OF TILE RIGHTS ARISING FROM PROPERTY, USUALLY CALLED RIGHTS OF THINGS.
1. For the better understanding the doctrine of this title it may be observed, that though, by the Roman law, the person or persons next of blood to one dying intestate suc ceeded to the right of his whole estate, of whatsoever sub jects it might have consisted ; yet, by the law of Scotland, and indeed of most nations of Europe, since the introduc tion of fens, wherever there arc two or more in the samo degree of consanguinity to the deceased, who are not all females, such rights as are either properly feudal, or have any resemblance to feudal rights, descend by law wholly to one of them, who is considered as the proper heir of the deceased ; the others, who have the name of next of kin or executors, must be contented with that portion of the estate which is of a more perishable nature. Hence has arisen the division of rights to be explained under this utle ; the subjects descending to the heir are styled heritable, and those that fall to the next of kin moveable.
2. All rights of or affecting lands, under which are comprehended houses, nulls, fishings, teinds, and all rights of subjects that are 'Undo annexa, whether com pleted by seisin or not, are heritable ex sua natura. On the other part, every thing that moves itself, or can be moved, and in general whatever is not united to land, is moveable ; as household furniture, corns, cattle, cash, arrears of rent and of interest, even though they should be clue on a right of annual rent ; for though the arrears last mentioned are secured on land, yet being already payable they are considered as cash. Bygone feu duties, like other arrears, arc moveable, and consequently belong to the superior's executors. In rights bearing a tract of future time, i. c. rights which cannot be fulfilled at once, and which carry a yearly profit to the creditor while they subsist, c. g. tin annuity for a certain term of years, though the arrears clue before the creditor's death are moveable, yet the rights themselves are heritable, both because they yield an annual profit, and because nothing falls under exe cutory but what is instantly payable, and can be gathered in and distributed among those that have interest in it. So
that admitting diem not to be heritable ex sua natura, the heir is the only person that can take them. Leases of land arc heritable, both as they have a tract of future time, and as statute has given to them in certain respects the effect of real rights of land.
3. Debts (nomina debitorum) when due by bill, promis sory note or account, are moveable. When constituted by bond, they are moveable as to succession, but heritable as to the Fisk and the relict, that is, though by the general rule moveable rights fall under the communion of goods con sequent upon marriage, and the moveables of denounced persons fall to the crown or fisk by single escheat, yet bonds bearing interest do neither, but are heritable in both respects. When constituted by bond having a clause of in leftment, they are heritable.
4. Where lands are voluntarily sold, either by a formal disposition, or even by a minute of sale, the price, if it be not heritably secured, must as a moveable subject go to the seller's executors. But in judicial sales For the behoof of creditors, the debts continue heritably secured on the price till payment or the conveyance to the purchaser ; and therefore, in so far as they are not paid to the creditor him self, they must go to his heir.
5. All questions, whether a right be heritable or movea ble, must be determined according to the condition of the subject at the time of the ancestor's death. If it was heri table at that period it must belong to the heir ; if moveable it must fall to the executor, without regard to any altera tions that may have affected the subject, in the interme diate period between the ancestor's death and the petition.
I. Heritable rights are governed by the feudal law, which owed its origin, or at least its first improvements, to the Longobards, whose kings, upon having penetrated into Italy, the better to preserve their conquests, found it their interest to make grants to their principal commanders of great part of the conquered provinces, to be again subdi vided by them among the lower officers, under the condi tions of fidelity and military service.