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until the grantee be promoted to a benefice, or for any like uncertain time, is an estate of freehold in judgment of law, and not a chattel interest. (a)

When a man seised in fee makes a gift in tail, or lease for life, or for years, reserving rent, the rent which becomes due after his death will go with the reversion as an incident thereof to his heir, and not to his executor; for, since during the continuance of the particular estate, the reversioner loses the profits of the land, the rent ought to be paid to him, as a compensation for the loss. (b) And though the rent should be expressly reserved to the lessor, his executors and assigns, without naming the heir, the executors cannot have it, being strangers to the reversion, which is an inheritance. (c) On the other hand, if a lessee for years make an under-lease reserving rent, the rent accruing after his death, will go to his executor, or administrator, and not to his heir, even though the reservation were to him and his heirs, during the term, without mentioning the executors. (d)

Where no reversion is left in the lessor, and the rent is reserved to his executors, administrators, and assigns, it will go to them and not to the heir. (e)

Stock in the public funds of Great Britain is declared to be personal estate by the several acts which have created them, (ƒ) and it has been so treated by the courts of Scotland. (g)

It is a rule in all the systems of jurisprudence, including that of Scotland, that notwithstanding the

(a) Co. Litt. 42 a. (b) Co. Litt. 47 a. cutors, H. 3.

Cother v. Merrick, Hardr. 95.
(c) Co. Litt. 47 a. 143.

(d) Sacheverell v. Froggatt, 2 Saund. n. 371.

Bac. Abr. Exe

(e) 3 Cruise's Dig. 321, (3rd edit.) 1 Williams's Law of Executors, p. 533. (f) Pearson v. Bank of England, 2 Bro. C. C. 529. S.C. 2 Cox, 175. Bank

of England v. Lunn, 15 Ves. 578, 579.

(9) Murray, 25th July, 1710, Dict. 5478. Sir John Dalrymple, 1st July, 1735, Dict. 5478. Hog, 23rd Dec. 1791, Dict. 5479.

annuity, rent, or other growing payment on the security, may be immoveable or real, yet the arrears which have accrued at the death of the creditor or lessor will be moveable.

An office is a right to exercise a public or private employment, and to take the fees or emoluments which belong to it. It acquires the quality of an immoveable or real right, either by the express declaration of the law, as by the 95th article of the coutume of Paris, or because it relates to land, or is exerciseable within a particular district. (a)

It is an incorporeal hereditament by the law of England, when it is limited to a person and his heirs, or when the grantee has a freehold interest in it; but it is only by means of such a connection with land, that it can acquire the other incidents of real property. (b) When it is granted for a term of years, it is personal property and passes to the executors.

If a house or land belong to an office, the grant of the office by deed will pass the house or land belonging to it. (c)

There are certain offices of public trust which can never acquire the quality of personal estate, because, to prevent the possibility of their vesting in executors and administrators, they cannot be granted for a term of years.

Neither can any judicial office be granted in reversion, because, though the grantee may be able to perform it at the time of the grant, yet before the office falls he may become unable and insufficient; but ministerial offices may be so granted, for those may be executed by deputy. (d)

By the law of Scotland, offices, when they are granted to continue after the death of the patentee, are de

(a) Gaill's Obs. lib. 2, Obs. de Mob. et Immob. c. 9, § 25. (b) Cruise's Dig. ib.

52. Math. de Auct. lib. 1, c. 6. P. Voet,
J.Voet, lib. 50, tit. 4, §3. 3 Cruise's Dig. 108.
(c) Ib. p. 111.
(d) 2 Black. Com. 36.

scendible to the heir, not to executors: 1st, because they are indivisible rights, and, consequently, must belong to the proper heir, and, 2ndly, because they were originally feudal. (a)

The law of England on the subjects of this section is followed in the British colonies possessing legislatures, and in the several states of America, except Louisiana. The latter State has, in this respect, adopted the Code Civil. The law of France under that Code, and the provisions of the coutume of Paris, have been stated in the former volume.

SECTION III.

ON THE CONVERSION OF MOVEABLE INTO IMMOVEABLE PROPERTY, OR IMMOVEABLE INTO MOVEABLE PROPERTY.

