I. RIGHTS TO REAL CHAP. IV. pendant or appurtenant to any thing, unless the principal or superior thing be of perpetual subsistence and continuance. PROPERTY. Thus, an advowson, which is said to be appendant to a manor generally, is in truth appendant to the corporeal demesnes of the manor, which are of perpetual subsistence and continuance, and not to any rents or services, which are subject to extinguishment and destruction. (k) Apportionment. Most appendants and appurtenances which are capable of subdivision, without injustice or inconvenience, may be apportioned and divided, as rights of common of pasture for commonable cattle levant and couchant, when a part of the land is sold off; and so may be the right to sit in a pew when a mansionhouse has been divided into two or more. () Severance and in gross. cient to create a fresh grant. Some appendants may be severed from the principal, and they then become rights in gross; and this may be effected either by a separate conveyance of the principal, excepting the appendant, or by a separate grant of the appendant; and this frequently occurs in cases of advowsons appendant. (m) When once the principal and appendant have been separated by either of these means, the appendant, in general, never afterwards can be appendant, but continues in gross, though there are a few exceptions to that rule. (n) Extinguishment Some appendants and appurtenances also may be extinguished and words suffi- and destroyed, as by unity of seisin, (sometimes improperly termed unity of possession.) (0) As if a person have common of pasture appendant to his estate on a waste or other land, and by purchase or descent he becomes also owner in fee of the latter; the right of common is destroyed, because the minor right of common is merged in the superior entire right to the soil, and it would be absurd to claim an easement in one's own land. (p) In such a case, upon a subsequent severance in the ownership of the two estates, there should be an express new v. Hargreave, 5 T. R. 46, where it was (k) Dyer, 70, b ; 2 Leonard, 222; Co. (1) 4 Coke, 37; 8 Coke, 79, a; Willes, 222, 322; and per Taunton, J., 2 Bar. & Adolp. 168; see post, common of pasture appendant or appurtenant and pews. What annexations cannot be disannexed, 1 B. & Adol. 761. (m) 1 Rol. 252, b. 48; Co. Lit. by Thomas, 1 vol. 208; 2 Bla. C. 22. (n) 2 Mod. 2; 2 T. R. 415; Co. Lit. by Thomas, 1 vol. 208. (o) Unity of possession only suspends prescription, and affects the form of pleading, Co. Lit. 114, b; Vin. Ab. Extinguishment, C. pl. 32; but unity of seisin in fee merges or destroys the prescription, Id.; Com. Dig. Suspension, B.; Vin. Ab. Extinguishment, C.; 1 East, 377; 2 Peake's C. N. P. 152. When no merger, in case of an interesse termini, 5 Bar. & C. 111; Co. Lit. by Thomas, Index. (p) Cowlan v. Slack, 15 East, 108; Com. Dig. Suspension, B.; Vin. Ab. Extinguishment, C.; Co. Lit. 114, b; 1 East, 377; see 2 Bla. Com. by Chitty, 35, note (35), as to extinguishment. grant of the right of common or way, or other former append- CHAP. IV. I. RIGHTS TO REAL PROPERTY. What alteration in the principal thing does not prejudice the appendant. The term "appurtenances," commonly used in deeds, is too Appurtenances. general and indefinite to be adopted in pleading, unless in connection with some previously particularized corporeal thing, as "land with the appurtenances." Some cases have been re (4) Cowlan v. Slack, 15 East, 108; Morris v. Edgington, 3 Taunt. 24; 2 & 3 W. 4, c. 71. (r) 15 East, 108; 3 Taunt. 24; 1 Dowl. & R. 506; 5 B. & Ald. 830; but see 2 B. & Cres. 100; 3 Dowl. & R. 287, S. C.; 5 Taunt. 548, post. (s) 9 B. & Cres. 671; 2 Vern. 146; 2 B. & Adolph. 164; 1 Campb. 322; 3 Campb. 