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Tut 5022.4
1972, kov.22.
Gift of Hon. Chas. Sumner,
of Broton ( (H.U. 1830.)
LONDON:
PRINTED BY RAYNER AND HODGES,
16, Shoe Lane, Fleet Street,
OP IMMOVEABLE AND MOVEABLE, OR REAL AND PERSONAL
CORPOREAL PROPERTY.
Immoveable by nature or labour, as lands, houses, &c.—By being part of
the soil, by accession or annexation.—Trees.-Fructus.—Distinction
as to Nurserymen.-As to crops produced by labour, &c. annually.-
Mills, &c.—Animals, when immoveable.-Annexation of moveables to
lands and buildings, with the intention that they should permanently
remain.-Civil law.-Law of Holland, Spain, England and Scotland.-
Distinction in favour of tenants.-In what cases they may remove things
which they have affixed. - Further distinction in the jurisprudence of
England, Scotland, and the United States where the annexation is for the
purposes of trade.-The indulgence not extended where the purpose is
solely agricultural.—The decisions in the United States.—Constructive
annexation.-Keys, &c.— Instances in which the quality of immoveable is
acquired simply by destination.-Slaves.-State of the law in the West
India Colonies.-In some, there are legislative provisions giving the
quality of immoveable to certain articles attached to and necessary for
the cultivation of plantations.—Articles partaking of personal and real
quality, as charters, &c.-Seats in churches.
p. 6
SECTION II.
OF IMMOVEABLE AND MOVEABLE, OR REAL AND PERSONAL
INCORPOREAL PROPERTY.
Incorporeal property.—Immoveable and moveable.—Examples of.—Codes
differ in respect of the nature and degree of the connection of the right
with real property, which renders the right itself real.—Distinction be-
VOL. 11.
b
tween the law of England, Spain, Holland, and France, and that of
Scotland.—The subjects respecting which this diversity exists.-Actions,
in what cases real.-Debts, &c. - Mortgages.--The law of Scotland. -
Bonds, moveable and heritable.—Bonds, reserving interest, containing a
clause of infeftment, excluding executors.—Rights of reversion.—Wad-
sets.-Infeftments in security.-In relief.-Annuities.—Rents.—Stock in
the public funds.--Arrears of rent.—Offices......
p. 31
SECTION III.
ON THE CONVERSION
OF
IMMOVEABLE PROPERTY,
MOVEABLE INTO
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,
and 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 trusts. –
Quality of such of the debts as remain unpaid after the sale of the
heritable property on which they are charged. ...
P. 46
SECTION IV.
OP BIENS PROPRES AND ACQUETS.-ESTATES BY DESCENT AND
PURCHASE.-HERITAGE AND CONQUEST.
Propres and acquets under the Coutumes of Paris and Normandy.- Propres
réels.- Paternels and maternels. — The property which is subject to this
quality.-In what cases property acquired by other means than succession
becomes propre.-Gifts, devises, &c.- Propres fictifs.-Subrogation.-
Propres conventionnels.-Presumption that property was acquét until it
was proved to be propre. Under the Coutume of Normandy presumption
that it was propre and propre paternel, until it was proved to be acquét.-
Incidents to biens propres.-Estates of descent and purchase under the
law of England prior to the recent act, and the consequences attaching to
estates by descent.-Presumption that it was acquired by descent ex parte
paterna.-Devises or dispositions which had not the effect of preventing
the heir from taking by descent.—Recent alteration of the law of in-
heritance.-In Scotland, the distinction between heritage and conquest.-
Heirs of line, and heirs of conquest.-State of the law in the colonies.-
Lower Canada.- The United States..
P. 61
SECTION V.
CONFLICT RESPECTING THE QUALITY OF PROPERTY
The cases which admit of discussion are those in which moveable property
is combined with immoveable, by the actual annexation of the former to
the latter.-It belongs to the lex loci rei site to determine whether that
which is annexed to an immoveable, or destined to, or used in its service,
acquires the quality of immoveable. - It also determines the quality of
incorporeal rights affecting immoveable property.—The opinions of jurists,
and the decisions in Scotland and England sanction this principle.-
The quality of incorporeal rights not affecting immoveable property,
is determined by the law of the creditor's domicile.- The quality of
offices, by the law of the country where they are created. The converti-
bility of moveable into immoveable property is determined by the law of
the owner's domicile, and of immoveable into moveable, by that of the
situs of the immoveable property.—The lex loci rei site determines also
whether the property be propre or acquét. .
