Independent of the quality and quantity of an estate, there is another modification of property which requires notice. 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. lie who has not the right to the estate in quantity and quality, as above explained, but merely to the enjoyment 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 inasmneh as we want a word to express 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. The explanation of the nature of an equitable as distinguished from a legal estate belongs to Uses and Trusts.
It has been said that this distinction between legal and beneficial or equitable property is peculiar to the English law. (Lord Mansfield, 1 ' T. It.; 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 Unitarian, beneficial, or equitable, was fully developed. Its origin 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 (ii. 40), "among other nations (pert. yrini) 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 quiritium, and another may have the same thing in boats. For if, in the case of a rea mancipi, I do not transfer it to you by mancipatio, or in jure cessio, but only deliver it, the thing indeed -will become yours beneficially (in Lams), but it will remain mine legally (ex jure guiritiatm), till you have acquired the property by usucapion ; for as soon as the time of urucapion is completed, from that time it begins to be years in full ownership (plena jure); that is, the thing begins to be yours both in Zonis 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 distinction 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 purposes to which this divided or double ownership is applied in our system.
3. The modes in which property is legally transferred from one person to another.
Property may either be acquired in a single thing, or in several things of the same kind at one time ; or it may be acquired in a great variety of different kinds of things at the same time, which pass to the new owner, not as individual things, but as the component parts of a whole property. The Roman law designated the former mode of acquisition by the term acquisitio ccrum singularum ; and the latter by the term acguisitio per unirersitatem. Though the two modes of acquisition exist in our law, there are no names for them by which they are placed in opposition to one another. The case of acquisitio per unircrsitatem, or of universal succession, occurs when a man is made a bankrupt or insolvent, and an assignee or assignees are appointed [BANKRUPT ; INSOLVENT), in which cases the whole of a rnan'a property, real and personal, as well as his rights and obligations generally, become the legal property of the assignee or assignees, and js applicable and must be applied according to the rules of law in the cases of bankruptcy and insolvency. With respect to personal pro perty, universal succession occurs when a man by his last will appoints an executor ; and an administrator with the will annexed, or without the will annexed when there is none, thereby acquires the whole per sonal property of the intestate. Both the heir and devisee also, In a sense take by universal succession.
As to both singular and universal succession, the modes of acquisition of estates in things red are reducible to two general heads—descent and purchase. " Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of repre sentation as his heir at law" (Blackstone); and an estate so acquired is commonly called an estate of inheritance.
Purchase, which is corrupted from the Latin word perquisitio, is defined by Littleton (i. 12) to be "the possession of panda or tent, menus that a man lath by his deed or agreement., unto a Web possession he corned.) not by title of descent from any of his ancestors, or of his cousins (consonqaiaa), but by his own deed." Purchase, as thus defined, comprehends all the modes of acquiring property by decal or agreement, and not by descent ; but it is not a complete description of purchase, as now understood, for it omits the mode of acquisition by will or testrunent, which, however, when Littleton wrote, was of coin paratively small importance, as the power of devising Lands did not then exist, except by the custom of particular places. Blackstone makes the following enumeration of the modes of purchase : Escheat, Occupancy, Forfeiture,'and Alienation. As to escheat, there is some difficulty In the classification, as the title appears to be partly by descent and partly by purchase.