Commentaries on American Law (1826-30)
Chancellor James Kent
Of the Nature and Various Kinds of Personal Property
PERSONAL property consists of things temporary and moveable, and includes all subjects of property not of a freehold nature, nor descendible to the heirs at law.
The division of property into real and personal, or moveable and immovable, is too obvious not to have existed in every system of municipal law. Except, however, in the term of prescription, the civil law scarcely made any difference in the regulation of real and personal property. But the jurisprudence of the middle ages was almost entirely occupied with the government of real estates, which were the great source of political power, and the foundation of feudal grandeur. III consequence of this policy, a technical and very artificial system was erected, upon which the several gradations of title to land depended. Chattels were rarely an object of notice, either in the treatises or reports of the times, prior to the reign of Henry VI.1 They continued in a state of insignificance until the revival of trade and manufactures, the decline of the feudal tenures, and the increase of industry, wealth, and refinement, had contributed to fix the affections upon personal property, and to render the acquisition of it an object of growing solicitude. It became, of course, a subject of interesting discussion in the courts of justice; and being less complicated in its tenure, and rising under the influence of a liberal commerce, and more enlightened maxims, it was regulated by principles of greater simplicity, and more accurate justice. By a singular revolution in the history of property and manners, the law of chattels, once so unimportant, has grown into a system, which, by its magnitude, overshadows, in a very considerable degree, the learning of real estates.
I. Chattel is a very comprehensive terra in our law, and includes every species of property which is not real estate, or a freehold. The most leading division of personal property is into chattels real and personal. Chattels real, concern the realty, as a lease for years of land,2 and the duration of the term of the lease is immaterial. It is only personal estate if it be for a thousand years.3 Falling below the character and dignity of a freehold, it is regarded as a chattel interest, and is governed and descendible in the same manner. It does not attend the inheritance, for, in that case, it would partake of the quality of an estate in fee.
There are, also, many chattels, which, though they be even of a moveable nature, yet, being necessarily attached to the freehold, and contributing to its value and enjoyment, go along with it in the same path of descent or alienation. This is the case with the deeds and other papers which constitute the muniments of title to the inheritance;4 and also with shelves and other fixtures in a house, and the posts and rails of enclosures, for they cannot be dismembered from the freehold without injury to it. So, also, it is understood, that pigeons in a pigeon house, deer in a park, and fish in an artificial pond, go with the inheritance to the heir.5 But, in modern times, for the encouragement of trade and manufactures, and as between landlord and tenant, many things are now treated as personal property, which seem, in a very considerable degree, to be attached to the freehold. Thus, things set up by a lessee, in relation to his trade, as fats, coppers, tables, and partitions, belonging to a soap boiler,6 may be removed during the term. The tenant may take away chimney pieces, and even wainscot, if put up by himself;7 or a cider mill and press erected by him on the land.8 So, a building resting upon blocks, and not let into the soil, has been held a mere chattel.9 A post windmill, erected by the tenant,10 and machinery for spinning and carding, though nailed to the floor,11 and copper stills, and distillery apparatus, though fixed,12 are held to be personal property. On the other hand, iron stoves, fixed to the brick work of the chimneys of a house, have been adjudged to pass with the house as part of the freehold, in a case where the house was set off on execution to a creditor.13 But in another case in the same court, between mortgagor and mortgagee, the possessor, on the
termination of that relation, was allowed to take down and carry away buildings
erected by him on the land, and standing on posts, and not so connected with the soil but they could be removed without prejudice to it.14
Questions respecting the right to what are ordinarily called fixtures, principally arise between three classes of persons. l. Between heir and executor; and there the rule obtains with the most rigor in favor of the inheritance, and against the right to consider as a personal chattel any thing which has been affixed to the freehold. 2. Between the executor of the tenant for life, and the remainder man or reversioner; and here the right to fixtures is considered more favorably for the executors. 3. Between landlord and tenant; and here the claim to have articles considered as personal property, is received with the greatest latitude and indulgence. Lord Ellenborough, in Elwes v. Maw15 went through all the cases from the time of the year books, and the court concluded, that there was a distinction between annexations to the freehold for the purposes of trade or manufacture, and those made for the purposes of agriculture, and the right of the tenant to remove was strong in the one case, and not in the other. It was held, that an agricultural tenant who had erected, for the convenient occupation of his farm, several buildings, was not entitled to remove them. Had the erections been made for the benefit of trade or manufactures, there would seem to have been no doubt of the right of removal. The strict rule as to fixtures, that applies between heir and executor, applies equally as between vendor and vender; and fixtures erected by the vendor for the purpose of trade and manufactures, as potash kettles for manufacturing ashes, pass to the vendee of the land.16
The civil law was much more natural, and much less complicated in the discrimination of things, than the common law. It divided them into the obvious and universal distinction of things moveable and immoveable. The moveable goods of the civil law were, strictly speaking, the chattels personal of the common law. Whatever was fixed to the freehold perpetui usus causa was justly deemed a part of the res immobiles of the civil law.17
