of those interests. But al-

though they have never in ourlaw been protected by a posses-sory remedy (trespass), theyhave otherwise had all the char-acteristics of real or proprietaryrights. Ownership is a bundleof real rightsliberties, powers,and claims. All agree that eachof these relations of the ownerto other persons with regard tothe thing owned, is a separateand distinct relation. Add themand the sum is ownership of thething in the entirety of possiblemodes of enjoying it. Take anyone separately and it wouldseem necessarily to be owner-ship of the thing as respectsthat one particular mode of en-

joyment. Whether the thing beones own (because one holdsmany liberties, powers, andclaims therein), so that the iso-lated interest in question iscalled a jus in re propria, or be

the thing of another (who holdssuch a complex of intereststherein), so that the isolated in-terest in question is called a jus in re aliena, makes no differ-ence.

To say, as Markby did, thatone holding a complex of realrights owns the thing that istheir object, whereas one hold-ing an isolated real right ownsthat right but no part of thething that is its object, is illogi-

cal. It makes no difference prac-tically whether we say that oneowns an easement, profit, cov-enant running with the land,mortgage, leasehold, or bail-mentmeaning an interest sodescribed, or understand bythose words the right that is thelegal means of enjoying an in-terest. But in ordinary speechwe own things or interests in

things. If we own rights inanothers property then we ownrights in our own property,hence all the rights constitut-ing title; that is, we own owner-ship. The proposition is also ir-reconcilable with the history of our law as will be shown in the

next division of this section.And it is inapplicable to the ac-tual classifications of our law;because for example, leases foryears and bailments may eitherbe for purposes so limited thatthey cannot reasonably beclassed under an ownershipdefined as allowing indefiniteuser of the land or chattel, orthe contrary may be true; yetevery record of our law testifiesthat the bailee and the lesseedo hold limited titles to or spe-cial property in, the chattel orland that is the object of theirrespective rights.

The same is of course truewhen that object is incorporealproperty. Then, indeed, theholder of an isolated righttherein owns (in part) a right,but only because it is also athing, the object of his splinterof title.

The explanation of Mark-bys language is merely the in-fluence of Roman law, whosedominium was an absolute title,and under which therefore aright in re aliena was not re-garded as conferring a limitedor partial ownership.

The matter is, of course, pri-marily not one of language.Theory must be consistent withthe actual treatment given inour law to the title splinters in

question. That treatment, andthe language of our courts, areentirely consistent with theabove reasoning. Material ob-

jects . . are property . . . becausethey are impressed by the lawsand usages of society with cer-tain qualities, . . and . . . what-ever removes the impressiondestroys the notion of property,although the things themselves

may remain physically un-touched.11 A man may be de-prived of his property, there-fore, without its being seized orphysically destroyed, or takenfrom his possessionwitnessthousands of cases on conver-sion !Whatever subverts his

rights in regard to it, annihi-lates his property in it. It fol-lows that a law which shouldprovide in regard to any articlein which a right of property isrecognized, that it should nei-ther be sold or used, nor keptin any place whatsoever withinthis state, would fall directlywithin the constitutional provi-sion [against taking propertywithout due process of law]; asit would in the most effectualmanner possible deprive theowner of his property, withoutthe interposition of any court orthe use of any process whatso-ever.12 As was said by Judge

Jeremiah Smith, a failure to con-ceive of title as a complex of lesser rights, when construinga due-process provision, wouldmake the constitutional provi-sion read: No person shall bedivested of the formal title to

property without com-pensation, but he may, withoutcompensation, be deprived of all that makes the title valu-able.13 To give another ex-ample, as said by Mr. JusticeCardozo, government in cast-ing about for proper subjects of taxation is not confined by thetraditional classification of in-terests or estates. It may taxnot only [complete] ownership,but any right or privilege that

is a constituent of ownership.14 Despite our ordinary phrase,rights in anothers land, every-body knows that such a right isan incumbrance on, a subtrac-tion from, that others title; andthat the holder of the right has,by every practical legal test, aproperty interest (which he can,under qualifications alienateetc.) in the thing. The American




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Law Institute and the SupremeCourt of the United States agreethat the interest is property.And since the object of this dis-cussion is to show the mislead-ing character and utter inad-equacy of certain traditionalclassifications in our law, a fi-

nal example may well be givenof interests which offer muchresistance to all our standardproperty classificationslegalor equitable, real or personal,rights in ones own or inanothers things: namely, pew-rights. Specific performance willbe given of contracts to conveythem, damages for breach of such contracts; they are subjectto mortgage; and so on. Regard-less of all our difficulties in la-beling them they are, by plainpractical tests, property.

Regardless, then, of our or-dinary use of the label owner-ship to include all the indi-vidual rights merged therein,it seems quite impossible todeny that they are in literal factindependent, separable par-ticles of ownershipand owner-ship of their object. Moreover,it is a fact that in common le-

gal speech we do own inter-ests, such as easements, thatare protected by limited realrights. Consequently, the at-tempt to restrict the meaningof ownership to titles embrac-ing an indefinite congeries of rights would be futile, and fur-thermore undesirable becauseit does not seem that anythingwould be gained by it. The dis-tinction between a compoundright of indeterminate benefi-

cial content, and an isolatedright of limited and definitecontent, fits the facts of our law.Confinement of the rubric own-ership to compound rights of indeterminate beneficial con-tent is another unreality in ju-risprudence imported from Ro-man law, as will appear in thediscussion of the next topic.

2. Divided OwnershipAs a matter of fact, divided

ownership is, and has alwaysbeen, not merely a characteris-tic but beyond doubt the mostfundamental characteristic, of our property law. This is owingmerely to a peculiarly logical de-

velopment in English law of thedistinction between generaltitle and immediate enjoyment.It is a simple idea that owner-ship of property is desired onlyin order that one may use andenjoy it; that title is useful onlyas is the shell of a nut, for theprotection of this inner contentof enjoyment; that ownership isonly a bundle of rights. Vague,even definite, recognition of this last idea, is much older, ashas already been pointed out,than the admirable emphasisgiven to it by Hohfeld and hisimmediate predecessors in trac-ing its appearances and il-lustrating its utility in differentfields of law, and in urging asystematized nomenclature forthe various types of enjoymenttheretofore only casually distin-guished. Looking to these com-ponents of manifested owner-

ship, Austin defined a full titleas a rightindefinite in pointof userunrestricted in point of dispositionand unlimited inpoint of durationover a deter-minate thing.

This is entirely acceptableas a definition of complete andideal legal title, unrestrained byequity, to land or to tangiblepersonalty. But the definition isutterly inapplicable to a legalsystem which, like ours, has for

at least seven centuriesswarmed, to use Maitlandsword, with incorporeal prop-erty, and persons treated by thelaw in every way as the ownersthereof. The definition is there-fore inconsistent both with layand legal speech.

Our law has always recog-nized two fundamental ideas.The first is, that the enjoyment-

content of title is its essence.As Lord Coke asked at the out-set of his exposition of Little-ton, What is the land but theprofits thereof?16 Quite prop-erly it is held today that a grantof unlimited rights of enjoy-ment in land is a conveyance of

complete title. The second isthat, some rights of enjoymentbeing severable from others,title is divisible among theseveral holders of such appor-tioned rights.

Divided ownership is a char-acteristic of the oldest stagesof many legal systems. Whatmust seem a contradiction interms to the property notion of Roman or of modern civil lawnamely, that there may be twoor more property rights in thesame thingis evidently themost general rule in the insti-tutions governing the tenure of land. 17 The Roman law concep-tion of ownership was that of unlimited control and enjoy-ment expressed in Austinsdefinition. From that the Roman

jurists distinguished sharplythe jura in re aliena, and uponthis contrast they built their

entire law of things: ownershipand real rights of usufruct werenot, as in the [Germanic] medi-eval law, essentially identical,but were types of control fun-damentally different in theirnature.18 On the other hand,divided ownership was a chief apparently it would be justi-fiable to say the foremostcharacteristic of medieval Ger-manic property law.

The concept of ownershipas the fullest right that one canhave in a thing, as a right di-rected to the dominion over athing as an entirety, wasknown from the earliest timesnot merely to the Germanic lawof chattels but also to the Ger-manic land law . . . The concep-tion of ownership, however, hadnot by any means the sharp




definition in the medieval landlaw which is familiar to us in theRomanized modern law. In par-ticular, it was not in principledissociated from and opposedto restricted real rights. Thereason for this lay in the formsof the actual economic relations

of that time, upon which thegrowth and form of legal ideaswas dependent ... Even after thedevelopment of individual own-ership the old communism con-tinued to influence the rights of associations, of neighbors, andof kin. To all this was added thedevelopment of land tenancies,which led to a wide distributionof the economic produce (rentsand profits) of the soil amongdifferent persons, and madeexceptional the union of allrights of enjoyment in onehand. It must be rememberedthat until far into the MiddleAges the value of land lay solely in such produce; its utilizationin exchange played almost norole whatever.

This is the explanation of the fact that the conception of a general legal and physicalcontrol, of a general right of

control without more definitedescription, constituted for along time the final and the cen-tral idea in the medieval landlaw. This idea of a right of con-trol capable of varying limita-tions and gradations withoutbeing thereby affected in itsessence, was for a time quitesufficient to classify such legalrelations to the soil as actuallyoccurred. They all appearedsolely as degrees, differing in

their content, of the one univer-sal fact of a physical dominionover, and directed to the usu-fruct of, a material thing; all of which rights, moreover, wereequally visible under differentforms of seisin in lands.

These peculiarities in theland-holding relations of theMiddle Ages, and the conse-

quent conception of a propertyright as a form of physical do-minion distinguished only inextent, and not in essence, fromother limited rights, naturallyled to a conception of owner-ship as partitioned out amongvarious persons whose rights

were of varying strengths, andwho were therefore not equalsbut arranged in a hierarchy: aconception which from thestandpoint of the Roman lawwas quite impossible.20 True,the Reception somewhat al-tered the situation. The Romandominium was purely a titleconcept, but the medievalRomanists and feudists never-theless applied it to the systemof multiple controls or seisinswhich was so prominent a fea-ture of medieval economic andlegal life. Thus arose theirdistinction between dominiumdirectum and dominium utile;the former designating superiorseisin, in the Germanic sense anultimate ownership; the latterdesignating a seisin of imme-diate enjoyment that was onlyan inferior or subordinate own-ership, and this dichotomy was

applied equally to private lawand to the relation between feu-dal lord and tenant. The dis-tinction thus made between theright of ownership and a limitedreal right (rights of tenancy, of usufruct, of pledge, of dower,etc.) . . . nevertheless nevercaused the essential verity of allrights of control in lands to belost sight of. The right of own-ership which corresponded toproprietary seisinnamely,

that right which was directed tothe control of a thing in all re-spectswas distinguished fromreal rights that appeared informs of limited seisin only inits extent, its content, and itspurpose, and not in its essence.It remained a real right alongwith other real rights, and thesewere to use Gierkes apt expres-sion, nothing else than splin-

ters of ownership that had be-come independent. 21

It is scarcely necessary tosay that all that is stated aboveapplies directly and fully to ourown law. It applies with onemodification, namely, that sinceour law has never suffered a

Reception of the Roman law(and because we are less theo-retically or philosophically in-clined than are the Germans) itis all truer of our law than it isof modern German law. Nobodycan see that more plainly thana foreign scholar. As Brissaud,one of the most learned, said:take the English doctrines of ahierarchy of estates (vastlymore elaborate than anythingknown in continental systems),superimpose thereon the doc-trines that created separate le-gal worlds of copyhold anduses, and we shall succeed inunderstanding that the English

jurists based everything uponthe idea that no one can havean absolute right of ownershipover an immovable.22

The four great doctrinesthat have shaped our propertylaw have been those of seisin,

tenure, uses, and estates. Of these only seisin can even beconceived of apart from theconcept of divided ownership;and not even seisin can be his-torically separated from thatconcept. All four doctrines op-erated through it; their creativepower was completely de-pendent upon it; from it as asingle root all may be said, prac-tically speaking, to havesprung.

Pound has rightly empha-sized the vast influence uponour law of the feudal conceptof relation, but in reality thatrelation was only one aspect of a general principle that ranthrough our whole propertylaw. When Maitland declaredthat no property law is so feu-dal as the English, it wouldhave been more exact to say




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that nowhere else was so mani-fest the common principlewhich underlay alike the prop-erty law and feudalism, even inits political aspect. The feudalrelation rested on the severanceof use from title. A feud, saidSpelman, was a right which the

vassal hath in the land or someimmovable thing of his lords,to use the same the mere pro-priety of the soil always remain-ing in the lord. 23 Exploitationof land, taking of the esplees,was the underlying idea (sinceit was the fundamental require-ment or test) of seisin; but ev-ery disseisin made evident thedifferentiation of seisin andmere right. Without longschooling in that distinction ourunique concept of an estate, astitle severed from the land, ul-timate right set over againstimmediate enjoyment, couldnever have entered our law.From this, in turn, grew the en-tire unique field of future inter-ests.

Tenure, seisin, estate: thesethree concepts were estab-lished before uses. It is a totalmisconception that divided

ownership was a creation of thecourt of chancery. As in variousother respects, equity here fol-lowed the law; the essentialbasis for uses lay in legal pre-cedents centuries old, and inthe courts of common law theuse originated. It is, however,undoubtedly true that becauseequity looks through form tosubstance it has made the dis-tinction between title and en-

joyment a primary reality in its

various processes; and thatconsequently the developmentof the concept since medievaltimes has been very largely thework of the chancery court. Thisis true even in the field of fu-ture interests. The legal inter-ests known as future uses weresimply created by operation of the Statute of Uses upon inter-ests which before the Statute

had been equitable. The simi-lar legal interests known as ex-ecutory devises and created un-der the Statute of Wills (1540)received the same liberal treat-ment probably because beforethis Statute Englishmen had solong been disposing at death of

their property with chancerysaid by methods outside thecommon law.

Nevertheless, the conceptremains in practical fact promi-nent in the non-equity law. Theliberties and powers of en-

joyment that compose owner-ship were once completely andare still very largely dependentupon possession. Possession is,as Jhering said, the objectiverealization of right. Title (orownership, property) is noth-ing but a relatively better rightto possession and the enjoy-ment which possession insures.This merely relatively betterright of one man than anotherto retain or regain possession,or enjoyment, is not completetitle; but for at least seven cen-turies it has made him owneragainst the world generally,embodying and proclaiming the

doctrine of divided ownership.In the thirteenth century itwas clear that the bailors andbailees respective interestswere both proprietary, not con-tractual. The terms generalproperty and special propertyhave since that time been usedto designate those interests.They might equally well be ap-plied (and in the thirteenth cen-tury might with even greaterpropriety have been applied) to

the termor and reversioner of land. What is true of the bailor-bailee relation in general istrue, of course, of that betweenpledgor and pledgee. It isequally true of the relation be-tween the general owner andany other security holdera lie-nee, a mortgagee (no matterwhat be the theory of the mort-gage); between the donee of a

power and the owner of theproperty subject to the power;between the owner of a profit,an easement, a covenant run-ning with the land at law or inequity, and the general ownerof the land whose title isthereby encumbered; between

the administrator who holds aqualified title to a decedentsland and the heirs who hold thegeneral tit le; between theholder of the particular estateand holders of estates in rever-sion and remainder; and be-tween vendor and vendee undera conditional sale.

It is clearly impractical toanticipate agreement as to pre-cisely what rights, powers andliberties should be consideredessential constituents of com-plete title under all circum-stances. Our inconsistencies inthis matter are very numerous.

When mere liberties are ab-stractedas when one is for-bidden to keep pigs or explo-sives in an urban districtweundoubtedly think of owner-ship or title as essentially un-impaired. This can be theoreti-cally justified. The same is true

without exception when anowners liberties and rights arerestricted merely by the rightsof his neighbors to be free fromtortious acts by him; indeed, asseen above, these constitutedthe precise restraints whichAustin recognized as not pre-venting the presence of com-plete or ideal ownership.

There are other situations inwhich title is spoken of as re-stricted or encumbered, with-

out being divided. Thus, anowners title is so regardedwhen others hold such rights inthe land as profits, easements,and real covenants; likewise,when his creditors hold mort-gages on his land or chattels.Like language is used when hispowers to alien are limited bytrusts, or by wills and deedsgiving him the title but giving




another the power to alien, andwhen his power to sell chattelsis controlled by price restric-tions. Similar restrictions uponpowers of transfer are imposedby rules of public policy uponan infant or a feme covert. Re-striction is particularly plain

when private title exists only byconcession of the state and un-der whatever conditions it im-poses, as in the ownership of dogs, and of fish and gamerights, or when that title is sub-

ject to superior public rights asin the case of land borderingnavigable streams.

But when powers of imme-diate enjoyment are abstracted,as in cases of tenancy and of bailment (including the securityrights of liens and pledges), thelaws considered language rec-ognizes double ownership. Thisseems to be an inescapable re-sult of its emphasis upon pos-session as title. Moreover, itseems to be practically satisfac-tory.

3. Trusts As an Example of Divided Ownership

Superficially, trusts cer-

tainly seem to be the most strik-ing illustration of divided own-ership in our legal system. Inaddition to the legal ownershipof the trustee, courts of equityfor centuries have talked of thecestuis equitable estate andof his beneficial or equitableownership. Nevertheless,whether trusts do in fact illus-trate divided ownership is aquestion on which there ismuch difference of opinion.

(1) HAS THE CESTUI RIGHTSIN THE TRUST PROPERTY?

Assuming the trust res tobe legal property, it was longconventional theory that thetrustee held the legal title andwas alone capable of claimingany incidents of such title, sothat even the possibility of hav-ing possession of the res was

denied to the cestui, or of em-ploying the remedies ap-propriate for their protection. Itwas held that the cestui, hold-ing only the equitable obliga-tion of his trustee, was re-stricted to suits against him forthe enforcement of the trust. So

long as this view obtained, theonly rights in the trust res thatcould possibly exist were thetrustees legal rights. Until af-ter the decision in Lumley v.Gye (1853) no analysis couldwell go farther. But since thatdecision it has become clearthat the cestui has at least, inaddition, equitable rights inrem protective of his interest inthe trustees equitable obliga-tion. In that he manifestly hasinterests, and they are propertyas against third persons. Butthe question is, whose prop-erty? Has the cestui any real orproprietary rights, while thetrust endures, either in thetrust obligation or the trustproperty?

The cestui has (a) rights inpersonam against the trusteeand (b) against persons whohave actual knowledge of the

trustthe duty of the latter be-ing not to hinder the trusteesperformance of his obligation.He also has (c) rights in remagainst people generally that if they gain knowledge of thetrust they shall not obstruct itsperformance, and (d) that if without knowledge but alsowithout value they take a con-veyance from the trustee theyshall reconvey to the cestui.These statements go no farther

than to assert that the cestui has real rights in the trust obli-gation. The question remainswhether there is implicit inthem the conclusionwhetherfrom their application it wouldnecessarily resultthat heholds real rights in the trustres. The distinction betweenthe trust ret and the trust obli-gation as possible objects of

the cestuis rights has not al-ways been sufficiently empha-sized.

Two points should be par-ticularly noted. The first is, thatbecause the equitable right of the cestui que trust is cut off bythe trustees conveyance of the

trust res to a bona fide pur-chaser it does not follow thatthe cestuis right is non-proprietarynot real but onlyin personam or personal. It wascontended by those who fa-vored the latter view that if theright were in rem it must begood against everybody, and soagainst a bona fide purchaserof the legal title, which it wasnot, wherefore it must be in personam. But this was a miscon-ception. Possibly nobody deniestoday that a right in rem needbe good only against personsgenerally. And it has been seenthat various legal rights whoseobjects are land or chattelsrights concededly real, andsome universally recognized asconstituents of legal owner-shipare subject to the sameinfirmity as equitable rights inbeing subordinated to the claim

of a bona fide purchaser. Hencethe cestuis equity may be pro-prietaryno matter whether itbe a real right in the trust res or in the trustees equitableobligation (as regards interfer-ences with this by third per-sons) despite that infirmity.In view of our recording system,the requirements of a right en-forceable in rem are satisfied ei-ther (using the theory of realrights in the equitable obliga-

tion) by an equity that is en-forceable against everybodyexcept, or (using the theory of real rights in the trust res) byan ownership that cannot becut off by the trustees convey-ance to anybody except, a bonafide purchaser for value. Con-sequently, the fact of the ac-quisition of complete owner-ship by an innocent purchaser




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from the trustee can never becitable as proof that the rightof the cestui que trust is non-proprietary, since whether pro-prietary or not the rights ac-quired by the innocent pur-chaser are the same. The onlyquestion in such a case is

whether it is from the trusteeor from the cestui que trust thatthe beneficial interest is carriedby the trustees deed.

The second point to noticeis, that, whatever be their ob-

jects, the enforceability of thecestuis rights does not dependupon the character, in rem orin personam, of the actionsavailable to him, nor upon thecharacter of the courts decree.Some difficulty has been foundin answering this question:upon the theory of real rightsin the equitable obligation, canan equity properly be called onein rem when enforceableagainst everybody except abona Me purchaser for value?Or, upon the theory of realrights in the trust res, can itproperly be called an equitableownership when it cannot becut off by the trustees convey-

ance to anybody other than abona fide purchaser for value?In view of the recording systemin the United States, it is clearthat the answer must be affir-mative to both questions.

(2) QUESTION NARROWEDTO CONTROLLING ISSUES.

Whether or not it is in factthe trust res in which the cestui holds real rights, it seemsclear that many facts advanced

as evidence that he has suchrights therein are irrelevant. Onthe other hand, decisions andstatutes which allowed doweror curtesy in the cestuis equi-table freeholds, doubtless didinvolve a general assumptionthat the cestui had an estate inthe land; likewise did thosewhich made the interest avail-able to creditors through levy

or in bankruptcy, and the factthat the creation and content of a trust of land depend upon thelaw of the situs of the res. But,after all, as respects these mat-ters, the difference betweenrights in land and rights to con-trol land indirectly is one either

easily overlooked or in practi-cal matters justifiably ignored.Not irrelevant, but certainly of little importance to us today, isthe fact that upon escheat of land subject to a trust the feu-dal lord took its title clear of thecestuis claim. Likewise perti-nent is the question whetherthe trustees disseisor shouldtake free of the trust, but asingle English decision affordsan unfortunately narrow basisfor discussion, particularlysince it involved restrictive cov-enants, but not trusts.

Actions by a cestui uponcontracts regarding the trustres, made by him with strang-ers or with the trustee, mani-festly throw no light on the na-ture of the plaintiffs relation,within the trust relationship, tothe res. Actions at law by thecestui to defend or reacquire

possession of the trust res of which he is or has been actu-ally in possession, are equallywithout bearing on the natureof his relationship to the res under the trust relationship. Hisrights fall outside of, and areconferred by law independentlyof, that relationship. Equitablesuits maintained by the cestui against an unfaithful trustee,alone or joined with strangerswho collude in his breach of

duty, for acts other than inter-ference with the trust res thathinder performance of thetrust, manifestly point to realrights held by the cestui in thetrust obligation; but it is equallymanifest that they cannot indi-cate anything else.

The crucial question iswhether the cestui is allowed tosue for interferences with per-

formance of the trust that arecaused by interferences withthe trust res. By such a suit hewould certainly assert rightsunder the trust obligation. It isequally undeniable that by suchsuits the cestui would actuallyprotect his interests in the trust

property. The trust exists forthe sole purpose of insuringhim the beneficial enjoyment of the res; and nobody would con-tend that his only interests liein the obligation that is a meremechanism to make the res available for his enjoyment. Butthe question would still remainwhether such suits could beheld to rest upon rights held bythe cestui in or over the res; oronly supported as representa-tive suits brought for thetrustee, the normal protector of the cestuis interests therein.The distinction between actualinterests and legal rights is dif-ficult to make. By tradition,once one exists the othershould be conceded. One thingseems clear. Any interferencewhatever with the trust prop-erty (the de minimis doctrineaside) must at least threaten to

hinder performance of thetrust. Of course, a cestui maysue his trustee to compel thelatter to bring actions againsttrespassers, disseisors, andconverters. But the weight of authority is that of such wrongsonly the trustee can complain;so that the cestui is bound if action by the trustee is barredby the statute of limitations.This is a logical consequence of two views: one, that the sole

object of the cestuis rights isthe trustees obligationandthat, therefore, he cannot pos-sibly have other than rights inpersonam; the other, that theabrogation in code states of thedistinction between legal andequitable actions has left unim-paired the distinction betweenlegal and equitable rights, andthat in cases of trespass, dis-




seisin, or conversion the rightviolated is necessarily legal.

The persistent influence isstill visible of Lord Cokes pro-nouncement that the cestui queuse (before trusts existed),

had neither ius in re nor ius

ad rem, but only a confidenceand trust for which he had noremedie by the common law,but for the breach of trust hisremedie was only by subpoena in chancerie.24

How much of that one-timelaw is still true law regardingthe cestui que trust? Surely no-body would deny that today thecestui should have a right to re-cover the res when the trusteeis unfaithful: it has been al-lowed when there is no trustee,and the need is greater in theother case. Nor is there anydoubt that in many ways theequity is treated by law as aproprietary right under ordi-nary practical tests. In the situ-ation in which the issue of theproprietary nature of equities(at least the full-bodied equityof the cestui que trust) is pre-

sented in its purest formnamely, when the trust res is anequitable interest, and thequestion is whether a bona fidepurchaser thereof takes freefrom equitiesthe AmericanLaw Institute has recently takenthe affirmative position. But alldetails of a technical natureaside, our law throughout itshistory contains much that sup-ports the statement of Jhering:Enjoyment is the very purpose

of a right, the maintenance of aright is only a means to an end. Enjoyment is something whichright can never lackenjoy-ment without powers of dispo-sition invariably founds a right,mere powers of disposition donot. The law centers in its wholelife and being about this dis-tinction.25 That is why wehave courts of equity. That is

the source of almost allprogress discernible in our le-gal development.

Speaking of the legal titleheld by a mortgagee in a thirdof the States of this country, Mr.Tiffany has remarked that thistitle, however, does not make

him owner of the land exceptin so far as the exercise of therights of an owner is necessaryand desirable for the protectionof is his security. Why not thistrue of a contract vendor whohas no beneficial interest savehis rights of security? Why is itnot true without qualification of the strict trustee who has nobeneficial interests whatever?Speaking of the legal estatethat passes to the heir of amortgagee, his personal repre-sentative taking the claim to themoney, even Maitland called itthe ghost of a departed right.Why is the trustees less so? Theanswer must be, only becauseour legal theory is in one fielda little farther advanced than inthe other, a little less domi-nated by words and forms bornof our divided jurisprudence of law and equity.

The situation presents somemanifest injustices, sacrifices of undeniable interests to legalforms. This is bad law. Such de-cisions should be repudiated. Topermit suit by the cestui againstthe wrongdoer (joining the un-faithful trustee would be a mereformality) would be only aproper recognition of thecestuis rights in or over the res (unless, of course, we call suchactions representative). In a

very few cases the cestui hasbeen recognized, under real-party-in-interest statutes, as theproper person to protect his in-terests in the trust property; buteven here form, in the joinderof the trustee sometimes ob-scures substance.

(3) HE HOLDS EQUITABLEREAL RIGHTS IN THE RES. In-

terests, remedies, rightsthishas been the order of legal de-velopment. There are interests,and there are at least indirectremedies protecting them; is itunreasonable to say thatrights should be recognizedas present? Were the division of

our legal system into law andequity not involved, the cestuis full beneficial interest would be,quite technically, recognized astitle or ownership; as is the casewhen the purposes of the trustend and he receives a deed.Since the trustee has no ben-eficial interest himself, it is nec-essarily the value of the cestuis interest that the trustee recov-ers in damages when the res isdamaged. The trustees righthas no basis of interest. Whyshould not the cestuis interestsbe treated, as it has in fact solong been known, as beneficialor equitable ownership of theres?

No violence is thereby doneto the concept of real rights. Itis admitted that as regards con-tracts and the trust obligation,they do exist in equity (and, asregards contracts, they also ex-

ist at law). If equitable realrights can thus exist in an in-corporeal thing, why may theynot exist in a corporeal thing,the trust res? The idea that nec-essarily an equity is a claim ona right, not a right directly in athing rests on the assumptionthat equity can only act in personam, because it once exclu-sively did so act and still gen-erally does. Again, equitablereal rights would very properly

differ in some characteristicsfrom legal: hence there is noreason why violation of theformer should not be limited toacts of conscious wrongdoers.The essence of a real rightseems to lie in its guaranteeinga directly beneficial interest rec-ognized by the law as existingof right. The right will then bedescribed as inhering in or




V o l u m e 5

P r o p e r t y

bearing directly upon theproperty; any interference withthe latter will, ordinarily, be re-garded as directly violating theformer, and the right will in-volve such control of the prop-erty as is needed to make theright effective. Such control

usually involves, within the fieldof law, possession or the rightto possession; but this wasnever true in our law of rightsin re aliena, though these (theonly real rights of the Romanlaw) have always, as alreadynoted, been recognized as realrights. Within the field of equitysuch control exists over use of the legal title as insures produc-tion and husbanding of the ben-efits to which the beneficiary isentitled. The cestuis right isprotected by all appropriate le-gal and equitable remedies; thetitle of the trustee and his par-ticipation in the use of thoseremedies is a remedial deviceexisting solely in the cestuis interest; and the cestui dis-places him in their use when

justice requires. Why, then,should the normal, but formal,intermediacy of the trustee de-

prive the cestui que trust of thatdirectness of relation to theproperty which no doubt is avery general characteristic of ownership? In that connection. . . the essential matter is notdirectness of remedy but imme-diacy of right, and both rightand even direct remedy are en-

joyed when justice requires.It seems, also, to be a novel

limitation upon the definition of a real right to say that acts in

violation thereof must be suchexclusively because of their in-cidence on the res. If by that itis meant that one act may notat once violate two rights of dif-ferent nature or in differentthings, our law clearly justifiesno such assumption. If it ismeant that a real right must, if violated at all, be violated di-rectly, we need only remember

that real rights in property havealways been protected equallyby trespass and by case. That astranger who destroys the trustres interferes with the per-formance of the trust obligationis of course evident, no matterwho holds real rights in the

trust property, trustee or cestui. It seems equally clear thata suppositious real right of thecestui in the resin the sensealready explained might beviolated indirectly through aninterference with the trust ob-ligation. There seems to be nogood reason for requiring thatviolation of a real right must bedirect; or for excluding fromreal rights those not directlyviolated.

(4) HE HAS EQUITABLEOWNERSHIP OF THE RES. Nor isany violence done to the con-ception of ownership; the sub-stantive incidents supportingattribution of ownership to thecestui are much fuller, as a mat-ter of practical fact, than in vari-ous cases of legal interests asto which the term is acceptedwithout question. Nor is there

any reason of history or legallogic why divided ownershipshould not take the form of le-gal real rights in the trustee andequitable real rights in the cestui in the same res. There is nomore difficulty than in cases of divided legal ownership alone.In fact there is less, for whenthere is conflict equity prevails,and viewed as an institute of the legal system as a whole thelegal title appears, not indeed

as a mere form, but certainly asa mere protective shell for theequitable.

At the present moment itseems entirely permissible tosay that the cestui has imper-fect or limited real rights in, ora growing but still incompleteownership of, the trust res. Theright to redress against the in-vader has come to be regarded

in equity as essentially the rightof the cestui que trust, and nonethe less his right because indeference to the common lawit is pursuable only in common-law courts, and therefore onlyin the name of the common-lawowner, so far as in that way the

ends of justice can be conve-niently and adequately at-tained.27 The ultimate domi-nance of the equity view makesit the view of the legal system,as a whole, and the cases in theCode states show that form willcertainly gradually be adjustedto what is already substance. If this prove true, the result willbe that the use, which began itscareer in the common-lawcourts as a jus in rem, andwhich only after its abandon-ment to the protection of chan-cery succumbed to the lattersform of remedy and came to beregarded as merely a right to asubpoena . . . lost all characteras a jus in rem and passed intothe category of choses-in-action, 28 will have reversedthat process, and become againwhat it was in its beginnings.

Whether justice can as well

be done under the theory of eq-uitable ownership as under theolder theory of the cestuisrights remains a justly contro-verted issue.

(1) What immediately follows

was suggested by his remarks,Jurisprudence (5th ed. 1885),

78993, and by those of Dean

Stone in 17 Col. L. Rev. 472, 478.

(2) Pollock and Maitland,

History, II, 57071.

(3) Pollock and Maitland,

History, II, 570.




(4) Jurisprudence (4th ed.,

1913), 20405. But see Terry,

Leading Principles (1884), Sec.

13438.

(5) Motive zu dem Entwurfe

eines burgerlichen

Gesetzbuches (1896), III, 1, 2

3.


1913), 20506. Cf. Terry,

Leading Principles (1884), Sec.

377.

(7) Elements of Law (6th

ed., 1905), Secs. 31718, 316.


1885), 794.

(9) Williams, Real Property

(23d ed., 1920), 23, ed. by T.

Cyprian Williams.

(10)Markby, Elements of

Law (6th ed., 1905), Sec. 321.

(11)Wynehamer v. The

People, 13 N. Y. 378, 396 (1856),

per Comstock, J.

(12)Idem at 43334, per J.

Selden.

(13)Eaton v. The B. C. & M.

Railroad, 51 N. H. 504, 515

(1872).

(14) Burnet v. Wells, 289 U.S.

670, 677 (1932).

(15)Jurisprudence (5th ed.,

1885) 790.

(16)Coke on Littleton, 4b.

(17)C. Brinkmann, Land

Tenure: Introduction (1933), 9

Encyc. of the Social Sciences, 74.

(18)Huebner, History of

Germanic Private Law (Philbricks

transl., 1918), 231.

(19)Huebner, History of

Germanic Private Law (Philbricks

transl., 1918), 22728.

(20)Idem, 232.

(21)Huebner, op. cit., 229; cf.

162, 168, 368, 370, 384, 405.

(22)History of French Private

Law (Howells transl., 1912),

411, n. 1, citing on terms for

years Pollock and Maitland,

History, II, 105.

(23)Quoted by Butler, note to

Co. Litt. 191a, at II.

(24)Coke on Littleton, 272b.

(25)Jhering, Geist des

Roemischen Rechts (3d ed.,

1877), IV, 338.

(26)Tiffany, Real Property

(2d ed., 1920), Sec. 610.

(27)Billson, Common Law

and Equity (1917), at 212.

(28)Holmes, Early English

Equity (revised, 1908), in (Assoc.

Amer. Law Schools) Select

Essays, II, 71216, quotation

716.




V o l u m e 5

P r o p e r t y

Part I, Chapter V

The whole of the commonlaw of property (the traditionalas distinguished from the statu-tory law) must necessarily be re-garded as having originated insocial choices; that is, in delib-erate preferences among socialinterests.

1. How Public PolicyHas Shaped Property Law

What should, by protectingits holder in acts of control andenjoyment, be made propertyor, by withdrawing protection,destroyed wholly or partially;what property should be bestprotectedand so becomereal property; to what extentparticular liberties of actionshould be recognized as inher-ent in land ownership, andparticularly how to adjustamong neighboring owners the

mutual interaction of libertiesthus accorded; whether itshould be held lawful for oneowner to use his own land forthe sole purpose of lesseningsimilar enjoyment by his neigh-bor, or causing him actual dam-age, as by erecting spite fencesor digging spite wells; whetheran owner should be allowed tocreate new types of interests in

those to whom he alienates;what interests the law shouldrecognize as capable of beingheld by one man in the land of another; what interests shouldbe alienable, and in what man-ners, and which should be in-alienable; whether the power of alienation should be confinedto the owners life or extendedto testamentary gifts upon his

death, and in the latter casesubject to what formalities, andwhether or not with freedom tocut off a surviving spouse orchildren; whether, if un-disposed of at his death, theowners rights should pass tohis descendants or other rela-tives, and in that event withwhat distinctions between re-alty and personalty, and withinwhat degrees of relationship;whether devises should be per-

mitted to corporations, ecclesi-astical in particular, and subjectto what conditions if permittedat all; whether, in his convey-ances to others, an ownershould be permitted to post-pone the consummation of thetransfer until the removal of some impediment to its imme-diate and complete operation (acontingency, a condition) in-

cluded by him within the termsof his grantand if so, whatsorts of suspended operationshould be permitted, and forwhat period of time; whether alandowner should be allowed,in his own alienations of title,to impose restraints upon alien-ations by his successors intitleand if so, then to whatextent and in what manner ;

all these questions of law havebeen problems of public policyand the rules regulating themnecessarily represented, origi-nally, social choices more orless deliberately made by the

judges or legislatures that forany jurisdiction establishedthem.

Very few of these problemsof policy are mere matters of ancient history. Nor are all of them settled today.

(I) BY CONTROL OF ALIEN-ATION. The history of alienationreveals most strikingly conflictsof interest and changes of policy. Originally, a landownersconveyance inter vivos to astranger was subject to pre-emption rights in his heirs; andalthough that restriction earlydisappeared, there are under

Public Policy in the

Law of Property




present-day statutes againstdisinheritance some similar re-strictions upon the effective-ness of such conveyances. Also,transferees came at a very earlyday to be subject at commonlaw to the surviving spousesright of dower or curtesy, and

thisin the common law formor (more usually) a statutorysubstitutehas not disap-peared. In 1290 by the Statuteof Quia Emptores the holder of a fee acquired complete free-dom to alienate the whole of hislands without consent of hisfeudal lord, but only at the priceof losing his right, theretoforeexisting, to make himself feu-dal lord of a grantee to whomhe alienated a part only of hislands. By will he could conveyno lands (after the Norman Con-quest) until 1540; and only of two-thirds of lands held by mili-tary tenures until 1666. At-tempts of great landowners totie up land in a family by entail-ing it were opposed by the ef-forts of those who favored easycommerce in lands, and theconflict was marked by alter-nate victories of one party and

the other over some four cen-turies. Other attempts to fix thecourse of titles through greatperiods of time by creating fu-ture interests (of which entailsmay be a part) are, as alreadystated, peculiar to English law;that is, there is implicit in suchinterests a unique national le-gal policy. Of relatively recentdevelopment are restraintsupon alienation of realty as re-spects postponement of the

time when the interest trans-ferred shall vest in the alienee.Of very recent development arerestraints upon the power of alienating perfected interests inland; and upon the time duringwhich accumulations of income(interest, rents or profits) arepermissible. The alienation of personalty has a much simplerhistory than that of land; but it

is an interesting fact that theextent to which the distinctionbetween law and equity still af-fects the mode of alienation inthe case of the largest item, inmoney value, among forms of personal propertynamely,choses-in-actionis a mooted

point.

(2) BY CONTROL OF THEUSE OF PROPERTY. Both as re-gards the doctrines by whichones use of land is restrainedunder the common law of mal-ice-torts and nuisances, and asregards the general restraintsimposed by the states policepower, it is only in very recenttimes that the liberties of alandowner have been seriouslyinterfered with. The above men-tioned restraints, and all othersthat exist, howsoever they mayactually have originated, fallwithin what is now known asthe police power in a broadsense; that is, the power of promoting the public welfare byrestraining and regulating theuse of liberty and property.1 Inother words, if not traditionallyexisting they could now be cre-

ated and justified under thatpower. The growth of restraintsupon property rights under thishead during the last half cen-tury has been enormous. Forthe purpose of improving pub-lic health, protecting morals,preserving large aggregates of community wealth, and foster-ing general comfort, anindividuals property may beappropriated, damaged, or de-stroyedalthough generally

not without some compensa-tion, aside from necessities of war. He may be compelled to

join with his neighbors in im-provements of their lands fortheir common benefit. Before hecan sell property of certaintypes he may be compelled toobserve administrative regula-tions regarding purity, standardweights and packages, and food

mixtures; and before he shipsother property from one stateto another-or imports anythingfrom a foreign countryhe maybe compelled to secure certifi-cates of inspection and compli-ance with transport regula-tions. If his property is used for

amusement purposes, for adrug store, or for any of vari-ous other special purposes, andonly particularly when it is saidto be affected with a public in-terest, it is subject in each caseto special regulations. Therather limited extent to whichindividual landowners couldcontractually subject land soldby them to restrictions as to use(infra, p. 296) were generallyresorted to for economic ends,although often with incidentalaesthetic gains to the commu-nity. Not even equity has, withrare exceptions, protected es-thetic interests. However, pri-vate regulation of these mattershas been displaced, in thou-sands of cities and towns byzoning ordinances which, al-though predominantly moti-vated by a desire to give stabil-ity and consistency to land val-

ues, also give full recognitionto the protection of health andto aesthetic gains. A tendencyseems to be now visible in theopinion of the courts in nui-sance cases to substitute thisnew public policy for the lawsformer doctrines.

(3) BY INCREASING DISRE-GARD OF TITLE. It is habituallyassumed that one thing thatGovernment cannot do is to

take one mans property andgive it to another; but statutesauthorizing private roads overone mans land for anothersconveniencein effect, byforced sale of an easementhave been held constitutional insome states. Courts of equity,in balancing conveniences,have too frequently done thesame thing; arrogating to them-




V o l u m e 5

P r o p e r t y

selves an authority which mightwell in earlier times have beenheld unconstitutional even if exercised by a legislature, andusually failing even to mention,while weighing material inter-ests measurable in money, theimponderable interestthe

centuries-old tradition of invio-lable property rightswhich bytheir decisions they repudiate.Yet judges are undoubtedly in-creasingly inclined to feel thatonly by such decisions can jus-tice be done; that economicchanges (for example, en-croachment over the boundaryof a great building instead of amedieval Englishmans cottage)compel an exception to thetraditional sanctity of property.Dominant economic interestshave unquestionablyinevita-bly and perhaps, from a socialpoint of view, properlyalwaysbeen favored. Excellent ex-amples of special favor areshown in the treatment of themining and lumber interests atdifferent times in various of ourstates. The decisions referredto constitute in effect, where anindustry is favored as against

an individual complainant, asubsidy; the incongruity is thatthis is conferred by judicial leg-islation.

2. A ConsciousPublic Policy Indispensable

Deliberate consideration of such economic and socialchanges is a duty. We are onlybeginning to consider seriouslythe relation to public interestsof the power of gift, inter vivos

or by will. Following the exhaus-tion of cheap public lands, re-newed attention is again di-rected to the social interest in-volved in easy and efficientproperty transfers, and to theadjustment of formalities of conveyance to that end.

Dependence upon develop-ments in the social milieu is, of course, not peculiar to the prop-

erty law. But the law is, natu-rally, most conservative whereit involves our, basic prefer-ences; and in few other partsof the law are they so funda-mental as in the field of prop-erty. To appreciate how deep liethe foundations of the property

concept it is useful to remem-ber that its psychological rootis the opposition between per-son and thing; and that its dis-tinction between mine andthine is the basis of the dis-tribution of wealth.2 Propertyand the property law are thebase of the economic order, andat the same time economicpractices act with constant andimmense influence upon prop-erty, making it more or lessextensive and forcing changesin the law. For centuries it wasthe direct and open basis of political organization; it is stillof vast significance in socialand political organization, evenof democratic countries; in non-communistic societies privateproperty is regarded as insepa-rable from solid progress; theright to acquire it and be pro-tected in its enjoyment are re-

garded as natural rights un-der our own legal system; andpersonal conditions, includingfreedom, are limited by prop-erty rights, and today vary moreor less with the scope of prop-erty.3

It is manifest, moreover,that some basic rules of prop-erty, such as our old-time prin-ciple of primogeniture (abol-ished only ten years ago in En-gland), were equally the result

of the dominance in society of a certain class and the cause of its persistent dominance. It isequally manifest that there maybe created by law whole catego-ries of propertysuch as pat-ents and copyrights and corpo-rate stock in public utility cor-porations, and that legal ruleswill stimulate or retard the de-velopment of every form of

property. Nor is it difficult tosee that the forms of privateproperty that receive effectiverecognition under law, and themethods, easy or difficult,which it provides for their re-spective transfer (by govern-ment patent and by inheritance,

will, deed, sale, or gift), consti-tute control by law over all dis-tribution of wealth.

The preceding consider-ations explain the otherwise in-explicable perdurance in theproperty law of rules adaptedto past eras of society.

Not only does the history of property afford countless illus-trations of its double role ascreature and creator of law inits own field; its transforma-tions have left their mark uponevery other field of law, evenwhere one might, on firstthought, least expect its influ-ence. This is true, for example,of the criminal law, in which,supposedly, mens reasoned

judgments of public policy re-garding property ought to bemost prominent, but nowhereelse is the ephemeral quality of such judgments more sharply

or abundantly illustrated. In dif-ferent centuries different thingshave been felt to deservesocietys special protection. InLord Hales time, for example,there could be larceny only of such animals as men ateforonly they were property. Lay-men may still marvel, too, as didHobbes, that he who steals ashillings worth of wood thatthe wind has blown down, andwhich l ieth rotten on the

ground, should be hanged forit, and he that takes a treeworth forty or fifty shillingsshould answer for it only indamages.4 Without other ex-amples, the conclusion may besafely accepted that offencesrelating to property ... havebeen subject to greater vicissi-tudes than those which relateto the person, owing to the al-




tered circumstances of nationalwealth, and of the distributionof it among various classes of society.

The property law is full of special creations for the pro-tection of particular classes.Such are liens conceded to fa-

vored types of creditors; secu-rity devices provided for allcreditors; usury laws and bank-ruptcy statutes passed for therelief of debtors. In particularthere were persons whose pow-ers as property owners werenormally restricted for reasonsof public policy. This was forcenturies true of marriedwomen and of infants, and re-mains true of the latter; and inrecent decades it has been in-creasingly true of spendthrifts.It is common usage to speak of these cases as situations of per-sonal incapacity (of course very

properly), and as though theywere only that, conceding anassumedly complete owner-ship to such persons evenwhen they are deprived of thepower of untrammeled disposi-tion, and conceiving of the per-sonal incapacity as merely a

restriction upon the enjoymentof complete ownership. Theattribution of ownership tosuch persons is entirely consis-tent with the conception of ownership in our law. Of course,however, such cases are in-stances of incomplete or imper-fect ownership.

(1) Freund, Police Power

(1904), iii.

(2) Ely, Property and Contract

in Their Relations to the Distribu-

tion of Wealth (1914), 1, 96. For

purposes of social theory property

is to be conceived in terms of the

control of man over things.

(3) They are also limited by

contract, Because today when we

want to change personal condi-

tions we encounter contract as an

opposing force, wherever it is rigid

and inflexible 1 Ely, op. cit., n.

2, supra, 58; and the contract is

treated as property.

(4) Dialogue between a

Lawyer and a Philosopher, quoted

in Amos, Ruins of Time Exempli-

fied in Sir Matthew Hales History

of the Pleas of the Crown (1856),

194.




V o l u m e 5

P r o p e r t y

Part II

TechnicalDescription

of Property

Interests




Part II, Chapter VI

1. Meaning of LandFor centuries a medieval

Latin maxim, in part given cur-rency by Coke, was accepted asa correct definition of thelandowners title: Up to the skyand to the center of the earth.The space thus roughly definedis known in law as his close.With reference to land in min-ing regions the maxim has

never been challenged; nor, ap-parently, with reference to tun-neling near the surface. The cityof New York, for example, someof whose water-mains fromreservoirs distant from the Citylie at places far below the sur-face, has deemed it expedientto clear its rights by purchas-ing easements from landownersthrough whose deep strata themains run. But the growth of aviation promptly led to a chal-

lenge of the surface-ownersunlimited rights, in quality orin extent, in the airspace abovehis land. The present tendency,revealed in legislation and inthe Restatement of our propertylaw by the American Law Insti-tute, is for the recognition of the surface owners rights in somuch airspace as is necessaryfor reasonable enjoyment of the

surface. At present this seemsto include complete rights to aminimum elevation of 500 feetin non-congested areas. Thathis rights or potential rights, inhigher space are subject to apublic right of flight is defi-nitely established by recent de-cisions. Very probably this rightwill not be held or made to in-clude stunt or advertising

flight, and certainly .the surfaceoccupant will continue to enjoythe protection of the ordinarylaw of nuisances. Only withinthe reasonably usable air-space will an unlicensed entrybe a trespass.

Subject to such qualifica-tions as may be established inthe public interest in order tofoster aviation, the airspace isas truly land, legally, as is thesolid earth. Even within the lim-

its in which property rights inthe airspace are recognized it isbarely possible that the policepower might be held to justifyoverriding them by permittingpublic user inconsistent withsuch rights. The doubt arisesfrom the fact that all the prece-dents reveal the police power asa restraint upon an owner s useof his own property.

So, also, buildings firmly af-fixed thereto are land, andlikewise temporary pools of water or permanent pondswholly within one owners sur-face boundaries; or, of course,a lake of asphalt or a saltine. Itwill, however, later appear thatthe surface owner does not ownvagrant water or oil or gaswhich is at any moment within

the confines of his close but inreality unconfined.Like everything else in the

law the above statements of what is legally land today con-ceal a historical development.Only arable land, apparently,was originally regarded by thelaw.

Finally it may be remarkedthat because of our definitionof land it is necessarily inde-structible. Take away any quan-

tity of the soil (which manycases have characterized asthe substance of land, or thefreehold), and the new airspaceso created is still land.

That movable propertymade immovable by permanentfixation to the soil is therebyconceptually converted into realproperty (hence the abovestatement regarding buildings)

GeneralitiesRegarding Real

& Personal Property




V o l u m e 5

P r o p e r t y

has been already noted (p. 94).To what has already been saidit may be added for emphasisthat since land itself may besevered and made personaltythere is no reason why a chat-tel actually affixed should notremain land unless or until sev-

erance, and the English lawtends toward this treatment.But in this country the intent of the affixer, considering who heis, has become almost the de-termining factor in moderncases. The great majority of cases concern fixtures placedby a lessee. If they are tradefixtures it is universally agreedthat they are removable at theend of the tenancy. The pre-sumption is constantly statedthat the tenant does not intendthem to become realty at all;hence, while actually affixed,they are distrainable as chattelsfor rent and liable to be at-tached under execution by thetenants creditor. Similarly, thetenant successfully resists anattempt to claim them made bya mortgagee of the land, afteror before fixation of the chat-tels. The same tendencies, less

marked, are discernible whenother than clearly trade fixturesare involved. When a licensee at-taches chattels he is treatedmuch as a tenant, and again forthe reason, primarily, that itmust be assumed that he wouldnot intend to make them realty.If the landowner makes the at-tachment the contrary assump-tion rules. Hence, if he has al-ready made or thereafter makesa contract to convey the land,

the contract vendee is primafacie entitled to have it with thechattels attached; and if underlike circumstances he mort-gages the land the mortgagepresumptively covers the chat-tels. A trespasser who affixeschattels is not treated as a ten-ant or licensee. No matter howmistaken and therefore inno-cent he may be, his intent is

disregarded; and equally hisexpenditure of labor and mate-rials, however great. Here theold maxim (quicquid plantantur solo, solo cedit) is too rigidlyapplied; the landowner getstitle to the chattel as a true fix-ture, and his enrichment is not

recognized as an unjust one forwhich the wrongdoer may re-cover reimbursement.

2. Horizontal and VerticalSubdivisions of the Close

It has always been assumedthat the surface owner couldsplit up his airspace or theground beneath according tohis will. Precise vertical parti-tion (though lines running tothe earths center and to thesky can be vertical only abovethe earths surface) by sellingoff portions of ones surfaceholdings is of course a daily oc-currence. Separation of title tothe surface from title to coal orother underlying mineral stratahas been common for centuries,without, of course, any attemptto define their contours at thetime of such separation. Defi-nite tunnel spaces have often

been conveyed (p. 294). In re-cent years not only have leasesof definite portions of airspacebecome exceedingly common,but individual ownership of such airspaces has also becomefairly common in cooperativeapartment buildings; and hasalso been made the basis of some great urban industrial un-dertakings. Such titles will veryprobably be held by the courts,or declared by statute, to be

limited in duration that is,particularly to the life of a build-ing; for obviously the public in-terest could not be served byrecognition of continuing titleto such aerial spaces (hereto-fore only parallelepipeds, butmanifestly theoretically capableof fantastic forms, and inacces-sible without trespass uponadjoining land), held by other

persons than a surface owner.Such horizontal division of

the close was characteristic of early Germanic law. It waswholly foreign to the Romanlaw.

3. Simplicity of Personalty

It is obvious that most of the preceding remarks havelittle or no practical applicationto personal property. No prob-lems of boundaries or of con-tent enter into the descriptionof a tangible chattel. In case of incorporeal personalty such ascorporate stock (which carriesrights to share in the controland profits of the corporation)some artificial but practical de-scription is available, as thenumber of a stock certificate.

Of course, an owner of anapple or piano may subdivideit horizontally or vertically orotherwise at his will; but the lawwill obviously never be calledupon to define his rights in thisrespect.

In one respect, however,personalty is less simple thanrealty. The latter is land (asabove explained) or anything

treated as land; and the legalcharacteristics of land, al-though in themselves thesemay be less simple than thoseapplicable to personalty, applyto all such realty. On the otherhand there are various forms of personalty, all of them modemforms of incorporeal property,which are each sui generis.Thus, whole bodies of highlyspecialized law apply to corpo-rate stock, negotiable paper,

patent rights, and copyrights.Of course there are many fieldsof specialized law in the fieldof real property; but with fewexceptions (such as mining lawor western water law) the under-lying fundamental principlesare not so peculiar unto them-selves as in the mentionedtypes of personalty.




4. Occasional PeculiarTreatment of Property AsRealty or Personalty

For the sake of conveniencean English landowners deed tohis land or castle might well beheld to pass title, without spe-cific mention of them, to a chest

of earlier deeds constituting hisproof of ownership; or to suchheirlooms as battle banners,suits of armor, and the like, as-sociated with the traditions of the estate. No heirloom seemsever to have been discovered inthis country of three genera-tions from shirtsleeves toshirtsleeves. But slaves havehere similarly passed withdeeds to land; and doubtlessthe special privileges of a land-owner with respect to wild ani-mals enclosed within a gamepreserve too large to permit of regarding him as already theirowner, would pass as readily inthis country as they havepassed in England.

5. Relative ImportanceToday of Realty andPersonalty

The opinion has earlier

been expressed that the totalvalue of personal property to-day vastly exceeds the value of all realty, and that the same istrue of the total of daily salesof the two forms of property. Arecent scholarly investigationindicated that liquid claimsamounted in 1912 to a fifth of our total national wealth, andhad doubled in amount by1929.

