Real Property
(Ref: John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and the Several States of the American Union, Childs & Peterson, c1856.)
REAL PROPERTY, That which consists of land, and of all rights and profits arising from and annexed to land, of a permanent, immovable nature. In order to make one's interest in land, real estate, it must be an interest not less than for the party's life, because a term of years, even for a thousand years, perpetually renewable, is a mere personal estate. 3 Russ. R. 376. It is usually comprised under the words lands, tenements, and hereditaments. Real property is corporeal, or incorporeal.
Corporeal consists wholly of
substantial, permanent objects, which may all be comprehended under the general
denomination of land. There are some chattels which are so annexed to the inheritance,
that they are deemed a part of it, and are called heir looms. (q.v.) Money agreed or
directed to be laid out in land is considered as real estate. Newl. on Contr.chap. 3;
Fonb. Eq. B. 1, c. 6, Sec. 9; 3 Wheat. Rep. 577.
Incorporeal property, consists of
certain inheritable rights, which are not, strictly speaking, of a corporeal nature, or
land, although they are by their own nature or by use, annexed to corporeal inheritances,
and are rights issuing out of them, or which concern them. These distinctions agree with
the civil law. Just. Inst. 2, 2; Poth. Traite de la Communaute, part 1, c. 2, art. 1. The
incorporeal hereditaments which subsist by the laws of the several states are fewer than
those recognized by the English law. In the United States, there are fortunately
noadvowsons, tithes, nor dignities, as inheritances.
The most common incorporeal
hereditaments, are, 1. Commons. 2. Ways. 3. Offices. 4. Franchises. 5. Rents. For
authorities of what is real or personal property, see 8 Com. Dig. 564; 1 Vern. Rep. by
Raithby, 4, n.; 2 Kent, Com. 277; 3 Id. 331; 4 Watts' R. 341; Bac. Ab. Executors, H 3; 1
Mass. Dig. 394; 5 Mass. R. 419, and the references under the article Personal property,
(q.v.) and Property. (q.v.)
The principal distinctions between
real and personal property, are the following: 1. Real property is of a permanent and
immovable nature, and the owner has an estate therein at least for life. 2. It descends
from the ancestor to the heir instead of becoming the property of an executor or
administrator on the death of the owner, as in case of personalty. 3. In case of
alienation, it must in general be made by deed, 5 B. & C. 221, and in presenti by the
common law; whereas leases for years may commence in futuro, and personal chattels may be
transferred by parol or delivery. 4. Real estate when devised, is subject to the widow's
dower personal estate can be given away by will discharged of any claim of the widow.
These are some interests arising
out of, or connected with real property, which in some respects partake of the qualities
of personally; as, for example, heir looms, title deeds, which, though in themselves
movable, yet relating to land descend from ancestor to heir, or from a vendor to a
purchaser. 4 Bin. 106.
It is a maxim in equity, that
things to be done will be considered as done, and vice versa. According to this doctrine
money or goods will be considered as real property, and land will be treated as personal
property. Money directed by a will to be laid out in land is, in equity, considered as
land, and will pass by the words "lands, tenements, and hereditaments whatsoever and
wheresoever." 3 Bro. C. C. 99; 1 Tho. Co. Litt. 219, n.T.
REALTY. An abstract of real, as distinguished from personalty. Realty relates to lands and tenements, rents or other hereditaments. Vide Real Property.