P. 78
CHAPTER II.
THE MODIFICATIONS, OR THE QUANTITY, QUALITY, AND DURATION
OP ESTATES, AND INTERESTS IN REAL PROPERTY. ....
P. 87
SECTION I.
MODIFICATIONS OF, OR ESTATES AND INTERESTS IN REAL PROPERTY
UNDER THE CIVIL LAW AND THE LAW OF HOLLAND.
Effected by substitutions direct and fidei-commissary, and by the conditions
and limitations annexed to the institution and substitution of heirs.-
Admitted in dispositions inter vivos as well as mortis causá.
I. Substitution direct.-Its nature.—How created.-Construction of.-
When it takes effect.—When it can no longer take effect.-Substitutio
pupillaris, quasi pupillaris, or eremplaris.--In what respect distinguished
from the substitutio vulgaris.
II. Fidei-commissary substitution defined. The power conferred on the
person in whose favour a fidei-commissum was made, to compel its
performance,-Different kinds of fidei-commissa.-What might be the
subject of the fidei-commissum.-How created.Substitution of classes
or families.-Extent to which estates might be rendered unalienable.-
When the fidei-commissum fails, or becomes incapable of taking effect.
- The persons who may create, who may be charged with a fidei-com-
missum, and in whose favour it may be created. --The relative rights,
liabilities, and interest of the fiduciary and fidei-commissary.—The de-
duction of the Trebellian portion.—The delivery of the property to the
fidei-commissary.-Fidei-commissa by dispositions inter vivos.
III. Conditions and limitations which may be annexed to institutions, sub-
stitutions, and donations.- Fidei-commissa sub modo and conditione.-
Those most frequently adopted.—Their construction and effect, per-
formance, destruction, or discharge....
P. 89 SECTION II.
MODIFICATIONS OF, OR ESTATES AND INTERESTS IN REAL PROPERTY,
UNDER THE LAW OF FRANCE.
I. Fidei.commissary substitutions under the coutume of Paris before the
changes effected by the Ordinances d’Orleans, de Moulins, and of
August, 1747.—Principally governed by rules derived from the civil
law.-Might be created by acts inter vivos as well as mortis causa.-
Essential property of a fidei-commissum that it should import l'ordre
successif.–Rules on this subject.-By what terms constituted.—Dif-
ferent kinds of fidei-commissary substitutions ;-graduelle, reciproque,
de la famille, lineale-musculine. —No limit to the number of generations
to which a substitution might extend, until imposed by the Ordinance
d'Orleans. The construction of fidei-commissary substitutions. The
computation of proximity under the Ordinance of 1747.-Its rules
relative to moveable property being the subject of fidei-commissary
substitution.—When the fidei-commissary substitution fails. The rela-
tive rights, liabilities and interests of the substituée and grevé.—The
fidei-commis conditionnel and modal.
II. Alterations effected by the laws of the 25th of October and the 14th of
November, 1792.-By the Code Civil.--Fidei-commissary substitutions
prohibited.-Exceptions.—The substitutions permitted.
III. The creation of majorats.—Rules respecting them.-Abrogation of them.
p. 167
UNDER THE LAW OF SPAIN.
The jurisprudence of Spain adopts the substitutions of the civil law. The
mayorazgo.--Its various kinds.- Temporary and perpetual.-In what
manner, and by whom, it may be instituted: ---Of what property.—General
rules relative to the institution of it.—Of the descent of mayorazgos and
of the different lines.—Of the computation of degrees.—The liabilities of
the possessor.-He has not the power of alienating the property.-His
rights and interests therein.-In what cases the founder may revoke the
mayorazgo.-The aggregation of mayorazgos... .
p. 217
UNDER THE LAW OF SCOTLAND.
1. Feudal lands.-Dominium directum.--Dominium utile.—The fee simple
or absolute.-— Reserved or real burthens.—Faculties or powers to bur-
then.-Conditions.
II. Entails.—Different kinds of entail.—Entail of simple destination.-
with prohibitory clauses.-Entails with irritant and resolutive clauses.