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A Short Historical Introduction to the Law of Real Property A Short Historical Introduction to the Law of Real Property
By J. John Lawler and Gail Gates Lawler
2000/09 - Beard Books - Law Classic
1587980320 - Paperback -  Reprint - 232 pp.
US$34.95

An historical background of the law of real property to be used as a foundation for further study.

Publisher Comments

Category: Real Estate

Of Interest:

Easements and Servitudes

Land Use Policy in the United States

Rule Against Perpetuities

The Land System of the United States: An Introduction to the History and Practice of Land Use and Land Tenure

The Rise of the Community Builders

Asserting that real property law can only be understood in the light of its historical evolution, the authors fulfill that need for the reader. In particular, the book enables first year law students to build a sound foundation for further study. Included are the methods of holding land --- feudal tenures; estates in land; seisin, the real actions and adverse possession; incorporeal interests; and estates held in co-ownership.

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ABOUT THE AUTHOR

Gail Gates Lawler was a member of the Philadelphia Bar Association.

J. John Lawler was a professor at the University of Pittsburgh School of Law. 

TABLE OF CONTENTS

Section

Chapter I. The Method of Holding Land --- Feudal Tenures

Page
1. Land Law Prior to the Norman Conquest 1
2. Norman Feudalism 2
3. Effect of the Norman conquest on Land Holding in England 3
4. Classes of Tenants 4
5. Types of Tenures 4

A. Knight Service
6. Tenure by Knight Service 4
7. Transmutation of Military Service into Scutage 6
8. Incidents of Tenure by Knight Service --- Homage and Fealty 7
9. Incidents of Tenure by Knight Service --- Relief --- Rise of Inheritability of Lands 7
10. Incidents of Tenure by Knight Service --- Primer Selsin 8
11. Incidents of Tenure by Knight Service --- Wardship 9
12. Incidents of Tenure by Knight Service --- Marriage 9
13. Incidents of Tenure by Knight Service --- Aids 10
14. Incidents of Tenure by Knight Service --- Escheat --- Escheat Distinguished from Forfeiture 11

B. Serjeanty
15. Tenure by Serjeanty 12
16. Incidents of Tenure by Serjeanty 13

C. Free and Common Socage
17.  Tenure in Free and Common Socage 13
18. Incidents of Tenure in Free and Common Socage --- Homage and Fealty 14
19. Incidents of Tenure in Free and Common Socage --- Reliefe 14
20. Incidents of Tenure in Free and Common Socage --- Guardianship, Aids and Escheat 14
21. Incidents of Tenure in Free and Common Socage --- Tenure in Gavelkind 15
22. Variations of Incidents of Tenure in Free and Common Socage --- Burgage Tenure 15

D. Frankalmoign
23. Tenure in Frankalmoign 15
24. Contemporaneous Interests in the Land 16
25. The Manorial Organization  17
26. Services --- Forinsec and Intrinsec Services 17
27. The Lord's Remedy of Distress 18

E. Villeinage and Modern Tenures
28. Tenure in Villeinage 19
29. Tenure in Villeinage --- Division of the Manorial Lands 20
30. Tenure in Villeinage --- Type of Services Required 20
31. Tenure in Villeinage --- Inheritability and Alienability of Tenement 21
32. Commutation of Services into Money Payments --- Transition from Villein to Copyhold Tenure 22
33. Alienation of Copyhold Lands 23
34. Alienation of  Freehold Lands by Mesne Tenant 24
35. Alienation by Way of Substitution  24
36. Alienation by Suninfeudation 25
37. Statute of Quia Emptores 25
38. Alienation of Tenants in Capite 27
39. Alienation of Lordships 27
40. Alienation in Mortmain 27
41. Statute of Tenures 28
42. Tenure in the United States Prior to the Revolution  32
43. Tenure in the New England Colonies 32
44. Tenure in New York and the Southern Colonies 32
45. Tenure in the United States Following the Revolution 33
46. Tenure in Pennsylvania and South Carolina 33
47. Incidents of Tenure in the United States 33

