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Property

PROPERTY is derived, probably through the French language, from the Latin word Proprietas, which is used by Gaius (ii. 8'J)as equivalent to ownership (dominium), and i» opposed to possessio. [possession.] The etymology of the word proprietas (proprius) suggests the notion of a thing being a man's own, which general notion is contained in every definition of property. Blackstone (ii. 1) defines 'the right of property' to be' that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.' A foreign writer defines ownership or property to be ' the right to deal with a corporeal thing according to a man's pleasure, and to the exclusion of all other persons.'

This definition excludes incorporeal things.which however are considered objects of property in our law, and were also considered as objects of property in the Roman law, under the general name of jura or iura in re; they were considered as detached parts of ownership, and so opposed to dominium, a word which represented the totality of the rights of ownership. (Savigny, Das Recht des Besitzes, 5th cd., p. 1G6.) This definition also describes property as consisting in a right, by which word right is meant 'a legal power to operate on a thing, by which it is essentially distinguished from the mere possession of the thing, or the physical power to operate upon it. Consequently such a right is not established by the possession of the thing; and it is not lost, when the possession of the thing is lost. Such a right can also be enforced by him who possesses the right by an actio in rem against every person who possesses the thing, or disputes his right to it.' (Mackeldey, Lehrbuch des heutigen Rom. Rechts, ii., p. 1-36.) This definition, which is characterised by a precision and accuracy which are altogether wanting in that of Blackstone, is here adopted. By property then is here understood only that which the positive law of a country recognises as property, and for the protection or recovery of which it gives a remedy by legal forms against every person who invades the property, or has the possession of it. Austin observes ('An Outline of a Course of Lectures on General Jurisprudence') that'dominion, property, orownership is a name liable to objection. For, first, it may import that the right in question is a right of unmeasured duraiion, as well as indicate the indefinite extent of the purposes to which the entitled person may turn the subject. Secondly, it often signifies property, with the meaning wherein property is distinguished from the right of possession. [posSession.] Thirdly, dominion, as taken with one of its significations, is exactly co-extensive with jus in rem, and applies to every right that is not jus in personam.' The first sense of the word property is expounded by determining, as hereafter explained, the quantity and quality of an estate as understood in English law. As to the second, possession is of itself no right, but a bare fact, and its relation to rights in rem is the same as the physical to the legal power to operate on a thing. The doctrine of possession is therefore distinct from and should precede the doctrine of property. [possession.] The third sense of property has reference to the legal modes of obtaining the possession of a thing in which a man can prove that he has property and a present right to possess. A complete view of property, as recognised by any given system of law, would embrace the following heads, which it would be necessary to exhaust, in order that the view should be complete. It would embrace an enumeration of all the kinds or classes of things which are objects of property • the exposition of the greatest amount of power over such things as are objects of property, which a man can legally exercise—and connected with this, the different parts or portions into which the totality of the right of property may be divided, or conceived to be divided: the modes in which property is legally transferred from one person to another, that is, acquired and lost: the capacity of particular classes of persons to acquire and transfer property as above understood ; or, to take the other view of this division, an enumeration of persons who labour under legal incapacities as to the acquisition and loss of property.

The following general outline of property is adapted to the English system of Law. It may be filled up by references to other articles in this work, or to treatises.

1. The kinds or classes of things which are objects of property.

The general division is into Things Real and Things Personal, trie incidents to which are so different in the system of English Law that they must be separately considered.

Things Real are comprehended under the terms of Lands, Tenements, and Hereditaments. The word Hereditaments is the most comprehensive of these terms, because it comprehends every thing which may be an object of inheritance, both Things Real, and also some Personal Things, such as heirlooms, which are objects of inheritance.

