PART I. OF CHOSES IN POSSESSION. CHAPTER I. OF CHATTELS WHICH DESCEND TO THE HEIR. CHOSES in possession are moveable goods, such as plate, furniture, farming stock, both live and dead, locomotive engines and ships. These, as has been before remarked, are essentially the subjects of absolute ownership, and cannot be held by estates; they are alienable by methods altogether different from those employed for the conveyance of landed property, and they devolve in the first instance on the executor of the will of their owner, or on the administrator of his effects, if he should die intestate. There are, however, some kinds of choses in possession which form exceptions to the general rule: these consist of certain chattels so closely connected with land that they partake of its nature, pass along with it whenever it is disposed of, and descend along with it, when undisposed of, to the heir of the deceased owner. The chattels which thus form exceptions are the subject of the present chapter: they consist principally of title deeds, heir-looms, fixtures, chattels vegetable, and animals feræ naturæ. Of each in their order. ance of the Title deeds, though moveable articles, are not strictly Title deeds pass speaking chattels. They have been called the sinews by the conveyof the land (a), and are so closely connected with it lands. that they will pass, on a conveyance of the land, with (a) Co. Litt. 6 a. out being expressly mentioned: the property in the deeds passes out of the vendor to the purchaser simply by the grant of the land itself (b). In like manner a devise of lands by will entitles the devisee to the possession of the deeds; and if a tenant in fee simple should die intestate, the title deeds of his lands will descend along with them to his heir at law (c). In former times, when warranty was usually made on the conveyance of lands (d), the rule was that the feoffor should retain all deeds containing warranties made to himself or to those through whom he claimed, and also all such deeds as were material for the maintenance of the title to the land (e). But if the feoffment was made without any warranty, the feoffee was entitled to the whole of the deeds; for the feoffor could receive no benefit by keeping them, nor sustain any damage by delivering them (ƒ). Warranties have now fallen into disuse; but the principle of the rule above stated still applies when the grantor has any other lands to which the deeds relate, or retains any legal interest in the lands conveyed; for in either of these cases he has still a right to retain the deeds (g). And if the grantor should retain merely an equitable right to redeem the lands, as in the case of a mortgage in fee simple, it has been held that this equitable right is a sufficient interest in the lands to authorize him to withhold the deeds, unless they are expressly granted to the mortgagee (h). It is very questionable, however, whether a legal right ought to (b) Harrington v. Price, 3 Barn. & Adol. 170; Philips v. Robinson, 4 Bing. 106; S. C. 12 Moore, 308. (c) Wentworth's Office of an Executor, 14th ed. 153; Williams on Executors, pt. 2, book 2, c. 3, s. 3. (d) See Principles of the Law of Real Property, 344. (e) Buckhurst's case, 1 Rep. 1 b. (f) 1 Rep. 1 a. (g) Bro. Abr. tit. Charters de Terre, pl. 53; Yea v. Field, 2 T. Rep. 708; see however Sugd. Vend. & Pur. 465; 2 Prest. Conv. 466. (h) Davies v. Vernon, 6 Q. B. 443, 447. be attached to an interest merely equitable. And the doctrine last mentioned is opposed by a more recent decision in another court (i). way of use. If a conveyance of lands should be made by way of When the conuse, thus, if lands should be granted to A. and his veyance is by heirs, to the use of B. and his heirs, it is said that the title deeds of the land will belong to A., the grantee; because, although the Statute of Uses (j) conveys the legal estate in the lands from A. to B., it does not affect the title deeds, which must consequently still remain vested in A. (k). But this doctrine has been justly quesstioned, on the ground that the legislative conveyance from A. to B., effected by the Statute of Uses, ought to be at least as powerful as the common law conveyance of the lands to A.; and if the latter conveyance can carry with it the deeds relating to the land, the former conveyance should be considered as powerful enough to do the same (1). are settled. The tenant of an estate in fee simple in lands possesses the highest interest which the law of England allows to any subject; and such a tenant possesses also an absolute property in the title deeds, which he may destroy at his pleasure, or sell for the value of the parchment (m). But if the lands to which deeds relate should When the lands be settled on any person for life or in tail, a qualified ownership will arise with respect to the deeds, different in its nature from that simple property which is usually held in chattels personal. As the lands are now held for a limited estate, so a limited interest in the deeds belongs to the tenant. The tenant for life or in tail, when in possession of the lands, being the freeholder (i) Goode v. Burton, Exch. 11 Jur. 851. (j) 27 Hen. VIII. c. 10. 