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Real Estate




REAL ESTATE. The land law of England and of countries whose law is based upon that of England stands in a peculiar position, which can be understood only by an outline of its history.

History.—Such terms as "fee" or "homage" carry us far back into feudal times. Rights of common and dis-tress are based upon still older institutions, forming the very basis of primitive law. The conception of tenure is the most fundamental ground of distinction between real and personal estate, the former only being strictly en-titled to the name of estate (see ESTATE). The division into real and personal is coincident to a great extent with that into immovable and movable, generally used by systems of law founded on the Roman (see PERSONAL ESTATE). That it is not entirely coincident is due to the influence of the Roman law itself. The Greeks and the Romans of the republic were essentially nations of citizens; the Teutons were essentially a nation of land-folk ; the Roman empire bridged the gulf between the two. It is probable that the English land law was produced by the action of the policy adopted in the lower empire, finally developed into feudalism, upon the previously ex-isting course of Teutonic custom (see FEUDALISM). It is sufficient to say here that the distinguishing features of the Teutonic system were enjoyment in common and the absence of private ownership, except to a limited extent. The history of the development of the old English land law before the Conquest will be found under ENGLAND and LAND. Its principal features, stated as shortly as possible, were (1) liberty of alienation, either by will or inter vivos, of such land as could be alienated, chiefly, if not entirely, bocland, subject always to the limits fixed by the hoc; (2) publicity of transfer by enrolment in the shire-book or church-book ; (3) equal partition of the estate of a deceased among the sons, and failing sons among the daughters; (4) cultivation to a great extent by persons in various degrees of serfdom, owing money or labour rents ; (5) variety of custom, tending to become uniform, through the application of the same principles in the local courts ; (6) subjection of land to the trinoda nécessitas, a burden imposed for the purpose of defence of the realm. The rudiments of the conceptions of tenure and of the crown as lord paramount were found in the old English system, and laenland was an anticipation of the limited interests which afterwards became of such importance. The con-nexion of political privileges with the ownership of land is not peculiar to the pre-Conquest or any other period. It runs through the whole of English history. Originally all freeholders seem to have voted in the county court. Finally the Reform Acts of this century, however they may have lowered the qualification, still require (except in the case of the university vote) the vote to be derived from an interest in land. No amount of consols will give a vote at a parliamentary election. A qualification from land is also necessary in the case of sheriff, justices of the peace, and other public officials.

The elements of feudalism so far existed in England under the Anglo-Saxon and Danish kings as to make it easy to introduce it in full at the Norman Conquest. Feudalism was not so much a distinct and separate creation, developed at once in its maturity, as a collection of institu-tions whose origin was to be found in unconnected sources. What the Norman Conquest did was not to change all at once allodial into feudal tenure, but to complete the association of territorial with personal dependence in a state of society already prepared for it. "Nulle terre sans seigneur" was one of the fundamental axioms of feudalism. There might be any number of infeudations and subinfeudations to mesne lords, but the chain of seigniory was complete, depending in the last resort upon the king as lord paramount. Land was not owned by free owners owing only necessary militia duties to the state, but was held of the king by military service of a far more onerous nature. The folkland became the king's land ; the soldier was a landowner instead of the landowner being a soldier. Free owners tended to become tenants of the lord, the township to be lost in the manor. The common land became in law the waste of the manor, its enjoyment rest-ing upon a presumed grant by the lord. On the other hand, the whole of England did not become manorial ; the conflict between the township and the manor resulted in a compromise, the result of which affects English tenure to this day. But it was a compromise much to the advantage of the privileged class, for in England more than in any other country the land law is the law of the nobility and not of the people. One reason of this is that, as England was never so completely feudalized as were some of the Continental states, the burden of feudalism was not so severely felt, and has led to less agitation for reform.