Hereditaments are divided into Things Corporeal and Incorporeal. A Corporeal Hereditaments is land, in the legal sense of the term. An Incorporeal Hereditament is defined by Blackstone to be ' a right issuing out of a thing corporate (corporeal), whether real or personal, or concerning or annexed to, or exerciseable within the same.' Perhaps the definition is not quite exact, and it would not be' easy to make an exact definition. The Things Incorporeal of the English law correspond in their general character to the Res Incorporales of the Roman Law, one distinguishing character of which is that they are incapable of tradition or delivery (Gaius, ii. 28): the Res Corporales of the Roman Law are things which are capable of tradition, whether moveable, as a horse, or immoveable, as a house. The Incorporeal hereditaments enumerated by Blackstone are, Advowsons, Tithes, Commons, Ways, Offices, Dignities, Franchises, Corodies or Pensions, Annuities, and Rents.

2. The greatest amount of power over such things as are objects of property which a man can legally exercise.

To this head belongs the English doctrine of Tenure, or *he various ways in which land is said lo be held. Though this was a much more important part of English law than it now is, it is still of importance; for Tenure always exists wherever there is the relation of landlord and tenant. As all land in the kingdom is held mediately or immediately of the crown, it follows that a man cannot have a Properly in land which shall not be subject to this right of the crown. He cannot operate upon his Property in land in any way so as to destrov this right; and consequently the utmost amount of Property in land which a man ran have, is limited. The interest which a man can have in any land, tenement, or hereditament, is called an Estate; and this word comprises the greatest amount of power and enjoyment, both as to time and manner, which a man can legally have over and in any of the three things just enumerated, as well as the smallest legal amount of such power and enjoyment: it also comprises, under tho notion of time, the determination of the period when his power and enjoyment shall commence, as well as when they shall cease. Lands, tenements, and hereditaments then being objects of Property, a man may cither have the most complete property in such things which is legally allowed, or he may have the least property in them which the law allows; and both this complete and this limited Property is expressed by the word Estate. An estate in a thing is Property in a thing, and Property in a thing is legally considered to be capable of division into defineable parts, called Estates, each of which estates has its defineable legal incidents. With reference to an estate the time during which the right of enjoyment continues is usually expressed by the term Quantity of Estate. The manner in which the enjoyment is to be exercised during this time is often expressed by the term Quality of Estate: thus a man may enjoy an estate solely or in joint-tenancy; his enjoyment may be co-extensive with the largest amount of legal enjoyment of any estate, or it may be limited by the contemporaneous Rights of others in or to the Property in which he has an Estate, that is, he may have the legal enjoyment for a determinate time, subject to various limitations and abridgments of the fullest enjoyment of Property. The time when the enjoyment of the Estate shall commence is also considered a part of its Quality; and the time of enjoyment commencing is either present, that is, contemporaneous with the acquisition of the estate, or future. It may not be useless to remark that here and elsewhere, where the word Estate is used in its technical sense, it does not mean the thing enjoyed, but the quantity and quality of enjoyment of the thing.

Independent of the quality and quantity of an estate, there is another modification of property which requires notice. A person may hare the estate both as to quantity and quality in the sense above explained, either with or without the right to the beneficial enjoyment. The person who has merely the Estate in quantity and quality, has the bare legal Estate. He who has not the right to the Estate in quantity and quality, as above explained, but merely to the enjoyment of such estate, while the other has not, is said to have the equitable estate. The term quality of estate might be used to express this equitable interest; but inasmuch as we want a word to express the manner and mode of enjoying an estate as distinct from the time of enjoyment, and as quality is the word used to express that manner and mode, it must not be used in a different sense. The explanation of tho nature of an equitable as distinguished from a legal estate belongs to Uses and Trusts.

