829
[end of lecture 50]

LECTURE LI.

RIGHTS IN REM DISTINGUISHED IN RESPECT OF DURATION.

I have considered such distinctions between primary jura in rem as are founded on differences between the degrees wherein the entitled persons may use or deal with the subjects.

Primary Rights, etc. Rights in rem, per se.

But primary rights of the class are also distinguishable by differences between the quantities of time during which they are calculated to last. And whatever be the quantity of time during which it is calculated to last, or whatever be the extent of its duration, a primary right of the class may be present or future; or, in other words, may be vested or contingent. And if it be present or vested, it may be coupled with a right in the party to present enjoyment or exercise, or the right of the party to enjoy or exercise may be presently suspended or postponed. One person, for example, may have an estate for life with remainder in fee to another; in which case, the latter has a present or vested right, but has no right to present enjoyment, his right to the enjoyment of the subject being suspended by the pendency of the right in the first taker.

From distinctions founded on differences between the extents of user, I shall proceed to the distinctions which I have now suggested: namely, the distinctions which are founded on differences between the durations of rights; between present or vested rights, and future or contingent rights; and between such present rights as are coupled with a right to present enjoyment, and such present rights as are coupled with a right to enjoyment to commence at a future time

Of such distinctions between rights as are founded on differences between their durations.

In treating of rights in respect of their different durations, I shall follow the method which I observed when treating of rights in respect of the different powers of user respectively annexed to them: that is to say, I shall assume that they are present or vested.

Such distinctions inseparably implicated with modes of acquisition, or Titles.

830Before I proceed to the distinctions between rights which are founded on differences between their durations, I must remark that these distinctions are inseparably connected with matter which I shall discuss in future lectures: namely, the various modes or titles by which jura in rem are respectively acquired and lost; or the various facts or events (or the various causæ) whereon rights of the class respectively begin and end. For example: before we can understand exactly what is meant by a right of unlimited duration, we must know the nature of descent or of succession ab intestato. And before we can know the nature of absolute property (or of property unlimited in duration, and alienable from those who without alienation would succeed on the death of the owner), we must know the various modes by which the right is alienable, either voluntarily or involuntarily: that is to say, with the free consent of the owner (as in the case of a sale or gift), or in the owner’s despite (as in the case of his bankruptcy, or of forfeiture for a crime). (I apprehend that any event of whatever nature is called an alienation, which carries the right over to another person than the owner or the persons who are appointed by the law to succeed in case no alienation takes place: If the alienation take place by the free consent of the owner, it may be called voluntary alienation; if in the owner’s despite, involuntary.)

The connection between the consideration of rights in respect of their duration, and the consideration of the titles or means by which they are acquired, is so intimate, that it has been proposed by some writers to consider the duration of rights under the several modes by which they are acquired. Among these is Mr. Humphreys, in his Outline of a plan for codifying the law of real property.

Much of what I shall utter, in regard to the distinctions between rights which are founded on their various durations, will therefore refer to the modes or titles by which rights are respectively acquired and lost. And such is the intimate connection between the various departments of every legal system, that such reference forward to matter yet unexplained, is an inconvenience which cannot be avoided by any expositor of law, although by long and assiduous reflection it might be considerably reduced.

Rights considered in respect of duration are, Of limited duration; Of duration limited but not definite; or, Of definite duration.

Of such distinctions between rights as are founded on differences between their respective durations, the leading or principal one is this: that some are rights of unlimited duration, 831whilst others are rights of limited duration; a right of limited duration being either of a duration definite as well as limited, or being of a duration which, though limited, is not susceptible of exact circumscription. For example: An estate in fee-simple, or absolute property in a personal chattel, is a right of unlimited duration. Property for the life of the owner, or for the life of another, is a right of limited but indefinite duration. Property for a given number of years is a right of a duration limited and defined.

It is obvious to remark, that, in respect of the party who actually bears the right, a right cannot be a right of unlimited duration. In regard to the party who actually bears the right, the right must cease on his death, if it cease not sooner.

Right of unlimited duration.

By a right of unlimited duration, we must therefore mean, a right which may devolve from the party entitled through a series of successors of a given character or characters,⁶⁰ which may possibly last for ever: meaning by a series of successors which may possibly last for ever, a series of successors to the continuance of which there is no certain and assignable limit. By the extinction of the series of successors, by the annihilation of the subject of the right, or by various other intervening contingencies, the right may cease. But there is no certain and assignable event (or no certain and assignable event imported by the right itself) on which the right must necessarily determine.

