THE LAW OF PROPERTY.
§ 152. =Meanings of the Term Property.=
The substantive civil law[401] is divisible into three great
departments, namely the law of property, the law of obligations, and the
law of status. The first deals with proprietary rights _in rem_, the
second with proprietary rights _in personam_, and the third with
personal or non-proprietary rights, whether _in rem_ or _in personam_.
In this chapter we shall consider in outline the first of these
branches, and we shall then proceed to deal in the same manner with the
law of obligations. The law of status on the other hand is not of such a
nature as to require or repay any further consideration from the point
of view of general theory.
The term property, which we here use as meaning proprietary rights _in
rem_, possesses a singular variety of different applications having
different degrees of generality. These are the following:—
1. _All legal rights._ In its widest sense, property includes all a
person’s legal rights, of whatever description. A man’s property is all
that is _his in law_. This usage, however, is obsolete at the present
day, though it is common enough in the older books. Thus Blackstone
speaks of the property (_i.e._ right) which a master has in the person
of his servant, and a father in the person of his child. “The inferior,”
he says,[402] “hath no kind of property in the company, care, or
assistance of the superior, as the superior is held to have in those of
the inferior.” So Hobbes says:[403] “Of things held in propriety, those
that are dearest to a man are his own life and limbs; and in the next
degree, in most men, those that concern conjugal affection; and after
them riches and means of living.” In like manner Locke[404] tells us
that “every man has a property in his own person,” and he speaks
elsewhere[405] of a man’s right to preserve “his property, that is, his
life, liberty, and estate.”
2. _Proprietary rights (dominium and status)._ In a second and narrower
sense, property includes not all a person’s rights but only his
proprietary as opposed to his personal rights. The former constitute his
estate or property, while the latter constitute his status or personal
condition. In this sense a man’s land, chattels, shares, and the debts
due to him are his property; but not his life or liberty or reputation.
In this sense we may oppose to Locke’s statement, that a man has a
property in his own person, the saying of Ulpian: _Dominus membrorum
suorum nemo videtur_.[406] This is probably the most frequent
application of the term at the present day, but in the case of a word
having so many recognised varieties of usage it is idle to attempt to
single out any one of them as exclusively correct. They are all of equal
authenticity.
3. _Proprietary rights in rem (dominium and obligatio)._ In a third
application, which is that adopted in this chapter, the term includes
not even all proprietary rights, but only those which are both
proprietary and real. The law of property is the law of proprietary
rights _in rem_, the law of proprietary rights _in personam_ being
distinguished from it as the law of obligations. According to this usage
a freehold or leasehold estate in land, or a patent or copyright, is
property; but a debt or the benefit of a contract is not.
4. _Corporeal property (dominium corporis and dominium juris)._ Finally,
in the narrowest use of the term, it includes nothing more than
corporeal property—that is to say, the right of ownership in a material
object, or that object itself identified with the right by way of
metonymy. Thus property is defined by Ahrens[407] as “a material object
subject to the immediate power of a person,” and Bentham[408] considers
as metaphorical and improper the extension of the term to include other
rights than those which relate to material things.
§ 153. =Kinds of Property.=
All property is, as we have already seen,[409] either corporeal or
incorporeal. Corporeal property is the right of ownership in material
things; incorporeal property is any other proprietary right _in rem_.
Incorporeal property is itself of two kinds, namely (1) _jura in re
aliena_ or encumbrances, whether over material or immaterial things (for
example, leases, mortgages, and servitudes), and (2) _jura in re
propria_ over immaterial things (for example, patents, copyrights, and
trade-marks). The resulting threefold division of property appears in
the following Table:—
{ Land }
{ Material { } Corporeal property
{ things { Chattels }
{
{ _Jura in re { { Patents }
{ propria_ { { }
{ { Immaterial { Copyrights }
{ { things { }
{ { Trade-marks }
Property { { }
{ { &c. }
{ }
{ { Leases } Incorporeal property
{ { }
{ _Jura in re { Servitudes }
{ aliena_ { }
{ Securities }
{ }
{ &c. }
§ 154. =The Ownership of Material Things.=
The owner of a material object is he who owns a right to the aggregate
of its uses. He who has merely a special and definitely limited right to
the use of it, such as a right of way or other servitude, is not an
owner of the thing but merely an encumbrancer of it. The definition,
however, must not be misunderstood. Ownership is the right of _general_
use, not that of absolute or unlimited use. He is the owner of a thing
who is entitled to all those uses of it which are not specially excepted
and cut off by the law. No such right as that of absolute and unlimited
use is known to the law. All lawful use is either general (that is to
say, residuary) or specific, the former being ownership, and the latter
encumbrance.
The limits thus imposed upon an owner’s right of use are of two kinds.
The first constitute the _natural_ limits of ownership. They are the
various applications of the maxim: _Sic utere tuo ut alienum non
laedas_—a legal principle whose function it is to restrain within due
bounds the opposing maxim that a man may do as he pleases with his own.
In the interests of the public or of a man’s neighbours many uses of the
things which are his are wholly excluded from his right of ownership.
The second class of restrictions upon an owner’s right of use consists
of those which flow from the existence of encumbrances vested in other
persons. These are artificial limits which may or may not exist. My land
may be mortgaged, leased, charged, bound by restrictive covenants, and
so on, yet I remain the owner of it none the less. For I am still
entitled to the residue of its uses, and whatever right over it is not
specifically vested in some one else is vested in me. The residuary use
so left to me may be of very small dimensions; some encumbrancer may own
rights over it much more valuable than mine; but the ownership of it is
in me and not in him. Were his right to determine to-morrow in any
manner, my own, relieved from the encumbrance which now weighs it down,
would forthwith spring up to its full stature and have again its full
effect. No right loses its identity because of an encumbrance vested in
some one else. That which is a right of ownership when there are no
encumbrances, remains a right of ownership notwithstanding any number of
them.
Inasmuch as the right of ownership is a right to the aggregate of the
uses of the thing, it follows that ownership is necessarily permanent.
No person having merely a temporary right to the use of a thing can be
the owner of the thing, however general that right may be while it
lasts. He who comes after him is the owner; for it is to him that the
residue of the uses of the thing pertains. It is to be understood,
however, that by a permanent right is meant nothing more than a right
which is capable of lasting as long as the thing itself which is its
subject-matter, however long or short that duration may be.
Even as the generality of ownership involves its permanence, so its
permanence involves the further essential feature of inheritance. The
only permanent rights which can be owned by a mortal man are those which
can be handed down by him to his successors or representatives on his
death. All others are temporary, their duration being necessarily
limited to the lifetime of him in whom they are vested. The right of
ownership, therefore, is essentially an inheritable right. It is capable
of surviving its owner for the time being. It belongs to the class of
rights which are divested by death but are not extinguished by it.
