VIII. Unsatisfactory of the law of Real Property. Lecture unsatisfactory condition. The American law is substantially borrowed from the English law. Owing to the mode of its development the English law of condition landed property is refined and intricate to an extent which makes an acquisition of a thorough knowledge of it the work of years, and largely confines the practice thereof to a branch of the profession known as real estate lawyers and conveyancers. If this were really necessary, it should be uncomplainingly endured. In England and America the law of Real Property is almost wholly distinct from the law of Personal Property. Many of the distinctions do not inhere in the two classes of property. The essential qualities of all property, whether real or personal, are its duty to contribute to the rightful demands of the State in the exercise of the right of taxation and of eminent domain, its liability to creditors, and the right of the owner to enjoy it, to alien it, to have it descend to his heirs, or to dispose of it by will. The existing law in England and the United States not only makes many unnecessary distinctions between Real and Personal Property, but it has, not by design, but as the result of historical causes, divided the rights of Real Property into two great classes of legal estates and equitable interests, the one set of rights administered by courts of law, or courts which apply legal rules, and the other by courts of chancery, or courts which apply the doctrines of equity. The doctrines of chancery concerning equitable estates, in part self-originated and in part borrowed from the civil and in part from the feudal law, and VIII. the com the law of Real Prop erty. which had their origin in the necessity of modifying Lecture the mischievous doctrine of feudal tenures so as to adapt in some measure the crude and inadequate Sources of system of the early law to the wants and neces- plexity of sities of advancing civilization, became refined and complicated, obscure and intricate, by the very circumstances of their anomalous and irregular development. The chancellors undertook no systematic treatment of the subject. By the very nature of their functions they could not. Guided by no fixed rules or principles, they interfered from time to time, as single cases arose, to remedy defects in the common law, or to correct certain hardships therein, which were no longer tolerable. Nor did Parliament in this period of growth and change undertake to deal with the subject at large. When some grievous abuse pressed so heavily that it could no longer be endured, the remedial interposition of the legislature was confined to redressing that. The practice and perhaps even the conception that it was the proper function of the legislature to reduce the law on a given subject to a systematic and definite form did not exist. This conception came only in more recent times. Lord St. Leonards relates that he received at one time a letter from an American lawyer, stating that an edition of his work on Powers would probably soon be required in this country, whereupon this learned author (who might á priori have been supposed to revel in the artificial and intricate distinctions between Powers Appendant and Appurtenant, Powers Collateral and in Gross, and Powers simply Collateral), with a deep sense of their essen ་ VIII. Lecture tial uselessness and mischief, remarked, "I regretted "" at the time that a new State should embarrass "itself with our forms of conveyancing springing แ 'out of the doctrine of uses." Suggested changes and amendments in erty. Real Property with us does not serve as the foundation for personal distinction or family grandeur, and is invested with no peculiar sanctity. Its uses are those of property simply. It is an article of commerce, and its free circulation is encouraged. Without going into further details, I insist that the law of Real Property in this country ought to be assimilated as near as possible to the law of Perthe law of sonal Property, and that it is practicable to emanReal Prop- cipate it from all of the pernicious consequences of tenure, whether existing by the common law or growing out of the doctrine of uses, and to make it as simple and easily understood as the law concerning personalty. I do not deny that the English law has by means of fictions, by force of a few statutes, and by the course of decision in the courts of chancery for two hundred years, been moulded so that the combined system of legal and equitable rights and remedies meets the wants and accords with the prevailing sentiments of the English people; but it is demonstrable that even there it is unnecessarily abstruse, complex, and uncertain. But I do earnestly maintain that it is owing simply to the inertia and conservatism of our bar that it is willing to let this great department of our law remain in its present condition, chaotic, uncertain, complex, and abounding in subtleties and refinements; and this, although it is practicable to make it as simple, clear, and certain as any other part of our laws. Let us VIII. at length have deliverance from the remaining ves- Lecture tiges of the bondage of the Norman conqueror, and from the heavy burdens which a long succession of English chancellors, albeit without any fault of theirs, have imposed upon us.1 I shall pursue the general subject - the excellences and defects of our laws in the next lecture. NOTE. Undoubtedly the American law of real property is upon a better footing than the English original. It is perhaps on a better footing than the law of real property as it contemporaneously exists in England. Some years ago a writer in the " American Jurist" thus summarized correctly the general character of the changes that had been made in the American States: "(1) Abolition of feudal tenure, including copyhold; (2) abolition of tithes; (3) making both the real and personal property of intestates descend to the same persons; (4) enabling parents to become heirs to their children; (5) abolition of primogeniture and preference of males in descent; (6) making all estates descend in the same course, whether acquired by purchase or by descent from paternal or maternal relations; (7) abolishing the preference of male stock in descent; (8) enabling half-blood relations to inherit; (9) making husband and wife heirs to each other in case of failure of blood relations; (10) making seisin of land pass by the mere delivery of the deed; (11) the general registration of deeds; (12) making a fee simple pass without the word 'heirs' or any equivalent, where a less estate is not expressed; (13) enabling tenants in tail to convey estates in fee simple without a fine or recovery; (14) enabling married women to convey their estates and bar their dower without a fine; (15) change of joint tenancies into tenancies in common unless otherwise expressed; (16) removing largely the disabilities of alienage with regard to real property; (17) abolition of the doctrine of tacking in mortgages; (18) placing land mortgage, as well as the debt for which it is security, at the disposal of the mortgagee's executor; (19) making all real estate liable to execution for debt; (20) rendering real estate assets for payment of all debts without any preference; (21) shortening the time of limitation." These changes do not at all invalidate or impair the views expressed in the text as to desirableness of further amendments in the law relating to real property, of the character therein suggested. 1 See ante Lecture VI. Lecture Why caselaw is incom LECTURE IX. OUR LAW: ITS UNCERTAINTY AND ENORMOUS BULK. SIDERED. CASES (NOTE). IN my last lecture I referred to the accidental and uneven development of case-law as one of the causes which contributes to make our law defective. I am now to refer to some other causes which operate to the same end, and shall afterwards offer some suggestions as to the true scope and method of its amendment. It is manifest that the judges, from the very necessarily nature and limitations of their functions, cannot plete. develop the general principles of the law so as to take in the entire subject, or do anything except (if you will pardon the expression) automatically (that is, depending upon the accident of cases arising for judicial action) towards giving completeness to the law, or any branch of it. Not only is case-law incomplete, but the multiplicity and conflict of decisions are among the most fruitful causes of the unnecessary uncertainty, which characterizes the jurisprudence of England and America. Thousands of decisions are reported |