PREFACE. No reasonable effort has been spared, in the preparation of this volume, to make it as complete as possible upon the subjects discussed. It is published at the present time, both to accommodate the law-school students to whom the author lectures, and to offer to students and practitioners generally, several years before the entire contemplated work can be done, any assistance that this discussion of the most technical and difficult portions of real-property law may be able to supply. The writer hopes so to add to it, within the next three or four years, as to finish a treatise, in two volumes, on all the topics ordinarily comprised within the law of real property. The plan and outline thus far pursued, and to be continuously followed, are fully explained in the fourth chapter of this book. And a reference to that chapter, and to the table of contents, will show that three leading subjects are yet to be discussed in detail, namely: estates considered with reference to their quantity, from the fee simple down to and including tenancies at sufferance; estates considered with reference to the number and connection of their owners,-estates joint, in common, by entirety, etc.,—and the entire subject of titles to real property. The introductory portion of the present volume explains, with some particularity, the subject of fixtures, and the most important other kinds of property which have caused questions to arise as to whether they are realty or personalty; it also presents a complete outline of real-property law, and divides it into its four natural departments, to each of which a separate "Book" is to be devoted. "Book I.," which is here. finished, deals with the kinds of real property, ― lands, tenements, and hereditaments,-discusses fully the four American incorporeal hereditaments, - rents, franchises, easements and servitudes, and profit à prendre,—and adds a chapter on the cognate topic of licenses. "Book II.," which is also complete, explains the tenures and alodial holdings of real property, and especially seeks to trace from their feudal sources, and so to elucidate, many of the leading principles of the land law of to-day. "Book III.," which treats of estates in real property and is to have five parts when finished, now presents three of those parts complete. The first of them, dealing with estates with reference to the courts that have recognized them, and dividing them accordingly into "legal" and "equitable," discusses the subjects of uses, trusts, and equities of redemption,the three forms of so-called equitable estates. The second and third of those parts are yet to be written. The fourth is finished, and explains estates qualified,-on condition, on limitation, and on conditional limitation, and the entire subject of mortgages. And the fifth part, which is also complete, deals with all the future estates and interests in realty,-reversions; remainders; contingent, springing, and shifting uses; powers; executory devises, and statutory future estates, and adds a chapter, somewhat detailed, on the rules against perpetuities and accumulations. Arising from experience with the difficulties encountered by students of the law of real property, three ideals have prompted and controlled the writing of these pages. They are the presentation of that law, first, in the perfect light of its own history; second, divested as far as possible of technicalities; and third, practically complete within the sphere which the discussion purports to include. The book itself must fall far short of such ideals. But a few words as to each of them may briefly explain what has been attempted. The philosophy of English and American history is manifested in few concrete forms or systems, in which it is so thoroughly legible as in the common law of real property. There is a clear reason, in the development of the Anglo-Saxon race, for every important principle of that splendid, logical system. Therefore, the so-called modern law of real property can be appreciated only superficially, when studied alone. And an 1 attempt to learn it, without taking note of the civil and juristic struggles through which it has been evolved, is as unfortunate for the student as would be a mere study of those struggles, regardless of the resulting rules and theories that are controlling the practical men of to-day. The latest adjudications of the best courts, and the reasons for them, drawn from the profound, though sometimes technical, arguments of the ages, are what constitute the common law of realty for the thorough practitioner. An humble effort is made to present in this book both of those components of that law, and to insist that they shall not be separated in the labors of the learner. Simplicity and terse clearness of illustration are primary desiderata in dealing with a subject which has been much affected by scholastic logic and methods of reasoning now discarded and obselete. The doctrine of scintilla juris, for example, the principle of descent-cast, or the practice of fines and common recoveries, can not be wholly brushed aside and ignored; but they call for brief explanations in the forms of language and modes of thought of the present time. Without anticipating any knowledge yet to be acquired by the reader, it is earnestly sought in this work so to state these and the more important principles of the subject, and so to illustrate them, with recent authorities whenever possible, that an ordinarily careful reading can not fail to make them understood. The illustrations of each point or rule are not numerous, in most instances only one is given, and much care has been bestowed on all of them to make them as lucid as possible. Nothing short of a voluminous digest can state all the modifications which recent English and American statutes have engrafted on the common law of real property. But that common law, as it is to-day, developed with the aid of the old landmarks of legislation into a system of rounded symmetry and logical beauty, together with the accompanying typical code of one important State, may be set forth in a work of convenient size for students and lawyers. Such a work is one of the ideals that have caused the writing of these pages. New York's codification has been selected as the local system, both because of its own importance, and because it has been a model for so much legislation of other States. The special statutes of that one State and their constructions are added, in separate fullmeasure notes, at the proper places throughout the book. And thus it is sought to make a practically complete treatise on New York real-property law, yet without materially encumbering the text or other notes with anything that is purely local or special. It is hoped, moreover, that the text and general annotations, aiming as they do to explain the past and present common law of the land, may be found sufficiently clear and comprehensive to be of practical service to students and the profession, even where New York's code has had little or no influence. In referring to authorities, care has been taken to cite more on doubtful points than on those that may be regarded as settled. Recent cases have been preferred to older ones, wherever they were otherwise equally valuable. The book is not to be advertised for its citation of many cases. It must rather embody, in this particular, the results of careful selection from the ponderous masses of adjudications. And reference to a standard text-book, on the special topic of the page, often closes a note containing citations of only two or three illustrative and decisive cases. Mr. Digby's scholarly treatise on the "History of the Law of Real Property" and the profound work of Professors Pollock and Maitland on the "History of English Law" are very often cited and quoted. The names of standard writers. on the subject, such as Cruise, Williams, Leake, Washburn and Challis, adorn many pages. And, throughout the book, care has been taken to refer to special treatises, such as "Ewell on Fixtures," ""Jones on Easements," "Bispham's Principles of Equity," "Perry on Trusts," "Thomas on Mortgages," "Fowler's Real-Property Law of the State of New York," "Gray's Rule against Perpetuities," "Chaplin on Suspension of the Power of Alienation," and many others, to which the author is gratefully indebted. If what is here written prove in some degree a help to those who are endeavoring to master all or some portion of this subject, which is too often spoken of as dry and technical, or an aid in causing students to look on the study of real-property law as neither irksome nor unpleasant, at least one of its chief objects will have been accomplished. NEW YORK, February, 1904. A. G. R. |