However, these assertions,

assuming their accuracy, do notconstitute proof that personaltyis today socially the more im-portant type of property. Cer-tainly land never had in thiscountry the social, honorific,political, and economic primacywhich it held in England. But ithas primacy everywhere in sys-tems of taxation; and mosteconomists would doubtless

assign it primacy as a basis of capitalistic society.

6. Influence of Feudalismupon the Property Law

It is traditional to ascribe agreat influence upon the law of real property to feudalism.

The influence is, moreover, gen-erally regarded as maleficent,so that the word feudal is notinfrequently no better than anexpletive used to stigmatize arule which is disliked becauseit is old and which, it is there-fore felt, must be undesirableas, indeed, it often is. But feu-dal is often a misnomer. It haselsewhere been pointed out (pp.42, 4346) that, because feu-dal tenure rested upon the dis-tinction in Germanic law be-tween title and immediate en-

joyment, which still runsthrough all our law, writershave frequently characterizedas feudal influences which aresuch in only a secondary sense.These qualifications, however,do not affect the essential jus-tice of the attribution to feudal-ism of a primary influence uponthe law.

Feudal tenure was a vital re-ality until sub-infeudation wasended in 1290 by the Statuteof Quia Emptores. Theretofore,A could enfeoff B of part of hislands in fee simple (and so of all if conveyed in parcels), yetreserve services from B to A ashis feudal lord. The Statutemade such lordships impos-sible, making B feudal tenant of As lord; that is, it ended anyincrease of the rungs of the feu-

dal ladder. As a practical mat-ter this doomed tenure, formany lands were held on triflinghonorific or economic servicesof which from the beginning itwas not worth while to preservethe evidence, and the mainte-nance of others ceased to beworth while when radicalchanges took place in Englishsociety. Thereafter there could

be nothing resembling a new tenure save when a mangranted away less than all of hisestate (his interest), whatever itmight happen to be, in anylands he owned. The portionretained is known as the rever-sion, by virtue of which the land

reverts in enjoyment to thegrantor or his heirs upon ter-mination of the lesser estate.The death blow to tenure andfree development of the rever-sion date necessarily from thesame time. As a matter of fact,Quia Emptores by dooming ten-ure doomed the whole feudalsystem. As Dean Pound hassaid, when Coke [in 1628]dared to write of ownership infee simple and to think of thetenant in fee simple as absoluteowner of the land in which heheld an estate, the substanceof tenure was gone 1and of feudalism.

In our colonies a few inci-dents of socage tenure hadsome vitality except in New En-gland, and not all the coloniesever took the trouble to abol-ish them either separately orcollectively. Such particularly,

were certain rents which, theo-retically, were tenurial, but weresubstantially (since there washere nothing else of feudal-ism) only land taxes. Theoreti-cally it may be argued that inone of our states feudal tenuremight (on this very fragile ba-sis) still exist, and that in a sec-ond state traces of feudal rents,though fast disappearing, stillremain. But to speak of feudal-ism in this country even in co-

lonial times is absurd. KingCharles found that the systemwas dead in England when hetried to raise and finance a feu-dal army. In this country the at-tempts to collect quit rentswere everywhere fought as rep-resenting a degrading controlof free citizens by absenteelandlords. So far as they werecollectible they were regarded




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as land taxes that should bedevoted to public uses. Of course, one can say that landsare held of the states in thiscountry; but they are not heldfeudally, because the feudal in-cidents are gone. Unfortu-nately, however, the word ten-

ure has persisted; and mean-ing little has been used with un-controlled laxity. Thus it hap-pens that in the few situationswhere its presence is, or hasbeen supposed to be, still a re-quirement of the law, its vary-ing or indeterminate meaningshave been a source of confusion(pp. 177, 199, 303, 311).

Escheat, the right by whichthe feudal lord took the landsof his heirless tenant, has like-wise never really existed in thiscountry. Nevertheless it is com-monly used in referring to theright of the state to take lands(or personaltysuch as bankaccounts) of heirless decedents,although that is, with. us, reallyonly one form of eminent do-main or sovereignty. It is purelya literary exercise to draw a par-allel between inheritance taxescollected by the state and re-

liefs collected by inferior lords,or between escheat of heirlesslands to the state and escheatto such lords.

The plainest marks of feu-dalism are in the classificationof estates. The distinction be-tween freeholds and non-free-holds (p. 185) is the most strik-ing. Aside from this only a few

minor remnants of the feudalperiod remain to be eradicated.The distinction between free-holds and chattels real cannotbe dismissed as a mere legalantiquity, since it burdened uswith a double system of prop-erty law that is still. with us (p.

71). But the freeholder has lostall social and political prefer-ences. The economic impor-tance of the leasehold is prob-ably at least equally great.

Of feudalisms next mostfateful legacy, the common lawcanons of descent, only one hashad any recognition in thiscountry for over a century, andthat one which is entirely suit-able to present conditions.

Nothing of all the precedinghas any direct application topersonalty except the contin-ued exclusion of leaseholdsfrom real property as respectsdevolution on the ownersdeath, and for most, though notall, other purposes (p. 197).

7. Plan of Later Chapters of Part II

In discussing property inter-ests it will be necessary to de-

fine them, explain how they arecreated and transferred, andconsider their most importantcharacteristics, particularlytheir destructibility, alienabil-ity, and their consequent liabil-ity to the claims of creditorsagainst their owners. Instead of dealing with all these mattersincidentally to the discussion of

each estate and interest, itseems that desirable emphasismay better be placed upon mat-ters that belong together, if thefollowing plan be adopted. InChapter VII estates of presentenjoyment, or possessory es-tates, of land will be discussed,

including in the discussion ageneral description of each in-terest, particularly as respectsdestructibility and alienability.In Chapter VIII, non-possessoryestates, or estates of futureenjoyment of land, and also cer-tain non-possessory future in-terests not usually classed asestates, will be similarly dis-cussed; in Chapter IX, othernon-possessory interests thatare held by one person as rightsin the land of another; and inChapter X, all sorts of interestsin personal property. Chapter XIwill then be devoted to themethods by which property in-terests are created and trans-ferred, together with certaintopics of general application.

This plan, unfortunately, ig-nores the primary work of law-yers and judges, namely, prob-lems of construction. No atten-

tion to these, with rare excep-tions, seems feasible in a sum-mary and elementary state-ment.

(1) 16 A.B.A.J. at 556




Part II, Chapter VII

1. Distinctionbetween Possessory &Non-Possessory Interests

We have seen how enor-mously important possessionhas been in the history of ourproperty law. With possessionthere was always inseparablyunited the conception of an es-tateremembering that in earlycenturies we must substituteseisin for possession. Any

title of which one could beseised was an estate, no matterwhether it conferred presentseisin of the land, in which casethe seisin was said (with the landin mind) to be actual, or wasmerely capable of ultimately giv-ing seisin of the land, in whichcase the seisin (thinking of theright or title pending that time)was said to be in law (p. 44).Legal speech remains the sametoday. The former estates are

estates of present enjoyment,and therefore possessory; thelatter of future enjoyment, andtherefore non-possessory.These phrases refer to immedi-ate or postponed enjoyment of the land. All estates are presentrights or interests, enjoyed assuch subject to rules adapted totheir varying natures.

Such interests, conferring

presently or potentially seisin of the land, were corporeal; andif estates of inheritance, werecorporeal hereditaments. Thosewhich never could confer seisinwere, under a like assumption,incorporeal hereditaments.These names we still retain.

Among the non-possessoryinterests known as future in-terests there are some which arenot generally known as estates

(p. 241).

2. Conception of an EstateThe word estate is used by

laymen to mean land itself. Law-yers frequently employ it asmeaning merely the durationalmeasure of rights in land, indi-cated by the labels for years,for life, and in fee. It mostusually and most properly isused, however, to indicate theinterests whose durations are

measured by those terms.The conception of an estate

was incipient in Bractons time(c. 1260), but the word was of later origin. The conception of an estate as ones interest inor title to land, has received inAnglo-American law a uniquedevelopment. It had as its foun-dation two other conceptions of early Germanic law, of which

they were primary characteris-tics. One was that of dividedownership (p. 141). Several per-sons may hold simultaneouslyan equal (or greater) number of partial interests in the land, dif-fering in nature. Also, land be-ing indestructible, there was noreason why either complete orlimited liberties of enjoying itshould not be held successivelyby various persons. The other

conception was that of the in-corporeal thing, of which onecould be seised as readily as of land (pp. 3, 243). Our entire lawof primary landed interests is alogical application and develop-ment of these two ideas. Evenestates of present possessionillustrate the extraordinaryprominence in our law of dividedownership. Estates of future andsuccessive ownership illustrateit even more impressively. The

title to land, conceived as an in-corporeal thing, is subjected topartition precisely as is the landof which it insures enjoyment;with the sole difference that par-tition of the title is confined tovarying combinations of a num-ber of fixed interests. The wholedoctrine is an extraordinaryproduct of bold imagination.

Estates of

Present Enjoyment

in Land




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3. Some Characteristicsof Possessory Estates

Some qualities of all the es-tates included in this chaptermay here, once for all, be sum-marily referred to.

(1) The NORMAL TERMINA-

TION of the fee simple, fee tail,the different varieties of tenan-cies for life, and the term foryears is by the expiration of theperiod indicated by the limita-tion which creates them. Thetenancy from year to year is ter-minated by a notice, of whichmore will be said in describingthat interest; and the tenancy atwill by an indication by eitherparty thereto of a desire to endit, save by statutory modifica-tions likewise hereafter men-tioned.

(2) ABNORMAL TERMINA-TION, OR DESTRUCTION 15,however, possible in the case of all interests. This depends, it istrue, somewhat upon what ismeant by abnormal anddestruction. All estates lessthan a fee simple can be de-stroyed by their merger in a fee

simple. The fee tail may be de-stroyed, or the entail barred,by methods mentioned hereaf-ter. The term for years may beprematurely ended by thelandlords eviction of the tenant,if accepted as such by the lat-ter; or perhaps in very rare casesby the tenants disclaimer, if thelandlord enforces a forfeiture.

From very early times life,estates could be terminated bythe happening of a stipulated

event (p. 194); and such pre-mature terminations seem to beproperly called abnormal. A feesimple could be terminated, af-ter 1535 by the device of a shift-ing use, and after 1540 by thatof a shifting devise, prior to thenormal termination of the es-tate. The executory interestsunder the two statutes men-tioned have been since those

dates standard conveyancingdevices, but their normalityseems no reason for referring tothe termination of the fee simpleas other than abnormal and adestruction.

(3) In view of the fact that

possession or (as regarded fu-ture interests) seisin was for cen-turies an absolute prerequisite tothe alienation of interests inland, ALIENABILITY is naturally acharacteristic of all estates of present possession except thetenancy at will (p. 209). Alienabil-ity includes liability to claims of creditors of the holder of the es-tate, and to partition among co-owners (pp. 74, 268).

(4) The historic rule of ourlaw that possession, right orwrong, is title against a wrong-doer has been discussed atlength above (p. 55 et seq.). Thedivision of authority when nomere possessor but a tenant foryears is the plaintiff, and the ac-tion is not one to recover pos-session but one for damages,has also been noted (p. 59). Alike division of authority exists

regarding the right of the holderof a particular estate to recoverdamages for harm both to hisestate and to future interestsfollowing it, and will be later re-ferred to (p. 268).

4. Classification of Freeholdand Non-Freehold Estates

There being no seisin of aterm for years, such interestsfell outside the feudal land law.There were no estates

in them; they were not realproperty, nor therefore here-ditaments going on the ownersdeath to his heir, but personaltythat went to his personal repre-sentative. Nevertheless they willbe discussed as real propertybelow.

Seisin was possible, in theconception of a feudal age, onlyof interests for life or of inherit-

ance. An estate of inheritancewas a fee. Estates for life and infee were regarded as suited tothe status of a free man in a feu-dal societyso much so thattheir grant by a lord to his villeinenfranchised him; they were thetenements or holdings of the

feudal land system; such terre-tenants were freeholders, theirtenements were freeholds, andtheir interests were freehold estates. And such they remain to-day. However, since a tenant haspossession, and the distinctionsbetween possession and seisinhave fortunately been almostforgotten, leaseholds are also,today, universally known as es-tates.

The estates recognized bylaw are the fee simple, fee tail,estate for life, terms for years,tenancies from year to year, andtenancies at will. They will bediscussed in this chapter as in-terests of present enjoyment of the land; in the following chap-ter as interests of future enjoy-ment thereof.

The English property legis-lation of 1925 abolished, as le-gal interests, all estates save the

fee simple and term for years;but allowed all other estates tocontinue as equities. The pro-posed Uniform Law of PropertyAct of the American Law Insti-tute (1938) includes no alter-ations in the traditional schemeof estates. With only very slightexceptions, this scheme haslong been treated by the courtsas complete and unalterable.However, the resemblance be-tween a fee simple and a long

term of years is certain increas-ingly to raise problems; and hasalready raised some, for ex-ample, with reference to dowerin a perpetual leasehold.

5. Estates of Rightand of Wrong

It has several times beenmentioned that wrongful estatesmay be created by wrongful con-




veyances, made by one who isnot the true or complete owner.This was by far a larger chapterin the old law than it is atpresent (pp. 50, 371). Convey-ances capable of passing inter-ests other than those rightfullyheld by the grantor became less

and less common after the in-troduction of legal conveyancesto uses in 1535, all such beinginnocent, because of the man-ner of their operation (pp. 366,396). Today all conveyances areinnocent in the sense that theyconvey only what the grantorholds. But an adverse possessortoday, like an ancient disseisor,still holds an actual estate andhe may freely convey it all toanother, or create out of it lesserwrongful estates, either of present or future enjoyment,subject to the infirmities of theestate out of which they are cre-ated.

6. Freehold Estates(1) THE FEE SIMPLE. Fees be-

ing estates of inheritance, a feewhose course of devolution wassimply to heirs, without quali-fication, was a fee simple. Un-

der traditional rules of descent,still respected on this point inAmerican statutes today, theland descends to lineal heirs(descendants) if such there be,but subject to provisions vary-ing in different states for a sur-viving spouse or possibly par-ents. In this last case it ascends,though the old law never per-mitted this. If there be no de-scendants the property goes tocollaterals: that is, relatives de-

scended from an ancestor com-mon to them and the decedent.In this country (and in variousother civilized countries) de-scendants, however remote, arepreferred to ancestors andcollaterals, however close. Ingeneral, too, no limit is placedon the degree of relationshipwithin which collaterals muststand in order to inherit (p. 162).

Inheritance depends merely onproof of relationship, as it doesin the case of descendants.

It was apparently assumed,in the beginning, that a feesimple would endure forever.This axiom of the medieval lawsmathematics of estates had im-

portant consequences. Todaywe have abundant statistical in-formation contradictory of suchan assumption. Heirs, both lin-eal and collateral may soon dieout. In fact, escheat to the stateof fees simple for which no heircan be found is familiar to news-paper readers (cf. 247).

While the feudal system re-tained vitality even the feesimple of a tenant was not anabsolute estate: only the ulti-mate chief lord, the crown, heldthat. But the feudal system, asalready noted, never had anyreality on this continent. Colo-nial socage tenants in fee simplewere virtually complete and ab-solute owners (pp. 17778).Even, today, however, no ownerin fee simple has an absoluteinterest in the sense that he maydo with the property what hewills; it is subject to the control

of the state, in the interest of his neighbors and of the com-mon good, during his life andat his death (p. 163).

A patent from the state, ac-quisition by adverse possession(which also results in an origi-nal title, not that of the dispos-sessed former owner), a convey-ance by deed or a devise by willfrom a former owner, are theonly present means of acquiringan estate in fee simple. But the

conveyance by deed may be byrule of statute construing or an-nulling an attempted convey-ance in fee tail (p. 191); and in afew states an apparent life es-tate may be held by a court tobe (or by statute may be made)a fee simple because the life ten-ant is given complete libertiesof consumption or an absolutepower of disposal.

It is exceedingly importantto note that a conveyance from0 to A and his heirs is a con-veyance solely to A. The words,and his heirs merely delimit his estate by indicating how it shalldevolve upon his death intes-tate, if he then owns it. The heirs

take from him by inheritance,not from 0; in the language of the law they do not take as pur-chasers.

Because a fee simple is onethat descends simply to heirs,it was a positive requirement of the common law that that wordof general inheritance must ap-pear in the limitation creatingthe estate by deed, although aconsiderable latitude of expres-sion, even inaccurate, was al-lowed by the courts if it satis-fied the main requirement. Nosuch rule was ever applied towills, the fundamental law re-garding which was not devel-oped in the courts of commonlaw; in their construction thecourts sought the testators in-tent from all his language. Thecommon law rule was formerlywell established in this countryby judicial decision, but as a re-

sult of statutory reform the prac-tice in dealing with deeds is nowthat earlier established regard-ing wills. There is, however, thisdifference: that various statutesmake a conveyance to A (with-out words of inheritance) presumptively a conveyance of a feesimple, on the manifest groundthat the grantor intends to con-vey all that he owns or (less cer-tainly) has a power to convey.This rule is wholly independent

of, although it well accords with,the well settled rule that a deedis construed against thegrantor. The common law rulehad in 1936 been wholly orpartly supplanted by judicialdecision or statutory rules inforty-two states of this country.

The qualities of a fee simpleabsolute may generally be indi-cated by the statement that it is




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P r o p e r t y

the fullest interest in landknown to the law, restrainedonly by public policy affecting allproperty rights. Some generalcharacteristics of the fee simpleas a possessory estate havebeen referred to above (p. 184),and others, shared with all other

possessory estates, will beelaborated below (p. 224 etseq.).

(2) THE FEE TAIL This is a feethat descends solely to directdescendants or heirs of thebody. Its name is derived fromthe fact that collateral heirs arecut off (from taille, cut orcarved).

Before 1285, upon a convey-ance to A and the heirs of hisbody, the land descended aslimited, but it was held by thecourts that upon the birth of is-sue A could convey a fee simple.This made the estate, for pur-poses of conveyance, a feesimple conditional. However, thegrantor desired the land to re-vert if the grantees lineal heirscame to an end, and in his aidparliament ordered in 1285 (bythe Statute De Donis

Conditionalibus) that suchshould be the condition of thegrant, and strictly enforced. Thismade the estate necessarily lessthan a fee simple. The Statutecreated the fee tail. The grantorretained a reversion. The rever-sioner thus favored was of course in 1285 (before Quia Emptores) a feudal lord. For cen-turies a struggle continued be-tween great landowners, whosought to tie up land in their

families, and opposing forces.For the creation of an estate

tail by deed it has always beennecessary to include in the limi-tation the phase heirs of thebody, or another phrase includ-ing the word heirs and clearlyindicating lineal issue. As in thecase of fees simple, the phrase-ology of wills was not so re-stricted, and such words as is-

sue, descendants, in fee tail,served equally well. Entails maybe equitable as well as legal.

The fee tail might be a feetail general, in which descentwas to males if present, other-wise to females; or a fee tail male (or female) general, de-

scending respectively to all maleor female descendants; or a feetail special, in which descentwas restricted to issue, of eitherof the preceding three varieties,by a particular spouse of thedonee. There has been almostno variation from the first typein this country.

In our colonial period entailsexisted in most of the colonies.Today there are still large rem-nants of them. In four states of whose common law the StatuteDe Donis is not a part, and inwhich no similar local statuteexists (both exclusions beingdoubtless based upon an opin-ion that it is a medievalism), thecourts have held, or have de-clared in dictum, that the feesimple conditional exists (byadoption of a common law an-tedating 1285!). The normal es-tate tail has in recent years been

referred to by statutes or recog-nized in judicial decisions as ex-isting in half a dozen states. Inthree-fourths of all the states ithas been provided by statutesor (in a few cases) by judicial de-cision that limitations which atcommon law would have createdestates tail shall create some-thing else. The proposed Uni-form Law of Property Act of theAmerican Law Institute (1938)abolishes both the fee simple

conditional and fee tail, and pro-vides that limitations formerlycreating them shall create a feesimple.

The characteristics of a ten-ancy in tail in possession differfrom those of possessory es-tates generally as regardsalienability. The rights of credi-tors attach to the estate, to thelimit of its alienability under lo-

cal statutes. A minority view,evidently based on the minimumpower of the tenant, is that, inthe absence of explicit statutorydeclaration to the contrary, thecreditors can reach no morethan the tenants life interest.No interest in an entail can be

devised. The characteristics of the five types of statutory and

judicial substitutes for the es-tate tail vary from those of theestate tail proper, and those of each substitute type vary fromthose of the other substitutes.

After the passing of DeDonis the tenant in tail of anygeneration could for a time ef-fectively deal with no more thanan estate for his own life. If heattempted to convey the entail,it was destroyed in his granteeupon his own death and the en-try of his heir, for the Statutedeclared that his issue shouldtake. But this did not long re-main true, for its inconvenienceswere too great: for example,leases made out of the entailwere prematurely cut off, for-feiture for treason of the tenantin tail was effective during hislife only. To convey more than a

life estate he must bar the en-tail, that is, cut off the rights of his descendants. Before 1506the courts definitely establishedthe power of the tenant, if inpossession of the land (or act-ing in collusion with the personin possession), to destroy theentail, particularly by a commonlaw conveyance known as a com-mon recovery. It might seemthat to bar the heirs was entirelyto destroy the fee, so that noth-

ing could be conveyed. But thecourts were aiding the tenant intail, who wanted the fee butwanted it free of De Donis. Thelaw, therefore, adopted the viewthat barring the entail merelydestroyed a restriction upon afee simple, and held that a feesimple was conveyed. However,if a conveyance was employedthat was ineffective as a




disentailing assurance, thegrantee received a base feesimple, defeasible on thegrantors death (at the option of the issue). By a common recov-ery the tenant could not merelybar the entail but also destroyall future interests limited there-

after. No tenant in fee simplehas ever been allowed to dowhat was thus permitted to atenant in tail.

The pendulum swung theother way when, about 1650, thelandowners acquired a far moreeffective method of perpetuat-ing control over the future of their lands. This was by meansof a trust known as a strict settlement, which could be per-petuated indefinitely by havingthe heir apparent of each gen-eration join his father (underadequate persuasion by the lat-ter, if necessary, regarding theformers income or desires) inmaking over the settlement, inits original terms, for anothergeneration. An entail was ca-pable of little variety of choices,whereas in a settlement one mayexpress very freely preferencesamong persons, and advance to

some extent ones economicpredilections. Such strict settle-ments played a vast part inEnglands social and economichistory, but in this country theyhave been very little used.

So far as entails are still pos-sible in this country they arebarrable by ordinary deed pur-porting to convey a fee simple,but, as at common law, not bywill. It is essential to the opera-tion of a disentailing deed as

such that it contain the asser-tion of an intent to bar the is-sue. For no reason good in mod-ern times (p. 64), some statutesrestrict disentailing powers totenants in tail who are in pos-session or who act with the oc-cupant of the land. Moderndisentailing deeds have the ef-fect of the old common recov-ery; the deed conveys an abso-

lute fee simple, not only destroy-ing the entail but also all futureinterests expectant thereon. Theemployment of a conveyanceineffective as a disentailing deedstill creates a base fee simple orwhatever other estate it pur-ports to grant, defeasible on the

death of the tenant in tail.

(3) ESTATES FOR LIFE. Suchinterests may be either for thelife of the grantee himself or forthe life of another person (pur auter vie); or for the lives of twoor more persons. In the last casethe measuring lives may includethose of the grantor or grantee.If the grantee be so included andsurvives the others named hethereafter holds a life estate of the normal type. If he pre-de-ceases them there then existswhat is seemingly a property in-terest whose owner is dead.This, in itself, is not peculiar; butthe fact that the interest is non-heritable (and being realty itcould not devolve as personalty)is distinctly peculiar, and wasunpalatable to the dead tenantscreditors. The difficulties of thesituation have been generally

regulated by statute, but in dif-ferent ways; and there are evenstates which have not lessenedthe original embarrassment. Inthem, as at common law, any-body may take the property asownerless, as a general occu-pant; but possibly the heir, if he be mentioned (unnecessarilyand improperly) in the creationof the estate as one to A andhis heirs, might still have aprior right as he had at common

law as special occupant. TheAmerican Law Institute statesthe present law as not recogniz-ing the general occupant, pre-ferring the special occupant,and, in the absence of such,passing the interest as personalproperty.

The estate may be for a lifewithout qualifications, or it maybe one which, though it may

possibly endure for life, is subject to termination before the in-dicated death by the happeningof another event. If not specifi-cally so limited, it must at leastbe, an estate which cannot lastlonger than the life or lives of one or mote human beings, and

is not terminable at any fixed orcomputable period of time or atthe will of the transferror. If soterminable, it is an estate forlife determinable. The eventthat terminates it may be onewhose occurrence is uncertain,or may be one to the time of whose certain occurrence no lat-est possible date can be as-signed. An illustration of thefirst is the exceedingly commontestamentary gift to adecedents widow until her re-marriage, which is a life estatebecause she may never remarry;and is indeed, usually expressedin the will as a gift to her forlife or until she remarries. Simi-larly, if the grants be to A andB during their marriage, to Aso long as he lives on Blackacre(even though he lives there atanothers will), or to A so longas he remains away from Rus-

sia. An illustration of the sec-ond is a conveyance to A for lifeif B shall so long live; which isreally an interest in A for Bs life.But a grant to A for fifty years if he (or B) shall so long live is aterm for years, possibly termi-nable earlier by the death of A(or B). The law does not denythat a man may die before anygiven date. But the gift in ques-tion cannot be a life estate, be-cause this would then be deter-

minable by the ending of theterman event certain to hap-pen, and not merely at the lat-est when, but only when, thefifty years expire. The law re-gards it as contradictory of a giftfor life to declare that it must terminate within any definitespan of years, no matter howlong, and no matter how old thegrantee at the time of the grant.




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To refuse to assume that a manwill certainly die within a certainperiod may seem in particularcases foolish, and in fact noth-ing even in medieval ideas andconditions makes its originclear. It may well be wise of thelaw, however, to avoid the com-

plications inherent in any at-tempts to speculate upon lifeexpectancies.

Life estates may be createdby an individuals conveyance(which is, of course, really byrules of law giving effect to suchconveyance), or by adverse pos-session, or directly by opera-tion of law. Dower rights, incho-ate and consummate, andcurtesy rights, initiate and con-summate, were creatures of thecustomary law; but they havebeen everywhere displaced bystatutory provisions for a surviv-ing spouse, often under the oldnames. Likewise created by op-eration of law was the estate forlife after possibility of issue ex-tinct, which arose in a tenantin tail special upon the death of the other spouse, by whom orupon whose body issue was tobe begotten. The homestead

estate, purely statutory, origi-nated in Texas in 1836.Life estates were formerly

often created by a rule of con-veyancing law when a grantorintended to create a fee butfailed to use the words essen-tial for the effectuation of thatpurpose. A grant to A wastherefore (pp. 3656) long heldto be merely a life estate, andno evidence to show a contraryintent was admissible. In con-

struing wills courts frequentlyfind life estates expressedtherein by implication. Some of the situations in which this isdone have become so standard-ized that they can be stated asdefinite rules of property. Thebasis of such constructions inwills is usually an assumptionthat the testator must havewished to dispose completely of

his interests, and for the pur-pose of effecting this supposedintent. The creation of estatesby implication is not confined,theoretically, to life estates, but,practically speaking, it is so con-fined.

The characteristics of a pos-

sessory estate for life presenttwo aspects. Its holder enjoysthe fundamental liberties andrights common to all possessoryestates (p. 228), and is subjectto the restraints of the doctrineof waste (p. 224). But, being onlypart of a fee simple, the life es-tate is necessarily followed by areversion or some other futureinterest; and as the completetitle is in the owners of all exist-ing interests the law has foundit necessary to restrain conductor require conduct of the lifetenant (that is, of the holder of the possessory estate, who isusually in fact a life tenant) invarious ways that fall outsidethe doctrine of waste. These willbe mentioned in discussing fu-ture interests (p. 267).

Of course. the life estate isalienable, likewise partible, andsubject to the claims of the

tenants creditors. But this istrue only in a general way. Par-ticularly the homestead estateand estates of dower andcurtesy, have special qualities.

7. EstatesLess than Freehold

(1) LEASES AND LEASEHOLDSThe interests commonly calledleaseholds may in fact be cre-ated by will, in which case theyare tenancies but are not,

strictly speaking, leaseholds.Although, as already several

times noticed, leaseholds arestill personalty for purposes of devolution upon their ownersdeath, they are for various otherpurposes realty; and it may fairlybe said that the tenants inter-est has been increasingly as-similated to real property eversince the actions available for

his protection ceased, five cen-turies ago, to be personal. It istherefore most properly dis-cussed as realty.

A lease (sometimes called ademise) is the act by whichthere is created a leasehold in-terest in land. In old law the

phrase lease for life was com-mon, but of course livery of sei-sin was required to create thefreehold. Today a deed can cre-ate the interest, but lease ishardly ever employed in refer-ence to other than interests lessthan freehold. Nor is it properlyused in referring to the grant of incorporeal hereditaments (p.432). If the interest be a lease-hold at will or for a short term,the act may be a parol agree-ment and entry; that is, anagreement that the interestshall presently pass (not anagreement to give it sometimein the future), followed by a tak-ing of possession. In the old lawthis was required to be by anactual entry except in caseswhere the statute of uses gavepossession by execution of ause (p. 259). In our present lawthe requirement is unchanged.

In the United States the statuteof frauds of most states permitsonly leaseholds of one year orless or less than one year tobe thus created. To create alonger term a writing is every-where necessary, and althoughby tradition this takes the formof a sealed instrument of arather specialized type, suchformality is rarely a positive re-quirement.

The essence of a lease is

twofold. On one hand theremust be the transfer of posses-sion of the land from the lessorto the lessee, the creation of apossessory estate. Nobody canbe a tenant of land who has notpossession. One may find inreputable books the statementthat the tenant lacks full legalpossession because the rever-sioner who is seised has that.




This is an attempt to give to sei-sin some meaning which it nei-ther has today, nor ever had inmedieval law. Every part of thelaw of landlord and tenant re-futes such a fantasy. The tenanthas complete possession; thelandlord himself is a trespasser

if he enters, unless for inspec-tion of the premises or to de-mand rent or for other specialpurposes, and under proper cir-cumstances of time and manner.Any dispossession of the tenantfrom even a part of the premiseswill eventuate, if he so wishes,either in an eviction by the land-lord or a surrender by himself that terminates the tenancy. Thenecessity of possession in a ten-ant is the distinction betweenhim and a licensee, or betweena cropper who is also a lesseeand one who has merely a crop-ping contract, or between anemployee who is a mere occu-pant and one who is a tenant.

On the other hand, the lease-hold must be smaller than thelessors estate out of which it iscreated, for a lessor must be areversioner that is, he must havethe right to possession in the

future when the leasehold ends.If the leasehold is created outof a freehold it is, simply, aleasehold; if created out of alarger leasehold it is a sub-lease, and there are two rever-sioners, the immediate and thehead landlord. Nobody can bea lessor who is not a reversioner;when all ones estate is givenout there is simply a transfer orconveyance of it (called an as-signment if the interest trans-

ferred is a leasehold), and no tieremains between grantor andgrantee. It is well settled that noreversion is constituted, when atenant assigns his full term, byreserving a right of entry, or arent different from that which hehimself is obligated to pay, orby inserting new conditions.Such cases are not subleasesbut assignments.

Attention has been calledabove (p. 177) to the relationbetween the death of feudal ten-ure and the free development of the reversion. Since the latterwas the only legal relationshipthat at all resembled feudal ten-ure, and since the relationship

between lessor and lessee of-fered most resemblance theretobecause of the payment of rent(and perhaps other acts sug-gesting feudal services), it hasbecome usual to say that ten-ure exists between the land-lord and the tenant. Even inthis situation the tenure is onlya word, really meaning no morethan that the tenant occupiesthe land of (holds of) the re-versioner. So, for example, whenthe reversioner assigns, the one-time requirement that the ten-ant attorn to the assignee,based on the feudal idea of apersonal relationship betweenthem, has in most of our statesbecome obsolete without legis-lative action. When used in con-nection with freehold estates, insuch phrases as tenant in feesimple, the word tenant is amere feudal relic of no present

significance; he holds only inthe sense that he owns, as onemight be tenant of a piano. Itwas once much more usual thantoday to speak of a lease forlife, but the life estate wasrarely if ever called a leasehold,nor is the relationship betweenthe reversioner and the holderof any other estate than a lease-hold known as tenure. Theword does no particular harm inthis part of the law.

The leasing instrument isnormally of double character.First, it embodies a lease, which,as just explained, is a deed thatconveys an interest in land. Thisis the primary benefit accruingto the tenant. Secondly, the in-strument may contain all sortsof contractual provisions, as wellas certain future interests in theland reserved to the lessor in

addition to the reversion whichthe law gives him.

These contractual ele-ments, however, are also of adouble character, having bothcontractual and property char-acteristics. On the side of thetenant there is almost always a

promise to pay rent. This is notabsolutely essential, for a land-owner can make a gift of a lease-hold interest in his land as wellas of the complete title. But renthas always been the primary rea-son for leases: they were favor-ite medieval investments, freefrom many insecurities that bur-dened realty. Hence the sayingthat rent is incident to the re-version, although we shall seethey can be severed (p. 335).One aspect of this, historicallyconsidered, is that the right torent was originally a real right,a right in the land the rent is-sues out of the land, it is partof the issues or profits of theland. But today we think of it asissuing from a purse; we cannotfeel the meaning of the oldphrases. However, remedies forthe collection of rent retaintraces of old-time real procedure

(p. 336). The tenant may makevarious other promisesto re-pair buildings, keep them in-sured, not assign or sublet with-out the landlords consent, laydrains, rotate crops, etc. On theother hand, the landlord maymake some of these or otherpromises. Any covenants madeby the landlord are benefits, ad-ditional to the leasehold, re-ceived by the tenant. Covenantsmade by the latter, and the con-

ditions upon their breach whichenable the landlord to deprivehim of the land, are the benefitson the side of the landlord.

All these promises (cov-enants, since they have for cen-turies been almost invariablyunder seal) have peculiar prop-erty characteristics. Centuriesbefore the doctrine of third partybeneficiary arose in the ordinary






teresse termini, although not atenant, has an estate.

The strange idea is some-times encountered in law booksthat the tenant owns nothing,but has only a rightwhichsometimes is not even referredto as a property right, but only

as a contract rightin the landof another. Although this is ev-eryday language, it is a fact thateven Austin conceded owner-ship to a lessee.

(2) CLASSIFICATION. Theseinterests are known indifferentlyas chattels real, tenancies lessthan freehold, or estates lessthan freehold. The first two des-ignations are unexceptionable.To the last name exceptionmight be taken by persons whocling to the feudal views thatrecognized estates in freeholdsonly. The name of leaseholds iscommonly used as synonymouswith the two preceding; but ithas already been remarked thatthe interests in question mayequally well be created by will,or by deeds that would not becalled leases.

The possible types of these

tenancies are three: the term foryears (certain), the tenancy fromyear to year, and the tenancy atwill. Their characteristics will beindicated below.

The so-called tenancy at suf-ferance is no tenancy whatever,but it certainly is an interest inthe land and a possessory es-tate. A tenant of any type whowrongfully continues in posses-sion after the termination of histenancy is said to hold over

and to be a tenant at sufferance.He does not hold over in thesense that he continues to holdthe same estate; but only in thesense that he continues to holdpossession. Because he enteredrightfully he cannot be sued asa trespasser for breaking theclose; nor in trespass for mesneprofits until after entry by thelandowner. But he is in posses-

sion, for he is continuing theacts, and with the requisite ani-mus, that constituted his pos-session while a rightful tenant;and therefore has been allowedsince Cokes time to sue strang-ers for trespass. The possessionis necessarily adverse. If the

owner so elects, he may there-fore sue him in assumpsit foruse and occupation, or in eject-ment. The idea has been some-what common that the circum-stances preclude a claim by himof possession of right, which,it is assumed, is essential toadverse possession. But that isa misconception (p. 356). If thelandowner elects to waive thewrongdoing then everywhere bythe will of both parties, and inalmost all jurisdictions by thelandowners choice regardlessof the wrongdoers will, he maybe made again a true tenant of some typefor another year(the most common view), orfrom year to year, or for the termof the original tenancy, accord-ing to the view taken in a par-ticular stateand becomes li-able again for rent. And thesame is true of a tenant whose

lease is automatically extendedby failure to give notice of in-tent to surrender, if he properlydoes so but then holds over.

(3) TERMS FOR YEARS CER-TAIN. These tenancies need notbe, literally, terms for years. Thename is employed to includeterms for months, which are verycommon, for weeks, which arerare, or for days, which are veryrare; and there is no reason why

shorter terms should not berecognized.

To create such a term theremust be a fixed date beyondwhich it cannot extendwhich,it has been seen, distinguishesit from any freehold; and it mustlikewise begin at a definite date,although this may be in the fu-ture. But either or both of thesedates may be defined in the leas-

ing instrument by reference toevents whose date can be ascer-tained at the moment of the let-ting. So, for example, leaseholdswould presumably be good thatare for a number of specified fu-ture holdings of dates definitelyascertainable, as a leasehold for

three successive presidential in-auguration days or for certainholidays; to continue during theminority of A, for as manyyears as A shall name, for aslong as the Woolworth buildinghas already stood. Butleaseholds are not created if stipulated to continue as longas the lessee shall continue hispresent business, or until thelessor shall sell the premises.A lease for 100 years if the les-see shall so long live creates aterm of 100 years, the only un-certainty being as regards thedate at which death shall end it;but a like uncertainty attends allleaseholds, since all are liable todestruction at unpredictabletimes by merger, forfeiture, orsurrender. On the other hand, agrant to A so long as he shalllive cannot be a leasehold, bothbecause no term of years can be

that long, as already explained(p. 194), and because the dateof termination is notascertainable at the time of theletting.

A distinct beginning hasbeen made in fixing by statutethe permissible length of leaseholds in agricultural lands,and there are traces of a dispo-sition to limit similarly, thoughless rigorously, leaseholds in ur-ban lots.

(4) TENANCIES AT WILL. Atenancy at will is an estate ter-minable at any time by eitherlandlord or tenant. But it mustbe remembered that either afreehold or a term of years maybe granted with a power in thegrantee to terminate it at will;and the latter is not a tenancyat will, since the power to ter-




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minate need not be held by bothparties.

Emphasis has already beengiven to the fact that trespass-ers and licensees, who have nopossession, must be distin-guished from tenants at will,who do have possession. The

acquisition of possession is amatter of fact; a trespasser orlicensee may acquire it. But it isan adverse possession unlessand until the landowners willconverts it into a tenancy at will.However, mere silence and fail-ure to object, mere acceptanceof the wrongful situation as afact, cannot, under the name of acquiescence, constitute voli-tion to substitute a rightful fora wrongful holding; for if thatreasoning were allowed no ad-verse possession could everripen into title.

The tenancy may, of course,be created by a formal writtenlease, but such a mode of cre-ation is rare. Since it is un-affected by the Statute of Frauds, it may be created byexplicit oral indication of itsnature or by merely giving pos-session of the land. A contract

purchaser of land who occupiesbefore receiving a deed, a per-son who enters as an intendedgrantee under a supposedlyvalid but in fact invalid deed, oran in-tended lessee who entersunder a lease that fails, or anegotiator for purchase or leasewho is given possession, are alllessees at will. The same inter-est is created when a formallease fails to specify the dura-tion of a term thereby intended

to be given, or to specify thenature of the tenancy.

Termination of the tenancycould be accomplished at com-mon law by giving written or oralnotice, or by any behavior giv-ing reasonably clear equivalentnotice; or by doing any acts onthe premises inconsistent withthe tenants right to exclusivepossession and amounting,

therefore, to eviction of the les-see. By statute or by judicial al-teration of the common law,probably at least half of thestates of this country now re-quire a notice of some (varying)length of time to be given by thelandlord, unless the parties

agree otherwise. The reason forthis is the right (thus truly a re-ality in those states) to removeannual crops (grains, gardenvegetables, etc.) planted andcultivated by him, as emble-ments. Such fructus industriales are for most purposes treated aschattels, under the statute of frauds and otherwise. To referto them as fixtures, however,is a misnomer. The annual prod-ucts secured by labor from pe-rennial bushes and trees, suchas berries, hops, and turpentineare sometimes also classedamong emblements.

Subject to similar excep-tions, the tenant may terminatethe tenancy by simply relin-quishing possession, but not bya notice without relinquishingpossession. Since the landlordmay end the lease, if he desires,without reason, he may of

course do so if the tenantswaste or his disclaimer (p. 224)or other ill behavior afford rea-son. The tenancy is also endedby rule of law if either party dies,or if the landlord conveys all orpart of his title to all or part of the land, or if it is transferredby act of law for the benefit of his creditors. In both cases theexplanation is said to be thepeculiarly personal relationshipof the parties, which ceases if

strangers become parties to thetitle. That explanation is difficultto reconcile with the view, takenin a few jurisdictions, that thetenancy continues, despite suchconveyances, until the tenantlearns of them. This lastamounts to requiring notice of a volition to end the tenancy; avolition then inferred from afeeling that the entrance of

strangers into the relationshipshould end it. Even less widelysupported is the view that thetenants futile attempt to assignhis estate or to create out of it asublease (neither of which canbe done) destroys his estate onlywhen the landlord learns of it.

Of course, the tenancy atwill, likewise, does not pass tothe tenants personal represen-tative upon his death, nor can itbe devised.

(5) TENANCIES FROM YEARTO YEAR. Such a tenancy is asingle tenancy, not a series of yearly tenancies. This has sev-eral important consequences,particularly as regards thelandlords remedies for the re-covery of rent. Although termi-nable at the end of any year if either party desires, it is veryunlike a tenancy at will becauseit must always continue for atleast one year.

Unless in the first year no-tice is given by one party to theother that the tenancy shall endat the expiration of that year theestate continues; and so in ev-ery subsequent year. In almost

all states the obligation to givenotice in order to be released isreciprocal. At common law thenotice was required to be givenat least six months before theend of a current year; in thiscountry statutes in variousstates have required notices of from one to three months. Butlegislation has been abundant,and there are peculiar varia-tions, such as notice of a year,power of summary termination

by the landlord at the end of anyyear, or notice by the landlordonly. In the case of tenanciesfrom quarter to quarter, monthto month, or week to week, thenotice required is almost every-where a full quarter, month, orweek. The parties may by con-tract substitute their own pro-visions on the subject.

These tenancies can be cre-




ated directly by act of the land-owner, but they are usually cre-ated by operation of law upona situation arising from acts of the owner intended to have an-other effect, and which are inef-fective for the intended purpose.It may be created directly by any

words sufficiently manifestingan intent to do so. It has beenheld that this requirement is sat-isfied by such words as for oneyear... and an indefinite periodthereafter, or for one year . ..and so on; but in this case it is clear that the first year is a termcertain, the other tenancy thenbeginning.

The tenancy is also createdby a letting without indicationof its nature, or by a lease whichis for some reason invalid, if thetenancy at will thus created isfollowed by the payment of rentfor a year or as part of a yearsrent. This result should be heldto rest upon a mere presump-tion that the rent is paid and ac-cepted with an intention consis-tent therewith. It should be re-buttable, therefore, by evidencethat the rent is given and ac-cepted as rent under a tenancy

at will that shall last at least forthe period for which such rentis paid; and this would presum-ably everywhere be so held, al-though the other result is con-stantly stated as one inevitablyfollowing from the stated facts.Any tenancy at will, whether cre-ated as above assumed or oth-erwise, can probably be madethe basis of a tenancy from yearto year except in two states, inwhich a tenancy at will (or at

least one arising from an at-tempt to create orally a tenancywhich the local statute of fraudsrequires to be created by writ-ing) cannot be transformed intoany other interest. And the ac-tual payment of rent, being onlyevidence of intention, any otherevidence to the same effect willserve for the same purpose.When a term of years expires the

parties may agree upon a re-newal, and this is ordinarily re-garded as one from year to year,though sometimes it is held tobe a tenancy for a year, and inthe exceptional states just men-tioned a tenancy at will.

The tenancy from year to

year is assignable and passes tothe tenants personal represen-tative upon his death, and nei-ther these transfers nor similartransfers of the landlords rever-sion affects the tenancy. Upondeath of the landlord, whetherhis reversion goes to his heir orpersonal representative de-pends upon whether it is a free-hold or a chattel real. For notonly may a tenancy from year toyear be created out of a term foryears: it has even been held (inEngland at least) that a tenantfrom year to year can give outof it a sublease for years certainor from year to year, and in ei-ther case retain a reversion; thesublease, however, being neces-sarily subject to premature ter-mination by the termination of the tenancy out of which it wasgranted.

(6) RELATIONS OF THIRDPERSONS. The very specialconsequences which followtransfers of the term of years ora tenancy from year to year callfor special comment.

Assignment of the reversionis traditionally made by formaldeed. That of the leasehold ismade by any writing (to satisfythe requirement of the statuteof frauds) manifesting the intentto transfer the whole estate; and

this is usually indorsed on thelease. A leasehold that can becreated orally can almost every-where be orally assigned. Eitherreversion or leasehold may beassigned by operation of law,particularly upon the death of the owner, under executions,and in bankruptcy proceedings.Precisely what is assigned by thereversioner is sometimes diffi-

cult to say. The distinction be-tween successive and concur-rent leases has been advertedto, and it was noted that in caseof the latter the transfer of thereversion may or may not in-clude a transfer of the right tothe rent (pp. 200, 203). A trans-

fer by the reversioner stated asone of the lease can only mean,properly, benefits under thelease as distinguished from, andsevered from, the reversion towhich they are normally inci-dent.

The reversioner may assignhis entire reversion in all of theland, which amounts merely toa transfer of his title or changeof ownership; and of course itis unimportant whether the con-veyance speaks of reversion orof land. He may do the same asregards part of the land, whichhas the same meaning as re-spects that portion. He may as-sign part of the reversion in allof the land; as when a fee simplereversioner gives out a life-es-tate only. In this case the as-signee (sub-reversioner) holdsan estate of limited and subor-dinate duration and is owner for

a limited time, while the origi-nal (or head) reversioner re-mains ultimate and generalowner. A similar result followsas to part of the land if part of the reversion is assigned in aportion only of the land. Like-wise, the leaseholder may assignhis estate; but here the word as-signment is held to a restrictedmeaning. He assigns onlywhen he transfers his completeestate or term, in either all or

part of the land. He sub-letswhen he transfers only part of his term in all or part of the land.In case of assignment the as-signer becomes tenant of theoriginal landlord as regards allor part of the land. In case of asublease, the original tenantbecomes a reversioner and alandlord; the sublessee is thetenant of his assignor, not of the




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head landlord.Very important conse-

quences attach to these distinc-tions. Reference has been madebefore (p. 201) to the covenantswhich constitute the portions of leasing instruments which arecontractual in form, and the con-

ditions subsequent imposedupon breach of covenants vitallyimportant. The burdens of thereversioners covenants runagainst all transferees of the re-version, in whole or in part, asabove enumerated. The benefitsof the tenants covenants, andof conditions subsequent im-posed upon their breach, run inthe same manner. But it is verydifferent on the side of the ten-ant. The benefits of thereversioners covenants run onlyto, and the burden of thetenants covenants run onlyagainst, the tenants assignees.But the burden of conditions imposed upon breach of thetenants covenants run alsoagainst his sublessees. Suchconditions are rarely attached tocovenants made by the rever-sioner.

It has earlier been noted (p.

201) that those covenants of theparties run which touch andconcern the land. A covenanttouches and concerns the land when it touches and concernsthe covenantee through theland; which it does when of suchnature that its benefit to him re-sults with sufficient directnessfrom the effect upon the lease-hold estate of its performance;in other words, when he receivesthe benefit of performance with

sufficient directness through hisrelation to the land. If the ben-efit concerns the covenantee inthis sense the burden concernsthe covenantor. What is suffi-cient directness only accumu-lated precedents can show (p.297 et seq.). Covenants to payrent, manure the land, rotatecrops, repair buildings, insurepremises and use insurance

money upon the premises, re-new the lease, and to sell theland to the lessee if he elect tobuy, have, for example, beenheld to satisfy the requirement.The contrary view has beentaken of covenants to pay moneyto strangers, not to open near

by a business competing withthe covenantees, to keep upmilk routes served by the cov-enantee while operating acreamery leased to the covenan-tor. A covenant that does nottouch and concern the partiesthrough the leasehold relationis said to be collateral thereto.When a covenant relates to athing as yet not existent (as acovenant to plant and prunehedges), the old law was thatassignees were not bound un-less the covenantor expresslycovenanted for himself and as-signs. On this point the presentlaw is much divided, with agrowing tendency to ignore orrepudiate the requirement thatassigns be mentioned.

The landlords implied cov-enant for quiet enjoyment (p.202) also runs with the land.

The covenants are said to

run with the land; and are alsosaid to run with the land andthe reversion. Either phrase,covers all the transfers of bothleasehold and reversion. Asrights in and over things are,strictly, the property withwhich law deals, the reversionand leasehold are both land ina legal sense and their holdersare landowners, although thetenants ownership includespossession of the physical land.

Contract continues to unitethe original contracting partiesthroughout the life of the stipu-lated tenancy, regardless of as-signments of either interest. Theprivity of estate uniting theoriginal parties necessarilyceases when one of them hasparted with all his interest in theland. A similar privity of estateis immediately created, however,

when either reversion or lease-hold is assigned, between suchassignee and the other originalparty. And privity of contractlikewise exists between these,and likewise between respectiveassignees of the reversion andthe leasehold, for the statement

that a covenant runs meansthat the assignee becomes astruly a party to the contract aswere the original parties them-selves. Finally, it is to be notedthat the promissory benefit andburden that thus runs with theland on either side (that is, witheither estate) does run, literally,with it; so that no transfereeenjoys the one or bears the bur-den of the other longer than heretains the estateor, in otherwords, no longer than there is aprivity of estate to which he is aparty.

Two comments upon the laststatement are necessary. First,this is true unless an assignee,in consideration of the assign-ment to him, explicitly agrees to perform the covenants; and tak-ing a leasehold subject to cov-enants in the lease is not apromise to the- assignor to per-

form them, much less a prom-ise to do so after parting withthe leasehold. Moreover, thelandlord can not hold the as-signee on such a contract withhis assignor except in jurisdic-tions recognizing the third partybeneficiary doctrine. Second,privity of estate does not meanthat the assignee must enterupon the premises. He has theestate, or title, by the assign-ment.

The above results may, of course, be altered by the re-cording acts. A lease will be de-stroyed if a subsequent pur-chaser takes title to the rever-sion, or another person be-comes tenant under a laterlease, for value and without no-tice. But leases, except shortterms (and of course tenanciesat .will), are generally within the




recording acts; and the record,and usually the tenants posses-sion as well, will give notice.Transferees of the reversionmust take subject to leases thatare not within the recordingacts, as incumbrances upon thetitle.

The common law actionsavailable to the parties werebased upon the relationships

just stated. These still controlthe remedies available except sofar as statutes have given al-tered remedies for the collectionof rent. The landlord could suefor the rent in an action of debt,that being based upon privity of estate because of the medievalconception of rent as somethingissuing out of the land, owed byit, and owned by the reversioner.Debt could not be used againstthe original tenant after assign-ment, nor against any assign af-ter he had passed the leaseholdto another, except for rent thathad become due while the de-fendant was in enjoyment of theland.

On other promises than thatto pay rent the reversionerswere confined to the contractual

remedy; and on the tenants sideonly covenant was available, forno promise made by the land-lord could be the basis of a realaction. Covenant was availableto the landlord or any assign of the reversion, against the origi-nal tenant, throughout the du-ration of the term, for non-per-formance of the promise to payrent or of any other promise. Itwas available to these plaintiffs,however, only for breaches oc-

curring while they were entitledto the benefit of the promisessued uponin other words,while they respectively held thereversion. Against assignees of the leasehold covenant lay onlyfor breaches that occurred whilethey respectively held that inter-est. The tenant or his assigncould sue the original rever-sioner, as covenantor, through-

out the duration of the term. Butno assign of the reversioner wasliable for breaches other thanthose occurring while he heldthe estate.

The liability of the originalcovenantors for breaches of their promises made by assigns

of their estates is said to be sec-ondary, and that of the assign-ees primary. This is the resultof grafting equitable views uponlegal doctrines. The original par-ties promised, therefore theymay be sued; but if they pay theymay sue for reimbursement theassignees who failed to fulfill thecovenants. As between originaland later promisor (for the as-signee does promise when thecovenant runs), the former isonly a surety. If equitable doc-trines are even farther adoptedin the law procedure, the origi-nal covenantor can have exon-eration, compelling suit to bedefended by (or even broughtfirst against) his assignee.

When a lessee dies, his per-sonal representatives are liable,as such, to the extent of his as-sets for breaches of his expresscovenants in the lease. They are

also assignees of the leaseholdby operation of law, and personally suable on the covenants;but their personal liability (sincethey are only involuntary as-signs by acceptance of the rep-resentative office) is limited. Thesame is true of covenants by thereversioner. As regards his im-plied covenant for quiet enjoy-ment, however, that is held tobind only by privity of estate,and the personal representa-

tives are not liable for its breach.If a tenant covenants not to

assign without the landlordsconsent, and an assignment ismade with consent, by the de-cided weight of authority thecovenant is not discharged butis a continuing obligation thatruns with the land. The tenant,however, despite his covenant,has the power to make an effec-

tive assignment without con-sent, for he holds the estate, anda man may in general transferhis property. Moreover, sincethe covenant runs, it binds suc-cessive assignees, whetherrightfully or wrongfully madesuch. There is merely liability in

damages for breach of the cov-enant.

(7) RENT. Some points re-garding rent should be givenemphasis.

In the first place, not all pay-ments due from a tenant arerent. The old conception of renthas here left curious dis-tinctions. If there be a covenantto pay taxes to or for the land-lord, or to pay amounts towardthe value of improvements madeby the latter, these are not rent,for they did not issue as profitsfrom the land; the obligation isnot of the land, but personal. If the tenant contracts to pay pe-riodical sums for the enjoymentof easement or profit rights inGreenacre, granted to him at thesame time as his leasehold inBlackacre, rent does not includesuch payments, because m me-

dieval thought it could not is-sue out of an incorporeal her-editament. Finally, if one beleased land with livestock orimplements or a furnishedhouse thereon, money paid inconsideration of the use of thesevarious chattels is not rent, be-cause there is no lease of thembut a bailment, and because rentcannot issue out of chattels. Alayman, accustomed to hear of the rental and leasing of type-

writers and evening dress is sur-prised by such distinctions. Evenlawyers frequently ignore themin drawing leases. All of thesepoints are important, however,because the landlords extraor-dinary remedies are strictly forrent alone, and their misappli-cation is both unproductive andexpensive in procedural costs,if not in liability for damage




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caused by misuse of an action.Despite the preceding state-ments, however, of common lawprinciples, the landlord may begiven by statute a lien for rentincluding various paymentssuch as those indicated.