Chapter II. Estates in Land
48. The Development of the Estate Concept 35

A. Estates of Present Enjoyment

I. Freehold Estates
49. Distinction between Freehold and Non-freehold Estates 36

a. Fee Simple
50. Estate in Fee Simple Absolute --- Nature and Incidents 37
51. Fee Simple Absolute at Common Law --- Creation 37
52. Fee Simple Absolute --- Nature of the Heir's Interest 38
53. Fee Simple Absolute --- Alienability 39
54. Fee Simple Absolute --- Devolution on Death 39
55. Fee Simple Absolute --- Position of the Holder of the Interest 40
56. Fee Simple Absolute in the United States --- Creation 40
57. Methods of conveyance of Estates in Fee Simple Absolute at Common Law --- Feoffment with Livery of Seisin  41
58. Methods of conveyance of Estates in Fee Simple Absolute at Common Law --- the Exchange  42
59 Methods of conveyance of Estates in Fee Simple Absolute at Common Law --- the Release 42
60. Methods of conveyance of Estates in Fee Simple Absolute at Common Law --- Lease and Release 43
61. Disadvantages of Common Law Methods of Conveyancing 43
62. Development of Equitable Estates 43
63. Methods of Conveying Equitable Estates --- Bargain and Sale 45
64. Methods of Conveying Equitable Estates --- Covenant to Stand Seised 45
65. Statue of Uses 45
66. Effect of the Statute of Uses on Conveyancing 48
67. Statute of Enrollments 49
68. Effect of the Statute of Enrollments on Conveyancing --- Bargain and Sale Coupled with Lease and Release 50
69. Common Law Methods of Conveying Fee Simple Absolute in the United States --- Feoffment with Livery of Seisin 51
70. Common Law Methods of Conveying Fee Simple Absolute in the United States --- Exchange and Lease and Release 52
71. Methods of Conveying Fee Simple Absolute in the United States --- Bargain and Sale 52
72. Methods of Conveying Fee Simple Absolute in the United States --- Covenant to Stand Seised 52
73. Statutory Methods of Conveying Fee Simple Absolute in the United States --- Short Form Deeds 53
74. Methods of Conveying Fee Simple Absolute in the United States --- Quitclaim Deed 53
75. Devolution of Fee Simple Absolute on Death at Common Law --- Inheritance 55
76. Devolution of Fee Simple Absolute on Death in the United States --- Inheritance 57
77. Devolution of Fee Simple Absolute on Death at Common Law --- Devisability 59
78. Development of Uses 59
79. Statute of Wills 61
80. Statute of Tenures 64
81. Devolution of Fee Simple Absolute on Death in the United States --- Devisability 65

b. Qualified Fee Simple
82. Qualified Fee Simple Estate 65
83. Qualified Fee Simple Estate --- Varieties --- Fee Simple Subject to a Special Limitation (Determinable Fee Simple) 66
84. Qualified Fee Simple Estate --- Varieties --- Fee Simple Subject to a Condition Subsequent (Fee Simple Conditional) 67
85. Qualified Fee Simple Estate in the United States 69
86. Qualified Fee Simple Estate --- Conveyances 69
87. Qualified Fee Simple Estate --- Devolution on Death 69

c. Maritagium
88. The Maritagium at  Common Law 69

d. Conditional Fee
89. Conditional Fee  at Common Law 70
90. Conditional Fee in the United States 71
91. Statute De Donis Conditionalibus 71

e. Fee Tail
92. Estate in Fee Tail 73
93. Estate in Fee Tail --- Interest of the Holder 74
94. Estate in Fee Tail --- Creation 74
95. Estate in Fee Tail --- Varieties 75
96. Estate in Fee Tail in the United States  75
97. Estate in Fee Tail --- Conveyances at Common Law 77
98. The Courts Circumvent the Statute De Donis 77
99. The Common Recovery 77
100. The Fine 79
101. Effects of Fine and Common Recovery Contrasted 80
102. Barring the Entail in the United States 80
103. The Fine in the United States 80
104. The Common Recovery in the United States 81
105. Estates in Fee Tail --- Devolution on Death at Common Law ---  Inheritance 81
106. Estates in Fee Tail --- Devolution on Death at Common Law ---  Devisability 82

f. Life Estates
107. Life Estates 82
108. Legal Life Estates at Common Law 82
(a) Tenancy in Tail After the Possibility of Issue Extinct 82
(b) Dower 83
(c) Curtesy 83
(d) Estate Iure Uxoris 83
109. Conventional Life Estates at Common Law 83
(a) Life Estate for the Life of the Taker 83
(b) Estate Pur Autre Vie (For the Life of Another) 84
110. Life Estates --- Interest of the Holder 84
111. Life Estates Subject to a Condition or Special Limitation 85
112. Legal Life Estates in the United States 85
(a) Tenancy in Tail After the Possibility of Issue Extinct 85
(b) Dower 85
(c) Curtesy 86
(d) Estate Iure Uxoris 86
113. Conventional Life Estates in the United States 87
114. Life Estates --- Conveyances at Common Law 87
115. Interest Created in Alienee by Conveyance by Life Tenant 87
116. Tortious Conveyance by Life Tenant 87
117. Life Estates --- Conveyances in the United States 88
118. Life Estates --- Devolution on Death of Life Tenant at Common Law --- Estate Pur Autre Vie 89
119. Life Estates --- Devolution on Death of Life Tenant in the United States --- Estate Pur Autre Vie 90

