Professor HelmholzWinter 2004

PROPERTY

0. Introduction

A. GlossaryAcceleration: The hastening of an owner's time for enjoyment of an estate because of the failure of a preceding estate.Accession: A property owner's right to all that is added to the land, naturally or by labor, including land left by floods and improvements made by others <the newly poured concrete driveway became the homeowner's property by accession>.Adverse Possession: A method of acquiring title to real property by possession for a statutory period under certain conditions, esp. a nonpermissive use of the land with a claim of right when that use is continuous, exclusive, hostile, open, and notorious.Bailment: A delivery of personal property by one person to another, who holds the property for a certain purpose under an express or implied-in-fact contract.Bona Fide Purchaser: One who buys something for value without notice of another's claim to the item or of any defects in the seller's title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.Class Gift: A gift to a group of persons, uncertain in number at the time of the gift but to be ascertained at a future time, who are all to take in definite proportions, the share of each being dependent on the ultimate number in the group.Community Property: Property owned in common by husband and wife as a result of its having been acquired during the marriage by means other than an inheritance or a gift to one spouse, each spouse holding a one-half interest in the property. Only nine states have community property systems: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas.Condition Precedent: An act or event, other than a lapse of time, that must exist or occur before a duty to perform something promised arises.Condition Subsequent: A condition that, if it occurs, will bring something else to an end. "If ... the deed or will uses such words as "but if,' "on condition that,' "provided, however,' or "if, however,' it will generally be assumed that a condition subsequent was intended."Confusion: Confusion is the intermingling of two or more pieces of personal property so that the property rights in each can no longer be distinguished. Thereafter, no specific identification or separation of the formerly separate chattel is possible. Such an intermingling occurs most often with fungible goods like gas, oil, grain, mineral ore, or unmarked timber.

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Constructive Bailment: A bailment that arises when the law imposes an obligation on a possessor of personal property to return the property to its rightful owner, as with an involuntary bailment.Contingent Remainder: A remainder that is either given to an unascertained person or made subject to a condition precedent. An example is "to A for life, and then, if B has married before A dies, to B." Unlike a vested remainder, a contingent remainder is either subject to a condition precedent (in addition to the natural expiration of a prior estate), or owned by unascertainable persons, or both. But the contingent remainder, like the vested remainder, "waits patiently' for possession. It is so created that it can become a present estate (if ever it does) immediately upon, and no sooner than, the natural expiration of particular estates that stand in front of it and were created simultaneously with it.Convey: To transfer or deliver (something, such as a right or property) to another, esp. by deed or other writing.Contract of Sale: A contract for the present transfer of property for a price.Copyright: A property right in an original work of authorship (such as a literary, musical, artistic, photographic, or film work) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work.Covenant: A formal agreement or promise, usu. in a contract. May be express (covenant in deed) or implied (covenant in law).Covenant Against Encumbrances: A grantor's promise that the property has no visible or invisible encumbrances. In a special warranty deed, the covenant is limited to encumbrances made by the grantor.Covenant For Further Assurances: A covenant to do whatever is reasonably necessary to perfect the title conveyed if it turns out to be imperfect.Covenant of Quiet Enjoyment: A covenant insuring against the consequences of a defective title or any other disturbance of the title, and ensuring that the tenant will not be evicted or disturbed by the grantor or a person having a lien or superior title. This covenant is sometimes treated as being synonymous with covenant of warranty.Covenant of Seisin: A covenant, usu. appearing in a warranty deed, stating that the grantor has an estate, or the right to convey an estate, of the quality and size that the grantor purports to convey. * For the covenant to be valid, the grantor must have both title and possession at the time of the grant.Covenant of Warranty: A covenant by which the grantor agrees to defend the grantee against any lawful or reasonable claims of superior title by a third party and to indemnify the grantee for any loss sustained by the claim. This covenant is sometimes treated as being synonymous with covenant for quiet enjoyment.Covenant Running With The Land: A covenant that, because it relates to the land, binds successor grantees indefinitely. The land cannot be conveyed without the covenant.Closing: The final meeting between the parties to a transaction, at which the transaction is consummated; esp., in real estate, the final transaction between the buyer and seller, whereby the conveyancing documents are concluded and the money and property transferred.Curtesy: At common law, a husband's right, upon his wife's death, to a life estate in the land that his wife owned during their marriage, assuming that a child was born alive to the couple. This right has been largely abolished.

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Deed: At common law, any written instrument that is signed, sealed, and delivered and that conveys some interest in property.Defeasible Remainder: A vested remainder that will be eliminated if a condition subsequent occurs. An example is "to A for life, and then to B, but if B ever sells liquor on the land, then to C." A fee simple determinable is usually created by words that make it clear that the estate is to end automatically upon the occurrence of the stated event. Such words include “so long as…until…during…unless…while.” Also, if the conveyance says that the property is to “revert to” the grantor, that’s a sign of a fee simple determinable.Devise: The act of giving property (usu. real property) by will.Doctrine of Destruction of Contingent Remainders: The common-law doctrine requiring a future interest to vest by the time it is to become possessory or else suffer total destruction (the interest then reverting to the grantor). This doctrine has been abolished in all but a few American jurisdictionsDoctrine of Merger by Deed: The absorption of a lesser estate into a greater estate when both become the same person's property.Doctrine of Worthier Title: The doctrine that favors a grantor's intent by construing a grant as a reversion in the grantor instead of as a remainder in the grantor's heirs.Dower: At common law, the right of a wife, upon her husband's death, to a life estate in one-third of the land that he owned in fee. With few exceptions, the wife could not be deprived of dower by any transfer made by her husband during his lifetime. Although most states have abolished dower, many states retaining the concept have expanded the wife's share to a life estate in all the land that her husband owned in fee.Easement: An interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose (such as to cross it for access to a public road).Easement in Gross: An easement benefiting a particular person and not a particular piece of land. The beneficiary need not, and usu. does not, own any land adjoining the servient estate.Ejectment: Legal action by which a person wrongfully ejected from property seeks to recover possession and damages. The essential allegations in an action for ejectment are that (1) the plaintiff has title to the land, (2) the plaintiff has been wrongfully dispossessed or ousted, and (3) the plaintiff has suffered damages.Encumbrance: A claim or liability that is attached to property or some other right and that may lessen its value, such as a lien or mortgage; any property right that is not an ownership interest. An encumbrance cannot defeat the transfer of possession, but it remains after the property or right is transferred.Equitable Conversion: The act of treating real property as personal property, or vice versa, in certain circumstances. Courts usu. apply the doctrine of equitable conversion to recognize the transfer of land when a party dies after the signing of an agreement to sell real property but before the transfer of title. Equitable conversion is based on the maxim that equity regards as done that which ought to be done.Estate of Inheritance: An estate that may descend to heirs.Executory Interest: A future interest, held by a third person, that either cuts off another's interest (shifting) or begins after the natural termination of a preceding estate. (springing)

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Fee Simple: An interest in land that, being the broadest property interest allowed by law, endures until the current holder dies without heirs.Fee Simple Defeasible: An estate that ends either because there are no more heirs of the person to whom it is granted or because a special limitation, condition subsequent, or executory limitation takes effect before the line of heirs runs out.Fee Simple Determinable: An estate that will automatically end and revert to the grantor if some specified event occurs (e.g., "to Albert and his heirs while the property is used for charitable purposes"). The future interest retained by the grantor is called a possibility of reverter.Fee Simple Subject to a Condition Subsequent: An estate subject to the grantor's power to end the estate if some specified event happens (e.g., "to Albert and his heirs, upon condition that no alcohol is sold on the premises"). The future interest retained by the grantor is called a power of termination.Fee Simple Subject to Executory Limitation: A fee simple defeasible that is subject to divestment in favor of someone other than the grantor if a specified event happens (e.g., "to Albert and his heirs, but if the Cubs ever win the World Series, then to Bob").Fee Tail: An estate that is inheritable only by specified descendants of the original grantee, and that endures until its current holder dies without issue (e.g., "to Albert and the heirs of his body"). Most jurisdictions -- except Delaware, Maine, Massachusetts, and Rhode Island -- have abolished the fee tail. The land could be limited to male descendants generally – fee tail male general; to female issue – fee tail female; or to issue of a specific wife – fee tail special.Fixture: Personal property that is attached to land or a building and that is regarded as an irremovable part of the real property, such as a fireplace built into a home.Four Unities: The four qualities needed to create a joint tenancy at common law -- namely interest, possession, time, and title.Freehold: An estate in land held in fee simple, in fee tail, or for term of life. At common law, these estates were all created by enfeoffment with livery of seisin.Gratuitous Bailment: A bailment for which the bailee receives no compensation, as when one borrows a friend's car. A gratuitous bailee is liable for loss of the property only if the loss is caused by the bailee's gross negligence.Implied Covenant of Habitability: An implied covenant applying to the sale of new housing, stating that the house is fit to live in.Implied Warranty of Marketability: An implied warranty that the title conveyed is reasonably free of encumbrances and other title defects, and free of the risk of litigation. Marketable title acts say that anyone with a legal right to own land with an unbroken chain of recorded title for 40 years or more shall be deemed to have marketable titleInvoluntary Bailment: A bailment that arises when a person accidentally, but without any negligence, leaves personal property in another's possession. An involuntary bailee who refuses to return the property to the owner can be liable for conversion.Joint Tenancy: A tenancy with two or more coowners who take identical interests simultaneously by the same instrument and with the same right of possession. A joint tenancy differs from a tenancy in common because each joint tenant has a right of survivorship to the other's share (in some states, this right must be clearly expressed in the conveyance -- otherwise, the tenancy will be presumed to be a tenancy in common). The rules for creation of a joint tenancy are these: The joint tenants must get their

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interests at the same time. They must become entitled to possession at the same time. The interests must be physically undivided interests, and each undivided interest must be an equal fraction of the whole -- e.g., a one-third undivided interest to each of three joint tenants. The joint tenants must get their interests by the same instrument -- e.g., the same deed or will. The joint tenants must get the same kinds of estates -- e.g., in fee simple, for life, and so on.Jointure: A woman's freehold life estate in land, made in consideration of marriage in lieu of dower and to be enjoyed by her only after her husband's death; a settlement under which a wife receives such an estate. The four essential elements are that (1) the jointure must take effect immediately upon the husband's death, (2) it must be for the wife's own life, and not for another's life or for a term of years, (3) it must be held by her in her own right and not in trust for her, and (4) it must be in lieu of her entire dower.Jus Tertii: The right of a third party. "[N]o defendant in an action of trespass can plead the jus tertii-- the right of possession outstanding in some third person -- as against the fact of possession in the plaintiff."Laches: The equitable doctrine by which a court denies relief to a claimant who has unreasonably delayed or been negligent in asserting the claim, when that delay or negligence has prejudiced the party against whom relief is sought.Lease: To grant the possession and use of (land, buildings, rooms, movable property, etc.) to another in return for rent or other consideration.Lien: A legal right or interest that a creditor has in another's property, lasting usu. until a debt or duty that it secures is satisfied.Life Tenancy: An estate held only for the duration of a specified person's life, usu. the possessor's.Mechanic’s Lien: A statutory lien that secures payment for labor or materials supplied in improving, repairing, or maintaining real or personal property, such as a building, an automobile, or the like.Mesne: Occupying a middle position; intermediate or intervening < the mesne encumbrance has priority over the third mortgage, but is subordinate to the first mortgage>.Moral Rights: A right protecting a visual artist's work beyond the ordinary protections of copyright. Moral rights include both integrity rights, which protect the work from changes that damage the artist's or the work's reputation, and attribution rights, which allow the artist to claim authorship of the work and to prevent the unlawful use of the author's name in reference to a modified version of the work.Mortgage: A conveyance of title to property that is given as security for the payment of a debt or the performance of a duty and that will become void upon payment or performance according to the stipulated terms.Mortgage Lien: A lien on the mortgagor's property securing the mortgage.Notice Statute: A recording act providing that the person with the most recent valid claim, and who purchased without notice of an earlier, unrecorded claim, has priority. About half the states have notice statutes.Partition: The act of dividing; esp., the division of real property held jointly or in common by two or more persons into individually owned interests.Periodic Tenancy: A tenancy that automatically continues for successive periods -- usu. month to month or year to year -- unless terminated at the end of a period by notice. A

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typical example is a month-to-month apartment lease. This type of tenancy originated through court rulings that, when the lessor received a periodic rent, the lease could not be terminated without reasonable notice.Possibility of Reverter: A future interest retained by a grantor after conveying a fee simple determinable, so that the grantee's estate terminates automatically and reverts to the grantor if the terminating event ever occurs. In this type of interest, the grantor transfers an estate whose maximum potential duration equals that of the grantor's own estate and attaches a special limitation that operates in the grantor's favor.Power of Termination: A future interest retained by a grantor after conveying a fee simple subject to a condition subsequent, so that the grantee's estate terminates (upon breach of the condition) only if the grantor exercises the right to retake it.Presumption Against Partial Intestacy: The presumption that wills are supposed to convey all of the testator’s property.Quitclaim: A deed that conveys a grantor's complete interest or claim in certain real property but that neither warrants nor professes that the title is valid.Race Statute: A recording act providing that the person who records first, regardless of notice, has priority. Only Louisiana and North Carolina have race statutes.Race-Notice Statute: A recording law providing that the person who records first, without notice of prior unrecorded claims, has priority. About half the states have race-notice statutes.Ratione soli: The right of the landowner to hunt and kill animals on his land, and to exclude others from doing so. It's not the equivalent of ownership of those animals. It's not clear what ratione soli is when an animal is started somewhere else, or how much state regulation of hunting permits, endangered species, etc. may restrict ratione soli.Recording Act: A law that establishes the requirements for recording a deed or other property interest and the standards for determining priorities between persons claiming interests in the same property (usu. real property).Remainder: A future interest arising in a third person -- that is, someone other than the creator of the estate or the creator's heirs -- who is intended to take after the natural termination of the preceding estate. For example, if a grant is "to A for life, and then to B," B's future interest is a remainder. Whether a remainder is vested or contingent depends upon the language employed. If the conditional element is incorporated into the description of, or the gift to the remainderman, then the remainder is contingent; but if, after words giving a vested interest, a clause is added divesting it, the remainder is vested. Thus, on a devise to A. for life, remainder to his children, but if any child dies in the lifetime of A. his share to go to those who survive, the share of each child is vested, subject to be divested by his death. But on a devise to A. for life, remainder to such of his children as survive him, the remainder is contingent. Remainder Subject to Open: A vested remainder that will be eliminated if a condition subsequent occurs. An example is "to A for life, and then to B, but if B ever sells liquor on the land, then to C."Reversion: A future interest in land arising by operation of law whenever an estate owner grants to another a particular estate, such as a life estate or a term of years, but does not dispose of the entire interest. A reversion occurs automatically upon termination of the prior estate, as when a life tenant dies.Renouncing: To give up or abandon formally (a right or interest); to disclaim.