For example: An estate in fee simple, or an estate in fee tail, may devolve from the actual owner, or from the party actually bearing the right, through a series of heirs which may possibly last for ever: that is to say, through a series of heirs to the continuance of which there is no known and assignable boundary.

As I have already remarked, the nature of a right of unlimited duration cannot be understood completely, without a foreknowledge of the nature of descent or of succession ab intestato. In order to the existence of a right of unlimited duration, it must be capable of devolving ab intestato from the party actually entitled, through an infinite series of successors, each of whom may take by descent; the first taking by descent from the party actually entitled; the second taking by descent from the first; and so on in infinitum.

832I say it must be capable of devolving in the manner which I have now described through a series of successors which may endure for ever. For assuming that the right be alienable from that series of possible successors, either by the party actually bearing it, or by every or any in that series of possible successors, the right itself would cease on an actual alienation, and a new right over the subject would begin in the alienee.

I think, then, that a right of unlimited duration may be defined in the following manner: It is a right for the life of the party actually entitled, and capable of devolving ab intestato through a series of successors which may continue infinitely: meaning by infinite, infinitely, and infinitude, all that we can ever mean by those expressions: namely, the absence or negation of any end or limit which it is possible to assign.

The idea of a right of unlimited duration is therefore so inseparably connected with the notion of descent (or with the notion of succession or devolution ab intestato), that it is scarcely possible to explain the former without explaining the latter.

Sir William Blackstone’s notion of a right of unlimited duration accords with that which I have now stated. (See vol. ii. chap. vii.)

Right of limited duration.

By a right of limited duration, I mean a right which cannot continue beyond the happening of a certain and assignable fact, whether the duration of the right be definite or indefinite.

In the case of a right of unlimited duration, there is no certain and assignable limit beyond which it cannot endure. In the case of a right of limited duration, there is a certain and assignable limit beyond which it cannot endure: although the precise time at which the event which constitutes that assignable limit may happen may not be capable of determination.

In the case, for example, of a right for a given number of years, the right cannot endure beyond the lapse of the given period. And in the case of property for the life of the actual owner, or for the life of another person, it must determine on the death of the owner, or on the death of the other person, though the time of that death is not of itself certain.

A right of unlimited duration does not necessarily imply alienability by the party actually bearing the right.

A right of unlimited duration (as I understand the expression) is not of necessity alienable by the party actually bearing it, from the possible series of successors ab intestato. For example: According to the older English Law, the tenant in fee simple could not alien (even with the consent of his feudal superior) without the consent of the party who was then his apparent or presumptive heir. And the case seems to have been the same 833in all the legal systems which obtained through different parts of Europe under the general name of the feudal system. It is a mistake to suppose that by the feudal law the restrictions on alienation were designed for the advantage of the feudal superior only. They appear, from the fact I have just stated, to have partly had in view also the advantage of the person appointed to succeed. Analogously, in the Roman Law, domestic heirs, as they were termed, had a right against the actually entitled party, who could not alien from them, or could do so only in a certain manner. The children were said for this reason to be quodammodo domini, vivo quoque parenti (I mean by the old Roman Law, as we learn from Gaius, and from the Pandects). And in the Greek versions of the Roman law books, the heirs who were termed sui et necessarii, went by the name of αὐτοκληρόνομοι. They seem to have taken not merely by descent from the party originally entitled, he having a complete power of diverting the right from them, but rather as being in a manner themselves entitled jointly with him. And, in English law, until tenants in tail were able to alien from the heirs in tail by fine or recovery, the estate tail was not alienable from any of the series of possible successors on whom by the creator of the estate it was destined to devolve.

I have made these remarks because property of unlimited duration, and absolute property (or property with a power of aliening from the future successors ab intestato) seem to be often confounded. Many writers on law suppose this power to be of the essence of a right of unlimited duration. But I conceive that it is not so, although it is of the essence of domininum in the narrowest sense, or of property pre-eminently so called.

As I shall endeavour to shew immediately, absolute property is always accompanied with such a power of aliening. But property of unlimited duration (as an estate in fee simple or an estate in tail) is not of necessity absolute.

But whenever a right of unlimited duration is not alienable by the party at present entitled from the series of possible successors ab intestato, the right of the party actually entitled is in effect an estate for life.

For example: If a tenant in tail had never acquired the power of aliening, by the introduction of fines and recoveries, the estate of a tenant in tail would in fact have been nothing more than an estate for life. Each of the series of successors would have taken only an estate for life. (By the introduction of fines and recoveries, an estate tail has become, to every 834practical intent or purpose, tantamount to an estate in fee. The only difference is, that the tenant cannot alien except by those peculiar modes.)