II. Non-Freehold Estates --- Varieties
120. Non-Freehold Estates --- Varieties 90

a. Term for Years
121. Term for Years --- Nature of the Interest 91
122. Term for Years --- Creation of the Interest at Common Law 92
123. Term for Years --- Creation Subject to a Condition Subsequent or a Special Limitation 93
124. Term for Years --- Position  of the Tenant for Years --- Remedies --- Rise of Ejectment 93
125. Term for Years --- Position  of the Tenant for Years --- Obligations --- Waste 94
126. Term for Years --- Position  of the Tenant for Years --- Doctrine of Fixtures --- Trade Fixtures Exception 95
127. Term for Years --- Position  of the Tenant for Years --- Emblements --- Doctrine of "Waygoing Crops" 96
128. Term for Years --- Conveyances at common Law --- Sublease --- Assignment --- Surrender  96
129. Term for Years --- Creation of the Interest in the United States 97
130. Term for Years --- Position  of the Tenant for Years --- Remedies and obligations in the United States 98
131. Term for Years --- Position  of the Tenant for Years --- Fixtures and Emblements in the United States 98
132. Term for Years --- Conveyances in the United States --- Sublease --- Assignment with Release 99

b. Tenancy at Will
133. Tenancy at Will --- Nature of the Interest 100
134. Tenancy at Will --- Creation of the Interest at Common Law 100
135. Tenancy at Will --- Position of the Tenant at Will --- Remedies 101
136. Tenancy at Will --- Position of the Tenant at Will --- Obligations 101
137. Tenancy at Will --- Position of the Tenant at Will --- Fixtures --- Emblements 102
138. Tenancy at Will --- Nature and Incidents of the Interest in the United States 102

c. Tenancy from Year to Year --- Periodic Tenancy
139. Tenancy from Year to Year --- Nature and Creation of the Interest at Common Law 103
140. Tenancy from Year to Year --- Position of the Tenant 105
141. Tenancy from Year to Year in the United States 105

d. Tenancy at Sufferance
142. Tenancy at Sufferance --- Nature of the Interest at Common Law 105
143. Tenancy at Sufferance --- Creation and Conveyance at Common Law 106
144. Tenancy at Sufferance in the United States  106

e. Non-Freehold Interests --- Devolution on Death
145. Non-Freehold Interests --- Devolution on Death at Common Law 107
146. Non-Freehold Interests --- Devolution on Death in the United States 107

f. Rent in Non-Freehold Interests
147. Rent in Non-Freehold Interests at Common Law and in the United States 108

B. Expectant Estates, or Present Estates of Future Enjoyment

1. Interests Arising Prior to the Statute of Uses
148. Nature of Expectant Estates 109

a. Right of Re-entry for Condition Broken (Power of Termination)
149. Right of Re-entry for Condition Broken (Power of Termination) --- at Common Law 110
150. Right of Re-entry for Condition Broken (Power of Termination) --- Creation in Favor of Third Person at Common Law 110
151. Right of Re-entry for Condition Broken (Power of Termination) --- Transfer to a Third Person at Common Law 111
152. Right of Re-entry for Condition Broken (Power of Termination) --- in the United States 111
153. Right of Re-entry for Condition Broken (Power of Termination) --- Creation in Favor of Third Person in the United States 112
154. Right of Re-entry for Condition Broken (Power of Termination) --- Transfer to a Third Person in the United States 112
155. Right of Re-entry for Condition Broken (Power of Termination) --- Devolution on Death at Common Law 113
156. Right of Re-entry for Condition Broken (Power of Termination) --- Devolution on Death in the United States 113

b. Possibility of Reverter
157. Possibility of Reverter at Common Law and in the United States 114
158. Possibility of Reverter --- Creation in or Transfer to Third Person at Common Law 114
159. Possibility of Reverter --- Creation in or Transfer to Third Person in the United States 115
160. Possibility of Reverter --- Devolution on Death at Common Law 115
161. Possibility of Reverter --- Devolution on Death in the United States 115

c. Reversions
162. Reversions at Common Law and in the United States 116
163. Reversions at Common Law and in the United States --- Position of the Reversioner 117
164. Reversions --- Conveyances at Common Law 118
165. Reversions --- Conveyances in the United States  120
166. Reversions --- Devolution on Death at Common Law 120
167. Reversions --- Devolution on Death in the United States  121