The lease may make pay-

ment of rent a condition forwhose breach forfeiture may beenforced by entry under judg-ment in ejectment, or may evencreate the leasehold with a con-ditional limitation which termi-nates it immediately upon meredefault in paying rent. In the lat-ter case, a more summary rem-edy to recover possession wouldgenerally be available.

Another point of importanceturns upon the legal rule regard-ing the time when rent ac-crues, or becomes due and pay-able. Rent is not regarded asgradually accruing daily up tothe moment set by contract orlegal tradition for payment. Nopart is due until the very end of the due day. The rent being dueonly at the end of the rent day,if the landlord evicts the tenantor, in a tenancy at will, termi-nates the tenancy during that

day, no rent whatever becomesdue; or if on that day the rever-sion is assigned, the assigneetakes all the rent; or if the land-lord dies between two rent days,his heir (as assignee by law of the reversion) will take all rentaccruing at the next rent day.(But the right of action to re-cover to rent accrued at a past date would pass to the personalrepresentative in such a case).This was the common law. It rec-

ognized no apportionment of rent as to time, that is, as totime when due. In about a thirdof our states the rule has beenchanged by statute as regardsleases for years; and in morethan half the states as respectsapportionment between a lifetenant and the holder of a fu-ture estate following it.

Apportionment of rent as to

amount was always recognizedby the common law, both as re-gards the duty to pay and theright to receive. If the land isheld by several persons, theoriginal tenant and assignees,each portion of land owes a cor-responding amount of rent, for

which, as we have seen, the realaction of debt (or a modernequivalent) lies; and the contrac-tual obligation of each tenant issimilarly limited, although notthat of the original tenant andcovenantor. But the extraordi-nary remedies of the landlord,for the collection of defaultedrent by distress or forfeiture,could not be limited under theold law to portions of the landas divided. Likewise, if the rever-sion in different portions of theland is held by several persons,they are entitled to cor-responding portions of the rent.Or the landlord, while retainingall the land and part of the rentmay grant to another person adistinct fraction of the rent, di-viding this as the land is dividedin the other case. Or the rever-sioner may keep all the land andthe reversion, but grant all the

rent to several personsinwhich case the rent is com-pletely parted from the rever-sion to which it is ordinarily in-cident. In these cases the rightto receive rent is apportioned.

Rent may be extinguished orsuspended in various ways. Thelandlord may release to the ten-ant the right to collect rent fromany part of or from all of theland; and in the former casethere is simply a reduction of

rent, which is conceived of as sillowing by the entire premises,contrary to the apparently in-tended meaning. This release isa deed which conveys a realright. If the landlord evicts thetenant from even part of the pre-mises the entire rent is sus-pended while eviction contin-ues; and there is no liability forrent accruing at due dates in

that interval. An eviction underparamount title has the effect,necessarily, of extinguishing li-ability to the former landlord.When the rent is payable in ad-vance for the period duringwhich eviction by the landlordoccurs, the better view is that

the tenant can only be reim-bursed in fixing damages in atort action for the eviction; but,unjustly, when there is evictionby one holding paramount titleno remedy against the formerlandlord exists. Although incase of eviction by the landlordfrom only part of the premisesthere is no apportionment of therent, if such eviction is by oneholding better title there is anapportionment in the sense of an absolute extinguishment of part and consequent reductionof the total rent. A taking of theland under eminent domainshould have the same effect.

Eviction need not be an ex-clusionwhether a withholdingof possession when occupancyshould begin, or latercom-pelled by force. The tenant mayrefuse to enter or may subse-quently voluntarily leave be-

cause the landlord fails to per-form covenants essential to anoccupancy of the nature agreedupon by the parties. Such con-structive evictions are numer-ous. Leases having once beenalmost exclusively for agricul-tural purposes, and the law be-ing still controlled by the ideathat rent is owed by the land, itis still the predominant view thatwhen land is let with buildingsthereon the destruction of the

latter neither extinguishes norreduces the rent. But this is gen-erally held not to apply to anapartment or house leasedsolely for residential purposes.The situation should be coveredby an express stipulation in thelease. In approximately a thirdof our states statutes relieve thetenant of liability, totally or par-tially according to circum-




stances, with distinctions be-tween destruction, mere dam-age, and damage renderingbuildings untenantable.

The normal remedies for therecovery of rent at common lawwere debt and covenant, as-sumpsit being used upon un-

sealed promises to pay a rent(which must be a sum certain)or to pay the reasonable valueof the use and occupation of land. In the latter case the occu-pant must be a possessor, inother words a tenant, and veryoften he is merely a permissivepossessor or tenant at will. Thedistinctions between these rem-edies somewhat affect proce-dure today where here is onlyone civil code action. At com-mon law the reversioner couldseize and hold (distrain upon)chattels on the land belongingeither to the tenant or to strang-ers and even, under statutes,sell them. Even in states whichstill recognize this remedy it isnow assimilated to attachment,the seizure being made, andsubsequent procedure con-trolled, by public officers, andnot by the landlord. But the right

of distress did not include anyright in the chattels precedingactual distraint. They could beremoved from the premises.Nevertheless, without the aid of statutes, the courts sometimestreated the landlords right of distress as a lien in the senseof giving priority over othercreditors. Modern statutes inmany states go farther. Speak-ing loosely, they give the land-lord a lien upon any crops grow-

ing on the land, or chattels of the tenant kept thereon. Thislien includes a power of salefor reimbursement, and of course it is the basis of priorityof right from the moment of itsinception. Sometimes the liencovers not only rents but thevalue of supplies furnished andadvances made to the tenant.Statutes in probably all states

also give the landlord summaryactions both for ousting wrong-ful occupants and for collectingrents.

(8) ABNORMAL TERMINA-TION. The three non-freeholdestates just described normally

terminate as already indicated:the term for years by the expi-ration of the term, the tenancyat will by the expression at anytime of either partys volition,the tenancy from year to year bythe common law notice of sixmonths or its local statutorysubstitute. Any tenancy, how-ever, is liable to termination intwo other ways which, since theyare not inherent in the charac-ter of any particular estate, andare also actually exceptional,seem to be properly describedas abnormal. Neither of them isconfined in its application toleaseholds, and both will be laterreferred to with more particular-ity. These two modes of destruc-tion are merger (p. 257), particu-larly by release of the reversionto the tenant or surrender of thetenancy to the reversioner, andforfeiture by disclaimer.

But disclaimer seems to beobsolescent, perhaps obsolete.The tenant may, it is said, for-feit his estate if he either di-rectly or indirectly and with rea-sonable clarity brings to theknowledge of his landlord hisrepudiation of the latters title,and refusal any longer to recog-nize his occupation as continu-ing thereunder. To a layman,such a disclaimer would seem byits very name to indicate that the

estate ends by the tenants voli-tion. But the law does not per-mit any estate m land to be de-stroyed by mere repudiation orabandonment. If here destroyedat all it must be by forfeiture. Itis highly doubtful whether sucha disclaimer as described, oreven one made by formal affir-mation during judicial pro-ceedings, can serve today (as it

once did) as cause for thereversioners forfeiting theleasehold. If, in addition to thedisclaimer, the tenant remainson the land claiming the feesimple, he is still tenant if thelandlord elects so to regard him,though the latter is free to bring

ejectment against him immedi-ately as an adverse possessor.

8. Estates of PresentEnjoyment, Generally

(1) WASTE. Waste was origi-nally any treatment of the landby the holder of a particular es-tate therein other than an entail(one of many special favorsshown to tenants in tail) whichdid damage to the immediatelyexpectant estate of the rever-sioner or remainderman. Todaythe law protects not only thembut various other persons whohold either rights of enjoymentsubsequent to those of thewrongdoer, or of immediate en-

joyment concurrent with hisown; but not all persons fallingwithin those descriptions.

The words damage to theestate do not mean mere eco-nomic loss to the holder of the

expectant estate; they includeviolations of his rights causingno actual harm. In early law anyuse of the land that altered itsnature, as by cutting timber andmaking woodland into meadow,or converting meadow into ar-able, was waste, even though inthe course of good husbandry;presumably because such actsendangered the title by affect-ing essential descriptive fea-tures of the land, rather than

because they might at times beeconomically detrimental. Evenchanges that were clearly eco-nomically beneficial might nev-ertheless be meliorating waste.Such positive acts of misfea-sance as those above indicated,or tearing down buildings, sub-stituting new buildings of a dif-ferent kind, or opening or work-ing mines, have been called vol-




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untary, but it would seem pref-erable to describe them as ac-tive waste, or waste by commis-sion. They are scarcely morevoluntary than waste by permit-ting buildings or other struc-tures to fall into disrepair byneglect; although a difference is

discernible when there is de-struction by fire. Such waste isgenerally known as permissive,but may equally well be desig-nated as negligent or passive,or waste by omission. Thesettled construction of two veryold statutes on waste (of Marlbridge, 1267, and of Gloucester, 1278) was for cen-turies that they covered both va-rieties of waste. There is littleauthority until very moderntimes for the view that tenantsfor years are not liable for pas-sive waste, or that any liabilitytherefor is based upon the viola-tion of covenants to repair. Nei-ther limitation has authoritativestanding in this country.

English law two centuriesago ceased to impose liabilityfor accidental fires as constitut-ing permissive waste, and by in-heritance or adoption that is the

law of this country. Neither En-glish nor American law, in theirmodern stages, classifies underpermissive waste damage doneby strangers. The Restatementof Property by the American LawInstitute states the duty of abeneficial life tenant as beingone to preserve the land andstructures in a reasonable stateof repair,or, stated otherwise,to prevent substantial deterio-rationto the extent that his

net income from the land overother carrying charges is suffi-cient. But this is subject to ex-ceptions made in the creation of the particular estate, which mayhave made it one without im-peachment for waste, likewiseto exceptions of accidents, ex-traordinary forces of nature, andacts of strangers. It is supposedthat very similar principles de-

fine the duty of the tenant foryears. The tenant may be freedfrom liability not only by thewords creating his estate, butalso by covenants to repairmade by the reversioner; and alicense by the latter for the do-ing of the acts will of course bar

an action by him for their con-sequences. The first form of re-lief is common in the creationof estates for life, certainly atleast excessively rare (if everfound) in grants of terms; thesecond form of relief is commonin leases for years.

But many difficulties remain.Among them, in the field of ame-liorative waste, are the obstaclesin the way of interior alterationsof old hotels and other urbanbuildings, held under longterms of years, in order to makethem more profitable withoutbuying at perhaps an exorbitantprice the consent of the lessor.With reference to a tenant for lifethe Restatement of Propertystates his duty as not to changethe premises . in such a man-ner that the owners of expect-ant estates have reasonableground for objection thereto.

Under that principle, the old-time examples above given of alterations in the character of land, if made in accordancewith the practices of good hus-bandry, should not be wastetoday; and alterations in a build-ing should not be waste if theyare so clearly demanded by acomplete change of conditionsthat an owner in fee simplewould normally make the samechanges.1

The Statute of Gloucesterprovided that tenants for yearsor life, including estates of curtesy and dower, should for-feit their estates and pay trebledamages for commission of waste. In about a third of ourstates the rule of treble dam-ages exists today. Forfeiture isprobably nowhere exacted un-less for malicious waste, and

then rarely, or when the total re-maining value of thedefendants estate is needed tooffset damages.

A landlords protectionagainst waste by a tenant at willhas never been covered by theold action of waste or its mod-

ern derivatives, but is affordedby damages in an action of tres-pass after entry. Such a tenant,moreover, is liable for activewaste only, termination of thetenancy being an adequate pro-tection against waste by neglect.

Waste by a guardian onlands of his ward comes downfrom medieval times. As statedabove, modern statutes haveextended waste to include vari-ous other situations outside theoriginal common law concep-tion. The most important of these gives protection to per-sons holding rights of present enjoyment equal to those of thewrongdoer in possession, as co-owners with him. Similarly a pur-chaser at an execution sale maybe protected against waste com-mitted thereafter, before he re-ceives possession, by anybodyin rightful possession. Regard-

less of any other relation be-tween the parties, the tendencyis to protect any person whoserights of enjoyment are threat-ened by acts of a rightful pos-sessor.

Equity greatly altered thelaw of waste, creating equitablewaste in two ways. A life ten-ant unimpeachable at law by theterms of his grant might never-theless be enjoined by equityfrom doing acts destructive of

the inheritance. It allowed himto do what was waste at law pro-vided he was not unconscio-nable in his use of the privilege.Equity also enjoined some actsas waste which were not at all,or only in a different sense,waste at law. Thus, the cuttingof oaks, they being timber trees,was waste at law, but equitywould enjoin the cutting of any




trees (usually oaks) planted forornament of the estate, becausein fixing damages at law accountcould only be taken of their tim-ber value. Substantially, legalwaste is cut down; in effect thereis no legal right to do equitablewaste (p. 105). Of course equity

will not enjoin ameliorativewaste.

(2) NATURAL RIGHTS. Ev-ery holder of an estate of present enjoyment in land,whether an estate of right or of wrong (p. 186), has certain fun-damental liberties of enjoyment,and rights against occupants of neighboring lands which protecthim against interference there-with. The liberties and rights aretraditional constituents of hispossessory title. They were for-merly frequently called naturaleasements, and are now gener-ally known as natural rights.The first term is inappropriatebecause even the protectingrights are not, as are easements,rights in anothers land. As forthe second term, it is a survivalfrom times when doctrines of Natural Law colored legal lan-

guage; neither the liberties northe protecting rights are in anyspecial sense natural, althoughcertainly the former are nearerto mens conception of a stateof nature. The distinctions be-tween natural rights and ease-ments, and their relation to botheasements and licenses will beagain referred to (pp. 277, 328).

The liberties in question arefour in number.

(a) The first is the liberty toenjoy his land unmolested byothers, protected by a right to exclusive possession. Enough of this has already been said invarious places. The right is ab-solute: the unauthorized protru-sion of a fist or a horses hoof into the close, passage of a bul-let through the air, or of a bal-loon, have been held trespasses.

A wire strung through the air-space is more than a trespass:it is a dispossession for whichejectment will lie. Intention hasnothing to do with the doctrine.One who in the dark steps inad-vertently upon his neighborsland is a trespasser, although no

litigation is likely to result. Therecent development of aviationhas for the first time caused uscarefully to consider whethersuch absolutism of private rightis today desirable, at least as re-gards the airspace. Special cir-cumstances under which eventhe surface of anothers landmay be entered upon withoutsubjecting oneself to liability fortrespass have already been men-tioned (p. 16).

(b) The second liberty is thatof enjoying the surface of onesland as nature left it. This isknown as the right to lateral and subjacent support for land in itsnatural state. Each landownermay dig in his own land subjectto liability for violations of hisneighbors right of support. Theright is absolute in nature. Anysubsidence, however slight, vio-

lates it; no minimal limit hasever been set to the amount of disturbance required to consti-tute the wrong save, apparently,by one English case that hasbeen substantially overruled,and a very few American cases.

The wrong is done when thesurface actually falls, and thestatute of limitations then be-gins to run against the right of action. Each new fall gives riseto a new cause of action, and the

general view is that recoverymust be had in one action, whenbrought, for both past and pro-spective damage caused by that subsidence. The measure of damages is ordinarily theamount by which the value of the land is diminished by thesubsidence. To differentiate be-tween individual subsidencesand their respective effects is

manifestly a matter of specula-tion by the jury.

The burden of sustainingparticular premises in theirnatural state, whatever theirform or size, and whatever theirdistribution among differentowners at one or at different

times, rests upon so much of thesurrounding land (regardlesslikewise of its ownership ortransfers thereof) as would in itsnatural state suffice to supportthe other. Apparently this mustbe a band of varying width, de-pending upon the solidity of itsown constitution (of rock, sand,etc.) at different points, and like-wise upon the similarly varyingconstitution of the land to besustained. One can have but thevaguest idea of the actual situa-tion. Decided cases thus farthrow almost no light upon de-tails. If As land has been mined,this can only lessen the physical burden of supporting it. Itdoes not at all affect the legalduty of supporting the land asit was in a natural state, whichduty is the same after the min-ing as it was before; but theweakening will affect subse-

quent negligence of neighborsregarding buildings on theweakened land. If Bs adjoiningland is thereafter mined and Asland nevertheless does not fall,that does not conclusively provethat As zone of natural supportfor his land in its original heavystate is still intact; for As landis not in its natural state, and,moreover, even as respectspresent conditions a subsidencemight occur only some time af-

ter the weakening. Suppose,then, that beyond Bs land Csland is excavated, and that theother two tracts fall. If the jurydeclares that As land wouldhave fallen had both As and Bsbeen unmined, clearly C is liableto both B and A.

If the verdict be that As landeither in its natural state or itspresent state would not have




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fallen but for the weakening of Bs, should B be liable to A? Herightfully dug so long as he didnot disturb As land in either itsheavy or its lightened state; the

jurys verdict is not that he didthat (and the precedent condi-tions indicate that he did not),

but that C and B did it together.Although the actual physicalforces affecting any given tractnecessarily balance, the mea-sure of those from a particularadjoining tract are presumablybeyond the ability of science tomeasure. The common law ruleis in fact an unworkably crudeprinciple in any save the sim-plest cases. The speculations of a jury are the only possible re-sult of attempts to apply it.

Although the duty to sup-port adjoining land in its natu-ral state is absolute, that is notthe nature of ones duty as re-gards buildings on a neighborsland. The only direct duty as tothem is not negligently to dam-age them. We may ignore thesimple case of acts that wouldconstitute negligence even werethe land unimproved, and aretherefore more plainly negligent

when it is weighted with a build-ing, since such a case rarely oc-curs. If, then, the excavator doesnot cause his neighbors land inits natural state to fallthat is,if the jury finds that in an unim-proved condition it would nothave fallenhe is not liable forany harm to it when it subsideswith a building on it; nor fordamages therefrom resulting tothe building unless the juryfinds that as to the latter he was

negligent. But if the jury findsthat the land even in its naturalstate would have fallen he has,legally speaking, caused land inits natural state to fall, thoughactually there is a building onit. He should therefore be liable,under the general principle of tort law, for the natural andproximate consequences of thatact, one of which is the damage

to the building. And althoughthe courts have on this pointbeen much divided, the weightof authority and of reason favorsthe view just stated. It isadopted by the American LawInstitute.

It may be a question whether

the defendants acts or acts of nature, such as the alternatefreezing and thawing of theground, cause a subsidence. Theordinary principles of tort lawgovern such a case. If the dig-ger sets the scene for the op-eration of natural forces he isliable for whatever conduct isnegligent, and the jury finds thefacts respecting his negligenceand its natural and proximateconsequences. One who digs insandy or otherwise unstableland is governed by the sameprinciple of ordinary prudence,which in such circumstancesdemands, of course, unusualprecautions. Failure of the ex-cavator to notify the owners of adjoining land, in order thatthey may themselves take suchprecautions regarding theirbuildings as they deem advis-able, may in many cases tend to

show negligence. But as regardsthe duty to support surround-ing land, in its natural state, thatduty being absolute, a noticecannot, it would seem, in anydegree cast upon an adjoiningowner a burden to support hisland himself. There is not yet,apparently, in our law a duty al-ways to minimize the harm withwhich the conduct of othersthreatens us.

In order to satisfy his duty

an excavator may substitutesustaining structures for landremoved. In cities of large size,where dangers from excavationare great, municipal ordinancesregulate the entire subject.

(c) The third liberty is thatof enjoying life upon ones landfree from unreasonable interfer-ences therewith caused by uses

of surrounding land, or the right to be free from nuisances. A nui-sance is such a use of ones ownland as unreasonably interfereswith the enjoyment of life onneighboring land by possessorsthereof. It is not, as constantlydefined, a harm to the adjoin-

ing land.It has been remarked of two

of the rights just discussed thatthey are absolute. This doesnot mean that they are absolutebecause, positively, no one maywithout liability violate them. Inthat sense all rights, howeverdefined or limited, would, oncethey are defined, be absolute.The characterization means thatthe innocence or malice of thewrongdoer are immaterial as re-spects his liability, and that theterms by which the wrongdoingis definedthe enter and thefallare unqualified. This isnot true of the third right nowunder discussion. It is only areasonable enjoyment of lifethat is protected; but, also, theinterference must be unreason-able. It follows that the enjoy-ment protected is the reason-able enjoyment of an ordinarily

reasonable person. The sensi-bilities of old, infirm, or other-wise abnormal individuals arenot allowed to determinewhether a nuisance exists. It hasbeen elsewhere remarked thatall communal life involves vol-untary submission to some an-noyances from neighbors, par-ticularly in cities. Such annoy-ances are all reasonable.

The right to be free from anuisance is violated, naturally,

when there is a nuisance to thecomplainant; in other words,only when his enjoyment of (lifeon) his premises is actually in-terfered with. The statute of limitations then begins to run.

Nuisances may consist of various forms of annoyance, orin the maintenance of condi-tions adverse to health or shock-ing to the moral sense. Some are




held to be necessarily, or per se,nuisances. Others are created byperforming at unseasonabletimes or places acts which inthemselves are innocent; or bykeeping in improper placesthings which in other placeswould be unobjectionable. No

matter how carefully the site fora business enterprise is se-lected, how far from personslikely to be annoyed, how expen-sive the plant, how scientific itsoperation, how great the lossinvolved if removal is compelledto another location, the op-eration of the plant may still cre-ate a nuisance. As often said, thenecessities of one mans busi-ness are not the measure of anothers rights. Literally hun-dreds of acts, businesses, struc-tures, animals, noises, fumes,odors, vibrations, and so on,have been pronounced to be ornot to be nuisances under par-ticular circumstances, but withall this variety of facts there islittle variation of principle.

It is well established thatone may move to a nuisance if he will, and then enforce hisrights against the wrongdoer. If

this were not so, any nuisancemaker could destroy propertyvalues about him to a stillgreater extent than he does un-der the actual rule. Closely con-nected with this is the estab-lished possibility of prescrip-tively acquiring the right to con-tinue acts which were in theirinception nuisances. If this weregained against surroundingland as such, without distinctionbetween the uses to which it was

put during the prescriptive pe-riod and those to which newowners desire to put it later, thedestruction of property valueswould also be immense. The pre-scriptive right of a soap factoryto operate regardless of sur-rounding truck gardens wouldprevent their conversion intocity lots and the erection of apartment buildings thereon.

On the other hand it is equallywell established that a portionof a city, at least, may be alreadyso completely abandoned tonoise and smoke and dirt thatanybody moving into it must ac-cept life there as it is. The rec-onciliation of these several prin-

ciples is none too clear in thedecisions of the courts. Theproblem of prescription is in-volved in the greatest obscurity.

Litigation concerning al-leged nuisances is very largelyin equity, upon bills for injunc-tions. Present day equity is inthis field modifying conceptionsof fundamental property rightseven more startlingly than it didearlier in the field of waste. Theconsequences of the doctrine of balancing conveniences havealready been referred to.

(d) The last liberty is that of enjoying stream, surface, and percolating waters.

The right of riparian possessors on a natural stream isto use its waters in mannersmutually reasonable. Thestream must therefore come toeach lower owner without

unreasonable detention, dimi-nution, or pollution by the own-ers above. There is no ownershipof the water, even though it flowwholly on the land of one land-owner, except of such as hasbeen abstracted from the streamfor a domestic use. Otherwisethere is merely a right to usereasonably, thereafter returninginto the stream all that has notescaped through such use, par-ticularly by inevitable evapora-

tion or percolation. If a lowerowner, by damming the stream,backflows higher lands, that isa trespass, and the right of theupper owner to be free there-from falls, not here, but underthe first of the liberties underdiscussion.

A natural stream exists onlywhen it is (very predominantlyin its recent history, at least) not

a drainage ditch or other artifi-cial creation, and when its wa-ters run in a relatively perma-nent course, between visible andwell defined banks. Water alsoruns over the surface of land indirections determined by con-tour levels which are relatively

permanent, and certainly lesssubject to marked change thana streams banks, but they arenot to a layman visible and welldefined. A riparian possessor isone whose land abuts, howeverlittle, upon the stream, no mat-ter what may be the size of thetract or its shape back from thestream, or the conveyancing his-tory of the whole or its parts.Since any tenant for years hasthe same rights as an owner infee simple, it follows that ten-ants of an owner whose landtouches the stream, no matterhow numerous they are, no mat-ter how far from the stream theirindividual holdings may be, nomatter how nominal may betheir rent or how long or shorttheir tenancies, enjoy riparianrights. Yet a grantee of any of their tracts, because he does nothold under the abutting owner,

has no rights. Mutual reason-ableness of user is relied uponto solve all difficulties. The ad-mirable suggestion in a fewcases that the riparian areashould be limited to the water-shed of the stream has as yetno following.

What is unreasonable, to befound such by a jury, dependsupon the size of the stream (andif inconstant then upon the sea-son of the year and its conse-

quent condition), and upon theuses to which it is habitually putin the locality, as well as uponthe nature of the defendantsspecific acts and their effectupon the plaintiff. However,there are uses which are inher-ently reasonable and uses whichare inherently unreasonable. Noamount of water taken for do-mestic uses can be unreason-




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able; presumably because suchamounts were small in Englandwhen the rule was formulated.Domestic uses are today gener-ally regarded as including suchuses as watering a garden or livestock, as well as uses for drink-ing, cooking, and bathing. Mani-

festly then, uses permissible ina private home would cease tobe such if the house is convertedinto a hotel or the garden ex-panded into a ranch. On theother hand, the decided major-ity rule is that a sale of water tooccupants of non-riparian landby a riparian owner is necessar-ily unreasonable. Its relaxationis unavoidable when a city bor-ders a stream, whether or notthe municipal corporation ownsriparian land.

In the western semi-aridstates of this country the com-mon law system was at firstmore or less adopted, but evenwhere so adopted has been dis-placed by a different system.The basis of this is a right of prior appropriation. Some re-gard this as merely a specialoutgrowth of the common lawrule of mutual reasonableness.

This appropriation system is inturn becoming subject to re-straints of reasonableness.

The rules regulating surfacewaters are different.

Surface waters are, in gen-eral, not only puddles and atleast ordinary ponds, but alsosuch waters flowing over land ascannot be called a naturalstream. Stream water that is fora short distance spread out overthe surface of land, between two

portions of its course withinbanks, has not been regarded assurface water. The possessor of land may use surface water as

he will. He owns it as it lies instationary bodies; he may, byappropriation, make that whichmoves across his land his prop-erty.

In some states large pondsare subject to special rules,which are in the main rules of

mutual reasonableness of user.Likewise, flood waters, althoughin almost all states they aretreated either as stream or sur-face water, are exceptionallytreated as a distinct type of wa-ters, sharing the characteristicsof the other two typesof sur-face water in that they may befreely appropriated, and of stream water in that the watertaken must be used upon theland where taken.

Under the dominant view inthis country, known as the com-mon law rule, any possessormay with impunity, in the properimprovement of his premisesthat is, in alterations thereof made by him in good faith forwhat he regards as improve-ment,cast surface waters awayfrom his land in any direction.Although so stated in somecases, it is not established doc-

trine that it must be diverted inthe course of good husbandryor prudent improvement. Quiteclearly, it may not be cast off with malice; that is, with definiteintention to injure another andwithout the object of improvingones own land. In all jurisdic-tions surface water may be castoff over lower land. But in adozen or more jurisdictions, thelower lying owner may not throwthe waters back upon higher

land, such jurisdictions at-tributing to the higher owner, bythe so-called civil law rule, theright to have the waters drain

downward. There is a little sup-port for the view that the lowerowner has a right to the benefitof drainage water from above.However, water cast off must notonly be, but must be cast off as,surface water. It may not be ar-tificially concentrated and so

thrown upon adjoining land.The use of percolating wa-

ters has until now been definedin but few cases. A stream be-neath the surface with all thecharacteristics of a surfacestream has been so treated. Theright of any possessor to drawwithin his well or pipes all thewater, sulphur, oil or gas whichhis powers are capable of cap-turing has in recent decadesbeen challenged, but it is a rightgenerally regarded as unquali-fied (p. 164). However, the sink-ing of spite wells has been tosome extent curbed by judicialaction or statute (p. 161), andthe attempts which have beenmade under the police power ordoctrines of public utility to re-strain free exploitation of gas orpetroleum deposits, althoughup to the present time futile, willno doubt ultimately lead to the

establishment of some systemof mutually reasonable liberties.The liberties and rights

above discussed are, of course,only a few of those that a land-owner enjoys. They are merelythose which, both because of im-portance and because their ex-ercise affects the liberties of other persons, have given riseto litigation.

(1) American Law InstitutesRestatement (1936), I, Sec. 140.




Part II, Chapter VIII

1. Future Estates andFuture Interests

The latter of these words isof broader meaning than theformer. An estate has alreadybeen substantially described p.181), and may now be defined,as any title to or interest in landthat either includes possessionof land presently, or may conferpossession of it in the future.This definition is not preciselythat adopted by the American

Law Institute.In accordance with this defi-nition, tenancies less than free-hold have been included in thepreceding chapter as estates of present enjoyment. They werenot such in ancient law only be-cause seisin was then differentfrom possession. The presentchapter deals with non-posses-sory estates, that is with estatesthat either will or may give pos-session in the future; and also

with some other future inter-ests. On the other hand, inter-ests that have never includedpossession of land, and there-fore cannot be estates, are dis-cussed in the following chapter.

Various interests that mayconfer possession of land in thefuture have never, by mere lit-erary tradition, been discussedin law texts dealing specifically

with future interests. Such, forexample, are dower inchoate,curtesy consummate, and (al-though this has disappearedfrom our law) the right of es-cheat. Brief reference has occa-sionally been made to these in-terests in works on future inter-ests. Still other interests existthat may confer possession; themortgagees right to foreclosefor default; the mortgagorspower against a mortgagee in

possession to terminate thatpossession, by payment; thepower of a person named asgrantee in an escrow instrumentto perfect it as a conveyance byperforming a stipulated condi-tion. It is manifest that otherqualities of these last three in-terests, and likewise of the firstthree, are of great importance,and have naturally led to theirclassification and discussion inother portions of the law than

future interests. Another inter-est included within the defini-tion of estate as above givenis a general power of appoint-ment, exercisable by appoint-ment to the holder of the power;and the taxation of the propertyover which the power exists (p.458) as belonging to him isgood evidence that the futureenjoyment aspect of the inter-

est is in this case evident andimportant. Nor is it, indeed, lessevident in any one of the othercases mentioned. Finally, enjoy-ment of interests that never con-fer possession may be made tobegin in the future. This is trueof rents, easements and profits,which will be described in thenext chapter, but without spe-cial reference to that aspect of their nature. These, too, havebeen referred to as future inter-

ests, although not discussed assuch in detail, by eminent au-thorities.

The American Law Instituteexcludes from its definitions of estate and future interests allthe interests mentioned in thepreceding paragraph. The ques-tion whether it is impractical orundesirable to discuss them un-der the head of future interestsor estates has, however, noth-ing in common with the ques-

tion whether they are logicallyidentifiable as future interests,which they seem to be.

2. The Origin of FutureInterests

It has several times been em-phasized that from its earliestbeginnings our property law hasalways included both tangibleand intangible things; and sei-

Non-PossessoryEstates in Land




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sin, as the fundamental medi-eval conception in thinkingabout property, was naturallyextended to both. It is somewhatpuzzling that the use of seisin,originally so wide and loose,should have become so re-stricted and technical in appli-

cation. It seems possible this iswhere feudal influence madeover to some extent the doc-trines of seisin (and therewith of divided ownership) which it tookfrom the Germanic land law, andwhich were its legal basis as aneconomic system. Every piece of land was a feudal fieff or a partof some fieff, and the greatestneed of feudalism was that allland should be in the actual sei-sin of someone liable for perfor-mance of the feudal services.Hence arose the fundamentalrule of our feudal law that nofreehold could be created tobegin in the future.

But even in early centuriesit was more or less clearly real-ized that the law really dealswith rights in or title to things;hence seisin was extended tomean the holding of an estate,or tide, by virtue of which one

had a right of present or futureenjoyment (and, indeed, wasonce used in referring to vari-ous individual rights in no wayresembling the titles that wereestates). This attribution of sei-sin to incorporeal things, and es-pecially to estates, tended to as-similate them in legal thinkingto tangible things, and made itseem natural to do with the es-tate whatever could be donewith land; hence, to cut it up,

give to one man an estate enti-tling him to present enjoymentof the land, and to another anestate entitling him to subse-quent enjoyment (p. 182). Bothwere seised of their respectiveestates, and in the beginning nointerest of which there could notbe seisin was recognized. Thisrecognition of vested future es-tates in reversion and in remain-

der (which were at first alonerecognized) only appeared su-perficially to violate the funda-mental principle above stated,since the holders of those es-tates, after the holder of theparticular estate upon whosetermination they were expect-

ant, would perform the feudalservices successively. On theother hand, to grant an estateof future possession without aprecedent estate of present pos-session, in other words acrossa gap (for the continuing pos-session of the grantor was, withcomplete neglect of logic, dis-regarded) remained impossibleuntil 1535.

This idea that a man couldhold a present vested right tofuture enjoyment was the basisof the interests discussed in thepresent chapter. It has been re-marked (p. 182) that they arepeculiar to Anglo-American law.Originally confined to the landlaw, they have come to exist toa large extent, rapidly expand-ing, in terms for years and indurable tangible chattels. Allpersons to whom partial inter-ests are given, and who there-

under enjoy or may possiblyenjoy possession as precedinginterests end, are owners of their partial interests (the con-tent of ownership varying withthe nature of the interest), andall together hold the completetitle, with which, save in raresituations, they alone, jointly,can effectively deal.

3. Common LawFuture Interests

(1) REVERSIONS. A reversionis that portion left of any estateafter its holder creates out of ita lesser estate in another per-son or persons, or several es-tates of total lesser quantity inseveral persons. It is called suchbecause, after the termination of such subordinate estates, theland reverts (such was the lan-guage of ancient conveyances)

into the possession and enjoy-ment of him who then holds theunexhausted portion of the es-tate out of which they arose. Anowner m simple, therefore, hasa reversion after he createstherefrom one or any number of estates for life or in tail (al-

though in some jurisdictionsonly a limited number of suchderivative estates following eachother may be created). Likewise,an owner in fee tail who grantstherefrom one or more life es-tates has a reversion. It is as-sumed in the preceding state-ments that lesser estates,merely, are created. Two pointsrequire attention.

The first involves no difficul-ties. It is, that if the holder of any estate grants to anotherperson an interest in the land,such as an easement, which isboth non-possessory and noestate, the grantor still retainsall his estate, and not merely areversion. The right of thegrantee in the land is a mereincumbrance on the grantorstitle. This is equally true whetherthe grantor holds a freehold ora term for years (p. 284).

The second point is one of greater difficulty. It has been tra-ditional, in defining a reversion,either to assume or explicitly tostate that the lesser estategranted out. must be a freehold.But since terms for years are es-tates, therefore the name rever-sion, as above defined, shouldbe given to what a grantor re-tains after creating one or moreterms of years, no matterwhether they be granted out of

a freehold or out of a largerterm. And this conforms to theconstant daily speech of law-yers. In that, a termor whogrants a sublease and an ownerin fee simple who grants a termare equally reversioners. Thereason why many writers havenot, in their formal definition of a reversion, included thereunderthe interest left after giving out




a term is a medievalism. Therewas no reason in modern timesfor distinguishing in any way areversion after a freehold fromone after a tenancy less thanfreehold. Nevertheless the lawdoes make distinctions of impor-tance. In particular, a widow is

allowed dower in the latter, butnot in the former. She has dowerin freeholds of which her hus-band was actually seised dur-ing coverture. He has no possession of land upon which there isa tenant throughout the timewhile he holds the reversion; hisseisin can only be of a right ortitle, yet it is called an actualseisin of the land, and thewidow has dower. But the rever-sion of which he is seised aftera freehold is not called actual,and no dower is allowed. Therewas some basis for this distinc-tion five centuries ago. The feu-dal law required someone to bealways in actual seisin of land,in order to perform feudal ser-vices. As the termor had only apossession which the law didnot until the mid-fifteenth cen-tury even protect as property,actual seisin was attributed to

the reversioner. Not so as re-garded a freeholder who heldunder the reversioner. Today thedistinction is an absurdity.

A beginner may be puzzledby the use of the term reversionwhen estates are created out of a fee simple, in view of the factsthat a reversion is a part of anestate originally larger, yet isstill, in the case in question, afee simple of supposedly infiniteduration. Sometimes the laws

reasoning regarding the feesimple was consistent andsometimes inconsistent (p. 187)with the conception of thatestates infinite duration. How-ever, much that passes for thetheory of the old law has beenmerely succor offered it by ex-pounders who sought to ratio-nalize its rules. Such is ap-parently the conception in ques-

tion. It is not essential to thetheory of a fee simple, but it isan aid in understanding variousold judicial doctrines.

If one grants away all his in-terest, certainly he can retainnothing. But whether this isequivalent to the statement that

no reversion is possible aftergranting a fee simple estate,depends upon the meaning of reversion and of estate. Theold law recognized a possibilityof reverter and a right of entryin such a case, but not a rever-sion; and certainly the idea thatthose two interests should becalled estates is very modern.The American Law Institute stillgoes no farther than to call thepossibility of reverter re-versionary, but both it and theright of entry are classed as es-tates.

The law creates the rever-sion simultaneously with thecreation of derivative estates bytheir grantor. This distinctionhad important consequences.

The reversion is alwaysvested in law while it exists. Itceases to be a reversion when ittakes effect as an estate of im-

mediate enjoyment. It is thensaid to vest in possession. Be-ing always vested, in one or theother sense, it was freely alien-able, and (save by a tenant in tailholding one of the subordinateestates) indestructible.

(2) VESTED REMAINDERS. Al-though a reversion is that por-tion of his estate, if any, whichremains in a grantor of otherestates, it is not a remainder,

because such was not the lan-guage of ancient conveyances.If 0, the owner of land in feesimple, grants to A an estate forlife or in tail he can also provide,in the same conveyance, that onthe ending of As estate the landshall remain out in B and hisheirs forever. This is a remain-der. If it were not given in thesame conveyance with the other

estate, a reversion would previ-ously arise in 0, and the grantto B would be merely a transferof that reversionor; as we or-dinarily speak, a conveyance of 0s title. When the two grantsare simultaneously made thereis no reversion or transfer of

such. A. remainder can only ex-ist when at least two estates aregranted at the same time, thefirst an estate of present enjoy-ment called the particular es-tate (particula, part), the sec-ond the remainder. Of course, areversion may or may not followall the estates so granted.

In the old law the estate of the grantor was necessarily oneof actual seisin, but it has ear-lier been stated that we have inthis respect rid ourselves of me-dieval doctrines regarding sei-sin (p. 52). It is still true that theparticular estate is always oneof present enjoyment.

Because of old ideas regard-ing livery of seisin a remaindermust follow upon a precedingestate with absolutely no gapbetween them. Neither can itoverlap, and so in taking effectcut short, a preceding interest.

It must take effect immediatelyupon the expiration, or termina-tion otherwise (p. 183), of thepreceding estates, or it willnever take effect. When the par-ticular estate ends, a later estatetakes effect in possession. A re-mainder following it, if contin-gent, may take effect in posses-sion or may fail. Even a vestedremainder following it, althoughit will normally, need not neces-sarily, become an estate of

present possession. It is neces-sary, therefore, to explain thenature of vested and of contin-gent remainders.

Since a remainderman musttake the land when precedingestates end, he must then be aliving and identified, or perfectlyidentifiable, person, and anyother contingency upon hisright to enjoy must have ended




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before or must end at that mo-ment. When there are no uncer-tainties of his identity, and whenhis right to enjoy is subject tono conditions, his remainder isvested in law and qualified tovest in possession. In words al-most classic, he stands ready to

take the land in enjoymentwhensoever and howsoever thepreceding estates determine.Thus, if 0 conveys to A for life,and then to B for life, B holds aremainder because the limita-tion is capable of taking effectimmediately upon the termina-tion of As estate, since B mayoutlive A. And the remainder isvested because, although B willnever enjoy if he predeceases A,yet while he lives his right toenjoy when As estate ends isunconditional. It is not uncer-tainty of enjoyment, but only acondition affixed to the right of enjoyment, that makes a remain-der contingent. No re-mainderman has possession of the land, but vested remainder-men are said to be seised or tohave seisin in law.

It is remarked above that wehave rid ourselves of one medi-

evalism regarding seisin. Othermedievalisms remain with us. If a grant was made to A for yearscertain, then to B for life, A couldretain no seisin, but that re-quired by Bs freehold was sup-posed to pass to him through Awhen livery was made to the lat-ter. And though B had nopossession he was attributedactual seisin of the land, sothat his widow had dower, as inthe similar case of a reversion

above referred to: On the otherhand, Bs interest could not un-der the old law be a remainder,because it was preceded andsupported by no estate of sei-sin; nor therefore by any estatein the old-time sense. Even mod-ern writers have generally de-nied it the name remainder,describing it as an estate of present seisin, subject to As

prior rights of immediate enjoy-ment. In fact no seisin passestoday to anybody; B has no en-

joyment until As term ends; hisinterest must, normally, thentake effect; and everybody whois not writing a book calls Asinterest an estate and Bs a re-

mainder. The American Law In-stitute terms the interest a re-mainder. There is no utility inthe old phraseology; it merelyleads to anachronisms, like theone preceding, whose sole ba-sis is this continued distinctionin words between seisin andpossession, although their origi-nal difference in fact has (savefor such anachronisms) longsince disappeared.

The vested remainder wasalways alienable by deed or (af-ter 1540) by will, is immune tothe rule against perpetuities,and (save by a preceding tenantin tail) is indestructible. It is of corresponding value to credi-tors, and liable to sale under ex-ecution to satisfy their claims.

(3) POSSIBILITY OF RE-VERTER. This interest was cre-ated by conveying a fee simple,

terminable, however, upon thehappening of an event certain tooccur at some unpredictabletime. Such would be convey-ances to A and his heirs tenantsof the manor of Dalethat is,as or so long as they remainsuch tenants; or, while theWashington elm shall stand; or,until the Washington monu-ment shall fall. The estategranted is a fee simple becauseits manner of devolution so in-

dicates. It is a fee simple despiteits termination short of an infi-nite duration: first, becausesuch duration is not really a re-quirement, as already remarked(p. 187); second, because thetime of occurrence of the eventthat will end the interest iswholly unpredictable; and third,because (although other estatesmay be similarly terminable by

a conditional limitation) this es-tate, by its explicit limitation,cannot be classed as any otherthan a fee simple.

When the event happens,the estate, in accordance withtile terms of the grant specify-ing its ultimate duration, in-

stantly ends. Moreover, enjoy-ment then reverts to the grantoror his heirs. In the old law thereason for this, doubtless, wasthat someone must be actuallyseised, to perform feudal ser-vices. No act of the grantor isnecessary; the right is createdby law, its operation is auto-matic.

The right is manifestly akinto a reversion. (The name rightof reverter would be more cor-rect, but the traditional namebetter distinguishes it from areversion than would the meredifference between reverterand reversion ). Many scholars,however, have regarded it asakin to escheat, and have there-fore argued that after new sub-infeudations were abolished in1290 no possibility of revertercould be created. The theory isnone too convincing; but at all

events it has no relation to ac-tual law. Possibilities of reverterexist in great numbers. Theirmost usual mode of creation isby conveyances of lands to pri-vate associations or politicalsubdivisions of the state for useas cemeteries, for church pur-poses, or for parks or streets.

It was long the law that thepossibility of reverter could beenjoyed by the grantor or hisheirs only. It descended to heirs,

(apparently inseverably), butwas inalienable by conveyanceduring life of its holder, or bywill. This was an application of the general rule that mere ex-pectancies could not be aliened,and in consequence were notproperty (p. 6). But this possi-bility was from the beginningproperty. Inconsistent decisionsinevitably resulted both as re-




gards transferability by deedand by will. The American LawInstitute states the present lawas freely permitting conveyance.The right is always vested, andtherefore not subject to the ruleagainst perpetuities.

(4) CONDITIONAL FUTUREINTERESTS Before discussingrights of entry for breaches of conditions subsequent, it is wellto point out that by no meansall interests which a laymanwould call conditional bear thatname, specifically, in the law.

It has just been seen that afee simple granted to A and hisheirs only so long as the Wash-ington elm stands is not tech-nically known as a conditionalestate. Neither, very often, is theright of entry for breach of a con-dition subsequent, the name be-ing shortened to right of entry,or right of entry following a feesimple, simply. The names of the two interests are very dis-similar, the legal characteristicslikewise. Nevertheless, theirconfusion by careless judges isannoyingly common. It has alsobeen seen that an estate to a

woman during widowhood,that is for life provided she doesnot remarry, is called simply alife estate. if land be given to Afor life, and on his death to theeldest child of B, a bachelor, infee simple, a layman might saythat the right to take under theremainder is conditional; but thelaw actually calls it contingent.When any estate in land is givento A upon the happening of some event, or upon perfor-

mance by somebody of someact, or after an absolute gift toA is given over to B upon likeconditions, the technical namesof such interests are differentaccording as they are created bywill or by deed, but none of thetraditional names includes theterm condition or condi-tional.

It is therefore of the utmost

importance to employ precisenames, and preferably those ap-proved by tradition. This is by nomeans an invariable judicial prac-tice. Some courts call the feesimple determinable a base feebecause of the infirmity that mayend it, and others use the same

name to designate any fee subject to a condition, notwithstand-ing that the term was already ap-propriated in older law to desig-nate a defeasible fee created bya tenant in tail (p. 191).

(5) RIGHT OF ENTRY FORBREACH OF A CONDITIONSUBSEQUENT. This interest iscreated when a fee simple (orlesser estate) is conveyed witha right reserved to enter andterminate it upon breach of acertain condition, which is usu-ally with relative explicitnessdescribed as such. The right of entry is today the most distinc-tive characteristic. Although theuse of words of condition is lesscharacteristic, such phrases ason condition, provided that,but if, are very commonly em-ployed in creating it, and shouldinvariably be used.

Unlike the fee simple deter-minable, the estate now in ques-tion does not instantly end uponthe happening of that whichconstitutes a breach of condi-tion. The breach is merely causefor forfeiture, which may eitherbe waived or enforced by entry.In early centuries this was anentry made by way of self help;for a long time, as already noted,it has been made under judg-ment of a court in an action to

recover possession.This interest was heritable

but wholly inalienable at com-mon law. As in the case of thepossibility of reverter, in-consis-tent decisions resulted in recenttimes. The American Law Insti-tute recognizes, of course, itsdescendibility, but only with res-ervations its severability by de-scent; recognizes its devisabil-

ity; with qualifications, its sev-erability by devise to differentpersons; and its limited trans-ferability inter vivos particu-larly by quitclaim among theholders of the right, or by re-lease of the power to the ownerof the fee subject thereto, made

to him jointly or separately byholders of the right of entry.Attempts to convey it otherwiseresult in its destruction, save ina dozen states whose statuteseither specifically declare italienable or declare alienableany interest in or claim to land.Great differences of opinionhave existed as to whether therule against perpetuities appliesto the right. The Institute de-clares positively that the rule isinapplicable; in other words,that the interest is vested. Sincethere is. no contingency at-tached to the right, the onlyuncertainty being as to when theopportunity to exercise it mayarise, that conclusion seems tobe inevitable. The result mightnevertheless be regarded ashighly undesirable, since thetitle is incumbered with a re-mote possibility of termination.

But this is equally true of thepossibility of reverter, and istherefore of no great weight.The American authorities fullysustain the Institutes view.

(6) CONTINGENT REMAIN-DERS. Although not recognized,as already noted, by the mostancient common law, the valid-ity of contingent remainders was

judicially established by 1430.Their recognition, involving adecided modification of original

ideas regarding seisin, and theperfection at virtually the sametime of ejectment, which gavecomplete protection to non-free-hold interests as property, evi-dence as clearly as could any twoevents the obsolescence of feu-dal principles.

A contingent remainder ex-ists when the right of the re-mainderman to take the land






fer by release to the holder of avested estate, possessory or fu-ture; chancery, protecting them,made their assignment good inequity, and enforced specificallycontracts for their conveyance;the law then recognized an eq-uitable estoppel as raised

against a grantor by any deedwith covenants purporting toconvey them, and consequentautomatic transfer if and whenthe remainders became vested(p. 443). During the last centurystatutes have very generallymade them alienable while con-tingent. Consequently, the ruleof transferability is stated as lawby the American Law Institute.Severability by partition is alsounqualifiedly recognized, sub-

ject to contrary provision by thecreator of the remainder. Therights of creditors depend, of course, upon its alienability bythe debtor.

The law has shown greaterfavors to a remainder whosecontingency relates only to theevent upon which possession of the land depends than to onewhose contingency relates tothe ascertainment of the remain-

derman. It tends, also, today toimpose more burdens upon theformer, at least as respects taxa-tion. Evidently the former canmore readily pass by descentand be more readily conveyed;but inheritance and alienation of the latter are not in all states im-possible.

4. Future Interestsunder the Statute of Uses

Any estate heretofore dis-

cussed, of present or of futurepossession, could be created byway of uses; that will be seenlater in discussing the convey-ancing operation of the Statuteof Uses (pp. 3956). But theStatute also made it possible tocreate interests unknown to thelaw before its passagein par-ticular freeholds in futuro andnew types of conditional estates.

It was necessary to name thesenovel interests, and becausethey arose by way of uses theywere called future uses. It is veryimportant to realize that al-though called uses they arenot the equitable interestsknown as uses before the Stat-

ute, nor the equitable interestsknown as trusts after the Stat-ute, but legal interests. The Stat-ute declared that he to whoseuse any other person hadtheretofore stood seised of anylands should thenceforth be . .. ad-judged in lawful seisin, es-tate and possession of and inthe same lands; and (repeatingit for emphasis) that the estate,title, right and possession for-merly in the feoffee to usesshould henceforth be in himwho was formerly entitled solelyto the use. The future uses aris-ing under the Statute were ex-ecuted uses, upon which theforegoing provision of the Stat-ute had operated. They were le-gal interests clothed by the Stat-ute with seisin if freeholds;clothed by the Statute and by entry with possession if termsfor years.

Inasmuch as one could notstand seised of a chattel real, nointerests by way of use could becreated out of it, either by a cov-enant to stand seised or by anyother ordinary conveyances touses. But future interests can becreated in them by other meth-ods (p. 349). And one couldstand seised of a freehold to theuse of another person for a termof years.

Attention must now be di-

rected to a principle of construc-tion which is strikingly illus-trated in the law of future in-terests, and the only explana-tion of several of its most funda-mental rules. It was long actedon, to be sure, before it was for-mulated as a rule; but so wereremedies regularly granted longbefore the formulation of theright they came to presuppose.

This principle of construction isthat a statute must always bestrictly construed because it isin derogation of the common(unenacted customary) law. Oneapplication of this resulted inthe rule that if a future interestis so limited by way of use that

it can by possibility take effectas does a common law interest,it is such an interest. For ex-ample, if it can take effect asdoes a remainder, immediatelyupon the termination of the pre-ceding estate, it is a remainder;and if the right be conditional itis a contingent remainder, andsubject to all the common lawinfirmities of that interest.

The name FUTURE USES isemployed, therefore, only (a) todesignate interests by way of use which cannot by any pos-sibility take effect as commonlaw interests; and (b) to indicateuses that are no longer uses.There are two types of futureuses.

(1) Shifting uses arose whena second (estate by way of a) usewas limited to begin upon theoccurrence of an event whose

happening would also necessar-ily terminate the preceding (es-tate by way of) use; so that theuse shifted from the holders of the first to the grantees of thesecond estate. Thus, if land begranted to the use of A and hisheirs, but if A die without issuehim surviving, over to the useof B and his heirs, A is first givenan interest that may last for cen-turies, and then it is made ter-minable upon a contingency at

his own death. The taking effectof Bs interest involves the cut-ting short of As, It is frequentlysaid that they overlap, butmanifestly they do not.

Various reasons may begiven why such interests, couldthey have existed, would havebeen undesirable in a feudal sys-tem of society. There can be nodoubt, however, that they were




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impossible under the old law,and not merely because theywere undesirable. That law didrecognize possibilities of re-verter and rights of entry aftera fee simple, and those involveda taking back of the seisin bythe grantor. But to have allowed

seisin to shift automaticallyfrom one grantee to another,without an intermediate entry,would certainly have violatedfundamental principles.

(2) Springing uses wereequally an impossibility underthe old doctrines of seisin, butfor a slightly different reason. Aspringing use arose when a usewas limited to begin on the oc-currence of a future event, butin such manner that it would notbegin precisely upon the endingof a preceding use. No other useneed be granted before thespringing use; no other could begranted to precede it, but to endwhen it took effect. Thus, theconveyance might be to the useof B for life beginning nextChristmas; or to the use of A forlife, and one year after his deathto the use of B and his heirs. In

both of these cases the spring-ing use is preceded by an estate,and seisin, in the grantor; thereis, strictly, no gap before thespringing use. But the period of holding by the grantor is alwaysreferred to as such, and willtherefore be so referred to inthis essay. A gap, in this sense,is a period unfilled by estatesgranted out (p. 244). The realdifficulty was that a vesting inlaw was a favor shown only to a

few old interests of the commonlaw; and even they enjoyed itonly because preceded by an un-broken chain of estates ex-pressly limited, and beginningwith one of present seisin. Fu-ture uses could never vest at alluntil they vested in possessionupon taking effect. Conse-quently, under early commonlaw no such interests as the

above could have been given toB, because livery of seisin wasthe sole mode of creating a free-hold, and seisin must be pres-ently delivered, not prospec-tively. Mere words could notautomatically transfer it in thefuture, and nothing more is here

provided to pass seisin at thefuture date.

The attentive reader willhere remember that the preced-ing statements conflict with thefacts regarding possibilities of reverter, and with those after1430 regarding contingent re-mainders.

It has often been suggestedthat there was no reason, afterthe recognition of springinguses, why a contingent re-mainder should have remaineddestructible when the con-tingency was removed only af-ter the termination of the pre-ceding estate. The reasons thatcan be offered are not con-vincing to us today. One is therule of construction just

referred to: a statutory dec-laration (and that not specific,but only by indirection) that afuture use should be good de-

spite a preceding gap was noreason to the common lawcourts for altering the customary law regarding contingent re-mainders. A second is only an-other way of stating the first. Ex-ecutory limitations, creatures of statute, change freely into rever-sions and remainders of thecommon law as preceding es-tates take effect in possessionor disappear, but the reverseprocess was apparently never

permitted in early centuries.When the preceding estateended before the contingent re-mainder vested, it was not savedby turning it into a springing use(if created by way of uses) or intoan executory devise.