2. Property in chattels personal is either absolute or qualified.
Absolute property denotes a full and complete title and dominion over it, but qualified property in chattels is an exception to the general right, and means a temporary or special interest, liable to be totally divested on the happening of some particular event.
A qualified property in chattels may subsist by reason of the nature of the thing, or chattel, possessed. The elements of air, light, and water, are the subjects of qualified property by occupancy; and Justinian, in his Institutes18 says, they are common by the law of nature. He who first places himself in the advantageous enjoyment of a competent portion of either of them, cannot lawfully be deprived of that enjoyment; and whoever attempts to do it, creates a nuisance, for which he is responsible.19 Animals ferae naturae, so long as they are reclaimed by the art and power of man, are also the subject of a qualified property; but when They return to their natural liberty and ferocity, without the animus revertendi, the property in them ceases. While this qualified property continues, it is as much under the protection of law as any other property, and every invasion of it is redressed in the same manner.20 The difficulty in ascertaining with precision the application of the law, arises from the want of some certain determinate standard or rule, by which to determine when an animal is ferae vel domitae naturae. If an animal belongs to the class of tame animals, as, for instance, to the class of horses, sheep, or cattle, he is then clearly a subject of absolute property; but if he belongs to the class of animals which are wild by nature, and owe all their temporary docility to the discipline of man, such as deer, fish, and several kinds of fowl, then the animal is a subject of qualified property, and which continues so long only as the tameness and dominion remain. It is the theory of some naturalists, that all animals were originally wild, and that such as are domestic owe all their docility, and all their degeneracy, to the hand of man. This seems to have been the opinion of Count Buffon; and he says, that the dog, the sheep, and the camel, have degenerated from the strength, spirit, and beauty of their natural state, and that one principal cause of their degeneracy was the pernicious influence of human power.21 Grotius, on the other hand, has suggested, that savage animals owe all their untamed ferocity, not to their own natures, but to the violence of man.22 But the common law has wisely avoided all perplexing questions and refinements of this kind, and has adopted the test laid down by Pufendorf,23 by referring the question, whether the animal be wild or tame, to our knowledge of his habits, derived from fact and experience. It was held by the Supreme Court of this state, in Picrson v. Post,24 that pursuit alone gave no property in animals fera na’urce. Almost all the jurists on general jurisprudence agree, that the animal must have been brought within the power of the pursuer, before the property in the animal vests. Actual taking may not, in all cases, be requisite; but all agree, that mere pursuit, without bringing the animal Within the power of the party, is not sufficient. The possession must be so far established, by the aid of nets, snares, or other means, that the animal cannot escape. It was accordingly held, in the case just mentioned, that an action would not lie against a person for killing and taking a fox which had been pursued by another, and was then actually in the view of the person who had originally found, started, and chased it. The mere pursuit, and being within view of the animal, did not create a property, because no possession had been acquired; and the same doctrine was afterwards declared in the case of Buster v. Newkirk.25
The civil law contained the same principle as that which the Supreme Court adopted. It was a question in the Roman law, whether a wild beast belonged to hire who had wounded it so that it might easily be taken. The civilians differed on the question; but Justinian adopted the opinion, that the property in the wounded wild beast did not attach until the beast was actually taken.26 So, if a swarm of bees had flown from the hive of A., they were reputed his so long as the swarm remained in sight, and might easily be pursued, otherwise they became the property of the first occupant.27 Merely finding a tree on the land of another, containing a swarm of bees, and marking it, does not vest the property of the bees in the finder.28 Bees which swarm upon a tree, do not become private property until actually hived.29
A qualified property in chattels may also subsist, when goods are bailed, or pledged, or destined. In those cases, the right of property and the possession are separated, and the possessor has only a property of a temporary or qualified nature, which is to continue until the trust be performed, or the woods redeemed; and he is entitled to protect this property, while it continues, by action, in like manner as if he was absolute owner.
