Consisting as it does only of interests in land (and strictly only of life interests and interests of inheritance and not estates for years) its subject-matter cannot be moved from state to state, and hence the need of a uniform law that manifested itself in connection with movable goods did not exist, at least not to the same extent in the case of real estate. It must be remembered, too, that while the law of sales was developing in England real estate was not an ordinary commodity of commerce. Indeed, it can hardly be considered such today even in America. Accordingly no implied warranties are to be read into a contract for the sale of real estate; no title will pass by the mere intent of the parties without the performance of the acts required by law. for the passing of title (under modern law the delivery of a "deed" or the taking effect of a will) though equity intervenes with a doctrine of "equitable conversion" that makes the risk of loss pass when title ought to be accepted; and because of the "uniqueness" of every piece of land as compared with ordinary merchantable wares, equity will grant specific performance of contracts for the sale of real estate. The interests that one may own in land are highly standardized: the most important are the fee simple, the largest interest known to the law, being virtually ownership for one's self and his heirs forever, with practically unlimited power of alienation; the fee tail, an estate of inheritance, with theoretically no power to cut off one's heirs, but practically with only slight and constantly lessening restrictions in this regard; the estate for life, that is so long as the holder of the estate or some other designated person lives; estates for years, including any definite period; estates from year to year; estates terminable at will. Only the estates for life and estates of inheritance are strictly real property, the other interests being chattels real and governed in most particulars by the laws of personal property. When land is given out for life or for a period of years, unless there is a provision that after the expiration of the particular estate it shall "remain" out for some one else, it automatically "reverts" to its former owner or his heirs. It is, of course, not customary to deal with a movable thing in this way by carving out interests in it instead of selling it out and out. Yet through special contracts or by provisions.

in wills, sometimes aided by statutes or equitable doctrines, very similar results can be attained in dealing with movables. From a commercial point of view, however, such limited interests in things are by no means an ordinary commodity. Hence the sale of interests in personal property are for practical purposes sales of "goods," that is, of the complete set of rights recognized by law in the things themselves and not of "estates." Among other striking differences between the two types of property, real and personal (the latter class including besides movable things, all interests in lands not classified above as real property), are the following: at the death of the owner real estate "descends" to the heirs directly or to devisees designated by will, whereas personal property must be administered and used to pay the debts of the decedent to the exoneration, if possible, of the real estate, and the surplus is "distributed" to the "next of kin" or the legatees named in the will; surviving spouses have certain interests (dower and courtesy) which in many states cannot be cut off even by the sale of real property during the life-time of the owner without a release from the husband or wife; claims to real estate adverse or superior to or concurrent with those of the apparent owner or possessor are not so readily defeated in the interest of the freedom of circulation of goods demanded by commerce as similar claims are in the case of personal property. Thus in England and in most of the American jurisdictions the period during which land must be openly, notoriously and adversely held to defeat a title under the Statute of Limitations is twenty-one years as compared with four or six years for chattels. In the case of chattels English law permitted a complete break in the chain of title in the case of goods bought in "market overt" even if the goods had been stolen from the original owner. In this country the doctrine of market overt is not held, but the tendency to mitigate in the interest of commerce the doctrine that one can sell no better title than he owns is illustrated even in the case of real property in our registration laws and to a much greater extent in the case of personal property. Registration laws are an outgrowth of the need of facilitating the examination of titles for commercial purposes. So far as they make unrecorded claims of no effect (the statutes differ in that some

do and others do not save the unrecorded claim where there is actual or constructive notice') these statutes surrender the ideal of a chain of title in the interest of security and definiteness of business transactions. The modern scheme of recording not only documents of title but judicial or quasi-judicial ascertainments of the condition of a title to the exclusion of all claims that have not been properly put forward and allowed at a stated time (the Torrens system and its modifications) carries the idea of making real estate a marketable commodity as far as it can go without abolishing the traditional distinctions between real estate and personal property altogether. The theory of recording acts has been extended, in the form of filing provisions, to personal property, but generally conceding a greater effect to possession than is conceded in the case of realty. Thus Section 9 of the Uniform Conditional Sales Act provides:

Where goods are delivered under a conditional sale contract and the seller expressly or impliedly consents that the buyer may resell them prior to performance of the condition, the reservation of property shall be void against purchasers from the buyer for value in the ordinary course of business, and as to them the buyer shall be deemed the owner of the goods, even though the contract or a copy thereof shall be filed according to the provisions of this act.

Compare also as to the effect of possession in chattel mortgages, Francisco v. Ryan, §292, infra and notes. In the case of real estate security of title is still balanced against the business interest of security of ordinary transactions, although many of the historical reasons for dealing with real estate separately, going back to the feudal system in which land-tenure was closely associated with political position and coming down through English history in which land-tenure was persistently connected with social position, have disappeared.