It has been said that this distinction between legal and beneficial or equitable property is peculiar to the English law. (Lord Mansfield. 1 T. it., 759, n.) But these two kinds of property exited in the Roman law, and the theory of the division of ownership or property into Quiritarian or legal, and bonitarian, beneficial, or equitable, was fully developed. Its origin in tie Roman law is not certain; but it is a probable conjecture that its origin so far resembled the origin of the like division in English law, that it was due lo the attempt to get rid of the difficulties attending the alienation of property by the old legal forms. 'There is,' >aysGaius(ii. 40), 'among other nations (peregrin i) only one kind of ownership or property (dominium), so that a man is either owner or not; and it was the same in the old Roman law, for a man was either owner' ex jure quirilium,' or he was not. But ownership was afterwards divided, so that one man mny now be owner of a thing ex jure quiritium, and mother may have the same thing in bouis. For if in the case of a. res mancipi, I do not transfer it to you by inancipatio, or in jure cessio, but only deliver it, the thing indeed will become yours beneficially (in bonis), but it will remain mine legally (ex jure quiritium), till you have acquired the property by usucapion; for as soon as the time of usu capion is completed, from that time it begins to be yours in full ownership (pleno jure), that is, the thing begins to be yours both in bonis and in jure, just as if it had been transferred by mancipatio or in jure cessio.' This passugn seem* to suggest a conjecture as to the origin of the distinction between legal and equitable property which was of so much importance in Roman law. The distinction between the two kinds of ownership or properly was as clearly marked as in our system, though it was not applied to all the purposes to which this divided or double ownership is applied in our system.

3. The modes in which property is legally transferred from one person to another.

Property may either be acquired in a single thing, or in several things of the same kind at one time: or it may be acquired in a great variety of different kinds of things at the same time, which pass to the new owner, not as individual things, but as the component parts of a whole properly The Roman law designated the former mode of acquisition by tho term acquisitio rerum singularum; and the latter by the term acquisitio per univcrsitatem. Though the two modes of acquisition exist in our law, there are no names for them by which they are placed in opposition to one another. The cas-e of acquisitio per universitatem. or of universal succession,occurs when a man is made a bankrupt or insolvent, and an assignee or assignees are appointed, [bankrupt, p. 396; Insolvent, p. 49ti]; in which cases the whole of a man's property real and personal, as well as his rights and obligations generally, become the legal property of the assignee or assignees, and is applicable and must be applied according to the rules of law in the cases of bankruptcy and insolvency. With respect to personal property, universal succession occurs when a man by his last wilt appoints an executor; and an administrator with the will annexed, or without the will annexed when there is none, thereby acquires the whole personal property of the intestate. Both the heir and devisee also, in a sense, take by universal succession. As to both singular and universal succession, the modes of acquisition of estates in things real are reducible to two general heads —descent and purchase. 'Descent or hereditary succession is the title whereby a man on the death of his ancestor acquires his estate by right of representation at. his heir at law' (Blackstone); and an estate so acquired is commonly called an estate of inheritance.

Purchase, which is corrupted from the Latin word perquisilio, is defined by Littleton (i. 12) to be ' the possession of lands or tenements that a man hath by his deed or agreement, unto which possession he cometh not by title of descent from any of his ancestors, or of his cousins (consanguinei), but by his own deed.' Purchase as thus defined comprehends all the modes of acquiring property by deed or agreement, and not by descent; but it is not a complete description of purchase, as now understood, for it omils the mode of acquisition by will or testament, which however, when Littleton wrote, was of comparatively small importance, as the power of devising lands did not then exist, except by the custom of particular places. Blackstone makes the following enumeration of the modes of purchase—EscheV. Occupancy, Forfeiture, and Alienation. As to escheat, there is some difficulty in the classification, as the title appears tu be partly by descent and partly by purchase.

Tho head of alienation comprehends every form by which a man transfers property to another: it comprehends therefore both alienations made by a person during his life, and the disposition of his property by his last will and testament. The disposition of property by will has this peculiarity about it, that though the instrument must be completed in legal form during the lifetime of the giver, the persons to whom the property is given do not thereby obtain the property; they only obtain it by the death of the giver, who by that event becomes incapable of giving, but whose continuing: intention to give is testified by the continuing existence of the instrument of gift.

Thepaiticular modes of alienation by deed arc to a certain extent determined by the estate which the alienor possesses, and the estate or estates winch he intends to transfer. The forms of alienation are noticed under their various heads.

