Hereditaments are distributed into ( 2. Incorporeal. Land, in all its varieties, is a corporeal hereditament (t); while an estate in land (for instance, a reversion) may be an incorporeal hereditament; for the owner of the reversion has not the land; he has merely an estate in the land. All tenements and hereditaments which are not land, and which are held by some one for an estate of inheritance, are incorporeal hereditaments (u); though, as to tenements, they are things which issue out of, and are collateral to land, as rents, commons, &c. Sheppard, in one passage of his Touchstone, says, they (namely, hereditaments) must be held by the grantor for an estate of inheritance; in another passage (page 88) he admits, that lands and other things held for years, may pass under the description of an hereditament; and this, most clearly, is the genuine and reasonable construction of law. Hereditaments also are divided into 1. Hereditaments real, 2. Hereditaments personal. Mr. Fearne has noticed this description of property (x). (s) 2 Bl. Com. 17. (t) 2 Bl. Com. 17; Hale's Analysis. (u) 2 Bl. Com. 20; Hale's Analysis; Shep. T. 91. Incorporeal hereditaments, being tenements, are said to lie, 1. In prendre, as commons; 2. In rendre, as rents. Hereditaments of this sort are denominated from the manner in which the right they confer is to be taken, exercised, or enjoyed. The right of having common of pasture gives to some other person than the owner of the soil, the privilege of taking the herbage of the soil, by the mouth of his cattle, in common with the owner of the soil; and because this right consists in taking, the thing is said to lie in prendre (y). The right of having a rent makes it incumbent on some person to render money, or some valuable article, or stipulated service; and it is said to lie in rendre, because this subject of property is to be rendered. Land is always substantially the same, though, at different times, according to the purpose to which it is applied, it may receive different denominations. It has existence at all times; and the estate for which it is held at this day, has, in point of title, been subsisting therein from the most remote period of time, and will continue for ever. Hence the origin and deduction of titles (z). That the title is good or bad, will depend on the mode in which it is derived; as by rightful conveyance or by descent on the one hand, or (y) 2 Bl. Com. 32; Ventr. 394. (z) Hale's Analysis. on the other hand by abatement, intrusion, disseisin, wrongful alienation, or discontinuance (a); and that a title which was once bad is become good and effectually established may depend on a bar to the person in whom the title formerly resided, as warranty, or warranty with assets, statute of limitations, nonclaim on a fine with proclamations, or the destruction of contingent remainders, or a release, &c. Still, however, the title thus established is to be deduced from the original and rightful owner; for unless there was a good title in those against whom the bar, &c. is to be applied, the bar may not be positive and absolute; but titles of entry or rights of action may be subsisting. Some of these persons may have been under disabilities, and such disabilities may have protected their rights, and privileged or exempted them from the bar of the statutes (b), &c. pur Hence it is necessary in practice, as often as a title depends on adverse possession, and a bar by the statutes of nonclaim on fines, or of limitations, to show to whom the estate formerly belonged, and to see that the bar has defeated the right of all these persons (b). For this pose it must be shown that they were living, &c. when the time of the alleged period of bar or limitation commenced; and that they were at that time free from disabilities, (of infancy, coverture, absence beyond seas, idiotcy, and impri(a) Argument in Goodright v. Forrester, 1 Taunt, (b) ■ Abstr. 335. sonment,) which are exemptions from the bar of these statutes; or that the disabilities ceased at a period sufficiently remote, namely, five years as to fines, and ten years as to formedons and ejectments; and when lands are limited in strict settlement, this is often a very tedious and difficult investigation; since the owner of each successive estate has a new period for his claim, and the bar does not begin to run against him, till his right to the possession accrues; but if the bar once begin to run against the ancestor, it continues to run against him and his issue or heirs, notwithstanding any subsequent disability; and no persons, except those to whom the right first accrues under such estate, can claim any privilege or exemption, by reason of disabilities (c). If tenant of a determinable or defeasible estate grant a rent, either to a man for life, or to a man and his heirs generally, this rent will, in point of title (d), be subject to the determinable or defeasible quality annexed to the estate in the land. So if tenant in tail of land grant an estate to another and his heirs, the estate, if not defeated by the issue in tail, (as it may be, unless they are barred,) will determine on the death of the tenant in tail, and the failure of his issue inheritable to the intail. On the last example it may be observed, that the estate of the tenant in tail has the peculiar (c) 2 Abstr. 397; Doe v. Jesson, 6 East. 80; Cotterell v. Dutton 4 Taunt. 826. (d) See infra. quality of admitting of an enlargement or extension into a fee simple, by the operation of a common recovery; and when so enlarged, all interests depending on the estate tail will be benefited by this enlargement; and therefore, though the estate be, in the first instance, a determinable fee, it will become, by the operation of the common recovery, suffered by the tenant in tail, an estate in fee simple; and then all estates, charges and incumbrances derived out of, and depending for effect on the estate tail, would be supported, to the extent of the fee simple, under the title conferred by the estate tail, as enlarged into a fee simple. This is the only instance of the kind which occurs in the law of tenures. It depends on the peculiar nature of estates tail. covery, But if a man grant a rent or the like collateral charge to another for an estate tail, and does not extend the grant, the estate derived under this grant, by means of a common rewill not be larger than the estate tail. It will be an estate to the grantee or other owner and his heirs, so long as there shall be issue inheritable under the intail (d); but if the grant had limited remainders after the estate tail, the estate derived by means of a common recovery would be co-extensive with these remainders, whether they were merely in tail, or extended to the fee (e). (d) Chaplin v. Chaplin, 3 P. W. 229. (e) Butler's Co. Litt. 298; Smith v. Farnaby, Carter 52; Weeks v. Peach, Lutw. 1224. |