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Replevin: An action for the repossession of personal property wrongfully taken or detained by the defendant, whereby the plaintiff gives security for and holds the property until the court decides who owns it.Right of Publicity: The right to control the use of one's own name, picture, or likeness and to prevent another from using it for commercial benefit without one's consent.Rule Against Perpetuities: The rule prohibiting a grant of an estate unless the interest must vest, if at all, no later than 21 years after the death of some person alive when the interest was created.Rule in Dumpor’s Case: If the holders of a future interest give permission to a grantee to use property contrary to the terms of the grant, they may lose their right to assert their right of re-entry in the future.Rule in Shelley’s Case: The rule that if -- in a single grant -- a freehold estate is given to a person and a remainder is given to the person's heirs, the remainder belongs to the named person and not the heirs, so that the person is held to have a fee simple absolute. The rule, which dates from the 14th century but draws its name from the famous 16th-century case, has been abolished in most states.Rule in Wild’s Case: The rule construing a grant to "A and A's children" as a fee tail if A's children do not exist at the effective date of the instrument, and as a joint tenancy if A's children do exist at the effective date. The rule has been abolished along with the fee tail in most states.Seisin: Possession of a freehold estate in land; ownership.Special property: Property that the holder has only a qualified, temporary, or limited interest in, such as (from a bailee's standpoint) bailed property.Special Warranty Deed: A deed in which the grantor covenants to defend the title against only those claims and demands of the grantor and those claiming by and under the grantor.Specification: The process by which chattel can become a new thing (for example: turning logs into barrel staves). This may vest title into the person changing it. In order for specification to occur, the ‘essential nature’ of the thing must be changed. Statute of Anne: An act passed in 1704, which said that where one cotenant received rent for the land from a third person, that cotenant must account to the others for their share. It was held not to apply to lawful use of the property by cotenants who occupied the land themselves.Statute of Frauds: A statute (based on the English Statute of Frauds) designed to prevent fraud and perjury by requiring certain contracts to be in writing and signed by the party to be charged. Statutes of Frauds traditionally apply to the following types of contracts: (1) a contract for the sale or transfer of an interest in land, (2) a contract that cannot be performed within one year of its making, (3) a contract for the sale of goods valued at $500 or more, (4) a contract of an executor or administrator to answer for a decedent's debt, (5) a contract to guarantee the debt or duty of another, and (6) a contract made in consideration of marriage.Statute of Uses: An English statute of 1535 that converted the equitable title held by a cestui que use (i.e., a beneficiary) to a legal one in order to make the cestui que use liable for feudal dues, as only a legal owner (the feoffee to uses) could be. The statute discouraged the granting of property subject to another's use by deeming the person who enjoys the use to have legal title with the right of absolute ownership and possession. So

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after the statute was enacted, if A conveyed land to B subject to the use of C, then C became the legal owner of the land in fee simple.Statutory Deed: A warranty-deed form prescribed by state law and containing certain warranties and covenants even though they are not included in the printed form.Subrogation: To substitute (a person) for another regarding a legal right or claim.Tax Lien: A lien placed on property and all rights to property by the federal government for unpaid federal taxes.Technical trespass: A trespass which is not treated as a trespass by the law because the trespasser had implied permission to be on the property (ex: a property-owner who allows people to walk across his land).Tenancy at Common: A tenancy by two or more persons, in equal or unequal undivided shares, each person having an equal right to possess the whole property but no right of survivorship.Tenancy at Sufferance: A tenancy arising when a person who has been in lawful possession of property wrongfully remains as a holdover after his or her interest has expired. A tenancy at sufferance takes the form of either a tenancy at will or a periodic tenancy.Tenancy at Will: A tenancy in which the tenant holds possession with the landlord's consent but without fixed terms (as for duration or rent). Such a tenancy may be terminated by either party upon fair notice.Tenancy by the Entirety: A joint tenancy that arises between husband and wife when a single instrument conveys realty to both of them but nothing is said in the deed or will about the character of their ownership. It resembles, in most respects, the joint tenancy. The only major difference is that a tenant by the entirety may not destroy the other spouse's right of survivorship by transferring his or her interest to another. The husband and wife may, of course, together convey their estate to a third person. If they both wish to convert their tenancy into a tenancy in common or a joint tenancy they may do so. Upon the death of a tenant by the entirety, no interest passes, in theory, to the surviving spouse. As was true of the joint tenancy, the survivor's ownership is thought simply to expand to absorb the relinquished ownership of the decedent. Tenancy in Common: A tenancy by two or more persons, in equal or unequal undivided shares, each person having an equal right to possess the whole property but no right of survivorship.Trespass: An unlawful act committed against the person or property of another; esp., wrongful entry on another's real property. At common law, a legal action for injuries resulting from an unlawful act of this kind.Trover: A common-law action for the recovery of damages for the conversion of personal property, the damages generally being measured by the value of the property.Vested Remainder: A remainder that is given to an ascertained person and that is not subject to a condition precedent. An example is "to A for life, and then to B."Warranty Deed: A deed containing one or more covenants of title; esp., a deed that expressly guarantees the grantor's good, clear title and that contains covenants concerning the quality of title, including warranties of seisin, quiet enjoyment, right to convey, freedom from encumbrances, and defense of title against all claims.Waste: Permanent harm to real property committed by a tenant (for life or for years) to the prejudice of the heir, the reversioner, or the remainderman. In the law of mortgages,

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any of the following acts by the mortgagor may constitute waste: (1) physical damage, whether intentional or negligent, (2) failure to maintain and repair, except for repair of casualty damage or damage caused by third-party acts, (3) failure to pay property taxes or governmental assessments secured by a lien having priority over the mortgage, so that the payments become delinquent, (4) the material failure to comply with mortgage covenants concerning physical care, maintenance, construction, demolition, or casualty insurance, or (5) keeping the rents to which the mortgagee has the right of possession. Words of Purchase: Language in a deed or will designating the persons who are to receive the grant.Words of Limitation: Language in a deed or will -- often nonliteral language -- describing the extent or quality of an estate.

B. Hoary Latin MaximsIdem sonans: ‘It sounds the same’ This doctrine means that a document indexed under a misspelled name is valid against a bona fide purchaser if the misspelling sounds the same as the correct spelling.Iustem generis: When general words are used along with specific words, we construe the general words in the same light as the previous, specific words. Ex: “Gold, silver and other minerals…” Other minerals does not mean dirt, only precious minerals.Nemo quad non habet: No one can give what they do not have.Nemo es haeres viventis: No one alive has heirs.Nomen Collectivum: Collective name, or a name that encompasses a group. (ex: Property class of 2006)Quicquid plantatur solo, solo cedit: “Whatever is on property is fixed to the property.”

C. Methods of Will Interpretation

Use all available language. See ArmstrongExpressio unius, based on other clauses. See Browning.Consequentialist interpretation, based on other clauses. See Browning.Rational estate planning/avoiding of taxes. See Browning.When two clauses are in conflict, use only the former. See Camp.Courts will add language to a will in cases of incomplete disposition, when the document does not make sense without it. See Danz.See if there is surplus language that would not have been necessary or appropriate if one interpretation of the document was correct. See Smith.

D. Valid Interests of Property LawPreserve free alienabilityFulfill the intent of donorsProtect good faith purchasersEnsure finality

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Ensure predictabilityProtect valid property interests.

I. Personal Property

A. Wild AnimalsWhat matters for establishing occupancy is not merely taking physical possession of an wild animal, but rather, bringing the animal under control/killing it. Bringing the animal under control/killing it freezes the property rights. All the criterion for possession look to the actions and intentions of the parties at the time that the animal is being deprived of its natural liberties.

According to Blackstone, an animal which regains its liberty is not owned by anyone, unless there is animum revertendi (an animal trained to return to its mater), in which case they remain the property of their owner unless they leave without his knowledge or stay away for a long time. The right of property in a tamed wild animal is defeasible, since the owner may lose it should the animal run away.

The plaintiff must show the validity of his own title. He cannot rely upon the (in)validity of the defendant’s title.

According to Dapson, ownership of an animal seems to require both a valid license and occupancy.

If the case rests upon custom, it does not need common-law support. But note that the case of the “first iron” shows that custom and common-law can play well together. The closer common-law is to custom, the easier it is for courts to enforce.

How do you establish the existence of a custom? The law has established a number of tests:

1) It must be widespread within the relevant community.2) It has to have existed for a long time. The traditional test is, “time out of mind” i.e.

as long as anyone can remember.3) It must be uninterrupted.4) It must be reasonable.

PIERSON v POST (1)FACTS: Post was hunting a fox on land that belonged to nobody. Pierson killed and carried off the fox to keep Post from getting it.PROCEDURAL POSTURE: The plaintiff (Post) won in trial court, and the defendant appealed.ISSUE(S): Who owned the fox?RULE(S): Ordinarily occupancy is the rule for determining who owns wild animals.

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Furthermore, according to ancient law, pursuit (and even wounding) an animal vest no property rights in the hunter. Only control of an animal (either trapping it or mortally wounding it so that it cannot escape) establish ownership. HOLDING: For the defendant. The earlier verdict was reversed.REASONING: According to the ancient principles, Post had not done enough to claim ownership of the fox.DISSENT: Livingston said that the Barbeyrac rule (which states that hunters must have a reasonably good chance of catching an animal in order to claim ownership) is the most rational. It rewards hunters for destroying dangerous and delicious animals.

BUSTER v NEWKIRK (6)FACTS: Newkirk was hunting a deer. He wounded it, but it ran six miles before being killed by Buster. Buster was willing to share the venison, but Newkirk sued for the skin.PROCEDURAL POSTURE: The first court found for the plaintiff (Newkirk). The defendant then appealed.ISSUE(S): Who owned the deer?RULE(S): Pierson v Post.HOLDING: For the defendant. The earlier verdict was reversed.REASONING: Newkirk had not wounded the deer badly enough to obtain property rights, under the precedent of Pierson.

KEEBLE v HICKERINGILL (8)FACTS: The plaintiff owned a duck pond. The defendant frightened the ducks away by firing a gun at them.PROCEDURAL POSTURE: The plaintiff sued and won. The defendant appealed.ISSUE(S): What right does the plaintiff have to the ducks in his pond?RULE(S): Not really sure. The judge doesn’t quote much precedent.HOLDING: For the plaintiff. The earlier verdict was allowed to stand.REASONING: The duck pond is property, and the defendant was interfering with the use of that property in an illegitimate way. Furthermore, the plaintiff’s building of duck ponds should be legally encouraged as a useful industry.

DAPSON v DALY (9)FACTS: Two men were hunting the same deer. One of them killed it, and the other one made an action of replevin to recover the carcass. PROCEDURAL POSTURE: The defendant won, and the plaintiff appealed.ISSUE(S): Same as Buster v Newkirk.RULE(S): Buster, Pierson.HOLDING: For the defendant. REASONING: The plaintiff had not mortally wounded the deer, never acquired physical possession of the deer, and was not even a licensed hunter.

STATE OF OHIO v SHAW (11)FACTS: Henry Shaw, John Thomas and James Fostine sailed onto Lake Erie and took 730 lbs. of fish out of two nets owned by Morris Grow and John Hough. It was possible (albeit unlikely) for fish to swim out of the nets, be freed from the nets by storms, or

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escape over the top of the nets. PROCEDURAL POSTURE:Defendants were indicted in Lake County, Ohio on the charge of grand larceny, and tried before a Court of Common Pleas (which had original jurisdiction). Thomas made a motion to arrest the testimony the jury had heard. The court found him not guilty on directions from the trial judge, and the state excepted to a higher court. ISSUE(S) In order to establish occupancy, is it necessary that a wild animal be completely under the control of the would-be owner, so that there is no possibility of escape?RULE(S): According to the legal commentaries of Russel and Bishop, fish secured in nets were adequately secured.HOLDING:The exception was sustained. The Court held that the slight imperfection of the nets did not negate Grow and Hough's occupancy rights.REASONING: The Court reasoned that under ordinary circumstances, few of the fish would have escaped. Since the owners of the nets had captured the fish, they had acquired a legal property right.