4. The legal capacity for the acquisition of estates it lauds, tenements, and hereditaments, is most briefly and conveniently shown by the enumeration of the classes of persons who labour under legal incapacity; and in like manner, as to the alienation or loss of estates, it is most couvenienlly shown by enumerating the persons who, owing to mental incapacity, infancy, or other causes, labour under legal incapacity to transfer or lose estates. This division comprehends >o much of the status of aliens, infants, lunatics, and married women, as relates to the acquisition or loss of estates.

Personal Property is not sufficiently described by the term 'moveables,' for certain estates in land are personal property, and are comprehended under the term Chattels Real. Terms for years are an example of chattels real; and they pass together with the rest of a man's personal estate to the executor, the universal successor. Chattels Personal are all other personal property, and are said by Blackstone ' to be properly and strictly speaking things moveable, which may be annexed to or attendant on the person of the owner, and carried about with him from one part of the world to another. Such are animals, household stuff, money, jewels, coin, garments, and everything else that can properly be put in motion, and transferred from place to place.' Personal property as thus denned corresponds to llie mobilia or res mobiles of the Roman law; but this is a very inadequate description of personal property as recognised by the English law. And herein we first perceive the greater certainty and distinctness of the law relating to real property compared with the law relating to chattels; the things which fan be the objects of real property are definoablo, as well as the estates that can be had in them; the things that can be the objects of personal property are hardly determinable, and the estates, or more properly the interests, which a man may have in them, are perhaps also less determinate. As examples of objects of personal property, which in no way come within Blackstone's description, we may instance patent-rights, which are things incorporeal, though not hereditaments, and are the objects of properly.

A quantity of stock in the public funds is not money, though often talked of as such, but still it is property. Even debts due to a testator or intestate are considered as property with respect to probate and letters of administration: still they are not expressed by the term goods and chattels in the letters of administration, but by the term * credits,' for as debts are not the property of a man to whom they are due, so they cannot became properly because he happens to die. Things can be assigned by the person who has a claim to them, though they may be things which cannot be called his property: a chose in action is an instance of this. Blackstone observes: 'the money due on a bond is a chose in action; for a property in the debt vests at the time of forfeiture mentioned in the obligation, but there is no possession till recovered by course of law.' He had just before spoken of the nature of property in action being such that a man 'hath not the occupation, but merely a bare right to occupy the thing in question.' From this it appears that he treats a debt due to a man as a property belonging to him, whereas the debt due merely gives a right of action to recover a determinate sum of money, or a sum which is less than some determinate sum. In this instance, says Blackstone, 'the property or right of action depends upon an express contract or obligation to pay a stated sum.' Here he uses property and right of action as synonymous, which is incorrect; for property implies a determinate thing, and a right of action may be either for a determinate thing cr to compel a person to do some determinate act. The thing claimed is properly enough called a'thing in action.' but the action is not to have a thing, but that the defendant shall do a certain act. Blackstone observes, in a note, that the same idea and the same denomination of property prevailed in the civil law, but this is a mistake. Iu the first passage (Dig. 41, tit. 1, s. 52), to which he refers in support of his statement, it is clear that a corporeal definite thing is spoken of, which the commentator could hardly have doubted about, if he had given in his note the whole of the passage instead of a part of it. The passage is this: 'a thing is a man's in bonis, whenever he can defend his possession of it by a plea (exceptio), or recover it when lost by an actio." This actio would be in rem; the declaration of the.plaintifF would ailirm that the thing was his. In the other passage quoted by Blackstone {Dig. 50, tit. 16, s. -19), things which consist 'in actionibus, petitionibus, persecutionibus' are included among the things in bonis;

but the things in action so spoken of are things which a man has not, as contrasted with things which a man has, in his possession, and these are things corporeal, things determinate. Besides, even if we should admit that the Roman law treated a debt as a thing in bonis, it did not treat it as property, for a thing in bonis was not property in the sense in which Blackstone is here using property. Further, when a Roman claimed a debt, his declaration was that something ought to be given to him or done for his benefit by the defendant; and this 'giving' always meant giving something which did not belong to the plaintiff, for it was a principle of Roman law that you could not give to a man what already belonged to him. But the Roman law had a precision in these matters of which the commentator had not the slightest idea.