Nor is alienability confined to rights of unlimited duration.

In confirmation of this view of the matter, it may be observed that the power of aliening from those who in default of such alienation would take, is not peculiarly attached to rights of unlimited duration: it may reside in the party invested with a right of limited duration, in a tenant per autre vie, or even a tenant for years. The party entitled may die before the expiration of his estate: the residue of the estate must then in default of alienation go over to his own successors as appointed by the law; consequently he may have a power of aliening it from those successors. The power of aliening, therefore, will not serve to distinguish rights of unlimited from rights of limited duration.⁶¹

Restrictions on alienation when allowed in practice.

But though alienability from the successors ab intestato is not rigorously of the essence of a right of unlimited duration, it is scarcely possible to conceive that, in any society, all or most rights in rem should be unalienable. If most rights of property were unalienable, all commerce would be at an end. In fact and practice, therefore, in every system it is only in comparatively few cases that such rights are unalienable; and even where such restrictions on alienation are permitted, the power of tying up, as it is called, is generally confined within very narrow limits.

These cases are of two kinds:

1st, Those in which he is prohibited from aliening the very right, or the res singula, which is the subject of the right: e.g. The English tenant in fee, according to the old law.⁶²

8352nd. Cases in which he is prevented from aliening from his successors the universum, or some portion of the universum, of the transmissible rights which may happen to reside in him at his death. E.g. The older Roman law; the Roman law as modified by the legitima portio; the French law of succession.⁶³

Where he is prohibited from aliening from his successors the universum of the rights which may happen to reside in him at his death, he is permitted to alien any of the single rights of which that complex and fluctuating whole, constituting the universum of his rights, may happen at any time to consist. The whole or any part of them is also liable for his debts. And it is only with reference to his rights as considered singly or particularly, that he can be said to have a right of absolute property.

Limitations to right of alienation to prevent fraud on successors.

The party may destroy, spend, or consume, etc.: But may not give, except subject to certain limitations. Or if the gift be fraudulent, it is prohibited.

In what sense property in a personal chattel is a right of unlimited duration.

It may devolve ab intestato through a series of administrators representing the owner.

But it is not likely that it should: Because it forms a part of the university of his rights, and is therefore likely to be aliened for debts, etc.

Besides, the universum being divisible amongst next of kin, no one right is likely to continue in the same line of takers.

It would seem that the property is rather absolute (i.e. alienable from all possible successors) than of unlimited duration.

Absolute property defined.

I shall now attempt to explain the notion of absolute property, or dominium pre-eminently so called.

According to the definition of the Roman lawyers, of the French Code, of Blackstone, and others, in fact by most writers, it means a right indefinite in user, unlimited in duration (that 836is, capable of going over to a series of successors ab intestato which may possibly last for ever), and alienable by the actual owner from every successor who in default of alienation by him might take the right.

Power of alienation from every possible successor is of the essence of absolute property.

It is certain that the power of alienation is of the essence of the Roman property or dominium. It is also of the essence of absolute property as conceived by Sir William Blackstone.⁶⁴

I say that property pre-eminently so called is alienable by the actual owner from every successor who in default of such alienation might take the subject. It therefore implies more than the power of aliening from his own successors ab intestato. For even where a right is a right of unlimited duration, another right may be expectant upon it. This, for example, is the case wherever a mesne lord of the fee is interposed between the tenant in fee and the king; the estate of the tenant in fee might devolve on his heirs general ad infinitum, but he could not, by any alienation from his own heirs, affect the interest of the lord of the fee.

Absolute property in land distinguished from our estate in fee simple.

Consequently, in English law, there is no property in land which comes up to the idea of absolute property.

We may conceive generally that, although the right of the present owner be a right of unlimited duration, any number of rights of limited or unlimited duration may intervene between it and the sovereign or state as ultimus hæres, or the party who may occupy the right on failure of all entitled parties as being res nullius. For, in different systems of law, the provisions as to the party who is to take on the expiring of all preceding rights, may of course differ. It is generally the sovereign or state (the fisc), and in England, the king, who for these purposes may be considered as representing the state. But, instead of itself assuming the right, the state might allow it to go to the first person who might choose to occupy it.

Properly speaking, then, there is not in the law of England any absolute property in land, in case there be any mesne lord interposed between the tenant and the king. For, there is a reversion in the mesne lord, which the tenant cannot defeat, though he may alien from his own heirs.

And from the Roman emphyteusis.