GHEN v RICH (14)FACTS: The libellant killed a whale, using a special marked lance. The custom was that when a marked whale washed up on the beach, whoever found it would alert the proper owner (who would pay a finder's fee). A man named Ellis found the whale, and then sold it for auction. Neither the respondent nor Ellis knew that the whale had been killed by the libellant, but they could easily have found out.PROCEDURAL POSTURE: The case is a libel (a civil action in admiralty law), in which the killer of the whale is suing the person who bought the whale at auction.ISSUE(S): What property rules apply to whaling?RULE(S): The rule of whalers was that dead whales were the property of whoever had killed them and left a mark. This rule (and rules similar to it) had been reaffirmed through various court precedents.HOLDING: The judge held for the libellant, saying that the custom of the whalers was reasonable.REASONING: The judge said that the custom was legally enforceable because of precedent, the fact that its application was limited, the fact that it was necessary to protect the whaling industry, that it worked well in practice, had been embraced by the community, and did not necessarily conflict with the common law.

NORTH DAKOTA v DICKINSON CHEESE CO, INC. (17)FACTS: The cheese company discharged whey into a river near Dickinson, killing thousands of fish.PROCEDURAL POSTURE: The State of North Dakota sued the cheese company manager, Gurtner. Gurtner made a third-party complaint against the city of Dickinson, saying that it was liable for all or part of the damages. The trial court dismissed both the claims of the plaintiff and third-party plaintiff on the grounds that they did not have valid claims. The State appealed, leaving the appellate court to decide the issue of whether or not the State had property rights in the fish.ISSUE(S): What is the relationship between the State and the fish?

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RULE(S): According to statute, the State owns the fish, but its property right is that of a sovreign rather than that of an owner.HOLDING: The court held in favor of the defendant, saying that the State does not have a sufficient property value over the fish.REASONING: The state's sovreign right gives it the ability to determine when and how wild fish may be reduced to ownership, but since it does not own the fish (or rather, it owns them only as a sovreign), it does not have sufficient property rights to support a civil action for their destruction. Furthermore, the Antipollution Act only covers damage to water, not to fish.

B. Finder’s RightsThe rights of the finder are superior to anyone except the true owner. “Against a wrongdoer, possession is title.”

The rights of the finder depend upon possession. You must couple your find with control.

Three types of ‘lost’ property:1) Lost: The owner had no intent to part with the property. The finder gets the

property under Armory.2) Abandoned: The owner intended to voluntarily relinquish the property. There must

be both intention to abandon and some act that manifests that intention to the world. The law presumes intention to abandon from passage of time (after a certain length of time, an owner cannot reclaim it) or physical circumstances (i.e. throwing something in a wastebasket). The finder gets the property under Armory.

3) Mislaid: The owner intentionally placed the property someplace where he could recover it, then forgot about it. The landowner gets the property under McAvoy, and must exercise reasonable precautions to keep it safe for the true owner.

Things That Can Overcome the Presumption of Abandonment1) Proof that you buried it.2) You lack the means to retrieve it.3) You forgot where it was.

There are a number of exceptions to the rule favoring the finder. They are: 1) Buried property (Elwes)2) Mislaid property (McAvoy) – This one is weaker nowadays.3) Property gained by wrongdoing (Favorite).4) Employees acting in the scope of their employment 5) Possession of land, particularly in private areas of land (Barker)

Things that don’t seem to make a difference:1) Knowledge or lack thereof (Hannah)2) Labor theory (Hannah)

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3) Theory that people become attached to people through long association with it---also known as endowment theory.

4) Rights of the true owner (this does appear in the lost-mislaid distinction, but other than that they aren’t very important)

Honesty of the finder vs honesty of the owner of the land.

Can thieves enjoy finder’s rights? Armory suggests that they might, depending on how you define ‘finder.’

Armory is mute on the question of what duties a finder has to return things to their rightful owner, or even how the rightful owner might go about getting his property back.By giving finders such broad rights, Armory is a ‘scavenger’s Magna Carta.’

According to wild animal law, an animal that regains its natural liberty is not owned by anybody. According to Clark, a piece of property that is lost is still owned by the original owner.

The distinction between ‘aboveground’ and ‘underground’ property in Sharman is tricky because it’s not always easy to tell where a piece of property has been.

Sharman has not been followed much in the U.S., where employees finding things at their job sites have prevailed over the owner of the locus in quo.

Some points from Hannah v Peel1) Lack of knowledge on the part of Peel2) Lack of possession on the part of Peel (Peel had not exercised control over the

land). [this may be a subset of the knowledge claim]3) Hannah does not work for Peel.

Two opposing tests: 1) Occupation of the property is key. 2) Manifest intent to exercise control over the property is key.

Perhaps these two tests are the same thing. Is there any difference between occupying a place and manifesting intent to control it?

ARMORY v DELAMIRE (30)FACTS: A chimney sweep’s boy found a jewel and carried it to the defendant’s shop. The defendant’s apprentice took out the stones, and told his master that the item came to three halfpence. The defendant offered the boy the money, and the boy refused, asking for the jewel back. The apprentice gave him the socket without the stones.PROCEDURAL POSTURE: The chimney sweep launched a suit of trover (an action at common law to recover the value of chattels or goods wrongfully converted by another to his or her own use) against the master. This case was heard at the King’s BenchISSUE(S): Does the chimney sweep’s boy have a legal right to the jewel?

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RULE(S): The finder of a jewel does not have absolute property rights, but has a property right that enables him to keep it against all but the rightful owner.HOLDING: The court found in favor of the chimney sweep’s boy, awarding him the price of the finest jewel that could fit into the setting. REASONING: See rules..

CLARK v MALONEY (30)FACTS: The plaintiff found some logs floating in the bay after a sudden overflow of a stream. He moored them with ropes in the mouth of a creek. They were later found in the possession of the defendants, who claimed to have found them in the water.PROCEDURAL POSTURE: This case is an action of trover in Delaware Superior Court.ISSUE(S): What property rights do the original owner have? If the logs came out of his control, does that negate his finder’s right?RULE(S): Same as Armory. He refers to the finder’s right as “prima facie” evidence, since in the absence of better title, it is as effective a support of title as available.HOLDING: The court held in favor of the plaintiff.REASONING: Just as the original loss of the logs by their first owner did not change his absolute property in them, so the subsequent loss of the plaintiff did not divest his special property right.

BARKER v BATES (31)FACTS: A piece of timber fell off of a ship and washed up on a beach owned by the defendants. It was then taken away by the defendants.PROCEDURAL POSTURE: Not sure. It seems like trial court.ISSUE(S): Who has a stronger possessory right to the timber?RULE(S): Armory & Clark.HOLDING: The court held that the plaintiff’s interest as freehold owner was stronger.REASONING: The defendants committed a trespass by going onto the beach, and therefore their title is weaker than that of the plaintiff.

SOUTH STAFFORDSHIRE WATER CO v SHARMAN (33)FACTS: The plaintiff owned a pool, and hired the defendants to clean out the pool. In the course of the cleaning, the defendants found two gold rings, which the plaintiffs tried to recover from them.PROCEDURAL POSTURE: The trial court found for the defendants, and the plaintiffs appealed.ISSUE(S): What rights do ownership of land grant for possession of items found on that land?RULE(S): Pollock and Wright say that possession of land carries with it absolute title to everything on the land, barring a better legal claim. The occupier’s general power and intent to exclude unauthorized interference constitute de facto possession.HOLDING: The court ruled for the plaintiffs.REASONING: When a person has possession of land, with manifest intent to exercise control over it and the things on it, if something is found on that land the presumption is that the possession of the thing is in the owner.

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HANNAH v PEEL (35)FACTS: The plaintiff found a brooch while occupying a house owned by the defendant, and gave the brooch to the police. The police were unable to find the true owner and gave the brooch to the defendant, who sold it. The plaintiff then sued the defendant.PROCEDURAL POSTURE: Appeal.ISSUE(S): Does the right of ratione soli overwhelm the right of the finder in terms of determining possession?RULE(S): 1) A person has possession of everything attached to or underneath his land. 2) A person does not necessarily have possession of a thing lying unattached on his land, even if there is no owner.HOLDING: The court held for the plaintiff.REASONING: Under the rules, and due to the fact that the defendant was unaware of the existence of the brooch and did not have physical possession of it until it was “found,” the finder has the right to the brooch.SIDE CASES: Bridges v Hawkesworth: A commercial traveler finds a package of banknotes on the floor in a shop, and demands ownership of them. The court rules in favor of the traveler, citing Armory. Elwes v Brigg Gas Co: A gas company having rights to all the minerals and mines in a piece of land found a prehistoric boat while digging. The court ruled that since the boat was chattel, it did not belong to them, but rather, to the owner of the land.McAvoy v Medina states that items voluntarily left in a place and then forgotten are different from items that have been lost. In the former case, the owner of a place has a legal duty to keep the item until the owner returns, and finder’s rights do not apply.

FAVORITE v MILLER (40)FACTS: The defendant went onto a piece of swampland owned by the plaintiffs, found a piece of buried statute using a metal detector, and sold it to the Museum of the City of New York. PROCEDURAL POSTURE: The trial court found for the plaintiff, and the defendant appealed.ISSUE(S): Does the buried statue count as something that has been lost or mislaid?RULE(S): If property is “lost” or “abandoned,” the finder has rights to it. If property is “mislaid,” the owner or occupier of the land does. Property embedded within the Earth is in the possession of the land’s owner (except in cases of buried treasure). Trespassers are not allowed to claim finder’s rights, unless their trespass was trivial or merely technical.HOLDING: The Court held for the plaintiffs.REASONING: Although the Court did not want to rule on whether the statue was lost or mislaid, it did want to prohibit the defendant from profiting from his trespassing.

C. BailmentsPositive definition of bailment: Transfer of possession of personal property to a person who is not its owner and for a limited purpose. It requires:

1) Possession of the property by the bailor.2) Delivery to the bailee pursuant to a contract or other agreement.

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3) Acceptance by the bailee.According to Peet, The bailee must know he has been entrusted with the item, as well as what the item is. Also, the bailment must be “reciprocally beneficial to both parties.”

Bailees are under a duty to exercise ordinary care. In cases where bailed property is damaged there is a presumption of negligence, and the bailee has the burden of proof of showing that the loss did not result from his negligence.

If an item delivered to a bailee is not delivered at all, the bailee is absolutely liable. If the item is damaged, only negligence must be proven. The reason why there is strict liability is because delivery is at the heart of the bailment contract. Lack of negligence is not a sufficient excuse for breach of contract.

Negative definitions of bailment: 1) It is not a debt (the bank is not a bailee of the money left in its vaults, because it is

under no obligation to return the exact bills left in its care).2) It is not an agency (a store clerk is not a bailee of the goods in the store, because

he does not have any special legal rights to those goods).3) It is not a lease (a person who has leased property is not a bailee, because he does

not have any special legal rights to the property).

Three Traditional Categories of Bailment:1) Bailments for the exclusive benefit of the bailor. The duty of the bailee is to

exercise slight care. Ex: “Please hold my book while I go check my mail.”2) Bailments for the exclusive benefit of the bailee. The duty of the bailee is to use

the highest standard of care. Ex: “Let me use your book so I can get ready for class.”

3) Bailments for the benefit of both parties. The duty of the bailee is to use ordinary care. Ex: “Let me use your book, and I’ll give you a dollar.”

According to Peet, the traditional bailment categories are not that important anymore.

In Peet, the hotel argued that they should not have had to shoulder the burden of proof. The rule is that the bailee has “the burden of establishing before the jury that its negligence did not cause the loss.” In most cases, the burden is on the plaintiff so as to discourage frivolous lawsuits, but bailments are a special exception. For bailment cases, the plaintiff must only prove that a bailment has been created and that the item has been lost. This is a practical rule, since in many bailment cases there is no way of telling exactly what has happened to the item. Thus, the burden of proof is put onto the bailee, since that party has more information about what happened to the item.

The Allen court rejects the argument made by New Jersey courts, that there should be a more “flexible and comprehensive approach…outside of traditional property concepts.” The common law forces people to think in terms of possession, transfer of possession, etc, which is inflexible and may not apply all that well to new circumstances. The NJ approach translates into a presumption of negligence on the grounds of parking lot

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owners. They do this because the car owners would not be able to easily prove negligence, given that they are far away when the damage occurs.

N.J. Approach: Because a parking lot is not easy to define as either a bailment or a contractual arrangement, the courts assume a bailment-like situation even absent an explicit contract. There is not an absolute responsibility on the part of the lot owner, but there is a presumption of negligence. This is done because the plaintiff may be unable to prove negligence.

TN Approach: There is no reason not to stick with the bailment rule, since the traditional rules apply well to the parking lot cases.

Two Objections To This Case1) The lot owner does not have control of the car without the keys.2) The ticket states that the lot owner is not responsible for loss.

Most bailments are formed out of implicit understandings rather than express contracts. What can you do to avoid liability when property is thrust on you? The standard answer is, “Don’t accept the property in the first place.”

In Cowen, the question is whether or not the involuntary bailee has an absolute duty to return the chattel to its true owner.

PEET v ROTH HOTEL CO. (45)FACTS: A fellow left his diamond ring with a hotel cashier to be delivered to a jeweler who was staying at that hotel. The ring was immediately lost or stolen.PROCEDURAL POSTURE: The defendant lost in trial court and appealed.ISSUE(S): Did the ring owner’s contact with the hotel cashier qualify as a bailment?RULE(S): 1) The bailee must know he has been entrusted with an item, as well as what the item is. There must be mutual consent. 2) The bailment must be “reciprocally beneficial to both parties.” 3) Bailees are under a duty to exercise ordinary care. 4) The bailee has the burden of proof of showing that the loss did not result from his negligence.HOLDING: The court held for the plaintiff.REASONING: See rules.

ALLEN v HYATT REGENCY (50)FACTS: A fellow parked in his car in a parking garage open to the public. He got a ticket stating that the hotel assumed no responsibility for theft or damage to the car. While he was gone, the car was stolen.PROCEDURAL POSTURE: The two lower courts decided in favor of the plaintiff.ISSUE(S): Was a bailment created when the car owner parked in the hotel garageRULE(S): Although there is some dispute over which standard to use, in general a bailment is created when a vehicle owner parks his vehicle in an enclosed area or gives it to a parking attendant. In cases of bailment, there is a statutory presumption of negligence when bailed property is lost or damaged.