3. Personal property may be held by two or more persons in joint tenancy, or in common; and, in the former case, the same principle of survivorship applies which exists in the case of a joint tenancy in lands.30 But by reason of this very effect of survivorship, joint tenancy in chattels is very much restricted. It does not apply to stock used in any joint undertaking, either in trade or agriculture; for the forbidding doctrine of survivorship would tend to damp the spirit and enterprise requisite to conduct the business with success. When one joint partner in trade, or in agriculture, dies, his interest or share in the concern does not survive, but goes to his personal representatives.31 Subject to these exceptions: a gift, or grant of a chattel interest, to two or more persons, creates a joint tenancy, and a joint tenant, it is said, may lawfully dispose of the whole property.32 In legacies of chattels, the courts, at one time, leaned against any construction tending to support a joint tenancy in them, and testators were presumed to have intended to confer legacies in the most advantageous manner.33 But in Campbell v. Campbell,34 the Master of the Rolls reviewed the cases, and concluded, that where a legacy was given to two or more persons, they would take a joint tenancy, unless the will contained words to show that the testator intended a severance of the interest, and to take away the right of survivorship. This same rule of construction has been declared and followed in the subsequent cases.35
4. Another very leading distinction, in respect to goods and chattels, is the distribution of them into things in possession, and things in action. The latter are personal rights not reduced to possession, but recoverable by suit at law. Money due on bond, note, or other contract, damages due for a breach of covenant, for the detention of chattels, or for torts, are included, under this general head of title to things in action. It embraces the most diffusive, and, in this commercial age, the most useful learning in the law. By far the greatest part of the questions arising in the intercourse of social life, or which are litigated in the courts of justice, are to be referred to this head of personal rights in action.
5. Chattels may be limited over by way of remainder, after a life interest in them is created. The law was very early settled, that chattels real might be so limited by will.36 A chattel personal, may also be given by will, (and it is said, that the limitation may be equally by deed,)37 to A. for life, with remainder over to B., and the limitation over after the life interest in the chattel has expired, is good. Anciently. there could be no limitation over of a chattel, but a gift for life carried the absolute interest. Then a distinction was taken between the use and the property, and it was held that the use might be given to one for life, and the property afterwards to another, though the devise over of the chattel itself would be void.38 It was finally settled, that there was nothing in that distinction, and that a gift for life of a chattel, was a gift of the use only, and the remainder over was good as an executory devise. This limitation over in remainder, is good as to every species of chattels; and there is no difference in that respect between money and any other chattel interest. The general doctrine is established by numerous English equity decisions,39 and it has been very extensively recognized and adopted as the existing rule of law in this country; but not until the question had been very ably and thoroughly discussed, particularly in the Supreme Court of Errors of the state of Connecticut.40
There is an exception to the rule in the case of a bequest of specific things, as for instance, corn, hay, and fruits, of which the use consists in the consumption. The gift of such articles for life, is of necessity a gift of the absolute property, and there cannot be any limitation over, for the use and the property cannot exist separately.41 Nor can there be an estate tail in a chattel interest, for that would lead to a perpetuity, and no remainder over can be permitted on such a limitation.42 It is a settled rule, that the same words which, under the English law, would create an estate tail as to freeholds, give the absolute interest as to chattels.43
The interest of the party in remainder in chattels, is precarious, because another has an interest in possession; and chattels, by their very nature, are exposed to abuse, loss, and destruction. It was understood to be the old rule in Chancery,44 that the person entitled in remainder could call for security from the tenant for life, that the property should be forth coming at his decease; but that practice has been overruled.45 Lord Thurlow said, that the party entitled in remainder could call for the exhibition of an inventory of the property, and which must be signed by the legatee for life, and deposited in court, and that is all he is ordinarily entitled to. But it is admitted, that the security may still be required, in a case of real danger that the property may be wasted, secreted, or removed.46
1. Reeve’s Hist. of the English .Law, vol. iii. p. 15. 369.
2. Co. Litt. 118. b.
3. Co. Litt. 46. a. Case of Gay, 5 Mass. Rep. 419. Brewster v. Hill, 1 N.H. Rep. 350.
4. Lord Coke said, that charters, or muniments of title, might be entailed. Co. Litt. 20. a.
5. Co. Litt. 8. a.
6. Poole’s case, 1 Salk. 368.
7. Ex parte Quincy,1 Atk. 477.
8. Holmes v. Tremper, 20 Johns. Rep. 29.
9. Naylor v. Collinge, 1 Taunton, 21.
10. The King v. Londenthorpe, 6 Term Rep. 377.
11. Cresson v. Stout, 17 Johns. Rep. 116.
12. Reynolds v. Shuter, 5 Cowen, 323.
13. Goddard v. Chase, 7 Mass. Rep 432.
14. Taylor v. Townsend, 9 Mass. Rep. 411.
15. 3 East, 38.