5th ed. 117. (1) Sugd. Vend. & Pur. 464; Co. Litt. 6 a, n. (4). (m) Cro. Eliz. 496. Heir-looms. for the time being, is entitled also to the possession of the deeds (n); whereas the tenant for a mere term of years, of whatever length, not having the freehold or feudal possession of the lands, has no right to deeds which relate to such freehold (o); although deeds relating only to the term belong to such a tenant, and will pass, without any express grant, to the assignee of the term (p). The tenant for life or in tail in possession, though entitled to the possession or custody of the deeds which relate to the inheritance, has no right to injure or part with them (q) he has an interest in the title deeds correspondent only to his estate in the lands; and if he should part with the deeds, even for a valuable consideration, the remainder-man, on coming into possession of the lands, will nevertheless be entitled to the possession of the deeds, just as if the tenant for life or in tail had kept them in his own custody (r). Heir-looms, strictly so called, are now very seldom to be met with. They may be defined to be such personal chattels as go, by force of a special custom, to the heir, along with the inheritance, and not to the executor or administrator of the last owner (s). The owner of an heir-loom cannot by his will bequeath the heir-loom, if he leave the land to descend to his heir; for in such a case the force of the custom will prevail over the bequest, which not coming into operation until after the decease of the owner, is too late to supersede the custom (t). According to some authorities heir-looms consist only of bulky articles, such as tables and benches, (n) Ford v. Peering, 1 Ves. jun. 76; Strode v. Blackburne, 3 Ves. 225. (0) Churchill v. Small, 8 Ves. 323; Harper v. Faulder, 4 Mad. 129, 138; Hotham v. Somerville, 5 Beav. 360. (p) Hooper v. Ramsbottom, 6 Taunt. 12. (9) Bro. Abr. tit. Charters de Terre, pl. 36. (r) Davies v. Vernon, 6 Q. B. 443. (s) See Co. Litt. 18 b. fixed to the freehold (u); but such articles would more properly fall within the class of fixtures of which we shall next speak. The ancient jewels of the crown are Crown jewels. heir-looms (w). And if a nobleman, knight or esquire be buried in a church, and his coat armour or other Coat armour. ensigns of honor belonging to his degree be set up, or if a tombstone be erected to his memory, his heirs may Tombstone. maintain an action against any person who may take or deface them (x). The boxes in which the title deeds of Deed boxes. land are kept are also in the nature of heir-looms, and will belong to the heir or devisee of the lands; for such boxes "have their very creation to be the houses or habitations of deeds (y);" and accordingly a chest made for other uses will belong to the executor or administrator of the deceased, although title deeds should happen to be found in it. In popular language the Popular use of term "heir-loom" is generally applied to plate, pic- loom." the term "heir tures or articles of property which have been assigned by deed of settlement or bequeathed by will to trustees, in trust to permit the same to be used and enjoyed by the persons for the time being in possession, under the settlement or will, of the mansion house in which the articles may be placed. Of this kind of settlement more will be said hereafter. Fixtures are such moveable articles or chattels per- Fixtures. sonal as are fixed to the ground or soil, either directly, or indirectly by being attached to a house or other building. The ancient common law, regarding land as of far more consequence than any chattel which could be fixed to it, always considered every thing attached to the land as part of the land itself,—the maxim being quicquid plantatur solo, solo cedit (z). Hence it fol (u) Spelman's Glossary, voce Heir-Loom. See Williams on Executors, pt. 2, bk. 2, ch. 2, s. 3. (w) Co. Litt. 18 b. (x) Co. Litt. 18 b. (y) Wentworth's Office of an |