Conversion by the law.-Limited extent to which the civil law and the codes of Holland and Spain altered the natural quality of property.-Coutume of Paris.-Code Civil.-Law of England.-Property of infants, lunatics, bankrupts.-Law of Scotland, Adjudication.-Judgments, &c. do not alter the quality of the debt under the law of Holland, Spain, or England. Conversion by destination of the owner.-Admitted in all the systems of jurisprudence.-Conventions de réalisation and d'ameublissement under the former law of France, under the Code Civil.-Doctrine of the law of England. In Scotland, moveable property made heritable by taking collateral heritable bonds.-By adjudging.-By conveyance in trust.— Quality of such of the debts as remain unpaid after the sale of the heritable property on which they are charged.

THE Civil law and the codes of Holland and Spain made no distinction between moveable and immoveable property as a subject of succession, either with respect to the forms and solemnities by which it was disposed

(a) Ersk. b. 2, tit. 2, § 5.

of by testament, or the order and course of succession, in which it descended ab intestato. No object, therefore, was to be attained under those systems of jurisprudence by transferring to property, which in its nature was moveable, the quality and all the incidents of immoveable property.

The quality of immoveable can be said to be conferred on moveables only sub modo, and so far only as regards some of the incidents of immoveable property.

I. The moveables of a minor which are not perishable, quæ servando servari possunt nec tempore pereunt, are so far invested with the quality of immoveables, that they can only be alienated with the sanction of a decree of the court. (a)

But it has been stated in the former volume, (b) that neither the civil law nor either of the other codes which have been referred to, transferred the quality of immoveable to the money or other moveable which had been alienated, and received as the price of immoveable. (c)

The coutume of Paris adopted the doctrine of subrogation, (d) when the guardian sold property of a minor which the law had declared immoveable, by conferring on the money which had been acquired for it the quality of immoveable.

"Rentes constituées à prix d'argent, sont reputées immeubles jusqu'à ce qu'elles soient rachetées. Toutefois au cas que celles qui appartiennent à mineurs soient rachetées pendant leur minorité, les deniers du rachat, ou le remploi d'iceux en autres rentes ou heritages, sont censez de même nature et qualité d’immeubles, qu'etoient les rentes ainsi rachetées, pour retourner aux parens du côté et ligne dont les dites rentes étoient procedées." (e)

(a) Voet, lib. 27, tit. 9, n. 2.
(c) Berlich, part 3, conclus. 19, 31.
(e) 1 Dupless. art. 94.

(b) Ante, vol. 1, p. 341, 354, 355.

(d) Merlin, tit. Subrogation.

As this fiction is allowed only for the protection of the minor during his minority, the moveable will cease to retain its fictitious quality of immoveable, after he has attained his majority, and his guardian has duly accounted to him for the administration of his estate. (a)

The coutume of Paris also declares that a sum of money given by the father, mother, or other descendants, to their children, in contemplation of their marriage, even when not employed, is immoveable on account of its destination. (b)

It is, however, considered that the money is immoveable, only as regards the community, but as a subject of succession, it retains its quality of moveable. (c)

It is the established doctrine of the courts of England and Scotland, that the nature of an infant's property shall not be changed as between his representatives, and therefore lands purchased by the guardian of an infant with his personal estate, will, in case of his death, during minority, be considered still as his personal property. (d)

The trustees of an infant's estate, had a considerable sum of money in their hands out of the profits of his estate, which they laid out in a purchase of lands lying near the estate with the consent of his guardian, and by the conveyance to the trustees, it was declared, that they stood seised in trust for the infant, in case when he came of age he should agree to it; the infant died. within age, and the trustees were held accountable to the administrator of the infant for the sum laid out, and the heir was declared to have no title to the land. (e) An exe

(a) Le Maistre, tit. 3, c. 2, p. 118. 1 Dupless. tit. 3, p. 159, 163. (b) 1 Dupless. art. 93.

(c) Renuss. Traitè des Propres, c. 6, Som. 7. Le Maistre, tit. 3, art. 93. (d) Gibson v. Scudamore, 1 Dick. 45. Hamilton v. Marshall, Feb. 25th, 1813; Ross, Jan. 31st, 1793, Dict. p. 5545. Graham and others v Hopetoun, March 6th, 1798, Dict. 5599. Morton v. Young, Feb. 11th, 1813, Fac. Coll. Stair, b. 1, tit. 6, § 19.

(e) Lord Winchelsea v. Norcliffe, 1 Vern. 434. 1 Equity Cas. Ab. 262, pl. 4.

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