Inasmuch as all rights, whether legal or equitable, now obtain legal recognition in all courts, it may be suggested that the distinction is now of no importance. This is not so however, for in two respects at least, these two classes of rights differ in their practical effects.
1. The methods of their creation and disposition are different. A legal mortgage of land must be created by deed, but an equitable mortgage may be created by a written agreement or by a mere deposit of title-deeds. A similar distinction exists between a legal and an equitable lease, a legal and an equitable servitude, a legal and an equitable charge on land, and so on.
2. Equitable rights have a more precarious existence than legal rights. Where there are two inconsistent legal rights claimed adversely by different persons over the same thing, the first in time prevails. Qui prior est tempore potior est jure. A similar rule applies to the competition of two inconsistent equitable rights. But when a legal and an equitable right conflict, the legal will prevail over and destroy the equitable, even though subsequent to it in origin, provided that the owner of the legal right acquired it for value and without notice of the prior equity. As between a prior equitable mortgage, for example, and a subsequent legal mortgage, preference will be given to the latter. The maxim is: Where there are equal equities, the law will prevail. This liability to destruction by conflict with a subsequent legal right is an essential feature and a characteristic defect of all rights which are merely equitable.[[202]]
SUMMARY.
| I. Rights | Perfect—enforceable by law. | |
| Imperfect—recognised by law, but not enforceable. | ||
| The legal quality of rights against the state. | ||
| II. Rights | Positive—correlative to positive duties and negative wrongs. | |
| Negative—correlative to negative duties and positive wrongs. | ||
| III. Rights | Real—in rem or in re—correlative to duties of indeterminate | |
| Personal—in personam—correlative to duties of determinate incidence (almost all positive). | ||
| Jura ad rem. | ||
| Dominium and obligatio. | ||
| IV. Rights | Proprietary—constituting a person’s estate or property. | |
| Personal—constituting a person’s status or personal condition. | ||
| Other uses of the term status. | ||
| V. Rights | In re propria. | |
| In re aliena—servitus—encumbrance. | ||
| The natural limits of rights, distinguished from encumbrances. | ||
| The concurrence of the encumbrance and the right encumbered. | ||
| Encumbrances either real or personal rights. | ||
| Classes of encumbrances | 1. Leases. | |
| 2. Servitudes. | ||
| 3. Securities. | ||
| 4. Trusts. | ||
| VI. Principal and Accessory Rights. | ||
| VII. Legal and Equitable Rights. | ||
| VIII. Primary and Sanctioning Rights. | ||
CHAPTER XII.
OWNERSHIP.
§ 86. The Definition of Ownership.
Ownership, in its most comprehensive signification, denotes the relation between a person and any right that is vested in him. That which a man owns is in all cases a right. When, as is often the case, we speak of the ownership of a material object, this is merely a convenient figure of speech. To own a piece of land means in truth to own a particular kind of right in the land, namely, the fee simple of it.
Ownership, in this generic sense, extends to all classes of rights, whether proprietary or personal, in rem or in personam, in re propria or in re aliena. I may own a debt, or a mortgage, or a share in a company, or money in the public funds, or a copyright, or a lease, or a right of way, or the fee simple of land. Every right is owned; and nothing can be owned except a right. Every man is the owner of the rights which are his.
Ownership, in its generic sense, as the relation in which a person stands to any right vested in him, is opposed to two other possible relations between a person and a right. It is opposed in the first place to possession. This very difficult juridical conception will be considered by us in the succeeding chapter. We shall see that the possession of a right (possessio juris, Rechtsbesitz) is the de facto relation of continuing exercise and enjoyment, as opposed to the de jure relation of ownership. A man may possess a right without owning it, as where the wrongful occupant of land makes use of a right of way or other casement appurtenant to it. Or he may own a right without possessing it. Or finally ownership and possession may be united, as indeed they usually are, the de jure and the de facto relations being coexistent and coincident.