The land forfeited to the Conqueror was regranted by him to be held by military service due to the king, not to the mesne lord as in Continental feudalism. In 108G at the council of Salisbury all the landholders swore fealty to the crown. In the full vigour of feudalism the inhabit-ants of England were either free or not free. The free inhabitants held their lands either by free tenure (liberuni tenementum, franktenement) or by a tenure which was originally that of a non-free inhabitant, but attached to land in the possession of a free man. Franktenement was either military tenure, called also tenure in knight service or chivalry (including barony, the highest tenure known to the law, grand serjeanty and the special forms of escuage, castle-guard, cornage, and others), or socage (including burgage and petit serjeanty), or frankalmoign {libera elee-mosyna) or divine service, by which ecclesiastical corpora-tions generally held their land. The non-free inhabitants were in Domesday Book servi, cotarii, or bordarii, later nativi or villani, the last name being applied to both free men and serfs. All these were in a more or less dependent condition. The free tenures all exist at the present day, though, as will appear later, the military tenures have shrunk into the unimportant and exceptional tenure of grand serjeanty. The non-free tenures are to a certain extent represented by COPYHOLD (q.v.). The most im-portant difference between the military and socage tenures was the mode of descent. Whether or not a feudal benefice was originally hereditary, it tad certainly become so at the time of the Conquest, and it descended to the eldest son. This applied at once in England to land held by military service as far as regarded the capital fief. The descent of socage lands or lands other than the capital fief for some time followed the old pre-Conquest rule of descent. Thus in the so-called "Laws of Henry I." the lands other than the capital fief, and in Glanvill, who wrote in the time of Henry II., socage lands, if anciently partible (antiquitus divisum), were divided among all the sons equally. But by the time of Bracton (Henry III.) the course of descent of lands held by military service had so far prevailed that, though it was a question of fact whether the land was partible or not, if there was no evidence either way descent to the eldest son was pre-sumed. Relics of the old custom still remain in the case of gavelkind (see below). The military tenant was sub-ject to the feudal incidents, from which the tenant in socage was exempt. These incidents, especially wardship and marriage, were often of a very oppressive nature. Alienation of lands by will, except in a few favoured districts, became impossible; alienation inter vivos was restrained in one direction in the interests of the heir, in another in the interests of the lord. At the time of Glan-vill a tenant had a greater power of alienation over land which ho had purchased {terra acquietata) than over land which he had inherited. But by the time of Bracton the heir had ceased to have any interest in either kind of land. The lords were more successful. It was enacted by Magna Cliarta that a free man should not give or sell so much of his land as to leave an amount insufficient to perform his services to his lord. In spite of this provision, the rights of the lords were continually diminished by subinfeudation until the passing of the Statute of Quia Emptores. Aliena-tion by a tenant in chief of the crown without licence was a ground of forfeiture until 1 Edw. III. st. 2, c. 12, by which a fine was substituted. The modes of con-veyance at this time were only two, feoffment with livery of seisin for corporeal hereditaments, grant for incorporeal hereditaments. Livery of seisin, though public, was not officially recorded like the old English transfer of property. The influence of local custom upon the land law must have become weakened after the circuits of the judges of the King's Court were established by Henry II. Jurisdiction over litigation touching the freehold was taken away from the lords' courts by 15 Ric. II. c. 12.

The common law as far as it dealt with real estate had in the main assumed its present aspect by the reign of Henry III. The changes which have been made since that date have been chiefly due to the action of equity and legislation, tlie latter sometimes interpreted by the courts in a manner very different from the intention of parliament. The most important influence of equity has been exercised in MORTGAGE (q.v.) and trusts (see TRUST), in the doctrine of specific performance of contracts con-cerning real estate, and in relief from forfeiture for breach of covenant. As to legislation, it is impossible in this place to do more than direct attention to the main provisions of the principal statutes among the mass of those which from Magna Charta downwards have dealt with real estate.