Summing up the conclusions to which we have attained, we may define the
right of ownership in a material thing as the general, permanent, and
inheritable right to the uses of that thing.[410]
According to the rigour of English legal doctrine there can be no
owner of _land_ except the Crown itself. The fee simple of land—the
greatest right in it which a subject can possess—is not in truth
ownership, but a mere encumbrance upon the ownership of the Crown. It
is a tenancy or lease granted to a man and his heirs. It is a
temporary not a permanent right of user. It will come to its natural
termination on the death of the tenant without leaving an heir or
devisee in whom the right may be continued. The land will thereupon
revert or escheat to the Crown; that is to say, the Crown’s ownership,
which has never been divested, but has merely been encumbered by the
fee simple, will through the destruction of this encumbrance become
once more free and absolute. In the case of chattels it is otherwise.
They can be owned by the subject no less than by the Crown. It is true
that if the owner of them dies intestate without kin, they will go to
the Crown as _bona vacantia_, just as land will go to the Crown as an
escheat. But between these two processes there is a profound
difference in legal theory. In the case of chattels the Crown succeeds
to the right which was vested in the dead man; his ownership is
continued in the Crown, just as it would have been continued in his
next of kin had there been any. But in the case of escheat, as already
said, the right of the dead man has come to an end, and the Crown
succeeds to no right of his, but simply comes into its own again.
This distinction, however, between the fee simple of land and the
ownership of it is a matter of form rather than of substance. In fact,
if not in legal theory, the right of a tenant in fee simple is
permanent; for escheat takes place only on an intestacy, and therefore
can be prevented by the act of the tenant. We are at liberty,
therefore, to disregard this technicality of real property law, and to
speak of the fee simple of land as the ownership of it, the right of
the Crown being viewed, accordingly, not as vested and continuing
ownership subject to an encumbrance, but as a contingent right of
succession to an intestate owner.
§ 155. =Movable and Immovable Property.=
Among material things the most important distinction is that between
movables and immovables, or, to use terms more familiar in English law,
between chattels and land. In all legal systems these two classes of
objects are to some extent governed by different rules, though in no
system is the difference so great as in our own.
Considered in its legal aspect, an immovable, that is to say, a piece of
land, includes the following elements:—
1. A determinate portion of the earth’s surface.
2. The ground beneath the surface down to the centre of the world. All
the pieces of land in England meet together in one terminal point at the
earth’s centre.
3. Possibly the column of space above the surface _ad infinitum_. “The
earth,” says Coke,[411] “hath in law a great extent upwards, not only of
water as hath been said, but of ayre and all other things even up to
heaven; for _Cujus est solum, ejus est usque ad coelum_.” The
authenticity of this doctrine, however, is not wholly beyond dispute. It
would prohibit as an actionable trespass all use of the air-space above
the appropriated surface of the earth, at whatever height this use took
place, and however little it could affect the interests of the
landowner. If a man is carried in a balloon at a distance of half a mile
above the ground, does he infringe the rights of those who own the
surface? It may be that the law recognises no right of ownership in the
air-space at all, or at least no right of exclusive use, but merely
prohibits all acts which by their nature or their proximity interfere
with the full enjoyment and use of the surface.[412] By the German Civil
Code,[413] the owner of land owns the space above it, but has no right
to prohibit acts so remote from the surface that they in no way affect
his interests.
4. All objects which are on or under the surface in its natural state;
for example, minerals and natural vegetation. All these are part of the
land, even though they are in no way physically attached to it. Stones
lying loose upon the surface are in the same category as the stone in a
quarry.
5. Lastly all objects placed by human agency on or under the surface,
with the intention of permanent annexation. These become part of the
land, and lose their identity as separate movables or chattels; for
example, buildings, walls, and fences. _Omne quod inaedificatur solo
cedit_, said the Roman law.[414] Provided that the requisite intent of
permanent annexation is present, no physical attachment to the surface
is required. A wall built of stones without mortar or foundations is
part of the land on which it stands.[415] Conversely physical
attachment, without the intent of permanent annexation, is not in itself
enough. Carpets, tapestries, or ornaments nailed to the floors or walls
of a house are not thereby made part of the house. Money buried in the
ground is as much a chattel[416] as money in its owner’s pocket.[417]
It is clear that the distinction between movables and immovables is in
truth and in fact applicable to material objects only. Yet, the law
has made an unfortunate attempt to apply it to _rights_ also. Rights
no less than things are conceived by the law as having a local
situation, and as being either movable or permanently fixed in a
definite locality. The origin of this illogical conception is to be
found in the identification of rights of ownership with the material
things which are the objects of them. I am said to own land and
chattels, as well as easements, shares, debts, contracts, and patents.
All these things are equally property, and since some of them have a
local situation and can be truly classed as movable or immovable, the
law has been led by inadvertence to attribute these qualities to all
of them. It has recognised in things which are incorporeal certain
attributes which in truth pertain to things corporeal only. It has
divided the whole sphere of proprietary rights by reference to a
distinction which is truly applicable not to rights at, all, but to
physical objects. Nor is this merely a peculiarity of English law, for
it is found in Continental systems also.[418]
On what principle, then, does the law determine whether a right is to
be classed as immovable or as movable? The general rule is that a
right has in this respect the same quality as its subject-matter.
Every right over an immovable thing, whether it is a right of
ownership, or a lease, or a servitude, or a security, or any other
_jus in re aliena_, is itself immovable, and every right over a
movable thing is itself movable. So far there is no difficulty. What
shall we say, however, of those rights which have no material objects
at all, such as a copyright, a patent, the good-will of a business, a
trade-mark, or the benefit of a contract? The answer is that all such
rights are classed by the law as movable. For the class of movable
property is residuary, and includes all rights which can make good no
claim to be classed as immovable.
The law not merely classifies rights as movable and immovable, but
goes further in the same direction, and attributes local situation to
them. It undertakes to say not merely _whether_ a right exists, but
_where_ it exists. Nor is this a difficult task in the case of those
rights which have determinate material things as their objects. A
servitude or other _jus in re aliena_ over a piece of land is situated
in law where the land is situated in fact. A right over a chattel is
movable property, and where the chattel goes the right goes also. But
where there is no material object at all, what are we to say as to the
local situation of the right? Where is a debt situated, or a share, in
a company, or the benefit of a contract, or a copyright? Such
questions can be determined only by more or less arbitrary rules based
upon analogy, and it is to be regretted that it has been thought
needful to ask and answer them at all. As the law stands, however, it
contains several rules based on the assumption that all property which
exists must exist _somewhere_,[419] and for the application of these
rules the determination of the local situation of rights is necessary,
even though it leads into the region of legal fictions. “The legal
conception of property,” says Lord Lindley,[420] “appears to me to
involve the legal conception of existence somewhere.... To talk of
property as existing nowhere is to use language which to me is
unintelligible.”
The leading principle as to the local situation of rights is that they
are situated where they are exercised and enjoyed. Rights over
material things, therefore, have the same situation as those things
themselves. The good-will of a business is situated in the place where
the business is carried on.[421] Debts are in general situated in the
place where the debtor resides,[422] since it is there that the
creditor must go to get his money.[423]
§ 156. =Real and Personal Property.=
Derived from and closely connected with the distinction between
immovable and movable property is that between real and personal
property. These are two cross divisions of the whole sphere of
proprietary rights. Real property and immovable property form
intersecting circles which are very nearly though not quite coincident.