However, it would be merewantonness of destruction toconstrue an interest as a voidremainder or a void contingent

remainder (a contradiction in it-self) instead of construing it asa good executory limitation. Ina conveyance to the use of A forten years, then to the use of B(or use of his heir) in fee simple,the interest of B (or of his heir)was always good as a future use,

or as an executory devise if cre-ated by will without uses. Todayit should be good, as alreadyseen (p. 256), as a remainder;the difference between the dif-ferent types of interest disap-pearing to that extent.

What has been said of thealienability of contingent re-mainders applies in general toexecutory limitations by use andby devise. It is evident, since acontingent remainder cannotvest until the contingency be re-moved (either as respects theperson to take or his right totake), that it is subject to therule against perpetuities.

5. Future Interestsunder the Statute of Wills

All of the preceding discus-sion of future uses is applicableto executory devises. All estates,of present and future en-

joyment, known to the commonlaw could be created by will. Ev-ery interest so created which canby possibility take effect as acommon law interest is thatcommon law interest. Commonlaw interests are creatable bydirect devise; and if the devisebe to uses, then the intereststhus created are equally com-mon law interests if they meetthe requirement just stated.

But interests could be cre-

ated by will that were unknownto the common law. In this re-spect precisely the same novelinterests that were creatable un-der the Statute of Uses couldlikewise be created under theStatute of Wills (1540). Gifts of land by will are devises; anddevises whose taking effect wasprospective were called execu-tory. Executory devises is there-




fore the name of future interestscreated by will, but this name isapplied solely to those gifts bywill which cannot possibly takeeffect as common law interests.

They may be of the same twotypes as are future uses, butspringing executory devises and

shifting executory devises arenot often referred to by thosenames. Moreover, both devisesand future uses are frequentlycovered by the single appella-tion executory limitations.

No executory devise vestsuntil it vests in enjoyment, anduntil then it is subject to the ruleagainst perpetuities.

6. Distinctions betweenVarious Future Interests

There are three chief distinc-tions between the various in-terests just discussed.

One is their origin: some of ancient custom, some under astatute of 1535, others under astatute of 1540. Of all parts of the property law that of futureinterests is most marked in itsbasic ideas and correspondingterminology by medievalism.One cannot really understand its

principles without attempting tothink with the minds of those towhom seisin was a living con-ception, not merely as posses-sion, but also as more mysticconceptions such as capital-ism, are living to us today. Fromour present day viewpoint, thesediverse origins should, of course, be regarded as mere his-torical accidents. Nevertheless itwill later appear that our cre-ation of future interests is still

considerably influenced bythem. Other differences of realsubstance resulted from the factthat, originating as they did atdifferent times, the attitude of courts naturally varied whenquestions arose regarding thecharacteristics of each interest.

There may very well havebeen a time when enjoyment of future interests was only pos-

sible after the interest becameone of actual seisin of the land.But in the thirteenth century thelaw had passed far beyond thatstage. Seisin of the estate hadmade possible the attribution toit of various property character-istics while still non-possessory.

It was pointed out at the begin-ning of this essay that alienabil-ity is one of the most essentialattributes of property (p. 6).Manifestly, indestructibility islikewise of great importanceeven though not indispensable.The important early history of future interests as known to usis a history of these two charac-teristics. Their modern historylies both in their continued de-velopment as complete propertyinterests, and in their increas-ing emancipation, as respectsclassification and qualities, fromfeudal fetters. Litigation has in-volved in great numbers of casestheir liability to the claim of creditors, the adjustment of losses and gains to the landamong the holders of successiveestates, the representation inlitigation of some by holders of other interests, and the rela-

tions of co-owners of future in-terests. All these developmentsmanifestly emphasize theirpresent property aspects. Theincreasing importance of thesubject is due to the rapidly in-creasing use of future interestsin this country. They are con-stantly involved in litigation overwills, trusts, and taxation. Per-haps no other field of propertylaw is so rapidly developing.

Tendencies toward assimila-

tion have appeared even in thepreceding brief description. Fu-ture uses and executory deviseshave always, save as regardstheir mode of creation, been al-most indistinguishable. Whencontingent remainders followinga gap became indestructible,such remainders became verymuch like executory limitations.Contingent remainders not in

fact presenting a gap, becausethe event removing contingencyhappens before or at the mo-ment when the preceding estateterminates, still appear as a dis-tinct interest. Possibilities andrights of entry have become soconfused in an age of relatively

informal conveyancing that thecourts first confused, and nowfrequently venture to ignore,their differenceswhich, never-theless, remain quite real.

Uniform legislation will prob-ably soon make all future inter-ests indestructible and equallyalienable. Relatively little but ac-cidents of form due to origin atdifferent times will then distin-guish them. As a matter of facteven some of those distinctionsare tending in American convey-ancing toward obsolescence. Solong as those remain, a carefuladherence to distinguishingnames is indispensable.

The above discussion of re-mainders has distinguished onlyvested and contingent remain-ders. As a matter of fact distin-guishing attributes of great im-portance are clustering aboutsubdivisions of these two forms.

The American Law Instituteclasses remainders as of fourtypes: those indefeasibly vested,those vested as to right but sub-

ject to opening to let in addi-tional persons who share there-under (in class gifts), thosevested subject to complete de-feasance, and those subject toa condition precedent (or con-tingency as respects the right).These distinctions cannot, inthis outline be more than men-

tioned. The distinction betweenremainders contingent as totaker, and those otherwise con-tingent, was likewise mentioned(p. 258).

7. Adjustment of Interestsof Holders of Particular andExpectant Estates

The chief liberties and rightsheld by the tenants of all pos-




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sessory estates have been men-tioned (p. 228), and likewise therestraints imposed upon theirexercise by the doctrine of waste(p. 224) for the protection of per-sons holding estates of futurepossession following their own.As the complete title to the

property is in the owners of allsuccessive interests, such pro-tection is essential. Many re-straints exist that fall outsidethe rules of waste. They havebeen developed almost exclu-sively in litigation involving therights and duties of life tenantsas tenants of the particular es-tate.

The law protects the inter-est of all estate holders m insur-ance taken to protect all. It com-pels all to share in the paymentof general incumbrances andspecial assessments, giving tothe holder of any estate a lienon other estates for paymentshe makes on behalf of other es-tate holders. It gives the life ten-ant a lien on subsequent inter-ests to secure his right to reim-bursement for permanent im-provements which he reason-ably makes, or which he is com-

pelled by public authority tomake. The holders of subse-quent interests have a lien onthe life estate for the paymentby them of taxes, managerialexpenses, or other currentcharges which the tenant for lifefails to pay, though receiving theissues and profits or, prefer-ably, the rents and incomefrom the land. The life tenant ispermitted to recover from awrongdoer who damages the

land no more than damages forthe harm done to his individualinterest. The holder of any sub-sequent interest (cf. p. 184) isprivileged to enter upon theland when necessary to protecthis interest. The life tenant is re-quired to account to the hold-ers of other interests for the pro-ceeds of any act of waste. He iseven under a duty not to cause

nor accelerate the termination of a later defeasible estate by ne-glect of any of the duties justmentioned, or otherwise.

8. EstatesHeld in Co-ownership

Any interest in property may

be held by more than one per-son. This is true even of thoseinterests which will be discussedin the following chapter. Butsome of these forms of co-own-ership are particularly impor-tant; they are estates in land,and corresponding interests inpersonalty, and have peculiarcharacteristics. Some are surviv-ing antiques and some are re-cent social products, but eachis unique, and all are character-ized by a casualness that is re-pellent and by inconsistencieswhich make impossible any at-tempt to systematize them.What is here said of them ap-plies, particularly, to the estatesof present enjoyment discussedin Chapter VII, because many of their characteristics are not inevidence while the interest heldis non-possessory.

Such co-ownership exists in

our law chiefly in four formstenancy in common, joint ten-ancy, tenancy by the entireties,and community property. A fifthform, very important in the olderlaw, that of co-parceners, isnearly obsolete in this country.What might be classed as a sixthform, the interests of partners,is of great importance, but fallswithin the field of another vol-ume of this series.

(1) TENANCY IN COMMON.Tenancy in common in land mayarise from conveyances bydeeds or by wills, and in per-sonal property by any acts ap-propriate for the transfer of title;and also (in this country, sincethe disappearance of primogeni-ture and exclusion of femaleshave long changed common lawrules) by inheritance. In modern

times such interests in person-alty have become very common.The interests of the various ten-ants in common may arise atdifferent times and by virtue of different acts of transfer, andthey need not be equal, that is,one may be for life and another

for years or m fee simple. Eachtenant owns a distinct share(and the shares may be unequal)of an undivided whole. Of thatshare he may dispose as freelyas of any interest held in sever-alty, and his transferee takesprecisely the grantors place asa tenant in common. Similarly,such a tenant can bring a sepa-rate action for protection of hisinterest. If undisposed of, hisshare passes to his heirs, ornext of kin. As his property, itis always subject to the claimsof his creditors. Any tenant incommon is therefore entitled topossession of the whole prop-erty; no one of the tenants incommon may oust another frompossession; but the one m pos-session must account to the oth-ers for rents and profits, and isliable to them for waste. It fol-lows that a lease given by one

tenant to a stranger entitles himto no possession of any specificportion of the land. He is eithera licensee or, with the others forthe period of the lease, anothertenant in common. Any tenantmay demand partition of thecommon property, and conse-quent assignment to all tenantsof wholly separate holdings.

(2) JOINT TENANCY. Jointtenancy may also be either in

land or goods. It is similarly cre-ated by transfers of title, but the

joint interests must ordinarily allarise at the same time from thesame title transfer (though notnecessarily if created by deedsoperative by way of uses, or cre-ated by will). Also, the rights of all to take or hold possession of the joint property are equal atlaw; although equity might




make their beneficial interestsunequal. But a joint tenant doesnot own a distinct and partial in-terest, though unsevered, in thewhole property: all the tenantsown it together; there is reallyno share in any one. So, if one

joint owner dies the others con-

tinue to own all; it is usually saidthat they take all by survivor-ship, but most properly they re-tain allfrom the dead co-ownerthey take nothing. His heirs orkin, therefore, take nothing.Nevertheless all the tenants areentitled to equal shares of rentsand profits, and one in sole pos-session must account for themand is liable for waste. Moreover,a joint tenant can sever the jointtenancy-that is, end the jointtitleby making a conveyanceto a stranger. As just said, thereis no conveyance of a pre-exist-ing separate share. Neither isthere a transfer of the grantorsinterest as a joint tenant; for thegrantee does not take thegrantors place as a joint tenant.If there were originally only twotenants, the grantee of oneholds thenceforth as tenant incommon with the other; if more

than two the grantors formerco-owners continue to hold asregards themselves a joint ten-ancy, but together become atenant in common of the entireproperty with their formerfellows grantee. However, hisconveyance does defeat theirright of survivorship as to a por-tion of the property (as to one-third if there were originallythree joint tenants); does makehis transferee the owner of that

separate though unsevered por-tion; and does enable the latterto force partition and the assign-ment to him of a segregatedholding.

The interest of a joint ten-ant may be taken by his trusteein bankruptcy or may be sold un-der execution upon a judgmentsecured against him, and this,like a voluntary transfer of his

interest, severs the original ten-ancy.

When the exact nature of aco-tenancy was unclear therewas under the old law a pre-sumption of joint tenancy; butunder American statutes a ten-ancy in common is presumed,

and some have abolished jointtenancy or at least the right of survivorship. Even statutes of the latter type began in thiscountry long ago. Those of theformer and less extreme typewere preceded by many deci-sions establishing a similar re-versal of presumptions in equitycourts; and law courts in thiscountry have followed the samepath, independently of statutes.More than a century ago Kentwrote that in this country thetitle by joint tenancy is verymuch reduced in extent, and theincident of survivorship is stillmore extensively destroyed, ex-ceptas remains true todaywhere it is proper and neces-sary, as in the case of titles heldby trustees.

(3) TENANCY BY THE EN-TIRETIES. Tenancy by the entire-

ties exists only when a grant ordevise is made to husband andwife in terms which could beheld to create a joint tenancywere the parties not married;and in some states one couldaddwhich would clearly createno other form of co-ownership.It was conceived that they couldnot be joint tenants, being in oldlegal theory only one person; yeteven the husband could notalone convey the land. Also

there is the right of survivorshipas in joint tenancy. Formerly,neither spouse could defeat thisby an attempted conveyance toa stranger, nor could creditorsdefeat it by levies under judg-ments, while both lived; but insome states a grantee of eitherspouse who survives the non-conveying spouse takes all bysuch survivorship, and particu-

larly in such states creditors of either spouse have gained rightsof varying potency. In almost allour States, this tenancy can becreated only by a personal con-veyance to both from a stranger;not by inheritance. In somestates the spouses may hold by

this tenancy a mere share inproperty the title to which as awhole is owned by them andother persons in joint tenancyor tenancy in common.

Tenancy by the entiretieshas been abolished in a very fewstates because of the legaltheory of marriage in which itoriginated; but in general it hasbeen held unaffected by themodern statutes giving to mar-ried women equality with theirhusbands in property rights,and also unaffected by statutesabolishing joint tenancy or theright of survivor-ship. But themarried womens property actshave almost everywhere endedthe husbands common lawrights to deprive his wife of thepossession of, and of all incomefrom, the land during his life.

This form of co-tenancygives rise, for some reason, to a

great amount of litigation.Under these two forms of co-tenancy, the principles are muchthe same which relate to ac-counting for excessive profitsreceived by one tenant, contri-bution for excessive outlaysmade by one, and the duties of good faith owed by each to hisfellows.

A fourth co-tenancy undercommon law, that of co-parcenary, is very uncommon in the

United States.

(4) COMMUNITY PROPERTY.Community property is a formof co-ownership, varying some-what in details, which exists ineight states of this country. It isa system of matrimonial gains.Property owned separately be-fore marriage, its income andproceeds of its sale or exchange,




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also property received by eitherspouse by way of devise or otherforms of gift, or by descent, usu-ally constitute separate prop-erty. That otherwise acquired bythe spouses is community prop-erty. Its use for the communityis, however, not impressive. In

general, this property is con-trolled by and may be conveyedby the husband alone; andtherefore it is disputablewhether any co-ownership ex-ists. In some states, also, if thehusband survives the wife, hetakes everything, and in othersalso unless she leave a will ordescendants. Liability for debtsfalls in part upon the commonfund and in part upon the sepa-rate estates. In general, also, allthe husbands debts contractedeither before or during mar-riage, as well as those which hecontracts during marriage for

common purposes are chargedagainst the community prop-erty. Beyond that there is muchvariation.

This type of co-ownershipapplies, as indicated, to both re-alty and personalty. So also dothe other types, including ten-

ancy by the entireties, except co-parcenary.

(5) PARTNERSHIP PROPERTY.In the case of a partnership theco-ownership is limited to per-sonalty. A conveyance of landcould not at common law bemade to a partnership as such,and therefore an attempted con-veyance to one operating underan impersonal name (as theAcme Printing Co.) totally failed.But title would pass to memberswhose names appeared in thepartnership name, or it could begiven to such members ex-

pressly as individuals. Althoughin states that have adopted theUniform Partnership Act title cannow be given to the partnershipas such, whatever its name, thecommon law rules otherwise stillapply. If title is given to indi-vidual members they are essen-

tially trustees; and their tenancyis therefore, in most states, a

joint tenancy, since that is theusual holding of trustees. Withfirm personalty the situation isdifferent. The peculiarities of thesituation are such that they can-not be explained either by jointtenancy or tenancy in common.The partners are declared by theUniform Partnership Act to besimply co-owners, but theunique character of their inter-ests is recognized by the use of the term tenancy in partnership.




Part II, Chapter IX

1. Modes of Restricting aNeighbors Rights in His Land

The complex of liberties,powers and rights which makeup an owners title may be re-stricted in various ways, by hisprivate act, in favor of his neigh-bors. Additional restrictions areimposed by the doctrines of nui-sances, of the police power, andof waste, which are general doc-trines of the law. The first rests

upon all occupants of land, anddefines what are their libertiesrather than restricts those whichexist. The same is true of thepolice power (p. 164). In the caseof waste (p. 224) the restrictionsimposed do not inure to the ben-efit of neighbors, as such. Wehave, however, seen (p. 202) thatwhen 0 leases or conveys anygreater estate to A he may re-strict the grantees use by mak-ing the estate granted subject to

a condition subsequent forwhose breach forfeiture of theestate may be enforced by entry.The present chapter is devotedto several other types of restric-tion upon an owner s (that is, arightful possessors) liberties of user, imposed by himself or bysome predecessor in title.

It has been noted (p. 241)that the ancient law conceived of

various future interests, particu-larly of reversions and re-mainders, as corporeal things inthe sense that they carried sei-sin, and were therefore estates;the effects of this upon alien-ation has been likewise noted(pp. 61, 63). However, becauseseisin is gone and its effectsshould go with it, and such in-terests do not give present pos-session, they have been dis-

cussed as non-possessory, al-though estates. Even in the thir-teenth century the idea was de-veloping that certain other inter-ests that never conferred seisinof land were therefore onlyrights, and incorporeal. Theseincorporeal hereditaments arethose now to be considered. Bothin form and substance they bearplain evidences of ancient origin.Although known as incorporealhereditaments, none of them

need be hereditary, whether cre-ated by deed or gained by ad-verse user. They are incorporealbecause they never confer pos-session of the land in which theyexist. As will later appear, theirprinciples lack system, beingcharacterized by inconsistenciesand misleading labels.

The natural rights in onesown land which have been dis-

cussed above are pre-eminentlypossessory rights, yet do not of themselves confer possession;they are mere liberties, splintersof a title (p. 228) that does con-fer possession. We have seenthat these rights in anothersland are likewise splinters of thetitle to the land against whichthey are exercised. But, beingmere splinters of the title towhat, on the whole, is rightly

designated as anothers land,and particularly because they donot confer possession thereof, itis proper to refer to them asmerely rights in the land of an-other. As such real or proprietaryrights they are protected againstall the world. While they exist,they reduce, or wholly suspend,the natural rightsthe libertiesof user or powers of alienation-of the owner of the land againstor in which they exist. But, if not

rights existing in perpetuity,such rights of the owner of theservient land are not ex-tinguished; and on terminationof the servitude (p. 284) they re-vive and restore his perfect title(p. 135).

2. Easements(1) DEFINITION AND TYPES.

An easement is a right held by A

Non-PossessoryInterests Less than

Estates in Land




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[the owner of Blackacre] whichentitles him to use Greenacre ina particular manner, without tak-ing the substance of the land andwithout holding possessionthereof [for the benefit of Blackacre], or which obliges theowner of Greenacre, B, either to

use it or abstain from using it ina particular manner [for the ben-efit of Blackacre]. Such a rightdiminishes, of course, the liber-ties of the servient owner m us-ing his land, since his own usermust be subordinated to that of the easement holder. Unless theeasement be granted, however,as an exclusive right, similareasements may be granted toother persons. Each right issubordinated to those preced-ing, and the landowners right isinferior to all.

The most common type of easement, and the most ancientunder that name, is the easement appurtenant. In it the benefit isconceived as held by one pieceof land, and the burden as borneby the other; the two being there-fore known, respectively, as thedominant and the servienttenement. The easement is held

by the owner of the dominanttenement only as an incident of his ownership. The owner is any-one holding a possessory estatein the land derived from the es-tate of the original easementholder. If the above definition isread with the words enclosed inbrackets, it describes an ease-ment of this normal type. If thedefinition be read without thewords in brackets it describes aneasement in gross. Such an ease-

ment may be held by A althoughhe owns no land, and without anyrequirement that it benefit landwhich he actually owns.

Whether the easement be ap-purtenant or in gross the defini-tion covers three varieties. Thenormal is the so-called positiveeasement, which permits itsholder to do positive acts on theservient tenement. The second

(in order) is generally called aspurious easement, calling forpositive acts by the owner of theservient land. The third is a negative easement, calling for inac-tion by the owner of the servientland.

(2) APPURTENANT AND INGROSS. (a) Easements appurtenant are very ancient. It followsfrom their definition that theuser which they legalize is re-stricted to acts which benefit(that is, are assumed to benefit)the owner of the dominant landdirectly through its occupancy.Typical of them today are rightsof way for pedestrians or ve-hicles, the right to lay artificialdrains in the land, to backflowwater of a natural stream uponhigher land, to drain surface wa-ter over lower land, or use incommon stairways between ad-

joining buildings.The dominant and servient

tenements need not be adjacent.Indeed, they need not be neareach other provided they are sorelated that the use of one mayclearly benefit the possessor of the other. In the field of cov-

enants, the requirement thatthey touch and concern the landas a precondition to runningtherewith is fundamental (pp.297, 305). In the case of ease-ments this is rarely mentionedonly because almost always it isclearly satisfied. If, however, oneattempts to create an easementof which that is not true, the lawmay refuse it recognition, as anattempt to create a novel prop-erty interest.

The benefit being appurte-nant to a definite piece of land(of course the burden is appur-tenant in all types of easement),both benefit and burden passedat common law, unmodified bythe recording acts (p. 464), withthe tenements to which theywere attached, without beingmentioned. Mention of the bur-den in conveyances of the servi-

ent estate is vital to the holderof the dominant estate, who,however, cannot control suchconveyances, and can only seethat the instrument is recordedby which the burden is first cre-ated. Mention of the benefit indeeds transferring the dominant

land is usual, by employment of the phrase with appurtenances,or by more specific reference,and has two advantages. First, itmakes easy the discovery of thegrantors intentfor his right isa property interest which he neednot convey unless he so desires.Secondly, under the recordingsystems of some states, mentionof the easement even in thetransfers of the dominant tene-ment may afford its holder addi-tional protection against trans-fers of the servient land to a pur-chaser for value without notice.

When the dominant estate isdivided the owner of each partenjoys the benefit of the ease-ment. When the servient land isdivided, the part or parts actu-ally used under the easementcontinue to be burdened there-with.

The easement of necessity is

always (in fact) appurtenant, andexists typically in favor of onewhose land is completely sur-rounded by that of others. It mayexist even in favor of one whoowned and granted away all sur-rounding land (notwithstandingthat the rule of construing a deed against the grantor would makeit impossible to give him theright by implied reservation).The cases are strict in requiringa very real necessity, not merely

a great convenience; and theright terminates upon cessationof the necessity. Public policy,expressed in statutes, has, how-ever, in various states compelledthe establishment of privateways after proper compensationin cases where great hardshipwould otherwise exist. Thecourts, although really guided bythe same motive, strive, when




they find the easement present,to base it upon a necessarily im-plied intent in conveyances bysome ultimate common owner of the two tracts.

(b) Of easements in gross itwas often stated until recent

years that they could not exist.It is true that they are not recog-nized under that name in En-gland nor in various of ourstates. Nevertheless, even insome jurisdictions banning thename as well as in others thatdo not, the law recognizes rightsof one person in the land of oth-ers which, if they are to beclassed at all under the divisionsof such rights known to our law,and not treated as so manyunique interests incapable of systematization, must be classi-fied as easements in gross.

In the old law easements ingross were called personal be-cause belonging to one apart fromhis occupancy of land, regardlessof the distinction between a rightexisting in perpetuity and one lim-ited to the lifetime of the holder.Today, the description personalordinarily has the latter meaning,

and also implies the non-assign-ability of the interest. Where rec-ognized in this country easementsin gross are most generally per-sonal in both senses; and in En-gland various en-forcible rights,really easements, exist in gross tothat extent.

However, in some states theyexist as heritable and trans-ferable interests. The transfer of the burden is objectionable onlyas incumbering the title to the

servient land. But, as regards thebenefit, it is obvious that its freetransferability from the originalholder to his heirs or assigneesmay make it very difficult or im-possible to locate those whoalone can remove the incum-brance from the servient land byrelease of their right, or againstwhom abandonment of the right,or its destruction otherwise (p.

289), can be proved when theservient owner desires to clearhis title. Such impediments tomarketability have always beenopposed to the policy that under-lies and has shaped the propertylaw (p. 381). It is also evident thatfree transferability might con-

ceivably so increase the numberof those entitled to use the ease-ment as unduly to burden (sur-charge) the servient land.

It is sometimes difficult toclassify an easement as appur-tenant or in gross. In particular,it is sometimes difficult to find adominant tenement of the tradi-tional type. The right to lay gasor oil pipes through the land of successive owners cannot be anappurtenant easement unlessthe dominant tenement be thescattered tracts of land owned infee along the way for its mainte-nance and operation. In reality itis the business of the companyto which the easement is appur-tenant. Precisely the same is trueof most railroad rights of way(assuming them not to be ownedin fee), and of the right to main-tain telephone and telegraph,heat, power, and light lines; also

of various parking privileges (if not contractual or mere licenses)incidental to the business of in-dustrial establishments. In thecase of restrictive covenants en-forced in equity, a business hasoccasionally been recognized asthe dominant tenement, andeven chattels have been so re-ferred to, by courts of equity,which have unnecessarily fol-lowed the easement analogy (p.321). Nevertheless, such rights

as the preceding are clearly mostproperly regarded as easementin gross. Similarly, the right toadvertise on buildings and billboards, if it is in a given case aneasement at all, must be an ease-ment in gross unless a businessis called the dominant tenement.

But difficulties cannot alwaysbe avoided by calling an ease-ment one in gross. When a ripar-

ian owner grants to a non-ripar-ian (assuming a jurisdictionwhere he may do so) the right todivert water through a flume forpower, returning it to the streamon the grantors land, the domi-nant tenement may be said to bethe land on which the mill

stands, but in reality it is the mill,in other words an industrial es-tablishment or business. More-over, strictly speaking the servi-ent tenement is not the grantorsland but a mere splinter of histitle thereto, namely his right totake water from the stream foruse.

There seems to be littledoubt that easements in gross,grown up in disregard of theoriginal labels of the law, todayexceed in variety and economicimportance all easements appur-tenant. Most of the typical ease-ments of the latter type origi-nated in old-time conditions of rural life, the absence of ad-equate public roads, water ser-vice, sewage and drainage sys-tems, uncertain boundary lines.They tend to disappear-in othercountries as well as our own thattendency seems evident.

Easements in land privatelyowned may be held by the pub-lic. A very large percentage of allroadways are mere easements.These are clearly held in gross,if the ordinary classification isextended to public rights.

(3) NEGATIVE AND SPURI-OUS. (a) The negative easement is illustrated today by the mutualeasements of support held byowners of a normal party wall

half standing on the land of, andowned by, each neighbor; by theright of the owner of a higherfloor in a cooperative apartmenthouse, or tenant of a suite orfloor in a tall office building (skyleases), to have it supported bylower apartments; the right tohave a building supported byadjoining land (p. 283), or, therebeing no party wall, by an adjoin-






though not a liberty to weakenthe wall by opening windows init, or to subject it to other usespotentially detrimental to fullenjoyment by the other land-owner. The right to enter uponthe servient land at any time inthe future and abate obstruc-

tions to the enjoyment of theeasement is not subject to therule against perpetuities, be-cause it is only a part of the ease-ment right.

These problems are fre-quently complicated by threeother difficulties: first the rulethat the holder of the easementbears the burden of making anyrepairs on the servient land thatare needed for continued enjoy-ment of his right, but may notunder the guise of repairs en-large his right; second, that if hedoes exceed the use proper tohis easement, some courts willand others will not hold suchexcessive user the means of gaining an enlarged easement byprescription; and third that if animprovement really involves theappropriation of an additional ora different part of the servientestate this would require a new

conveyance to satisfy the statuteof frauds. In the case of a partywall, when extensions or otherimprovements made by oneparty are later utilized by theother, a growing body of lawfinds the latter obligated to re-imburse the builder for a propershare of the costs of improve-ment, upon theories that areboth divergent and incoherent.But this is manifestly wholly dif-ferent from the ordinary case, in

which the expense rests whollyon one party. Of course the ser-vient owner may voluntarilymake improvements that facili-tate enjoyment, but he may notby what are improvements forhimself alter conditions that areobstructions to that enjoyment.On the other hand, as respectsimprovements by the owner of the dominant land, it must be

remembered that no man needaccept, much less pay for, ben-efits voluntarily conferred uponhim by the improvement of land,or even the full title to land (p.431). Suppose then, that theeasement is a way in enjoyingwhich its holder has long forded

a stream: he may fill in depres-sions washed out near the banks,he may probably lay culverts, orbuild a solid approach to thebanks, but the building of abridge to replace the ford mayappear (although in an actualcase it did not so appear to acourt) a convenient but an im-proper improvement. Similarly, if a buried pipe is substituted foran open drainage ditch. If, then,there is a use not properly in-cluded within the easementright, the majority of courts holdthat a cause of action accrues tothe servient owner and the en-larged right may arise from pre-scription. Indeed, probably allcourts would accept that prin-ciple, but some, in applying it,have difficulty in finding a hos-tile intent of the wrongdoer, orare prone to find a license (p.328) by the servient owner. As

regards the statute of frauds, thelaw at various points, includingthe present, betrays a lack of consistent theory in applying itto the arrangements of neighbor-ing landowners.

4. Protection of EasementsAn unlimited conveyance of

an easement is, in law, a grantof unlimited reasonableuse only;but the case of an easementgamed by prescription, the com-

mon intent of two parties notbeing involved, is necessarilytreated with less flexibility. Noaction lies against anyone foruser of the servient estate whichdoes not actually interfere withthe easement holders limitedright; against anyone who so in-terferes there is a right of action.What is an interference is a ques-tion for a jury. A gate across a

footway or a cattle drive may benot unreasonable, yet might bean intolerable interference withtravel by automobiles.

Since the servient ownersestate is regarded as complete,and the easement as a mere ex-ternal incumbrance thereon, they

are treated as quite distinct.Hence, for example, in case of excessive use by the easementholder an action will lie in tres-pass, or in ejectment; the judg-ment in the latter case awardingthe servient owner possessionsubject to the easement in itstrue extent. On the other hand,since the easement right confersno possession of the servientland, neither trespass nor eject-ment is available for interfer-ences with it. Trespass on thecase, for damages, is the usualremedy. But in case of repeatedinterferences or other forms of violation irreparable by law, eq-uity will give an injunction. More-over, such interferences are of-ten judicially discussed as nui-sances. It is true that actionsagainst nuisances cannot bebrought by non-possessors; tothat extent it is anomalous to

allow them to an easementholder. The reason for that re-quirement, however, is that onewithout legal right to be on landcannot complain againstunreasonable interference withhis enjoyment of life thereon.The easement holder has only abit of ownership, and no posses-sion, but he does have a legalright to enjoy his bit of owner-ship. Repeated interferenceswith possession are a nuisance,

and for over a century equity hasenjoined them, both because anuisance and to avoid a multiplic-ity of legal actions. For the latterreason equity can, of course, is-sue injunctions against repeatedinterferences with an easement,and it seems wholly proper todeclare them, also, a nuisanceand enjoin them as such.




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5. Suspension& Extinction of Easements

The laws unfriendliness toeasements is marked by the va-riety of methods in which theycan be destroyed, and the servi-ent owners natural rights re-stored. (1) The easement is de-

stroyed when its enjoyment be-comes impossible through de-struction of the servient tene-ment, as by the burning of abuilding in which parts enjoyrights of mutual support or bythe taking of the land undereminent domain. The use of com-mon stairways between build-ings is limited to the period of their continued existence in suchstate as permits enjoyment of theright, neither party being obli-gated to abstain from improve-ments that end the enjoyment,or even from destruction of hisown building. The mutual ease-ments may arise by expressgrant, or in part by impliedgrants; the courts search for pre-sumptive intent and bend theo-ries, if necessary, to meet it. (2)The purpose of the easementmay end by destruction of thedominant tenement, as when it

exists in favor of a leasehold thatcomes to an end.Again, one or the other party

may voluntarily destroy the right.This can be done (3) by its re-lease by the dominant to the ser-vient owner, its independent ex-istence thereupon ending, theright of user becoming part of the servient owners title; or (4)by its abandonment (p. 353) bythe dominant owner; or (5) by alicense given to the servient by

the dominant owner, which, be-ing acted upon, the easement isheld to. be extinguished. Andfrom the other side it is held tobe destroyed (6) by the servientowners obstruction of its enjoy-ment for the prescriptive period.

(7) If title to the two tene-ment comes to be held by oneperson (unless by descent. orother act of law) in fee simple

absolute the easement is de-stroyed by merger. But this doesnot apply to defeasible fees suchas that of a mortgagee (in a title

jurisdiction); nor does equitypermit an easement thus to bedestroyed to the detriment of thebeneficiary of a trust.

(8) If tide to the servient landis taken by one who gives value,and has no actual knowledge of the easement, nor notice of it byrecord of deeds in his chain of title or by the condition of thepremises (when user under theeasement is visible on the faceof the earth), he takes the tideclear of the incumbrance.

Finally, (9) if an easement isoriginally created as appurtenantto land, and the holder later at-tempts to sever it from the domi-nant land and either retain it forhimself or grant it to anotherperson as one in gross, it iswholly destroyed. If appurtenantin an absolute sense, any suchattempt would be merely futileand the right would remain ap-purtenant. In fact, it does not soremain; it is destroyed by theattempt to sever. Whether theoriginal right arises from grant

or prescription makes no differ-ence. This evidences an un-friendliness, therefore, to anytype of easement. The case of anattempted change of an ease-ment in gross into one ap-purtenant has perhaps neverbeen reported, but such a trans-formation of a profit right hasbeen held impossible.

Of these modes of destruc-tion only the fourth and fifth re-quire comment. As regards aban-

donment the majority doctrinerequires only an intent to aban-donpresently, not prospec-tively-unequivocally manifested.But some decisions are exceed-ingly strict in applying the re-quirement of clear or unequivo-cal indication of intent; almost,if not literally, requiring theadoption of a new way or con-struction of a new drain, for ex-

ample, before the old right isgone. The general attitude is farless tender to easements. No li-cense to obstruct an ownersnatural rights is effective to de-stroy them; the contrary resultwould mean that an easement iscreated, which it cannot be oth-

erwise than by conveyance (orprescription)-although, of course, words of permission un-der seal might be construed tobe not a mere license, but agrant. But a license, oral or byparol writing, to obstruct aneasement, if acted upon (with noreference to the amount of money expended or timeelapsed), destroys the easement.This is otherwise expressed bysaying that the license is irrevo-cable, a less correct statement.Statutes of frauds have alwaysrequired a writing to create andto transfer interests in land; notto destroy one. The license op-erates as an abandonment.

Mere non-user, for the pre-scriptive period or any otherlength of time, does not extin-guish an easement, although itmay be evidence of an abandon-ment. Since non-user violates no

right of the servient owner, talkof prescription in these cases ismeaningless. Neither does ex-cessive user destroy the ease-ment. But excessive user may beso inseparable from legitimateuser (as when the dominant ten-ement is a small building thatbecomes part of a larger build-ing covering other land) thateven the latter may be enjoinedunless and until the excessiveuser is ended. This, like the

preceding case, is suspension of enjoyment but not extinguish-ment of the right.

There can be no doubt what-ever of a general unfriendlinessin the law toward rights held byone person in the land of an-other. There is equally plain evi-dence in its development thatthis attitude has proved weakerthan the general policy of allow-




ing owners to do what they willwith their property. There hasbeen a steady growth of therights in question. This is equallyplain as respects easements ingross, real covenants, and li-censes.

6. Profits a PrendreThese interests, so called to

distinguish profits taken fromthose rendered (profits in ren-der), are ancient common lawderivatives, altered, from mano-rial prototypes. Today, they areusually called, simply, profits.

A profit is a right to partakeof some product or constituentof anothers land without enjoy-ing possession of the land. It isnecessarily, unless in exceed-ingly rare instances, accompa-nied by incidental easements,usually of way, which either makepossible or facilitate the profitsenjoyment. The products takenmay be sand, gravel, marble,coal, standing timber, grass,water (provided it is in ponds, orotherwise property of the land-owner), or other things. Whensevered the product becomespersonalty. A right to take ice

formed on ponds on anothersland is properly a profit. Theright of a riparian owner to takeice from a natural stream ismerely a use of the water, thoughfrozen; and he should have nomore power to give non-ripariansinterests in the frozen water thanin the unfrozen (p. 238). A rightassumedly given by a riparianowner to take water from a natu-ral stream, if permitted by thelocal law, cannot be a profit, by

the general view, because the ri-parian landowner is not owner of the water; the right is thereforecalled an easement. But there aredifficulties here, for certainly aprofit may be given, by properwords, to take from land oil orgas, notwithstanding that thereis no ownership of these exceptas personalty after confinement.The difficulty is that we have few

labels under which to classify therights now under consideration.Those just mentioned necessar-ily receive from the courts pro-tection beyond that accorded tolicenses; and if not mere licenses,the only alternative is to regardthem as profits. Much the same

must be said of so-called prof-its to take wild game onanothers land or fish from anatural stream running throughthe same. In these cases, as inthat of the oil, the owner of thelocus does have a preferentialposition as respects their cap-ture, although no right to pre-vent a neighbor from drawingaway the oil or fairly intercept-ing the game.

As in the case of easements,a profit may be created either bygrant or by prescription, and thesame principles apply in deter-mining its scope. However cre-ated, it may be one in perpetu-ity, for life of its holder, or foryears. A profit appurtenantpasses presumptively by convey-ance of the dominant estate, andthe recording act affects this pre-cisely as in case of an easement.Likewise, it may be exclusive or

non-exclusive, and in the lattercase similar rights may begranted to a number of persons,each enjoying in subordinationto rights earlier granted. But herecomes into operation the chief doctrine controlling profit rights,namely that the servient landmust not be subjected to thedanger of exhaustion (sur-charged).

A right to all the profits orall the substance of land is, we

have seen, a grant of title (p.142). A grant of all the coal, orother single product or constitu-ent of the physical land, underand in the same, no matterwhether for a lump sum or onepaid in installments, is a convey-ance outright of such singleproduct. A railroads right to con-struct and maintain a tunnelthrough land need not, of course,

be a conveyance of the landwithin the tunnels bounds, andit cannot be a gift of the exca-vated earth, as personalty, untilafter excavation. No doubt insome cases grantors have re-quired the excavated matter tobe used in fillings for their ben-

efit. But the usual practice is totreat such land as either im-pliedly conveyed or given, to-gether with an easement of way;in other words, there is no profit.But a right to take coal in quan-tities undefined, paying so muchper ton, is a profit; and even aright to take undefined quanti-ties of a single product may ex-haust the land in an economicsense notwithstanding thatland is legally indestructible (p.172). Consequently the law,though freely recognizing pub-lic easements, has never recog-nized a profit exercisable by thepublic. Nor has it permitted as-signments of profits that tend tosurcharge the servient land. Anold case, a leading one despiteits obscure brevity, laid it downthat if a profit be assigned toseveral persons they must workit together with one stock. To

hold that an assignment to twogreat construction companies istherefore invalid seems to givethe proper meaning to thephrase quoted. The rule, how-ever, as generally stated, is thata profit is indivisible; that if granted to several it must beworked in common. This is avery crude test: the exercise of the right by one industrial cor-poration would be more destruc-tive than its exercise by a hun-

dred individuals, whether incommon or in severalty.

Profits have always been rec-ognized both as appurtenantand in gross. To be appurtenanta profit must clearly conduce tothe enjoyment of the dominanttenement by its occupant, andthe right is measured by theneeds of that tenement. If cre-ated as one appurtenant it can-




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not later be made one in gross.Nor can a profit be at the sametime appurtenant to the extentof the needs of the dominantland and, beyond those needs,in gross.

Profits in gross, unlike ease-ments in gross, have always been

assignable. One can only surmisewhat caused this inconsistencybetween profits and easements,the former being, from ourpresent point of view so muchmore detrimental to the servientland.

If the profit is appurtenantand the dominant tenement isdivided, and the profit isadmeasurableas, for ex-ample, a right to take manure forthe dominant landthe ownersof the several parts continue totake what each part requiredbefore, since it still requires thesame. The profit is apportioned.But a profit to take wood forhousehold needs (fires, repairs,and fences) is not admeasurableaccording to mere acreage; a di-vision of the dominant land, andincrease of households, wouldtend to surcharge the servientland. Such a profit (of estovers)

is not apportion-able. If theowner of the servient tenementbecomes owner of a part of thedominant, thereby extinguishingthe profit as to that part, the con-tinuance of the profit, if appor-tion-able, in favor of the remain-ing dominant land is evidentlyunobjectionable.

If the servient tenement isdivided, and title to any partthereof is acquired by the ownerof the dominant tenement this

extinguishes the whole profit.Likewise if a release is given byhim to the owner of any part of the servient tenement. In bothcases it is assumed that he wouldthereafter surcharge the otherportions.

All the modes of destructionenumerated under easementsapply equally to profits.

7. Real Covenants(1) AT LAW. The law of real

covenants is unclear and un-settled. Various aspects of it canbe discussed only with hesitancy,and indeed bewilderment. Thesubject is habitually presentedunder two divisions. Not all cov-

enants that run, in the sensethat they create real rights (Su- pra, p. 26), are known as cov-enants running with the land.Any real right created by cov-enant which is a right tradition-ally recognized as capable of existing as an easement, or arent charge or profit, is an ease-ment, a rent charge, or a profit;and after its creation by wordsof covenant runs as an easement,profit, or rent with the land,whereas the real rights now tobe discussed, though called cov-enants running with the landreally run with the estates ortitles held therein.

(a) Covenants Incidental to the Creation of Lease holds. Cov-enants in leases that run with theland have already been dis-cussed, and their peculiar natureadverted to (p. 201). In those

cases the landlord may or maynot have a reversion in feesimple; there is said to be ten-ure and privity between theparties. The requirement that acovenant must touch or concernthe land is very generally statedas meaning that it must directlyaffect the nature, quality, value,or mode of enjoying the thingdemised. This is too narrow; nordoes the substitution for the lastwords of land, to cover the in-

terest of both tenant and (p. 201)reversioner, suffice to removeobscurities. It is the titlelease-hold or reversionthat must beaffected, in the sense indicated,by the covenant to do or not dosomething with or on or regard-ing the premises demised; andthe effect must result directlythrough or because of thelandlords or tenants legal rela-

tionship to that land, not be-cause of collateral circum-stances. Finally, in the case of these leasehold covenants atleast, although the covenant hasoften been held to run (in thiscountry) as to both benefit andburden if it meets the test just

stated as respects either one of the titles, high authority sup-ports the view that the runningof each should depend upon thepresence of justificatory facts onits side of the relationship. Inother words, the relation shouldbe regarded as involving two in-dependently possible incidentsof title, each existing or not ex-isting according as its char-acteristics do or do not fit ourgeneral conception of real or pro-prietary rights (p. 127). As yet,however, the precedents are notbased upon this theory, althoughmost of them are consistent withit.

When the tenant is the prom-isee, his benefit might consisteither merely in an increasedphysical enjoyment of the leasedpremises or in some present orprospective economic advan-tage. The line between them is,

however, not always clear. It issignificant that advantages of the former type, which arescarcely conceivable, have appar-ently not arisen in litigation. Theywould be conferred by thelandlords covenant to care forthe tenants lawn and shadetrees, or not to use a roadway onhis unleased land passing nearto the tenants house. Benefitsof the second type are conferredby covenants not to distrain for

rent, not to compete with thetenants business on the leasedpremises, to renew or extend thelease, to buy his removable fix-tures when the term ends, to givethe tenant a lien on them untilpayment, to reimburse him forpermanent improvements, giv-ing him a right of preemption forwhatever price others may offer,or to convey the reversion to him




at a stipulated price. Both typesof benefit seem necessarily in-volved in promises to repair aresidence, or supply the tenantwith water, gas, heat, or light.The burden upon the landlordwho makes the preceding cov-enants takes the form in five

cases of a pecuniary outlay; inseven it consists in a limitationupon his liberties of user or pow-ers of disposition over the land.The restraint of mere personal liberty by any enforcible contractis, of course, not in question. Of course, too, having promised as reversioner, in a contractualsense all the covenants burdenhim through his relationship tothe land; but of the five pecuni-ary burdens only one is inti-mately otherwise associated withhis position as reversioner. Not-withstanding the very naturalfact that by no means all courtsand writers maintain that theabove suggested covenantstouch and concern the land, itis believed that they do, and onboth sides, consistently with pre-cedents. The case is strongestfor such a conclusion when notonly does the tenant receive an

economic benefit attached to thegrant of his leasehold, and whichhe bargained for as such, but thelandlords reversionary title isrestricted in content. As for thefour cases in which the landlordsfinancial burden is not onewhich, in theory, is necessarilyassociated with a reversion, itcan be said that they do in factadd to his legal duties as rever-sioner, and therefore do reducehis economic advantages as

reversioner. That the covenantwould generally run even inthese cases is perhaps supportfor the view, frequently ex-pressed, that if either party isbenefited or burdened directlythrough his legal relationship tothe land, that is generally re-garded as sufficient.

When the landlord is thecovenantee there is only his re-

versionary title to enjoy, and cov-enants by the tenant can, appar-ently, very rarely confer any ad-vantage in enjoyment of the existing liberties, powers, or rightswhich constitute that title. A cov-enant may, however, add to thelessors rights or duties; for ex-

ample, one giving him a first lienfor rent upon property of the ten-ant on the premises (where suchright would not otherwise exist),or giving him a power to termi-nate the lease upon certain con-ditions, or one releasing the les-sor, a railroad, from liability fordestruction of the tenants prop-erty by fires negligently set bythe lessors locomotives. If thedecisions were consistent suchcovenants should be held totouch and concern the land; butparticularly as respects the lastnot all dicta and decisions haveaccepted that view.

The benefits conferred onthe landlord consist, almost al-ways, solely in present or pro-spective economic advantages. If such inure to him through im-provement of the land, the cov-enants have been held to touchand concern the land (and have

been allowed to run). Examplesare covenants to repair buildingsand other structures on theleased premises, to improvethem in a stipulated manner, tofertilize fields, to rotate crops (orfallowing with tillage), to paytaxes on the leased premises,not to employ laborers lackingproper claim to support from lo-cal poor rates to which the les-sor must contribute, to buy beerfor tenants inn from the lessor

only, not to compete on the de-mised premises with thelandlords business, not tomanufacture thereon certain ar-ticles, to buy the same at an ar-bitrated valuation at the end of the term, not to assign or sub-lease (or not to do so without thelandlords consent), to live on theleased premises, or to conduct aleased creamery as an indepen-

dent business. If the perfor-mance of the covenants would beequally advantageous to thelandlord independently of hisreversion, they have been re-garded as collateral and per-sonal.

Of the preceding thirteen

covenants the first four benefitthe lessor financially throughmaintenance or betterment of the land leased; moreover, in sofar as the tenant thus assumesan obligation that transcends hisgeneral duty to return the pre-mises in as good condition aswhen received, the covenantsgive the landlord a sole remedy(and in so far as the covenantobligation falls within the gen-eral duty, an additional remedy).The next four certainly, the fol-lowing four presumably, and thelast possibly, also benefit himeconomically in other ways (hemust have bargained for themunder that belief); but, save thecovenants to live on the land andnot to put another person in astenant, these eight do not sobenefit him directly through hisrelationship to the land in thesense of the testfor it matters

not that his ownership enabledhim to exact the promise fromits would-be tenant. As regardsthe effect of the covenants in re-stricting the tenants constitu-ents of title, or in making morevaluable those of the landlord,the last eight covenants mani-festly restrict the normal libertiesor powers of a tenant, and thefirst four have the same effect sofar as they transcend his normalduty to return the premises in as

good condition as when received;and the covenant to pay taxesassessed against the landlord isan abnormal increase of thetenants legal duties. It wouldseem that all the covenantstouch and concern the land. Andmost courts would permit themto run, notwithstanding thatsome do not, on the benefit side,satisfy the requirement that it be




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conferred directly through thepromisees relation to the land.

Doubts regarding some of the above covenants have al-ready been noted.

In indicating that most of thecovenants above suggestedshould be held to touch and con-

cern the land, and particularly insuggesting that they shouldtherefore run, and in general asregards both benefit and burden,it is only meant that under thetest of the covenants effect uponthe respective titles of lessor andlessee, and as a matter of logic,those should be the results. Sat-isfaction of the test really indi-cates, however, only that a cov-enant has such intimate connec-tion with the land that it wouldhave the qualities of a normalreal right if made such by beingallowed to run. It does not by anymeans follow, however, that pub-lic policy would thus be served.To this question reference will bemade later. It is important to em-phasize once more, here, the re-quirement that benefits or bur-dens must inure directlythrough the owners (orpossessors) relationship to the

land as owner. There are manycovenants which benefit the cov-enantee or burden the covenan-tor, and even through his rela-tion to land, which it may be ar-gued, should nevertheless beregarded as personal because heis not exclusively or primarilybenefited as owner of the landconcerning which the covenantis made. Such are, a tenants cov-enant to grind in a mill on thelandlords land all grain raised on

the leased premises (although ina famous case this was held torun); a landlords covenant tomarket for the tenant all grainraised or hay cut by him on theleased premises; a covenant byeither not to compete on his pre-mises with the business of theother on his premises. In theopinion of various students of the subject, these covenants

should be treated as personal.Even more evidently personalwould be covenants to grind thegrain in a mill not on the land-lords land, or to market for thetenant grain or hay not grown byhim on the leased premises, orto harvest his crops on other

than that land, or to give freetransportation over the railroadto the promisee who conveyed toit a right of way. A decision of such questions really dependsupon ones preference for apolicy of liberality or illiberalitytoward the creation of incumbrances upon the title toland. A conscious and systematicapplication of such considera-tions of policy is a necessary firststep in removing the doubt andconfusion which,- as JusticeHolmes said, covers the entiresubject, particularly that of cov-enants not incidental toleaseholds.

(b) Covenants Not Incidental to the Creation of Lease-holds.The covenants next to be con-sidered are made between own-ers in fee of two pieces of land,each owner either having, before

the covenant, no interest in theland of the other, or one of themholding an easement or profit inthe others land.

The question has been muchdiscussed whether privity isessential for the running of cov-enants between two landownersin fee, and what such privity canbe. Almost all of such covenantsare made when the originalowner of both tracts grants oneaway, and either covenants to so

use land that he retains as to in-crease enjoyment or add to thevalue of the granted land, or ex-acts from the grantee covenantsto so use the granted land as toincrease the grantors enjoymentof land that he retains, or in-crease its value. It is generally un-derstood that succession in tideis in these cases the privity re-quired, and that such succession

includes both the transfer be-tween the original parties andtransfers subsequently made byeach. But in a few states somecontinuing common interest be-tween the two pieces of land isnecessary, such as an easement.

No doubt the crucial ques-

tion, in litigation, is alwayswhether the plaintiff, claimingthe benefit, can prove his succes-sion to the estate of the originalcovenantee; which is probablywhy, as Justice Holmes said, it isthe only privity of which thereis anything said in the ancientbooks. The laws requirementdoes not seem to be limited,however, in most jurisdictions, toless than the triple relationshipof succession as stated above,call it privity or not as one will.And although the succession re-lationship continues to exist, asan historical fact, after the origi-nal transfer, the ungenerouslystrict view has been taken thatno promises run except thosethat are made at the moment of transfer. The requirement of acontinuing tie between the landsof grantor and grantee, such asan easement, is a logical ana-

logue of the leasehold privity.Recognition of mere successionin the holding of title to grantedland as constituting privity be-tween the original parties is alaxer doctrine. It is still more laxto recognize it as existing be-tween the covenanting owners of lands neither of which has beengranted by one to the other, andbetween which there is also lack-ing the tie of an incorporeal her-editament. There can exist in the

last case no privity between thecovenantor and covenantee un-less it is the contractual relation-ship indicated by those words,but between each of them andsuccessors to his estate it canexist as succession in title. Thefew states whose courts havepassed upon the questionwhether such covenants may runare about equally divided in their




holdings.The problem is, when may

covenants regarding the use of land have real consequences?In the first place, in the equitydecisions the courts have madeit clear that no covenant shouldrun if the original parties do not

intend it to run; in cases at lawinvolving fees the point has notbeen wholly ignored; in lease-hold cases, it has been virtuallyignored. It is believed, however,that all covenants are personalto the extent that they remainpersonal if so intended. In thesecond place, although there isno reason why the running of acovenant should not be confinedto benefit or burden alone, andalthough, as already noted, thatwould seem to be the desirableview, such has not been, as yet,the course of development in thiscountry; in determining which, inthis respect, both the exampleof covenants in leases and thegeneral idea of mutuality in con-tract relations have doubtlessbeen influential. In the thirdplace, in England, except in thefield of landlord and tenant, bur-dens do not run at law; in equity

they run if merely restrictive of the use of land. In this country,speaking generally, both ben-efits and burdens run, at law andin equity, and whether the bur-den be negative or positive.

Assuming, then, a covenantto use or not to use land in cer-tain ways, an intent that it shallrun, and whatever privity be-tween the parties is required inthe jurisdiction concerned, stillit will not run, as in the case of

leaseholds, unless its perfor-mance benefits the covenanteeor burdens the covenantor, orperhaps does both, rather di-rectly (a phrase necessarilyvague) through his relationshipto the land. It is evident thatsome such requirement is indis-pensable if any line is to existbetween purely contractualrights and real rights originating

in contract. Without it, too, cov-enants by strangers to the titlecould be freely attached to land.Any covenant not satisfying therequirement is, as already said,personalin other words, theright it creates is not a real right.

Examples of covenants made

incidentally to the conveyance of land in fee simple by the granteeor the grantor, for himself, hisheirs, and assigns, holders of theland granted or land retained,are the following: not to erect abuilding that cuts off light fromthe covenantees windows, tobuild a fence or a wall, to leavean opening in a fence, to main-tain an underpass beneath or acrossing over a railroad, to buildand maintain a railway station forthe convenience of thecovenantees family and guests,not to claim damages for harmcaused to covenantors land byconstruction of a railroad by thecovenantee on its adjoining land,to build or maintain in repair adam, to convey more land if re-quired by covenantees business,to pay half the cost of a party wallbuilt by covenantee if and whenused by the covenantor, to insure

mortgaged land (in a title juris-diction) for the benefit of themortgagee, not to erect a garageor other specified structure(assumedly not a nuisance), notto use land for other than resi-dence purposes, not to sell liquorthereon, not to convey to a per-son of other than Caucasian race,not to engage on the land in acertain business.

