REAL PROPERTY. Sometbing which may be held by tenure, or will pass to th6 heir of the possessor at his death, instead of his executor, including lands, tenements, and hereditaments, whether the latter be cor poreal or incorporeal. 1 Atkinson, Cony.
In respect to property, rea/ and pereonal corre spond very nearly with immovablee and movables of the civil law. By the latter, " biens" is a general term for property; and these are claesified into movable and immovable, and the latter are eub divided into oorporeal and incorporeal. Guyot, Re pert. Mena.
By immovables the civil law intended property which could not be removed at all, or not without deetroying the same, together with such movables ae are fixed to the freehold, or have been eo fixed and are intended to be again united with it, al, though at the time severed therefrom. Taylor, Civ. Law, 475.
The same distinction and rnles of law a,s to the nature and divisions of property are adopted in Scotland, where, as hy the Roman law, another epithet ie applied to immovablea. They are called heritable, and go to the heir, ae diatingnished from movables, which go to executors or adminiatrators. So rights connected with or affecting heritable property, such as tithes, servitudes, and the like, are themaelves heritable; and in this it coincidee with the common law. Erskine, Inat. 192.
In another reepect the Scotch coincides with the common law, in declariog growing crops of annual planting and culture not to be heritable, but to go to execntore, etc., although ao far a part of the real eetate that they would pima by a conveyance of the land. Erskine, Inst. 193; Williams, Execs. 600.
Though the term real, aa applied to property, in distinction from pereonal, ia now so familiar, it is one of somewhat recent introduction. While the feudal law prevailed, the terme in uae in its atead were lands, tenements, or hereditaments; and these acquired the epithet of rea/ from the nature of the remedy applied by law for the recovery of them, as distinguiabed from that provided in case of in juriea, contracts-broken, and the like. In the one
caae the claimant or demandant recovered the real thing ened for,—the land itself,—while, ordinarily, in the other he could only recover recompense in tbe form of pecuniary damagea.
The term, it is eaid, as a means of designation, did not come into general uae until after the feudal I system had lost its hold, nor till even as late as the commencement of the seventeenth century. One of the earliest casee in which the courts applied the dietinetive terma of real and personal to estates, without any words of explanation, is said to have been that of Wind we. Jekyl et al. A.D. 1719, 1 P. Will. Ch. 575; Williams, Real Prap. 6, 7.
2. Upon the question what is embraced under the term real property or estate, so as to have heritability and other incidents of lands, tenements, or hereditaments, it may be stated, in general terms, that it includes land and whatever is erected or growing upon the same, with whatever is beneath or above the surface: " usque ad orcum" as well as "usque ad ccelum." 2 Blackstone, Comm. 17-19 ; 1 Am. Law Mag. 271; Coke, Litt. 4 a.
This would, of course, include houses standing and trees growing upon the land, and would not embrace chattels like stock upon a farm or furniture in a house. But I not only may houses or gpvt-ing trees ao quire the character of personal, but various chattels, originally personal movables, may acquire that of real, property.
Thus, if one erect a dwelling-house upon the land of another by his assent, it is the personal estate of the builder. 6 N. H. 555 ; 5 Me. 452 ; 8 Pick. Mass. 404. So, if a nursery man plant trees, for the purpose of growing them for the market, upon land hired by trim, they would be personal estate. 1 Meta. Mass. 27; 4 Taunt. 316.
3. So crops, while growing, planted by the owner of the land, are a part of the real estate ; but if sold by him when fit for harvesting, they become personal, 5 Barnew. & C. 829; and a sale of such crops, though not fit for harvest, as personal, has been held good. 4 Mees. & W. Exch. 343; 2 Dan. Ky. 206; 2 Rawle, Penn. 161.