|
|
|
|
|
|
|
314 COOMBS v. JORDAN.
bended. As an assessment upon lands; a towing-path, a toll-
gate, turnpike road stock, canal stock; and, in general, the stock
of any incorporated, or joint stock company, the profits of which
are derived chiefly, or altogether, from land used in any way
whatever, (e)
The consequences of considering all these various kinds of
incorporeal hereditaments as real estate, are, that they may be
intailed; that, in the absence of any special legislate provision
upon the subject, they can only be assigned, or transferred from
one to another by the same written solemnities made necessary by
law to pass lands; that is, all contracts concerning them must be
made according to the provisions of the statute of frauds, and the
acts of Assembly which require contracts for land to be in writing
and recorded; and all devises of them must be in conformity with
those legislative enactments respecting wills of real estate. If the
owner of them dies intestate they descend to his heirs, and his
widow is entitled to dower therein. And they will be considered
as assets like lands, at common law, in the hands of the heir only
so far as he may be expressly bound by the obligation of his
ancestor.
To this extent the principles of the common law, in relation to
this species of property, appear to be clear of all ambiguity and dif-
ficulty. But to ascertain how far any of this kind of property is
liable to be taken and sold by virtue of a fieri facias; and conse-
quently is subject to a judicial lien, it will be necessary to advert
to other rules and principles than those by which the difference
between real and personal property is defined.
At the time when the principles of the common law in relation
to the distinction between real and personal property became estab-
lished, but a small proportion of the property of the community
stems to have been of that incorporeal kind which is now so very
large in amount and so productive. Hence, in the spirit of the sim-
plicity of the common law, it was deemed safest and best to con-
fine the power of the creditor over the property of his debtor to
that alone which was visible, tangible and capable of being dis-
tinctly valued, sold and transferred, as affording an ample scope
for the creditor to obtain the satisfaction to which he was entitled.
(e) Co. Litt. 19; Morgan v. Mansel, 2 Plow.; The King v. The Mayor of Lon-
don, 4 T, R. 21; The King v. Page, 4 T. R. 543; Drybutter v. Bartholomew, 2 P.
Will. 127; Buckeridge v. Ingram, 2 Ves., jun., 652; Knapp v. Williams, 4 Ves.
410, note; Finch v. Squire, 10 Ves, 41; Powel Mortg, 141
|
|
|
|
|
|
|
|
 |