The influence of business concepts in dealing with land is nowhere more evident than in the manner in which leases, which were formerly thought of as grants, have come to be considered.

'Such questions of priority are of importance to the business man taking a lease on premises already mortgaged or likely to be mortgaged.

simply formal contracts. The parties rather freely insert such clauses as they see fit, and the courts when called upon to interpret the terms of a lease seek to give effect to the intention of the parties. "The very words ['landlord and tenant'] stand as a monument to the feudal origin [of this relation]. Today we speak, properly, of ['lessor and lessee.'] From a relation that once determined a man's social and political standing, a relation that assigned to him a court within which to seek protection for his rights, a relation that shaped his obligations of patriotism and loyalty, it has degenerated or developed into a purely contractual relation, differing from the most ordinary commercial relation only in one or two anomalous particulars."'*

Isaacs, The Merchant and His Law, 23 Journal of Political Economy, 542. Among the peculiarities of the relation are the inability of the tenant to attack the landlord's title, the doctrine that in the absence of statute or special contract, destruction of buildings will not excuse the payment of rent, that a rent accrues on a certain day and is therefore not apportionable as to time, that covenants as to rent run with the land. Even before business ideas made any appreciable impression on the body of the law of real property, they succeeded in abstracting from its sphere control over certain things annexed to the soil. In commenting on "the relaxation of the stringent old rule that whatever was annexed to the soil became parcel of the soil and subject accordingly to the same ownership as the soil," Mr. Strahan, in his Law of Property (4th ed., 1905, p. 91), says: "England was always a commercial nation in which the merchant class held great power. Accordingly, as might be expected, the first relaxation of the rule was with regard to trade fixtures (Lawton v. Lawton, 3 Atk. 13). Now, when a house is let expressly for the purpose of carrying on a trade, all trade machinery affixed by the tenant remains his property, unless it is expressly covenanted in the lease that it shall belong to the landlord. [Per Vaughan Williams, L. J., in Lambourn v. McLellan (1903), 2 Ch. 268, 277.] Then during the eighteenth and nineteenth centuries the middle classes acquired much wealth and with it the power which wealth brings. The middle classes were those who most frequently became the lessees of houses, and who spent money in adding fixtures to such houses for, in the words of Martin, B. (in Elliott v. Bishop, 10 Ex. 496, 507), the more convenient or luxurious occupation of them,' and naturally it was with respect to them that the next relaxation of the rule took place (Grymes v. Boweren, 6 Bingh. 437). But it is to be observed that Martin, B., says nothing about fixtures for agricultural purposes being saved to the tenant." Mr. Strahan then goes on to discuss interestingly, but a little too unqualifiedly, the manner in which the "predominant influence, social and political," controlled the development of the law of fixtures. That the relaxation of the old rule proceeded faster in America, but under similar influences, is nicely illustrated in Van Ness v. Pacard (1829), 2 Peters 137, 147, where Judge Story held a house with a shop in it a "trade fixture" on land in the city of Washington, in order to preserve the interest of the tenant.

What has been said of the commercializing of the relations growing out of real estate transactions, applies mutatis mutandis to other relations of importance in the business world, notably that of employer and employee. The evolution of this relation from a domestic one into a contractual one, and the limits upon the contractual theory are traced in some detail in Part IV of this book. (See §§341, 349 ff.) The manner in which mercantile usage led the way in making intangible assets, such as choses in action, assignable, is suggested in the history of negotiable instruments (see §§318, 319, 320, 321, 335); and the limits that the law still imposes on the free transfer of certain intangible assets, which the business world is prepared to accord a fuller recognition, are illustrated in the discussion of goodwill (see §28, supra). Patent-rights, though intangible, have been so thoroughly assimilated to property, that they are freely assignable. The salability of various types of part-interests in goods is recognized in the Uniform Sales Act: thus one may sell (and not merely contract to sell) undivided shares in goods and even specific quantities from a larger mass of fungible goods, that is, goods any portion of which may be substituted for any other. In the case of partnership goods, though title may be passed by a partner to such interest as he may have in partnership property, it must be remembered that he cannot, without the consent of the other partners, substitute another to his place in the partnership, that therefore no direct power of control over partnership assets passes, and what is virtually sold is only a right to participate in the surplus, if any, upon the dissolution of the partnership and the payment of its debts.

As to future goods and expectancies, strictly speaking a sale is impossible. Yet within limits an attempted sale will be interpreted as a contract to sell, which will ripen into a sale. In the case of expectancies there is danger that the transaction may be a mere speculation or betting on the future, which would be contrary to public policy; hence somewhat arbitrary lines have been drawn between reasonably assured expectancies, such as the income from existing contracts or the crop already planted, and more remote expectancies, the former being held proper subject matter for a contract of assignment or sale. Certain incomes,