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which the property right exists, in the former case we say it is corporeal property and in the latter incorporeal property.
§ 2. Distinction between real and personal property. Property is classified as movable and immovable and as corporeal and incorporeal. The latter classification is recognized by, our law and the distinction has some important effects, but with it we are not now concerned. The former, into movable and immovable, is a natural classification, but our law has adopted in place of it the division of property into personal and real, in the main corresponding, respectively, with movable and immovable, but with exceptions.
§ 3. Real property. Real property, broadly speaking, is all interests in land, except terms of years. The name is derived from the Latin name applied in early times to the action brought to recover land, actio realis, which means simply real action. It was given to that kind of an action because in that action the land itself was recovered, and not merely a money equivalent for the land. Then the word “real,” taken from the name of the action, was applied to the kind of property recovered in such an action. As real actions were brought for land only, real property became the name of property interests in land, with the exception of terms of years.
§ 4. Personal property. When an action was brought to recover a movable article, such as cattle or goods, i. e., something that was not land, the defendant could absolve himself by paying the value in money of the thing sued for, i. e., damages. Consequently, the action was in effect against a person and not against a thing and was classed with those actions brought to recover damages for a wrong or the breach of a contract and was known as an actio personalis, or personal action, and the name “personal” was given to the kind of property concerning which the action was brought.
Personal property, then, includes all property that is not real. Anything that is the subject of property and not land or a right in land is, in our law, personal property, and, in addition thereto, one kind of interest in land, namely a term of years, is personal property.
$ 5. Terms of years. A term of years is the interest in land of a tenant for a certain number of years or portion thereof, the word "term" referring to both the period and the interest itself. Formerly, if the tenant was turned out of possession by, either the landlord or a third person, he had no remedy by which he could recover possession of the land itself, but only an action for damages against the landlord on the covenant contained in the deed of lease. This was a personal action, and, on the death of the tenant within the term, the benefit of the covenant devolved upon the tenant's personal representatives who were entitled to his personal property. Later, a new action was introduced that gave the tenant a remedy by which he could recover possession of the land itself. Thus his interest became a property right in the land; but this new interest, naturally enough, passed, on the tenant's death, not to his heirs who took his real property but, as did before the rights under the landlord's covenant, to his personal representatives and so came to be classed as personal property instead of real property, although it is an interest in land.
$ 6. Devolution of property at death of owner. This is the best test of whether it is real or personal. Real property passes directly to the owner's heirs, while the title to personal property goes to his personal representatives, i. e., his executor or administrator. Things thus passing to heirs or inherited are termed hereditaments. They are treated under the head of real property and are properly real property, being land or interests in land with the exceptions mentioned below.
§ 7. Special forms of property. The English law recognizes certain inheritable property rights known as incorporeal hereditaments. With the exception of annui. ties these hereditaments are either not recognized as property in the United States, or are rights in land. Annuities, when made inheritable by the heirs of the annuitant, seem to be personal property and a true exception to the statement that hereditaments are real property. They are rare. Some articles, personal in their nature, go to the heir under the name of heirlooms, as deer in a deer park, pigeons in a pigeon house, old family pictures, and the like.
A mortgagee's interest in a mortgage before foreclosure is personal property. So, also, is stock in a corporation, although the corporation owns real estate.
There is a class of personal property articles that are attached to the land and are known as fixtures, but while attached they are properly part of the land and are dealt with in the article on Landlord and Tenant, Chapter VI, elsewhere in this volume.
$ 8. Personal property: Chattels. The name “chattel” is sometimes applied to all personal property. Its derivation is obscure, and in its largest sense it can be best described, like the words "personal property,” as signifying any species of property that is not real property. Its meaning is more commonly confined to things movable, corporeal in their nature, such as animals, household goods, money, clothing, grain, machinery, or any article that can be handled and transported, in distinction from incorporeal rights. These are also called “chattels personal.”
“Chattels real" are terms of years, which have been considered above. As being personal property they are classed as chattels; as being interests in land they are denominated chattels real. It is immaterial with respect to their character as personalty how long the term may be, if of a determined length. Though it is for a thousand years it is a chattel interest, unless declared by a statute to be realty. $ 9. Same: Choses in action.
Choses in action. Choses in action, or things or rights in action, are personal rights to recover property or money by action. Thus a promissory note, or a bond, or a right of action for a tort are choses in action. They are distinguished from choses in possession which are chattels reduced to actual possession. This division between things in possession and not in possession is another recognized classification of personal property.
REMEDIES FOR INFRINGEMENT OF RIGHTS IN PERSONAL
SECTION 1. RECOVERY OF SPECIFIC PERSONAL PROPERTY.
§ 10. Detinue. This is an action primarily for the recovery of specific personal property alleged to belong to the plaintiff, and, if the property is not found, then for damages for its value, and in either case, for damages for the detention. The option of giving up the goods or paying the value is in the defendant (1). Consequently the action is not so effective to secure the specific property as is replevin, and detinue is seldom brought in the United States.
$ 11. Replevin. This is the common action in the United States to recover specific personal property. In England the action lies only when the property was wrongfully taken from the possession of the plaintiff (2). Consequently there the plaintiff's only remedy is often detinue. In the United States replevin lies for the wrongful detention of personal property, whatever the nature of the original taking. Thus, where the defendant contracted to carry flour for the plaintiff and it was placed on board the defendant's ship, he afterwards refused to
(1) Phillips v. Jones, 15 Q. B. 859.