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HOLDING: The court found in favor of the plaintiff, saying that a bailment was created when the plaintiff gave up control of his vehicle.REASONING: See the rules above.DISSENT: The dissent said that since the plaintiff retained the keys to his car, parked it himself and locked it, the defendant could not be said to have control of the car.SIDE CASE: Swarth v Barney’s Clothes: A woman left her wallet in her car, and her car in a parking lot. When the wallet was stolen, she sued the parking lot owner. Although it was accepted that the lot owner had accepted bailment of the car (an attendee took her keys), the question was whether or not it also accepted bailment of the things in the car. The court found that “acceptance is absent when the property is not [the usual type left with the custodian] and no disclosure is made.”

COWEN v PRESSPRICH (56)FACTS: The plaintiffs accidentally sent the wrong bond to the defendants. The defendants noticed that it was the wrong bond, and gave it a person (they thought) was a runner in the employ of the plaintiffs. The plaintiffs sued to recover the value of the bond.PROCEDURAL POSTURE: The defendants requested a ruling that the plaintiffs evidence was insufficient as a cause of action. The courts denied that motion and found for the plaintiff. The defendant appealed.ISSUE(S): What is the standard of care the defendants should be held to?RULE(S): For voluntary bailees, there is no excuse for delivering the bailed item to the wrong person. An involuntary bailee has no liability for the item as long as they do not take control of it. As soon as they do take control of it, they become as responsible as if they were voluntary bailees.HOLDING: The court held for the plaintiffs.REASONING: When the defendants gave the bond to an unknown runner (instead of telephoning the plaintiff), they took control of the bond and thus gained liability for it.DISSENT: The dissenter argued that sending the bond back was not equivalent to taking control of it.

D. GiftsIn order for a valid inter vivos gift to be made, there must be:

1) Present intent to transfer the chattel.2) Delivery of the chattel, (including symbolic delivery) which is sufficient to divest

the donor of dominion and control over the chattel.3) Acceptance of the chattel. (which the law will presume when the gift is of value)

The intent required is an intent to transfer an interest in the chattel at the present time. That interest does not have to be a present, possessory interest.

In order for delivery to occur, the gift must be beyond the donor’s power of revocation.

In order for a valid gift causa mortis to be made (according to Woo), there must be:1) Intent to make a gift.2) The gift must be personal property.

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3) The gift must be made when the donor is under apprehension of imminent death, on the essential condition that the property shall belong to the donee if the donor dies as anticipated, leaving the donor surviving and the gift is not revoked in the meantime.

4) Possession of the property must be delivered to the donee at the time of the gift, and the donee must accept the gift.

Gifts are different from contracts, in that gifts are a unilateral exchange. In order for something to be a contract, both parties must have some duty.

What about a case in which Santa leaves a present under somebody’s tree, then drops dead? According to Bunn v Markham merely writing somebody’s name on a package does not count as a written will. The question, therefore, is whether dropping something off counts as delivery. The courts tend to apply a test of irrevocability when determining delivery.

What about using the mails? It would be unlawful for a donor to interfere with the post office and get the gift back, so it would be irrevocable.

The requirement of delivery serves as practical proof that a gift has been made, and to bring home to the donor what he or she is doing (i.e. to make sure that he or she realizes that giving the gift is irrevocable).

Methods of delivery1) Symbolic delivery: The delivery of a thing that symbolizes the chattel (often

done when gifts are too large to physically transfer).2) Constructive delivery: The delivery of a thing that grants access to the chattel

(i.e. a set of car keys).3) Deed of gift: The delivery of a sealed, formal document by which the gift is

made (it’s not sure that this is still valid under U.S. law).

Two things used to avoid delivery requirements1) Make the gift out to be an enforceable contract.2) Declaration of trust. The donor declares that he holds the property in trust for

the donee. This is enforceable and does not require delivery.

Gifts can also be delivered to third parties.

Two common-law rules1) In common-law, all gifts of chattel must be immediate. You could not give a

gift that would only come into effect in the future. (The rule of real property is different.)

2) A testamentary gift must comply with the formalities laid out in the statute of wills.

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Today, gifts of chattel do not need to be immediate. This is because the nature of chattel has changed over the ages.

The vital difference between a gift in a future interest and a gift with a life estate is that the latter is irrevocable.

One difference between Woo & Gruen is that in Woo, actual delivery was possible, whereas in Gruen, symbolic delivery made more practical sense. Another is that checks have a statutory definition under the UCC that promissory letters do not.

The law is naturally suspicious of gifts causa mortis. Such gifts must be proved to a high standard of evidence.

IRONS v SMALLPIECE (69)FACTS: About twelve months before a man’s death, he verbally promised two colts to his son. However, the colts remained in the possession of the father until his death. When the father died, the son sued the executrix of his will for the colts.PROCEDURAL POSTURE: It is a suit of trover.ISSUE(S): Was the gift valid?RULE(S): In order to make a gift, there must be either a written statement or a transfer of possession. In the case of a donatio mortis causa, there is no transfer without actual delivery.HOLDING: The court held that the son was not the owner of the colts.REASONING: Possession had not passed to the son, and therefore the gift was not valid. What little the son had done to feed the horses did not establish him as being in possession of them.

GRUEN v GRUEN (71)FACTS: The plaintiff’s father told him that he had possession of an expensive painting, but kept possession of the painting during his life. After he died, the plaintiff’s stepmother attempted to keep the painting, arguing that the gift was not valid.PROCEDURAL POSTURE: The Special Term court ruled that the plaintiff had not established the elements of a gift, and that any attempt by a donor to retain life estate invalidates a gift of it. The Appellate division held that a valid gift may be made reserving a life estate.ISSUE(S): Has an inter vivos gift been made when the donor reserves life estate in the chattel and the donee never takes physical possession of it? RULE(S): For a valid inter vivos gift to be made, there must be intent of the donor, delivery, and acceptance by the donee. The proponent of a gift must prove each element. HOLDING: The court held for the plaintiff.REASONING: The court believed that the evidence established that the elder Gruen had made a transfer of possession in 1963. As long as the evidence establishes an intent to make a present and irrevocable transfer of title, there is a present transfer of some interest and the gift is effective immediately.

WOO v SMART (78)

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FACTS: A fellow named Yee gave his girlfriend Woo three personal checks two days before his death. The day after he died, she cashed two of the checks (the third was never cashed). The administrator of Yee’s estate sued, alleging that the three checks were not effective gifts because they were not cashed prior to the decedent’s death. Also, the administrator asked for a declaration that Woo had no claim on some securities owned by Yee.PROCEDURAL POSTURE: This is a suit of equity. The trial court ruled that the donee of the checks was not entitled to them.ISSUE(S): Were the checks a gift causa mortis? Can a check be a gift causa mortis?RULE(S): The elements of a gift causa mortis are:

1) Intent to make a gift.2) The gift must be personal property.3) The gift must be made when the donor is under apprehension of imminent death,

on the essential condition that the property shall belong to the donee if the donor dies as anticipated, leaving the donor surviving and the gift is not revoked in the meantime.

4) Possession of the property must be delivered to the donee at the time of the gift, and the donee must accept the gift.

HOLDING: The court held the majority view that checks are not a valid gift causa mortis.REASONING: In order for a delivery to be valid, it must be “actual and complete, such as deprives the donor of all further control and dominion.” Under UCC rules, checks do not meet this standard.

E. Unauthorized Possession & Bona Fide PurchasersPrior possession prevails against all but the true owner. This is to avoid a situation in which “there is an endless series of unlawful seizures and reprisals in every case where property had once passed out of the possession of the rightful owner.”

Where the true owner is known, prior possession does not allow one to maintain trover. This is to avoid a situation in which people who take possession of property are subject to double liability, being sued by both the person who originally took the property without title and the true owner.

Note that under UCC law, anyone entrusting goods to a merchant gives the power to transfer all rights of the entruster. If the entruster is a thief, the person who buys the goods has no rights against the true owner.

The ordinary situation where you have estoppel is when the true owner is estopped, by his conduct, from questioning the title of an innocent purchaser. In Porter v Wertz, the court ruled that Porter’s actions did not fall into that category.

Porter raises the question of what burdens should be put on art dealers. The court said that Feigen should have looked into Wertz’s pedigree as an art dealer.

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Three different rules for statute of limitations accrual:1) Accrual starts at the time of the theft.2) Accrual starts at the moment when the owner could reasonably determine the

location of the property.3) Accrual starts when the property owner demands the property and is refused it.

Laches is the equitable equivalent of the statute of limitations. Things to consider for the purpose of laches:

1) Length of time passed2) Conduct of the parties3) Prejudice: Whether allowing one of the parties to assert a right after a long time

would harm the other party (for instance: if evidence is lost over a great length of time, or if the other party had significantly improved the piece of property).

Statutes of limitation may start to accrue on:1) The date of the injury (this is the traditional rule).2) When the true owner discovers the identity of the person in possession, or

should have discovered that identity through reasonable diligence.3) When the thief begins using the property “as openly as an ordinary owner

would.”4) When the true owner demands the property back and is rebuffed.

Many states have a special statute to say that as long as the chattel is fraudulently concealed, the statute of limitations does not run. ‘Fraudulent concealment’ can simply mean holding the property in a non-public place.

ANDERSON v GOULDBERG (83)FACTS: Anderson cut down some logs and brought them to a mill. Gouldberg & Anderson, acting on orders from the Ann River Logging Company (which claimed to own the land Anderson cut the logs down on), took the logs away.PROCEDURAL POSTURE: The trial court found for Anderson, on the grounds that even though he may have gotten the logs as a trespasser, his title is as good as anyone except the real owner or someone who had authority from the real owner.ISSUE(S): Is possession of wrongfully obtained property sufficient to enable the party enjoying it to maintain replevin against a stranger?RULE(S): Armory v DelamirieHOLDING: The court held for the plaintiff.REASONING: The court found that Anderson had a right to the logs that could only be rebutted by the rightful owner. Otherwise, once property has passed out of the possession of its rightful owner, there would be an endless series of unlawful seizures and reprisals.SIDE CASE: Jeffries v Great Western Railway: Owen gave the plaintiff some trucks, but the defendant, also claiming assignment from Owen, seized them as their own property. The defense claimed that the assignment to the plaintiff was void, and that furthermore, Owen was bankrupt, and that if the defendants were liable to anyone, it was to Owen’s

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creditors. The court ruled that just because the plaintiff did not have a valid title did not allow the defendants to take the trucks.

RUSSELL v HILL (84)FACTS: Due to a clerical error, Mrs. McCoy and Mr. Busbee had both been given a grant of the same piece of land, although Mr. Busbee got it first. Mrs. McCoy sold to the plaintiff some timber on her land, but somebody else took the timber without permission from either Busbee or McCoy and sold it before they could bring it to market.PROCEDURAL POSTURE: The court agreed that the plaintiff could not recover.ISSUE(S): Who is in possession of the timber?RULE(S): Trover cannot be maintained without both title and possession. If the presumption of title is rebutted, the person without good title cannot sue. This is to prevent double liability.HOLDING: The court held for the defendant..REASONING: Since Busbee was the legal owner of the land, McCoy was not in possession. Therefore, she could not pass title of the logs to the plaintiff. This rebutted the plaintiff’s presumption of title.

PORTER v WERTZ (87)FACTS: Von Maker fooled an art dealer into letting him hold onto a painting while deciding whether or not to buy it. When Porter found out that Von Maker was a criminal, he went to the FBI and demanded the painting back in 90 days. Von Maker, using an agent named Wertz, sold the painting to the Feigen gallery, which sold it to a person in Venezuela. Porter then sued the Feigen gallery.PROCEDURAL POSTURE: The trial court said that statutory estoppel did not bar Porter from recovering from Feigen.ISSUE(S): Can Feigen use a defense of statutory estoppel?RULE(S): See belowHOLDING: The court held that the defense of statutory estoppel did not apply.REASONING: Von Maker did not count as a merchant, since he had only been entrusted with possession for the purpose of hanging the painting on his wall. Feigen did not count as a buyer in the ordinary course of business, since they did not take appropriate steps to make sure the person they were buying from was legitimate.

CHAPIN v FREELAND (97)FACTS: A man named Warner took two counters from the defendant, nailed them into the floor of his shop, and mortgaged the premises to DeWitt. Afterwards, DeWitt’s executors foreclosed and sold the premises to the plaintiff. The defendant took the counts from the plaintiff’s possession.PROCEDURAL POSTURE: The trial court found for the defendant.ISSUE(S): Are original owners entitled to take back adversely held property by their own hands, or must they sue for replevin?RULE(S): Apparently there was an adverse possession statute that created a statute of limitations for replevin suits.HOLDING: The court found for the plaintiff.

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REASONING: To allow people to personally retake converted property after the statute of limitations ran out would frustrate the purpose of the statute of limitations. A purchaser against whom a legal remedy is barred is entitled to the property.DISSENT: The dissenter said that since the statute does not specifically prohibit chattel owners from peaceably taking their property back, and thus the defendant was in the right.

SOLOMON R GUGGENHEIM FOUNDATION v LUBELL (100)FACTS: A Chagall gouche was swiped from the mailroom of the Guggenheim foundation, and purchased by Lubell, who displayed it in her home for 20 years.PROCEDURAL POSTURE: Lubell won summary judgment at trial court, but the appeals court reversed.ISSUE(S): Does the museum’s failure to take certain steps to locate the gouache effect the statute of limitations defense?RULE(S): In NY, the statute of limitations begins to kick in when the true owner demands the chattel and the possessor refuses (in the case of good faith purchasers).HOLDING: The court held against Lubell.REASONING: New York had already considered and rejected a discovery rule, as opposed to the demand-and-refusal rule currently in effect. Also, putting a burden of locating stolen artwork on the original owner would conceivably encourage the traffic in stolen art.