d. Remainders
168. Remainders at Common Law 121
169. Remainders --- Effect of Common Law Concept of Seisin in the Creation of Remainders 122
170. Remainders --- Common Law Rule Requiring that the Particular Estate and the Remainder be Created in the Same Conveyance 122
171. Remainders --- Common Law Rule Requiring that the Particular Estate be Estate of Freehold 122
172. Remainders --- Common Law Rule Requiring that the Remainder Could Not be Limited to Take Effect in Derogation of the Precedent Estate 123
173. Remainders --- Common Law Rule Requiring that the Remainder be Limited to Take Effect in Derogation of the Precedent Estate 124
174. Remainders --- Distinction Between Vested and Contingent Remainders 125
175. Vested Remainders --- Position of the Remainderman 125
176. Vested Remainders in the United States  126
177. Vested Remainders --- Conveyances at Common Law 126
178. Vested Remainders --- Conveyances in the United States  126
179. Vested Remainders --- Devolution on Death at Common Law and in the United States  126
180. Contingent Remainders at Common Law 127
181. Contingent Remainders --- Fearne's Classification 127
182. Contingent Remainders --- Rules Governing Creation of Contigent Remainders at Common Law --- Rule Requiring that the Particular Estate and the Remainder be Created in the Same conveyance --- Rule Requiring that the Particular Estate be an Estate of Freehold 129
183. Contingent Remainders --- Destructibility at Common Law 130
184. Contingent Remainders --- Development of Device of Trustees to Preserve Contingent Remainders  131
185. Contingent Remainders --- Doctrine of Merger at Common Law --- Failure of Contingent Remainders  131
186. Rule in Shelley's Case 132
187. Contingent Remainders --- Remainder in Favor of Child En Ventre Sa Mere 133
188. Contingent Remainders --- Common Law Rule Requiring that the Remainder be Limited to Take Effect Immediately upon the Termination of the Precedent Estate --- Common Law Rule Providing that the Remainder Could Not be Limited tio Take Effect in Derogation of the Precedent Estate 133
189. Contingent Remainders --- Position of the Contingent Remainderman at Common Law  134
190. Contingent Remainders --- Rules Governing Creation in the United States  --- Rules Requiring that the Particular Estate and the Remainder be created in the Same Conveyance 134
191. Contingent Remainders --- Rule Governing Creation in the United States  --- Rules Requiring that the Particular Estate be an Estate of Freehold --- Failure of Remainder 135
192. Contingent Remainders --- Destructibility in the United States  135
193. Contingent Remainders --- Rules Governing Creation in the United States  --- Rule Requiring that the Remainder be Limited to Take Effect Immediately upon the Termination of the Precedent Estate 135
194. Contingent Remainders --- Rules Governing Creation in the United States  --- Rule Requiring that the Remainder be Limited to Take Effect in Derogation of the Precedent Estate 136
195. Contingent Remainders --- Position of the Contingent Remainderman in the United States  136
196. Contingent Remainders --- Conveyances at Common Law 137
197. Contingent Remainders --- Conveyances in the United States  138
198. Contingent Remainders --- Devolution on Death at Common Law 138
199. Contingent Remainders --- Devolution on Death in the United States  138

II. New Interest Arising Under the Statute of Uses
200. Executory Interests --- Rise of Executory Interests --- Effect of the Statute of Uses 139
201. Executory Interests --- Effect of the Statute of Wills --- Springing Executory Uses, Springing Executory Devises, Shifting Executory Uses, Shifting Executory Devises  140
202. Executory Interests --- Treatment of Executory Interests by the Courts of Common Law 141
203. Executory Interests --- Position of the Holder of an Executory Interests at Common Law and in Equity 142
204. Executory Interests --- Construction of Executory Limitation as a Contingent Remainder, Wherever Possible 142
205. Executory Interests --- Rule Against Perpetuities 142
206. Executory Interests --- Statute of Uses in the United States 143
207. Executory Interests --- Statutory Provisions as to Creation of Executory Interests in the United States 143
208. Executory Interests --- Creation of Executory Interests in Those Jurisdictions of the United States where the Statute of Uses is not in Force, and where there is no Statute Allowing the Creation of Future Estates 144
209. Executory Interests --- Conveyances at Common Law 144
210. Executory Interests --- Conveyances in the United States 144
211. Executory Interests --- Devolution on Death at Common Law 145
212. Executory Interests --- Devolution on Death in the United States 145

b. Powers of Appointment
213. Powers of Appointment at Common Law 145
214. Powers of Appointment --- Effect of the Statute of Wills 147
215. Powers of Appointment in the United States 147

c. Uses not Executed by the Statute of Uses
216. Uses not Executed by the Statute of Uses 147

