The general division of property in the English law is into Things Real and Things Personal, the incidents to which are in many respects different in the system of English law.
Things Real are comprehended under the terms of Lands, Tenements, and Hereditaments. The word Heredita ments is the most comprehensive of these terms, because it comprehends every thing which may be an object of inheritance, both Things Real, and also some Personal Things, such as heirlooms, which are objects of inheritance.
Hereditaments are divided into Things Corporeal and Incorporeal. A Corpo real Hereditament is land, in the legal sense of the term. An Incorporeal Hereditament is defined by Blackstone to be "a right issuing out of a thing cor porate (corporeal), whether real or per sonal, or concerning or annexed to, or exerciseable within the same." Perhaps the definition is not quite exact, and it would not be easy to make an exact de finition. The Things Incorporeal of the English law correspond in their general character to the Res Incorporales of the Roman Law, one distinguishing charac ter of which is that they are incapable of tradition or delivery (Gains, n. 28): the Res Corporales of the Roman Law are things which are capable of tradition, whether moveable, as a horse, or im moveable, as a house. The Incorporeal hereditaments enumerated by Blackstone are, Advowsons, Tithes, Commons, Ways, Offices, Dignities, Franchises, Corodies or Pensions, Annuities, and Rents.
The interest which a man can have in any land, tenement, or hereditament, is called an Estate ; and this word com prises the greatest amount of power and enjoyment, both as to time and manner, which a man can legally have over and in any of the three things just enume rated, as well as the smallest legal amount of such power and enjoyment : it also comprises, under the notion of time, the determination of the period when his power and enjoyment shall commence, as well as when they shall cease. [ESTATE.] With reference to an estate, the time during which the right of enjoyment continues is usually expressed by the term Quantity of Estate. The manner in which the enjoyment is to be exercised during this time is often expressed by the term Quality of Estate; thus a man may enjoy an estate solely or in joint tenancy.
A person may have the estate both as to quantity and quality in the sense above explained, either with or without the right to the beneficial enjoyment. The person who has merely the Estate in quantity and quality has the bare legal Estate. He who has not the right
to the Estate in quantity and quality, as above explained, but merely to the en joyment of such estate, while the other has not, is said to have the equitable estate. The term quality of estate might be used to express this equitable interest; but inasmuch as we want a word to ex press the manner and mode of enjoying an estate as distinct from the time of enjoyment, and as quality is the word used to express that manner and mode, it must not be used in a different sense.
It has been said that this distinction between legal and beneficial or equitable property is peculiar to the English law. (Lord Mansfield, 1 7'. R., 759, n.) But these two kinds of property existed in the Roman law, and the theory of the division of ownership or property into Quiritarian or legal, and bonitarian, beneficial, or equitable, was fully developed. Its ori Fth in the Roman law is not certain ; but it is a probable conjecture that its origin so far resembled the origin of the like division in English law, that it was due to the attempt to get rid of the difficulties attending the alienation of property by the old legal forms. "There is," says Gains 40), "among other nations (peregrini) only one kind of ownership or property (dominium), so that a man is either owner or not; and it was the same in the old Roman law, for a man was either owner ex jure quiritium,' or he was not. But ownership was afterwards divided, so that one man may now be owner of a thing ex jure qairitium, and another may have the same thing in bonis. For if in the case of a res man cipi, I do not transfer it to you by manci patio, or in jure cessio, but only deliver it, the thing indeed will become yours beneficially (in bonis), but it will remain mine legally (ex jure quiritium), till you have acquired the property by usucapion; for as soon as the time of usucapion is completed, from that time it begins to be yours in full ownership (pleno jure), that is, the thing begins to be yours both in bonis and in jure, just as if it had been transferred by mancipatio or in jure cessio." This passage seems to suggest a conjecture as to the origin of the distinc tion between legal and equitable property which was of so much importance in Roman law. The distinction between the two kinds of ownership or property was as clearly marked as in our system, though it was not applied to all the pur poses to which this divided or double ownership is applied in our system.