II. Law of Neighbors

A. Adverse Possession5 Elements of Adverse Possession

1) Actual2) Continuous for the Statutory Period.3) Exclusive4) Hostile (has the intent to claim exclusive title, and is incompatible with non-

exclusive title)5) Open and Notorious

The Element --- How It Was Used in Anderson --- The Opposite of the Element1) Actual --- The fact they used the cabin --- “Scrambling possession” (for example:

using a hotel room).2) Continuity --- The fact that they used the cabin every summer, as an average cabin

owner would do --- Using property infrequently.3) Exclusive --- The fact that they locked the cabin and kept picnickers away, as an

average cabin owner would do --- Making property public4) Hostility --- The fact that they intended to claim the property and exclude others

--- Subservience to the true owner

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5) Open and Notorious --- They fact that they didn’t hide their use of the cabin --- Using property infrequently

Doctrine of color of title: When one enters as an adverse possessor under color of title, actual possession of part of the property counts as possession of all the titled property. The title must be reasonable.

Taxes are odd. The formal requirements don’t mention them, but not paying taxes on a piece of land would generally indicate that one does not believe that one owns the land.

The “relation back” doctrine, in which we pretend that something that happened earlier happened later, (see note 2 on p 131), is a pretty common feature of law. 1970: O A 1971: X enters 1990: Y damages the land. 1991: X’s title ripens. 1992: X sues Y.According to the “relation back,” doctrine, A’s title is wiped out. X is considered to be the owner ever since he took possession in 1971, and can sue Y for events in 1990.One of the difficulties of adverse possession is that it means you can’t rely entirely on the paper records. However, it is in the adverse possessor’s advantage to get the paper records updated.

One thing that Temple might have done to assert her property right would be to offer Budd permission to use the land. If he accepts, it proves an implicit acceptance on the part of the Budds that the land belongs to Temple, thereby negating the hostility requirement. Ultimately, regardless of how the land is used, Temple wants Budd to acknowledge her interest.

If a party makes improvements on a piece of land in good faith, that party is entitled to compensations from the true owner. This is not the case when the adverse possessor is acting in bad faith. It’s not quite clear how this would play out in the case of Dillaha.

“Subordination to the rights of the true owner,” typically applies to cases of leases and co-tenancy. This is to keep landlords from losing their property under adverse possession. However, landlords can still lose possession if the tenant ‘repudiates the lease.’ Co-tenants can lose possession if one is ousted by the other and the other somehow repudiates the co-tenancy.

FLEMING v GRISWOLD (130)FACTS: Tallman acquired valid title to a piece of land on 1795. In 1805, Edward Griswold took adverse possession, and on 1811, transferred it to his son Abraham Griswold. Tallman died in 1815. His daughter and her husband sued in 1840.PROCEDURAL POSTURE: The trial court ruled that Mrs. Fleming’s disabilities did not prevent the defendant from claiming title by right of adverse possession. Mrs. Fleming appealed.

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ISSUE(S): When does the statute of limitations begin to accrue?RULE(S): Statute of limitations.HOLDING: The court ruled against the plaintiff.REASONING: When the statute has begun to run against the ancestor or other person under whom the plaintiff claims, it continues to run against the plaintiff, notwithstanding any disability.

ANDERSON v COLD SPRING TUNGSTEN (132)FACTS: The plaintiff owned some land in the woods. The defendants bought a cabin on that land, and used it regularly from 1930 – 1969.PROCEDURAL POSTURE: The trial court found that although the defendants had title to the cabin, they did not have title to the land the cabin was on.ISSUE(S): Did the behavior of the defendants establish them as adverse possessors?RULE(S): Rules of adverse possession.HOLDING: The court found in favor of the defendants.REASONING: The defendant’s use of the cabin counted as hostile because they intended to claim exclusive ownership of the property occupied

DILLAHA v TEMPLE (136)FACTS: The plaintiffs were in possession of some land where the boundary lines were unclear. They went to court to receive a declaration that title had vested in them.PROCEDURAL POSTURE: The trial court ruled against the plaintiffs, who appealed.ISSUE(S): Was the plaintiff’s behavior hostile?RULE(S): Rules of adverse possession.HOLDING: The court held against the plaintiffs, saying that they had not established hostile intent.REASONING: The patriarch of the Budd family had verbally acknowledged that the Temples had an interest in the land. This admission proved that Mr. Budd did not have the requisite hostile intent. Furthermore, possession is presumed to be subservient rather than adverse.

MEYER v LAW (139)FACTS: Relying on an incorrect survey, the defendants built and maintained a fence for 25 years, enclosing a part of the plaintiff’s land. Both parties had deeds that reflected the true boundary and paid taxes according to the record title.PROCEDURAL POSTURE: The district court held that the defendants acquired valid title under “color of title.” The plaintiffs appealed.ISSUE(S): How should the Florida statute of adverse possession be interpreted?RULE(S): See statutes at the bottom of 139 – 140.HOLDING: The court held that the defendants did not have good title.REASONING: The court held that in order for adverse possession to work, one of two conditions must be met:

1) You must show 7 years of open, continuous, hostile possession, during which time you enclose and cultivate the land and pays taxes.

2) You must have a claim based on a written instrument of some sort and possession of the premises for 7 years.

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To do otherwise would put property owners at too much risk, defying the legislature’s intent.DISSENT: The dissenter claimed that a Florida statute provided that all contiguous land protected by an enclosure shall be deemed to be premises included within the…purview of 95.16.

B. Lateral & Subjacent SupportThe owners of adjacent land are absolutely required to provide lateral support for each other’s soil, but not to any structures on that soil. However, if soil in its natural state would be sufficient to support a building, withdrawal of support for the soil may make one liable for damage to the building as well. If a neighbor is actually providing support to structures, he may only withdraw it in a non-negligent way.

Lateral support law, unlike other property laws, does not rely on concepts of fault or promise. Instead, its origin comes from the nature of land.

Lateral support duties are limited (they only apply to land in its natural state) and absolute.

Negligence in lateral support cases can take several forms.1) Change in the procedures used after notice was given.2) The use of unsuitable tools or incompetent workmen.3) Insufficient investigation of soil conditions.4) Inadequate precautions because of the weather.5) Failure to give proper notice.6) Having a bad reason for excavation.

The right to mine is subservient to the right of the surface owners to have the surface maintained in its natural state. The right of surface owners is absolute.

Severance separates mineral rights from surface rights. The mineral owner has the right to access the minerals (which involves some use of the surface). If the only way to get at the minerals is to damage the surface (i.e. strip mining), he is allowed to do so and the surface owner has no rights. However, this seems to go against the rule announced in Island Creek, which says that “the right to mine is subservient to the right of the surface owners to have the surface maintained in its natural state.”

The justification for allowing mineral rights owners to destroy the surface but not allowing subsidence is because mineral rights would be moot unless the person who held those rights would be allowed to actually extract the minerals. In the case where destroying the surface is the only way to get at the minerals, the surface owner is thought to have consented. However, mineral owners have the duty to do the least amount of damage to the surface. This is why strip mining might be OK but allowing subsidence would be forbidden.

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NOONE v PRICE (144)FACTS: The plaintiffs bought a house on top of a hill. A restraining wall at the bottom of the hill became cracked, leading to subsistence damage to the plaintiffs’ house. They sued the owner of the wall.PROCEDURAL POSTURE: The circuit court concluded that the plaintiffs had no right to recover for damages to their house, but could recover from damages to the land. The plaintiffs appealed.ISSUE(S): What are the responsibilities of lateral support?RULE(S): The owners of adjacent land are absolutely required to provide lateral support for each other’s soil, but not to any structures on that soil. However, if soil in its natural state would be sufficient to support a building, withdrawal of support for the soil may make one liable for damage to the building as well. If a neighbor is actually providing support to structures, he may only withdraw it in a non-negligent way.HOLDING: The court held that the plaintiffs might be able to recover for damages to their house, but only if they could prove that the disrepair of the retaining wall would have led to the subsidence of their land in its natural condition.REASONING: See rules.

ISLAND CREEK COAL v ROGERS (151)FACTS: A coal company obtained rights to dig for coal underneath some woodland. Later, a subdivision was built on top of the mine. The combination of the presence of the mine and some nearby blasting caused subsidence damage to a house.PROCEDURAL POSTURE: The coal company was found to be liable, and appealed.ISSUE(S): What constitutes “natural state” for the purpose of Kentucky’s statute?RULE(S): The right to mine is subservient to the right of the surface owners to have the surface maintained in its natural state. The right of surface owners is absolute.HOLDING: The court defined “natural state” as the condition of the surface, including reasonable and forseeable improvements thereon, at the time the coal is severed not from the fee, but from the earth (Island Creek should be held liable for the natural state of the surface as of the last time it took coal from the earth). REASONING: This is the correct definition because of the precedent set in West Kentucky Coal v Dilback.

C. Air & LightWhat is the airplane exception based upon?

1) The common law rule does not apply to airplanes because it would be wildly impractical.

2) Airplane routes are governed by statute.3) The rule is now that you have only such ability to control the airspace above

your property as you can profitably make use of.

There are a number of approaches you could take to Causby:

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1) Constitutional: Under the doctrine of sovreign immunity, the government cannot be sued for torts except in certain cases. Thus, Causby’s only avenue for redress was to make a Constitutional takings claim.

2) In U.S. v Powelson, the government set up a fortress in a harbor, and fired guns across an island where a vacation home sat. This drove all the guests away, and the court found that this counted as a taking.

3) In Richards v. Washington Terminal Co., the government gave a railroad company the right to build a railway. People living along the line suffered loss to their property value. The court found that this did not count as a taking.

Causby has been used a lot as a means of fighting regulations. It holds that there can be a taking even when government does not physically occupy land.

What does the Causby case contribute to our idea of air rights?1) It does away with the ancient common law doctrine of air ownership.2) The property owners has rights to at least as much airspace as he can profitably

use, but no more.3) The Court found that “servitude had been imposed upon the land.” Servitude is

a term of art similar to an easement, where one person gains limited use of another’s property. This suggests that the surface owner does have some rights over the airspace, even though the court invalidated the ancient rule.

4) Had the planes flown over adjacent airspace, the land owner would have had no cause of action. This is due to Richards v Washington.

What does the court mean by malice? It is more than simple spite. The case is similar to the schoolboy case mentioned in Keeble, where one schoolmaster tried to prevent others from getting to his competitor’s school. Regular competition is not a cause of action, but malicious or unfair competition is.

How do you prove that something is malicious?1) It has no valid purpose.2) There is some quantifiable harm to the other person.3) The quantifiable harm goes against a right of the other person. (note that under

property law, you have no right to a set value of your land).4) There is enmity between the two people.

Fontainebleau is consistent with Sundowner, since the addition that the hotel wanted to build had a rational purpose, unlike the spite fence. However, in both cases, the person who built the offending structure got a competitive edge over their neighbor.

The court in Fontainebleau is willing to adopt the prevailing custom of letting landowners build as high as they want to, unlike the court in Porter v Wertz (88), which found the art industry’s practices to be unreasonable. The Fontainebleau court accepts the custom without really examining it.

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The court in Fontainebleau is unwilling to allow an adverse possession just because of the long passage of time, unlike the court in Anderson. The difference between the two is that the plaintiff in Anderson could have easily established the element of trespass, whereas the defendant in Fontainebleau could not.

The Fontainebleau court ruled that there was no easement by implication (easement by implication is where A implicitly allows B to cut across A’s property).

There is no notion in Prah that the plaintiff has an easement. This is a nuisance claim.

Nuisance theory says that one person’s use of his land must not unreasonably impair the uses or enjoyment of the other.

Things that distinguish nuisance actions from everyday uses of land:1) The actor is motivated purely by malice. The test for this is a balancing test of

whether the good caused by the act would balance out the harm it caused.2) The degree of the harm involved.3) The character of the harm involved.4) The social value the law attaches to the type of use or enjoyment being invaded.5) The suitability of the use being invaded to the character of the locality.6) The burden on the person harmed of avoiding the harm.7) The utility of the conduct.8) The social value that the law attaches to the primary purpose of the conduct.9) The suitability of the conduct to the character of the locality.10) The impracticality of preventing or avoiding the invasion.

Does it make any difference what the local zoning boards say? In Prah, compliance with the zoning boards seems not to make any difference, whereas in Fontainbleau it was the opposite. You can comply with zoning boards and still have an actionable nuisance.

MURPHY v BOLGER (157)FACTS: A man built his house so that part of the roof hung 16 feet over the property of his neighbor.PROCEDURAL POSTURE: Trial court.ISSUE(S): Is the projection an ouster of plaintiff’s possession (in which case ejectment is possible) or merely an intrusion and interference with the possession (in which case damages are the right remedy).RULE(S): According to Blackstone, “Land hath also, in its legal signification, an indefinite extent upwards, as well as downwards…the word land includes not only the face of the earth but everything under it or over it.”HOLDING: The court held that the roof was an ouster.REASONING: See rules.

U.S. v. CAUSBY (159)

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FACTS: The plaintiffs owned a chicken farm near an army airport. Low-flying aircraft made it hard for them to run the farm.PROCEDURAL POSTURE: Case of first impression at the Supreme Court.ISSUE(S): Does flying a plane at low altitudes over property constitute a taking?RULE(S): Old common law rule that gave landowners rights over the sky, and Civil Aeronautics Authority regulations.HOLDING: The court held that the overflights were a constitutionally recognizable taking of property.REASONING: Although the old common law rule no longer applies in this day and age, the overflights damaged the landowner’s ability to fully exploit his land and thus constituted a taking. DISSENT: The dissent said that the defendants might have a tort, but that the majority was stretching the concept of ‘taking’ in an unnatural and overbroad way.