And this explains what for a long time puzzled me: the nature of the Roman emphyteusis. Our tenant in fee, where there is a mesne lord interposed between the tenant and the king, has an interest precisely like that of the tenant of the emphyteusis, that is, a lease to a man and his heirs general, with 837reversion to the lessor in case those heirs should fail, or the rent reserved should not be paid: namely, not only in case of failure of the heirs of the party himself, but of failure of the heirs of any party to whom he might assign the emphyteusis. In the same manner, an estate in fee simple reverts to the lord of the fee, on failure of heirs to any assignee of the estate. The two rights are exactly similar. Neither of them, therefore, is absolute property in the strict sense. Neither imports a right in the party entitled of aliening absolutely from all those who may possibly take the right. And hence it must have been that the right of a party in an emphyteusis was ranked by the Roman lawyers among the jura in re alienâ: because there is a party having a right which the emphyteuta cannot possibly defeat or touch, and out of which his own right is, as it were, carved.

In the case of property in a personal chattel, the above reasoning does not apply. There is no party interposed between the owner and the ultimus hæres, whoever that may be.

Unlimited duration, though coupled with absolute property in all established systems, is not necessarily involved in it.

I have hitherto assumed that to constitute property or dominium pre-eminently so called, the right of the party actually entitled must be a right of unlimited duration, and in all established systems of law, that is actually the case. If the party did not alien, the right would go over to a series of successors ab intestato, which might possibly endure for ever. But it is possible to conceive, that the state might grant out property in land for life or years, with immediate return to the state itself, and might grant to the party to whom it gave this right of limited duration, a power of user, as unlimited as is possessed by the owner of personal chattels. We might then say that the party had property or absolute dominion in the subject, notwithstanding the limited duration of his right.

Rights of Limited Duration.

1° A right which cannot continue beyond a given event that will certainly happen, although the duration of the right may not itself be susceptible of exact circumscription.

2° A right to last through a period which must cease on the happening of a certain event, although the time at which that event may happen cannot be determined.

Rights of limited duration, are rights of measured or exactly defined duration, or rights of unmeasured duration: meaning by measured, measured according to the legal measure of time, 838let it be what it may: e.g. so many revolutions of the earth round the sun, or of the earth on its own axis, etc.

[E.g. An estate for life: an estate for years.]

In case of a right of limited duration, succession is just as possible as in a right of unlimited duration: e.g.: in case of estate for years, or per autre vie. But here, it cannot endure beyond the limited period.

Alienability is not less incident to rights of limited, than to rights of unlimited duration.

In case the right be a right of property, power of user is also indefinite. But it never can extend to the destruction of the subject, or (what is the same thing) to depriving it of all the properties which make it a fit subject for human enjoyment or use. For the expectant on the rights of limited duration, there is necessary (or almost neeassary) a right of [conservation],⁶⁵ or (what comes to the same thing) a right quasi in the sovereign or state. But where there is merely a reverter to the state, the power of user may extend to destruction.

Note.—I confess that I have had some difficulty in comprehending the nature and purport of the distinction laid down by the author in the above Lecture, but having, as I think, after some trouble, discovered the rationale of it, I will state what appears to me the reason of the author’s taking so much pains to examine a distinction whose net consequences appear so limited.

In English law, the distinction between rights of property conceived as limited in point of duration, and those conceived as unlimited in point of duration, is of great practical importance. The right of (so-called) unlimited duration carries with it the right of alienation by the person entitled, not only from heirs (whether general or of a particular class), but also from all persons having any kind of spes successionis by way of remainder or substitution; whereas the person entitled to an estate of (so-called) limited duration, can alienate only from himself and those who would be entitled by descent from him, and not from those entitled by way of remainder or substitution. A further consequence of the distinction arises by way of corollary to the other, namely, that in rights of the first class the power of user by the person entitled is more extensive than that in rights of the last class, inasmuch as, in the last case, the proprietor having it in his power 839to disappoint altogether the hopes of successors, cannot be supposed to injure them by waste (or partial destruction of the subject).

In consequence of its importance in English law, the author is led to state and examine this distinction. The net result is this : 1. The distinction (such as it is) is neither adequately nor appropriately described by the expressions ‘rights of unlimited duration’ and ‘rights of limited duration.’ The distinction (such as it is) really being, between rights capable of devolving by way of descent (a term of which the full definition must be reserved for the subject of succession ab intestato) to a series of successors which may last indefinitely, and rights not capable of transmission by descent to such a series. 2. The power of alienation from substitutes, and the consequent large right of user which, in English law, are incident to rights of (so-called) unlimited duration, are neither of them necessary incidents of that right.

The distinction therefore, from its grave consequences in the English law, requires notice. But, in the view of general jurisprudence, it is not very important.—R. C.

[beginning of lecture 52]