CHAPTER XII. FIRST-OF REAL ESTATE HELD BY LEGAL TITLES. § 172. General rule respecting. Interest of a vendor before conveyance. § 182. Interest of defendant in execution before conveyance and § 183. Interest of heir or devisee before final distribution. § 185. Interest of a dowress before assignment. § 186. Interest of husband as tenant by curtesy or by entirety. $188. Trust estates under American statutes. § 189. Resulting trusts. 189a. Devises and trusts to withdraw property from execution. § 192. Equity of redemption under deeds intended as mortgages. § 172. General Rule Respecting.-Lands were not, by the debt of any private citizen. "This rule was considered as a fair and necessary result from the nature of the feudal tenures, according to which all the lands in that country were held. In the case of the king, however, an execution always issued against the lands as well as the goods of a public debtor, because the debtor was considered as being not only bound in person, but as a feudatory, who held mediately or immediately from the king, and, therefore, holding what he had from the king, he was from thence to satisfy what he owed the king."1 "By an English statute, passed in the year 1285, Westminster 2, chapter 18, lands were partially subjected to be taken in execution under an elegit, and held until the debt should be levied upon a reasonable price or extent." 2 Under the influence of the English statutes, and of the various statutes upon the subject in force in this country, as a general rule all legal estates in land may be sold under an execution or extended under an elegit. "All lands of the defendant are liable to be extended, whether he hath an estate in fee, in tail, for life, or for years; but copyhold lands, or a lease of copyhold lands, are not extendible on an elegit as part of the realty. But lands held in ancient demesne may be extended and delivered over on an elegit." It is ordinarily sufficient to inquire whether the interest sought to be sold is real property, and, if so, whether the defendant in execution has a legal estate therein. These questions 1 Jones v. Jones, 1 Bland, 443, 18 Am. Dec. 327. 2 Duvall v. Waters, 1 Bland, 569, 18 Am. Dec. 350; Coombs v. Jordan, 3 Bland. 284, 22 Am. Dec. 236; Drayton v. Marshall, Rice Eq. 373, 33 Am. Dec. 84; Bank of Utica v. Mersereau, 3 Barb. Ch. 528, 49 Am. Dec. 189. • Watson on Sheriffs, 208. 8 being answered in the affirmative, the property, or the defendant's estate therein, must be regarded as subject to execution unless it falls within some exception hereinafter stated. Therefore, if the defendant has the right to occupy a designated box in a theater, or a stall in a market, these rights are subject to execution against him. A rent-charge may be taken in execution as real estate, though a rent-seck cannot. It is not clear whether an advowson could be extended under an elegit or not. A life estate was, no doubt, subject to execution at common law, and also under the statutes of nearly all of the United States; 10 but a different rule formerly prevailed in Pennsylvania.11 Leasehold estates are also unquestionably subject to execution, though there may be some question whether they should be levied upon as real or as personal property. Under the statutes of Ohio a permanent lease 4 Stock Growers Bank v. Newton, 13 Colo. 245; Eneberg v. Carter, 98 Mo. 647, 14 Am. St. Rep. 664; Schenck v. Barnes, 49 N. Y. Supp. 222; Wieters v. Timmons, 25 S. C. 488. Title G. Co. v. Northern etc. I. Trust, 73 Fed. Rep. 931. Dougall v. Turnbull, 10 U. C., Q. B. 121; Hurst v. Lithgrow, 2 Yeates, 25, 1 Am. Dec. 326; Wotton v. Shirt, Cro. Eliz. 742; Watson on Sheriffs, 208; People v. Haskins, 7 Wend. 463. But this case seems to be overruled by Payn v. Beal, 4 Denio; 405; Huntington v. Forkson, 6 Hill, 149. Dougall v. Turnbull, 8 U. C. Q. B. 622; Walsal v. Heath, Cro. Eliz. 656. Robinson v. Tonge, 3 P. Wms. 401; Watson on Sheriffs, 208. 