SUNDOWNER v KING (167)FACTS: There was two adjoining hotels. One of them erected a spite fence to block sunlight and air from the other. The other one sued for damages and injunctive relief.PROCEDURAL POSTURE: The district court found that the fence was erected from spite and in violation of a municipal ordinance.ISSUE(S): May property-owners interfere with each other’s access to sunlight, if they never intrude on or over their neighbor’s property?RULE(S): One may not erect a structure for the sole purpose of annoying one’s neighbor.HOLDING: The court held against the fence owner.REASONING: See rule.

FONTAINEBLEAU HOTEL v FORTY-FIVE TWENTY-FIVE (171)FACTS: There were two hotels, one of which wanted to erect a new addition. The other sued, on the grounds that the construction would intefere with easements of light and air enjoyed by the plaintiff.PROCEDURAL POSTURE: The chancellor issued an injunction, which the defendants appealed from.ISSUE(S): May property-owners interfere with each other’s access to sunlight, if they have a rational reason for doing so?RULE(S): English doctrine of ‘ancient lights,’ and the rule that one must use one’s property so as not to injure the lawful rights of another. There is no legal right to the free flow of light and air across the land of his neighbor.HOLDING: The court held against the plaintiff.REASONING: See rules.

PRAH v MARETTI (176)FACTS: A man built solar panels on his house. When a neighbor tried to build a house that would interfere with the operation of the solar panels, the first man sued.PROCEDURAL POSTURE: The circuit court said that the plaintiff had no claim upon which relief could be granted.ISSUE(S): Is the private nuisance doctrine applicable in this case?

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RULE(S): It used to be that there was no recognized right to sunlight, because there was a big priority on property-owner’s rights, little appreciation for sunlight’s value, and a significant interest in land development. Private nuisance doctrine says that a property owner may not use his land in a way that unreasonably interferes with another’s enjoyment of his property.HOLDING: The court held for the plaintiff.REASONING: The policy considerations that had led past courts to rule against a recognized right to sunlight were no longer valid, and as such, the plaintiff had a valid claim.DISSENT: The dissenter said that a) public policy had not changed all that much, b) that for a nuisance to be actionable it must be “intentional and unreasonable” and c) that if normal people would not be annoyed or disturbed by the situation, there is no action.

III. Land ConveyancingThere is a fundamental division in property law between chattel and land.

1) With land, there is no need to enter or occupy as there is with wild animals. Adverse possession is a very small exception.

2) There is no such thing as abandonment of land as there is with chattel. Land must be taken from you before it is lost.

3) In principle, all land is owned.4) Land does not travel, with the tiny exception of avulsion. Because of this, state

rather than federal law is usually what applies.

A. Contracts of Sale

(1): The Statute of Frauds

How the sale of goods differs from the sale of land1) The sale of land is a two-step process, where the sale of goods is usually a one-

step process. With land, first there is a contract of purchase and then a conveyance of deed.

2) There is writing required at both stages in the sale of land, but not for the sale of goods.

3) Lawyers and agents are usually involved in the sale of land, but not in the sale of goods.

4) Title is a matter of public record in the sale of land.5) The remedy is different, in that the contract of sale for land is suitable for specific

performance. With goods, damages are the typical remedy.

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The Statute of Frauds is held satisfied as long as there is a written memorandum of the contract. The contract itself does not have to be in writing. This is why a check might satisfy the statute if it contains the essential terms of the contract.

Essential terms of a contract for the sale of land:1) Exact description of the land.2) The price.3) The date that it will go into effect.

Under Speed v Speed, a contract for the sale of land does not have to be formal in order to satisfy the statute of frauds. A letter saying, “I have decided to sell you my house in Chicago for $200,000,” qualifies as a contract (assuming that the seller only owns one house in Chicago, so there’s no ambiguity).

In general, you cannot have a contract that does not specify the price. But some courts have been willing to fill in the blanks by supposing a reasonable price was specified, so the mere absence of a price is not fatal. The same applies to date of closing.

CASH v MADDOX (499)FACTS: The Maddoxes agreed to sell the Cashes some land. The Cashes sent a check for $200, with a memo on it referring vaguely to the piece of land. The Maddoxes then decided they didn’t want to sell, and tried to send the Maddoxes a check for $200, which they refused.PROCEDURAL POSTURE: The trial court held that a binding contract had been created, and the Maddoxes appealed.ISSUE(S): What is necessary for a binding contract under the Statute of Frauds?RULE(S): For a contract to be valid, it must establish the essential terms of the contract without resort to parol (oral) evidence.HOLDING: The court held that a binding contract had not been created.REASONING: The writing on the check is too vague. It does not give the exact coordinates of the land. For a contract to be binding, they must be such that neither party can reasonably misunderstand them.

(2): Equitable Conversion

Things that might happen between the time of a contract and the closing.1) One or both of the parties might die.2) The property could be taken by eminent domain.3) One of the parties’ spouses might object.4) The property might be destroyed or damaged by a natural disaster.5) Some outside force might make the property much more or less valuable.6) One or both of the parties might go bankrupt.7) The vendor might wrongfully sell the property to someone else.8) The vendor’s mortgage on the property might be foreclosed by the bank.9) The buyer or vendor might try to back out.

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10) The buyer may not be able to get the financing.11) There could be a defect in the vendor’s title.12) The vendor could intentionally or negligently damage the property.

The rule of equitable conversion says that the law will treat the sale as completed once the contract has been reached. Unless the contract specifically says so, the risk is on the buyer rather than the vendor. Note that the buyer can get insurance.

HypotheticalO wills Blackacre to AO wills his personal estate to B.O contracts with X to sell Blackacre.O dies.X gets Blackacre from the person administering O’s estate.B gets the money from the sale of Blackacre.Once the contract was signed, under the doctrine of equitable conversion, the buyer has an equitable interest in the proceeds. The seller is merely holding title to the land in trust to the buyer.

BRYANT v WILLISON REAL ESTATE CO. (502)FACTS: The Bryants signed a contract to buy a building from the Willison Real Estate Co. Before the delivery of the deed, a water pipe burst and caused damage to the building. The Bryants asked to either get their deposit back or for Willison to fix the damage. Willison refused, and sold the building to a third party. The Bryants sued.PROCEDURAL POSTURE: The trial court said that the purchasers must bear the costs of the damage under the doctrine of equitable conversion. The Bryants appealed.ISSUE(S): What is the doctrine of equitable conversion and does it apply here?RULE(S): The doctrine of equitable conversion says that when an executory contract for the sale of real property does not contain a provision allocating the risk of loss and the property is damaged by fire or some other casualty not due to the fault of the vendor, the risk of loss is on the purchaser (assuming the vendor has good title). In cases where the vendor is responsible and damage is not substantial, the purchaser can sue for specific performance (fulfillment of the terms of the contract) and get a reduction in their purchase price. When the damage is substantial, the appropriate remedy is to terminate the contract and refund the purchase price.HOLDING: The court held that this contract did not fall under the equitable conversion doctrine. REASONING: There were provisions in the contract saying that the vendor was liable for damages.

(3): Financing Provisions

In most conditional contracts, if the condition is not met, neither party has any duty.

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Financing conditions are sort of special, in that they put a duty upon one of the parties to make a good faith effort to do something. The party who says ‘subject to financing’ makes an implicit agreement to try to get financing.

BRUYERE v JADE REALTY (511)FACTS: A couple contracted to buy a house, where their obligations were subject to them getting bank financing. This financing was first granted, but then revoked when they filed for divorce. They tried to get their deposit back.PROCEDURAL POSTURE: The district court found in favor of the plaintiffs, and the defendants appealed.ISSUE(S): Did the plaintiffs breach their agreement with Jade Realty?RULE(S): Not entirely sure.HOLDING: The court held that where the condition precedent of financing is satisfied, but then fails due to voluntary actions of the buyer, the risk of the failure of the transaction ought to be imposed on the buyer.REASONING: The purpose of the financing clause is to protect prospective purchasers from commiting a breach of contract due to their inability to secure the funds necessary to complete the purchase. It is not intended to place upon the seller the hazard that the plaintiffs will alter their circumstances through voluntary actions.

(4): Breaks in the Chain of Title

There is an implied doctrine of marketable title in every contract of sale. It’s more than just a default rule, it’s a strong presumption that the vendor can convey title of a certain sort. The question of whether or not there is marketable title is broader than simply a question of who owns the land.

According to Trimboli, good evidence of adverse possession can provide marketable title even if there has been no lawsuit to concretely settle matters. However, the evidence has to be pretty darn good. The law says that people should not have to “purchase a lawsuit.”Note that “buying a lawsuit” is sort of a term of art. It means “having to bring a lawsuit in order to figure out who owns the land.”

The seller most likely bears the burden of proof to show the status of the title.

Can the purchaser object when the flaw in title is very obvious (i.e. a roof that overhangs someone else’s property)? Even an obvious flaw might not be enough to defeat the strong presumption of marketable title. You’d probably want to get the flaw in title in writing.

Remember that there is a difference between easements and trespasses for the purpose of marketable title. The plaintiff in Murphy (157) would probably have had marketable title, even though there was a trespass and the purchaser would be “buying a lawsuit.”

Doctrine of merger by deed = The obligations specified by the bill of sale are merged into the deed once the closing occurs. Therefore, deeds control.

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There is no such thing as a perfect title. There will always be some flaw in a title, and that is reflected in the definition of a marketable title. One (circular) definition of marketable title is “A title which a prudent purchaser would accept as a good title.”

At the time of conveyance of any deed, there is usually title insurance. The purchaser will buy insurance for the title that he gets. If there is a failure of the title, he will be able to collect the value of his insurance. This doesn’t displace the warranty of title or obligation to convey marketable title, but it is a way for the buyer to protect himself against defective title. After the title insurer has paid off, the seller is liable to the title insurer. There may be several different avenues for protecting buyers, including title insurance, warranty deeds and holding lawyers accountable for bad title searches.

TROMBOLI v KINKEL (516)FACTS: A man left some property in a will. His executor traded the land for another piece of property, which was not allowed. The property changed hands several times, and about 40 years passed. A lawyer was hired to do a title search and didn't uncover the flaw in the title, leading to a business deal falling through for lack of capacity to provide marketable title. The sellers sued their lawyer for negligence.PROCEDURAL POSTURE: The trial court dismissed the complaint, but the appellate court reversed.ISSUE(S): Was the lawyer negligent in not pointing out the flaw in title?RULE(S): In the absence of clear and cogent evidence of adverse possession, clouded title is unmarketable.HOLDING: The court held that the defendant had been negligent, and that damages should equal the amount of money the plaintiffs lost in their failed transaction.REASONING: See rules.

(5): Acreage Disputes

The contract for deed in Turner served the function of recording the purchase price and the terms of its payment as well as a description of the land.

The Turners (who had money owed to them) were trying to get the contract for deed declared a mortgage. In mortgages, there is greater protection for a debtor who has made several payments.

The main benefit to getting a contract for deed instead of a mortgage is that it may be easier to get the former.

Should the contract for deed be treated as a mortgage? On the one hand, they seem to be functional equivalents. On the other hand, it’s not clear that they should be collapsed into the same thing. The case law isn’t settled.

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Remember that it’s often uncertain as to exactly how much land people own, especially if they have a lot of land. The law reflects that uncertainty through cases like this, especially where parties have added language such as ‘more or less’ or ‘in gross.’ In the legal context, ‘gross’ means ‘the whole.’

‘Easement in gross’ is an easement not connected with the adjoining land.

The mere fact that the seller doesn’t have good title at some time before the closing is not enough to allow the buyer to cancel the title.

TURNER v FERRIN (519)FACTS: The Turners bought some land from the Ferrins. The piece of land was about 6% smaller than described in the deed. When the Turners defaulted on their payments, the Ferrins tried to seize the land. PROCEDURAL POSTURE: At first, the Turners tried to convert the contract to a mortgage. They then amended their complaint to include the acreage shortfall.ISSUE(S): Was the sale in gross?RULE(S): A sale of land in gross may contain somewhat more or less land than explicitly laid out in the contract.HOLDING: The court held that it was a sale in gross.REASONING: The words 'more or less' were used in the contract, and there was a sizable amount of land being transferred.

B. Land Transfers

(1): Modern Conveyancing

Three large questions involved in land conveyancing:1) How well does our system deal with the fundamental problem of giving sellers

what they have a legitimate right to expect?2) What is the role of lawyers in making the system work? It has shrunk over the last

hundred years, partially due to the resentment of lawyers by real estate agents.3) What is the role for creativity in using what the system provides?

Questions to Ask When Evaluating a Deed (in order)1) Which covenants are contained explicitly or implicitly in the deed?2) Is there a general warranty deed, a special warranty deed (which is limited in time

to the grantor’s period of ownership) or a quitclaim?3) Has there been a breach of covenant?4) Do the covenants run with the land or not? (You only have to consider this if you

want to sue your grantor’s grantor.)5) Has the statute of limitations run out?6) Is there evidence of damage? If you’re only entitled to nominal damages, there’s

not much point to bringing a suit.

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If there is bad title, think about who really owns the land and has the right to oust its current possessor.

Seisin begins to accrue from the moment of the violation (i.e. as soon as the deed is delivered). Quiet enjoyment begins to accrue from the moment the plaintiff suffers constructive eviction at the hands of someone with better title. Mere existence of a better title does not count as a breach of quiet enjoyment. However, American courts have diluted the necessity of showing an actual eviction. They’ve been willing to grant damages in circumstances such as Tromboli (often by undoing transactions).