From these remarks it will appear, first, that there is a difficulty in classifying the things that are objects of personal property; second, that things, as cl loses inaction, are not property, and yet they can be transferred (in equity) ns if they were properly. Accordingly it happens that it is sometimes difficult to say whether a particular thing is an assignable thing or not, whether in its nature it is capable of any transfer.

Properly in Chattels may, like properly in Things Real, vary as to quantity and quality of interest, though things personal are not capable of such extended and various modifications, analogous to estates, as things real are. As to quantity, that is, duration, a man may have the use of a personal thing for life, and another may have the absolute property in it afler his death. As to quality, persons may own a thing personal as joint tenants and as tenants in common. There is an equitable property in chaltels as well as in thinus real. Money, for instance, is often paid to a trustee, in order that he may give the interest of it to one person for life, and after his death pay the money to another. The trustee, so long as he holds the money, has the legal property in the money, and in the thing in which the money is invested. A legatee has only an equitable interest, even in a specific legacy, after his testator's will is proved, until the executor gives the thing to him, or in some clear way admits his right to it.

The modes of acquiring and losing personal property are reduced by Blackstone to the following principal modes Occupancy; Prerogative, whereby a right accrues to the crown or the crown's grantee; Forfeiture, which is a punishment for a crime or misdemeanour; Custom, as heriots, &c.; Succession, by which term Blackstone understands the capacity of a corporation aggregate to take what their predecessors had: Marriage, by which the husband acquires the chattels of the wife, and the right of suing for herchoses in action, and a peculiar kind of interest in her chattels real; Judgment; Gift or Grant; Contract; Bankruptcy, so far as relates to chattels; Testament; Administration. The enumeration taken from Blackstone is not here offered as one that is complete or altogether unexceptionable. Under Contract Blackstone includes sale, as to which it mnv be observed that the formalities required by the law for the transfer of ownership in things personal are few; but thedifficult questions which arise as to the transfer of property in personal things are probably much more numerous thaiu in the case of estates in things real.

Under Contract he also comprehends bailment, by which 'a special qualified property is transferred from the bailor to the bailee together with the possession.' This qualified) property, as it is called, gives the bailee a right of aeliom against all persons who injure or take away the chattels; and Blackstone, as usual, finds a reason for this right of action. This right of action is however really founded on the right of possession, and it is just the same right of action that a man has who finds a thing, against any person, except the owner, who injures or takes away the thing. This right, when understood, is in all respects consistent with sound principles; and there is no objection to calling it a right founded on a qualified property, when the terra qualified property is rightly understood. Under contract, he also includes hiring and borrowing, and these also are contracts which, he says, may transfer a qualified property to the hirer or borrower. The same remarks apply to this kind of property as to that acquired by bailment. There is however a case in which a man must acquire an absoluteproperty by borrowing, as in the case of the Roman Mutuum, when the thing borrowed is a thing which consists, 'pondeie, numero, or mensura,' as, for instance, so many pounds of butter. The distinctions of the Roman Law between lining,' Locatio et Conductio,' Lending, ' Mutuutu.' 'Commodatum.'and 'Depositura,'are founded on unchangeable principles, and are expounded in that system wiih a clearness which, in this respect, ours perhaps dues not admit. The incapacities of persons as to acquiring Personal Property are fewer than those as to Real Property; and the incapacities to transfer and lose are also fewer. But a complete enumeration of the classes of persons who labour under either of these incapacities, and the particular incapacities of each of such classes, would probably be more dimcult than a like enumeration as to Estates in Real Property.

Note - this article incorporates content from The Penny Cyclopaedia of the Society for the Diffusion of Useful Knowledge (1840)

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