The law of real property is almost equivalent to the law of land, while
the law of personal property is all but identical with the law of
movables. The partial failure of coincidence is due not to any logical
distinction, but to the accidental course of legal development; and to
this extent the distinction between real and personal property is purely
arbitrary and possesses no scientific basis. Real property comprises all
rights over land, with such additions and exceptions as the law has seen
fit to establish. All other proprietary rights, whether _in rem_ or _in
personam_, pertain to the law of personal property.
The distinction between real and personal property has no logical
connexion with that between real and personal rights. There is,
however, an historical relation between them, inasmuch as they are
both derived from the same source, namely the Roman distinction
between actions _in rem_ and actions _in personam_. Real property
meant originally that which was recoverable in a real action, while
personal property was that which was recoverable in a personal action,
and this English distinction between real and personal actions was
derived by Bracton and the other founders of our law from the
_actiones in rem_ and _in personam_ of Justinian, though not without
important modifications of the Roman doctrine.[424]
In connexion with the distinctions between movable and immovable, and
between real and personal property, we must notice the legal
significance of the term chattel. This word has apparently three
different meanings in English law:—
1. A movable physical object; for example, a horse, a book, or a
shilling, as contrasted with a piece of land.
2. Movable property, whether corporeal or incorporeal; that is to say,
chattels in the first sense together with all proprietary rights
except those which are classed as immovable. In this usage debts,
shares, contracts, and other choses in action are chattels, no less
than furniture or stock in trade. So also are patents, copyrights, and
other rights _in rem_ which are not rights over land. This double use
of the word chattel to indicate both material things and rights is
simply an application, within the sphere of movable property, of the
metonymy which is the source of the distinction between corporeal and
incorporeal property.
3. Personal property, whether movable or immovable, as opposed to real
property. In this sense leaseholds are classed as chattels, because of
the special rule by which they are excluded from the domain of real
property.
§ 157. =Rights _in re propria_ in Immaterial Things.=
The subject-matter of a right of property is either a material or an
immaterial thing. A material thing is a physical object; an immaterial
thing is anything else which may be the subject-matter of a right.[425]
It is to things of the former class that the law of property almost
wholly relates. In the great majority of cases a right of property is a
right to the uses of a material object. It is the chief purpose of this
department of the law to allot to every man his portion in the material
instruments of human well-being—to divide the earth and the fulness of
it among the men who live in it. The only immaterial things which are
recognised by law as the subject-matter of rights of this description
are the various _immaterial products of human skill and labour_.
Speaking generally we may say that in modern law every man owns that
which he creates. That which he produces is his, and he has an exclusive
right to the use and benefit of it. The immaterial product of a man’s
brains may be as valuable as his land or his goods. The law, therefore,
gives him a proprietary right in it, and the unauthorised use of it by
other persons is a violation of his ownership, no less than theft or
trespass is. These immaterial forms of property are of five chief
kinds:—[426]
1. _Patents._ The subject-matter of a patent-right is an invention. He
whose skill or labour produces the idea of a new process, instrument, or
manufacture, has that idea as his own in law. He alone is entitled to
use it and to draw from it the profit inherent in it.
2. _Literary copyright._ The subject-matter of this right is the
literary expression of facts or thoughts. He to whose skill or labour
this expression is due has in it a proprietary right of exclusive use.
3. _Artistic copyright._ Artistic design in all its various forms, such
as drawing, painting, sculpture, and photography, is the subject-matter
of a right of exclusive use analogous to literary copyright. The
creations of an artist’s skill or of a photographer’s labour are his
exclusive property. The object of this right is not the material thing
produced, but the _form_ impressed upon it by the maker. The picture, in
the concrete sense of the material paint and canvas, belongs to him who
purchases it; but the picture, in the abstract sense of the artistic
form made visible by that paint and canvas, belongs to him who made it.
The former is material property, the latter is immaterial. The right in
each case is one of exclusive use. The right to the material picture is
infringed by destroying it or taking it away. The right to the
immaterial picture is infringed by making material pictures which embody
it.
4. _Musical and dramatic copyright._ A fourth class of immaterial things
consists of musical and dramatic works. The immaterial product of the
skill of the musician or the playwright is the subject-matter of a
proprietary right of exclusive use which is infringed by any
unauthorised performance or representation.
5. _Commercial good-will; trade-marks and trade-names._ The fifth and
last species of immaterial things includes commercial good-will and the
special forms of it known as trade-marks and trade-names. He who by his
skill and labour establishes a business acquires thereby an interest in
the good-will of it, that is to say, in the established disposition of
customers to resort to him. To this good-will he has an exclusive right
which is violated by any one who seeks to make use of it for his own
advantage, as by falsely representing to the public that he is himself
carrying on the business in question. Special forms of this right of
commercial good-will are rights to trade-names and trade-marks. Every
man has an exclusive right to the name under which he carries on
business or sells his goods—to this extent at least that no one is at
liberty to use that name for the purpose of deceiving the public and so
injuring the owner of it. He has a similar right to the exclusive use of
the marks which he impresses upon his goods, and by which they are known
and identified in the market as his.
§ 158. =Leases.=
Having now considered the different kinds of rights _in re propria_
which fall within the law of property, we proceed to deal with the
various rights _in re aliena_ to which they may be subject. As already
stated,[427] the chief of these are four in number, namely Leases,
Servitudes, Securities, and Trusts. The nature of a trust has been
sufficiently examined in another connexion,[428] and it is necessary
here to consider the other three only.[429] And first of leases or
tenancies.
Although a lease of land and a bailment of chattels are transactions of
essentially the same nature, there is no term which, in its recognised
use, is sufficiently wide to include both. The term bailment is never
applied to the tenancy of land, and although the term lease is not
wholly inapplicable in the case of chattels, its use in this connexion
is subject to arbitrary limitations. It is necessary, therefore, in the
interests of orderly classification, to do some violence to received
usage, in adopting the term lease as a generic expression to include not
merely the tenancy of land, but all kinds of bailments of chattels, and
all encumbrances of incorporeal property which possess the same
essential nature as a tenancy of land.