History of Real Estate Legislation.—The reign of Edward I. is notable for three leading statutes which are still law, all passed in the interests of the superior lords. The Statute of Mortmain (7 Edw. I. st. 2, c. 13) is the first of a long series directed against the acquisition of land by religious and charitable corporations (see CHARITIES). The statute He Donis Conditionalibus (13 Edw. I. c. 1) forbade the alienation of estates granted to a man and the heirs of his body, which before the statute became on the birth of an heir at once alienable (except in the case of gifts in frankmarriage), and so the lord lost his escheat. For the mode in which the statute was practically defeated and estates tail in their modern form created see ENTAIL. The statute Quia Emptores (18 Edw. I. c. 1) preserved those rights of the lords which were up to that time sub-ject to be defeated by subinfeudation, by enacting that in any alienation of lands the alienee should hold them of the same lord of the fee as the alienor. Since 1290 it has been impossible to create an estate in fee-simple to be held of a mesne lord, or to reserve a rent upon a grant of an estate in fee (unless in the form of a rent-charge), or to create a new manor. The statute, however, does not bind the crown. The practical effect of the statute was to make the transfer of land thenceforward more of a commercial and less of a feudal transaction. The writ of elegit was introduced by the Statute of Westminster II. in 1285 as a creditor's remedy over real estate. It has, however, been considerably modified by subsequent legislation. From 1290 to the reign of Henry VIII. there is no statute of the first importance dealing with real estate. The reign of Henry VIII., like the reign of Edward I., is signalized by three Acts, the effects of which continue to this day. The one which has had the most lasting influence in law is the Statute of Uses, 27 Hen. VIII. c. 10 (see CONVEY-ANCING, TRUST). The Statute of Uses was intended to provide against secrecy of sales of land, and as a necessary sequel to it an Act of the same year (27 Hen. VIII. c. 16) enacted that all bargains and sales of land should be duly enrolled (see SALE). Bargain and sale was a form of equi-table transfer which had for some purposes superseded the common law feoffment. It applied only to estates of inheritance and not to terms of years. The unforeseen effect of 27 Hen. VIII. c. 16 was to establish as the ordinary form of conveyance until 1841 the conveyance by lease and release.2 Uses having become legal estate by the Statute of Uses, and therefore no longer devis-able, 32 Hen. VIII. c. 1 (explained by 34 and 35 Hen. VIII. c. 5) was passed to remedy this inconvenience. It is still law as to wills made before 1838 (see WILL). In the reign of Elizabeth the Acts of 13 Eliz. c. 5 and 27 Eliz. c. 4 avoided fraudulent conveyances as against all parties and voluntary conveyances as against subsequent purchasers for valuable consideration. Early in the reign of Charles II. the Act of 1661 (12 Car. II. c. 24) turned all the feudal tenures (with the exception of frankalmoign and grand serjeanty) into tenure by free and common socage and abolished the feudal incidents, The Statute of Frauds (29 Car. II. c. 3) contained provisions that certain leases and assignments, and that all agreements and trusts relating to land, should be in writing (see FRAUD). The land registries of Middlesex and York-shire date from the reign of Anne (see REGISTRATION). Devises of land for charitable purposes were forbidden by the Mortmain Act (9 Geo. II. c. 36). In the next reign the first general Inclosure Act was passed, 41 Geo. III. c. 109 (see COMMONS). In the reign of William IV. were passed the Prescription, Limitation, and Tithe Commuta-tion Acts (see PRESCRIPTION, LIMITATION, TITHES) ; fines and recoveries were abolished and simpler modes of con-veyance substituted by 3 and 4 Will. IV. c. 74; and the laws of inheritance and dower were amended by 3 and 4 Will. IV. cc. 105, 106 (see INHERITANCE, HUSBAND AND WIFE). In the reign of Victoria there has been a vast mass of legislation dealing with real estate in almost every conceivable aspect. At the immediate beginning of the reign stands the Wills Act (see WILL). The transfer of real estate has been simplified by 8 and 9 Vict. c. 106 and by the Conveyancing Acts of 1881 and 1882 (see below). Additional powers of dealing with settled estates were given by the Settled Estates Act, 1856, later by the Settled Estates Act, 1877, and the Settled Land Act, 1882 (see SETTLEMENT). Succession duty was levied for the first time on freeholds in 1853. The strictness of the Mortmain Act has been relaxed in favour of gifts and sales to public institutions of various kinds, such as schools, parks, and museums. The period of limitation has been shortened for most purposes from twenty to twelve years by the Real Property Limitation Act, 1874 (see LIMITATION). Several Acts have been passed dealing with the enfranchisement and commutation of copyholds and the preservation of commons and open spaces (see COM-MONS, COPYHOLD). The Naturalization Act, 1870 (33 and 34 Vict. c. 14), enables aliens to hold and transfer land in England. The Felony Act, 1870 (33 and 34 Vict. c. 23), abolished forfeiture of real estate on conviction for felony. The Agricultural Holdings Act, 1883 (46 and 47 Vict. c. 61), gives the tenant of a tenancy within the Act a general right to compensation for improvements, substitutes a year's notice to quit for the six months' notice previously necessary, enlarges the tenant's right to fixtures, and limits distress to a year's rent. By 47 and 48 Vict. c. 71 the law of escheat is extended to incorporeal hereditaments and equitable estates. Among other subjects which have been dealt with by recent legislation may be mentioned REGISTRATION, MORTGAGE, PARTITION, EXCAMBION, FIXTURES (qq.vv.), taking of land in execution, declaration of title, and apportionment. Not a year passes in which the land law is not altered to a greater or less degree. Bills have been introduced within recent years, but hitherto unsuccess-fully, for amending the law by the assimilation of the suc-cession to real and personal estate, and for the compulsory enfranchisement of leaseholds.