Of these fifteen covenantsthe first five either certainly or

by fair assumption increase thepromisees physical enjoymentof his land; and, for that or otherreasons, all presumptively in-crease the value of his title. More-over, all except the third andfourth involve some diminution,however slight, of thecovenantors proprietary liber-ties of user; but the third mayinvolve the same (if, for example,

it lessens the safety of thecovenantors children or live-stock), and likewise the fourth(by increasing the care neededin case of the grade crossing). Of the next five covenants all clearlyadd to the value of thepromisees estate; moreover, the

first three of them manifestly di-minish, respectively, the prom-isors rights, liberties, and pow-ers. Finally, the remaining fivecovenants, all reduce either theproprietary liberties or the pow-ers of the covenantor. At thesame time the last covenant pre-sumably increases the value of the covenantees title, while theother four presumably have thateffect and also increase the en-

joyment of his liberties of user.In short, almost all of these

covenants touch and concernthe land in the very intimatesense that each alters in somerespect and to some degree thetitle to both tracts of land, re-stricting or making less valuablethe liberties or powers or rightsof the promisor, widening ormaking more valuable those of the promisee. There seems to belittle doubt that the covenants

might properly run both as re-gards benefit and burden, so faras consistent with general pub-lic policy.

As in the case of covenantsincidental to leases it wouldseem that the benefit or burdenshould independently run if thereasons exist for allowing it todo so. But the question has beenscarcely noted judicially, doubt-less because the justification forallowing the covenant to run usu-

ally exists on both sides if it ex-ists on one, as illustrated by theexamples above given.

Some aspects of the problemdeserve particular emphasis. Inthe first place, the establishmentof a consistent theory of cov-enants running at law has beenhampered by the influence of English precedents, limited as isthe English law with respect to




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the running of burdens (p. 305).Some of the states have followedthe English lead, although as tothe refusal to allow the burdento run at law there seems to beno intelligible reason for it, whilethe limitation to restrictive bur-dens in equity embodies a view

of equitable jurisdiction that haslittle strength in this country. Inthe second place, the precedentson the meaning of the require-ment that a covenant must touchand concern the land, which isthe same at law and in equity,are more numerous in equity. Inthe present confusion of legaltheory, equitable jurisdictionvery often depends not on thequestion whether legal remediesare adequate, but on the ques-tion whether there is any rightat law, and there is always achance that despite a denial of alegal right entitled to protectionthe court may find a covenantrunning in equity. The advan-tages of injunctive relief are thesame, no matter what the natureof the right protected. The inde-pendent determination in equityof the issue regarding the exist-ence or nonexistence of the le-

gal right is presumably no spe-cial obstacle to the growth of aconsistent legal theory. In thethird place, it is always to be re-membered that covenants whichare allowed to run are therebymade true real rights andincumbrances, to the creation of which the law has supposedlynot been friendly. Some of thecovenants given above as ex-amples would, unless qualified,fall under the ban of certain gen-

eral rules of public policy, par-ticularly the rule against perpe-tuities and the policy against re-straints on alienation. But, asidefrom such general restraint, itdoes seem that the courts haveshown remarkable liberalism increating the real rights here inquestion.

If the law proceeds upon thetheory that any covenant oper-

ating to restrict or enlarge someconstituents of title of the twolandowners, or make them lessor more valuable, should be al-lowed to run, the doctrine willinevitably have a vast develop-ment. In view of such phenom-ena as the growth of pew-rights,

party wall easements, easementsin gross, and real covenants gen-erally, it is clear that there ex-ists no conscious and decidedopposition to the creation of newproperty rights, even when theyconstitute perpetual incum-brances, and, as respects realcovenants, are created by con-tracts of persons who merelyhappen, at a given moment, tobe the owners of land. It is alsoquite clear that many of the ease-ment rights just mentioned seemwholly desirable, and that suchof the rights created by covenantas serve permanently desirableends will be established regard-less of the absence of technicalformulas adequate to justifythem, or the presence of con-cepts designed to proscribethem. But certainly there shouldbe more evidence of judicialconsideration of public policy

before creating such rights.It is, of course, only perpetualincumbrances that are par-ticularly objectionable.. Methodsare available by which somecurbs could be established. TheEnglish ban upon running bur-dens made corresponding ben-efits so little desirable that nocases appeared of benefits run-ning at law until after equity be-gan its enforcement of both ben-efits and restrictive burdens. In

many of our states the removalof the ban upon the running of burdens has already gone muchfarther than in England. But it isnowhere too late to separate ben-efit and burden, allowing neitherto run merely because the requi-sites are satisfied for the runningof the other. However, as evi-denced by examples already con-sidered, there is no substantial

curb in the requirement that acovenant must touch and con-cern the land. Something moreis needed.

Nothing is to be hoped foras respects the manner in whichreal covenants may be created.Formalism has gone: no seal is

necessary as respects those in-cidental to leaseholds. In thecase of fees, it is apparently al-ready majority doctrine that onewho accepts a deed poll whichhe has neither sealed nor signedis bound as much by covenantstherein .as he would be by anindenture.

The only aid must lie, appar-ently, in limiting in some way theland in which real rights may becreated by covenant. Some sug-gestions have been made. Onescholar suggests the test: Arethe parties interests in the realestate one of the operative factsnecessary to give validity or law-ful per-formability [objectiveperformability in fact] to the conAnother authority merely statesthat, No covenant will run which... can be performed without theobligor owning the land, or whichcan benefit one not owning the

particular land to be benefited.3

Such tests do not seem to go far.It is barely possible, however,that the courts could make suchrequirements effective curbs.

These suggested tests wouldhave, it seems, the same sort of constrictive effect that a require-ment of privity always serves.The retention of that word maybe very undesirable, but it mayprove unavoidable. At any .rate,its possible merits as a means of

limiting the doctrine now underconsideration have not receivedsufficient consideration.

There is good authority forthe view that Originally the word[privity] seems to have indicatedprivity in the creation of the es-tates with which covenants wereto run. It indicated the grantingof land, being an assimilation totenure; for before the Statute of






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nate because of. the muchgreater number of equity cases.Much confusion has resultedfrom this situation. Legal ease-ments, covenants running with(titles to) land at law, and equi-table servitudes originating incontract have been discussed in

vast detail as respects the his-torical and procedural character-istics that distinguish them, andwith painful efforts to explainthem on an assumption thatsome one theory is implicit in thecases. Very little attention hasbeen paid to their fundamentalsubstantive unity as real rights,and practically no attention what-ever to the question of publicpolicy involved in their creation.That question has been empha-sized in discussing covenantsrunning with the land at law.Moreover, some of those whohave discussed most learnedlythe question whether equitableservitudes are personal or prop-erty rights have based their an-swer, not on the simple test of the nature of the rightholderspower over the land (or other res) but upon debates over the man-ner in which he secures the right,

or exercises it. There is no gen-eral understanding of real rights(p. 127). There is a general con-fusion of the line between con-tract and property law (p. 322).A mere word misleads many intoassuming that a running cove-nant must remain a contractright. To almost every fun-damental question regardingcovenants running in equitywhether a writing is necessary fortheir creation and transfer,

whether the covenant musttouch and concern the land (orsubstituted res), whether any orwhat privity is a preconditionto their running, whether thebenefit may be held in grossthe answers of courts and textwriters are at variance.

Ignoring temporarily a fewanomalous situations, these cov-enants run under the equitable

principle that forbids unconscio-nable conduct, in the sense thatfirst one person and then an-other who owns a res (land orpersonalty) is under the obliga-tion. This, however, relates to themode of creation of the duty, notto the nature of the correspond-

ing right that results from thusimposing the duty. Nobody whoacquires land with knowledge of a condition upon its use agreedto by contract of a former owneris allowed by equity to disregardthat agreement; likewise nobodywho acquires the land as a vol-unteer. As stated in the Englishcase that originated the doctrinea century ago, The question isnot whether the covenant runswith the land but whether a partyshall be permitted to use the landin a manner inconsistent with thecontract entered into by his ven-dor, and with notice of which hepurchased.5 Whatever may havebeen the precise theory of En-glish equity when that case wasdecided, it is idle to deny that theburden does run with the landin the sense above indicated. In-deed one famous English casehas even held that an adverse

possessor takes subject to thecovenant, thus making the realright so created one running withthe land as does an easement,and a more intense real rightthan any covenant running at lawhas yet been held to be. Asidefrom that case the covenant runswhen the respondent has takenwith notice or as a volunteer.Whether he has done so is intruth the essential question; theother is a mere consequence.

Notice may, of course, be eitheractual or through the recordingof the deed containing the cov-enant. Although in England cov-enant burdens do not run at law,they are enforced in equity, eventhere, against one who is not abona fide purchaser for value.

As already mentioned (pp.3078), it is much plainer in theequity cases than in the legal

that a covenant runs only if in-tended to do so, and as intendedby the parties. The right is nor-mally created incidentally to atransfer of land, by covenant of the grantee in favor of thegrantors remaining land or by acovenant of the grantor respect-

ing his remaining land for thebenefit of the land granted. Inthat case the covenant may beconstrued to mean that the ben-efit created was intended to en-dure only while the covenanteeshould remain the owner, or thatit was to be enjoyed by all of hissubsequent grantees. There areeven cases recognizing cov-enants whose enjoyment can berestricted to those grantees towhom the covenantee maychoose to pass it by mention intheir deeds. The right created inthe last case is neither truly per-sonal nor truly real; the possibil-ity of creating it has been muchcriticized.

May the parties create, if theywill, a benefit in favor of one whoowns no land that could be ben-efited thereby, or one enforcibleby the covenantee after he hasparted with all the land which it

was intended to benefit? Thereis very little case law to supportthe affirmative answer. The pre-vailing view limits equitable cov-enant rights to the analogy of easements appurtenant, of thenormal and spurious types. Itcannot be said that such cov-enants are inconsistent with thedoctrines of privity (constitutedeither by succession in title or byan easement connecting the twopieces of land) which have been

discussed in relation to cov-enants running at law.

On the other hand, in the cre-ation of urban real estate de-velopments under a general planthere seem to be permitted ap-purtenant interests of mostanomalous formsdominanttenements without servient ten-ements and servient tenementswithout dominantand equally




unorthodox modes of creatinginterests. The promises most of-ten involved are those not to useland for other than residencepurposes, or erect houses withina certain distance from thestreet, or costing less than a cer-tain sum, or of other than a stipu-

lated architectural type, or all of these and other promises to-gether. There is no reason whythese covenants should not runat law, but of course the remedyof damages could not compelobservance of the restrictions.While the preceding covenantsare analogous to negative ease-ments, covenants to build ahouse of a certain type, laydrains, grade lots, and so on,would be analogous to spuriouseasements. The flexibility of theequitable doctrine is illustratedby the fact that the restrictioncan be enforced by the holder of any lot against the holder of anyother, regardless of the order inwhich they became purchasers,and even though both trace theirtitles to one of the original par-ties, covenantor or covenantee.This is consistent with the gen-eral intent of the developer,

which is to burden every lot forthe benefit of every other. Therestriction is very commonlystated in each deed without in-dication of the beneficiaries. Thismay then appear from extrinsiccircumstances, as when the de-veloper makes a plan of the de-velopment, and sells lots in ac-cordance with the plan, or alsoshows a plat to prospective pur-chasers. There are cases holdingthat the owner of a lot that was

not part of the development, maynot, although subject to similarrestrictions, enforce the develop-ment restriction against develop-ment lots. On the other hand theburden has been enforcedagainst lots not owned by thegrantor at the time of making thegeneral plan or the first salesthereunder, but later acquired byhim and sold under identical re-

strictions; and against the origi-nal grantor himself as respectslots of which he (or his wife) laterbecame owner, they lying withinthe area reasonably intended byhim to participate in the plan of development. It has also beenheld that a mere neighboring

landowner may enforce it, pro-vided he can prove that he canreasonably be considered as anintended beneficiary, particularlyif he has, in reliance upon therestriction, observed it in mak-ing his own improvements.

In these real estate develop-ments, therefore, benefits aregiven to land already owned asagainst land not yet owned, andburdens are imposed on land al-ready owned for the benefit of land not yet owned, and relationsof dominant and servient tene-ments are established withoutany conveyance whatsoever. Itseems manifest that if the intro-duction of zoning puts an endto the growth of such proprietaryrights it will be a real service.Every objection to the creation of real rights by private contractthat can be urged against cov-enants running at law applies

with far greater force to the dis-orderly and unrestrained actionof equity.

An attempt to create a run-ning covenant may fail in the be-ginning, because of undue re-straints upon alienation, or be-cause it would create a mo-nopoly, or is otherwise againstpublic policy. A policy unfriendlyto incumbrances is not infre-quently illustrated by decisionswhich, of several possible con-

structions of a deed, choose thatwhich least restricts the use. of landas respects, for example,duration, disfavoring perpetualrestrictions; or, in case of doubt-ful language, construe it againstrestriction at allfor example, byrefusing to imply from state-ments of a use to be made of property covenants not to use itotherwise, or by construing the

term dwelling house or resi-dence to include an apartmenthouse or a nunnery. A contraryand undesirable attitude isshown, however, when the gen-eral rule that a deed shall be con-strued against the grantor is ap-plied to one which creates an

equitable restriction.An existing covenant right

may be released. It may be de-stroyed by merger. Like an ease-ment it may be abandoned, orwaived, as, for example, whenthe holder of the benefit acqui-esces in violations of a restric-tive covenant by others or vio-lates it himself. Like all equitablerights it may also be lost bylachesa finding of which is sub-stantially a finding of abandon-ment. The courts have frequentlyrefused to enforce a covenantwhen enforcement has becomeinequitable, notably when therehas been such a great change inthe neighborhood or in otherconditions as to defeat the pur-pose of the covenant, or when forother reasons enforcementwould unduly burden defendantwith little benefit to the plaintiff.Such procedure raises various

questions. The first is whether aproperty right can properly thusbe destroyed. It may in somecases be permissible to say thatthe court is construing the par-ties intent with respect to theinterests duration. It is also true,but no answer to the objection,that probate courts constantlydo as much in dealing with atestators intention, and thatequity courts do much less ex-cusable things with indisputable

property rights in balancing con-veniences in nuisance cases andcases of encroachment by build-ings (p. 105). Passing this diffi-culty, the question ariseswhether there is a loss of rightor only of remedy. Will, for ex-ample, a bill lie to compel therelease of such a covenant as acloud on title ?the usual mean-ing of which is an apparently




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valid but in truth invalid title orincumbrance, and not a merecondition of fact that makes un-conscionable the exercise of atechnical right? Equity may, in-deed, refuse its relief withoutenjoining actions at law for dam-ages; but damages ought not to

be given even at law under suchcircumstances, nor by equity inlieu of an injunction, and if nei-ther remedy is available, or if equity would enjoin the legalremedy, then no right longerexists, practically speaking, andthe bill should lie. All this shouldbe confined, however, to an ut-terly clear case of which it mayclearly be said that the covenantno longer touches and concernsthe land in the sense alreadydefined (p. 297). In other casesthe refusal of equitable remediesis of extremely questionable pro-priety.

Marked differences betweenthese equitable interests on onehand, and easements and cov-enants running at law on theother hand, have already ap-peared. There are still others.The most marked is that whichrelates to the interests to which

the benefits and burdens of thecovenant may be attached. Thereis nothing in the doctrine of eq-uitable servitudes that restrictsits application to land. It has inthis country been applied tochattels. A chattel, instead of being sold outright, may bebailed (leased) and restrictionsimposed upon its use; for ex-ample, requiring it to be usedwith supplies and accessories of specified types in which the

bailor is financially interested. Orit may be sold to wholesale deal-ers under restrictions regulatingits distribution among retailers,and its retail price. This chapterin covenants would long sincehave become of vast importancewere it not for the fact that mer-chandizing policy must be ad-

justed to laws against unfairtrade and industrial trusts. The

patent and copyright laws, whichconfer statutory monopolies, aid,rather than in any way discour-age, such control by the ownerof the patent or copyright. Inaddition to chattels, the doctrinehas been applied to a business,the covenant being very gener-

ally one to exclude competition.The equitable title of a contractpurchaser, likewise a mort-gagors equity of redemption,have been held sufficient.

But all this does not affectthe analogy of the equitable cov-enant rights to those running atlaw. In all such cases as those

just mentioned there is a domi-nant and a servient res, althoughthe res is not land. Some havedenied that any covenant held ingross can be enforced in equity,and as noted above, the weightof authority is with that view. Noris there anything to prevent theapplication in the above cases of the requirement that a covenant,in order to run, must touch andconcern the land. That require-ment should invariably be made.More or less articulately, it ismade when land is really involvedas such. In the many equity cases

in which the dominant res is abusinessthe burden being im-posed upon another business, orupon a chattel whose sale is partof a business, or upon landwhose forbidden use would bepart of a present or potentialbusiness the same test is al-most invariably satisfied as re-spects both the dominant andservient res.

There has been much contro-versy over the question whether

these equitable obligations aremost accurately described ascovenants running in equity, oras equitable servitudes, or asequitable easements. Some notinfrequent arguments made infavor of one or the other viewhave little merit. For example,the suggestion is made that suchrights must be easements be-cause the doctrine of benefici-

ary applied to them is more elas-tic than the legal doctrine of thethird party beneficiary appliedat law to a contract; or, contrari-wise, it is said that the bindingof a disseisor cannot be sound,because inconsistent with thecovenants character as a con-

tract. On the other hand, theobjection has been made to theeasement analogy that it isanomalous to speak of enforcingan easement in equityignor-ing such equitable extensions of a legal doctrine as that of equi-table waste. Such criticisms missthe essential issues. Confusionreigns because of the failure torealize that a legal or equitablerunning covenant is just as mucha real right as is an easement;the three rights have thereforenever been subjected to commonanalysis and a common policy.The name is of relatively minorimportance. Clearly the covenantdoes not, in equity, run with theres, literally, as legal easementsrun with the land (p. 279); nor,in the various situations arisingunder general real estate devel-opments, does it run with thetitle to the res, as covenants run

with land at law (p. 303). More-over, an interest appurtenant toa chattel or a business is an un-satisfactory analogy to an ease-ment. Servitude seems, there-fore, to be a more accurate de-scription than running cov-enant if one insists that the cov-enant must run with some res that likewise runs. But eitherdescription will serve if one real-izes that the only running in-volved lies in the fact that a duty

or right is first with one personand afterwards (on what theorystill remains to be discussed)with another person. But in fact,the covenant does run with theland; it runs because equity im-poses upon all persons savebona Me purchasers for value theduty to respect it; and thecovenantees right to have therestriction observed is therefore




a real right, which the recordingacts make as true and intensivea proprietary right as any legaleasement. Those who have ad-vocated the name equitableeasements have been motivatedsolely by a desire to emphasizethe real or proprietary character

of the right. Since, however, itought to be dear that all runningcovenants are real rights, itshould not be necessary to givethe rights in question a namewhich, on the whole, is a misno-mer. There should be no need toappeal to the analogy of ease-ments in order to apply the stat-ute of frauds, or to reach the con-clusion that compensationshould be given for them whendestroyed in eminent domainproceedings.

To say, however, that thesethings should be evident, is notto say that courts have so re-garded them. The idea that eq-uitable rights are necessarilypersonal is so strong, the realcharacter of the rights is so littleappreciated, that the courts arevery inconsistent in their appli-cation to them of the statute of frauds. Courts of the highest re-

pute have enforced oral buildingrestrictions; as noted above,where a general plan is involvedthe restriction may be based onoral statements to purchasers,on mere exhibition of a plat, ormere inferences from a line of conduct in successive sales.Moreover, in contrast with thepractice of law during centuries,neither because a covenant isinvolved nor because a pro-prietary interest is created is a

seal required. In other respects,too, informality prevails. No par-ticular words are required in in-dicating the parties intent.

Discussion of the theoriesupon which the courts have pro-ceeded in creating equitable ser-vitudes has equaled that re-garding the nature of the result-ing right. There is a general fail-ure explicitly to enunciate the

principles of decision. This re-sults in a mass of amorphousmaterial to explain which varioustheories have been advanced. (1)That of unjust enrichmentof the last buyer at a low price if the parties assumed the restric-tion to be binding, or of the last

seller at a high price if they as-sumed the contrary, unless therestriction be enforcedhasbeen abandoned by everybody.In the first place it could applyonly in the situation (whicheversituation) where the parties aremistaken about the law. But thatsupposes that there is a rule of law, whereas the inquiry is for thepurpose of establishing one. Toassume that the rule is thatstated in the second situation isto offer a justification of an ex-isting rule, but not to explain itsorigin. In the second place, mak-ing no such assumption, thepropositions are, that to profitthrough a common mistake of law is a moral injustice, which isquestionable; and that to preventthat supposed injustice cov-enants were made to run. But thefact is that the very mistakeagainst which equity gave for

centuries no relief was that of law. And it has become estab-lished only since the covenantdoctrine originated that equitywill relieve against a commonmistake of law that is treated asa fact in entering into a legal re-lation. That principle, then, canhardly explain the other doc-trine. (2) Another theory is sim-ply the inadequacy of legal rem-edies. But they are not inad-equate if a mere contract is in-

volved, unless one assumes thata covenant to use land in a cer-tain manner is a contract to con-vey an interest in land. But thatis unsatisfactory as an explana-tion of the doctrines origin (al-though not unsatisfactory as a

justification, or working theorytoday); first, because there is not,in fact and in form, a contract toconvey anything; secondly, be-

cause although the covenant cre-ates a real right when made torun, not even that fact has longbeen realized, and is only imper-fectly realized now. (3) The thirdparty beneficiary theory does notexplain cases binding thegrantor himself in the use of lots

that he retains, or in giving himrights against the occupants of other lots.

Finally, (4) there is the theorythat the cases can be explainedas the results of an equity doc-trine which is consistently ap-plied in the law of trusts and inthe law of specific performanceof contracts; namely, thatrights in personam ... will begiven the character of rights inrem, and will thus be clothedwith the protection of the law inso far as they are capable of be-ing injured or interfered with bythe rights of third persons.6 Inthis theory the res is the contractbetween the grantor and his im-mediate grantees that the useof the land, whether by the cov-enantor or others, shall be per-manently restricted in the man-ner indicated in the covenant.This rests (it is understood) upon

the classic equity doctrine thatthe assignee of the res, with no-tice of the restriction, is not li-able on the contract (whichavoids a conflict with the lawsdenial of the assignability of bur-dens), but merely on a distinctequitable obligation, or consci-entious duty, that is personal tohimself. All that is required isthat he take the land with noticeof an agreement affecting its use,or without the merits of a pur-

chaser for value.Because of its own extreme

elasticity, this theory does coverwith ease the vast majority of precedents. It seems, however, tobe open to some objections. Inthe first place, most unorthodoxlaxity must often be permitted tofind the presupposed contractbetween the grantor and each of his original grantees, and it is ex-




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ceedingly doubtful whether eq-uity really requires such. In thesecond place, the equitable dutyof noninterference with thecovenantees equitable rightupon the contract suggests dif-ficulties. This is not (to judge bythe language of the cases) the

right of the original covenantee:after he parts with the land, andpresumably loses all interest inthe covenant, it would be absurdto talk of enforcing his rights(even if they could be held ingross). It is the right of the origi-nal covenantees assign, thepresent owner of his land, thatis enforced. He cannot, however,hold it as assignee of a contract,for there is no second party (af-ter the covenantor has partedwith his land), since thecovenantors contractual burdencould not (under the legal ruleabove mentioned) be transferred-How, then is the benefit ac-quired, if not by purchase of theland? And if in that manner, isnot the benefit necessarily partof the title? As respects the bur-den, there are other consider-ations. It is easy to understandthat in England, where no bur-

den could run at law against acovenantors successors, andalso where an assignment of acontract carried rights but notobligations, it was instinctive forequity, when it compelled a laterholder of the covenantors landto observe his covenant, to avoidthe appearance of making him anassignee, and also instinctive toavoid the appearance of enforc-ing the same burden which at lawcould not run. Hence the classic

theory, as above stated. By thattheory each later owner of thecovenantors land must use it asthe covenant provided, not be-cause he is party to a contractwith the covenantees assign, butbecause that is conscientiousconduct. And though the use of the land is thus perfectly con-trolled by the covenant (for thecourt is but an instrumentality),

the title is said not to be affected.The ingrained evasiveness of theclassic theory of equity jurisdic-tionits feigned regard for legalrules and property rights whichit in truth (usually justifiably, nodoubt) controlled or nullified byindirectionwere perfectly

adapted to the problem beforethe English courts of enforcing burdens whose transfer was inno manner permissible at law.But in this country burdens dorun both as spurious easementsand under covenants running atlaw; and the non-assignability of contract burdens is authorita-tively challenged. In this country,then, why should not both ben-efit and burden be regarded aspassing with the res to succes-sive holders? Why should we con-tinue to repeat evasions by whichequity once defended its jurisdic-tion? On the whole, no theoryseems to offer a satisfactory ex-planation of the cases; and thisis inevitable, because it is mani-fest to any reader of them thatthe courts have not proceededon any unitary theory. For thefuture, some semblance of unityin doctrine and public policy

might be developed if it could beagreed that what is involved isthe creation of real rights.

8. LicensesFor centuries it was admit-

tedly the law, as stated in a fa-mous case of 1673, that a licensepasseth no interest, nor altersor transfers property in anything,but only makes an action lawfulwhich, without it, had been un-lawful. While unrevoked a li-

cense given to another, authoriz-ing him to do acts on thelicensors land, restricts thelatters liberties of user as trulyas would an easement. However,the law has always been that alicense rests merely upon thelandowners permission,whereas the real rights hereto-fore discussed compel his sub-mission. Hence, by the great

weight of authority, it is revo-cable at the will of licensor, nomatter to what inconvenience orto what expense the licenseemay have gone in reliance uponit. The licensor can bring no ac-tion against anybody for interfer-ence with his enjoyment under

the license; the license is notproperty under the requirementthat compensation be given forproperty taken by right of emi-nent domain; nor is it an inter-est in property under the require-ment of a writing for the creationof interests in land. If an inter-est in land at all, while unre-voked, it is certainly still a veryslight one, usually not worth pro-tecting by the processes of law,although no less so than manyexpectancies (p. 6).

That flagrant moral wrongresults from revocation in ex-ceptional cases cannot alter thefact that in the vast majority of cases none is caused. It is mani-fest that landowners will alwaysbe willing to allow to friends, oreven to strangers, the courtesyof crossing land or taking someof its products until such timeas the owner may be thereby in-

convenienced, although unwill-ing to bind themselves legally topermit such use; in other words,unwilling to create in other per-sons real rights in their land of the traditional types described inthe foregoing pages. As the dis-tinction is grounded in humannature it should and certainly willremain one in the law.

It is also said to be ancientlaw, stated in the same old caseabove quoted, that a license

coupled with interest is ir-revocable: as a license to cuttrees or hunt on the licensorsland and carry away the treessevered or the animals killed ortrapped. In fact, however, the li-cense given by the landowner isas revocable in these cases as inothers; for, as respects trees notyet cut or animals not yet killed,it is terminable at any moment,




and the licensee cannot complain(unless, indeed, the license beessentially part of a contract forthe cutting and sale of all thetrees) . As respects trees alreadycut or animals killed, however,the law attaches a license to re-move them, since they belong as

personal property to the licensee(p. 16). Owing to the perishablenature of most property thus cre-ated, questions of the irrevoca-bility of the license are rarelypractical issues. However, if theybe imperishable, as marble, acourt of equity should indubita-bly enjoin unreasonably repeatedor unreasonably delayed entriesto remove them, and so compela compromise that preserves therights of both property owners.In no sense are they truly irrevo-cable.

There are some licenseswhich for reasons of public policyare said to be irrevocable, par-ticularly that given to a passengerby a public carrier and that givento a guest of an inn. This onlymeans, however, that they maynot be revoked without payingdamages for breach of a duty im-posed, not by contract, but by the

lawnamely, to accommodateany well behaved member of thepublic who offers pay for such ac-commodation. Of course the pas-senger has no property right inthe train or of passage, and theguest has no lease of his room,nor bailment of the linen and sil-ver which he is privileged, whilea guest, to use.

The strict view of the old lawhas, moreover, been somewhatmodified in attempts to protect

the unwise, lessening the sharp-ness of the distinction betweenpermissive and rightful user. If the licensee expends sufficientmoney in reliance upon continu-ance of the license it becomes,in a small number of states, irre-vocable in equity. Unless created,however, by written instrument,and unless brought within therecording acts, it cannot be made

fully effective as a proprietaryright. No such irrevocable li-cense has heretofore been rec-ognized, apparently (although li-censes may theoretically be of aninfinite variety), which was notthereby made, in substance, aneasement or a profit. There are

only a few licenses in relianceupon which much money can orwill be expended. The mode inwhich informal permissions aregiven practically precludes li-censes amounting to real cov-enants. Although courts will dif-fer as to how much financial lossmust threaten the licensee beforeequity will relieve him, the prin-ciple is clear, and the name irre-vocable license is not objection-able as a description of new ease-ments created in this manner.

Certainly, however, there aretheoretical objections to suchaction. Equity has said for cen-turies that it protects only prop-erty rights. That it also protectsmany interests of personalty hasearlier appeared (p. 33); likewisethat it enforces contracts for theconveyance of any legal interestin land; likewise that for a cen-tury it has been protecting

against interferences by strang-ers any contract, just as it wouldprotect (pp. 10, 150) property, if the damages for a breach are in-adequate. They are inadequatewhen unique personal services,unique chattels, or an interest inreal property is involved. In thecase of a license acted upon byexpenditure of time or money aproperty right is created afterand because equity enjoins revo-cation. To assume its prior ex-

istence begs the question; toassume that equity thus preventsthe unconscionable use of a le-gal right, equally begs the ques-tion. It may be suggested thatunless equity enjoins there is noremedy, because there is no con-tract. But even when little moneyis expended under a license al-ready received, there are verymany cases in which a court can

easily find an accompanying con-tract, implied in fact, not to re-voke the license; and if revoked,damages are often adequatecompensation for all losses rea-sonably to be considered aswithin the parties contemplationof the consequences of a breach.

The acts which one may be li-censed to do on anothers landare of infinite variety as respectscharacter and contemplated du-ration, and the unwise will spendmoney for anything, and in reli-ance upon anything. Damages atlaw may be inadequate only be-cause speculative, or becausethey are only collectible in a mul-tiplicity of suits. Not only thenatural practice of the courts butlegal theory should draw a linebetween what is trivial and whatis socially important. Instead of issuing an injunction, to protectthe unwise because there was noexpress contract, it would bepreferable to be astute in find-ing a contract and then give norelief unless it be for inadequacyof damages in one of the threesituations above mentioned. Un-der those principles specific per-formance could be givenpro-

vided part performance can befound (but at that, too, equitycourts are adept) to remove thebar of the statute of fraudswhen the contract is for an in-terest in land whose recognitionas such is already established, orfor one that is closely akin tosuch an interest. This would pre-vent any indiscriminate creationof novel incumbrances, yet wouldpermit courts of equity to dotheir part, with courts of law, in

developing the character of ad-vertising privileges and otherinterests pressing for legal defi-nition. When the contemplatedright is only for a limited period,as in the advertising cases, theyare relatively unobjectionable.However, it is also true that inmany cases they are thereforenot worth protection at the costof principle.




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Consider, for example, theinnumerable cases in which onepurchases a ticket as evidenceof a privilege to attend a publicentertainment on private prop-erty. The confusion that may beintroduced, into a field alreadyconfused, by a laudable desire to

do justice when it is given ex-pression in disregard of tradi-tional meanings of legal wordsand conceptions, is illustrated bya recent English decision inwhich it was held that a specta-tor in a theater, properly dressedand well behaved, had a propertyright to remain. The decisionrested, in part, upon a fusion of law and equity under statuteswhich have no counterparts inthis country save in a couple of states; this may be disregarded.Some of the judges rested theirdecision upon the view that thelicense was coupled with an in-terestnamely, the right towitness a spectacle, and that thiswas received by grant. Now in-terest has always meant in thisconnection a property interest;the word right begs the ques-tion at issue; and grant has forseven centuries meant the trans-

fer of an interest that was admit-tedly property, and begs thequestion a second time. It is wellestablished in this country thatone purchases merely a license,subject to revocation, but thatthere is an accompanying im-plied contract not to revoke, withthe corresponding remedy.

In all these cases there ex-ist, under our present law, thedifficulties stated in an opinionof Mr. Justice Holmes: The ticket

was not a conveyance of an in-terest in the race track not onlybecause it was not under seal,but because by common under-standing it did not purport tohave that effect.7 The latter rea-son is the fundamental difficultyreferred to above, and it is un-likely that it can, or should, everbe removed. As for the other rea-son, licenses could always be

given under seal, and were stillmere revocable licenses, and sothey would be today. The sealcan be the basis of no distinctionbetween a mere license and thegrant of an incorporeal heredita-ment. Assuming the seal, all is amatter of intent. Usually, that is

clear from the words and theform of the instrument. With rareexceptions it has always sufficedto say that to give . . a sole andexclusive right even for an hour,a deed was necessary. Today,however, it is only when onethinks of the deeds form, asidefrom the seal, that there is anymeaning in a confident judicialstatement that the distinctionbetween a license and a grant isclear, and if you find a personaffecting to grant by deed rightsin respect of real property whichare capable of being so granted,that is a grant and not a license;everything being assumed in theaffecting to grant and thedeed. Seals are disappearing,and there is increasing recogni-tion of the most informal docu-ments as deeds. The formal dis-tinction between licenses andeasements is consequently weak-

ening.

9. RentIn the feudal law there were

three kinds of rent. Rent ser-vicemoney rent, itself a service,paid in lieu of earlier non-mon-etary servicesexisted when therelationship of feudal tenure ex-isted between the owner of therent and the tenant of the landwhence the rent issued. No newrent service could be reserved

after 1290 (p. 177) upon aconveyance in fee simple; but itcould be reserved upon the con-veyance of any lesser estate out of a fee simple, being then inci-dent to the reversion thus cre-ated. Inseparable from this rever-sion was the remedy of distressfor the enforcement of the realobligation; rent service could bereserved to no one other than the

reversioner. Even today, whenthe money paid by a tenant foryears is made payable to a thirdperson, though laymen call itrent, cautiously written lawbooks avoid that term. This isbecause the rent paid by a ten-ant for years to his landlord is

today called rent service. To besure, there is now no feudal ten-ure, but the word tenure is ap-plied to the relationship betweenthe parties, and there is a rever-sion. Curiously enough, there-fore, the rent involved in a rela-tionship that was wholly ex-cluded from the feudal land lawis today regulated by rules onceapplicable to the most feudal of all rents.

A rent charge existed whena landowner granted to some-body a rent out of his land. Inthis case no feudal tenure couldexist between the rent-holderand the tenant of the land; andin later times there was nopseudo tenure when the rentwas separated from a true rever-sion of the grantor. The samewas true if a rent was reserved on a conveyance in fee, or uponconveyance of a lesser estate

that was the grantors completeinterest. There being no tenure,no reversion, there could in thesecases be no remedy of distressunless expressly granted. Therent was a rent charge when therent-holder had this right byagreement. A rent seck (dryrent) was a rent without right todistrain. In this country today,since there is no feudal tenure,and since, although distress hasbeen largely abolished, ample

statutory substitutes are every-where available, there cannotproperly be said to be any dryrent, and rent charges aloneneed be considered, aside fromthe spurious rent service of theordinary leaseholder. The latterhas already been discussed (p.218). What was there said of rentas being normally incident to thereversion, but separable there-




from (in which case the rent ser-vice becomes a rent charge), andof apportionability of rent, neednot be repeated.

The laws original notion of rent as a real obligation has beenalready noted (pp. 128, 143). Inthe present chapter that aspect

of rent is the one primarily inquestion. Rent service, like otherfeudal services, bound the land,in whosesoever seisin it mightbe. It was a real obligation,though discharged through thetenant who collected its profits.If the tenant did not pay, no per-sonal action lay against him. Tocompel performance of thelands obligation the lord coulddistrain upon any chattels on theland regardless of who ownedthem, and for all arrears of rent,even those accrued before thetenancy of the tenant at the timeof the distress, who must there-fore satisfy all. Today, with thisoriginal character of rents servicescarcely showing in its presentpale copy, the real obligation ismore evident in the rent charge.

It is evident that that is a realright, substantially a servitudeupon the land very like a profit,

even though the rent be mon-etary instead of the medieval ren-der in products of the land. How-ever, rent charges are of little im-

portance. As ground rents re-served on conveyances of feessimple they still exist in a veryfew states only (though else-where theoretically possible). Butthey exist only as survivals, sinceall such rents, if newly created,have long been readily re-

deemable, as being undesirableincumbrances upon titles.

The right to collect rent over-due is personalty. The right torent to accrue in the future maybe either realty or personalty.The character of a rent servicedepends upon that of the rever-sion to which it is incident. Thatreserved upon a sublease out of a term for years, being incidentto a reversion for years, is per-sonalty; but rent incident to afreehold reversion is realtyal-though rent reserved on a leasefor years created out of a feesimple becomes, if separatedfrom the reversion and so madea rent charge, personalty. For arent charge is realty or person-alty according to the estate, of freehold or less than freehold,that is granted in it.

When rent could be reservedin fee it could be granted out in

fee, and successive estates couldbe created in it precisely as inland. It was regarded as a corpo-real hereditament, which ex-

plains its free transferability ascompared with the other realrights (themselves once possess-ing some characteristics of cor-poreality) considered in thischapter.

Any rent can be extinguishedby release, or by merger when

title to rent and land come intocommon ownership.

(1) Norcross v. James, 140

Mass. 188, at 189 (1885).

(2) Gavit, Covenants Running

with the Land, 24 Ill. L. Rev. 786,

at 794 (1930).

(3) Sims, Covenants Which

Run with the Land, Other Than

Covenants for Title (1901), 27.

(4) Sims, supra, n. 3, at 175.

(5) Tulk v. Moxhay, 2 Phillips

774 (1848).

(6) Stone, Equitable Rights

and Liabilities of Strangers to a

Contract, 19 Col. L. Rev. 177, at

297, 301.

(7) Marrone v. Washington

Jockey Club, 227 U.S. 633, at 636

(1912).




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Part II, Chapter X

Interests in

Personal Property

1. Their Relative SimplicityThe most marked character-

istic of personal property as com-pared with realty has been therelative simplicity of its incidents,and the consequent simplicity of the means by which title to it istransferred or lesser rights in itcreated. In a general way this hasalways been true, whether one

considers legal (p. 174) or equi-table interests, possessory ornon-possessory interests, rightsheld in ones own chattels or inthose owned by others. Becauseof this simplicity, it has alwaysbeen the ideal of law reformersto assimilate the law of realty tothat of personalty, and that hasbeen the slow tendency throughcenturies (p. 100).

The further we go back, thelarger seems the space which the

possession of chattels fills in theeye of the law . . . An action forthe recovery of chattels seems astypical of the Anglo-Saxon age asan action for the recovery of landis in the thirteenth century, or anaction on a contract is of our ownday. This is not because chat-tels were socially more importantthan land, for of course they werenot (p. 70), but because they

were movables, and their posses-sion was therefore constantly indispute, since possession wasthe admitted basis of all title.

Seisin was once commonlyattributed to chattels as it wasto land (p. 42), but it must soonhave been perfectly evident thatthe consequences of seisin wereinapplicable to chattels. Though

actions to recover them might beconstant, it was only a vain ef-fort; because they were movableand destructible they never wereand have never become with anycertainty recoverable (p. 102).Evidently they yielded en-

joyment, but it was not in theform of rents and profits bywhich land was exploited, andhence could not be made thebasis of feudal services. They layoutside the feudal system and

the feudal land law. They werenot the objects of feudal tenure.For these reasons, and particu-larly because of their generallydestructible nature, the systemof estates developed in the feu-dal law was inapplicable to them.

The absence of estates wasthe primary reason why per-sonalty was freed from the infi-nite refinements, substantive

and procedural, that wereevolved from a few basic con-cepts in the medieval law of land.In an essay full of a reformersardor, insistent upon the repu-diation of tenure and the elim-ination of the heir at law,Maitland remarked: You cannotcreate an estate tail in personalproperty. This is a blessed truth

and full of promise: To be sure,in very recent times it has beenestablished in this country thatinterests analogous to the oldestates (excepting fees tail,which likewise in land have gen-erally disappeared,p. 190) maybe created as legal interests inchattels personal. But this is soonly in the sense of a system. of estates long pruned of much of their one-time peripheral impli-cations and consequences, ex-

cept (as generally now used,p.181) the certainty or possibilityof possessory enjoyment. Oneexample is the freedom of chat-tels personal, so far as they canbe subjected to restraints upontheir use (p. 321), from the com-plexities in which are entangledcovenants running with estatesin the land. These complexities,as we have seen, are great as re-




spects covenants running withleaseholds, this being one of thecases in which the law that regu-lates chattels real loses simplic-ity because their subject matteris land. And the same com-plexities apply to covenants run-ning in equity because of

chancerys regrettable reproduc-tion of so much of those doc-trines. Another striking exampleof freedom from those conse-quences enjoyed by chattels per-sonaland by chattels real, butin a different wayis the fact thata contingent remainder in sucha chattel, created by will or byany deed (p. 412), needs no free-hold to support it (p. 257), andis immune to the feudal rule of destructibility long applicable tosuch a remainder in land. Thesame immunity was always en-

joyed by a similar equitable in-terest. As will be noted again,below, the history of future in-terests in chattels, both real andpersonalwhich is to say the his-tory of estates in such propertyis very predominantly a historyof equitable interests; and theirgreater simplicity is evidenced bythe fact that under the English

Law of Property Act of 1925,which completely reformed theproperty law, no future interestsany longer exist, in land or chat-tels, save by way of trusts (un-der which, entails are extendedto personal property).

2. Divided Ownershipand Estates in Chattels

Chattels were not exempted,however, from the basic Ger-manic doctrine of divided own-

ership. Common doctrines of seisin (or possession) underlaythe creation of all: of the fee byfeoffment, of the leasehold byentry, of the bailment by deliv-ery of the chattel. From the samesource sprang divided ownershipin every case.. Although chattelswere freed from its applicationin the system of common lawestates, other applications of it

were made to them which, in ef-fect, were extensions of that sys-tem. An absolute title to person-alty corresponds to the feesimple in land. Leaseholds foryears and at will have come tobe fully recognized as estates(p. 185), although the old law

gave the name to freeholds only.Bailments for a term and at will,their analogues in chattels per-sonal, equally deserve the nameof estates when feudal connota-tions of the word are disre-garded, although to give themthe name would serve no pur-pose.

3. LeasesIn the case of the leasehold

the lessee had at first only a con-tractual remedy against the land-lord for eviction, because, hisinterest being wholly outside thefeudal land law, that offered tohim no remedy. That was alteredby allowing him to recover pos-session from his landlord in cov-enant; and if that was not a newremedy devised for his specialprotection, at any rate eject-mentwhich was the final resultof a development of three centu-

rieswas such. It established thecomplete proprietary characterof the leasehold. In modern lawit has grown to enormous eco-nomic importance, certainly farexceeding any other interest ex-cept the fee simple. The simul-taneous interests of lessee andlessor were of course always rec-ognized; that was the purpose of the institution. It has been notedelsewhere that the continuedemployment of the words ten-

ant and tenure in reference tothe relation between the lesseeand the reversioner is nowise im-proper, since there exists be-tween them a tenure more realand substantial than was feudaltenure in the later medieval pe-riod when the leasehold took itsrise.

The nature of a leasing in-strument, and of the relation-

ships which it creates, the modesof creating leaseholds of varyinglength and type, the assignmentof the respective interests of ten-ant and reversioner, the runningof covenants with each estate,and the manners in which therelationship may be terminated,

are elsewhere discussed (pp. 198et seq.).

4. BailmentsThe situation was similar in

the case of the bailment, al-though in details similarly ob-scured in its early stages by theimperfection of the common-lawsystem of remedies or our imper-fect knowledge of them. At leastit is clear that a bailment, in themodern sense of a delivery of possession for a special purposewith an obligation to redeliver,was well recognized in the thir-teenth century. To assume thatthis could be so unless the in-terests of both bailor and baileewere at least recognized, how-ever poorly protected, would bean absurdity. It is certain thatthey were. The bailee was pro-tected against the world gener-ally as owner. The bailor had

such imperfect remedies, origi-nally, against the bailee that thelatter was spoken of in the notesleft regarding some cases (aswere thieves and converters) asowner. Against third persons hewas allowed for a time the actionof trespass, until the develop-ment of trespass on the casegave him adequate remediesagainst both stranger and a bai-lee who exceeded his rights un-der the bailment agreement. But

whatever the controversies re-garding the development of thebailors remedies, unquestion-ably the bailment was always (asof course all agree it is today) anexample of divided ownership.

Bailments are ordinarily cre-ated by express delivery and withan accompanying contract, ex-press or implied from the circum-stances. But the rights and du-




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ties so created in owner and bai-lee are in fact indistinguishablefrom those created in personswho otherwise come rightfullyinto the possession of anotherschattelas has been discussedin connection with finders. Asthere noted, the finder may be

held guilty of larceny if he knows,or is put upon inquiry which withreasonable care would give himknowledge of, the true owner;and, of course, under like circum-stances he would be a converter.But in the absence of such factshe becomes a bailee. So he does,too, if goods are mistakenly de-livered to him instead of theowner, or animals stray or goodsare washed upon his land, or hemistakenly takes anothers chat-tel as his own; or even when cus-tody is forced upon him, as whena tenant leaves goods behindhim when he leaves the leasedpremises, or a bailor refuses toretake the chattel at the end of the bailment term. Anybody whois rightfully possessed of anothers chattel is in facttreated as a contract bailee istreated, and is called a bailee,with, of course, varying rights

and duties fixed by law insteadof the parties agreement; andbailment should accordingly bedefined as covering all cases inwhich one person is rightfully inpossession of anothers chattel.Nothing is gained in such casesby insisting upon the presenceof a contract implied in (that is,imposed by) law; it is simpler tosay that the legal relationshiparises under the factual circum-stances by rule of law. Even when

a bailment is created by actualcontract, the contract by nomeans constitutes the completestatement of the parties rightsand duties. The law interprets ormodifies them, or implementsadditional ones as incidents of the relationship. The duty of thefinder or deliveree in cases of in-voluntary bailment (so called,but in fact he accepts posses-

sion) is to use reasonable carein preserving and in seeking torestore the chattel. Of course, hebecomes, himself, the absoluteowner if the former owner is notdiscovered or has abandoned thechattel (p. 353).

5. PledgesThe general rights of the bai-

lee and bailor have elsewherebeen sufficiently discussed. Thebailment however takes manyforms to which only very slightattention can here be given. Themost important, perhaps, is thepledge, which is the bailment of a chattel (or the documents of title to in-corporeal personalty)as security for the payment of adebt or performance of an obli-gation, accompanied by a rightin the pledgee to sell the pawnupon default by the pledgor orother person obligated. Not onlypast obligations, but future, maybe thus secured. The transactionis one of the commonest creditdevices and is of correspondinglygreat importance. The pledgegives to the pledgee a real rightin the chattel pawned; or, as usu-ally stated, a real obligation (of

the pawn) is created, indepen-dent of the debtors personalobligation. It differs fundamen-tally from a chattel mortgage inthat this transfers title to themortgagee as security.

The pledgee may bail thepawn to another person for keep-ing. He may repledge it to securehis own obligation, provided hedoes not do so for more than hisown interest in it; and the sub-pledgee has no power of sale

until the obligations of both ob-ligors are in default. The pledgormay freely assign his title to thepawn subject to the pledge. If thepawn consists of securities whichmature while pledged, thepledgee is bound to collect themand otherwise protect thepledgors interests.

For the protection of credi-tors against rights held secretly

in the debtors property by thirdpersons, a delivery of possession(unless the pledgee or a thirdperson is already in possession)is always stated and generallyrequired as a prerequisite to thevalidity of a pledge, since suchpossession by another than the

debtor puts upon inquiry thosewho subsequently deal with him.But the meaning of delivery is re-laxed in various circumstances,as by creating an equitable lienwhen crops or other future goodsthat have been pledged comeinto existence (p. 31), or in treat-ing title-documents (bills of lad-ing, warehouse receipts, bills of exchange and promissory notes,insurance policies, stock cer-tificates, etc.) as representativesof goods or credit-claims,present or conditional, for thepurposes of pledging these. Evenchoses in action that are not evi-denced in writing may bepledged in the sense that theymay by written assignment or bytestimony of third persons beproved to have been made avail-able to a particular creditor, andso placed beyond reach of sub-sequent creditorscertainly

more effectually by a written as-signment. Attempts to evade therequirement of delivery havebeen prolific of peculiar devicesinvalid against subsequent bona fide purchasers and judgment (orattaching, or levy) creditors, butotherwise valid between the par-ties.

6. LiensIn the case of many

bailments the bailee has a com-

mon law lien to secure paymentfor his services. The common lawlien is a mere right to retain pos-session of the chattel, with theexception that a factor has aright of sale. Liens may be freelycreated by agreement, and per-haps some of those habituallystated to be conferred by lawmay have remote contractual ori-gins. (I) The liens of attorneys,






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in the court; and much more isthis true of the sixteenth, afterthe Statute of Uses had shownthat the country had learned thecomplete practical identity of title and enjoyment. A devise of the use and occupation was,accordingly, finally held in 1579

to be a devise of the land itself.As wills were administered inecclesiastical courts, by judgespresumably familiar with uses,the fact that the subterfuge wasso long countenanced is presum-ably evidence of a general desireto uphold devises. Very soon af-terward the same limitation, thusdenied validity, was held valid asan executory bequest But thetheory upon which this was doneremained most doubtful. Conse-quently, since the validity of suc-cessive estates in the term, whenequitable, was beyond question,all limitations of terms for yearscame to be, in England, madeunder trusts.

In the case of chattels per-sonal the creation of future in-terests was similarly obstructedby the idea that a gift or deviseof a chattel for an hour is for-ever. Had this rested upon the

idea that a chattel is necessarilyconsumable or destructible byuse it would be understandable;but in fact the rule was againevaded, as in case of leaseholds,

by the specious view that succes-sive grants of use and occupa-tion were valid, but not succes-sive gifts of the thing or of es-tates in the thing. This extraor-dinary doctrine had much vogueuntil, in the latter part of the sev-enteenth century, the equity

courts very properly pronouncedidentical a gift of the use and agift of the thing. The matterwould not merit mention if itwere not, although inconsistentwith our general principles of property, still supported by thenames of two of our greatestauthorities, merely as a meansof overcoming an absurd bit of medieval conceptualism.

In the United States todayfuture interests analogous to al-most all the common law inter-ests in land (with the notableexception of the fee tail) are pre-sumably creatable in personalty.Their creation was always free of uses. They are doubtlesscreatable with equal freedom bydeed and by will. Most of themare created by will. Very many of them are created as equitableinterests. The need of a trusteefor the protection of those hold-

ing the future interests, againstthe tenant of the particular es-tate, was once, however, muchgreater than today; for in somestates statutes require the latter

to give security in all cases, andperhaps in all states the samerequirement will be made by thecourts when deemed necessary.The development of future inter-ests in personalty is, however,only beginning. Save for the con-venience of using traditional

names and descriptions of es-tablished meanings, they mightperhaps be developed withoutany reference whatever to thecommon law system of estates.

The subjection of personalproperty to the power of eminentdomain, the civil remedies avail-able for its protection, the rela-tion of personalty to realty un-der the law of fixtures, generalmodes of transferring title tochattels, the role played by de-livery of possession in gifts andsales, the possibility of transfersof after-acquired property, theextent to which restrictions canbe placed upon the use of chat-tels (otherwise than by the cre-ation and protection of futureinterests in them), the protectionof creditors under the doctrineof fraudulent conveyances, therelation of the recording acts tothe problem of protecting bona

fide purchasers for value and thegeneral prohibition of restraintsin alienation of either realty orpersonalty are referred to else-where.




Part II, Chapter XI

1. Original TitlesIt is customary in legal trea-

tises to distinguish originalfrom derivative titles. As re-gards land, in one sense no origi-nal tide is possible. Almost allland titles can be traced back-ward to a patent or warrant froma state or of the United States.Occupancy has never been pos-

sible as a source of title; hordesof squatters on governmentlands were made preemptionersby acts of Congress, but theytook their titles by patent fromthe government. The nearestapproach to it is the accretion toones land which may result fromthe slow and imperceptiblechanges in the bank of a stream;by such changes the holdings of bordering owners are enlargedor diminished, whereas their

titles are unaffected by suddenshifts in the course of the stream(avulsion). Somewhat similar isthe acquisition by a landownerof title to chattels that are affixedto the soil, particularly by tres-passers (p. 89), which is an ex-ample of accession.

However, an existing chain of title may be closed, and a newone opened, by the acquisition

of title by adverse possession, or(as respects incorporeal heredita-ments) by prescription. The titlesare original in the sense that noone need thereafter go back of their consummation in tracingtitle, no matter what the earlierhistory of the land. One cannotdivest ones self of tide to land(corporeal hereditaments) oth-

erwise than by the formal meth-ods which the law prescribes. Butother rights in land may be lostby abandonment. That is to say,the inchoate title of an adversepossessor in whose favor thelimitation period has not yet fullyrun may be abandoned, and alsoeither the perfect tide to an in-corporeal hereditament or the in-choate title of a prescriptioner.In neither case, however, doessuch abandonment open the way

to an equally summary acquisi-tion of the abandoned right byanother; it merely enables an-other to initiate anew the longenjoyment, hostile to the trueowner, from which a perfectoriginal title may arise.

Such unusual modes of ac-quiring title play a larger part inthe field of personally. Title towild animals is acquired by oc-

cupancy as an everyday occur-rence; that is, by subjecting themto such substantial control asconfers possession and thereforetidesince a possessory tide isgood against all save one with abetter right, and in the case sup-posed there is no such person.The acquisition of tide to gas,petroleum and other fugitive

minerals in the earth comesproperly under the same head-ing. As in the case of land, anexisting title may be destroyedand a new one substituted, byadverse possession. Theoreti-cally, prescription would likewisebe possible; but in practice itdoes not occur-presumably be-cause it is just as easy to controla chattel in all its uses, and sogain complete title by adversepossession, as to use it adversely

in only one manner. Unlike titleto land, an absolute tide to achattel personal may be aban-doned, thereby conferring uponhim who desires it and is in a po-sition to take possession a powerto acquire perfect title sum-marily. This does not, however,apply to chattels real; to them therule applies that governs estatesin land.