A lease, in this generic sense, is that form of encumbrance which
consists in a right to the possession and use of property owned by some
other person. It is the outcome of the rightful separation of ownership
and possession. We have seen that possession is the continuing exercise
of a right, and that although a right is normally exercised by the owner
of it, it may in special cases be exercised by some one else. This
separation of ownership and possession may be either rightful or
wrongful, and if rightful it is an encumbrance of the owner’s
title.[430]
The right which is thus encumbered by a lease is usually the ownership
of a material object, and more particularly the ownership of land. Here
as elsewhere the material object is identified in speech with the right
itself. We say that the _land_ is leased, just as we say that the land
is owned or possessed. The lessee of land is he who rightfully possesses
it, but does not own it. The lessor of land is he who owns it, but who
has transferred the possession of it to another. Encumbrance by way of
lease is not confined, however, to the right of ownership of a material
object. All rights may be leased which can be possessed, that is to say,
which admit of continuing exercise; and no rights can be leased which
cannot be possessed, that is to say, which are extinguished by their
exercise. A servitude appurtenant to land, such as a right of way, is
leased along with the land itself. The owner of a lease may encumber it
with a sub-lease. The owner of a patent or copyright may grant a lease
of it for a term of years, entitling the lessee to the exercise and use
of the right but not to the ownership of it. Even obligations may be
encumbered in the same fashion, provided that they admit of continuing
or repeated exercise; for example, annuities, shares, money in the
public funds, or interest-bearing debts. All these may be rightfully
possessed without being owned, and owned without being possessed, as
when they are settled in trust for a tenant for life with remainder to
some one else.
Is it essential that a lease should be of less duration than the right
which is subject to it? This is almost invariably the case; land is
leased for a term of years or for life, but not in perpetuity; the
owner of a thing owns it for ever, but the lessee of it possesses it
for a time. We may be tempted, therefore, to regard this difference of
duration as essential, and to define a lease as a right to the
temporary exercise of a right vested in some one else. But this is not
so. There is no objection in principle to a lease of land in
perpetuity, or to a lease of a patent or copyright for the full term
of its existence. It may be objected that a lease of this description
would not be a true lease or encumbrance at all, but an assignment of
the right itself; that the grantee would become the owner of the
right, and not a mere encumbrancer; and in favour of this contention
it may be pointed out that a sub-lease for the whole term is construed
in English law as an assignment of the term, a sub-lease being
necessarily shorter than the term, if only by a single day.[431]
Whatever the actual rule of English law may be, however, there is
nothing in legal theory to justify us in asserting that any such
difference of duration is essential to the existence of a true lease.
A lease exists whenever the rightful possession of a thing is
separated from the ownership of it; and although this separation is
usually temporary, there is no difficulty in supposing it permanent. I
may own a permanent right to exercise another right, without owning
the latter right itself. The ownership may remain dormant, deprived of
any right of exercise and enjoyment, in the hands of the lessor. I am
not necessarily the owner of a patent, because I have acquired by
contract with the owner a right to the exclusive use of it during the
whole term of its duration. So far as legal principle is concerned, I
may still remain the owner of a lease, although I may have granted a
sub-lease to another for the whole residue of the term. To assign a
lease and to sublet it for the whole term are in the intention of the
parties and in legal theory two entirely different transactions. The
assignment is a substitution of one tenant for another, the assignor
retaining no rights whatever. The sub-lease, on the contrary, is
designed to leave the original relation of landlord and tenant
untouched, the sub-lessee being the tenant of the lessee and not of
the original lessor.[432]
§ 159. =Servitudes.=
A servitude is that form of encumbrance which consists in a right to the
limited use of a piece of land without the possession of it; for
example, a right of way over it, a right to the passage of light across
it to the windows of a house on the adjoining land, a right to depasture
cattle upon it, or a right to derive support from it for the foundations
of an adjoining building.[433]
It is an essential characteristic of a servitude that it does not
involve the possession of the land over which it exists. This is the
difference between a servitude and a lease. A lease of land is the
rightful possession and use without the ownership of it, while a
servitude over land is the rightful use without either the ownership or
the possession of it. There are two distinct methods in which I may
acquire a road across another man’s property. I may agree with him for
the exclusive possession of a defined strip of the land; or I may agree
with him for the use of such a strip for the sole purpose of passage,
without any exclusive possession or occupation of it. In the first case
I acquire a lease; in the second a servitude.[434]
Servitudes are of two kinds, which may be distinguished as private and
public. A private servitude is one vested in a determinate individual;
for example, a right of way, of light, or of support, vested in the
owner of one piece of land over an adjoining piece, or a right granted
to one person of fishing in the water of another, or of mining in
another’s land. A public servitude is one vested in the public at large
or in some class of indeterminate individuals; for example, the right of
the public to a highway over land in private ownership, the right of the
public to navigate a river of which the bed belongs to some private
person, the right of the inhabitants of a parish to use a certain piece
of private ground for the purposes of recreation.
Servitudes are further distinguishable in the language of English law as
being either appurtenant or in gross. A servitude appurtenant is one
which is not merely an encumbrance of one piece of land, but is also
accessory to another piece. It is a right of using one piece for the
benefit of another; as in the case of a right of way from A.’s house to
the high road across B.’s field, or a right of support for a building,
or a right to the access of light to a window. The land which is
burdened with such a servitude is called the servient land or tenement;
that which has the benefit of it is called the dominant land or
tenement. The servitude runs with each of the tenements into the hands
of successive owners and occupiers. Both the benefit and the burden of
it are concurrent with the ownership of the lands concerned. A servitude
is said to be in gross, on the other hand, when it is not so attached
and accessory to any dominant tenement for whose benefit it exists. An
example is a public right of way or of navigation or of recreation, or a
private right of fishing, pasturage, or mining.[435]
§ 160. =Securities.=
A security is an encumbrance, the purpose of which is to ensure or
facilitate the fulfilment or enjoyment of some other right (usually
though not necessarily a debt) vested in the same person.[436] Such
securities are of two kinds, which may be distinguished as mortgages and
liens, if we use the latter term in its widest permissible sense.[437]
In considering the nature of this distinction we must first notice a
plausible but erroneous explanation. A mortgage, it is sometimes said,
is a security created by the _transfer_ of the debtor’s property to the
creditor, while a lien is merely an encumbrance of some sort created in
favour of the creditor over property which remains vested in the debtor;
a mortgagee is the owner of the property, while a pledgee or other
lienee is merely an encumbrancer of it. This, however, is not a strictly
accurate account of the matter, though it is true in the great majority
of cases. A mortgage may be created by way of encumbrance, no less than
by way of transfer;[438] and a mortgagee does not necessarily become the
owner of the property mortgaged. A lease, for example, is commonly
mortgaged, not by the assignment of it, but by the grant of a sub-lease
to the creditor, so that the mortgagee becomes not the owner of the
lease but an encumbrancer of it. Similarly freehold land may be
mortgaged by the grant to the mortgagee of a long term of years.