The existence of the will in Anderson did not make it wrongful for Jewell to transfer the property in 1973. Wills do not go into effect until death.

In ordinary contract cases, a failure of consideration invalidates the contract. But in the law of real property, a failure of consideration does not invalidate a deed unless there is fraud. This is because we want to allow gifts of land.

Is it fraud in a legal sense to induce someone to give them property by telling them a lie? Not necessarily. For there to be fraud, there must be a misrepresentation of material fact that induces a promise. Ordinarily, a deed which has been obtained by fraud is voidable (which means it is valid until it is voided).

At the time of the conveyance from Altha to William, there was a deed that was valid on its face but subject to challenge. This breached the covenant of right to convey.

ANDERSON v ANDERSON (542)FACTS: Jewell Anderson deeded her home to her son. However, she executed a deed which conveyed the land to her grand-daughter Altha, providing that her grandaughter took care of her during her lifetime. Altha did not take care of her, she died, and her son Frank sued Altha for the home.PROCEDURAL POSTURE: The trial court found for the plaintiffs. William Wade Anderson (whom Altha had given the propert to) appealed.ISSUE(S): Did Altha's failure to care for Jewell invalidate the deed?RULE(S): Mere failure of consideration resulting from failure of the grantee to perform is not sufficient ground for forfeiture of an estate, unless there are other circumstances such as fraud.HOLDING: The court overturned the deed and held that Frank was the owner of the property.REASONING: At the time that the deed was signed over to her, Altha had no intention of caring for Jewell. She never mentioned this to Jewell.

(2): Deed Covenants

General Warranty Deed: A deed containing all of the common-law covenants.

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Special Warranty Deed: A deed which is limited in time, such that the covenants only apply to the grantor’s period of ownership, or which does not contain all of the common-law covenants.Quitclaim: A deed with no covenants, in which the grantor gives up whatever right (if any) he presently owns in the land.

Delivery of a deed is a vital element of land ownership. The essential fact to render delivery effective is that the deed has passed beyond the control of the grantor. The burden of proof rests on the party asserting the deed. Recording generally presumes delivery.

The Six Title Covenants of a General Warranty Deed1) Seisin. The grantor owns the title the deed purports to convey. (This is not

breached by the existence of property interests that are not estates in land, such as mortgages and easements).

2) Right to Convey. This is virtually identical to seisin.3) Against Encumbrances. The title is not subject to those lesser property interests

that do not breach the covenant of seisin.4) Warranty and Quiet Enjoyment: There are no other outstanding interests in the

land, either estates or lesser interests. This is virtually identical to the covenants of seisin and right to convey.

5) Further Assurances: The grantor will take any other steps necessary to perfect the grantee’s interest.

Seisin, the right to convey and the covenant against encumbrances are all personal. The covenants of warranty and quiet enjoyment run with the land. Whether or not a covenant runs with the land is only a problem when you want to sue your grantor’s grantor.

Why do the words “grant, bargain and sell” appear in deeds? Some possibilities:1) Lawyers like to use more words as opposed to fewer words.2) A ‘bargain and sale’ has historically been a way of conveying property. It just

lasted into the present day.3) The draftsmen are attempting to take advantage of a statute.

Easements generally transfer over with land, although it is not automatic. It’s probably a good idea to list easements in deeds.

Quitclaim deeds are useful when someone is conveying adversely posessed land that hasn’t ripened yet. The grantor can’t convey good title, but he’s still got a measurable interest. However, some states have begun to include warranties in quitclaim deeds. Furthermore, the line between quitclaim and warranty deeds is sufficiently elastic that a person might accidentally create the latter when they wanted the former.

St. Paul Insurance turns on the fact that James & Cheryl Owen only used a statutory (limited) warranty deed, meaning that they were only liable for defects in title that they caused. Defects caused by anyone else were not included in the warranty. Albert, on the

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other hand, used a full warranty deed, meaning that he could be held liable. However, only nominal damages were given, because Albert had not taken any consideration in exchange for the warranty. The warranty was worth nothing.

BROWN v LOBER (554)FACTS: The Browns bought some land from the Bosts. Coal was discovered on the land 14 years later, and the Browns got $6000 for the mining rights. However, they discovered that the Bosts had reserved a 2/3 mineral right interest, and had to renegotiate the mineral rights contract. The Browns sued the Bosts.PROCEDURAL POSTURE: The trial court said that the covenant of seisin had been breached, but that the statute of limitations had run out. The appellate court reversed and remanded over a post-trial motion based on breach of the covenant of quiet enjoyment. The defendants appealed.ISSUE(S): Can the plaintiffs sue over the covenant of seisin or quiet enjoyment?RULE(S): Seisin begins to accrue from the moment of the violation (i.e. as soon as the deed is delivered). Quiet enjoyment begins to accrue from the moment the plaintiff suffers constructive eviction at the hands of someone with better title. Mere existence of a better title does not count as a breach of quiet enjoyment.HOLDING: The court held that the plaintiffs could not sue.REASONING: The plaintiffs never suffered constructive eviction, meaning they could not sue for breach of quiet enjoyment. Furthermore, when the plaintiffs gained possession of the surface area, they did not automatically gain the mineral rights.

PROFITT v ISLEY (559)FACTS: The Proffitts sold some land to the Atkinsons, who sold it to Carter, who sold it to the Isleys. The Isleys found out that the land had been mortgaged by the Proffitts. The Isleys sued everyone.PROCEDURAL POSTURE: The jury found that only the Proffitts were liable. The Proffitts appealed.ISSUE(S): Which covenants run with the land and which are merely personal?RULE(S): Seisin, the right to convey and the covenant against encumbrances are all personal. The covenants of warranty and quiet enjoyment run with the land.HOLDING: The court found that only Carter was liable.REASONING: Since the covenant against encumbrances is personal, it can only be applied against the immediate grantor.

ST. PAUL INSURANCE v OWEN (561)FACTS: Albert Owen conveyed some land to his brother and sister-in-law. They conveyed it to Dennis Carlisle. Carlisle mortgaged it to GECC, who got title insurance from St. Paul Insurance. Carlisle defaulted, and the court held that GECC could not foreclose since Carlisle didn't own the land. PROCEDURAL POSTURE: The trial court found for the defendants. St. Paul Insurance appealed.ISSUE(S): What liability do grantors have to remote grantees or their assigns under a warranty deed and statutory warranty deed where certain covenants of title contained in the deeds are found to run with the land?

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RULE(S): When a covenant of title runs with the land, all grantors become liable upon a breach of covenant, and the latter may sue the original or remote grantor regardless of whether he has taken from the immediate grantor with a warranty.HOLDING: The court found that St. Paul Insurance could sue Albert Owen, but not James and Cheryl.REASONING: James and Cheryl had conveyed their complete (albeit non-existent) interest to Dennis. In cases where the immediate grantor does nothing to affect the title or breach any of the covenants, they are not liable according to Mackintosh.

BRTEK v CIHAL (576)FACTS: The Brtek family bought the Urbanek place. It was deeded to Joe. He later deeded it to himself and Martha, and paid her part of the proceeds from the land. After his death, Jerry Brtek asked the court to cancel the deed that named Martha a partial owner.PROCEDURAL POSTURE: The trial court ruled against the Brteks, and said that Martha owned the Urbanek place. The Brteks appealed.ISSUE(S): Was there delivery of the deed to Martha?RULE(S): Delivery of a deed is a vital element of land ownership. The essential fact to render delivery effective is that the deed has passed beyond the control of the grantor. The burden of proof rests on the party asserting the deed. Recording generally presumes delivery.HOLDING: The court overturned the deed and held that Martha was a co-tenant with Jerry.REASONING: The deed did not vest title in Martha because it was not delivered. Therefore, on Joe's death the property passed to his heir (his mother) and on her death it passed to her heirs (Martha and Jerry).

C. Recording Acts

(1): Bona Fide Purchasers

The background principle of the recording acts is “Prior in time, prior in act.” Where the language of the statute is not dispositive, that background principle can pop up.

O AO BTo prevail against A, B must:Race Statute: B must record before A records. (Delaware, Louisiana & North Carolina)Race-Notice Statute: B must be a purchaser for value and without notice, and also record before A. (about half the states)Notice Statute: Be a purchaser for value without notice. (about half the states)

Actual Notice: The party has information about facts or circumstances which should be sufficient to provide him with notice.

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Constructive Notice: A statute or rule of law charges the party with notice. A recorded deed provides constructive notice.Inquiry Notice: The party has actual or constructive knowledge of facts which would lead a prudent person to inquire further.

O A unrecordedO B without noticeB CUnder these circumstances, suppose A tells C “The property is mine, and I’m giving you notice of my interest.” C is protected under these circumstances. B is protected under these circumstances, so B’s purchasers must be protected. Otherwise, B would not have good title. This is the shelter principle.

In cases where nobody can claim the protection of the recording acts, we revert to the common law.

The recording acts were not meant to repeal all other laws. You always want to ask whether other remedies exist. O A unrecordedO B unrecordedO C recordedEven though C gets the land under a notice-race statute, B and A can probably still sue O for violation of warranties of title or quiet enjoyment.

The question posed by Barnacle is, “Would a reasonable person inquire further?”

The holding in Barnacle seems instinctively right, but the strength of the other rule is that it allows title searchers to disregard documents that appear in the record that point to no defect in the title. There are three reasons behind the majority rule: 1)it is a hard line to draw, 2) you ought to be able to have faith in the title as it appears, 3) the statute says that the type of mortgage here is void. The majority rule takes comfort from that language.

To what extent can you rely on the title that you find? Barnacle says that you can look at the record in the title office, but not rely on it. It may give you reason to look further. The process of searching title does force you look further in a variety of ways. There are some exceptions where you have to search outside the title office. Ex: adverse possession, documents outside the chain of title, taxes, probate, and bankruptcy.

Generally, the principle is that something which can be recorded must be recorded. Easements can generally be recorded, and therefore must be recorded, or else you take free of them.

At common law, the mere filing of a notice involving the title of land is enough to alert purchasers to the possibility of defect in the title.

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The JC Penney court says that no matter what your actual knowledge is, in these circumstances, you’re constructively aware that there are restrictions on the use of the land. Furthermore, these parties were repeat players in shopping center disputes.

The underlying question is whether Penney depends upon notice from a deed given by the same grantor. Under what circumstances should there be a duty to inquire absent notice in deeds or leases?

There are two ways that buyers of lots 1-10 might know that they had a right to water. One was the plat map that showed the existence of a well (but didn’t say anything about water deals) and the other was the existence of the pipes.

The statutory warranty deed to lot 11 says that the land is subject to easements, restrictions, reservations and exceptions of record, and well site as delineated on the subdivision plat. The court disposes of this by saying that an intention to create a servitude must be clear on the face of an instrument. Ambiguity shall be resolved in favor of land free of easements.

The vague, ambiguous notice in the deed and plat are not notice, but the pipes create inquiry notice. This seems to be inconsistent with the statute of frauds, which says that no action shall be brought upon contract for the sale of lands, unless the agreement upon which action is brought shall be in writing and signed by the party to be charged.

The court seems to hold that the water agreement not signed by the Methonens passed down to them through their predecessors in title. That kind of obligation, written down, will pass muster under the statute as long as there is something (not necessarily the document itself) to give notice to the subsequent purchasers.

The larger question is: how much does a bona fide purchaser have to do to inquire into the ownership of land?

IN RE BARNACLE (611)FACTS: The Barnacles got a joint mortgage on a piece of land, but the husband forgot to sign it. Later they filed for bankruptcy, and their bankruptcy trustee made a bona fide purchase of the land.PROCEDURAL POSTURE: The bankruptcy court certified a question of law to the higher court.ISSUE(S): Does an imperfect mortgage supply constructive notice?RULE(S): The majority rule is that defective instruments do not create constructive notice.HOLDING: The court held that the unsigned mortgage did create constructive notice.REASONING: The majority rule would create a perverse result by protecting people who fail to search the records, whereas discovery of the defective instrument would create a duty to inquire. Furthermore, even though the instrument is defective, it would still accomplish the task of giving notice.

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JC PENNEY v GIANT EAGLE (613)FACTS: In 1962, Thrift Drug got a 15-year lease that gave them exclusive rights as a pharmacy. A memo of the lease was recorded. In 1969, Penney acquired Thrift Drug, including the lease. In 1977, Penney got the exclusive rights to operate a pharmacy. In 1990, Giant Eagle started building a pharmacy. Penney sued to enjoin them.PROCEDURAL POSTURE: The trial court found in Penney's favor and issued the injunction.ISSUE(S): Did Giant Eagle have notice of the lease?RULE(S): The recording of any lease or memo shall constitute constructive notice to future purchasers.HOLDING: The court held that Giant Eagle was a "purchaser" for the purposes of the statute, and therefore had been afforded constructive notice.REASONING: To apply Giant Eagle's reasoning would mean that there was no way that constructive notice could be served to a lessee. Furthermore, Giant Eagle was a sophisticated land purchaser who should have known what it was doing.

METHONEN v STONE (619)FACTS: The Hedes drilled a well, which they used to supply water to 10 lots. When they sold the lot to Albertini, they executed an agreement to continue water service. The agreement was not recorded until 1985. In 1976, after passing through some more owners, the well was sold to the Methonens. They saw the pipes, but were told they had no duty to provide water by the real estate agent. When Methonen stopped providing water, the owners of a couple of lots sued him.PROCEDURAL POSTURE: Both parties moved for summary judgment. It was granted for the plaintiffs.ISSUE(S): Did the Methonens have notice of the water easement?RULE(S): Rules of actual and constructive notice.HOLDING: The court held that the Methonens did not have constructive notice, but might have had actual notice. Neither party was entitled to summary judgment.REASONING: The deed and plat did not mention any easements, so they did not create notice. And the post-hoc Acknowledgment of Water Well agreement can't bind Methonen, since he did not sign it, and it was not recorded until after his sale. However, the sight of the pipes should have led Methonen to make inquiries, regardless of what the real estate agent told him.