Modes of Creating,

Destroying, Renouncing

& Transferring Property

Interests




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P r o p e r t y

A person whose chattel iswrongfully improved, either will-fully or innocently, by anotherslabor upon it, or addition to it of other materials, may either bringa recuperatory action, claimingto be owner of the chattel in itsimproved state, or an action for

its conversion in its improvedstate. (If he sues only for thevalue of his own contribution, of course no trouble arises.) Acqui-sition of title in this manner (ac-cession) by the wrongdoer wasonce controlled by the questionwhether his addition had re-sulted in the creation of a newspecies of thing (specification).This was a crude testfor it isoften difficult to say whetherthere is specification (for ex-ample, when silver is beaten intoa mug, or lumber built into aboat, or leather cut into leggings)unless there is always such achange when a new object witha new name results. The test wasmade cruder when applied by in-quiring whether the material con-tributed by the two parties couldbe ocularly distinguished, orphysically separated. Moreover,it was unethical in disregarding

the relative contributions of thetwo parties. The present-day ten-dency is, first, to replace ocularidentification by ordinary evi-dence regarding the transaction;second, to regard any great in-crease in value, sufficiently greatto move the particular court in-volved, as barring a recovery of the improved chattelin otherwords, to inquire whose materi-als are, under all the circum-stances, the principal, and whose

the accessory, materials; andthird, to limit this protection toan innocent wrongdoer. In an ac-tion of trespass or trover fordamages the same tendency ap-pears to assess the damages asof the time of the original wrong-ful act, or as of. a later time of demand and refusal after refusalto surrender the improved chat-tel, according as the improve-

ment was or was not innocent.But the holdings of the courtsreveal a great lack of fixed prin-ciples.

Confusion is a case of acces-sion in which the tests of identi-fication and severability can not,by hypothesis, applyas where

corn is made into liquor, or twomasses of like goods but un-equal qualities are mixed to-gether in unknown proportions,or are similarly mixed but are of equal quality and contributed ina known ratio. In this last casethere is really no confusion; evena willful wrongdoer would there-fore be allowed to take his share,being liable, of course, to theother party for any special dam-age done to him. In the othercases, if the mixing be innocent,the parties will be treated as co-owners subject to the burden of proof borne by the wrongdoer toestablish his fractional contribu-tion, and without such burden if the mixture was by consent. Butif the mixture be wrongful andwillful the decidedly prepon-derant view (notwithstanding theanomaly of making any civil ac-tion, either recuperatory or for

damages, punitive) is that thewrongdoer forfeits title to hisown contribution even though hemight be able to prove itsamount.

2. Adverse PossessionAs already stated (p. 53) the

theory of the law in this field isthat the disseisor holds generaltitle subject to a claim by the trueowner, against which the posses-sory title will be quieted unless

the higher right is assertedwithin the period allowed by thelocal statute. This is usuallytwenty years, rarely longer, invarious states shorter; and if theadverse occupation is accompa-nied by payment of taxes thewrongdoer is in some states pro-tected by a further shortening of the period.

The mere possession is con-

stituted by effective control ex-ercised with the intent to excludethe world generally (p. 36). Itmust, however, be adverse pos-session against the true ownerin order to create in him a rightof action that starts the statuteagainst him.

Adverse possession is gener-ally said, with some tautology, torequire possession that is open,notorious, continuous, and un-der a claim of right. There canscarcely be a possession that isnot open and notorious; it can,for example, scarcely exist if thecontrol is exercised only in thenight. But the requirement of anopen holding, sufficient to giveto the owner notice of a hostileclaim (for he is bound to havenotice of what happens openlyon his land) is essential to theconstitution of a holding deemedadverse, or under a claim of right.

This hostility, however, is in-ferable by the great weight of authority from such conduct onthe land as implies, objectivelyconsidered, a claim of ownership;that is, from such conduct as ap-pears to be that of an owner. If,for example, a purchaser of land

whose true boundary falls shortof a fence occupies up to thefence, his possible states of mindmay be three. He may be imag-ined to say to himself: I shall usethe land up to the fence, al-though I know (or believe) it tobe beyond the true line, and se-cure title to my neighbors landif possible. Or he may say: I shalluse the land up to the fence,since it has been so used, butcertainly I claim nothing that is

not mine, and will yield to anyfair evidence that the fenceshould be moved back. Or hemay say and think nothing aboutthe matter, as is the usual case,merely possessing up to thefence as an owner would if heknew the true boundaries to bemarked by it. A very few jurisdic-tions have, in the past or present,favored the evil wrongdoer, re-




quiring (as in medieval dissei-sinp. 44) the first state of mindas a pre-condition to the runningof the statute. No jurisdictionwould, unless by inadvertence,allow the occupant in the secondcase to gain title. In the third casethe objective acts should have

weight. Since there is by hypoth-esis no intent covering the point,there should be no speculationregarding intent. The objectiveactsthe mere holding withoutthe owners consent; a fortiori that holding coupled with suchuse as an owner would make of the landsignify an assumptionof ownership; that assumption is,under the decisions, a claim; and,precisely as in the conversion of a chattel, an assertion of right inones self is necessarily andequally a denial of the right of any other person. Hence the pos-sessor in the third case, althoughinnocent, is nevertheless, inpractically all of our states, an ad-verse possessor who gains title.

A doctrine once was preva-lent that a wrongdoer cannotqualify his wrong, and thereforean adverse possessornot beingallowed to be less evilmust

claim, and so acquire, a feesimple. No doubt, adverse pos-sessors generally claim and getthe fee. But the apocryphal prin-ciple here appealed to is shock-ing even in a field where the doc-trines seem somewhat akin tothat which makes might equiva-lent to right. In England it hasbeen challenged by high author-ity for Over a century. In thiscountry it has been for thatlength of time laid to rest: one

may claim what one desires, andone acquires only what oneclaims.

One may acquire title by ad-verse Possession through anagent. One may also acquire itby virtue of the acts and claim of another who is only by circum-stances constituted an instru-mentality for the purpose. This,should, for ample, on principle,

be the case if one who is tenantat will of A, who conveys his titleto B, continues to occupy for thestatutory period under the as-sumption (claim) that A is hislandlord; A, if anybody, must gettitle. It should equally be the re-sult if a life tenant, under an in-

effective will or deed (at least if its ineffectiveness is not due todefects of form, but because thewould-be devisor or grantorlacked title or power to convey),claims the fee simple for the req-uisite time, but is estopped todeny the rights of remaindermenunder the same instrument: thetitle should be gained for all thesupposed grantees, or devisees.

Adverse possession is alsorequired to be continuous. Thestatutory period must run as anunbroken period. This, of course,does not mean that the Pos-sessor must always stay on theland. It means that he may notpossess, then abandon (p. andthen possess again; or, if severalpersons hold possession duringthe statutory period, that theremust be no gaps between theirseveral possessions. For the pe-riod required by the statute may

be made up by tacking thesuccessive holdings of a seriesof possessors who are in privitywith each other. This privity iseverywhere sufficient if consti-tuted by the relationship of an-cestor and heir, grantor andgrantee by deed, or devisor anddevisee. It is also satisfied, by thegreat weight of authority, by amere transfer in fact of the pos-session from one adverse pos-sessor to his successor, without

any writing. This is not held tobe an infraction of the statute of frauds. In a very few states, inthe past or at the present time,either no privity is required orelse it is satisfied by the merefact of succession to the uninter-rupted possessory estate of thewrongdoers, since these may besuccessive disseisors who ousteach other from the land. The

doctrine that an adverse pos-sessor gains only the estate thathe claims introduces difficultiesin tacking when the claims ap-pear to vary.

The statute begins to runwhen the adverse possession be-gins, must run in its entirety, and

cannot be interrupted in its run-ning. Allowances are made, how-ever, for the disability, or thelongest lasting of several disabili-ties, under which that person la-bors who is wronged when ad-verse possession begins. No su-pervening disabilities even of that person are allowed for. Alldisabilities of subsequent hold-ers of the title are ignored; andtherefore the fact that the titlemay, during part of the limitationperiod, be in infant heirs neithersuspends its running nor length-ens it. The statutory period dur-ing which an action to recoverthe land may be brought by theoriginal disabled owner after theending of his disabilities, must,like the general period limitingeach action, fully run. But theresult of allowing the two peri-ods may be to lengthen or notto lengthen the limitation.

Doubtless owing to frontierconditions there originated inthis country the doctrine of color of title. This was a further appli-cation of the policy of the stat-utes, for the quieting of mensestates; that is, those of squat-ters. If the holder of a worthlessdeed which purports to conveyto him a tract of land, occupies aportion of the land therein de-scribed, his adverse possessionextends to the whole of it. This

is not true if the true owner oc-cupies any portion; for his pos-sessionusually (but undesir-ably) called constructive as toportions not continuously or in-tensively used by himcan onlybe displaced to the extent of anothers actual occupation.Similarly, if two adverse possess-ors with color occupy portionsof the tract, the first comers pos-




V o l u m e 5

P r o p e r t y

session is only displaced to theextent of the later comers actualpossession. And resumption bythe true owner of possession of any part displaces all possessionof others by color. If the descrip-tion in the invalid deed includeslands owned by different per-

sons, color arises only againstthose of part of whose land ac-tual adverse possession is taken;for otherwise they have no no-tice. Moreover, some cases haveheld that when part of one tractof an owner is occupied and noneof another, no color arises as re-spects the latter, at least if thecoloring instrument describesthe tracts separately. But noticeis equally lacking, whatever bethat description; and what is aseparate tract, either by convey-ancing history, topography, orcolor-deed is another perplexity.

Where the title to the surfaceof land has been severed fromthe title to underlying minerals,adverse possession of one doesnot extend to the other.

The entry which suffices tobreak adverse possession hasbeen earlier adverted to. Thegeneral nature of the adverse

possessors titleits heritability,transferability by deed or will,and proprietary character inother respectshave also beensufficiently discussed in earlierportions of this essay.

In England, under differentstatutes now in force for a cen-tury, an owner loses title to hisland if dispossession continuesfor the statutory period, withoutinquiry regarding its adverseholding. It is therefore said that

no doctrine of adverse posses-sion there exists. But since thereis dispossession the resultseems little more than an un-qualified application of the doc-trine above stated that a hold-ing of land without the ownersconsent necessarily denies histitle, as it does in conversion of chattels.

Inasmuch as an adverse pos-

sessor generally violates no rightof the holders of future interests,the great weight of authority isthat the statute cannot runagainst them in his favor.

All the principles just statedwith respect to land apply to ad-verse possession of chattels, ex-

cept that in the case of chattelsthere are no disability allow-ances, and there is no doctrineof color of title. The requirementof an open holding is much moreimportant in their case inasmuchas they may be secreted ormoved about. Considerable free-dom in using the chattel, andtherefore in moving it about if that be its nature, is allowed tothe wrongdoer. But any removalfrom the original locus sufficientto amount to secretion suspendsthe running of the statute in hisfavor. The owner may sue wher-ever he finds the chattel in thewrongdoers possession, the ac-tion to recover a chattel beingtransitory, whereas an action torecover land must be brought inthe neighborhood (usually thecounty) where it is located. Inas-much as the law of any state ex-tends only to its borders, re-

moval of the chattel across thestate line suspends (but onlysuspends) the running of thestatute.

One question was once veryimportant which has ceased tobe so: namely, whether in thecase of chattels, only remediesare barred by limitation, leavingintact the title and the right of recaption by self-help. It hasbeen well settled in this country,with scarcely a dissent (but oth-

erwise in England), that title isextinguished. This makes the lawrelating to land and personaltyharmonious, and makes bothconsistent with its theory that adisseisor (or adverse possessor)has title, merely defeasible byclaims that are cut off by theoperation of a statute of limita-tions (p. 53).

3. PrescriptionThe acquisition, by adverse

use of anothers land, of a righttherein is known as prescription.This has always been, in general,an institute of the common law,although it may now be regu-lated by statute. By analogy only,

the courts follow, as to the timeallowed the owner to bring hisaction (which breaks the runningof the period), the local statuteof limitations.

It has also elsewhere beennoted that the prescriptive pe-riod can only start when such ause is made of anothers land asgives him a right of action, andthat negative easements cantherefore not be gained by pre-scription (p. 283) Many of theprinciples stated in relation toadverse possession are appli-cable to prescription. The usermust be adverse, or under aclaim of right; permissive user(that is, under a license) cannever be the basis of a prescrip-tive claim, however long it becontinued. It is perhaps unnec-essary to say that in readingcases of a century ago onesenses that a great amount of

user of the land of others wastolerated, and under frontier con-ditions, and must then have beenregarded by juries as prima facie permissive, which could notbe so regarded under present cir-cumstances. It must also beopen, to give proper notice to theowner of the land used. It neednot be, literally, continuous,since that is not the nature of theuse that one makes, for example,of a way across land or of a right

to take wood or stone therefrom.But it must be sufficiently fre-quent to evidence a hostile claim,and not to appear as a numberof disconnected trespasses.

The law of prescription haspassed through various stages inits long development. The Ameri-can law, with the possible excep-tion of a few jurisdictions, is nowin a stage characterized by the




fiction of a lost deed. Adverseuser for the prescriptive periodis said to raise a presumptionthat the user is, or has been,under a deed once given but lost.This is pure fiction. The pre-sumption is not conclusive; itmay be rebutted. It is not pos-

sible, however, to rebut it by dis-proving the fiction; that is, byproving that no deed was given.It can only be rebutted by show-ing that none could have beengiven. For example, no deed(which law would recognize)could have been given if from themoment when user began thetitle to the allegedly servient landwas in infants. But here viewsdiverge. Is the deed to be takenas given before the user began,making it lawful from the begin-ning ?if so, it would suffice if the then owner was an adult. Orat the end of the user? Or mustthere actually always be a title-holder capable of giving the fictitious deed? Dicta differ in an-swering these questions. In sup-port of the first may be cited afew dicta or apparent decisionsthat the prescriptive period doesnot begin to run (although the

statutory period applicable toadverse possession does) if atthe beginning of the user the ser-vient land is owned by one un-der legal disabilities. In supportof the third view there are deci-sions holding that the runningof the prescriptive period is in-terrupted, or suspended, whenthe title of the servient land isheld by infants; and there aredecisions to the contrary. Theformer rest upon the idea that

there must be acquiescence,which cannot be charged againstinfants. The latter follow theanalogy of the statutes relatingto adverse possession, as con-strued by the courts. They rep-resent the simpler view and theweight of authority.

Because of the common lawspreference for easements appurte-nant, the acquisition of easements

by prescription is generally re-quired to be for the benefit of (theowners or possessors of) a domi-nant tenement. It has already ap-peared that profits were never se-riously limited by this requirement.

Adverse user may be inter-rupted physically by the owner

of the servient land, provided itbe an actual interruption openlymade in denial of the right touse. Some say that this result isproper because it disproves ac-quiescence; others, because itbreaks continuity of user. On theformer theory, some courts holdthat oral protests or letters willinterrupt the user. The authori-ties are very much divided, withthe question settled in onlyabout one half of the states. Le-gal proceedings suspend, atleast, the running of the period.

4. Voluntary& Involuntary Alienation

Inasmuch as no property canbe reached by creditors unlessand to the extent, speaking gen-erally, that the judgment debtorcould himself alien it, it has natu-rally become usual to employ thephrase involuntary alienation to

cover those situations whereproperty is taken under judgmentand execution, administered inbankruptcy proceedings, or takenby foreclosure of a lien. Thephrase might logically enough beequally well applied to convey-ances made in invitum under de-crees for specific performance of contracts to convey, and to intes-tate devolution of property; andmight once have been applied tothe common law effects of mar-

riage upon a womans property.But such an extension of its

meaning would serve no pur-pose, and would impair itspresent utility (aside from whichit has no particular significance),as a blanket designation of thedifferent fields of creditors rem-edies in discussing their com-mon principles.

5. The Conceptionof Transfer

The common law conceptionof a conveyance or transfer is notwholly clear. The general idea of estates as the durational mea-sure of a title to land was entirelyclear. A sharp distinction was

made between the assignment of all of a leasehold and the trans-fer of only a part, and importantconsequences attached to thedistinction (p. 199). Likewisewhen As life estate was con-veyed to B, the latter receivedprecisely thatan estate for Aslife; and the creation of very longterms out of a life estate was con-trolled by conceptions that wereequally clear, although to us un-satisfactory (p. 349). So alsowhen, out of an estate of whichA stood seised, uses were raisedfor other persons, the estates socreated could not exceed thequantum of the estate Out of which they arose, and thereforeall conveyances to uses were in-nocent (p. 259).

But when a fee simple in A,which if not aliened will descendto As lineal or collateral heirs solong as they shall endure, is con-

veyed to B, it is granted to B and(as words delimiting the interestB received) his heirs. In actualfact and as a matter of enjoy-ment, Bs interest is not at all thesame as As. To say, as we ha-bitually do today, that they holdthe same title or estate ismerely to ignore the difficulty.On the other hand, the old rulegoverning descent of land wasvery sharp: it went to the heir of the person last seised, being also

of the full blood of the originalpurchaser. With this rule and thecase of the life estate in mind, itwould seem that the only pos-sible explanation of the transferin fee simple is that every feesimple was once assumed to en-dure forever; therefore it madeno difference whether B tookwhile As heirs or while Bs heirsshould endure.




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P r o p e r t y

As a result of Hohfelds dis-cussions of legal relations it hasbecome a somewhat popularidea that there can be no suchact as a transfer of title. The le-gal relations existing between Aand other persons while he isowner, which constitute his title,

are replaced when he conveysto B by similar (but not neces-sarily otherwise identical) rela-tions to which B is a party; henceAs conveyance is really theexercise of a power that destroysAs legal relations and createsBs. It might almost as well besaid that, were there a convey-ance, the grantor would not intruth convey anything; since alllegal consequences of anindividuals acts result from arule or by operation of law.However, these are unprofitablerefinements. The law regards Bstitle as derivative and as con-veyed; B does receive the rightto hold land for the same lengthof time, subject to the quali-fication regarding the fee simple,as A could have held it, and inall cases subject to the lawsrules pertaining to such estates.These are the essential matters.

What the law has always called aconveyance is present, withcertain consequences (which cer-tainly are made clearer by theHohfeldian analysis), and it doesnot appear what better namecould be substituted.

6. The General Ruleof Alienability

Doubtless proprietary liber-ties of user were the sole con-tent of title as first conceived.

Property for direct use is an olderidea than the idea that alienationis also a use of the thing sold;and the conception of propertyfor power, of such vast impor-tance in present-day social theo-ries, is much more modern still.But alienability is very old. Muchof the known history of our prop-erty law is a history of attemptsto fetter alienation, and counter

attempts to free it of conditionssought to be imposed upon itsexercise.

The general alienability of land is a principle whose estab-lishment has a long history. Eventhe fee simple was freed from theprimitive preemption rights of

heirs only about 1200. Thosewere impediments to alienation,but not restraints upon thepower to alienate. Other impedi-ments were removed in 1290 bythe Statute Quia Emptores, butat the price of total renunciationof the power of subinfeudation.Nor was it settled until perhapsin the fifteenth century that thealienation of the fee simple couldnot be fettered by conditions orlimitations imposed upon itsexercise.

Meanwhile the attempt of landed families to perpetuatetheir dominant position by tyingup the land in entails had re-sulted in the creation of six formsof the entail in place of the singleform of the fee simple. When thecreation of the entail was first at-tempted the courts turned it intoan alienable fee simple condi-tional (p. 189); the landowners

then made Parliament theirmouthpiece in the provisions of the Statute De Donis (1285),which definitely established thefee tail. That Statute made theestate indestructible by fines,and they were further protectedby judicial decisions that condi-tions forbidding a feoffment bythe tenant, or a clause of cesserupon his making a feoffment,that is, provisions against alien-ation of the estatewere valid.

These remained fixed rules of thelaw. However, the judges in 1472held entails destructible by com-mon recoveries, and two statutesshortly afterward made them de-structible by fines. Attemptsmade late in the sixteenth cen-tury to forfeit the entail by in-serting conditions against resortto the fine or recovery failed, butthe landowners attained their

end by the device of the strictsettlement (p. 192). That, how-ever, is no restraint upon thepower to alienate. It is but a de-vice by which the tenant in tailof any generation and his heirapparent may by self-restraint,by renouncing their power to

alienate, tie the land for theirlives.

It was next attempted to im-pede alienation by creating outof a fee simple contingent limi-tations to uses following a life es-tate, since such interests wereinalienable; but it was held thatif such limitations could take ef-fect as contingent remaindersthey were such (p. 260), andtherefore destructible by the lifetenant (p. 257).

Thus, both the fee simpleand fee tail were assured of alien-ability or destructibility. To besure one more restraint was de-vised, but that has been con-trolled by the rule against per-petuities.

Various illustrations haveearlier been given of the de-velopment of inalienable intoalienable interests (pp. 278).Today, the general rule is that of

free alienability. The exceptionsto this general rule are all basedupon considerations of publicpolicy. Under the older law therewere various exceptions whichwe would regard as caused bytechnical difficultiessuch asthe inalienability of possibilitiesof reverter, rights of entry, andcontingent remainders. As else-where noted, these exceptionshave in large part disappeared.Other exceptions due to one-

time public policy have disap-peared because of a change of policy. On the other hand policyhas changed as regards otherinterests, once inalienable butnow by statutes made freelyalienable, such as the separateestates of married women, whichwere inalienable at law becausenot by it recognized as existing,and in equity (which created




themp. 106) for their betterprotection. New interests havealso been created and made in-alienable; either completely so,as in the case of pensions, or par-tially, as in the case of home-steads, which may be aliened vol-untarily but cannot be seized by

creditors, and insurance policies.But alienability is the rule, excep-tions are slight.

Property interests, eventhough generally alienable, maybe inalienable when held by anindividual. If the owner of the in-terest has not yet been ascer-tained, the interest cannot usu-ally be transferred [p. 2591. If thepower to transfer has been law-fully withheld from the owner of the interest [p. 387] in the cre-ation thereof, the interest is ab-solutely inalienable. If a penaltyfor alienation has been stipu-lated, transfer becomes practi-cally impossible, even thoughthere be a theoretical power tomake it.1

The free alienability of prop-erty is today insured in two ways.The rule against perpetuities lim-its the time during which inter-ests of future enjoyment can ex-

ist without that characteristicwhich makes them freely alien-ablethat is, without beingvested (p. 375). It is itself a re-straint on alienation in the cre-ation of future interests, imposedin order to insure full alienabil-ity of such interests at an earlyday. It is supplemented by a prin-ciple which bans any undue re-straints upon the alienabilityboth of vested future interestsand of interests of present en-

joyment. Inalienability is dislikedbecause it acts as a deterrent toimprovement of the property,and might be employed, as it wasin England to concentrate wealth,and therefore power, in a favoredclass. To some extent, howeverthe general policy gives waywhen an equitable life interest ismade inalienable in order to re-strict the beneficiary to enjoy-

ment of income, perhaps at theexpense of creditors (spend-thrift trustsp. 387).

7. When May a TransfereeReceive More Than HisTransferor Held?

Among the general truths of

our property law (and of other le-gal systems) is the principle thatnobody can convey a title or aninterest greater than that whichhe himself holds. But, althoughthis would be a normally properpostulate, there are in fact vari-ous exceptions to it. Very closelyconnected with that principle inhistory and in present fact is an-other that seems equally axiom-atic; namely, that nobody can bedeprived of his property withouthis consent. This latter is, in-deed, a broader principle thanthe first, and some aspects of itthat are quite unrelated to con-veyancing have been mentionedin referring to the role of publicpolicy in the property law (p.165). In connection with convey-ancing this second principle canonly mean, however, that only anowner, or somebody acting forhim by his choice, can convey his

title. But this is equivalent to say-ing that no other person purport-ing to convey it can because itis not hissuccessfully do so.The two propositions, beingtherefore in the main comple-mentary statements when con-fined to the field of conveyanc-ing, may well be discussed to-gether.

In the modern law various di-rect and conscious exceptions tothe principle are made in the in-

terest of commerceeither inci-dentally to practices that facili-tate its transactions or to give se-curity of titles. In the old law theactual illustrations of the prin-ciple have the same explanation;but the most striking of its sup-posed illustrations seem to bebetter explained otherwise.

It is often stated, namely,that under the old law of tortious

conveyances a grantee took agreater estate than that held byhis grantor. That is apparently amisapprehension. These convey-ances were not an exception tothe principle under discussion inthe form first stated; for thegrantee took precisely what his

grantor held. They do, however,illustrate the principle in its sec-ond form; since the grantor ac-quired by wrong that which, byequal wrong, he subsequentlyconveyed. To explain this bypublic policy would be far-fetched; its true explanation isthe old-time incapacity to sepa-rate possession (seisin) fromtitleeven though a wrongfultitle. The old law was very famil-iar with the powers of wrongdo-ers, using other assurances thanthe feoffment, to cut down (todestroy as regards some of theirincidents) the legal propertyrights of third persons; commonrecoveries, and only less so fineswith proclamations, being par-ticularly powerful for that pur-pose. Most extraordinary was thepower of the former assurancewhen used by a tenant in tail inpossession; for it barred the en-

tail, remainderman, or rever-sioner, and destroyed any futureuses or executory devises towhich the title was subject, cre-ating a perfect fee simple. Thistitle the wrongdoer could give toanother person or (as was usu-ally done) to himself. This situa-tion, also, seems therefore cer-tainly to illustrate only the sec-ond form of the principle underdiscussion.

An exception to the rule in

its first aspect but not its sec-ond, is the power to pass titlewhich an owner confers upon anyagent for sale; likewise all pow-ers of appointment conferred byan owner upon the donee of thepower.

Rather numerous and veryimportant are powers that are ex-ceptions in our present law to therule in both its aspects, made




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solely for commercial conve-nience. Such is the case of a thief who gives current money in pay-ment of a debt, or passes forvalue negotiable instrumentspayable to bearer, and the caseof a thief or converter who (inEngland) sells anothers goods in

market overt. The thief holds apower, conferred by law, to passthe title that is not his own. Otherexamples are, the sheriffs powerto alienate a judgment debtorsproperty under an execution; thepower of an agent whose actualauthorization has ended, and thepower of an agent with a generalpower but under special instruc-tions limiting its use, to conveytitle under special circum-stances; the statutory power of a factor to pass good title to in-nocent purchasers although inviolation of the factors duty tohis principal; the power of oneholding a voidable title to per-sonalty to pass it clear of thedefect by a sale to a bona fidebuyer for value; the widenedscope given to principles of ne-gotiability by the Uniform Bills of Lading Act and Uniform Ware-house Receipts Actconferring

upon a holder of the documentof title the power to dispose of the title irrespective of theowners possession of the chat-tel, or his consent; the power of a vendor of chattels who retainspossession after a first sale (validbetween the parties and privies)to divest the first vendee of titleby a second sale with deliveryof possession to an innocent pur-chaser; the power of a grantorof land to divest a prior grantee

of title, the conveyance being infraud of subsequent purchasersbut good as between parties andprivies, by a later deed to sub-sequent purchasers without (atone time, even with) notice of theprior conveyance; and the likepower of a grantor to divest hisfirst grantee of title (good as be-tween the parties and their priv-ies), so long as he has not re-

corded his deed, in favor of a sec-ond grantee who first recordshis conveyance.

All these cases have been in-stanced by various writers asshowing that even legal realrights may be cut off in certaincircumstances, particularly in fa-

vor of bona fide purchasers, andyet are not therefore regarded asless than rights in rem; so thatequitable rights cannot properlybe denied the qualities of realrights and rights in rem merelybecause subject to a like infirmity(p. 151).

Despite these various casesin which the law, for special rea-sons, gives fuller title to one manthan existed in his predecessor,it remains true that in the vastmajority of all property transac-tions no reasons exist for suchexceptions. Equality of title insuccessive holders is the generalrule, and manifestly correspondsto what men would regard as jus-tice. Any other would cause so-cial chaos.

8. The Ruleagainst Perpetuities

It was in the cases of the late

sixteenth century which struckdown attempts to restrain alien-ation by imposing upon a tenantin tail a provision of cesser foran attempt to bar the entail (p.171), or by creating contingentinterests to uses after a life es-tate, that perpetuities first ap-peared in judicial arguments. Itwas not long before it was seenthat executory limitations touses or by devise which could nottake effect as contingent remain-

ders (p. 260) were not coveredby those decisions. In 1620 theKings Bench held an executorydevise indestructible by theholder of a fee simple on whichit was imposed. Adumbrations of a doctrine against perpetuities,in a vague sense, preceded thatcase, but it made clear the ne-cessity of a restraint. It wasnearly the end of the century,

however, before it became clearthat the perpetuity to be re-strained was one caused by re-moteness of the date at which aninterest may vest. When it vestsit becomes alienable.

The rule against perpetu-ities is a rule against restraints

upon alienation in the sense thatit limits the period within whichalienation is rendered impossibleby the contingent character of afuture interest. After it vests, an-other principle of vague publicpolicy, still very indefinitelyformulated, regulates restraintsupon alienation, including bothrestraints upon the power of alienation and some mere im-pediments to its exercise.

The rule against perpetuitiesvoids ab initio any limitation of an interest of future enjoymentin property if by any possibilityits vesting may be postponedbeyond a life in being andtwenty-one years thereafter. Thisis the common law rule, whichexists without statutory modifi-cation in at least two-thirds of thestates of this country. Under fiveheads explanatory commentsupon its foregoing brief state-

ment are essential.In the case of remainders thevesting which saves an interestunder the rule is either a vestingin law, as already explained indiscussing those interests (p.244), or a vesting in enjoymentthrough possession of the prop-erty. In the case of executory limi-tations by way of use or devise,which can vest only in the lattersense (p. 262), the rule appliesto their vesting in that sense.

When any interest vests in thesecond sense it is said to takeeffect. To interests which arevested the rule has no applica-tion whatever. If a remainder hasvested in law, it matters not howlong its vesting in enjoymentmay be postponed. Hence a re-mainder to B, a living person, isgood although it follows life es-tates in A and As children (some




of whom may be unborn whenthe limitations are created), andmay not come into possessionuntil long after the period al-lowed by the rule. A present feesimple interest, legal or equi-table, although the only interestthat actually approaches a per-

petuity in nature, is wholly out-side the rule. The rule is oneagainst unvested perpetuities.

The certainty of vesting mustappear absolutely at the momentwhen the limitations are createdby the taking effect of the will ordeed containing them. No limi-tation is saved .by the fact that,as events actually happen in theparticular case, vesting is notpostponed beyond the permis-sible period. It is the applicationof this principle which defeatsmost of the gifts that are invali-dated by the rule. A testators giftto his grandchildren who attain21 is, for example, valid. Themeasuring lives (though unmen-tioned) are the children, in whoselifetimes all the grandchildrenmust be born. But a trust deeddrawn in the lifetime of the tes-tator in favor of the same ben-eficiaries would have failed, since

grandchildren might include,even posthumous issue of a childlater born to the creator of thetrust; it could only be made goodby confining the gift to grandchil-dren born of his children then liv-ing. For the same reason a de-vise by 0 to the grandchildren of A (living when 0 dies and the willtakes effect) who attain 21 is in-valid. Similarly, a gift by will tosuch of testators grandchildrenas survive both their parents is

invalid since sons or daughtersof the testator may marry per-sons unborn at the testatorsdeath; and in a devise to a manfor life, then to his widow for life,with a contingent remainderover, this last is badfor thewidow may not have been bornwhen the testator died. Again,suppose a gift to A for life, thento her children for life; the re-

mainder is valid, since all chil-dren must be born in As lifetime.But only a few American courtshave had the hardihood to say,on professional advice, that awoman is past the age of childbearing. Hence, no matterwhat As present state of mar-

riage or widowhood, past historyof infertility, or present age, if theabove limitations be followed bya third to her grandchildren thislast wholly fails. By legal possi-bility she may still have children;and this introduces persons notin being when the limitationswere created. Moreover, of thesechildren, grandchildren of Amight be born more than twenty-one years after the death of per-sons who were living when thelimitations were created. This il-lustrates the meaning of thestatement that one must firstconstrue the limitations asevents might occur, without ref-erence to what has actually hap-pened; and then, to the limita-tions so construed, re-morselessly apply the rule. Withfew exceptions it is so applied.It is, however, merely an illustra-tion. Several other situations fre-

quently occur, less fantastic butequally outside the contempla-tion of the ordinary draftsman of a will or trust deed, and all en-forcing the necessity of using theutmost care to avoid collisionwith the rule.

One escape for a limitednumber of interests has lain inthe fact that a limitation whichin itself is too remote does notfail if it is destructible by theholder of a preceding vested in-

terest. For example, while es-tates tail were realities, no con-tingent interest following an en-tail could fail under the rule (p.190). In this instance it does notappear as a rule against remote-ness of vesting, but as one pri-marily against restraints on alien-ation, and so, secondarily, as oneagainst remoteness in vesting.Similarly, since a legal contingent

remainder limited after an estatefor life was for centuries de-structible by the life tenant (p.257), and would fail, anyway,unless it vested before the end-ing of that estate (p. 249), therule was not needed in that case.But now where both of those

causes of destructibility have dis-appeared, all legal contingent re-mainders are controlled solely bythe rule against perpetuitiesasequitable contingent remaindersalways were.

The life in being by whichthe time is measured must be inbeing when the instrumentwhose limitations are in questiontakes effect. Moreover, it must bea life reasonably connected withthe purposes of that instrument.Since any number of lives willendure only as long as that oneamong them that lasts longest,postponement for any number of lives is only postponement for alife. Lives so used, however, maybe others than those of the do-nees under the instrument; a rea-sonable number of persons whoare otherwise strangers to itspurposes may be selected fortheir prospects of longevity in

the hope of postponing vesting.But one may not impose im-proper labor upon a court by, forexample, a limitation of propertyafter the death of the last survi-vor of the present living resi-dents of a city, or of any otherlarge group of persons who arenot beneficiaries.

The 21-year period need notbe the minority of one of thoseto whom an interest is given (al-though it usually is). It may be

in gross; for example, a testa-tor may order the distribution of property twenty-one years afterthe death of a life beneficiary. Inaddition to this period, gestationperiods of actual beneficiariesare allowed, since children inwomb are regarded as living orborn or in being in applyinglimitations containing thosewords. As many as three such




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periods may by possibility fallwithin the time allowance of therule.

Various interests to whichthe rule applies or does not ap-ply have been noted in earlierportions of this essay. In generalit is applicable to all of the fu-

ture interests which are profes-sionally known under that name(p. 241); and equally to intereststhat are legal or equitable, in realor in personal property. The rulecontinues to apply to contingentfuture interests, originally in-alienable, notwithstanding theirhaving become alienable. This isdue to judicial inertia.

9. Marketable TitleWhen one contracts to con-

vey land and is compelled by acourt of equity to perform, onemust give a deed containing theconvenants for title commonlygiven in the jurisdiction (p. 437).When one seeks specific perfor-mance against a purchaser whorefuses to accept a profferedtitle, equity requires this, in thepreceding all important aspectand in other respects, to be mar-ketable. A decree will not issue

if it would amount to compulsionupon the buyer to acquire a law-suit. But the law does not imposemore than a practical test, andleaves gaps where protection isneeded. This has been increas-ingly supplied in recent decadesby the development of title insur-ance. Many grave defects, for ex-ample, exist in the recording acts(pp. 47577), notably in connec-tion with inheritance. The rea-sonable purchaser is almost a

sine qua non in conveyancing.Not all defects are fatal. Rea-

sonable deficiencies in quantity,which do not affect the nature of the estate offered, are adjustedin equity, if necessary, by anabatement of the purchase price.Nor are all defects of title fatal.No matter how serious the de-fect, if it is cured before the timeset for performance the pur-

chaser cannot (in this country)refuse to accept the title. Again,if there are incumbrances, theyare provided for by a covenantagainst incumbrances in a deedtendered to the purchaser, ormay (if not wholly irreconcilablewith the parties agreement) be

provided for as are defects of quantity in a suit for specific per-formance. Again, apparent de-fects of title may in reality proveto be nullities. They are gener-ally so if they amount to re-straints upon the proprietarypower (p. 384) to alien the title,or amount to substantial practi-cal impediments to its exercise,either because of conditions im-posed upon the exercise or, pos-sibly, because the market withinwhich the power may be exer-cised is limited. In either casethey then touch and concernthe nature or value of the power(and hence the title or the land)in the sense already indicated indiscussing real covenants (pp.297 et seq). Validation of the lat-ter is inconsistent, in part, withthe policy which voids restraintson alienability,if the latter beunderstood to include impedi-

ments to sales, and not merelyrestraints upon the power (right)to convey.

10. Impediments toMarketability and Restraintson Alienation

Many impediments to thesale of property have apparentlynot been thought of as restraintsupon alienation in the technicalsense. To this class of impedi-ments belong all credit

incumbrances. Mere division of the complete title into a seriesof estates impedes the sale of any fraction of the title, .or thesale of all. The rule against per-petuities originated as a checkupon precisely this type of in-alienable perpetuity. Appar-ently, that rule has been re-garded as a sufficient control of this type of hindrance to market-

ability. Only when the power toconvey an inherently alienable fu-ture interest is directly restricted,is there any talk of restraintsupon alienation.

There are other impedimentsto marketability which, becausethey restrict the owners propri-

etary liberties of use, restrict pro tanto his ability to exercise, infact, his powers of alienation.This is true when a possibility of reverter or a right of entry is cre-ated upon a grant in fee simpleof land to be used for a particu-lar purpose only (pp. 250, 253).The land cannot be aliened forany other use. However, doubt-less because they are ancientinterests of the law, everywhererecognized as valid, these restric-tions have never fallen under theban upon restraints, and areprobably rarely thought of assuch. The same is true of all therights held in one man s land byother persons, which were dis-cussed in Chapter IX. The seri-ous nature of the impediment ismost evident in the case of build-ing restrictions incident to a gen-eral real-estate development, butits generally objectionable na-

ture may there be often out-weighed by the benefits accru-ing to neighboring landownersas a body. But such deterrentsto alienation are not spoken of as restraints on alienation, anddo not resemble in form the limi-tations generally known by thatname, and are in fact totally dif-ferent.

Both impediments to market-ability and restraints upon pow-ers of alienation are presented

in many covenants running withthe land, for we have seen thatthey frequently touch and con-cern that because of a restraintupon the powers of alienation of one or the other party. The samedouble aspect of restrictionsupon marketability and powercharacterizes pre-emptive pro-visions, which require that beforethe land may be sold it must be




offered to some particular per-son [at a fixed price]; provisionsrequiring that upon [the first, orupon each] alienation of the landa specified portion of the pur-chase price must be paid to adesignated individual; provisionswhich limit the right of occu-

pancy to particular individuals ormembers of a particular socialgroup; provisions forfeiting onetract of land for alienation of another tract; and provisionswhich prohibit partition of landamong cotenants.2 The first of these provisions is manifestly arestraint upon the power to alien-ate. Preemptions at a fixed priceand unlimited in time have beengenerally held void, either underthe rule against perpetuities asoptions, or as restraints on alien-ation when treated as conditions(i.e., as forfeiture restraints, towhich the rule against perpetu-ities is inapplicable, p. 254). Pre-emptions at the offerors pricewould violate the rule againstperpetuities if not limited in timeto avoid it, but would seem in-nocuous as a restraint on alien-ation. Provisions of the second,fourth, and fifth type constitute

powerful deterrents to alien-ation. The decisions are, up tothe present, hostile to the sec-ond, divided as to the fourth, tol-erant of the fifth; but only on thefifth are they numerous. Provi-sions of the third type are sub-stantially a restraint on thepower to alienate, since only per-sons of the designated group arepotential purchasers.

These cases, as well as thoseinvolved in the following section,

evidence the lack of settled viewsregarding the test by which toascertain what fetters upon mar-ketability should be permitted.There is no virtue in a theoreti-cally unfettered power to alien-ate in a non-existent or seriouslylimited market. The possibility of curbing market restraints wouldbe increased if it could be defi-nitely established that they fall

within the ban upon restraintsupon the power of alienation.

11. Invalidity of Restraintson Alienation: Of Legal andEquitable Interests

Restraints are not created bymere admonitions or expres-

sions of preference regardingwhat a grantor may do. Even ex-pressions mandatory in formmay not be restraints in theproper sense, but only inexpertindications of the nature of theestate that is granted; as whenland is devised to A, with state-ments that he is not to sell it andit shall go upon his death to hischildrenmeaning that A isgiven a life estate, remainder tohis children.

Restraints may be imposedby direct provisions that the oneto whom property is conveyedshall not have the power to alienit. The restraint may also be im-posed by a provision forfeitingthe interest for an attempt toalienate it, and either giving theproperty over to another personupon that event or reserving aright of entry for the breach.

The former has been called

a disabling restraint. An at-tempt to convey is in this casesimply ineffective. The holdercontinues to enjoy the property,and his creditors cannot subjectit to their claims (pp. 32, 184). Arestraint that operates as a for-feiture, if not invalidated, neces-sarily involves recognition of afuture interest created by theforfeiture provision. When thereis a gift over upon attempt toalienate, the gift takes effect

upon destruction of the preced-ing interest. If a fee simple isconveyed subject to a conditionwhich is really a limitation termi-nating the estate upon at-tempted alienation, without a giftover, this is merely a de-terminable fee followed by a pos-sibility of reverter. When a rightof entry is reserved, destructionis contingent upon the creators

decision to consummate the for-feiture by entry (p. 254).

In most cases a restraint of either type would be equally ei-ther void or valid. But the courtshave shown less repugnance torestraints operating by way of forfeiture. Hostility to any re-

straint is often shown by constru-ing as covenants words thatmight be conditions.

In the case of a fee simple inland or an absolute interest inpersonalty, a perpetual and un-qualified restraint upon alien-ation, of either type is every-where held void (p. 318).

A disabling restraint upon afee simple, limited in time (dur-ing a particular life, for a term of years, until attainment of a cer-tain age), and whether directedagainst voluntary or involuntaryalienation, is probably void in ev-ery state; and a forfeiture re-straint in all save perhaps half adozen. But these prohibitionsmay be evaded by creating anequitable life estate subject to adisabling restraint (infra), or alegal life estate forfeitable uponattempt to alienate, with remain-ders over in either case. By re-

serving to the grantor a powerof revocation, he may be enabledduring his life to nullify any con-veyance made by his grantee. Orthe remainders after the inalien-able life estates just suggestedmay be subject to a power of ap-pointment reserved by thegrantor or to another person.

Restraints upon alienation of a fee simple frequently take theform of a qualification as toalienees. Alienation may be de-

clared permissible only to mem-bers of a small groupbrothersand sisters of the grantee, per-sons bearing his family name,persons of a certain theologicalfaith, and the like. Such re-straints, of either type andwhether perpetual or limited intime, are void by a very greatweight of authority. Again, alien-ation may be allowed except to




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a small group. Superficially thisconstitutes but a slight impedi-ment to marketability, yet theweight of authority is probablyopposed to its validity. Finally,restraints prohibiting alienationto members of a relatively largeclass, members of a particular

race or persons of a particularcolor, are common. They are usu-ally imposed for the benefit of landowners in a real estate de-velopment, and take the form of covenants (p. 318). The statesare about equally divided on thepolicy of enforcing forfeiture re-straints of this sort. The restraintsometimes takes the form of arestraint on occupancy by per-sons of the prohibited race orcolor and this has been in somestates held valid where a forfei-ture for alienation to such per-sons is held void, but in practi-cal effect they are identical. Aninjunction against breach of thecovenant, or a decree settingaside the deed, has the effect of a disabling restraint (without im-peding levies by creditors).

Restraints also take the formof forfeiture for failure to alien-ate. The power to alienate while

living is most important. Hence,a restraining provision, if itgreatly impedes or renders im-possible transfers inter vivos, isusually held voidas when theproperty is given over if the firsttaker in fee shall die without de-vising it (for then an alienee bydeed would be divested). It is aquestion of fact whether a provi-sion actually prohibits alienation.Even a general power to makeleases (long leases would permit

improvements) has generally notsaved such restraints from in-validation, nor has a power todevise. Moreover, if land is givenover after death of the grantee(in fee simple) without havingdisposed of it during his life-time, although this clearly re-strains only the power to devise,the gift over is almost invariablyheld invalid. Even when the limi-

tation over is conditioned on afailure to dispose of it by either deed or will, it is likewise heldvoid. Yet in the latter case thereis no restraint on alienation; andin every case the gift over wouldperhaps incite alienation. Thelaw is inconsistent, and rational

grounds for its rules on thesesituations seemingly cannot befound. Moreover, they may beevaded by granting, instead of afee, a life estate with remaindersover, and making the latter sub-

ject to a power in the life tenantto appoint the remainder by deedor will. This device accomplishesthe same result as the invalidlimitation except in a jurisdictionwhere such powers convert thesupposed life estate into a fee.

With respect to life estatesthere do not exist the same rea-sons of policy for prohibiting re-straints. In particular, a life es-tate is ordinarily given to insurethe tenants support during life,and the restraint favors that end.Nevertheless, with very few ex-ceptions disabling restraintsupon legal life estates are heldvoid. This can be evaded by cre-ating a spendthrift trust. On the

other hand, for no very convinc-ing reasons, forfeiture restraintsupon alienation by a legal lifetenant (usually with a gift overto the remainderman in event of the attempt) are generally heldvalid. Here again the invalidationof a restraint may be evaded byreserving a power to terminatethe life estate on alienation.

Forfeiture restraints uponalienation of a term for years,usually in the form of a running

covenant not to sublease or as-sign with a condition for reentryin case of breach (p. 300), havealways and everywhere been heldvalid.

A restraint upon alienation of a future interest which may con-tinue after it becomes an inter-est of present enjoyment is voidin toto.

It is widely held in this coun-

try, under doctrines now just half a century old, that equity will sus-tain a provision making inalien-able the right to receive the in-come from a trust fund for life.The interest is, therefore, also be-yond the reach of creditors. Suchtrusts are called spendthrift

trusts, although the cestui neednot be a spendthrift. Under olderdoctrines a creditor could alwaysreach the interests of a cestui quetrust. They did permit, indeed, agift of property to A until bank-ruptcy, then over to B; but thisdid not enable A to live on in-come in disregard of creditors,but rather stimulated him to livewithin his income. Under thespendthrift doctrine the power of alienation is treated as a non-es-sential constituent of title. Uncer-tainty as to what the effect of thisis on the equitable title has pro-duced a great variety of opinionsas to whether the cestui has anyinterest in, or what interest in theproperty;it would seem that hemust at least have a right to en-force against his trustee a claimfor maintenance. Where it is de-nied that the cestui has anyvested interest, the rule against

perpetuities may enter into theproblem.In recognizing these new cre-

ations equity had the precedentof its prior creation of the sepa-rate estate by way of trusts formarried womenthe benefit of which was from 1600 onward in-creasingly assured to her alone.As respects its own creatures, itmight logically recognize andenforce what restraints it waspleased to approve.

Spendthrift trusts are, in gen-eral, only valid when created infavor of another person than thesettlor. The settlor who createssuch a trust for his own benefitcannot, to the extent of his in-terest (for that may be limited tohis life, with remainders over)defeat the claims of his creditors.

Although in most states rec-ognizing such trusts the re-




straint is limited to life estates,in some it has, in a sense, beenextended to fees or absolute in-terests. For example, a legacymay be postponed until the ter-mination of a spendthrift trust of land, with provisions making thepersonalty meanwhile exempt

from the claims of creditors; or,similarly, conveyance by trusteesof a legal estate to the cestuis may be postponed after all or (p.400) any other active duties of the trustees have ended. Sub-stantially, however, such re-straints upon fees and absoluteinterests have been limited to thelife of the first taker.

12. The Ancient Basis:Common Law Conveyancing

Seisin is the key to an under-standing of medieval convey-ancing as it is to the old prop-erty law in other respects. In me-dieval times the law recognizedseisin as the common incident of all property in corporeal things,and tradition or the delivery of that seisin .. . as essential to thetransfer of the property in thatthing, whether it were land or ahorse, and whether by way of

sale or of gift.3

And this wasgeneral Germanic law. The gen-eral relations of seisin, and itsmodern successor possession, topresent-day transfers of title toreal and personal property hasbeen earlier discussed. Commonlaw conveyances, as that phraseis generally used, is a name usedto distinguish the laws oldermodes of conveyance (a dozenor so in number) as distin-guished from those which re-

sulted from the Statute of Uses(1535). A scanty knowledge of several of them is useful becauseof their connection with presentpractices.

Because of conceptions re-garding seisin, freehold estatesin land could not be created tobegin in the futurei.e., couldnever be unvested, in somesense. A feoffment was the cer-

emony, performed on the land,by which (de-)livery of seisin wasmade from the feoffor to the feof-fee, and by which in consequencethe latter received the title to thefee simpleor (ignoring earlyspecial language of a gift in tailand a lease for life) other free-

hold. It was the standard convey-ance of the middle ages, and theonly means by which a presentestate of freehold could be cre-ated or transferred. Incidentallyto the transfer of such an estatevested remainders were likewisecreated (p. 248). No writing wasrequired before 1677, but fromvery early centuries it was a prac-tice, first of the great landown-ers and later of grantors gener-ally, to prepare for evidential pur-poses a charter of feoffment (p.406). In this country feoffmentswere used in colonial time, buthow generally we do not know;they are recognized as methodsof conveyancing in the statute-books of the early nineteenthcentury, but were then presum-ably nearly everywhere obsolete.It will be necessary to refer be-low to the question to what ex-tent our present-day deeds op-

erate as feoffments did, and towhat extent by way of executeduses.

Fines and common recoveries were collusive suits, the firstleading to a judgment that putan end (finis) to the dispute of plaintiffs title, the other to a

judgment based on the theorythat plaintiff already owned andshould recover the land which,in fact, defendant desired to con-vey to him. The judgments

served as conveyances enteredon the records of the court. Theyare only mentioned here becauseit has been impossible to avoidreferences to them in connectionwith the history of the estate tail(p. 192). To some extent theywere apparently used here incolonial times, and statutespassed in some states even laterregulated or recognized them.

A grant had two meanings.In one sense it covered all trans-fers of any property from oneperson to another. More strictlyand properly, it was a deed, bywhich was effected the convey-ance of reversions and remain-ders (coupled with the ceremony

of attornmentp. 62), and of in-corporeal hereditaments. A release was also a deed, with pe-culiar phraseology adjusted to itspurpose. It was a conveyance of a mans estate, interest, or rightin property of which he was notin possession to the person inpossession. A surrender was thereverse of a release. These twoconveyances have still thesesame meanings. An easement,for example, is released to theowner of the servient land. It isalso generally assumed thatmerger necessarily follows a re-lease or surrender. This is ausual, but not at all a necessary,consequence. Neither is it nec-essary that no intervening estatemay exist between those whoseholders are parties to a releaseor surrender. Finally, after theStatute of Frauds (1677) madeimpossible the creation of long

leases by parol agreement andentry, written leases were em-ployed for the purpose. Only awriting was necessary, but it wasnatural to employ the forms usedfor conveyance of free-holds.These leases were, accordingly,deeds; and so are all our leasestoday. Of course, although thechattel real devolves as person-alty, it is treated by the law forother purposes, including con-veyancing, as an interest in land.

Today, since all interests aretransferred by deeds of commonform, old distinctions are of noimportance except as explana-tions of persisting verbiage (p.406).

Surrender is of somewhatparticular interest because, un-like most of the common law con-veyances, it has not been whollysubmerged in our ordinary deed




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or in decrees of court. This istrue, however, not of expresssurrender, which is made bydeed, but only of surrender byoperation of law, which is ex-empt from the operation of thestatute of frauds. A tenant of anytype always has possession. A

surrender is not the rescissionof a contract, but the conveyanceof an existing estate in the land.A mere abandonment of the pre-mises by the tenant cannot be aconveyance; neither does suchresult from destruction of theleasing instrument, or merely of the seal thereon; nor from thelandlords acceptance of the keyswhen the tenant abandons, norby a later request of the tenantfor their return; nor from thelandlords entry thereaftermerely to inspect or clean thepremises, or to make improve-ments that may cause thetenants return, or satisfy him if he returnsfor the landlord doesnot thereby resume possession,and thus technically, destroy thetenancy. There is in none of thesecases the tender and acceptanceof a reconveyanceunless meremutual intent can have that ef-

fect, which is by almost all casesdenied.But if (1) the landlord gives

the tenant a new lease, in-con-sistent with the existing lease, itseems that they must intend asurrender of the first; nor couldone take effect were the othernot out of the way. Nor would itseem to be necessary that thesecond lease should take effectaccording to its terms so long asit does take effect as a tenancy

inconsistent with the continuedexistence of the first, althoughin a few jurisdictions it is re-quired to do so. (2) If the land-lord actually evicts the tenantthis should end the lease, sincethe tenant is deprived of posses-sion; at least it should precludethe landlord from refusing accep-tance of a tendered surrender. Itmight be artificial to find here

any mutual intent; but if the land-lord, under any other circum-stances, for example, if there isa parol agreement acted upon,resumes possession in the tech-nical sense, intent to surrenderand to accept surrender are eas-ily found. (3) The making of a new

lease with a third person, whotakes possession without theformer tenants consent, is evic-tion. If made with his consent,there is clearly a transfer of pos-session and a mutual intent todo that which is necessarily asurrender. If there is an agree-ment to make such a lease, whichis for some reason ineffectiveaccording to its terms, but theintended new tenant enters, andis therefore a tenant at will, theresult should be the same andfor the same reasons. This is,with very slight divergence of au-thority, the law. (4) When the ten-ant abandons the premises, how-ever, and the landlord, withouthis express assent (but usuallyafter notifying him that it will bedone), makes a new lease to athird person, the courts aregreatly divided. The landlord fre-quently claims to act as the agent

of the defaulting tenant; and vari-ous courts not only accept thatview, but assume that there is ageneral principle of law requir-ing one to minimize the damageto which anothers wrongful actsexpose one. These are speciousprinciples. Nevertheless, a major-ity of courts accept the result. Aningenious way to support it hasbeen found in an insistence uponthe two relationships, of propertyand of contract, in which the par-

ties stand; the new lease, it issaid, ends the tenurial, but notthe contractual, relationship.This is an excellent statement of the result; the reasoning, how-ever, is not found in the casesdealing with either this or theother situations. A clause in thelease reserving to the lessor sucha power would remove difficul-ties.