Chapter III. Seisin, The Real Actions and Adverse Possession
217. Seisin at Common Law 152
218. Real Actions at Common Law --- Varieties 153
219. Real Actions at Common Law --- Writ of Right --- distinction Between Writ of Right Patent and Praecipe in Capite 154
220. Real Actions at Common Law --- Possessory Assize of Novel Desseisin 155
221. Real Actions at Common Law --- Possessory Assize of Mort D'Ancestor 157
222. Real Actions at Common Law --- Write of Entry 158
223. Actions of Ejectment 159
224. Actions of Ejectment --- Result of Judgment in Action of Ejectment 161
225. Real Actions in the United States 161
226. Position of Disseisor and Disseisee at Common Law --- Position of the Disseisor 162
227. Position of the Disseisee at Common Law 162
228. Change in the Position of the Disseisee as Against the Disseisor -- Extension of the Disseisee's Right of Entry 163
229. Survival of Limitations upon the Disseisee's Right of Entry --- Doctrine of "Descent Cast" 164
230. Survival of Limitations upon the Disseisee's Right of Entry --- the Doctrine of Discontinuance 164
231. Statutory Modification in Favor of the Disseisee 164
232. Change in Judicial Attitude Towards the Element of Good Faith 165
233. Change in the Position of the Disseisee as to Liability to Certain Tenurial Incidents 165
234. Effect of the Statute of Uses on the Concept of Seisin 166
235. Development of the Doctrine of Disseisin at Election 166
236. Statutory Modifications in Favor of the Disseisor 168
237. Change in the Nature of Statutes of Limitations 168
238. Statute of Limitations of James I --- Disabilities 169
239. Statute of Limitations in the United States 169
240. Adverse Possession in the United States 169
241. Adverse Possession in the United States --- Doctrine that Possession Follows the Title, in the Absence of Proof of adverse Possession 171
242. Adverse Possession in the United States --- Doctrine of "Color of Title" 171
243. Statutory Provisions in the United States concerning Persons under Disability 172
244. Adverse Possession in the United States --- Conveyances of Land Held Adversely 172

Chapter IV. Incorporeal Interest
245. Nature of Incorporeal Interest 174
246. Incorporeal Hereditaments at Common Law --- The Ten Incorporeal Hereditaments Listed by Blackstone 175

A. Incorporeal Hereditaments Important Only at Common Law
247. Creation of Those Incorporeal Hereditaments Which Were Important Only at Common Law 175
248. Definition of the Incorporeal Hereditaments  Which Were Important Only at Common Law 175

B. Incorporeal Hereditaments Important at Modern Law
249. Changes in Terminology 177
250. Nature of Commons at Common Law 177
251. Common of Pasture at Common Law --- Varieties 178
252. Common of Pasture at Common Law --- Effect of the Enclosure Movement 179
253. Decline of Common Appendant, Common of Shack and Common Pur Cause de Vicinage 179
254. Nature  of Commons --- Rise of Profits at Common Law 179
255. Nature of Ways --- Rise of Easements at Common Law 180
256. Nature of Rents at Common Law 180
257. Rights of Commons --- Profits in the United States 181
258. Rights of Way --- Easement in the United States 181
259. Rents in the United States 181
260. Acquisition of Incorporeal Interests at Common Law 182
261. Prescription as a Method of Acquisition of Incorporeal Interests at Common Law 182
262. Acquisition of Incorporeal Interests in the United States by Grant 183
263. Acquisition of Incorporeal Interests in the United States by Prescription 183
264. Converyances of Incorporeal Interests at Common Law and in the United States 184
265. Devolution on Death of Incorporeal Interests at Common Law and in the United States 184

Chapter V. Estates Held in Co-ownership
266. Co-ownership --- Variation at Common Law 186
267. Joint Tenancy at Common Law 186
268. Coparcenary at Common Law 186
269. Tenancy by the Entireties at Common Law 187
270. Tenancy in Common at Common Law 187
271. Development of Estates of Co-ownership at Common Law 187
272. Joint Tenancy, Coparcenary, Tenancy by the Entirties and Tenancy in Common in the United States 188
273. Community Property in the United States 188
274. Conveyance of Interest of Co-owner 189
275. Devolution on Death of the Interest of Co-owner 190
INDEX 191

 

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