Inasmuch, therefore, as a mortgage is not necessarily the transfer of
the property to the creditor, what is its essential characteristic? The
question is one of considerable difficulty, but the true solution is
apparently this. A lien is a right which is _in its own nature_ a
security for a debt and nothing more; for example, a right to retain
possession of a chattel until payment, a right to distrain for rent, or
a right to receive payment out of a certain fund. A mortgage, on the
contrary, is a right which is in its own nature an independent or
principal right, and not a mere security for another right, but which is
artificially cut down and limited, so that it may serve in the
particular case as a security and nothing more; for example the fee
simple of land, a lease of land for a term of years, or the ownership of
a chattel. The right of the lienee is vested in him _absolutely_, and
not merely by way of security; for it is itself nothing more than a
security. The right of a mortgagee, on the contrary, is vested in him
conditionally and _by way of security only_, for it is in itself
something more than a mere security. A lien cannot survive the debt
secured; it ceases and determines _ipso jure_ on the extinction of the
debt. It is merely the shadow, so to speak, cast by the debt upon the
property of the debtor. But the right vested in a mortgagee has an
independent existence. It will, or may, remain outstanding in the
mortgagee even after the extinction of the debt. When thus left
outstanding, it must be re-transferred or surrendered to the mortgagor,
and the right of the mortgagor to this re-assignment or surrender is
called his right or equity of redemption. The existence of such an
equity of redemption is therefore the test of a mortgage. In liens there
is no such right, for there is nothing to redeem. The creditor owns no
right which he can be bound to give back or surrender to his debtor. For
his right of security has come to its natural and necessary termination
with the termination of the right secured.[439]
Mortgages are created either by the transfer of the debtor’s right to
the creditor, or by the encumbrance of it in his favour. The first of
these methods is by far the more usual and important. Moreover it is
peculiar to mortgages, for liens can be created only by way of
encumbrance. Whenever a debtor _transfers_ his right to the creditor by
way of security, the result is necessarily a mortgage; for there can be
no connexion between the duration of the debt so secured and the natural
duration of the right so transferred. The right transferred may survive
the debt, and the debtor therefore retains the right of redemption which
is the infallible test of a mortgage. When on the other hand a debtor
_encumbers_ his right in favour of the creditor, the security so created
is either a mortgage or a lien according to circumstances. It is a
mortgage, if the encumbrance so created is independent of the debt
secured in respect of its natural duration; for example a term of years
or a permanent servitude. It is a lien, if the encumbrance is in respect
of its natural duration dependent on, and coincident with the debt
secured; for example a pledge, a vendor’s lien, a landlord’s right of
distress, or an equitable charge on a fund.
Speaking generally, any alienable and valuable right whatever may be the
subject-matter of a mortgage. Whatever can be transferred can be
transferred by way of mortgage; whatever can be encumbered can be
encumbered by way of mortgage. Whether I own land, or chattels, or
debts, or shares, or patents, or copyrights, or leases, or servitudes,
or equitable interests in trust funds, or the benefit of a contract, I
may so deal with them as to constitute a valid mortgage security. Even a
mortgage itself may be transferred by the mortgagee to some creditor of
his own by way of mortgage, such a mortgage of a mortgage being known as
a sub-mortgage.
In a mortgage by way of transfer the debtor, though he assigns the
property to his creditor, remains none the less the beneficial or
equitable owner of it himself. A mortgagor, by virtue of his equity of
redemption, has more than a mere personal right against the mortgagee to
the reconveyance of the property; he is already the beneficial owner of
it. This double ownership of mortgaged property is merely a special form
of trust. The mortgagee holds in trust for the mortgagor, and has
himself no beneficial interest, save so far as is required for the
purposes of an effective security. On the payment or extinction of the
debt the mortgagee becomes a mere trustee and nothing more; the
ownership remains vested in him, but is now bare of any vestige of
beneficial interest. A mortgage, therefore, has a double aspect and
nature. Viewed in respect of the _nudum dominium_ vested in the
mortgagee, it is a transfer of the property; viewed in respect of the
beneficial ownership which remains vested in the mortgagor, it is merely
an encumbrance of it.
The prominence of mortgage as the most important form of security is a
peculiarity of English law. In Roman law, and in the modern Continental
systems based upon it, the place assumed by mortgages in our system is
taken by the lien (_hypotheca_) in its various forms. The Roman mortgage
(_fiducia_) fell wholly out of use before the time of Justinian, having
been displaced by the superior simplicity and convenience of the
_hypotheca_; and in this respect modern Continental law has followed the
Roman. There can be no doubt that a similar substitution of the lien for
the mortgage would immensely simplify and improve the law of England.
The complexity and difficulty of the English law of security—due
entirely to the adoption of the system of mortgages—must be a source of
amazement to a French or German lawyer. Whatever can be done by way of
mortgage in securing a debt can be done equally well by way of lien, and
the lien avoids all that extraordinary disturbance and complication of
legal relations which is essentially involved in the mortgage. The best
type of security is that which combines the most efficient protection of
the creditor with the least interference with the rights of the debtor,
and in this latter respect the mortgage falls far short of the ideal.
The true form of security is a lien, leaving the full legal and
equitable ownership in the debtor, but vesting in the creditor such
rights and powers (as of sale, possession, and so forth) as are
required, according to the nature of the subject-matter, to give the
creditor sufficient protection, and lapsing _ipso jure_ with the
discharge of the debt secured.[440]
Liens are of various kinds, none of which present any difficulty or
require any special consideration.
1. _Possessory liens_—consisting in the right to retain possession of
chattels or other property of the debtor. A power of sale may or may
not be combined with this right of possession. Examples are pledges of
chattels, and the liens of innkeepers, solicitors, and vendors of
goods.
2. _Rights of distress or seizure_—consisting in the right to take
possession of the property of the debtor, with or without a power of
sale. Examples are the right of distress for rent, and the right of
the occupier of land to distrain cattle trespassing on it.
3. _Powers of sale._ This is a form of security seldom found in
isolation, for it is usually incidental to the right of possession
conferred by one or other of the two preceding forms of lien. There is
no reason, however, why it should not in itself form an effective
security.
4. _Powers of forfeiture_—consisting in a power vested in the creditor
of destroying in his own interest some adverse right vested in the
debtor. Examples are a landlord’s right of re-entry upon his tenant,
and a vendor’s right of forfeiting the deposit paid by the purchaser.
5. _Charges_—consisting in the right of a creditor to receive payment
out of some specific fund or out of the proceeds of the realisation of
specific property. The fund or property is said to be charged with the
debt which is thus payable out of it.
§ 161. =Modes of Acquisition: Possession.=
Having considered the various forms which proprietary rights _in rem_
assume, we proceed to examine the modes of their acquisition. An attempt
to give a complete list of these titles would here serve no useful
purpose, and we shall confine our attention to four of them which are of
primary importance. These are the following: Possession, Prescription,
Agreement, and Inheritance.
The possession of a material object is a title to the ownership of it.
The _de facto_ relation between person and thing brings the _de jure_
relation along with it. He who claims a chattel or a piece of land as
his, and makes good his claim in _fact_ by way of possession, makes it
good in _law_ also by way of ownership. There is, however, an important
distinction to be drawn. For the thing so possessed may, or may not,
already belong to some other person. If, when possession of it is taken
by the claimant, it is as yet the property of no one—_res nullius_ as
the Romans said—the possessor acquires a title good against all the
world. The fish of the sea and the fowls of the air belong by an
absolute title to him who first succeeds in obtaining possession of
them. This mode of acquisition is known in Roman law as _occupatio_.