16. Miller v. Plumb, 6 Cowen, 665.
17. Taylor’s Elem. of the Civil Law, p. 475
18. Inst. 2. 1. 1.
19. 9 Co. 58. b. Aldred’s case.
20. 7 Co. 16- 18. Finch’s Law, 176.
21. Buffon’s Natural History, vol. vii. Smellie’s ed.
22. Grotius, Hist. De Belg. lib. 5. cited in Puf. Droit de la Nat. 1. 4, ch. 6. s. 5.
23. Liv. 4. ch. 6. s. 5.
24. 3 Caines’ Rep. 175.
25. 20 Johns. Rep. 75.
26. Inst. 2. 1. 13. Dig . 41. 1. 5. 2.
27. Inst. 2. 1. 11.
28. Gillet v. Mason, 7 Johns. Rep. 16.
29. Inst. 2. 1. 14. Wallis v. Mease, 3 Binney, 546.
30. Co. Litt.152. a.
31. Co. Litt. 182. a. Noy’s Rep. 55. Jeffereys v. Small, 1 Vern. 217. Elliot v. Brown, cited in Rathby’s note to 1 Vern. 217.
32. Best, J. in Barton v. Williams, 5 Barn. & Ald. 395. If this dictum be not confined to joint tenancy in merchandise, where it undoubtedly applies, it must at least be restricted to chattel interests, and there it has some color from what Lord Coke says in Co. Litt. 185. a. A joint tenant of an estate in fee can only convey his part, and if he should levy a fine of the whole estate, or convey it by bargain and sale, it would only reach his interest, and amount to a severance of the joint tenancy. Co. Litt. 186. a. Ford v. Lord Grey, 6 Mod. 43. 1 Salk. 286.
33. Perkins v. Baynton, 1 Bro. 118.
34. 4 Cro. 15.
35. Motley v. Bird, 3 Vesey, 628. Crooke v. De Vandes, 9 Vesey, 197. Jackson v. Jackson, ibid. 591.
36. Manning’s case, 8 Co. 95. Lampett’s case, 10 Co. 46. Child v. Baylie, Cro. J. 459.
37. 2 Blacks. Com. 298. The cases which I have seen all arose upon wills; but in Child v. Baylie, Cro. J. 459 the court speaks of such a remainder as being created equally by grant or devise.
38. 37 H. 6. abridged in Bro. tit. Devise, pl. 13. Hastings v. Douglass, Cro. C. 343.
39. Smith v. Clever, 2 Vern. 59. Hyde v. Parralt, 1 P. Wms. 1. Tissen v. Tissen, ibid. 500. Pleydell v. Pleydell, ibid. 748. Porter v. Tournay, 3 Vesey, 311. Randall v. Russell, 3 Merivale, 190.
40. Moffat v. Strong, 10 Johns. Rep. 12. Westcott v. Cady, 5 Johns, Ch. Rep. 334. Griggs v. Dodge, 2 Day’s Rep. 28. Taber v. Packwood, ibid. 52. Scott v. Price, 2 Serg. & Rawl. 59. Deihl v. King, 6 ibid 29. Reyall v. Eppes, 2 Munf. 479. Mortimer v. Moffatt, 4 H.& Munf. 503. Logan v. Ladson, 1 S. C. Eq. Rep. 271.
41. Randall v. Russell, 3 Merivale, 194.
42. Dyer, 7. p1. 8.
43. Seale v. Seale, 1 P. Wms. 290. Chandless v. Price, 3 Vesey. 99. Brouncker v. Bagot, 1 Merivale, 271. Tothill v. Pitt, Maddock’s Ch. Rep. 433. Garth v. Baldwin, 2 Vesey, 646.
44. 2 Freeman, 206, case 280.
45. Foley v. Burnett, 1 Bro. 279.
46. Fearne’s Executory Devises, vol. ii. 35. 4th edit. by Powel. Mortimer v. Moffatt, 4 H. & Munf. 503.