10 Westervelt v. People, 20 Wend. 416; Fitzhugh v. Hellen, 3 Har. & J. 206; Poyce v. Waller, 2 B. Mon. 91; Mendenhall v. Randon, 3 Stew. & P. 251; Hitchcock v. Hotchkiss, 1 Conn. 470; Bozeman v. Bishop, 94 Ga. 459; Thompson v. Murphy, 10 Ind. App. 464. 11 Howell v. Wolfert, 2 Dall. 75; Near v. Watts, 8 Watts, 319; Shavely v. Wagner, 3 Pa. St. 275, 45 Am. Dec. 640; Eyrick v. Hetrick, 13 Pa. St. 488; Commonwealth v. Allen, 30 Pa. St. 49; Shelton v. Codman, 3 Cush. 318; Thomas v. Blackmore, 5 Yerg. 113. hold, or, in other words, a lease renewable forever at the option of the lessee or his successors, is an interest in real property, and subject to execution as such.12 It is difficult to understand the decisions in Pennsylvania upon this subject. In Titusville N. I. Works' Appeal, 77 Pa. St. 103, the court said: "A lease of land, during the term, is as fixed as the land itself, for it can only be used upon the land out of which it arises. It is nothing more or less than the right to use the freehold for the term mentioned in the lease. It is therefore an estate in land. These chattels cannot be seized and held as can personal goods which accompany the person, and are susceptible of transportation from place to place;" and for these reasons a levy made in the manner appropriate for a levy upon real property was sustained. This decision, or, more accurately speaking, some of the language used in the opinion, is, however, inconsistent with prior decisions of the same court, which it did not profess to overrule,13 and with a subsequent decision which does not profess to overrule it.14 Probably the rule deducible from these apparently conflicting opinions is, that though a leasehold interest is a chattel, yet it is not subject to seizure as are other chattels, and, hence, that a levy upon it may be made without taking possession of the property levied upon. In an early case in Connecticut, in determining that the interest there in question could be appraised and set aside under execution as real property, the court said: "An estate in lands for nine hundred 12 Northern Bank v. Roosa, 13 Oh. 334; Loring v. Melendy, 11 Oh. 355; McLean v. Roekey, 3 McLean, 235. 18 Dalzell v. Lynch, 4 W. & S. 256; Williams v. Downing, 18 Pa. St. 60. 14 Kile v. Giebner, 114 Pa. St. 381. and ninety years is most certainly not personal estate. It cannot, therefore, be sold at the post at public vendue by an officer upon execution. It is then to be considered as real estate, and is in fact a much greater estate than an estate for life; it approximates the nearest to a fee in point of duration and in point of importance and value; and, if it may not be taken to satisfy an execution in this way, there is no way pointed out in the law whereby it can, and all reasons in the law why land and real estate should be appraised operate forcibly with respect to this kind of estate." 15 Where the statute provides for a mode of levying on or selling "chattels real," a lease of lands for a term of years, with the right to dig for and remove coal during the term of the lease, and to construct all necessary buildings, must be levied on and sold as a chattel real. "Chattels real are interests annexed to or concerning the realty, as a lease for years of the land; and the duration of the term of the lease is immaterial, provided it be fixed and determinate, and there be a reversion or remainder in fee to some other person.' " 16 In the absence of any special statute upon the subject, we think the weight of authority in favor of the proposition that a leasehold interest in lands must be levied upon and sold as an estate in personal property.17 Lands devoted to the use of the public are not subject to execution. This rule applies to all lands used by the state, or by any county or city thereof for spe cific public uses; as for state houses, streets, public 15 Mun v. Carrington, 2 Root, 15. 16 Hyatt v. Vincennes Bank, 113 U. S. 408. 17 Barr v. Doe, 6 Blackf. 335, 38 Am. Dec. 146; Coombs v. Jordan, 3 Bland, 284, 22 Am. Dec. 236; Buhl v. Kenyon, 11 Mich. 249. |