Real estate at the present day is either legal or equitable, a difference resting mainly upon historical grounds (see EQUITY, TRUST). The following observations apply in general to both kinds of estate. The usual classification of interests in real estate regards either the extent, the time, or the mode of enjoyment. The division accord-ing to the extent is in the first instance into corporeal and incorporeal hereditaments, a division based upon the Roman law division of res into corporales and incorporates, and open to the same objection, that it is unscientific as co-ordinating subjects of rights with the rights themselves. Corporeal hereditaments, says Blackstone, "consist of such as affect the senses, such as may be seen and handled by the body ; incorporeal are not the objects of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation." Corporeal hereditaments are all necessarily freehold an interest in land less than freehold, such as a term of years, is personalty only. There was no room for such an interest in the feudal gradation of tenure ; it was regarded as a mere personal contract and was incapable of the incidents of tenure. By the Conveyancing Act, 1881 (44 and 45 Vict. c. 41, s. 65), the residue of a long term of years may in certain cases be enlarged into the fee-simple. A copyhold is in strict law only a tenancy at the will of the lord (see COPYHOLD). Estates of freehold are either estates for life or in fee (called also estates of inheritance), the latter being in fee-tail or in fee-simple. An estate for life may be either for the life of the tenant or for the life of another person, the latter called an estate pur autre vie. The former kind of estate includes estates of dower and curtesy (see HUSBAND AND WIFE). An estate in fee is called a fee simply, an obvious sign of its feudal origin. Estates tail are either general or special, the latter being in tail male or (rarely) in tail female. There may also be a quasi-ontail of an estate pur autre vie (see ENTAIL). An estate in fee-simple is the largest estate known to English law. Its ordinary incidents are an oath of fealty (never exacted), ESCHEAT (q.v.), and (in a manor) suit of the court baron, and occasionally a small quit-rent and relief. All these are obviously relics of the once important feudal incidents. Incorporeal hereditaments consist chiefly, if not wholly, of rights in alieno solo. They are divided by Mr Joshua Williams (Ileal Property, pt. ii.) into (1) reversions, remainders, and executory interests, (2) hereditaments purely incorporeal, the last being either appendant, appurtenant, or in gross. Examples are profits a prendre (such as rights of common), easements (such as rights of way), seigniories, advowsons, rents, tithes, titles of honour, offices, franchises. Before 1845 corporeal hereditaments were said to lie in livery, incorporeal in grant. But by 8 and 9 Viet. c. 106, s. 2, all corporeal hereditaments are, as regards the conveyance of the immediate freehold thereof, to be deemed to lie in grant as well as in livery. With regard to the time of enjoyment, estates are either in possession or in expectancy, —that is, in reversion or remainder or executory interests (see REMAINDER). With regard to the mode of enjoyment, estates are either joint, in common, in coparcenary, or in severalty.