It was stated by Baron Parkein a famous dictum that sur-render by operation of law is to-tally independent of the intent of the parties. An existing lease-hold, an estate in land, cannotpossibly be terminated withoutthe tenants cooperation in some

manner, be it assent to an evic-tion desired by the landlord or

joinder in a surrender desired byboth. In fact, their mutual intentclearly underlies the result inmost cases. A few decisions canonly be understood as restingupon an assumption of the par-ties power to effect a surrenderby the mere force of their agree-ment. It seems safe to say thatthe sharp distinction betweenexpress surrender and surrenderby operation of law is weaken-ing. A further violation of thestatute of frauds, by permittingexpress unwritten surrenders, isa probable ultimate result.

13. Uses andConveyances to Uses

In the twelfth century it wasalready common for one man toenfeoff another with land to cer-tain uses That is, its rents and

profits were ordered by the feof-for to be collected or held by thefeoffee to uses for the use, ben-efit, or enjoyment of a personother than the feoffee, the cestui que use. What words were em-ployed mattered nothing. If theyshowed the requisite intent theywould accomplish the purpose;and this remains true today of our modern trusts. In the four-teenth century (perhaps earlier)these uses were enforced by the

chancellor as binding the con-science of the feoffee, and wereequitable interests. The feoffeewas necessarily somebody whomthe feoffor trusted; and the lat-ter might himself be the cestui que use. Since the one enjoyingthe land held no legal title, useswere an easy way of evading li-ability for feudal services, forfei-ture for treason, and dower of a




widow, and likewise a means of disposing of the enjoyment of ones lands after death at a timewhen no will disposing of legaltitle to lands was permitted. Dur-ing the Wars of the Roses(145585), in particular, a verylarge part of all England came to

be thus enjoyed by way of uses.So very usual was this arrange-ment that in case the feoffmentcharter recited no considerationas paid by the feoffee and de-clared no uses in favor of otherpersons, it was always held thatthere was a resulting use in fa-vor of the feoffor. Indeed, thissituation had apparently beenreached by the beginning of thefifteenth century. After abortiveattempts to curb uses had beenmade on a lesser scale by earlierstatutes, the Statute of Uses waspassed in 1535. Its preamble re-cited a long list of wrongs done,through their employment, tothe crown and great landowners.

The object of the Statute, un-questionably, was completely toextirpate uses as such. But itclearly did not prohibit the cre-ation of uses in the future, northerefore the creation of legal in-

terests by execution of suchuses; on the contrary, its provi-sions explicitly applied to anyuse that any person have orhereafter shall have. It was as-sumed that any such use would,by force of the statute, be con-verted into a corresponding le-gal interest. In this for about acentury it succeeded, but there-after the court of chancery be-gan to enforce certain uses whichwere not covered by the provi-

sions of the Statute. These newequitable interests are our mod-ern trusts.

Most of the uses theretoforeexisting as equitable interestswere turned by the Statute intolegal interests. Its provisionshave already been quoted (p.259). Their effect was to give toa cestui que use a legal estateexactly corresponding to the eq-

uitable use which, but for theStatute, he would have enjoyed.The use was executed by theStatute; that is, turned into a le-gal estate. It has been seen (p.260) that so far as the legal in-terests thus created were identi-cal in effect with common law

estates theretofore existing, theywere named and treated as such.They did not bear the name of uses. So far as the new interestsdid not thus become old com-mon law estates they wereal-though now legal interestscalled future uses.

But the Statute is here inquestion, not with regard to thenew types of property intereststhat owed to it their origin, butwith regard to the new modes of conveyancing in whose operationit was put to service. It made pos-sible results that were impossibleat common law; and it furnishednew conveyancing tools.

Of the new results in conveyancing, the first was secrecy. Afeoffment was a public cer-emony; fines and recoveries wererecorded court proceedings;grants were deeds that must bedelivered to the grantee. But 0

could sit in a London room, writea deed and deliver it to A as aconveyance to the use of B, andinstantly the law converted theuse into a legal title in B, leavingA nothing. And B need not bewithin a hundred miles. The sec-ond new result was a conveyanceto ones self. At common law thatwas impossible. O could now inno way evade burdens as hecould before the Statute; for if he,for example, conveyed to A and

his heirs to the use of 0 and hisheirs, the Statute instantly gavehim the legal title, leaving it aquestion whether in truth it wasever out of him. It was thereforeimpossible, as the Statute in-tended it should be, any longerto practice by conveyances touses the evasions above referredto. However, it was often desiredby 0 to convey to A to the use of

0 for life, then to future uses.This made conveyancing vastlymore flexible to serve the needsof landowners. A third result(with which the second noveltymight be combined) was a con-veyance of different pieces of land to several persons in one

instrument. At common law thiswas impossible. But a convey-ance might now be to the use of any number of persons, of whomthe grantor might be one, andeach instantly acquired his legalestate.

In the second place, the Stat-ute added to conveyancing sev-eral new conveyancing instru-ments.

In the bargain and sale themere recital of money paid raisedthe use. The recital of paymentof anything theoretically havingmonetary value (for a peppercornwas sufficient) would serveequally well. The employment,however, of the phrase for valuereceived (or its equivalent) hasbeen held both sufficient and in-sufficient to raise a use; thevalue should, perhaps, betterbe left to the court to decide.

The bargain and sale was

once merely a contract to con-vey, with the purchase price paidbefore conveyance, the chanceryenforcing a use which was equi-table. The execution of the usemade the instrument a presentconveyance; there was no longeranything contractual about it.Since 1535 a bargain and salemust be distinguished from acontract to sell and convey, of which contract specific perfor-mance must be sought.

This conveyance could, evi-dently, be wholly secret. To pre-vent this, Parliament passed anact (1536) requiring the enroll-ment of such conveyances. Thisstatute was never regarded as inforce in this country. However,we had our own recording acts,very generally, in colonial times,applicable to all conveyances.The result of this was that in En-




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gland the lease and release wasfor three centuries the standardconveyance, because it was notaffected by the recording require-ment of the Statute of Enroll-ments; but in this country thebargain and sale has always beenthe standard conveyancein-

deed, almost the exclusiveconveyance aside from the quit-claim. The vast majority of ourdeeds currently prepared are stillof this form (p. 411).

The use was raised in the covenant to stand seised by the ex-istence between grantor andgrantee of such a close rela-tionship of blood or marriage aswould raise a use from the loveand affection inherent in suchrelationship. According to one of the greatest authorities on theolder law, a spouse, child,brother, sister, cousin, or thewife (or, presumably, the hus-band) of any of these fell withinthe requisite relationship of na-ture, kindred, blood, or mar-riage.

Inasmuch as this conveyancehas been of particularly commonuse in carrying out family ar-rangements, the courts have

been extraordinary astute to findits essential elements in instru-ments brought before them.However, they have not unani-mously agreed that affinity bymarriage implies the love andaffection requisite for thecovenants operation. It is, how-ever, only under a misapprehen-sion that a court, because of thecovenant should require a seal.Such was not a requirement of the old law. The promise can be

construed from the baldest andleast formal writing. Neither therelationship nor the consequentaffection need actually be men-tioned in the deed; the formercan be shown by extrinsic evi-dence and the latter will be im-plied. In family litigation, whenan instrument cannot be foundto constitute a deed of any kind,the courts have frequently tor-

tured acts and conversations intoa contract to give a deed, andhave then granted specific per-formance of the contract. Nodoubt, however, justice has gen-erally been done by violation of formalities in such cases.

The lease and release could

be constituted before the Statuteof Uses (1535) of those two con-veyances created as at commonlaw; that is, a leasehold createdby parol agreement and entryand a release of the reversion tothe lessee. The first was neces-sarily a public act. After the Stat-ute of Uses either one or both of the interests could be granted byway of use. With both so createdthe result was a completely se-cret conveyance. In England theusual practice was to give to thepurchaser a lease for one year,and on the next day give a re-lease of the reversion. In thiscountry, as above stated, theconveyance has never been muchused.

As above stated, when afeoffment was made reciting noconsideration and declaring nouses there was a resulting useto the feoffor. Of course, when

the bargain and sale or covenantto stand seised were employed,a consideration was present; andalthough none was needed in thelease and release, it usually(naturally) had one. Nevertheless,there is a problem here in Ameri-can conveyancing of the presentday to which reference mustagain be made (p. 415).

Uses not executed by the Stat-ute, and which were therefore (af-ter a delay, as above indicated,

on the part of Chancery) enforcedas our modern trusts, existed inthree situations. The first waswhen active duties were imposedupon the feoffee to uses by theterms of the grant. The secondwas, when uses were raised outof a term for years, since of thatthe lessee to uses could notstand seised. The third waswhen several uses were created

running simultaneously, as in aconveyance to A to the use of Bto the use of C.

These last are known asuses on uses. For the reasonabove indicated, the courts heldthat the first only was executed.An inquiry into the substance of

the transaction would necessar-ily have led to the execution of the last use; but it was impos-sible for the courts of commonlaw to make that inquiry. For cen-turies they had ignored uses, hadnot even recognized their exist-ence; it would have been stultifi-cation for them to imitate thechancellor in scrutinizing theirmerits. The statute declared thatthe use should be executed; theyrequired for its operation nomore than a word, and the firstword of the series.

Simultaneous uses must bedistinguished from successiveuses. In a conveyance of a feesimple by 0 to A and his heirs tothe use of B for life, then to theuse of Bs sons successively intail male, then to the use of Cand his heirs forever, all theseuses were immediately executed.

If legal title is given to trust-

ees in fee or for life, with activeduties for As life which ceasebefore the estate of the trusteesterminates, the trust and the es-tate of the trustees end. And if,following As life interest, otherbeneficiaries are indicated,whose benefits (uses) involve noactive duties in the trustees, theirlegal interests, defined by thestatement of those uses, takeeffect, presently or later, accord-ing to their nature.

14. Essential Character of Conveyancing before andafter the Statute of Uses

The conveyancing system of the common law, although basedexclusively upon seisin, wascomplicated by distinctions relat-ing to that concept.

This system of conveyancing




distinguished between transfersof the present possession andtransfers of the present right of the future possession; also be-tween the possession, or ratherthe seisin, of the freeholder, andthe possession of the merefarmer or occupier; and again,

between transfers to persons al-ready connected, in point of ten-ure, with the land, and transfersto mere strangers; prescribingsolemnities, differing in theirnature and degree; according tothe exigencies of the severalcases, as livery, entry, attorn-ment, deed; solemnities bywhich, in the simplicity of thosetimes, the alienation was ren-dered sufficiently notorious andcertain.

Writing was necessary onlywhere a deed was necessary; andthough, in later times, the legis-lature, to prevent the mischief incident to verbal testimony, in-

joined writing in all transactionsconcerning land (except leasesfor a very short time, at a givenquantum of rent), yet, as sealingwas not injoined, a deed is gener-ally necessary at this day [18401only where it was necessary at

the common law.4

Signing was not necessarybefore the passing of the Stat-ute of Frauds (1677), and al-though it may be doubtedwhether that statute requireddeeds, as distinguished fromwritten agreements, to besigned, the requirement seemsto have been generally assumed;and the increased employment of the bargain and sale soon gave

that construction added im-petus.

The substantive law of prop-erty was complicated by theelaboration of uses. So far as re-gards mere conveyances of legal interests, neither marked compli-cation nor marked simplificationresulted. Possibly livery of seisinwas once, in ancient times, rig-orously formalistic, but surely it

had ceased to be so long beforethe passage of the Statute of Uses. It was, with equal certainty,very much less formal than its ac-companying charter of feoff-ment, and simpler than anydeeds employed in our law untilthe enactment of modern statu-

tory short-form conveyances. Norwere the other assurances of thecommon law particularly formal-istic. Uses did avoid the neces-sity of actual livery, permittingthe notional transfer of seisin inthe sense of title (but not of pos-sessionp. 260) by the execu-tion of the use. In other words, itpermitted transfer of title with-out publicity, which might becalled a simplification, but is notone that has ever found approvalin this country. Uses did not af-fect the other essential formal-ity which existed in conveyancesbased upon seisin; namely, thenecessity of an entry antecedentto an effective conveyance if theland was in adverse possession(p. 52). As for written convey-ances, to create legal interestsby way of a use one needed onlyto employ that word, and to avoiddoing so it was only necessary,

as Lord Hardwicke said, to addthree words to a conveyance (asecond to the use). The com-mon law deeds and charters of feoffment were already elabo-rately formal documents. Doubt-less the bargains and promisesdeveloped as equitable assur-ances while uses were adminis-tered by Chancery were, whenthey first became legal assur-ances, less formalistic, and mayfor a time have exercised some

influence for simplicity. But it wasnot long before the lawyers madethem over into the formidabledeeds of bargain and sale andcovenants to stand seised whichcan be found in collections of forms. In objectively consideringthe contribution of equity, it isnot to be forgotten that al-though, as a result of the Stat-ute of Uses, the chief control

over Real Property was perma-nently transferred to the jurisdic-tion of Courts of Equity, never-theless Chancery followed thelaw by reproducing as substan-tive equitable interests counter-parts of all the common lawscreations. Not only that, but the

equitable interests were createdby the same limitations, by em-ployment of the same technicalwords, and by subjecting themin many instances to like con-structionsand this, not-withstanding that many qualitiesof the legal estates were not com-mon to their equitable ana-logues. Even the rule in ShelleysCase5 was applied to equitableinterests, and a common recov-ery was used to bar an equitableentail. As for the transfer of equitable interests, they werenecessarily incapable of transfereither by livery or by any con-veyance operating by way of uses; and their alienation has al-ways been valid without otherformalities than a writing (since1677) and a manifestation of in-tent. Nevertheless, equity drafts-men employed for their transferthe same deeds as were used to

convey legal interests.Two permanent gains to con-veyancing resulted from uses.One was that so far as they dis-placed livery in transfers of free-holds, the field was narrowedwithin which tortious convey-ances (of a greater estate thanone rightfully held) were pos-sible. Like the grant, all convey-ances to uses were innocent(pp. 259, 366). The other gainwas an emphasis upon intent as

the all important factor in con-veyancing. This is a general ten-dency in the development of law,but it works very slowly. Therewas in England no sudden sub-stitution of intent for prescribedformality. There was no steadydecline of formalism. But the newspirit was present, and whenadded in our colonies to the ab-sence of technical lawyers and




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professional draftsmen, it gaveus, as will be seen, a relativelysudden emancipation from oldforms. Long before the era of leg-islative reform a tendency be-came visible to eliminate the ne-cessity or effect of seals, and tolessen the potency of the techni-

cal presumptions carried bymany words. But judicial conser-vatism was incapable of carryingout substantial improvements. Inboth countries, modern legisla-tion based upon the principle of simplifying the expression of in-tent has carried reform much far-ther.

Some old presumptions of the common law have been re-pudiated, judicially or by legisla-tion. New presumptions havebeen similarly establishedforexample, that a grantor shall bepresumed to intend to conveyproperty that he owns, and all hisinterest if his expression is un-qualified. No deed or will is validif its maker lacks mental capac-ity to make it. In a few classesof cases . . . the law, as dis-tinguished from equity, gives aspecial right of avoiding a trans-fer of title; a right which has been

held to exist not simply againstthe first taker of title, but againstany subsequent transferee irre-spective of bona fides or value.8 This was everywhere true untilrecent years of infants as re-spects sales of chattels, and truein some states of lunatics; butthe Uniform Sales Act has alteredit by making title indefeasible inthe hands of bona fide purchas-ers for value. The old principleremains unchanged as to realty.

If an instrument whose form in-dicates an intent that it shouldoperate as a conveyance of onetype cannot so operate, it will, if possible, be made effective as aconveyance of an-other kind. Andeverything within the four cor-ners of an instrument shall beso construed as to give some ef-fect to all if possible. Relief bycancellation or reformation of

conveyances is given for the par-ties common mistakes of fact;to some extent and increasinglyfor their common mistakes of law.

This enthronement of intenthas necessarily led to much un-certainty in the application of le-

gal principles. Possibly, also, itis not, substantively, an unmixedblessing.

15. Evolution of the DeedThe deed, as it existed

through centuries, with its for-mal parts and redundant ver-biage, was purely a product of lawyers; its form had no other au-thority than professional tradi-tion. It was primarily developedfrom the charter of feoffment,and the charters phraseologyand other form came in part fromthe Anglo-Saxon landbook(which may ... have operated asa conveyance of land)7 and inpart from Norman writ-books.But the deed or other documentwhich evidences the transfer be-came in most cases, and after thepassing of the Statute of Fraudsin all cases, the essential andnecessary element in a convey-

ance. In this way a great impe-tus was given to the tendency, -which was proceeding allthrough the medieval period, tomake the deed, which evidencedthe intent with which livery of seisin was delivered, of more im-portance than the actual livery of seisin8 The introduction of con-veyancing to uses, accompaniedby the larger powers of grantorsand the emphasis put, in connec-tion with uses, upon intent, made

the use of deeds absolutely nec-essary for the adequate state-ment and possibly necessaryproof of the exact purposes forwhich conveyances were made.Lord Coke, of whom accuracymight be expected if of anybody,in describing livery of seisinspeaks of the deed or deed of feoffment;9 and although deedmight (and doubtless here did)

have the meaning, merely, of adefinitive act (p. 421), the lan-guage soon came to indicate theact of conveyance (p. 421). Stilllater, fines, feoffments and re-coveries were all made to play apart in those elaborate settle-ments of land [p. 192] by which

its devolution to a number of lim-ited owners was fixed, by whichit was charged with sums of money in favour of other per-sons, by which its proper man-agement was provided for bymeans of powers of appointment[p. 454].10

Before 1500 the formal deedwhich was in general used, untilrecently, in England and thiscountry was fully developed. Itbore on its face evidences of itsancient origin. Its special formsthe grant, the confirmation, andthe release, the express surren-der (when made by deed), anddeed of partition (which was or-dinarily made by deeds)wereonly variants. The employment of deeds to transfer title to chattelswas established before 1500.

Conveyances to uses in his-toric times seem to have been,characteristically if not invari-

ably, writings; and bargains andsales became ineffective in 1536unless written and recorded (p.398). As already noted, all theseconveyances were speedily as-similated in form to the deeddeveloped by the common law-yers. By the latter part of the sev-enteenth century the deed touses had in England displacedthe feoffment in all ordinary con-veyances of freeholds. But feoff-ments, fines, and recoveries were

still used for their various excep-tional effects until abolished acentury ago.

It is not to be overlooked thatfor at least well over three cen-turies the practice has more orless prevailed of holding a con-veyance to be of whatever typeits form may satisfy, in order toeffect the primary intent to con-vey the title. In 1583 an instru-




ment in the general form of abargain and sale deed, but with-out expression of a consider-ation, was held by the Court of Kings Bench to operate as afeoffment because a letter of at-torney to make livery of seisinwas included in the body of the

deed. When deeds were of nu-merous types this could readilybe done. Their reduction to onlyone or two types has in latertimes made it impossible tochoose, among various formaltypes, the one that could bemade to serve intent. It has com-pelled courts simply to disregardentirely whatever defects of formare nonessential.

16. Uses and Deedsin This Country

There are two questions hereof practical importance. The firstis, are any of the conveyancingeffects of seisin still realities inour conveyancing? The other is,to what extent, if any, do ourdeeds operate by execution of uses?

As a matter of ordinary con-veyancing all interests in realtyhad come, before the end of the

seventeenth century, to lie ingrant; few were made by livery.The old common law convey-ances based on seisin, and thoseeffected by collusive court pro-ceedings, were obsolescentwhen our colonies were settled.The evidences of their use hereare only slight. On the otherhand, deeds were employed herefrom the first, and recording sys-tems were early developed. Invarious of the colonies statutes

were passed in the seventeenthcentury, and most likely in all, tothe general effect that convey-ances by deeds fully executedand recorded should be effectivewithout, as some put it, anyother act or ceremony whatso-ever. The purpose of these actswas to declare unnecessary, inparticular, livery of seisin andattornment, one or both of which

the majority of statutes explic-itly mentioned, and so it was heldby the courts of other stateswhose acts were less explicit.They did not, in general, ex-pressly abolish those formalities,although Georgia, at least, didso. A considerable number of

non-colonial states have similarprovisions in their statute bookstoday. Although today all suchdispensing statutes are presum-ably understood to be prohibi-tory, this could clearly not havebeen the intent in colonial times.The first conclusion is, that feoff-ment in the original sense iswholly obsolete. But that doesnot mean that the incidental con-veyancing effects of seisin havealso, necessarily, ceased to op-erate. One other possible effectis dependent upon the existenceof conveyances to uses, and canbest be answered after discuss-ing the question whether ourpresent deeds actually operateby execution of uses.

This question is one of ex-ceeding difficulty. The deedswhich were declared by statutes,as above indicated, to be as fullyeffective as feoffments were vari-

ously designated, but amongthem the deed of feoffmentthat is, the general common lawdeed which at first was knownas the charter of feoffmentisprominent. Were the standarddeeds to uses regarded as oper-ating in colonial times by way of use? Very likely for a time theywere, for the Statute of Uses wassubstantially reenacted in a fewof the colonies. It has been de-clared in others to have been a

part of their common law (and insome non-colonial states thecourts have made the same dec-laration) as suitable to Americanconditions. But it seems that thedeed of feoffment should inevi-tably become in popular under-standing equivalent to a feoff-ment. With this evidence beforetheir eyes that actual livery wasprofitless, its publicital value be-

ing more than filled by deliveryand record of the deed, the colo-nial statutes above mentionedare readily understandable. Butif a feoffment deed necessarilyand manifestly took effect bymere execution and delivery, itwould, again, seem inevitable

that other deeds should be re-garded as made effective by thesame properly manifested ex-pression of intent followed by de-livery. The fact that in formdeeds were such as should prop-erly operate by way of use (par-ticularly the recital of consider-ation in the bargain and sale)would have meant, even to mostlawyers, no more than do thephrases, in deeds of today,whose real meaning disappearedcenturies ago. It is true that inmany cases of a later periodcourts composed of professionaland trained lawyers made muchof the Statute of Uses. But in co-lonial times almost all judgeswere laymen, and the number of lawyers well trained in England(or possibly at home) was verysmall. It seems likely that theStatute of Uses was forgotten,that we were substantially free

from uses before the Revolution;that all deeds were regarded asoperating as did the feoffmentdeed or the grant. Only re-search in the unpublished judi-cial records of the time can re-veal whether in fact this was thecase. In various states a deedhas been declared by post-colo-nial decisions to have the effectof a common law feoffment.

The survival or revival of usesfollowing the Revolution is an-

other matter. The crucial pointis the creation of free-holds in fu-turo. Their creation was the onlything impossible by common lawconveyances. But the most thor-ough researches yet made havediscovered, even in the post-co-lonial period, only two decisions,both more than a century old,holding that deeds which in formwere conveyances to uses could




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not, for technical defects as suchconveyances, create a future free-hold. It seems, therefore, prob-able that researches in unpub-lished colonial records will sup-port the view that the Statute of Uses was forgotten.

The question whether Ameri-

can deeds of today operate byway of uses is complicated byvarious considerations that ren-der any answer speculative. Inthe first place, there was a recep-tion of the English law on a greatscale following the Revolution.That increased professional con-sciousness of uses; and, as al-ready remarked, the form of al-most all of our deeds was then,and has remained, that of a bar-gain and sale. On the other hand,the statutes of many of our statesprovide a short form deed whichis declared to have the full effectof any other conveyance-but, un-fortunately, they have been butslightly used. Those of severalother states (and some of thepreceding) declare that compli-ance with local statutes shallsuffice to make effective any con-veyance. There are also statutesin at least a few states not in-

cluded in the foregoing classeswhich provide that any writing inwhich an intent appears to trans-fer title (at least if signed andcontaining the grantees name)shall have that effect. Likewisein other states (and in various of the preceding) there are statutesthat permit the creation of futurefreeholds-to create which was theonly need, originally, for deedsto uses. Finally, in various otherstates (and some of the preced-

ing) the courts have held thatdeeds in the form of bargainsand sales operate by force of lo-cal statutes, and are valid with-out consideration recited or ac-tually paid; or have held in vari-ous of the states of the preced-ing groups that future freeholdscan be created without regard touses (though supported in mostcases by pro-visions regarding

local statutes of the first twotypes just stated). As regardsthese judicial holdings, those notsup-ported by declaration of alocal statute to precisely thesame effect might perhaps besupported by provisions con-tained in the statute books of

every state which provide thatthe execution of all deeds shallsatisfy stated requirements andthat all deeds may be recorded,or must be recorded to have cer-tain effects; a permissible infer-ence being that all deeds satis-fying these requirements shall ef-fectuate any intent therein ex-pressed. It thus appears that inat least more than three-fourthsof our states there seems to beno need that deeds shall oper-ate by way of uses, and in mostof these deeds are probably notregarded as so operating. Thatthis was the situation even yearsago was the opinion of the great-est authority on American eq-uity.11 So far as uses are actuallyreferred to by courts as the ba-sis of transfers by deed, it is cer-tain that in some cases local stat-utes make such resort to thedoctrine unnecessary, and that

in other cases such views are in-consistent with other judicial at-titudes.

There is, perhaps, a generalopinion that the possibility of making a deed operate by wayof uses is a useful last resort forthe purpose of saving convey-ances. But, after all, a use neverwas anything more than an ex-pressed intention that a certainperson should have the enjoy-ment of property. Since the op-

eration of any deed dependsupon that intent, what is gainedby raising and executing a use?The actual payment of consider-ation has long nowhere beennecessary to support thegrantors intent that the granteeshall have the benefit of all titlethat is, the use. A mere false re-cital of payment everywhere suf-fices; but, as various courts have

asked, why require the false al-legation? In many states it is nolonger required, but why in any?A man should be able to accom-plish by any deed all that he canby will, and the only hindrancesare, first, this requirement of consideration (no question re-

garding which -should ever beraised save to protect creditors),and limitations upon the creationof future freeholds. This was theplan and the accomplishment of the New York statutory revisionof 1830, and in various otherstates as much has been accom-plished by the courts.

Suppose, then, a conveyanceby bargain and sale to A to theuse of B. Does B get a legal or anequitable interest, and how? Sup-pose, too, that active duties infavor of B appear. Then, in accor-dance with the views above ex-pressed, which are supported onthis point, also, by the same highauthority just cited, Bs interestis equitable, but A takes legaltitle by the deed as though itwere a feoffment, not by execu-tion of a use raised by recital orpayment of consideration. It canalso be said with propriety that

he gets and holds the legal titlebecause on all the facts, includ-ing the active duties owed to B,that is the whole intent. Never-theless, in a few states uses areby statute recognized for thesole limited purpose of effectingconveyances by bargain and sale,lease and release, and covenantsto stand seised.

Very closely connected withthe question whether our deedsoperate by uses is the more gen-

eral question of the extent towhich the Statute of Uses, or atleast the doctrine of uses, has vi-tality in this country. It has oftenbeen declared to have such inmany or in most of the states.It seems certain that almost allalleged instances of the exist-ence of uses are confined to theoperation of deeds or to the sup-posed execution of passive




uses, particularly after the expi-ration of a trust. The first of thesesituations has been discussed.As for the second, we have a uni-versal rule, often declared in stat-utes which merely enact what iselsewhere applied without statu-tory aid, that a trust ends when

the duties of the trustee termi-nate. If a deed is then requiredto be given by the trustee to theholder (whoever he may then be)of the beneficial interest, that isin consequence of the -latterspreexisting right to have the twotitles united; and that right arisesfrom our conception of the nor-mal relationship of those twoforms of title (pp. 14347, 156).We separate them totally undertrusts, partially in bailments andmany other cases of divided own-ership., When the division endscomplete title is restored in-stantly and automatically. Thecourts which require no deed tobe given by the trustee act con-sistently with our general prin-ciples of title, though their viewis less desirable under our re-cording systems. It is establishedlaw that a conveyance of legaltitle can be made by grant in

terms of complete enjoyment (p.142). Every day the questionarises whether an interest osten-sibly given for life is convertedinto a fee simple by the com-pleteness of the powers of userand disposition given to the ten-ant; and this is purely a problemof determining the whole intent-or, if some prefer (the result isthe same) the laws view of whatconstitutes title. Assume thecase of a conveyance not by way

of use to A (or, again, a bargainand sale to A in any state accept-ing the view that it operates as afeoffment), to the use of B, andthat the latter is passive. Are eq-uitable interests other thanthose under active trusts creat-able in this country either di-rectly, or by uses on uses, or usesraised out of personalty or termsfor years? The fact seems to be

that such conveyances to useshave been practically unknown inthis country; so much so that inthe opinion of our greatest au-thority on equity the questionpropounded is almost entirelyspeculative and theoretical. Inhis opinion, however, the most

that can be said for the creationof an express passive trust is thatwhere there is no hostile legis-lation, this result may still bepossible.12 In fifteen states, alluses, as distinguished from ac-tive trusts, have been abolishedoutright. In three others it hasbeen declared that they neverexisted. In at least eight statesthe holder of the beneficial inter-est takes the legal title, in thecase just assumed, by statutorydeclaration. But it would seementirely proper for the court of any state to say, as equity hasalways said of uses (p. 400), thatunder all the limitations in theinstrument the intent appearsthat A should not acquire legaltitle, and that B should.

For the same reasons, itshould be entirely unnecessary,when a conveyance is made toA, to declare that it is made unto

A and to his use, in order by thisdeclaration to rebut a resultinguse (p. 399) to the grantor. Like-wise, there should be no diffi-culty in permitting the creationof future freeholds, by deeds of bargain and sale operating asfeoffment deeds, or, particu-larly, conveyances thereby topersons not yet in esse.

So much for the operation of deeds. As for their actual effect,speaking generally, all legal in-

terests in land are today alien-able inter vivos by deed only (in-cluding title by estoppel p.443), with technical require-ments of wording and formgreatly relaxed as compared withthe requirements of the olderlaw. This is so no matter whetherthe conveyance be to a privategrantee or (but in this case notas an exclusive method) to the

public, to a person already hold-ing an interest in the land or toa person holding none,whether a conveyance of a free-hold or of a term for years, of acorporeal or an incorporeal her-editament, of an estate of present or of possible or certain

future enjoyment. Legal interestsin chattels are alienable by giftthat is, by spoken or writtenwords indicating a donative in-tent accompanied by the estab-lishment of substantial control inthe donee; by sale without writ-ing if of relatively small value (p.87); by written memorandum of sale if of greater value; or bydeed.

In the great majority of thestates of this country equitableinterests in personalty are trans-ferable (and the trust creatable)without writing. In only a fewstates can a trust of land betransferred (or created) withoutwriting.

Transfers by will are today,with scarcely any exceptions,regulated by identical require-ments for realty and person-alty, legal and equitable inter-ests.

17. Contents of a DeedThe indispensable parts of a

deed are the names of the par-ties, the description of the prop-erty the title to which is trans-ferred, the statement of the in-terest therein that is transferred,and execution. A further requi-site to its operation is delivery;and some courts or statutes addacceptance.

(1) PARTIES. It is normally afact that a grantee is definite.However, it has been seen thatfor centuries conveyances havebeen possible by contingent re-mainders to unascertained per-sons (p. 255); and likewise, theymay be by dedication to the pub-lic (or by deed to their proper rep-resentatives). The statutes of uses and of wills added to the




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contingent remainder othermodes of conveyance to unas-certained persons, and it hasbeen above indicated (p. 412)that all of our present-day deedsshould be equally effective forthat purpose.

(2) DESCRIPTION OF PROP-ERTY. The description of theproperty is normally (but cf . 142)by courses and distances; thatis, by statement of the directions,fixed by references to angles andpoints of the compass, in whichthe boundary lines run, and of their lengths. The area is alsogenerally added, frequently withthe qualification more or less.Particularly in the original statesthe starting point and otherguides were, in old deeds, treesor stone markers of unofficialcharacter. In the younger states,where practically all titles rest fortheir description upon govern-ment surveys, the descriptionseven in conveyances of rurallands, as well as those of urbantracts, are more accurate andwith some official basis. How-ever, from a scientific standpoint,or as compared with convey-

ances in some foreign countries,the best possible present de-scriptions (and only those of ex-tremely valuable property ap-proach that quality) are verycrude. A movement has begun toredescribe all properties, basingthe descriptions upon the trian-gulation stations of the GeodeticSurvey.

Natural or artificial markers,railroads, highways, streets, theadjoining land of another owner,

and the like, are monuments,and in case of inconsistencies inthe description of land conveyedthe general rule is that monu-ments, directions and distances,and area have evidential weightin that order. Nevertheless, thisorder is not an absolute rule, andit may be varied for good reason;the only matter positively con-trolling is the intent of the par-

ties. It is also a general rule thata deed shall be construed, incases of doubt, against thegrantor, or (in other words) infavor of the grantee. But this,also, is not an absolute rule.

In giving specific perfor-mance of land contracts, courts

of equity allow for a deficiencyin the amount of land availablefor conveyance (but very rarelyfor an excess) by altering thepurchase price (p. 380). This isdone with such freedom (whenas much as a third, or a half, forexample, is lacking) that it fre-quently amounts to the simulta-neous making and enforcementof a new contract by the court.

Equity courts sometimessettle boundaries incidentally tosuits arising in equity under or-dinary grounds of equitable ju-risdiction, such as fraud in oblit-erating a boundary; but appar-ently only a few states provideroutine judicial establishment of uncertain or disputed lines. Pri-vate boundary adjustments be-tween neighbors are thereforetreated with liberality. If adjoin-ing landowners settle a bound-ary dispute by locating a line up

to which both thereafter occupy,it becomes the true boundary;and they are not regarded as vio-lating the statute of frauds eventhough it be proved that in factthe settlement involved thetransfer of title to land by one orboth. Rather, this is treated bythe courts as a construction of the deed or private survey basedon its description. It involves noquestion of adverse possession,no occupation of the new hold-

ing, or mutual acquiescencetherein, for any particular lengthof time being required. Thesetheories seem to be just as ap-plicable to agreements that arenot made in settlement of dis-putes, although in theory thestatute is then violated. In fact,however, the settlement is some-times upheld when it is difficultto discover a dispute. A location

of a line that is based on a meremistake as to where the true linelies has been held in some statesnot to bind the parties.

Boundaries to or along(etc.) a road or stream are gener-ally so construed as will not leavemerely a road or half road in the

grantors ownership, perhapsfrom a sense of public policy. Aline beginning at or runningto a party wall or stone markerordinarily carries to the center,but not if the monument be onenot properly partible, such as ahouse.

(3) STATEMENT OF THE IN-TEREST CONVEYED A properstatement of the interest con-veyed is manifestly a necessity.In this country, no matter whatdeficiency may exist, at the mo-ment of contract, in a contractvendors holdings, or defect inhis existing title as comparedwith that which he undertakes toconvey, the contract purchasermust give him until the perfor-mance date to cure them. Thiswas a natural rule in a countrywhere land has always beenabundant and an object of specu-

lative trading. It is different whena defect of title exists at themoment for conveyance. Of course, a life estate will not beforced upon one whose contractentitles him to a fee simple byany abatement in the purchaseprice. On the other hand, as al-ready noted (p. 380), allowancemay be made for creditorsincumbrances and even for suchspeculative incumbrances asdower in suits for specific per-

formance.Reformation may be had in

equity of a deed that fails to ex-press the parties intent becauseof a mutual (common) mistakeof fact; under which heading thecourts classify a mistake of law(such as one regarding the na-ture of the grantors title) whichis taken as a fact in the partiesnegotiations. But reformation is




affected by the intervening rightsof third persons.

18. The Execution of a Deed:in Particular, Delivery

By tradition a deed was forcenturies required to be sealed.Very generally today this is not

essential, but signing is every-where required. If the instrumentis signed by both parties it is. anindenture; if by only one, it is adeed poll. Acknowledgment addsnothing to the validity and effectof a deed as between the partiesand their privies. It is, however,universally a pre-condition to therecording of the instrument, andonly recording protects thegrantee against defeat of his titleby that of a subsequent pur-chaser for value who, in the ab-sence of recording, might be apurchaser in good faith.

The word execution issometimes used as including,but more generally as not includ-ing, delivery, which is the last,and everywhere an indispens-able, prerequisite to the effec-tiveness of a deed as a convey-ance. Once delivery exists, titlehas passed. The subsequent de-

struction of the instrument, orchanges in its custody are of noimportance. Very few, if any,other topics of property law arecharacterized by an equal con-fusion of language. A few propo-sitions are clear enough.

(1) Delivery in the legal sensedoes not mean physical deliveryof the instrument. If, for ex-ample, it is handed by the makerto the intended grantee merely

for inspection, this is not deliv-ery. Mere incompleteness of theinstrument in non-essentials(such as date or acknowledg-ment) is of no importance exceptas bearing on the makers intent.On the other hand, although re-tention of the instrument by itsmaker would, as an isolated fact,support an inference of nonde-livery, nevertheless it is well

agreed that there may be deliv-ery in the legal sense notwith-standing that the maker retainsthe instrument, provided it isretained at the disposal of thegrantee and by his will. As inmany other cases of bailment,the maker is constituted bailee

for the grantee without manualtradition of the instrument tohim and back to the grantor. Inshort delivery exists when thereis an intent that an instrumentshall be presently operative as adeed. As often stated, deliverymay be effected by acts withoutwords, or by words without otheracts, or, as usually, by both. Assoon as there are acts or wordssufficient to show that it is in-tended by the party to be ex-ecuted as his deed presentlybinding on him, it is sufficientto make it his deed. But thesestatements conceal under theword deed the greatest singlecause of confusion on the sub-

ject of delivery. A deed hasthree meanings, of which twomust here be distinguished. Oneis that of an act done; henceaseal being once peculiarly sol-emn evidence that a document

bearing it was in truth the con-sidered and definitive act of himwhose seal it boreany sealedinstrument. Another is that vari-ety of definitive act and sealedinstrument by which an interestin land is transferred. In many

judicial opinions the writers shiftfrom one to the other of thesemeanings with lamentable re-sults.

(2) It is equally clear that

there is generally no delivery(and should never be) except oneso intended by the maker; andthat, consequently, if possessionbe taken by the grantee by forceor fraud or stealth or by merelypicking up the instrument froma place where the maker leavesit after its formal execution, itdoes not become an effectivedeed. The difficulty lies in the

application of these vaguewords. For example, it wasagreed in one case that the pur-chaser should pay $1,000 uponreceiving his deed and give apurchase money mortgage forthe balance. The two partieswent to a notarys office for the

preparation of the deed andmortgage, and after completeexecution of the first, and whilethe notary was preparing the sec-ond, the grantee picked up thedeed from the table, stepped outof the office and into anotherbuilding, and there secured aloan and gave a mortgage on theland (of which the deed showedhim to be, apparently, theowner), then returned to the firstoffice, paid the $1,000. and ex-ecuted the purchase moneymortgage. The other mortgagewas recorded first, but the pur-chase money mortgage wasgiven priority. The former wasworthless unless there was a titleto mortgage, and the court heldthat there was none, since therehad been no delivery of the deed.In this case the instrument wastaken in the presence of the in-tended grantor, but he might

perhaps reasonably assume thatthe instrument was taken merelyfor inspection. Besides, themaker was old and infirm. Inmany situations equity protectsthe aged, inexperienced, for-getful, inadvertent, careless,gullible, and unsuspicious, evenagainst mere sharp practice, letalone against such fraud as hereexisted.

(3) It has been law for centu-

ries that if the maker hands awriting, in the form of a deed, tothe person named therein asgrantee, he cannot prevent orpostpone its operation as a deedof present conveyance by an at-tempt to impose extrinsic parolconditions whose satisfactionshall be a prerequisite to suchoperation. Despite the absenceof actual intent (the overt act of




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transfer prevailing overcontradictory words), the writingbecomes a deed. This is perhapsa survival of an idea that manualtradition of the instrument mustsimulate the livery of seisin in afeoffment. It has been often andstrongly criticized because in-

consistent with the treatment of bonds and negotiable paper, butthat seems to be beside thepoint. Land was the chief formof wealth, and otherwise of unique importance, and particu-lar solemnities might well attendits transfer. Today, perhaps therule is unnecessary or undesir-able, but it is well established.

(4) This brings us to the dif-ficult cases in which an in-strument that is in the form of adeed purporting to convey landpresently to B is handed by itsmaker, A, to a depositary whoreceives parol instructions to de-liver it (meaning, physically) toB when a certain condition shallbe satisfied. The question pre-sented in these cases, is, Whenis there a deed? The answer de-pends upon what is meant by adeed.

It is clear that there must bea deed in the sense of a defini-tive act before that act can be adeed of conveyance. As respectsthe first it is almost always as-sumed that it cannot exist un-less A has irrevocably parted withcontrol over the instrument. In-asmuch as there may be legal de-livery although the instrument isactually retained by its maker, itis certainly illogical, and appar-ently erroneous, to hold that de-

livery is impossible if any controlover the depositary can be exer-cised by A. Apparently, what isindispensable in both cases is anintent to make the instrumentoperative as a conveyance (pres-ently in the first case and in someothers, in futuro and condition-ally in the second) without fur-ther interference by A. Controlover it, or over its custodian,

might properly exist, it wouldseem, if for reasons which do notqualify that intent. Subject to thisunderstanding, evidence istherefore pertinent which tendsto show that the depositary is,on one hand, the agent of A, or,on the other hand, the agent of

B. The depositary will naturallybe a person in whom A has con-fidence, perhaps his lawyer orbroker; but that he is such neednot prevent his acting, as deposi-tary, free from any control by Athat could affect the character of the instrument. What is As in-tent, and whether definitive, arequestions of fact.

Of a deed in the sense of adefinitive act, particularly hissealed obligation, it may well besaid that delivery to a third per-son, for use of the party in whosefavor a deed is made, where thegrantor parts with all controlover the deed, makes the deedeffectual from the instant of suchdelivery; 13-and, indeed, asmuch might be said of any deedof conveyance, provided for usecan be made to mean forpresent and unconditional use.There is no doubt, also, that to a

certain extent a potential deedof conveyance is effectual oroperative from the moment of its definitive delivery to the de-positary. In the interval betweenthat moment and the momentwhen stipulated conditions aresatisfied, B has a property inter-est of some kind which mostcourts regard as unaffected bythe death of A (that is, asenforcible against As heirs), isheritable by Bs heirs, and is

good, as will be seen below,against other intervening claimsthan those of bona fide purchas-ers for value. This interest is simi-lar to other weak contingent in-terests which for centuries, likeit, could not be aliened inter vivos. Their alienability has be-come established, and that maybe its future history. Some weredestructible; and courts and text-

writers are not wholly agreedwhether this interest of B is de-structible when the conditionaldelivery is not in performance of a written contract for the convey-ance of the land in question.Moreover, when the conditionupon which title is to pass to B

is one whose fulfillment dependsupon his will, he holds a power(p. 19) to acquire title. However,no court has ever recognizedthat as the possible object of aconveyance.

Finally, it has been true formore than three centuries thatinstruments have, under certaincircumstances, been held to becompletely effective as convey-ances from the moment of deliv-ery to the depositary. Such caseswere when a single woman madeconditional delivery of a deed,and her marriage before satisfac-tion of the conditions made itsoperation as of the later date im-possible; or when the instrumentwas made by one who died or be-came insane before satisfactionof the conditions. These caseswere merely examples of thepolicy of making intended deedseffective, if possible, when cir-

cumstances did not make it unjust to treat the conditional de-livery of the instrument as theconsummative delivery of thedeed; that is, when no interven-ing rights prevented. They havealways been regarded as excep-tions.

In the law of property a deedis an instrument that conveystitle presentlyalthough, of course, according to the natureof the interest granted. Those

who say that the escrow instru-ment is operative or effective assoon as handed to the deposi-tary, agree that title or com-plete title passes only when con-ditions are satisfied. Should itnevertheless be said that As in-strument is presently operativeas a conveyance because B ac-quires the inchoate interestsabove indicated? Some academic








20. Creation and Conveyanceof Incorporeal Hereditaments

It has been already seen thateasements have always been cre-ated by deed (p. 284); that onlyeasements in gross are indepen-dently assignable after creation(p. 280), easements appurtenant

being conveyed along with thedominant tenements to whichthey pertain; and that the at-tempt to convert an easementappurtenant into one in gross de-stroys it (p. 290). The treatmentof profits in these respects hasbeen likewise referred to (p. 295).It remains to consider just howthese interests are creatable bydeed.

In the older law sharp distinc-tions were maintained betweenexceptions and reservationsand between deeds poll and in-dentures. To some extent theseare still adhered to, and there-fore their effect must be stated.

By an exception, a grantorexcluded from the operation of his deed a physical portion of theland included within the generaldescription of the instrument, aswhen he conveyed Blackacre,except one-half acre in the north-

west corner within a fence. Areservation, on the other hand,existed when the grantor, in con-veying title to Blackacre, desiredto retain an isolated right (anincorporeal hereditament) that isa constituent of the title granted.Really there could be no reserva-tion or retention; title to the land,in the form of such definite es-tate, was granted, and it was con-sidered a contradiction of thegrant if particular liberties of

user which were constituent por-tions of the title given, were with-held by the grantor. There is nosuch contradiction present whenfull title to certain land (of what-ever estate be involved) is given,but no title to other land .that isexcepted from the general de-scription in the deed. In otherwords, what purported to be areservation must in fact, on strict

principle, be an interest grantedback by the grantee of the gen-eral title. Consequently, at com-mon law no reservation could beeffective in a deed poll; theinstrument must be an inden-turein which case the grantorswords of reservation operated as

the grantees words of grant.However, even in colonial

times the distinction between thetwo types of deed was weaken-ing, and a deed signed by thegrantor only (though habituallycalled this indenture in its pre-mises) has long been almost ex-clusively the conveyance em-ployed in this country. At thepresent day the act of acceptinga deed poll containing a reserva-tion amounts at least to a cov-enant by the grantee to permitthe intended user, for breach of which he is suable for damages.As there is no signature by him,specific performance of a prom-ise to convey the interest is tech-nically unavailable. However, thetendency is, simply to treat thedeed poll as an indenture for thepurpose of effectuating intent,notwithstanding what were onceregarded as technical obstacles

to that result. This being so, thedistinction between exceptionsand reservations has likewise be-come unimportant, and tends todisappear.

Incorporeal hereditamentsmay also be created by what isknown as implied grant. Thisonly means that they are not ex-plicitly mentioned as created. If.the grantor of land, while ownerthereof, has used one part for thebenefit of another (for example,

by using regularly a way from hishouse to a spring to secure wa-ter), he is said to have had a quasieasement, and the two portionsof his land are referred to as thequasi-dominant and quasi-servi-ent portions. If, then, he conveysthe former, the marks of the waybeing visible on the ground, thedeed is construed against him,and the grantee acquires a true

easement in the land retained bythe grantor. On the other hand,if he retains the quasi-dominantportion, again construing thedeed against him, he does notreceive an easement over theland granted. But this view is alsolosing authority.. The grant be-

ing, by the general view, foundby construction of the deed,there is no violation of the stat-ute of frauds. A very real objec-tion is that such easements donot appear in the recorded deed.However, not appearing, thereshould be no constructive noticeto purchasers of the servient ten-ement.

The requirements in thesecases are generally stated as be-ing that the user by the commonowner must have been appar-ent, continuous, and necessary.The first requirement is a real-ity; and any user is apparent if areasonably careful buyer wouldnotice it in his inspection of thepremisessuch as a water sup-ply indicated by a pump, or un-dercover drains by any surfaceopenings. Of course a merelyoccasional use of land is not aquasieasement, whereas a rea-

sonably continuous user wouldbe. And the fact that a use isclearly beneficial is evidencetending to show that such userwas not merely casual. Beyondthis the requirements of a con-tinuous and necessary charac-ter seem to have no meaning.

Easements of necessityhave been elsewhere discussed(p. 279).

It has also been noted thatan easement appurtenant passes

with a transfer of the dominanttenement to which it pertainsunder the reference, with appur-tenances; and likewise, the vari-ous manners in which easementsare lost or destroyed (p. 289).

21. Covenants for TitleIn feudal England a feoffee of

land was assured of receivingand retaining full title by an ex-




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press or implied warranty whichassured him of the substitutionof other lands of equal value if the title failed, for which reasonit is known as a real warranty.This warranty bound thewarrantors heir only if he wasnamed in the warranty, and then

only to the extent that he re-ceived by descent from such an-cestor assets sufficient to meetthe demand. No distinction ex-isted at common law between hisliability on warranties, covenantsfor title, or other sealed obliga-tions (specialties) in this re-spect. Nearly four centuries ago,however, this warranty was al-ready supplemented by cov-enants for title made by thegrantor which were purely con-tract obligations. As damageshad in 1276 become a remedyfor breach of the old warranty(namely, the value of the land atthe time of the feoffment) it hadno advantages in this respectover covenants, and it did haveprocedural disadvantages. Whenconveyances by deed increas-ingly displaced feoffments afterthe passing of the Statute of Uses(p. 406), express covenants for

title in the deed increased in thesame measure. This country wassettled at the time when thischange in conveyancing was be-ing consummated. Moreoverfeoffments apparently becameobsolete here long before primo-geniture, and without both theold warranty was unworkable.Thus, we have never known thelatter except, in the earliest co-lonial records, in the form of acovenant clause of ostensible

warranty, to which words of cov-enant came to be added, andwhich perforce came to be a merecovenant for title. But this cov-enant of warranty is altogetherpersonal.

The burden of a covenant ispersonal, and after the cov-enantors death is enforced, likeany other liability, against hispersonal representative; that is,

against his estate. The executoris bound although not named,and equally as respects breachesbefore or after the covenantorsdeath. The heir of the covenan-tor was not bound, at commonlaw, on a covenant unless named.His present liability (like that of

a devisee or assignee) dependsvery largely upon the statutoryprovisions for making adecedents real estate liable forhis debts. The benefit of the cov-enant passes to the personal rep-resentative of the covenantee if a breach occurs during his life,and otherwise to his heirs or de-visee (as was also true of theancient warranty).

It has been remarked beforethat warranties are implied in thesale of chattels, but none, at law,in the conveyance of realty (p.202) except in leases for years.If one takes a quitclaim deed (anAmerican product grown fromthe old release) there are gener-ally no covenants. If one acceptsany other form of deed one is lim-ited to the covenants which it ac-tually contains. But if there be acontract to convey land, simply,and a deed proffered be refused,

equity interprets the contract, ingiving specific performance, asan undertaking to convey by adeed containing the express cov-enants for title which are custom-arily given in the locality. As cov-enants are mere contracts, spe-cial covenants of any charactermay be framed by the parties if they desire, but the covenants inrelatively general use are six innumber. The imperfections of the recording system (pp. 475

77) leave much room for, andgive value to, the personal liabil-ity of a grantor which is thus se-cured.

(1) The covenant of seisin(that the grantor is lawfullyseised, or has good and suffi-cient seisin) has been more orless construed as meaning sei-sin merely in the sense of pos-

session. In that sense it was for-merly equivalent to an assertionof right to convey, but since anowner out of possession longsince acquired power to conveyhis title, such a (2) covenant of right to convey has become of practically no meaning so far as

possession is concerned. It con-tinues to be somewhat used, buthas little value, for in accordancewith a general employment of seisin to mean title, the cov-enant of seisin has been inter-preted in England for nearlythree centuries, and is with rareexceptions construed in thiscountry, as a covenant of titleand right to convey. It is evidentthat this covenant specificallyrefers to the moment of convey-ance, and might naturally be con-strued, as broken then. It has,unfortunately, generally beenconstrued as broken only then.Such a covenant, so construed,is called one in praesenti .

(3) The covenant againstincumbrances (that the title isfree from all incumbrances ex-cept as specified) is another cov-enant traditionally construed as

limited in operation to the mo-ment of conveyance. An incum-brance is any real right in theland (a mortgage, easement, taxlien, running covenant, etc.) heldby another than the generalowner; it makes impossible thetransfers of an absolutely com-plete title, and necessarily dimin-ishes the value of any estate con-veyed, but tradition holds it con-sistent with the conveyance of afee simple, and apparently with

the grant of any of the older es-tates (p. 381).

(4) A covenant for furtherassurances means that thegrantor, should the title givenprove imperfect, will perfect it byadditional conveyances. Its op-eration is therefore prospective.Unlike all other covenants fortide, for breach of which dam-




ages are given, this one isenforcible (being a contract forconveyance of an interest in land)by specific performance, and byit the grantor may be compelledto buy in and convey outstand-ing interests of any kind in or-der to perfect the title already

granted. Properly speaking, it istherefore a real covenant. Nev-ertheless, the covenant is littleused.

(5) A covenant for quiet enjoyment is treated in most juris-dictions as equivalent in mean-ing to the (6) covenant of war-ranty. The former is regularlyimplied in all leases. Both aremanifestly prospective in charac-ter. The former is an undertak-ing that the grantee shall qui-etly possess and enjoy the land;the latter is perhaps usuallyworded as an undertaking towarrant and forever defend thesaid premises against the lawfulclaims of all persons whomso-ever, and is then a covenant of general warranty. It may, how-ever, be limited, and in somestates almost always is, to oneagainst the acts of the warran-

tor and his privies, and is then acovenant of special warranty.Any acts by the grantor or priv-ies interfering with the granteespossession and enjoyment of thepremises give a cause of actionupon the undertaking. The mostcommon and most important of claims of third persons givingrise to rights under the covenantis the successful assertion of anoutstanding title paramount tothe covenantees. In other words

there must be an eviction, orwhat may be reasonably consid-ered as equivalent thereto; thatis to say, either an actual depri-vation of possession, includingits reasonable surrender to theclaimant, or a retention of pos-session at the cost of a reason-able recognition of the para-mount claim and its purchase.The covenantee must act reason-

ably, but he may judge for him-self, and need not call upon hiscovenantor either to settle a dis-pute or to defend an action.

In England the old law hasbeen changed, and various cov-enants for title are implied in ev-ery conveyance, when some are

not expressly made, unless thelanguage plainly excludes thisimplication. In this country thequitclaim deed is used when agrantor is unwilling to give anycovenants, and it would seemthat they might be properly im-plied in other cases. The old rule,however, excluding implications,remains generally prevailing inthe absence of statutes to thecontrary, and these are both fewin number and of limited scope.In some states statutes expresslybar implied covenants in convey-ances of real estate. In others anystatutory short-form deed, whenused (p. 411), implies various of the standard covenants. In stillothers, certain words employedin any deed (such as grant, bar-gain, and sell) are made by stat-ute to carry such covenants byimplication.

The damages recoverable for

breach of the foregoing cov-enants vary with their nature andwith the circumstances. Whenincumbrances exist the covenan-tee is entitled to be indemnifiedfor the titles loss of value. Hehas a similar claim under the cov-enants of seisin or of warranty if he buys in a paramount title. Or-dinarily his damages for breachof either of these covenants arethe value of the land when con-veyed; that is, generally, his pur-

chase price (plus interest), with-out regard to improvementsmade or special losses inciden-tally suffered; although, if heloses the land, a local statutemay give him a claim for improve-ments against the holder of theparamount title. But there aremany variations, and existingrules seem by no means to in-sure perfect justice.