On the other hand, the thing of which possession is taken may already be
the property of some one else. In this case the title acquired by
possession is good, indeed, against all third persons, but is of no
validity at all against the true owner. Possession, even when
consciously wrongful, is allowed as a title of right against all persons
who cannot show a better, because a prior, title in themselves. Save
with respect to the rights of the original proprietor, my rights to the
watch in my pocket are much the same, whether I bought it honestly, or
found it, or abstracted it from the pocket of some one else. If it is
stolen from me, the law will help me to the recovery of it. I can
effectually sell it, lend it, give it away, or bequeath it, and it will
go on my death intestate to my next of kin. Whoever acquires it from me,
however, acquires in general nothing save my limited and imperfect title
to it, and holds it, as I do, subject to the superior claims of the
original owner.
A thing owned by one man and thus adversely possessed by another has in
truth two owners. The ownership of the one is absolute and perfect,
while that of the other is relative and imperfect, and is often called,
by reason of its origin in possession, possessory ownership.
If a possessory owner is wrongfully deprived of the thing by a person
other than the true owner, he can recover it. For the defendant cannot
set up as a defence his own possessory title, since it is later than,
and consequently inferior to, the possessory title of the plaintiff. Nor
can he set up as a defence the title of the true owner—the _jus tertii_,
as it is called; the plaintiff has a better, because an earlier, title
than the defendant, and it is irrelevant that the title of some other
person, not a party to the suit, is better still. The expediency of this
doctrine of possessory ownership is clear. Were it not for such a rule,
force and fraud would be left to determine all disputes as to
possession, between persons of whom neither could show an unimpeachable
title to the thing as the true owner of it.[441]
§ 162. =Prescription.=
Prescription[442] may be defined as the effect of lapse of time in
creating and destroying rights; it is the operation of time as a
vestitive fact. It is of two kinds, namely (1) positive or acquisitive
prescription and (2) negative or extinctive prescription. The former is
the creation of a right, the latter is the destruction of one, by the
lapse of time. An example of the former is the acquisition of a right of
way by the _de facto_ use of it for twenty years. An instance of the
latter is the destruction of the right to sue for a debt after six years
from the time at which it first became payable.
Lapse of time, therefore, has two opposite effects. In positive
prescription it is a title of right, but in negative prescription it is
a divestitive fact. Whether it shall operate in the one way or in the
other depends on whether it is or is not accompanied by _possession_.
Positive prescription is the investitive operation of lapse of time
_with_ possession, while negative prescription is the divestitive
operation of lapse of time _without_ possession. Long possession creates
rights, and long want of possession destroys them. If I possess an
easement for twenty years without owning it, I begin at the end of that
period to own as well as to possess it. Conversely if I own land for
twelve years without possessing it, I cease on the termination of that
period either to own or to possess it. In both forms of prescription,
fact and right, possession and ownership, tend to coincidence. _Ex facto
oritur jus._ If the root of fact is destroyed, the right growing out of
it withers and dies in course of time. If the fact is present, the right
will in the fulness of time proceed from it.
In many cases the two forms of prescription coincide. The property which
one person loses through long dispossession is often at the same time
acquired by some one else through long possession. Yet this is not
always so, and it is necessary in many instances to know whether legal
effect is given to long possession, in which case the prescription is
positive, or to long want of possession, in which case the prescription
is negative. I may, for example, be continuously out of possession of my
land for twelve years, without any other single person having
continuously held possession of it for that length of time. It may have
been in the hands of a series of trespassers against me and against each
other. In this case, if the legally recognised form of prescription is
positive, it is inoperative, and I retain my ownership. But if the law
recognises negative prescription instead of positive (as in this case
our own system does) my title will be extinguished. Who in such
circumstances will acquire the right which I thus lose, depends not on
the law of prescription, but on the rules as to the acquisition of
things which have no owner. The doctrine that prior possession is a good
title against all but the true owner, will confer on the first of a
series of adverse possessors a good title against all the world so soon
as the title of the true owner has been extinguished by negative
prescription.
The rational basis of prescription is to be found in the presumption of
the coincidence of possession and ownership, of fact and of right.
Owners are usually possessors, and possessors are usually owners. Fact
and right are normally coincident; therefore the former is evidence of
the latter. That a thing is possessed _de facto_ is evidence that it is
owned _de jure_. That it is not possessed raises a presumption that it
is not owned either. Want of possession is evidence of want of title.
The longer the possession or want of possession has continued, the
greater is its evidential value. That I have occupied land for a day
raises a very slight presumption that I am the owner of it; but if I
continue to occupy it for twenty years, the presumption becomes
indefinitely stronger. If I have a claim of debt against a man,
unfulfilled and unenforced, the lapse of six months may have but little
weight as evidence that my claim is unfounded or that it has been
already satisfied; but the lapse of ten years may amount to ample proof
of this.
If, therefore, I am in possession of anything in which I claim a right,
I have evidence of my right which differs from all other evidence,
inasmuch as it grows stronger instead of weaker with the lapse of years.
The tooth of time may eat away all other proofs of title. Documents are
lost, memory fails, witnesses die. But as these become of no avail, an
efficient substitute is in the same measure provided by the probative
force of long possession. So also with long want of possession as
evidence of want of title; as the years pass, the evidence in favour of
the title fades, while the presumption against it grows ever stronger.
Here, then, we have the chief foundation of the law of prescription. For
in this case, as in so many others, the law has deemed it expedient to
confer upon a certain species of evidence conclusive force. It has
established a conclusive presumption in favour of the rightfulness of
long possession, and against the validity of claims which are vitiated
by long want of possession. Lapse of time is recognised as creative and
destructive of rights, instead of merely as evidence for and against
their existence. In substance, though not always in form, prescription
has been advanced from the law of evidence to a place in the substantive
law.
The conclusive presumption on which prescription is thus founded falls,
like all other conclusive presumptions, more or less wide of the truth.
Yet in the long run, if used with due safeguards, it is the instrument
of justice. It is not true as a matter of fact that a claim unenforced
for six years is always unfounded, but it may be wise for the law to act
as if it were true. For the effect of thus exaggerating the evidential
value of lapse of time is to prevent the persons concerned from
permitting such delays as would render their claims in reality doubtful.
In order to avoid the difficulty and error that necessarily result from
the lapse of time, the presumption of the coincidence of fact and right
is rightly accepted as final after a certain number of years. Whoever
wishes to dispute this presumption must do so within that period;
otherwise his right, if he has one, will be forfeited as a penalty for
his neglect. _Vigilantibus non dormientibus jura subveniunt._
Prescription is not limited to rights _in rem_. It is found within the
sphere of obligations as well as within that of property. Positive
prescription, however, is possible only in the case of rights which
admit of possession—that is to say, continuing exercise and enjoyment.