Exceptional Tenures.—It has been already stated that there are still to be found survivals of the old pre-Conquest customary law. They are found both in the tenure and in the conveyance of land. The only customs of which judicial notice is taken are GAVELKIND (q.v.) and BOROUGH-ENGLISH (q.v.). Any other local customs, as in manors, must be proved by evidence. The tenures of frankalmoign and grand serjeanty were specially preserved by 12 Car. II. c. 24. Tenure in frankalmoign is the nearest approach in English law to absolute ownership. An estate in frankalmoign has no incidents, as it is held simply by divine service and is not subject to escheat. All tenures in frankalmoign must (except where created by the crown) be older than Quia Emptores. The tenure of grand serjeanty is the holding of lands by doing a personal service to the king, as carrying his banner or sword. Petit serjeanty consists in the pay-ment to the king yearly of a bow, sword, dagger, or such other small things belonging to war (Littleton, § 159). It is in effect socage.





Title.—This is the name given to the mode of acquisition of rights over real estate. Title may arise either by alienation, voluntary or involuntary, or by succession. Voluntary alienation is either inter vivos or by will. The former branch is practically synonymous with conveyance, whether by way of sale, settlement, mortgage, or otherwise. As a general rule alienation of real estate inter vivos must be by deed since 8 and 9 Vict. c. 106. Since that Act a deed of grant has superseded the old forms of feoffment and lease and release. Considerable alterations in the direction of shortness and simplicity have been made in the law of transfer of real estate by the Conveyancing Acts, 1881, 1882 (44 and 45 Vict, c. 41, 45 and 46 Vict. c. 39). The word "grant" is no longer necessary for a conveyance, nor are the old words of limitation "heirs" and "heirs of the body." It is sufficient to use the words "in fee-simple," "in tail," "in tail male," " in tail female." Many provisions usually inserted in deeds, such as covenants for title by a beneficial owner and powers of appointment of new trustees, obtain statutory sanction. Forms of mortgage, conveyance, and settlement are appended to the Act. The Solicitors' Remuneration Act, 1881 (44 and 45 Vict. c. 44), was passed as a necessary sequel to the Conveyancing Act, and the remuneration of solicitors now stands upon a different and more satisfactory basis. For acquisi-tion by will and succession, see WILL, INHERITANCE. Involuntary alienation is by BANKRUPTCY (q.v.) and by other means of enforcing the rights of creditors over land, such as distress or execution. It may also arise by the exercise by the state of its right of eminent domain for public purposes, as under the Lands Clauses and other Acts. In sales of real estate title is generally traced in an abstract delivered by the vendor (see SALE).

Restraints on Alienation.—The alienation of real estate may be subject to almost any conditions, provided that such conditions do not contravene the law. As a general rule there can be no restric-tions upon the alienation of an estate in fee-simple ; the two ideas are incompatible. In the case, however, of a married woman a restraint on anticipation is allowed within certain limits. The power of imposing such a restraint is preserved by the Married Women's Property Act, 1882 (45 and 46 Vict. c. 75, s. 19), subject to the right of the court to bind the interest of the married woman ' whore it would be for her benefit to do so (44 and 45 Vict. c. 41, s. 39). In another direction the imposition of a course of devolution upon property is forbidden by the law against perpetuities, under which no executory interest can be made to commence unless within the period of any fixed number of existing lives, and an additional period of twenty-one years (with a few months added, if necessary, for the period of gestation). Accumulation of income is forbidden (with a few exceptions) by the Thelusson Act (39 and 40 Geo. III. c. 98) for any longer term than the life of the grantor or settlor, or twenty-one years from his death, or during a period of minority. Certain persons are by the general policy of the law disabled from exercising full proprietary rights, such as married women (see above), convicts, infants, and lunatics. Estates tail are in general alienable under the Fines and Recoveries Act (seo ENTAIL). But in a few cases estates tail are settled inalienably by Act of Parliament, generally as a reward for public services. Estates are thus settled to go with the titles of Marlborough, Wellington, Abergavenny, and Shrewsbury.

