Page:EB1911 - Volume 22.djvu/960

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943
REAL PROPERTY


year (27 Hen. VIII. c. 16) enacted that all bargains and sales of land should be duly enrolled. Bargain and sale was a form of equitable transfer which had for some purposes superseded the common law feoffment. It applied only to estates of inheritance and not to terms of years. The unforeseen effect of 27 Hen. VIII. c. 16 was to establish as the ordinary form of conveyance until 1841 the conveyance by lease and release.[1] Uses having become legal estate by the Statute of Uses, and therefore no longer revisable, 32 Hen. VIII. c. 1 (explained by 34 & 35 Hen. VIII. c. 5) was passed to remedy this inconvenience. It is still law as to wills made before 1838 (see Will). In the reign of Elizabeth the acts of 13 Eliz. c. 5 and 27 Eliz. c. 4 avoided fraudulent conveyances as against all parties and voluntary conveyances as against subsequent purchasers for valuable consideration. Early in the reign of Charles II. the act of 1661 (12 Car. II. c. 24) turned all the feudal tenures (with the exception of frankalmoign and grand serjeanty) into tenure by free and common socage and abolished the feudal incidents. The Statute of Frauds (29 Car. II. c. 3) contained provisions that certain leases and assignments, and that all agreements and trusts relating to land, should be in writing (see Fraud). The land registries of Middlesex and Yorkshire date from the reign of Anne (see Land Registration). Devises of land for charitable purposes were forbidden by the Mortmain Act (9 Geo. II. c. 36). In the next reign the first general Inclosure Act was passed, 41 Geo. III. c. 109 (see Commons). In the reign of William IV. were passed the Prescription, Limitation and Tithe Commutation Acts; fines and recoveries were abolished and simpler modes of conveyance substituted by 3 & 4 Will. IV. c. 74; and the laws of inheritance and dower were amended by 3 & 4 Will. IV. cc. 105, 106. In the reign of Victoria there was a vast mass of legislation dealing with real estate in almost every conceivable aspect. At the immediate beginning of the reign stands the Wills Act. The transfer of real estate was simplified by 8 & 9 Vict. c. 106 and by the Conveyancing Acts of 1881 and 1882. Additional powers of dealing with settled estates were given by the Settled Estates Act 1856, later by the Settled Estates Act 1877, and the Settled Land Act 1882. Succession duty was levied for the first time on freeholds in 1853. The strictness of the Mortmain Act has been relaxed in favour of gifts and sales to public institutions of various kinds, such as schools, parks and museums. The period of limitation was shortened for most purposes from twenty to twelve years by the Real Property Limitation Act 1874. Several acts were passed dealing with the enfranchisement and commutation of copy holds and the preservation of commons and open spaces. The Naturalization Act 1870 enabled aliens to hold and transfer land in England. The Felony Act 1870, abolished forfeiture of real estate on conviction for felony. The Agricultural Holdings Acts 1883 and 1900, and other acts, gave the tenant of a tenancy within the acts a general right to compensation for improvements, substituted a year’s notice to quit for the six months’ notice previously necessary, enlarged the tenant’s right to fixtures, and limited the amount of distress. By the Intestate Estates Act 1884 the law of escheat was extended to incorporeal hereditaments and equitable estates. Among other subjects which have been dealt with by legislation in the 19th century may be mentioned land transfer, registration, mortgage, partition, excambion, fixtures, taking of land in execution, declaration of title and apportionment. Hardly a year passes in which the land law is not altered to a greater or less degree.