81, post, " Ancient Windows." (t) Id. ibid.; 6 Bing. 379; 4 Co. 87; (x) Post; and see Willes's Rep. 227 to CHAP. IV. ferred to as importing that the words "with the appurtenances,” in a deed, may have the effect of passing adjacent corporeal real property, as buildings, gardens, &c. adjoining to a house; and that therefore in a deed, as a feoffment "of a house with the appurtenances," not only the house itself, but also the buildings adjoining, with its orchard, garden, curtilage, and close immediately adjoining to the house, and on which the house was built, will pass; though not any other land at a distance, although usually occupied with the house. (y) But on examination it will be found, that in these cases no such effect could have been legally given to such words, because under the word "appurtenant," no buildings, or land, or other corporeal property can legally pass; and the effect was given in those cases entirely to the words "messuage" or house, by either of which words alone, and without more, adjoining buildings, and an orchard, garden, and curtilage, may pass. (z) So under a devise of "a messuage with the appurtenances," much effect has been supposed to have been given to the latter words, though perhaps there was no occasion to resort to them.(a) Thus, under those words, it has been holden that not only the house passed, but also land occupied with the same, and highly convenient for the use of it, though held for a different term, that being the inferred intention of the testator; (b) but land occupied with a house will not pass under such a devise, unless it clearly appear that the testator meant to extend the word "appurtenants" beyond its technical sense. (c) And it was held in a recent case, that a devise of "all my capital messuage or mansion-house wherein I now live, and the buildings, gardens, grounds, and appurtenances to the same belonging, or therewith used," would not include two cottages of the testator on the side of the road opposite to the messuage, which were let out to tenants. (d) It should seem, that in construing deeds and leases, (which are usually prepared by professional men, and with care,) no effect should be given to the words "appendant or appurtenant" beyond their strict legal meaning; but that those words in a will may be justly regarded and expounded as intended by the tes (y) Shep. T. 94; and see cases, 2 Saund. 401, note (2); and 1 Bar. & Cres. 350; 15 East, 109; 3 Taunt. 24, 147; 1 B. & P. 53; 2 T. R. 498, 502; 3 M. & S. 171; 5 Bar. & Cres. 156, as to the effect of the word "appurtenances.” (z) Co. Lit. 5, b, 56, b; 2 Co. 32, a ; 1 Thomas's Co. Lit. 215, b.; and Id., note (a) See several cases collected in 1 Thomas's Co. Lit. 215, note 35. (b) 2 Blac. R. 1146; see observations in 1 Thomas's Co. Lit. 215, note (35). (c) 1 Bos. & P. 53; 2 Saund. 401; 9 East, 458; 1 Thomas's Co. Lit. 215, note (35). (d) 2 Sim. 150, 151. tator as his expressions of desire, that all things, whether corporeal or incorporeal, usually enjoyed with the principal thing devised, should pass. CHAP. IV. I. RIGHTS TO REAL PROPERTY. 4. Estate. This term is used in two senses; the first and pro- 4. Estate. per meaning is the degree, quantity, nature, and extent of the interest in real property; as an estate in fee, whether simple or in tail; or an estate for life, or for years. Secondly, the description of the thing itself, as "my estate at B.," when the party, whether in a deed or will, may merely refer to the land or thing, without regard to the extent or nature of his interest therein. (e) The distinction is most important. It was formerly considered that where the word "estate" had been used as descriptive of the property, as "my estate at A.," it would only pass a life interest to the devisee; (f) but, according to later decisions, the word "estate" in a will generally passes the fee to the devisee, if not restrained by other words; and that word used in the operative clause of a will, although referring also to locality, as "my estate at B.," passes the fee simple, unless there is in the will other matter to controul that signification; (g) and "personal estates" will carry freeholds, if such intention appear by the will. (h) Whereas, in these cases, if the term "messuage," or other name merely descriptive of the real property, had been inserted, instead of the word "estate," then