In the above statements noreference has been made toother persons than the originalcovenantor, his personal rep-resentative and heirs, and theoriginal covenantees. It has beenthe general rule that since cov-enants in praesenti can be bro-

ken only at the time of the con-veyance, the covenant disap-pears when broken and is re-placed by a right of action. This,under the old law, was unassign-able (pp. 52, 55)that is, it couldnot run. This made all covenantsin praesenti personal to the origi-nal parties to the conveyance.Moreover, its assertion is re-stricted to the period (usually afew years) allowed by a statuteof limitation. Yet the ultimatedamage may very likely only besuffered years later, and may bethe total loss of the land, and thetrue breach should be regardedas occurring at that time. That,however, requires a court to ig-nore tradition and hold that allcovenants operate prospectively.A minority of courts allow onlynominal damages for breach of a covenant of seisin unless therehas been an eviction, and if evic-

tion occurs after recovery of suchdamages some courts hold thata second action for the evictionis barred. It is clear that thesehistorical and procedural anoma-lies may totally deprive of rem-edy the original covenanteessuccessor who actually suffersloss. As for non-assignability of rights of action, that has disap-peared from the law; thoughcourts should not be compelledto rely upon this change in or-

der to do justice, for the policyof permitting transfers of rightsto bring lawsuits might againcome into disfavor. A better so-lution of the problem is to repu-diate the classification of somecovenants as in praesenti anddeclare all to be continuing obli-gations, available to protect anysubsequent grantee when hesuffers the actual consequences




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of the covenantors original, butat the time harmless, breach of covenant. Had the true nature of covenants for title not been lostsight of, this reform would neverhave been necessary. Somecourts have accomplished it, andonly the force of mistaken pre-

cedents delays others in follow-ing.

It is even clearer that the cov-enants of prospective operationare of little value if unavailableto remote grantees. The law hashere fallen into another funda-mental confusion. It seemsscarcely doubtful that JusticeHolmes was correct in insistingthat covenants for title are purecontractsalthough not like or-dinary contracts, because theirbenefits and burdens run toother persons than the originalparties, and should have run inaccord with the needs they aredesigned to meet; and that theyshould never have been confusedwith those other contracts deal-ing with land, the benefits andburdens of which likewise run toothers than the original parties,which are known as covenantsrunning with the land. But con-

fusion was inevitable becauseboth do, ordinarily, run with theestate in the land.

Hence, as regards covenantsfor title, the idea originated, andgained regrettable establish-ment, that there must be an es-tate with which the covenant canrun. Since a mere possessoryestate is good against the worldgenerally, a transfer of posses-sion has been generally held suf-ficient, and some courts have

held the condition satisfied if thecovenantee takes possessionbecause of a worthless deed, orotherwise acquires possession,even after the grant and cov-enant, although it is not trans-ferred in the literal sense. On theother hand, if the grantor has noteven a wrongful possession totransfer, so that there is an ut-ter failure of title (covenant by a

stranger to the title), there is norecourse against him by a sub-sequent grantee who needs theprotection of the covenant of warranty or of quiet enjoyment(or of seisin, if its classificationas in praesenti could be over-come). To refuse him relief in

these cases while giving it inthose above mentioned is tomake the covenantor most se-cure, as critics of the doctrinehave often said, when he is mostat fault.

By allowing a subsequentgrantee to sue because rights of action have become assignable,or because a code of procedurerequires actions to be broughtby the real party in interest, orby allowing a damaged granteeto sue in the name of his grantor(and so ultimately back to thename of the original covenantee),something has been done to de-classify covenants as in prae-senti. The great weakness of these devices is that the viabil-ity of the original cause of actionendures only for the limitationperiod. A few statutes cure theevil by specific provision. Theonly adequate cure, otherwise, is

a judicial declaration that all cov-enants for title are made to pro-tect subsequent grantees in theirright to have the title supposedlyconveyed, and should be avail-able to them whensoever or how-soever needed.

In this country certain of thecovenants for title (particularlythat of warranty, but also to alesser extent the covenants forquiet enjoyment, for further as-surances, and of seisin) were

given a peculiar effector atleast it is the theory of the casesthat the effect flows from the cov-enants. If one gives a warrantydeed purporting to convey landthat one does not own, and af-terward acquires the title, this isheld to pass immediately to theoriginal intended grantee. Inabout a third of the states this isnow statutory law.

Discussions of the principleapparently confound several dis-tinct doctrines. It is not at all amatter of estoppel by deed. Itprobably originated in two doc-trines of the ancient law. One wasa personal rebutter raised by feu-dal warranty, which prevented

the warrantor or his heirs fromsetting up the after-acquired titleagainst those to whom he hadearlier purported to convey itwith warranty. But this was not aconveyance; such an effect theancient warranty never had. Itdid, however, go far beyond im-posing upon the heir mere liabil-ity in damages for breach of hisancestors covenant. The otherwas the fact that feoffments,fines, and recoveries did at com-mon law actually pass an after-acquired title by direct operationof law, and the same was true of leases. But even though theserules may be the source of thedoctrine, the covenants for titledo not suffice to explain itspresent operation. In England theoriginal intended grantee merelyholds an equity to have the es-tate when later acquired by hisgrantor. In a suit for specific per-

formance a personal rebutterraised by the covenants would beuseful; and, independently of that, the covenants are evidenceof the intent of the deed. In fact,the doctrine of title by estoppelis applied in this country notonly where all remedies growingout of warranty or of covenantare wanting, but where, in the ab-sence of covenants, it is made todepend upon intention, indi-cated by recital or otherwise.

Such cases are numerous. Inshort, the doctrine seems to be,as in England, that of an equityto have an effective conveyance,which attaches to the newly ac-quired title, and the courts of laware administrating equitableprinciples which here, as else-where, have infiltrated into thebody of the non-equity law. Thedoctrine is really not one of es-




toppel or of covenants.If an equitable doctrine, how-

ever, it is marked by inequities.The new title is put into thegrantee regardless of interveningclaims of bona fide purchasers-on the theory that they cannotbe purchasers, the title passing

instantly from the grantor, whohas therefore nothing to convey;or, in some states and under spe-cial circumstances, a court of eq-uity forces it upon him, enjoin-ing the alternative remedy of damages.

22. Wills and IntestacyA will is an instrument by

which an owner of property dis-poses of it by provisions thattake effect upon his death. Ref-erence has already been made (p.163) to the fact that only publicpolicy permits this; a policywhich has varied in the past andmay change in the future. A manmay dispose of all his propertyby will or only of a part. Althoughthe statutory provisions by whichthe law distributes an intestatesproperty are believed to repre-sent sound public policy, never-theless the courts, m construing

a will, constantly assume (withvery important results) that itsmaker intended thereby to dis-pose of all his property. This isprobably a just appraisal of hu-man nature, and an attributionto testators of the judges ownsentiments.

A will passes both real andpersonal property. The testatorfrequently refers to it as his lastwill and testament, because aninstrument disposing solely of

personalty was long known as atestament, and one disposing of realty which, as earlier noted,became possible only in 1540,and then to a limited extent (p.163)was known as a will. Tes-tamentary gifts of personalty arebequests or legacies, and giftsof land are devises.

Today, a will speaks as of themoment of death. Consequently,

its general provisions (that is,gifts of all the testators landor personalty, or all the rest andresidue of his estate) as distin-guished from gifts of specificproperty, pass both propertyowned at the moment the instru-ment is executed and property

acquired thereafter. In a fourthof our states statutes declarethat it passes property to whichthe testator is entitled at death;but the same is doubtless truein other states as a matter of con-struction. In an equal number of states statutes declare that theintent to pass after-acquiredproperty must affirmatively ap-pear; but this, likewise, is appar-ently only an affirmation of theunenacted laws requirement. Awill did not at one time pass af-ter-acquired property, and therule that it does was establishedfor personalty and realty at dif-ferent times. Problems still re-main in the law that originatedin these distinctions.

The line between wills, oper-ating at death, and deeds, oper-ating during life, is one that isnot always easy to draw (p. 426).The effectiveness of each de-

pends upon intent, and this re-quires mental capacity to per-form the particular act of convey-ance or testation in question, theexpression of free volition (un-controlled by duress, fraud, orundue influence), and its expres-sion in such manner that thecourt called upon to give it ef-fect can do so with reasonableregard to legal rules. At leastuntil very recent times, however,courts have been much less tech-

nical in dealing with a testatorslanguage than in dealing with thelanguage of deeds. Each, like-wise, may fail in whole or part if the property is needed to satisfycreditors, and the transfer of theproperty is executed under cir-cumstances which are regardedas making it a fraudulent attemptto evade their claims.

These brief generalities cover

a multitude of difficulties. Count-less wills are contested by ag-grieved relatives who allege thatthe testator was mentally incom-petent. Foolish statements havebeen made by courts that it re-quires more or less competenceto make a will than to make a

contract or commit a crime, towhich acts mental capacity islikewise a prerequisite. That de-pends upon the nature of thecontract, crime, or will in ques-tion. A particular will of a particu-lar individual is to be considered.It may be only the words, Every-thing I have to Mary. It may dis-pose of a great estate, accord-ing to a complicated plan of present and future gifts, abso-lute or conditional in nature, withmany specific legacies or devises.The competence required mustdepend upon these circum-stances. The general re-quirement is that the testatormust have had the power to re-call to mind (not proof that hedid) the natural objects of hisbounty, in particular his childrenand other near relations (or pos-sibly others who have lived withor specially befriended him),

whom he may disregard but or-dinarily does not, and must havehad a reasonably intelligentgrasp of the task confrontinghim. Proof of true general insan-ity is a disproof of testamentarycapacity. On the other hand avalid will may perfectly well bemade by one who is eccentric invarious ways, holds queer beliefson many subjects, or is even thevictim of delusions, provided thelast do not directly relate to his

acts as a testatoras, for ex-ample, when he wills money forthe maintenance of cats becausehe believes them to be the rein-carnation of the souls of his deadsisters.

Many wills are also contestedon the ground that the makerwas subject to undue influence.This is very difficult to prove ordisprove, but the instrument, if




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properly executed, will standunless the undue influence beproved. Admonitions, entreaties,continual reminders of moralduties, such as are naturallymade by those who hope for giftsconstitute neither duress norundue influence. Even if a will is

made to satisfy them (it may bechanged), and for the sake of peace, it is valid if voluntarily anddeliberately made for that end.Undue influence and fraud runtogether; either may be regardedas a form of the other. Neitherhas here any other meaning thanthat neither is present so longas the testators own volition canbe regarded as operative. If, forexample, a man lives with awoman as his wife, though in factthe marriage ceremony was in-effective, and wills his propertyto her as my beloved wife, theintimacy of cohabitation is notfraud or undue influence if thegift is made because he lovesher, not merely out of a sense of obligation to her as supposedlyhis wife, even though she knowsthe truth of their relationship.

In order to exclude fraudupon the testator through pa-

rol evidence of testamentarygifts, all wills, save for exceptionsnoted below, are required to bein writing, and to be executedwith the formalities required bystatute. The statutes of our vari-ous states differ infinitely in de-tails, and a brief statement of their requirements is impossible.In almost all states they are iden-tical for gifts of realty and of per-sonalty. It may safely be said thata will executed as follows in the

state of the testators legal resi-dence would almost everywherebe valid. The will should be writ-ten, if possible, on a single sheetof paper, folded if necessary, andif folded the pages should beused in their physical order. Thisavoids possibilities of substi-tuted sheets, and the difficultyof integrating into one instru-ment separate papers, which

cannot be fastened inseparablytogether and whose history as awhole may not be provable. Butin almost all our states extrinsicdocuments may be incorporatedinto the will if then in existenceand if referred to with sufficientparticularity to identify them sat-

isfactorily, and if their history(like that of the will) excludessubstantial danger of alterationor substitution. The testator thenshould declare that he is execut-ing his will (publication), andrequest attention to his acts. Heshould then sign at the end,which will be both the placewhere his act of composition andwriting cease and also the pointfarthest removed from the be-ginning of the composition. Heshould sign in the presence of his witnesses or acknowledge hissignature to them. If he cannotwrite, another must sign for him,in his presence and by his ex-press direction; and preferablyhis name, although a mark (andtherefore any other substitutewhich they can testify was usedto identify him as the signer) issufficient. The person signing forthe testator should sign as an ad-

ditional witness. The witnessesshould then sign in the presenceof each other, three (though re-quired by only a sixth of thestates) being safer than two. Noperson who is a donee under thewill or whose spouse is a doneeshould be a witness. In variousstates not all the foregoing actsare necessary. But if performedthey avoid various questions con-stantly arising in litigation. Someof these are: Must the witnesses

know the nature of the instru-ment? publication or acknowl-edgment of the instrument as awill is required in about a thirdof the states. What is the end of the will, at which, in a third of our states, he must sign? itdoes not matter if the physicaland the literary end coincide. Dothe witnesses attest thetestators act of signing his hand-

writing, or the general progressof the transaction?they can tes-tify to all if they identify the in-strument as one that they sawprepared. Do they attest by tak-ing mental note or by subscrib-ing ?in any event, in more thanfive sixths of the states they

must subscribe, and thus theyidentify the document.

At common law a will dispos-ing of realty was not effectiveunless it satisfied the require-ments of the state wherein theland was located; whereas a willdisposing of personalty was re-quired to satisfy the require-ments of the law of the testatorsdomicile at the moment of hisdeath. These requirements arecodified in the statutes of, appar-ently, only nine states. In theother states these rules havebeen greatly modified by statute.There is, in them, a good chancethat either realty or personaltytherein located will pass by a willwhich satisfies the law of theplace of execution. And half of all the states will give effect to awill that satisfies the re-quirements of either the statewhere executed or the state of

the makers legal residence.A codicil implies an existingwill, to which it is a supplement.In general it has the effect of redating the will to which it re-fers as of the codicils date; sothat it validates an ineffectivelyexecuted will, or, if extrinsicdocuments referred to in a validwill were not successfully incor-porated because not then in ex-istence, they are successfullyincorporated if in existence when

the codicil is executed. However,the redating is not applied for allpurposes. In general an instru-ment is not a will unless it con-tains provisions disposing of property (and the same is trueof a deed), for such is the in-tended nature of a will. In gen-eral, too, a codicil is a will,though merely ancillary to andin aid of another. But a codicil




that merely names an executorhas been held to be a will; itwould seem, properly.

No court of probate or equityhas an admitted power, asidefrom statutes, to correct mis-takes in wills, and statutes con-ferring such jurisdiction exist in

only an eighth of our states. How-ever, without statutory authorityvery many mistakes are cor-rected by indirection under theguise of constructions of the lan-guage used.

In more than a third of thestates (southern and far-western)most of the ordinary require-ments for the execution of willsare inapplicable to one which iswholly in the testators handwrit-ing (holographic). Oral wills of personalty (but in all save onestate of personalty only) are alsopossible in two-thirds of ourstates, and in others as respectssoldiers and sailors, for the dis-position of small amounts. Suchgifts must be declared to severalwitnesses who commit them towriting shortly thereafter (nun-cupative wills).

Properly speaking, no instru-ment is a will until its maker is

dead, leaving it as the last ex-pression of his volition re-specting the disposition of hisproperty after death. Had it beenpossible to confine the word tothis meaning, there would be norevocation of wills, merely de-struction of drafts; and no ques-tion whatever of revoking andthen reviving a will. But thecourts, like laymen, give thename will to anything formallyprepared as a will

Hence, a will may be revoked,by destroying it, or by acts fall-ing short of destruction but sug-gesting, and supported by ad-equate evidence of accompani-ment by, the withdrawal of tes-tamentary volition, as by incom-plete burning, partial tearing, orby writing across its face can-celled or words of equivalentmeaning. It may also be revoked

by a later will or codicil with aclause revoking earlier wills, orby one without such a clause butwhose provisions are wholly in-consistent with those of the first.If not wholly inconsistent, thetwo instruments are treated asconstituting, together, one will,

and effect is given to both so faras possible, the later instrumentprevailing when they conflict. Infive sixths of our states a will canalso be revoked by a later writ-ing; even though not a will (forlack of dispositive provisions),which is executed as a will isexecuted and declares the revo-cation. In an equal number of states it is necessary to revoke awill and codicils separatelythatis, revocation of the former doesnot necessarily revoke the latter;and the same is true of duplicatecopiesit is unsafe to leave anyone in existence.

Once revoked, a will can onlybe revived, in a score of states,by formal re-execution. In theothers there is a welter of con-tradictory views as to whetherthe revocation of a revoking in-strument restores testamentaryintent and validity to the one that

had been by it revoked. The onlysafe way for a testator lies in re-execution. It is the cases in whichhe fails to do so that come be-fore the courts.

Wills are often revoked, ortheir operation curtailed, by lawbecause of changes in the cir-cumstances of their makers af-ter their execution. The will of either a man or a woman is re-voked, under statutes, by meresubsequent marriage, or at least

defeated to the extent necessaryto provide for the other spouse,in over half of the states; andunder common law principlesboth are voided (under slightlydifferent circumstances as re-spects the mans) in other states.Children born before the will butunmentioned in it, children bornthereafter, and children bornposthumously are protected by

statutes in many cases; the willbeing modified to the extentwhich provision for them re-quires.

In nearly two-thirds of thestates revocation of individualclauses or words of a will is al-lowable by any of the methods

by which the whole will is revo-cable. This power is generallybased upon interpretation of statutes which in terms merelyforbid partial revocation other-wise than in the manner indi-cated. In other states partial re-vocation by subsequent instru-ment is allowed, but not by merephysical change of the originalinstrument.

Women, single or married,have the same testamentary ca-pacity as men. Testamentary agevaries from the age of fourteento twenty-one; it is different inmany states for men and forwomen, in some it is different forrealty and for personalty, and ina few it varies for single and formarried persons.

The rules referred to aboveregarding children, and the re-cent great increase in inheritancetaxation, indicate a plain ten-

dency to restrict freedom of tes-tation. However, the above stat-utes regarding children do notapply if the will evidences bymention or otherwise an intentnot to provide for them, unlesspossibly in twelve states (includ-ing Louisiana, where the civil lawthere prevailing makes this acertainty) some actual provisionmust be made for the after-bornchild. In general a father may dis-inherit his children.

Wills are used only by per-sons whose property is of con-siderable value. Only a very smallfraction indeed of the populationdie testate. The average of es-tates left by intestates is alsovery small.

Statutes in every state regu-late the devolution of propertywhose owner dies intestate. In athird of our states separate stat-




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utes regulate the descent of re-alty to the heirs, and the distri-bution of personalty among thenext of kin, of the decedent.Since primogeniture and distinc-tions between males and femalesdisappeared, there has been littledistinction between heirs and kin

as beneficiaries, and little reasonfor separate statutes regardingthem, or for such differences asthe statutes preserve. Such dif-ferences, and also such antiqui-ties as ancestral property still re-main, however, in some states.An infinitude of distinctions ex-ists as respects the fractionalshares given to identical benefi-ciaries in standardized familysituations, the ascendants whoare allowed to share, the treat-ment of mother and father, of relatives of the half-blood, of adopted and illegitimate chil-dren.. As regards such children,special statutes provide in somestates that they shall be under-stood as included, or prima fa-cie included, when testamentaryprovisions are made to chil-dren.

Not much has been done to-ward modernizing the law of in-

testacy. Abundant legislation,and rather generous treatmentthereunder, of husband and wifeas statutory heirs, and a plaintendency somewhat to limit (butas yet not greatly) the power todisinherit children, have been thetwo most notable trends in re-cent decades.

23. Powers of AppointmentA person may, in disposing

of his property by deed or will,

give to another person by properwords in the instrument an au-thority later to alter or to supple-ment the dispositions which hehimself provisionally or partiallymakes. This authority is a powerof appointment. Its existence isevidently dependent upon ourlaws unique provisions for thedivision of ownership among theholders of a series of estates (p.

182). The exercise of such pow-ers involves the creation of es-tates in futuro, or the cuttingshort of existing fees simple inland or absolute titles to person-alty, which (as regards land)could not be done before thepassage of the statutes of uses

(1535) and of wills (1540); andthe idea is consequently preva-lent that powers only becamepossible after their passage. Infact, however, powers existedmuch earlier. The scope of theiroperation was merely vastly en-larged by those acts in makingpossible appointments operativeby way of executory limitations;and it has already been seen that,as regards deeds (for as respectswills there has never been adoubt), any dispositions of prop-erty effected by way of usesshould in this country be pos-sible by employing deeds oper-ating independently of uses (p.412).

Their exercise is no more objectionable, as regards the inter-ests thus cut off or modified,than are executory limitationsotherwise created. On the otherhand they have the very great ad-

vantage to the donor of thepower who may (in particular)wish to provide for children andgrandchildren, of permitting himto choose a person in his con-fidence (the donee of the power)who can in the future, usuallyafter his death, make such alter-ations of the original disposi-tions or such provisions supple-mentary thereto, as births ordeaths, marriages, financialgains or reverses affecting the

objects of his bounty, or furtherevidences of their aptitudes orcharacter, may dictate. Althoughthe desirability of powers hassometimes been denied, theiremployment in this country, un-til recently slight, is rapidly in-creasing. One enthusiast hasdeclared, justifiably it wouldseem, that the power of appoint-ment is the most efficient dis-

positive device that the ingenu-ity of Anglo-American lawyershas ever worked out . . . the an-swer to more of the problemsthat face the draftsman of willsand trusts than any other de-vice.15 On the other hand, morethan a century ago, the revisers

of the New York statutes de-clared of the abstruse commonlaw doctrine of powers (displacedin only a few of our states by sim-pler statutory systems) that itwas probably the most intricatelabyrinth in all our jurispru-dence.16

Nothing of its intricacies canhere be referred to.

A power is general if thedonee may appoint to anyone,including himself. It is specialif appointees must be membersof a particular class (such as chil-dren). The power may be un-qualified as respects the estatesthat may be given to appointees,or it may be conditioned; and theappointments may be condi-tioned or unconditioned as re-spects the estates actually given.Thus, extraordinary flexibility ispossible in schemes by whichproperty is disposed of.

A power may be exercised(and of course best) expressly. Itmay be exercisable by deed only,by will only, or by either. It maybe exercised, if so intended byits creator, by an instrument ex-ecuted earlier than that whichcreates the power. It may be ex-ercised by implication. This veryeasily gives rise to litigation. Thecommonest question is whethera general power has been exer-cised, without specific reference,

by a general bequest or devise,or by a residuary clause of thedonees will. In various statesthis is, by statutory declaration,an exercise. The majority rule inthe absence of such a statute,though with much division of opinion, is that there is no exer-cise unless intent affirmativelyappears to exercise it. Since thestatutes mentioned are reactions




against this view, the tendencyis evidently against its mainte-nance.

Equity has played an impor-tant part in litigation concerningthe exercise of powers. Al-though, as above noted, con-ditional appointments may be

permissible, in general a poweris only exercisable uncondition-ally and strictly according to itsterms; moreover, the confidencereposed in the donee of a spe-cial power is of a fiduciary char-acter. Consequently, courts of equity rather closely control theacts of the donee. Thus, if theappointment is merely exces-sivethat is, transcends thepower conferred (as when apower is to appoint among chil-dren and an appointment ismade to the issue of dead chil-dren)the excess is void. But if the appointment is made undera bargain for the donees owneconomic benefit (as upon con-dition that his debts be paid bythe appointee), or otherwise es-sentially for his own ulterior pur-poses, it is voided as being afraud on the power. If the do-nee holds a special power (as, for

example, to appoint the remain-der following his own life-estate)and the donor fails to limit theremainder in default of appoint-ment, the class of possible ap-pointees are said to be entitledto have the power exercised (ora trust is said to exist in theirfavor), and if the donee dies with-out appointing, a court of equitywill exercise the power.

It has been noted as a rulesustained by the great weight of

authority that powers to disposeof property, given to a personholding a limited estate therein,do not enlarge that estate. Thepower is not property. Neverthe-less, property subject to a gen-eral power may be property of the donee for purposes of taxa-tion, and assets for his creditors.On strict theory, under the olderlaw, even property subject to a

general power was not thedonees assets even when heexercised it, if he appointed to astranger, for he had no title ei-ther before or after he made anappointment. But the pressure of the taxing power, and a generalpolicy in favor of compelling a

man to pay his debts (notwith-standing the increase of spend-thrift trustsp. 387), coupledwith the fact that the holder of ageneral power can appoint tohimself and is therefore morallyobligated to do so in order tosatisfy creditors, have repudiatedthat theory and led to results,both as respects taxes and insol-vency, which ignore the theoreti-cal nature of the power. Undermost of the state taxation stat-utes such property is taxed asthough it were owned outrightby the donee. Under most of them, also, it is included in adecedents estate, for purposesof inheritance taxation, regard-less of whether it passes as a re-sult of exercising the power orbecause the donee fails to exer-cise it. Likewise, even the specialnature of the power is more orless ignored. The Federal estate

tax statute, however, appliesonly if the power is general andhas been exercised. The Federalprinciple applies to any testa-mentary exercise of a generalpower, and to any exercise bydeed under which the appointorretains a life enjoyment for him-self or for another person whomhe reserves the right to name.Moreover, the principle appli-cable to general powers, what-ever it be in a given jurisdiction,

may be held applicable to apower under which possible ap-pointees are not clearly a defi-nitely limited class. Such inclu-sive words as relatives or chari-ties are dangerous.

Aside from possible excep-tions in the foregoing specialcases of taxation and creditorsclaims, upon the exercise of apower the appointee (unless stat-

utes have altered the commonlaw) takes title from the donor,not from the donee. Thus if Adevises to B in fee for such per-sons or purposes as he shall ap-point, and in default of appoint-ment to B and his heirs, and B bywill appoints to C for life, remain-

der to Cs children, these areread as the provisions of As will.Bs wife has no dower, becauseof Bs relation to the property. If the donee appoints by will, andthis is done as a stranger to thetitle (the power collateral), in fa-vor of another stranger, the ap-pointment is not a devise orlegacy of the appointor and is nottaxable as such, since it is a giftto the appointee from the donorof the power. And if property islocated in state X, where itsowner is domiciled, and he by willgives the power to a resident of state Y, the latter state cannottax the property upon his exer-cise of the power, even thoughhe subjects it to the payment of his own debts; for X controls theproperty within its borders, andby its law the donees appoint-ment is read as a provision of thedonors will made in X.

Validity under the ruleagainst perpetuities (except, ap-parently, in one state) is likewisedetermined by reference to post-ponement of vesting from themoment of As deaththat is,from the time of the powers cre-ation, and not the time of its ex-ercise. But, first, a gift in defaultof appointment is (by long hold-ing) a vested gift, free from therule; and the actual appoint-ments above supposed are also

valid if C was living when A died.There is a doctrine that per-formance of a power given by Ato B may be delegated by B to C,and so on. Suppose, then, that Aleaves property to his son B forlife, remainder to such of Bs chil-dren as B shall appoint, and givesauthority to B to delegate thepowerand B appoints similarlyto C and his childrenand so on




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with C and D. It is then appar-ent: first, that no Federal trans-fer tax is paid except the firsttime, the successive powers be-ing all special; second, that theestate is tied up more tightlythan by a strict settlement (p.192). Moreover, it is authorita-

tively estimated that if the suc-cessive donees choose astutely(but perhaps also very luckily) thelives by which to satisfy the ruleagainst perpetuities (all of whichmust have been in esse when Adied) the limitations under Aswill can be stretched over a pe-riod of more than a century. Af-ter that, a fresh start must bemade.

Powers may be employed toturn many hard corners in thelaw. Their future probably holdsa large measure of control or cur-tailment.

24. Fraudulent ConveyancesReference has earlier been

made (p. 74) to the growth of creditors rights against theproperty of their debtors, and theremedies by which those rightsare made effective.

Creditors also have rights in

some cases to proceed againstproperty of which their debtor isno longer owner. Title transfersof both land and personal prop-erty are subject to cancellationon behalf of creditors under doc-trines regulating fraudulent con-veyances. They originated,substantially, in two statutes of 1570 and 1584which pro-tected, respectively, existing andsubsequent creditorsthat werepart of the common law of our

colonies. Independent legislationon the subject began in thiscountry in colonial times andexists in all the states. Moreover,a Uniform Fraudulent Convey-ances Act prepared by the Com-missioners on Uniform StateLaws has been adopted intwenty-one states.

A conveyance is not fraudu-lent unless made gratuitously or

for inadequate consideration andwith an intent to delay, hinder ordefraud creditors. The intent isa question of fact, determinablefrom the circumstances, exceptin certain cases in which, at leastunder the Uniform Act, the con-veyance is inherently or neces-

sarily fraudulent. Under that Act,also, conveyance, creditor,and debt have very broad mean-ings.

The statutes, following thatof Elizabeth, generally declare afraudulent conveyance void. Infact it is valid between the par-ties, and until it is annulled byaction of a creditor (or perhapsuntil notice is had of the initia-tion of a creditors suit for thatpurpose) it binds third persons,such as warehouse-men, whoseposition is one of privity and sub-ordination to the principals. Bythe weight of authority, also, acreditors judgment secured af-ter the conveyance is not a lienon the land. By the weight of au-thority neither legal nor equi-table remedies are allowed, how-ever, for enforcement of execu-tory portions of the transactionof which the conveyance is a part.

The conveyance is merelyvoidable by creditors. A creditormay be estopped to attack theconveyance if he has recognizedit by some unequivocal act uponwhich others have relied or maystill rely. Otherwise he may at-tack it, but it stands unless at-tacked; and the right to avoid itis not one that can be assigned.The creditors of the fraudulentgrantor are protected if they act.But if, while no such creditor at-

tacks the conveyance, creditorsof the grantee secure a holdupon the property by attach-ment, levy, or in bankruptcy pro-ceedings, such actual seizuregives them priority over the in-active creditors of the grantor.This, however, is not because of estoppel, but because they havegained a real or substantive rightin the property prior in date to

any move by the grantors credi-tors to acquire such.

It is general creditors who areprotected; that is, (subject toslight qualification below) thosewho have no lien upon thedebtors property otherwise thanthrough a judgment based upon

his personal liability, or, in addi-tion, an execution issued pursu-ant thereto. But a secured credi-tor, though disqualified to attacka fraudulent conveyance so longas his lien upon specific propertyof the debtor presumptively doessecure him, becomes a generalcreditor after exhaustion of thatsecurity, and with the right toshare as such in general assets.The creditors of the fraudulentgrantor who are protected, maybe either present or subsequentcreditors. They are presentcreditors if their rights had ma-tured before the conveyance;subsequent, if their rights ma-ture thereafter. The Uniform Actexplicitly recognizes the formeras having the privilege of enforc-ing their rights against the prop-erty by remedies either legal orequitable in nature; and the lat-ter as having equitable remedies

immediately available. The legalremedy is to levy directly uponthe property as an available as-set (orwhich is very rarelydonesue the transferee fordamages if he acted collusivelywith the debtor). It is evidentlypossible to say that such proce-dure assumes the voidness of the conveyance, but it is equallypossible to say that the levy ismerely the means by which anavoidable transfer is avoided. If

the property is land in one of thevery few states where an execu-tion against land is not allowed,a creditor holding a judgmentsecured after the fraudulenttransfer resorts to equity to havethe conveyance nullified, andforecloses the lien then acquired;whereas, if his judgment lien an-tedated the transfer he merelyforecloses his lien. If the property




is intangible personalty the rem-edy will necessarily be equitablein nature, unless under a statute.The equitable remedies allowedthe subsequent creditor by theUniform Act are to restrain dis-position of the property (and havea receivership if necessary), and

to have the conveyance annulled.The Uniform Act does not re-

quire the attacking creditor tohave secured a judgment. Wherethat Act is not in effect the statesare divided as to whether theremust be a judgment only, or alsoexecution issued, or even execu-tion returned as unsatisfied. Atleast a judgment is required bythe great majority. By traditionalview, mere creditors have neverbeen regarded as holding a le-gal real right, or substantive in-terest, in their debtors property,and equity has never in this fielddone more than aid in the en-forcement of the legal rightwhich a judgment creates. To-day, a judgment seems essentialin a Federal Court sitting in astate requiring it. But this is per-haps inconsistent with the allow-ance of attachment or injunctionto prevent the consummation of

a fraudulent conveyance, or toprevent a possible second trans-fer to a bona fide purchaser dur-ing suit against the debtor (pen- dente lite), and probably in con-sequence of this inconsistencyten states do not require that thecreditor shall have reduced hisclaim to judgment.

The object of all proceedingsin aid of creditors is to put themin the place of the debtor, andtherefore any property that he

could transfer is included in theassets available to them (p. 184),provided it be not (like the home-stead, tools, etc.p. 76) exemptfrom liability for debts. Althoughchoses in action were not origi-nally subject to levy, they havebeen so for a century or more, andcome within the fraudulent con-veyance acts of most jurisdictions.

25. The Recording SystemIt is a mistaken idea, occa-

sionally encountered, that therecording system is some sort of an expansion of the doctrine of fraudulent conveyancing, ororiginated in the doctrine of Elizabeths statutes above re-

ferred to (p. 461). Without anydoubt it was realized from thebeginning that the recording of conveyances was a substitute forfeoffments (p. 408); that is, wasa new method of eliminating se-cret conveyances. It must fromthe outset have been realized,since the fact was patent, that itwas a vastly improved substitutefor livery in its publicital aspect,long before the passage of theEnglish Statute of Frauds in 1677made the charter of feoffment afeoffment deed that displaced liv-ery of seisin (pp. 406-07). Our de-veloped recording system of to-day protects in some jurisdic-tions, and in others does not pro-tect, creditors of one or anotherclass, but this was not all an ob-

ject of our earliest statutes. Theobject was to protect a subse-quent grantee against a dishon-est grantor and his earlier

grantee to whom he had giventitle by an unrecorded and secretconveyance. This second would-be acquirer of the title is called,as laymen would call him, a pur-chaser; but it is clear that in lawhis position was very near thatof a creditor from whom a debtorwrongly withholds a definite sumof money, the purchase pricepaid for a title that fails. Even if the law had not very early, by theremedies conceded to him, ac-

cepted that theory, he must havecome to be generally thought of as a creditor. For that reason,among others, it was from the be-ginning a certainty that in timethe protection given to purchas-ers should be extended to credi-tors. Although, incidentally,creditors have been givenconsiderable protection underthe recording acts, they receive

it on a totally different theorythan that which underlies thedoctrine of fraudulent convey-ances, having nothing to do withan intent to hinder or defraudthem. The ancillary con-sequences of the two doctrinesare therefore different.

They differ also in that therecording system, unlike the doc-trine of fraudulent conveyances,is very largely confined to land.In the case of an ordinary saleunaccompanied by transfer of possession the common lawmade the separation of title andpossession evidence of presump-tive fraud. Legislation makingsuch sales invalid against subse-quent purchasers or creditorsunless the bill of sale was re-corded began a century ago. Ex-cept in a few states, however,there was still no such specificlegislation before the introduc-tion of the Uniform Sales Actthirty years ago, although insome other states, by statute or

judicial decision, the commonlaw rule had been altered bymaking the presumption of fraudconclusive when delivery was fea-sible. There is no need to record

true pledges, because in themthe possession of the pledgeegives notice. But by abundantlegislation, much of it old, unre-corded conditional sales or chat-tel mortgages were made ineffec-tive against subsequent purchas-ers and creditors. This was gen-erally true of both, but not al-ways, since the statutes some-times dealt differently with them,either because legislation was of different dates or because in

some states the former is a con-veyance of title, and the lattercreates merely a lien. Under theUniform Conditional Sales Actthe distinction disappears, sinceeither instrument is ineffectiveunless recorded; unless, indeed,that result is avoided when no-tice is given by the actual trans-fer of possession to the vendeeor mortgagee. An anomalous




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pledge, without transfer of pos-session, is similarly treated. Thecreditors protected under all thislegislation are judgment or at-taching creditors. It is, in general,limited in application to corpo-real chattels, but the tendency inrecent decades has been to in-

clude choses in action within itsscope; Bailments are almost no-where included.

The recording system is theproduct of three centuries of ex-perience. All the colonies had re-cording acts before the Revolu-tion, and perhaps half of thembefore 1700. Public land records,probate and other judicialrecords showing transfers bydevise or descent (the few thatare revealed by public recordsp. 476) or by decree of court, andrecorded conveyances of titleconstitute together a vast massof undigested, unsummarized,relatively inaccessible materialsfor the history of titles. It hasbeen seen that recording is notessential to the effectiveness of a deed as such, and but for itsspecial effects now in questionthe deeds recorded would be nomore than a collection of private

documents in official custody.Under the recording acts a deedstill binds the parties to it andtheir privies (heirs, devisees, andassigns), and also such personsas are not protected by the policyof the recording acts. But by thatpolicy, and by the official char-acter of its recording and cus-tody, it acquires qualities of adocument partly private, partlypublic. By their combination,proofs of land titles and their

conveyance are made to depend,virtually without exception, uponwhat is discoverable by searchesin the record office.

The statutes vary greatly indetails, but with respect, prima-rily, to three matters. The first isthe time of filing. In some statesthe grantee is given a limitedtime to record before which histitle cannot be cut off by a sec-

ond transfer to a bona fide pur-chaser for value. In most statessuch a purchaser is protected im-mediately against the first con-veyance unless recorded. Thesecond is the nature of the instruments that are recordable.The omissions under this head

will be noted below as a defectof the existing system. Positivelyspeaking, there seems to be avery general agreement in per-mitting or requiring the recordof practically all instruments bywhich either a legal or an equi-table title may be conveyed orincumbered; also, instrumentsmodifying, assigning or releas-ing mortgages thereon.17

This indication of the generalnature of instruments which areregarded as needing the protec-tion of the acts likewise indicatesthe persons who are protected.In the earliest American statute,the Massachusetts Act of 1640,it was provided that the unre-corded instrument should be in-effective against any other per-son, and this or similar languagewas formerly more common inthe statutes than it is today. Atan early date, however, it became

a settled policy to construe allacts, however worded, in the ab-sence of a broader meaning ex-pressly stated (that is, if possible), as protecting purchasersonly: also, though the broadphrases above quoted wouldcover prior purchasers, only sub-sequent purchasers; and again,purchasers who give value, andgive it in innocence of the priorunrecorded instrument. For anoriginal protection of all persons

there was substituted protectionof equitys favorite, the bona fidepurchaser for value. These weremanifestly changes of the mostfundamental character, and pos-sibly they originated in judiciallegislation; we do not knowenough of colonial legislation tobe certain. At all events, laterstatutes adopted them. Stillother characteristic limitations of

the system resulted frominterpretations of the word pur-chasers. All creditors werenecessarily excluded (unless in-cluded explicitly in addition topurchasers) because they holdno real rights in their debtorslands; for even the so-called

judgment lien of a creditor isnot one that gives a claim to spe-cific property. Assignees forcreditors stood on the same foot-ing. Nor could persons takingproperty by devise or inheritancebe classed as purchasers (cf. p.III). Finally, the subsequent pur-chasers who are protected arepurchasers from A, and they areprotected only against unre-corded transfers made earlier by A, but only after he became therecord owner of the land. In otherwords, nobody can claim protec-tion as a purchaser of the landfrom one who is a stranger to thetitle by or through which A claimsit, whether that be good or bad;nor as a purchaser from some-body who appears on the recordactually to hold the very titleclaimed, and assumedly con-veyed, by A. The law providesother facilities for the trial of

such rival claims. The recordingacts are not concerned withthem.

Purchasers include, of course, the transferees of anyestate in the land, from leaseholdto fee simple, possessory or non-possessory; also, very generally,mortgagees and assignees of mortgages; persons who by re-demption from such or otherincumbrances are subrogated tothe rights of the former holders

of those interests; and buyers atexecution and judicial sales. Inonly a third of the states arethose protected purchasers tothe exclusion of creditors, thelatter being protected in twothirds. But their protection issubject in some states to theirfirst recording their judgmentsor execution; or to the require-ment that the judgment debtor




be the record owner of the land.In practically all save three orfour of the states protectingcreditors, also, they must bewithout notice, either by statu-tory requirement or (where thatrequirement exists as regardspurchasers) by judicial holding

and on the question whetherpossession of the land by thegrantee under the debtors un-recorded conveyance is noticethere is much division of author-ity. A creditor who buys at hisown execution sale is generallytreated as a purchaser, and forvalue. Creditors may also some-times be protected against priordeeds that are withheld fromrecord with fraudulent intent;but this protection is not due tothe recording acts.

The operation of the statutes also varies. The general principleis that an unrecorded deed isvoid as against certain persons.But this is applied in three dis-tinct ways. In three or four statesthe second instrument, if first re-corded, gives priority regardlessof good faith. This view, which isthat with which our statutesstarted, was generally nullified or

deflected long ago by equity,which made him who thus gainedtitle a trustee for the grantee un-der the later recorded instrumentof which he had notice at thetime of his own earlier recording.In another small group of statesit is held, at the other extreme,that the subsequent purchaser(etc.) who is protected must bothhave taken his claim without no-tice and must have first recordedit. In the very great majority of

states protection is accordedonly to one who had no notice,but priority in recording is notrequired. As between the last twoclasses, therefore, the differenceis that in the third the granteeby the first conveyance prevailsonly if he records before the sub-sequent purchaser consum-mates the purchase (or other actentitling him to protection),

whereas, in the second group of states, he need only record be-fore the subsequent innocentpurchaser records.

Something more may be saidof the conceptions of noticeand of priority.

The former (or its equivalent,

good faith) is, as above noted,a general requirement, eitherstatutory or judicial. Many formsof notice have been importantboth in the equity and the non-equity law. Constructive notice,as ordinarily used, means thenotice which arises from such ahint of adverse claims as puts thenoticee upon inquiry, and holdshim by irrebuttable presumptionto have acquired (i.e., he istreated as if possessed of) theactual knowledge which reason-able inquiry would have gained.Such notice is received, for ex-ample, by seeing someone inpossession of land who shouldnot prima facie be there. But thisnotice must operate varyinglyupon other persons in propor-tion to their familiarity with theland and its normal occupants,as is very manifest in cases of adverse possession. Construc-

tive notice is also given by pend-ing litigation (lis pendens); andthrough the dispositive provi-sions, and to some extent therecitals, of ones chain of title-deeds. These principles of noticegenerally continue to apply inaddition to those that rest uponrecordation; so that, for example,the purchaser must not onlysearch the record but make surewho is in possession of thelandthe holder of the unre-

corded deed being secureagainst divestment, in states tak-ing this view, if in possession.

Priority is used in severalsenses. When 0 gives a deed toA and afterward gives anotherdeed to B, there is no questionof priority. That word assumestwo existent competitive inter-ests; but B simply has nothing,since 0 had nothing left to give

him. In courts of chancery theapplication of the principle priorin time is stronger in right toseveral existing equitable inter-ests of the same rank (for if of different rank, of course thehigher prevailed) was likewisecommon. Notice had nothing to

do with this situation any morethan with the legal one juststated. In one sense, no questionof priority of title is involved insimilar facts under the recordingacts; for B, if a purchaser forvalue in good faith (because helacks constructive notice in thatthe first deed is not recorded,and also lacks actual notice) getsthe title because A is simulta-neously divested of his actualearlier title. However, since thishappens because under the lawB is conceded a better or a priorclaim to the title, this preferenceis naturally called a priority.

A complication of recordingdoctrines by the above doctrineshas naturally resulted whentaken in conjunction with the factthat chancery subordinated amere equity to a legal title takenin good faith and for value. Forsince a later claim to the legal

title is preferred under the re-cording acts to the earlier actualtitle-in other words, the lattertreated as no better than an eq-uitable interestcourts haveconstantly spoken as if it wereonly an equity. In addition, someold doctrines of notice are pre-served intact in the recordingsystem. For example, the con-structive notice derived from dis-positive provisions and recitalsin ones chain of title deeds; like-

wise the equitable principle thata transferee of any interest, le-gal or equitable, even for valu-able consideration, with notice of a prior equity of any rank out-standing in a third person andqualifying the title in thetransferors hands, takes subjectto it since, having notice, he canhonestly take only what histransferor could honestly convey.




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Nevertheless, the doctrines of notice under the recording sys-tem are sui generis. The greatnovelty is the introduction of notice by record, as a new andmuch the most important formof constructive notice. Purchasefor value and purchase in good

faith were creations of chancery;but their combination in the re-cording system and the deter-mination of bona fides by thatsystems test of notice opened avastly greater field for the appli-cation of the equitable doctrines.The questions of title which ariseunder the recording acts arequestions of law, and are triedin a law court. As just stated, thefirst deed creates no equity, buta legal title.

The statutes, speaking gen-erally, either declare or are con-strued to mean that proper re-cording of the deed gives con-structive notice of its contents tosubsequent purchasers (etc.),who therefore cannot be bona fide purchasers for value. How-ever, as above noted, the recordis constructive notice of onlythose matters of which actualnotice can be gained by reason-

able examination of the record.The subsequent purchaser whois protected against an earlierunregistered grantee is, there-fore, one who claims with himunder a common grantor. Nec-essarily so, since it is only thelatter who, in favor of the latergrantee, can divest the title of theearlier. And justly so, since therequirement is thus satisfied thatthe deed of which constructivenotice is alleged must be reason-

ably discoverable by the subse-quent purchaser when he tracesthe links in his chain of title.There is notice only of instru-ments needed to prove his title;not of the independent and ad-verse title-chains of othersshown by the recordsince, un-less there is some grantor com-mon to the two chains, a searcherwill not pass (assuming that

there is no tract-index) from oneto the other. For the same rea-son the purchaser is not gener-ally held bound by recordeddeeds of a grantor in his owntitle-chain that were given beforethe date at which the recordshows him to have become the

owner. The contrary view violatesthe general equities of the re-cording system. To adopt it is tosacrifice one who reasonablysearches to one who, withoutsuch search, took a deed fromanother who had no title. Thatis, the purchaser traces back-ward to an original title, usuallya government patent; but, as re-spects each grantor in his title-chain, is bound to discover allconflicting conveyances made byeach while actually holder of thelegal title.

Subject to the precedingstatements, the chief character-istics of the present recordingsystem are six. (1) The. instru-ments recorded are, primarily,deeds. (2) They are recorded asinstruments which have alreadytransferred the legal title (al-though the fact of recordingsometimes is evidence of the ear-

lier delivery by which the convey-ance was consummated, p. 420).(3) The instrument presented forrecording must, in order to giverise to the peculiar effects of re-cordation, satisfy all statutoryprerequisites for recording, andin particular, it must be acknowl-edged. But if entitled to recorda-tion and recorded, two conse-quences follow. First, (4) therecord acquires exceeding im-portance as evidence, taking the

place of the original instruments,which therefore cease in thiscountry, barring destruction of the registry, to have importance.Secondly, (5) which is the activeprinciple of the recording acts,the mere fact of recordationgives a later prospective pur-chaser (etc.) of land constructivenotice of the legal effect of anyearlier deeds, inconsistent with

the title offered to him, whosemakers are included in the chainof grantors through whom hemust trace his title; and, to alesser extent, of the legal effect,likewise, of other deeds whosepurport is recited or which arereferred to in his chain-of-title

deeds. And finally, (6) the resultof such notice is to prevent alater deed from passing title if a prior inconsistent conveyancestands already on the record,unless (in five-sixths of thestates) the taker of the secondinstrument, when he took it (orsecured the judgment, or levy,etc.), was without actual noticeof the earlier conveyance and itwas not then recorded. Once abona fide purchaser for value ac-quires the title it is clear, andpasses as such to his alienee,notwithstanding notice had bythe latter of earlier unrecordeddeeds.

As already stated, prior re-cording by a subsequent inno-cent purchaser for value is gen-erally not required; but if he doesnot record, his own title may inturn be divested. The effect of the statutes is to penalize a prior

grantee who fails to record hisdeed by conferring upon thegrantor (or his heir or devisee) apower to divest the unrecordedtitle by giving title to one whobuys for value and without actualnotice. If the statute gives thefirst grantee a period withinwhich to record, recording withinthat interval prevents divest-ment, notwithstanding that asecond grantee can have no rec-ord-notice of the first deed prior

to the actual recording thereof.As respects the character of

documents to be recorded thereis great diversity in the systemsof different states. Almost no-where is there even an approxi-mation to the ideal of includingall instrumentsmuch less of in-cluding an official statement re-garding any other events andactswhich affect the title to




land under law and equity. Fewstatutes are mandatory. Few enu-merate the documents that maybe recorded. All permit the re-cording of deeds or con-veyances, or both. Hence, inpractice everywhere included aredeeds; including, of course,

those creating only incorporealhereditaments, also quitclaimdeeds, and also mortgageswhich were originally in fact andare still in form transfers of thetitle for security, although inmost states they convey todayonly an equitable lien. Wills arenot included, and although thoseprobated are available in the pro-bate office an unprobated willapparently retains its validity in-definitely. Posting in therecorders office of notices of pending litigation affecting landmay or may not be required. Aswith wills, the docket of decreesand judgmentswhich not onlyconstitute liens but may understatutes directly transfer titlesis, save rarely, a thing apart.Records of descent are never re-corded, a gap in the record thusresulting whenever an ownerdies intestate; nor are dower

rights recorded; nor authenticfacts of marriage, divorce, and re-marriage; nor titles acquired byadverse possession and prescrip-tion; nor the parol acts followedby expenditure of money whichmay in various states create ease-ments (irrevocable licenses),nor the parol acts that extinguisheasements; nor those that con-stitute surrender of a leaseholdby operation of law; nor the factthat particular land is at a par-

ticular time a homestead. As re-spects assignments for creditors,assignments of mortgages, con-tracts for the conveyance of land,contracts that result in cov-enants binding the land at lawor in restrictions enforceable byequity, short leases, UnitedStates patents and certificates,the sheriffs temporary certificateto an execution purchaser, tax

certificates, caveats, and manyother matters, practice varies.Sound policy dictates the utmostpossible extension of the system.A few states permit the record-ing of thirty or forty types of in-terests. In such cases only canthe system possibly approach in

its operation the ideal of show-ing a complete history of the titleand of thereby giving security tothose who rely upon it.

Moreover, in addition to alldefects of omitted interests,there are the ever-present dan-gers of the grantors mental in-capacity, because of insanity orinfancy; of the invalidity of ac-knowledgments, by allegedwives who in truth are not such,or before notaries who are forsome reason incompetent; andof forgeryand it is to be remem-bered that the original instru-ments do not remain in publiccustody.

Again the indexes are theonly key to the records, and theyare of two types. Normally, in-dexes are of the names, alpha-betically arranged, of grantorsand grantees (sometimes sepa-rately for each type of document

recorded); and the title-ab-stracter searches backward fromthe name of the grantor fromwhom the prospective purchaserproposes to take a conveyancethrough successive grantee-grantors to what is relied uponas an original title. Very few in-dexes are what all should bethat is, tract indexes; for theindexing of all recorded matterunder the parcel affected therebywould vastly simplify record

searching. Professional title ab-stracters throughout the countryhave habitually developed suchtract indexes for their privateuse; and some cities and statesuse this system. When a deed isreceived for recording it shouldbe indexed first, notice then aris-ing of the contents of the deed,and the index remaining part of the record until the deed is cop-

ied. Unfortunately, it has oftenbeen held that notice exists fromthe moment that the recorder re-ceives the deed to be recorded.

In the vast majority of casestransfer of title, even with littlescrutiny thereof, is doubtlesssafe. But the defects of the sys-

tem, above noted, must makeminor errors very numerous. Oneauthority has declared that theonly thing that makes our oldsystem of instrument registra-tion endurable is the . . . statuteof limitations, and that registra-tion drags a lengthening chainof expense, obscurity, doubt,and danger with every trans-fer.18 When errors actually oc-cur in the record, there is nosingle, simple answer to thequestion who should sufferthereby. It is sometimes the firstand sometimes the subsequentgrantee, and the reasons givenby the courts are sometimesmerely technical, although theyare usually based on consider-ations of relative neglect that dosubstantial justice.

The system of recording title- instruments should be replacedby that of recording title the

state undertaking to determinethe true title up to date, issue acertificate of title, and thereaftersimply note on the certificatelater transfers and incum-brances. In at least nineteenstates experiments with this sys-tem (the Torrens System) havebeen proceeding since 1897; asyet with very slow, although ac-celerating, progress.

(1) Schnebly, Restraints upon

the Alienation of Legal Interests,

44 Yale L. J. 961, at 961, n. 3

(1935).

(2) Schnebly, op. cit., at 1390.

(3) Fry, L. J., in Cochrane v.

Moore, L.R. 25 Q.B.D. 57 (1890).



(4) Hayes, Introduction to

Conveyancing (5th ed., 1840), 1, 26.

(5) Problems of construction

are not dealt with in this essay.

The Rule in Shelleys Case is,

properly speaking, a rule of law,

not one dependent on the intent

or desire of him whose ex-pressions in a deed or will bring it

into play. The rule is, that when a

freehold is given to an ancestor

(A), and in the same instrument a

remainder is thereafter given to

the heirs (general, or of the

body) of A, the two estates being

either both legal or both equi-

table, and heirs being used in

the technical sense of persons

who generation after generation

take the land by inheritance, the

Rule operates upon the remainder

(not upon As freehold) and

converts it into one to A and such

heirs.

(6) Williston, Sales (2d ed.,

1924), 348.

(7) Holdsworth, History (3d

ed., [923), III, 223.

(8) Holdsworth, op. cit., VII (2d

ed., 1937), 35455.

(9) Coke on Littleton (19th

ed., 1832), 48a.

(10)Holdsworth, op. cit., VII,

355.

(11)Pomeroy, Equity Jurispru-

dence (4th ed., 1918), III, Sec. 986

n. (1), at p. 2140.

(12)Pomeroy, op. cit., at p.

2139.

(13)Xenos v. Wickham, L.R. 2E.

& I. Ap. 296, at 312 (1867), per

Lord Blackburn. The case was one

of an insurance policy.

(14)Perkins, Profitable Book

(15th ed. 1827), at par. 138.

(15)Leach, Powers of Appoint-

ment, 24 Amer. Bar Assoc. Journal

807 (1938).

(16) In 1828; quoted by

Professor Simes, The Devolutionof Title to Appointed Property, 22

Ill.. L. Rev. 480 (1928).

(17)Patton, Land Titles

(1938), 30.

(18)Rood, Registration of

Land Titles, 12 Mich. L. Rev. 379,

at 392, 393 (1914).

Documents

Vol 5.05 Property