A general view of the law of property

Front matter

VALUABLE LAW WORKS

PUBLISHED ET

STEVENS AND SONS,

Preface To The Second Edition

In preparing this edition the Author, while altering some details and stating a little more fully those thiags which, in the language of Lord Coke, "though they seem ancient are yet necessary to be known," has in no way departed from the general plan of the first edition of this work.

While fully admitting that for purposes of exhaustive study it will be necessary, or at least convenient, for some time to come, to deal separately with the law of realty and the law of personalty, the Author is still of opinion that the time has arrived when, for institutional treatment, both branches of the law of property are best considered together. "When what may be called the classic works on the subject were written, the circumstances were entirely different. The law as to personalty was then much as it is now ; but the law as to realty was a system based on radically different principles. Fines and recoveries, the doctrine of seisin, and a peculiar law of wills, controlled the creation, transfer, and devolution of freehold interests in land, but had no bearing on goods or choses in action. All these have now, for every practical purpose, been either abolished or superseded. The law of personalty has been eating up the law of realty. The Land Transfer Act of the present year is the latest example of this process. Realty henceforth will, on its owner's death, vest ia his executors or administrators precisely as if it were .personalty, and should the machinery of the Act be made compulsory, or be generally adopted, interests in and mortgages of land will be transferred almost ia the same manner as shares and debentures. Surely, then, the mode of dealing with the law of property which was wisely adopted by the classical writers of old, need not necessarily be the best method at the present day.

VI PEEFACE TO THE SECOND EDITION.

In referring to tlie Land Transfer Act, 1897, tlie AutHor may be permitted to enter his protest against the restriction of the application of Part I. of that Act to England, which sect. 2 of the Act of 1876 seems to impose. By this restriction a wanton and entirely useless difference is made in the law of executors and administrators as obtaining in England and Ireland (hitherto practically identical), which there is little doubt will cause confusion and uncertainty in the administration of the estates of persons dying possessed of land in both countries. Part I. of the Act has no necessary connection with registration of title, and would properly form the subject-matter of a separate statute extending to hoth countries. The motive for its restriction to England is rendered the more inscrutable by the fact that the rule now introduced in England had previously been admitted to a certain extent in Ireland by the Local Pegistration of Title (Ireland) Act, 1891.

The Author wishes to express his thanks to many gentlemen, including his reviewers in the legal press, for much useful criticism and advice. He trusts that he has thus been enabled to send out this Second Edition with, at any rate, fewer mistakes and omissions than marked the First. His especial thanks are due to Mr. Arthur Underhill, of Lincoln's Inn (Peader in the Law of Property to the Council of Legal Education), Mr. J. M. Grover and Mr. H. Drysdale Woodcock, of the Middle Temple, and Mr. Sinclair Baxter, of the Irish Bar. Besides the great assistance rendered originally by the last-mentioned gentleman in preparing for publication the course of Lectures on which this "Work is founded, he is in the present Edition solely responsible for the treatment of those most intricate and difficult statutes, the Irish Land Acts, and he has also given the Author much help in preparing the Table of Abbreviations and seeing the Book through the Press.

3, Bbioe Couet, Templb,

19fh October, 1897.

Preface To The First Edition

In the following pages the author has attempted to state clearly and very concisely the main principles of the Law of Property.

Hitherto, most writers, in dealing with this subject, have treated separately of realty and personalty. The author has ventured to depart from this practice. Eecent legislation has, it seems to him, so greatly approximated the law of realty to the law of personalty, that they may now he profitably considered together. The principles of both are to a large extent the same : where they differ, he believes that by contrasting them they may be made to illustrate each other.

Considerable experience as a law tutor has shown him that the prime object of a first book for students should be not so much to teach the reader the law as to enable him to learn it for himself. To accomplish this, the subject-matter must be arranged logically and systematically, and the general principles underlying its many details brought clearly and conspicuously out. This he has endeavoured to the best of his ability to do. He is quite aware of the dangers of attempting to arrange logically a body of law which, if it ever was so, has long ceased to be systematic, and to generalise where every general principle has been limited and restricted by special custom, judicial decision, or legislative enactment. He cannot hope to

Vm PREFACE TO THE PIEST EDITION.

have done this without being guilty of some oversights, and having perpetrated some blunders. He trusts, however, that the difficulty of the task will induce his readers to look on these with a merciful eye.

Before concluding, he must take the opportunity to thank his friend and former pupil, Mr. J. Sinclair Baxter, LL.B., for help extending over the greater part of the Work, and more especially as to Appendices A. to D., and his friend Mr. J. M. Newnham, LL.B., Solicitor of the Supreme Court, for the forms and notes to them in Appendix E.