only a life interest would have passed to the devisee; and we have seen that the word "hereditaments" in a will only passes a life estate. (i) 5. The word "Term" also in a lease may signify either the 5. Term. time, or the estate, or thing, granted or demised. (k) It does not always signify the time specified in the lease; and, therefore, if A. grant a lease to B. for the term of three years, and, after the expiration of the said term, to C. for six years, and B. surrender or forfeit his lease at the end of one year, C.'s interest shall immediately take effect; but if the remainder had been to C. from and after the expiration of the said three years, or from and after the expiration of the said time, in that case C.'s interest would not commence till the time had fully elapsed, whatever might have become of B.'s term. (4) (e) See further post, and the lucid general observations of Tindal, C. J. in 8 Bing. 328, 329, as to the effect of the word estate in a will. (f) 2 P. Wms. 335; And. R. 210; 11 East, 220. (g)8 Bing. 328, 329; 7 East, 259, 299; 4 Maule & S. 366; 2 T. R. 656; 2 Chit. R. 558; 6 Taunt. 410; 2 Marsh. 113; 3 Moore, 565; 1 Bro. & B. 72; 4 (h) 11 East, 246; see 6 T. R. 610. (k) 4 B. & Cres. 261; 2 B. & Cres. CHAP. IV. I. RIGHTS TO REAL PROPERTY. 6. Farm. 7. Close. 8. Field. 6. Farm, in common acceptation, and for the purpose of description in a deed, means a messuage with outbuildings, garden, orchards, yards and land, usually occupied with the same for agricultural purposes; (m) but in law, and especially in the description in a declaration in ejectment, it being derived from the Latin firma, denotes the leasehold interest for years in any real property, and means any thing which is held by a person who stands in relation of a tenant to a landlord, and does not mean a farm, in common acceptation, as descriptive of the land, &c. (n) The word "farm" or "farms" in a will may be sufficient to pass a freehold, and copyhold, and leasehold estate, if it appear to have been the testator's intention that it should so pass; (o) and the devise of goods and chattels and stock of a farm will pass the growing crops to the devisee; (p) though a devise of a farm will not pass the farming utensils thereon. (q) 7. The term close, in common parlance, means a field enclosed all round with hedges or fences, but in law it rather signifies the separate and exclusive interest of a party in a particular spot of land, whether inclosed or not; and in that legal sense the same may be in an open common, field, or waste, containing the lands of several persons, without any intervening fence, though usually marked out by certain boundaries or landmarks; (r) for which reason it has been considered that ejectment for a close, or croft, or piece of land generally, is too uncertain. (s) The term "close," in popular meaning, is that in which it is used in an action of trespass quare clausum fregit; and in modern times the term "close," without stating any name or number of acres, would probably be holden a sufficient description in ejectment, though it is more usual to claim land by the description of so many acres of arable land, &c. (t) 8. It should seem also that the term "field" would be considered as certain a description as that of close, and might be used, but it is not a usual description in legal proceedings. It is, however, expressly named in the general act against larceny, where it is enacted that the stealing, to the value of ten shillings, any goods or article of silk, &c. whilst laid in progress of manufacture in any building, field, or other place, shall be felony. (u) (m) Plowd. 195; Shep. Touch, 93; 1 Thomas's Co. Lit. 208, 209, note N. (n) 6 T. R. 353; 2 Bla. C. 317, 318; 2 Chit. Plead. 879, note (e). (0) 6 T. R. 345; 9 East, 448; Bro. Grant, 135. (p) 6 East, 604, note; 8 East, 339. (q) Ante, 112; 11 Ves. 657. (r) 7 East, 207; Doct. & Student, 30. (s) See cases cited Tidd, 9th ed. 1191; sed quære. (t) 11 Coke, 55; Cro, J. 435; 3 Mod, 98; Cowp. 349. (u) 7 & 8 Geo. 4, c. 29, s. 16. |