Real estate at the present day is either legal or equitable, a difference resting mainly upon historical grounds. The following observations apply in general to both kinds of estate. The usual classification of interests in real estate regards either the extent, the time or the mode of enjoyment. The division according to the extent is in the first instance into corporeal and incorporeal hereditaments, a division based upon the Roman law division of res into corporales and incorporales, and open to the same objection, that it is unscientific as co-ordinating subjects of rights with the rights themselves.[2] Corporeal hereditaments, says Blackstone “consist of such as affect the senses, such as may be seen and handled by the body; incorporeal are not the objects of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation.” Corporeal hereditaments are all necessarily freehold;[3] an interest in land less than freehold, such as a term of years, is personalty only. There was no room for such an interest in the feudal gradation of tenure; it was regarded as a mere personal contract and was incapable of the incidents of tenure. By the Conveyancing Act 1881 the residue of a long term of years could in certain cases be enlarged into the fee-simple. A copyhold is in strict law only a tenancy at the will of the lord. Estates of freehold are either estates for life or in fee (called also estates of inheritance), the latter being in fee-tail or in fee-simple. An estate for life may be, either for the life of the tenant or for the life of another person, the latter called an estate pur autre vie. The former kind of estate includes estates of dower and curtesy. An estate in fee is called a fee simply, an obvious sign of its feudal origin. Estates tail are either general or special, the latter being in tail male or (rarely) in tail female. There may also be a quasi entail of an estate pur autre vie. An estate in fee-simple is the largest estate known to English law. Its ordinary incidents are an oath of fealty (never exacted), escheat, and (in a manor) suit of the court baron, and occasionally a small quit-rent and relief. All these are obviously relics of the once important feudal incidents. incorporeal hereditaments consist chiefly, if not wholly, of rights in alieno solo. They are divided by Joshua Williams (Real Property, pt. ii.) into (1) reversions, remainders and executor interests, (2) hereditaments purely incorporeal, the last being either append ant, appurtenant or in gross. Examples are profits a prendre (such as rights of common), easements (such as rights of way),[4] seigniories, advowsons, rents, tithes, titles of honour, offices, franchises. Before 1845 corporeal hereditaments were said to lie in livery, incorporeal in grant. But by the Real Property Act 1845 all corporeal hereditaments are, as regards the conveyance of the immediate freehold thereof, to be deemed to lie in grant as well as in livery. With regard to the time of enjoyment, estates are either in possession or in expectancy—that is, in reversion or remainder or executor interests (see Remainder). With regard to the mode of enjoyment, estates are either joint, in common, in coparcenary or in severalty.

Exceptional Tenures.—It has been already stated that there are still to be found survivals of the old pre-Conquest customary law. They are found both in the tenure and in the conveyance of land. The only customs of which judicial notice is taken are gavelkind (q.v.) and borough-English (q.v.). Any other local customs, as in manors, must be proved 'by evidence. The tenures of frankalmoign and grand serjeanty were specially preserved by 12 Car. ll. c. 24.

Title.—This is the name given to the mode of acquisition of rights over real estate. Title may arise either by alienation, voluntary or involuntary, or by succession. Voluntary alienation is either inter vivos or by will. The former branch is practically synonymous with conveyance, whether by way of sale, settlement, mortgage or otherwise. As a general rule alienation of real estate inter vivos must be by deed since 8 & 9 Vict. c. 106. Since that act a deed of grant has superseded the old forms of feoffment and lease and release. Considerable alterations in the direction of shortness and simplicity have been made in the law of transfer of real estate by the Conveyancing Acts 1881, 1882 and the Land Transfer Acts 1875 and 1897. The word “grant” is no longer necessary for a conveyance, nor are the old words of limitation “heirs” and “heirs of the body.” It is sufficient to use the words “in fee-simple,” “in tail,” “in tail male,” “in tail female.” Many provisions usually inserted in deeds, such as covenants for title by a beneficial owner and powers of appointment of new trustees, obtain statutory sanction. Forms of mortgage, conveyance and settlement are appended to the act. The Solicitors’ Remuneration Act 1881 was passed as a necessary sequel to the Conveyancing Act, and the remuneration of solicitors now stands upon a different and more satisfactory basis. For acquisition by will and succession, see Will; Inheritance. Involuntary alienation is by bankruptcy (q.v.) and by other means of enforcing the rights of creditors over land, such as distress or execution. It may also arise by the exercise by the state of its right of eminent domain for public purposes, as under the Lands Clauses and other acts.[5]


  1. From the reign of Edward IV. at latest up to the Fines and Recoveries Act of 1833 fines and recoveries were also recognized as ab means of conveyance. They are so regarded in the Statute of Uses.
  2. In spite of this objection the division is adopted by the legislature; see, for instance, the Intestate Estates Act 1884.
  3. In the category of corporeal hereditaments are also included certain accessories to corporeal hereditaments proper, such as growing crops, fixtures, title-deeds, &c.
  4. It should be noticed that an easement in gross cannot exist.
  5. The right of the state to contribution from land for revenue purposes and to stamp duties on deeds perhaps falls under this head. These imposts are really involuntary alienation’s of part of the profit of the land.