Exceptional Modes of Alienation.—In some of these cases, like those of the exceptional tenures, the influence of the old customary law is to be traced. The transfer of copyholds especially depends to a great extent upon the custom of particular manors, but, subject to that, it usually takes place by surrender and admittance (see COPYHOLD). Gavelkind lands may be conveyed by feoffment by any infant above the age of fifteen. For mines in the Forest of Bean a peculiar mode of transfer is provided by 1 and 2 Vict. c. 43. In the Isle of Portland there seems to be a distinct survival of the pre-feudal conveyance. The vendor and purchaser meet in the parish church, where a deed is signed by the parties in the presence of two householders of the island. These deeds are called "church gifts."

Procedure.—In some cases rights attaching to real estate are protected by peculiar remedies. At an early period it became more convenient to try the right to the possession of, rather than the right to the property in, real estate. Possessory tended to super-sede proprietary remedies, from their great simplicity and elasticity. The general mode of trying the right to both property and posses-sion was from the time of Henry II. the real action, the form called " writ of right" (after Magna Charta gradually confined to the Court of Common Pleas) being used to determine the property, that called " assise of novel disseisin " being the general means by which the possession wTas tried. About the reign of Elizabeth the action of ejectment became the ordinary form of possessory remedy. Real actions existed until 3 and 4 Will. IV. c. 27, by which they were finally abolished, with the exception of writ of right of dower, writ of dower wide nihil habet, quare impedit, and ejectment. Of these QUARE IMPEDIT (q.v.) appears to be the only one now in use. The assise of novel disseisin, the action of ejectment in both its original and its reformed stage (see EJECTMENT), and finally the action for the recovery of land in use since the Judicature Acts are all historic-ally connected as gradual developments of the possessory action (see POSSESSION). The action for the recovery of land is still sub-ject to special provisions and is not quite in the same position as an ordinary action (see Rules of the Supreme Court, 1883, Ord. xii. rr. 25-29, Ord. xviii. r. 2, &c). There are certain matters affecting real estate over which the Court of Chancery formerly had exclusive jurisdiction, in most cases because the principles on which the court acted had been the creation of equity. The Judicature Act, 1873 (36 and 37 Vict. c. 66, s. 34), assigns to the Chancery Division of the High Court of Justice all causes and matters for (inter alia) the redemption or foreclosure of mortgages, the raising of portions or other charges on land, the sale and distribution of the proceeds of property subject to any lien or charge, the specific performance of contracts between vendors and purchasers of real estates, including contracts for leases, the partition or sale of real estates, and the wardship of infants and the care of infants' estates. In the case of rent a summary mode of remedy by act of the creditor still exists (see DISTRESS, RENT).

For the economical aspect of the English law, see LAND. For a list of the main points of difference between real and personal estate, see PERSONAL ESTATE.

Authorities.—Those cited at the end of LAND, and in addition Digby, History of the Law of Real Property ; Elton, Tenures of Kent; Goodeve, Modern JAXW of Real Property ; Pollock, Land Laws ; Stephen, Commentaries, vol. i. ; Seebohm, English Village Community; Williams, Real Property; Wolstenholme and Turner Conveyancing Acts.

Ireland.—The law of real estate in Ireland is the English law,

to stamp duties on deeds perhaps falls under this head. These imposts are really involuntary alienations of part of the profit of the land.

which finally superseded the native law in James I.'s reign, as modified by subsequent legislation. The main difference is in the law of LANDLORD AND TENANT (q.v.) and the operation of the Landed Estates Court, merged in the High Court of Justice in Ire-land by the Supreme Court of Judicature (Ireland) Act, 1877.

