REAL PROPERTY, That which consists of land, and of all rights and profits arising from and annexed to land, of a permanent, immovable nature. In order to make one's interest in land, real estate, it must be an interest not less than for the party's life, because a term of years, even for a thousand years, perpetually renewable, is a mere personal estate. 3 Russ. R. 376. It is usually comprised under the words lands, tenements, and hereditaments. Real property is corporeal, or incorporeal.
2. Corporeal consists wholly of substantial, permanent objects, which may all be comprehended under the general denomination of land. There are some chattels which are so annexed to the inheritance, that they are deemed a part of it, and are called heir looms. (q.v.) Money agreed or directed to be laid out in land is considered as real estate. Newl. on Contr. chap. 3; Fonb. Eq. B. 1, c. 6, Sec. 9; 3 Wheat. Rep. 577.
3. Incorporeal property, consists of certain inheritable rights, which are not, strictly speaking, of a corporeal nature, or land, although they are by their own nature or by use, annexed to corporeal inheritances, and are rights issuing out of them, or which concern them. These distinctions agree with the civil law. Just. Inst. 2, 2; Poth. Traite de la Communaute, part 1, c. 2, art. 1. The incorporeal hereditaments which subsist by the laws of the several states are fewer than those recognized by the English law. In the United States, there are fortunately no advowsons, tithes, nor dignities, as inheritances.
4. The most common incorporeal hereditaments, are, 1. Commons. 2. Ways. 3. Offices. 4. Franchises. 5. Rents. For authorities of what is real or personal property, see 8 Com. Dig. 564; 1 Vern. Rep. by Raithby, 4, n.; 2 Kent, Com. 277; 3 Id. 331; 4 Watts' R. 341; Bac. Ab. Executors, H 3; 1 Mass. Dig. 394; 5 Mass. R. 419, and the references under the article Personal property, (q.v.) and Property. (q.v.)
5. The principal distinctions between real and personal property, are the following: 1. Real property is of a permanent and immovable nature, and the owner has an estate therein at least for life. 2. It descends from the ancestor to the heir instead of becoming the property of an executor or administrator on the death of the owner, as in case of personalty. 3. In case of alienation, it must in general be made by deed, 5 B. & C. 221, and in presenti by the common law; whereas leases for years may commence in futuro, and personal chattels may be transferred by parol or delivery. 4. Real estate when devised, is subject to the widow's dower personal estate can be given away by will discharged of any claim of the widow.
6. These are some interests arising out of, or connected with real property, which in some respects partake of the qualities of personally; as, for example, heir looms, title deeds, which, though in themselves movable, yet relating to land descend from ancestor to heir, or from a vendor to a purchaser. 4 Bin. 106.
7. It is a maxim in equity, that things to be done will be considered as done, and vice versa. According to this doctrine money or goods will be considered as real property, and land will be treated as personal property. Money directed by a will to be laid out in land is, in equity, considered as land, and will pass by the words "lands, tenements, and hereditaments whatsoever and wheresoever." 3 Bro. C. C. 99; 1 Tho. Co. Litt. 219, n. T.
A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.
