His Lordship said—In the j delivered on the 8th of June in thi was determined that the property in question was of the nature of immobilia, that it was subject to the lex loci and that the lex loci was the law of England applicable to immovables in England, Upon that judgment the further question arises when ther the property is real or personal. Stephens' Blackstone, vol. 1 page 166, we find the definition of real and_persoual property. He says: "Things real, oth realty, caused of things substanti is movable and of the rights and profits annexed to and issuing out of these. Things personal, otherwise personalty, consist of goods, money, and all other inarables and all such rights and profits as relate to inarables."" Amongst these latter are what ate called chattels real and it is maintained by Mr. Hanson that the proerty now in question is a chattel real.
et us see what Stephens says as to chattels real; on page 279 he say:
Any estate in land and tenements which amounts not to freehold is a chattel; but inasmuch as it concerns, or according to the technical expression, savours of the realty it is denominated a chattel real." Freehold he describes as an estate either of inheritance or for life in lands of free tenure. There can be riv question that the land itself which forms the subject matter of the present suit is real property and the only question which really ix i+ dispute is as to the nature of the tenure, and in order to determine what the tenure is we must look at the so-called title deed and the circumstances concerning it. Now what are called title deeds of all the lands registered in the names of British subjects in' Shanghai are not what English lawyers mean by the term title deeds at all; they are only title de-ds.in the popular senso of the words; that is, the documents which show the title of the holder of the land, They do not purport to convey from one person to another the property n the land. 'The original Chinese proprietor of the land does not by these deeds convey to the British subjects anything whatever. The title deed is that which puts on record something that has been done an' which the properly constituted authority sanctions. This document: was not drawn up by a lawyer or anyone acquainted with the words which the English Inw uses when describing any of the tenures with which we are familiar. What is called the title deed may he taken to be evidence to show what British subjects acquired. Evidence has not been given before me na to the tenure and rights of the original Chinese owner; but it appears from the title deed and' from what we know in practice that the Chinese owner gave up to the British subject all the rights which he possessed in the Innd. It is to be observed that the low rent payable by the British subject is payable to the Chinese Government and has nothing whatever to do with the original Chinese owner. There is in the deed a envious provision that, if the Grin to which the and was handed over originally, no longer desired to keep it the Chinese owner should take it buck and refund the purchusw money it is dificult to conceive what was the object of this proviso, but I imagine that it was something affecting the local and temporary circumstances and which certainly hag long since passed away. If we look at the Inter title deeds which have produced " tenure exactly similar in practice to that which was produced by the title deed to the land in question, we find that the word heirs is used, and therefore the contention of Mr. Hanson that, inasmuch ax the word heirs ix not. used in the deed which relates to this land, an estate of inheritance could not have been intended, is much weakened. Looking even at, the title deed of the prose piece of land and considering that it was drawn up by persons unacquainted with the niceties of English lay;-looking at the title deeds at present used. with regard to land held practically in the same manner as this land is, Tcannot doubt that I am entitled to say that the tenure of this land is freehold. Tu the Sevenoaks, Maidstone and Tunbridge Railway Com: pany v. London, Chatham and Dover Railway Company, (LI Chancery: Division, page 635), the Master of the Rolls discussed the question of the effect of an instrument which purported to create a lease in perpetuity and his remarks are commented upon in the Law of Landlord. and Tenant by Fos, (the 2nd edition, page 89), and ars made the basis of the following propositions lease cannot, apart from statute, be made to endur- in perpetuity, An instrument, however, purporting to be.such an assurance may operate.as @ grant of: the fee simple subject to a rent-charge." The result of this seems to he. that in. the present case the first: British, subjects -who were proprietors of this land took an estate in fee simple, subject to the rent-charge, which is named in the deed.payable to the Chinese Gorernment. Mr. Hanson has contended Uhat, by the trouties, British subjects were only entitled. to.lease, land and that, therefore, the. present. land only held,-upon Jeage. That may be-so
Text read from the printed page and cleaned; old type leaves the occasional error.