United States.—The law of real estate in the United States is the law of England modified to suit a different state of circumstances. The main point of difference is that in the United States the occupiers of land are generally wholly or in part owners, not tenants, as in England. This is to a great extent the effect of the home-stead laws (see HOMESTEAD). The traces of the feudal origin of the law are, as might be expected, considerably less prominent than in England. Thus estates tail are practically obsolete ; in some States they are specially forbidden by the State constitutions. The law of descent is the same in real and personal estate (see INHERIT-ANCE). Manors do not exist, except in the State of New York, where they were created by the crown in colonial days (Bouvier, Law Diet., "Manor"). Registration of deeds is general (see REGISTRATION). In some States forms of deed are prescribed by statute. Conveyancing is for the most part simpler than in Eng-land. The holding of real estate by religious or charitable corpora-tions is generally restricted by the Act creating them rather than by anything like the English law of mortmain. In Pennsylvania such a corporation cannot hold land without an Act of the legisla-ture, and in Territories of the United States it cannot hold real estate of a greater value than $50,000 (Act of Congress of 1st July 1862, c. 126). Perpetuities are forbidden in most States. The right of eminent domain is at once acknowledged and limited by the constitution of the United States. By art. 5 of the Amendments private property is not to be taken for public use without just com-pensation. A similar provision is found in many of the State con-stitutions. By an Act of Congress of 9th April 1866, c. 31, all citizens of the United States have the same right in every State and Territory as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property. In most States aliens may hold land ; but in some States they cannot do so without becoming naturalized or at least filing in the specified manner a declaration of intention to become naturalized. For the State laws affecting the capacity of aliens to hold land, see Wash-burn, Heal Property, vol. i. p. 64.

International Law.—The law of the place where real estate is situated (lex loci rei sitx) governs its tenure and transfer. The laws of England and of the United States are more strict on this point than the laws of most other countries. They require that the formalities of the locus rei sitse must be observed, even if not necessary to be observed in the place where the contract was made. The lex loci rei sitm determines what is to be considered real estate. A foreign court cannot as a general rule pass title to land situated in another country. The English and United States courts of equity have to a certain extent avoided the inconvenience which this inability to deal with land out of the jurisdiction sometimes causes by the use of the theory that equity acts upon the conscience of the party and not upon the title to the foreign land. Thus in the leading case of Penn v. Lord Baltimore in 1750 (1 Vesey's Peports, 444) the Court of Chancery on this ground decreed specific per-formance of articles for settling the boundaries of the provinces of Pennsylvania and Maryland. The difficulty always arises that, although the court professes to act upon the conscience, it must indirectly act upon the property, and that it cannot carry its decision into execution without the aid of the local tribunals. (J. Wt. )



Footnotes


The name has not remained as in Germany and Denmark. A lief is still Lehen in Germany, Lehn in Denmark.
"The relation of vassalage, originally personal, became annexed to the tenure of land" (Palgrave, Rise and Progress of the English Commonwealth, vol. i. p. 505).
It is a disputed point whether the manor organization existed before the Conquest ; but its full development seems to have been
later than that event.


Tenants in chief of the crown were liable to a fine on alienation until 12 Car. II. c. 24.
a From the reign of Edward IV. at latest up to the Fines and Recoveries Act of 1833 fines and recoveries were also recognized as a means of conveyance. They are so regarded in the Statute of Uses.
In spite of this objection the division is adopted by the legislature; see, for instance, 47 and 48 Vict. c. 71.

It should be noticed that an easement in gross cannot exist.
The right of the state to contribution from land for revenue purposes and

==

4 Frankalmoign was not always regarded as a distinct tenure. Thus Littleton (§ 118) says that all that is not tenure in chivalry is tenure in socage.

1 In the category of corporeal hereditaments are also included, certain acces-sories to corporeal hereditaments proper, such as growing crops, fixtures, title-deeds, &c.




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