Most rights of this nature are rights _in rem_. Rights _in personam_ are
commonly extinguished by their exercise, and therefore cannot be
possessed or acquired by prescription. And even in that minority of
cases in which such rights do admit of possession, and in which positive
prescription is therefore theoretically possible, modern law, at least,
has seen no occasion for allowing it. This form of prescription,
therefore, is peculiar to the law of property. Negative prescription, on
the other hand, is common to the law of property and to that of
obligations. Most obligations are destroyed by the lapse of time, for
since the ownership of them cannot be accompanied by the possession of
them, there is nothing to preserve them from the destructive influence
of delay in their enforcement.[443]
Negative prescription is of two kinds, which may be distinguished as
perfect and imperfect. The latter is commonly called the limitation of
actions, the former being then distinguished as prescription in a narrow
and specific sense. Perfect prescription is the destruction of the
principal right itself, while imperfect prescription is merely the
destruction of the accessory _right of action_, the principal right
remaining in existence. In other words, in the one case the right is
wholly destroyed, but in the other it is merely reduced from a perfect
and enforceable right to one which is imperfect and unenforceable.
An example of perfect prescription is the destruction of the ownership
of land through dispossession for twelve years. The owner of land who
has been out of possession for that period does not merely lose his
right of action for the recovery of it, but also loses the right of
ownership itself. An example of imperfect prescription, on the other
hand, is the case of the owner of a chattel who has been out of
possession of it for six years. He loses his right of action for the
recovery of it, but he remains the owner of it none the less. His
ownership is reduced from a perfect to an imperfect right, but it still
subsists. Similarly a creditor loses in six years his right of action
for the debt; but the debt itself is not extinguished, and continues to
be due and owing.
§ 163. =Agreement.=
We have already considered the general theory of agreement as a title of
right. It will be remembered that we used the term to include not merely
contracts but all other bilateral acts in the law, that is to say, all
expressions of the consenting wills of two or more persons directed to
an alteration of their legal relations. Agreement in this wide sense is
no less important in the law of property than in that of obligations.
As a title of proprietary rights _in rem_, agreement is of two kinds,
namely assignment and grant. By the former, existing rights are
transferred from one owner to another; by the latter, new rights are
created by way of encumbrance upon the existing rights of the grantor.
The grant of a lease of land is the creation by agreement, between
grantor and grantee, of a leasehold vested in the latter and encumbering
the freehold vested in the former. The assignment of a lease, on the
other hand, is the transfer by agreement of a subsisting leasehold from
the assignor to the assignee.
Agreement is either formal or informal. We have already sufficiently
considered the significance of this formal element in general. There is,
however, one formality known to the law of property which requires
special notice, namely, the delivery of possession. That _traditio_ was
an essential element in the voluntary transfer of _dominium_ was a
fundamental principle of Roman law. _Traditionibus et usucapionibus
dominia rerum, non nudis pactis transferuntur._[444] So in English law,
until the year 1845, land could in theory be conveyed in no other method
than by the delivery of possession. No deed of conveyance was in itself
of any effect. It is true that in practice this rule was for centuries
evaded by taking advantage of that fictitious delivery of possession
which was rendered possible by the Statute of Uses. But it is only by
virtue of a modern statute,[445] passed in the year mentioned, that the
ownership of land can in legal theory be transferred without the
possession of it. In the case of chattels the common law itself
succeeded, centuries ago, in cutting down to a very large extent the
older principle. Chattels can be assigned by deed without delivery, and
also by sale without delivery. But a _gift_ of chattels requires to this
day to be completed by the transfer of possession.[446]
In this requirement of _traditio_ we may see a curious remnant of an
earlier phase of thought. It is a relic of the times when the law
attributed to the fact of possession a degree of importance which at the
present day seems altogether disproportionate. Ownership seems to have
been deemed little more than an accessory of possession. An owner who
had ceased to possess had almost ceased to own, for he was deprived of
his most important rights. A person who had not yet succeeded in
obtaining possession was not an owner at all, however valid his claim to
the possession may have been. The transfer of a thing was conceived as
consisting essentially in the transfer of the possession of it. The
transfer of _rights_, apart from the visible transfer of _things_, had
not yet been thought of.
So far as the requirement of _traditio_ is still justifiably retained by
the law, it is to be regarded as a formality accessory to the agreement,
and serving the same purposes as other formalities. It supplies evidence
of the agreement, and it preserves for the parties a _locus
poenitentiae_, lest they be prematurely bound by unconsidered consent.
It is a leading principle of law that the title of a grantee or assignee
cannot be better than that of his grantor or assignor. _Nemo plus juris
ad alium transferre potest, quam ipse haberet._[447] No man can transfer
or encumber a right which is not his. To this rule, however, there is a
considerable number of important exceptions. The rule is ancient, and
most of the exceptions are modern; and we may anticipate that the future
course of legal development will show further derogations from the early
principle. There are two conflicting interests in the matter. The older
rule is devised for the security of established titles. Under its
protection he who succeeds in obtaining a perfect title may sit down in
peace and keep his property against all the world. The exceptions, on
the contrary, are established in the interests of those who seek to
_acquire_ property, not of those who seek to _keep_ it. The easier it is
to acquire a title with safety, the more difficult it is to keep one in
safety; and the law must make a compromise between these two adverse
interests. The modern tendency is more and more to sacrifice the
security of tenure given by the older rule, to the facilities for safe
and speedy acquisition and disposition given by the exceptions to it.
These exceptions are of two kinds: (1) those due to the separation of
legal from equitable ownership, and (2) those due to the separation of
ownership from possession. We have seen already that when the legal
ownership is in one man and the equitable in another, the legal owner is
a trustee for the equitable. He holds the property on behalf of that
other, and not for himself; and the obligation of this trusteeship is an
encumbrance upon his title. Yet he may, none the less, give an
unencumbered title to a third person, provided that that person gives
value for what he gets, and has at the time no knowledge of the
existence of the trust. This rule is known as the equitable doctrine of
purchase for value without notice. No man who ignorantly and honestly
purchases a defective legal title can be affected by any adverse
equitable title vested in any one else. To this extent a legal owner can
transfer to another more than he has himself, notwithstanding the maxim,
_Nemo dat quod non habet_.
The second class of exceptions to the general principle includes the
cases in which the possession of a thing is in one person and the
ownership of it in another. Partly by the common law, and partly by
various modern statutes, the possessor is in certain cases enabled to
give a good title to one who deals with him in good faith believing him
to be the owner. The law allows men in these cases to act on the
presumption that the possessor of a thing is the owner of it; and he who
honestly acts on this presumption will acquire a valid title in all
events. The most notable example is the case of negotiable instruments.
The possessor of a bank-note may have no title to it; he may have found
it or stolen it; but he can give a good title to any one who takes it
from him for value and in good faith. Similarly mercantile agents, in
possession of goods belonging to their principals, can effectively
transfer the ownership of them,[448] whether they are authorised thereto
or not.[449]
§ 164. =Inheritance.=
The fourth and last mode of acquisition that we need consider is
Inheritance. In respect of the death of their owners all rights are
divisible into two classes, being either inheritable or uninheritable. A
right is inheritable, if it survives its owner; uninheritable, if it
dies with him. This division is to a large extent, though far from
completely, coincident with that between proprietary and personal
rights. The latter are in almost all cases so intimately connected with
the personality of him in whom they are vested, that they are incapable
of separate and continued existence. They are not merely _divested_ by
death (as are rights of every sort), but are wholly _extinguished_. In
exceptional cases, however, this is not so. Some personal rights are
inheritable, just as property is, an instance being the status of
hereditary nobility and the political and other privileges accessory
thereto.
Proprietary rights, on the other hand, are usually inheritable. In
respect of them death is a divestitive, but not an extinctive fact. The
exceptions, however, are numerous. A lease may be for the life of the
lessee instead of for a fixed term of years. Joint ownership is such
that the right of him who dies first is wholly destroyed, the survivor
acquiring an exclusive title by the _jus accrescendi_ or right of
survivorship. Rights of action for a tort die with the person wronged,
except so far as the rule of the common law has been altered by statute.
In the great majority of cases, however, death destroys merely the
ownership of a proprietary right, and not the right itself.
The rights which a dead man thus leaves behind him vest in his
_representative_. They pass to some person whom the dead man, or the law
on his behalf, has appointed to represent him in the world of the
living. This representative bears the person of the deceased, and
therefore has vested in him all the inheritable rights, and has imposed
upon him all the inheritable liabilities of the deceased. Inheritance is
in some sort a legal and fictitious continuation of the personality of
the dead man, for the representative is in some sort identified by the
law with him whom he represents. The rights which the dead man can no
longer own or exercise _in propria persona_, and the obligations which
he can no longer _in propria persona_ fulfil, he owns, exercises, and
fulfils in the person of a living substitute. To this extent, and in
this fashion, it may be said that the legal personality of a man
survives his natural personality, until, his obligations being duly
performed, and his property duly disposed of, his representation among
the living is no longer called for.[450]
The representative of a dead man, though the property of the deceased is
vested in him, is not necessarily the beneficial owner of it. He holds
it on behalf of two classes of persons, among whom he himself may or may
not be numbered. These are the creditors and the beneficiaries of the
estate. Just as many of a man’s rights survive him, so also do many of
his liabilities; and these inheritable obligations pass to his
representative, and must be satisfied by him. Being, however, merely the
representative of another, he is not liable _in propria persona_, and
his responsibility is limited by the amount of the property which he has
acquired from the deceased. He possesses a double personality or
capacity, and that which is due from him in right of his executorship
cannot be recovered from him in his own right.
The beneficiaries, who are entitled to the residue after satisfaction of
the creditors, are of two classes: (1) those nominated by the last will
of the deceased, and (2) those appointed by the law in default of any
such nomination. The succession of the former is testamentary (_ex
testamento_); that of the latter is intestate (_ab intestato_). As to
the latter there is nothing that need here be said, save that the law is
chiefly guided by the presumed desires of the dead man, and confers the
estate upon his relatives in order of proximity. In default of any known
relatives the property of an intestate is claimed by the state itself,
and goes as _bona vacantia_ to the Crown.
Testamentary succession, on the other hand, demands further
consideration. Although a dead man has no rights, a man while yet alive
has the right to determine the disposition after he is dead of the
property which he leaves behind him. His last will, duly declared in the
document which we significantly call by that name, is held inviolable by
the law. For half a century and more, the rights and responsibilities of
living men may thus be determined by an instrument which was of no
effect until the author of it was in his grave and had no longer any
concern with the world or its affairs. This power of the dead hand
(_mortua manus_) is so familiar a feature in the law, that we accept it
as a matter of course, and have some difficulty in realising what a very
singular phenomenon it in reality is.
It is clear that some limitation must be imposed by the law upon this
power of the dead over the living, and these restrictions are of three
chief kinds:
(1) _Limitations of time._ It is only during a limited period after his
death, that the directions of a testator as to the disposition of his
property are held valid. He must so order the destination of his estate
that within this period the whole of it shall become vested absolutely
in some one or more persons, free from all testamentary conditions and
restrictions. Any attempt to retain the property _in manu mortua_ beyond
that limit makes the testamentary disposition of it void. In English law
the period is determined by a set of elaborate rules which we need not
here consider.
(2) _Limitations of amount._ A second limitation of testamentary power,
imposed by most legal systems, though not by our own, is that a testator
can deal with a certain proportion of his estate only, the residue being
allotted by the law to those to whom he owes a duty of support, namely
his wife and children.
(3) _Limitations of purpose._ The power of testamentary disposition is
given to a man that he may use it for the benefit of other men who
survive him; and to this end only can it be validly exercised. The dead
hand will not be suffered to withdraw property from the uses of the
living. No man can validly direct that his lands shall lie waste, or
that his money, shall be buried with him, or thrown into the sea.[451]
SUMMARY.
Divisions of the substantive civil law:
1. Law of Property—Proprietary rights _in rem_.
2. Law of Obligations—Proprietary rights _in personam_.
3. Law of Status—Personal rights.
Meanings of the term property:
1. All legal rights.
2. All proprietary rights.
3. All proprietary rights _in rem_.
4. Rights of ownership in material things.
Divisions of the law of property:
1. Ownership of material things—Corporeal property.
2. Rights _in re propria_ in immaterial things: _e.g._ patents and
trade-marks.
3. Rights _in re aliena_ over material or immaterial things: _e.g._
leases, trusts, and securities.
The ownership of material things.
Its essential qualities:
1. Generality.
2. Permanence.
3. Inheritance.
Ownership of land in English law.
Movable and immovable property. Land and chattels.
Movable and immovable rights.
The local situation of rights.
Real and personal property.
Meanings of the term chattel.
Rights _in re propria_ in immaterial things:
1. Patents.
2. Literary copyright.
3. Artistic copyright.
4. Musical and dramatic copyright.
5. Good-will, trade-marks, and trade-names.
Encumbrances over property:
1. Leases.
Their nature.
Their subject-matter.
Their duration.
2. Servitudes.
Their nature.
Their kinds:
1. Public and private.
2. Appurtenant and in gross.
3. Securities.
Their nature.
Mortgages and Liens.
The essential nature of a mortgage.
Equities of redemption.
Mortgages { By way of assignment.
{ By way of encumbrance.
The double ownership of mortgaged property.
The reduction of mortgages to liens.
The kinds of liens.
Modes of acquiring property:
I. Possession.
1. Absolute title to _res nullius_. Absolute ownership.
2. Relative title to _res aliena_. Possessory ownership.
II. Prescription.
1. Positive or acquisitive.
2. Negative or extinctive.
Rational basis of prescription.
Presumption of coincidence of possession and ownership.
Classes of rights subject to prescription.
Prescription { Perfect.
{ Imperfect—the limitation of actions.
III. Agreement.
{ 1. Assignment.
{ 2. Grant.
{ 1. Formal.
{ 2. Informal.
The efficacy of agreement.
Nemo dat quod non habet.
Exceptions:
1. Separation of legal and equitable ownership.
2. Separation of ownership and possession.
IV. Inheritance.
Rights { Inheritable.
{ Uninheritable.
The representatives of dead men.
The creditors of dead men.
The beneficiaries of dead men.
1. _Ab intestato._
2. _Ex testamento._
The limits of testamentary power.