(2): Payment of Consideration

In McDonald, the statute requires you to be an actual purchaser, and you’re not a purchaser unless you give something of value to the grantor. Judgment creditors cannot claim to be bona fide purchases, since the judgment lien is only security for a debt.

Most of the state statutes which provide for mechanics’ liens allow them to trump bona fide purchasers.

MCDONALD v JONES (623)

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FACTS: On May 4, Johns gave Bechtol a mortgage to secure an existing debt. On May 5, Johns gave McDonald a mortgage to secure an existing debt. The McDonald mortgage was recorded first, but the Bechtol mortgage was executed first.PROCEDURAL POSTURE: Not sure.ISSUE(S): Which mortgagor had the prior right to the land?RULE(S): The weight of the authority is that the first mortgage given will prevail over the subsequent mortgage recorded prior to it. Furthermore, a creditor who takes property to secure an existing debt has not had consideration, and as such is not considered a bona fide purchaser.HOLDING: The court held that Bechtol got the land.REASONING: See rules.

(3): Bona Fide Purchaser Filter

O A unrecordedO B without notice, recordedB C, with notice of A’s interestC prevails against A, since C is sheltered by B’s good title.

Chergosky is a case of:

O A unrecordedO B, without notice, recorded.B O, with notice.

The law does not allow this.

Note that the person being held liable (Griffith) is not the person who originally made the bad transactions (Teien). The question for the ‘cleaning title’ exemptions is whether the second buyer is actually the alter ego of the original grantor.

CHERGOSKY v CROSSTOWN BELL (627)FACTS: Teien leased some property to Northwestern Bell, with the option of buying after 10 years. Teien then formed a corporation, Crosstown, and transferred the title and lease to Crosstown. He got a mortgage on the property from Union Central, which was recorded on September 12, 1972. In 1977, Teien mortgaged the property to Chergosky. The mortgage was recorded on August 19, 1985. In 1978, Teien mortgaged the property to Summit Bank and Summit recorded the mortgage. In 1982, Northwestern Bell tried to buy the property. While that litigation was pending, Griffith got a 70% interest in the property, with notice of the Chergosky mortgage. Griffith bought and recorded the mortgages that Summit Bank had. The court then ordered Teien to convey marketable title to Northwestern Bell.PROCEDURAL POSTURE: The trial court ruled in favor of the Chergoskys. The court of appeals reversed.ISSUE(S): Did Griffith's status as a second mortgagor give him priority over the

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Chergoskys to the proceeds from the Northwestern sale, since he acquired the property from a bona fide purchaser who recorded first?RULE(S): Generally, a bona fide purchaser of property which was subject to a prior outstanding unrecorded interest can pass title free of unrecorded interest to a subsequent party who otherwise would not count as a bona fide purchaser under the recording act. The exception is that grantor of property may not cleanse title by selling it to a bona fide purchaser and then buying it back.HOLDING: The court held that the Chergovskys had a prior claim.REASONING: See rules.

(4): Recording and Indexing

In Zimmer, the plaintiffs thought they were getting good title because Gage had a deed from the McCann’s, and because the interest of the Raabs wasn’t recorded. As far as they could see, the McCanns had recorded title which they had passed to Gage, and Gage had not recorded. The problem with the plaintiffs is that they weren’t bona fide purchasers, because they bought from a stranger to the title. If you want protection as a bfp, you have to be able to look at the recorded title and see good title coming to you. The bottom line is to make sure the entire title is on record before you buy it.

The Frank court announces that indexing is not a part of recording.

The three sources of the holding are the previous case, Standard, the legislature’s failure to change the law after Standard, and the need to make land law stable and consistent. This case can be distinguished from Standard because here, the defendant knew about the failure to index and could have corrected the problem.

An argument against the holding is that the party with the opportunity to do something ought to be the one who is held liable.

In Skelton, the certificate issued to Bank Atlantic didn’t give any property interest to Bank Atlantic until the sale was completed. It’s subject to repayment of taxes on the part of the landowner, and there’s no reason to move quickly. Furthermore, everyone with an interest in the tax sale must be notified. Once the sale has been carried out, all prior interests in the title (including easements) are wiped away.

A tax sale by the government would seem to be one of the most reliable forms of title assurance, but the opposite is really true. This is because you have to comply with notification formality.

Note that the tax deed was not recorded until after the title search. Why is the plaintiff not a bona fide purchaser? It is because you should always check the tax records as well as the conveyance records. Had she looked at the tax records, she would have seen there was a problem with the title.

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Ms. Perry’s dilemma is a common one. Although she reasonably relied on the Internet, land recording is still governed by statutes that don’t take the Internet into account.

ZIMMER v SUNDELL (632)FACTS: The McCanns sold some property to the Raabs. The Raab husband died, and his wife conveyed to their kids. The McCanns conveyed the same land to Gage by quitclaim. Gage quitclaimed to the plaintiffs, and recorded the deed. The defendants recorded all their deeds. The plaintiffs learned about the defendants when they went to pay their taxes.PROCEDURAL POSTURE: The trial court found in favor of the plaintiffs. The defendants appealed.ISSUE(S): Are the plaintiffs protected by the recording acts?RULE(S): The only people protected by the acts are innocent purchasers who first record their instruments. The only limitation is that the law should exclude from protection those who may purchase from strangers to the title.HOLDING: The court held that the plaintiffs were not protected, since Gage was a stranger to the title.REASONING: Since there was nothing in the record linking Gage to the original grantors, he was a stranger to the title as far as the record disclosed.

FRANK v STORER (635)FACTS: The Storers gave Frank a deed of trust over some land, to secure a debt owed to the Waynes. The Waynes and the Storers entered into an agreement to modify the original agreement so that a different plot of land would be affected. This modification agreement was recorded but not indexed. The Storers sold the second plot of land to Glenn. Glenn did not pay, and the Storers tried to foreclose. Glenn then argued that the deed of trust did not cover the Waterford lot because the modification agreement had not been indexed.PROCEDURAL POSTURE: The trial court dismissed the foreclosure proceedings, because the grantee should have fixed the problem that kept the agreement from being indexed. The intermediate appellate court agreed.ISSUE(S): Can improperly indexed documents create constructive notice?RULE(S): Improperly indexed documents do create constructive notice.HOLDING: The court held that constructive notice did exist, and that the foreclosure hearings could go forward.REASONING: The result might be bad, but the statute doesn't say anything about an index being necessary for recording.

SKELTON v MARTIN (642)FACTS: Martin didn't pay his property taxes, and a tax deed sale was scheduled. Before the sale, he sold the land to Perry. Perry got a title search company to look at the records, but they only checked the online records, which didn't say anything about the tax problem. Skelton bought the land at the tax sale.PROCEDURAL POSTURE: The trial court found in Perry's behalf.ISSUE(S): Can documents which are improperly listed online create constructive notice?RULE(S): There is no statutory right to accurate government information on the internet.HOLDING: The court found that constructive notice did exist.

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REASONING: See rules.

(5): Exceptions to the Recording Act

The Mugaas court holds that a title by adverse possession is as good as any other, even though it is not recorded or self-evident.

Community property is a regime of matrimonial property in which the husband and wife take equal possession of any property that comes to them during the marriage, except by gift or inheritance. Upon the death of one of the parties to the marriage, the survivor is entitled to their share. The problem with community property is:O WifeWife AA BDoes B take free of the claims of Husband?The statute on page 647 (starting with ‘whenever any person’) is meant to solve the above problem by clearing Husband’s title once A has bought it. The statute protects bona fide purchasers from the spouses of people who have taken property in his or her own name. The court says that the statute was not meant to deal with cases of adverse possession, even though the plain language seems to do so. However, some later language in the statute says that it applies to community property only.

The existence of ‘marketable title acts’ makes the defense’s arguments non-trivial. Marketable title acts say that anyone with a legal right to own land with an unbroken chain of recorded title for 40 years or more shall be deemed to have marketable title.1900 O A an easement1905 O B mortgage1910 O C O has an option to purchase back, until the death of O’s children.1950 C X1970 X Y2000 Y PP has a chain of good title going back to 1950. The easement, mortgage and option to purchase are all wiped out. However, if there has been continued use of the interest (ie A is always walking across his easement), the marketable title act does not apply. The purpose of the marketable title act is to cleanse titles of small impediments that people have forgotten about.Re-recording an interest will renew it for the purposes of the marketable title act. Every 40 years, A, B, and O should re-record their interest.

MUGAAS v SMITH (645)FACTS: The plaintiff adversely possessed some land, but the fence she used to mark it off disintegrated. The defendants bought the land, but there was nothing in the record title and no fence to indicate that the plaintiff was claiming the land in question. The recorded title the defendants had showed that they owned the land.

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PROCEDURAL POSTURE: The trial court found for the plaintiff, and ordered the defendants ejected.ISSUE(S): Can the recording acts be used to overwhelm an adverse possession claim?RULE(S): Rules of adverse possession and recording acts.HOLDING: The court held that recording could not wipe out an adverse possession claim.REASONING: It is impossible to record an adverse possession. The only way that adversely possessed property could be defended against good faith buyers would be to keep 'the flag' flying forever.

IV. Estates in Land

A. Fee Simple

At common law, the normal way that land passed to a married woman was to convey the equitable rather than legal title to her. The equitable title is what the beneficiary of a trust has, the legal title vests directly in the person. The reason for passing land by the former means is to prevent the husband from getting his hands on it.

In Johnson, the will makes no mention of the creation of a trust, meaning that the title is legal. No mention of a trustee is made, or any suggestion that Sarah is getting less than a full right.

If “heirs on her fathers’ side” were words of purchase, the heirs would have a property interest and Sarah would not have fee simple. But because the words “and heirs” are the language of a grant of fee simple, the court assumes it is a term of limitation.

The English statute of descent & distribution meant that land could only descend to people from the blood of the first purchaser. Holmes distinguished between ‘words of purchase’ and ‘words of limitation.’ The former define who took land, the latter defines what the estate is.

Under English law, Sarah could only leave the land to heirs on her father’s side (not the aunt on her mother’s side, or her cousins on her mother’s side, etc.) Under Massachusetts law, she could leave it to people on the other side.

To convey property inter vivos, it was necessary to throw in the words, ‘and his heirs.’ O A “until the rivers run dry” was only a life estate for A. O A “and his heirs” gave fee simple to A.In last wills and testaments, the rule about ‘and his heirs’ did not apply. O A gave fee simple to A.

Wills do not create any property interest while the testator lives.

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The law has a preference for construing ambiguous deeds in wills as grants of fee simple.The preference is strong enough to overrule an attempt to tie up an inheritance (Johnson v Whiton). But it is not absolute. (Hall) One way to reconcile Johnson and Hall is to say that in the former case, the restriction runs in perpetuity, whereas in Hall, the restriction was limited to the lifetime of the wife.

In Peters, the restriction upon the fee would last forever. The distinction between this and Johnson is that in this case, the restriction is only a restriction upon the use of the land rather than on who it could be transferred to. However, the latter restriction is arguably greater than the former.

How far does the law’s preference for fee simple extend? Or to rephrase the problem, how much do we want to let the dead control the use of property?

There are a lot of halfway steps currently in the law (ie: allowing reverter clauses that only last for a period of time, or treating conditions as covenants [for which only money damages are available] instead of reverter clauses).

Things that don’t make a difference to the law for the purpose of sorting out restrictions:1) How much the receiving party paid for the land.2) How long the restriction has stuck on the land (unless there is a special statute).3) Parol evidence about the intentions of the parties at the time of the grant.4) The conduct of the parties after the deed.

The reason behind the above rules is that the facts are likely to be murky, and not well-suited to the adaptation of clear rules.

What is the difference between ‘dead hand controls’ and historic preservation?

The reason that restrictions on alienation are void is because the power to alienate is at the heart of ownership. Toscano gave the Odd Fellows something and then demanded it back. Restraints on use are all right, even if they allow a considerable disadvantage to alienation.

Different kinds of restraints:1) Disabling: You can’t alienate the property. Any attempt to alienate the property

will be treated as void.2) Forfeiture: You can’t alienate the property. Any attempt to alienate the property

will lead to the property being transferred to someone else.3) Partial: You can’t alienate the property to certain people.4) Total: You can’t alienate the property to anyone.5) Direct: A restraint which in form is a restraint of alienability.6) Indirect: A restraint which in form only restrains the use of the property.7) Reasonable: A restraint which is necessary for business.8) Unreasonable: A restraint which is not necessary for business.

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The most common distinction between valid and invalid restraints on alienation is whether they are direct or indirect. See page 236.

O T in trust for A & heirs (ie fee simple)A has an ownership interest here, and can alienate the beneficial interest of the trust to anyone he chooses. This arrangement is sometimes called a ‘spendthrift trust.’ The typical language of a spendthrift trust is that, ‘No interest granted shall be subject to sale or transfer by any beneficiary in any form or manner whatsoever.’

Can the US government get a valid tax lien on the property held in trust? That is a different case than this, by virtue of a statute. The US government can get at underlying trusts. Depending on how much the court likes expressio unius, the existence of this statute may show that in the absence of such a statute, there is no right for non-government entities to recover from a trust, or that spendthrift trusts are not inviolate and can be attacked in some situations.

Johnson v Whiton (221)FACTS: Royal Whiton gave some law to his grandchildren, and a deed executed by the grandchildren was tendered to the plaintiff, but he refused on the grounds that one of the grandchildren, Sarah Whiton, could not convey a fee simple absolute. He sued to get his deposit back.PROCEDURAL POSTURE: The superior court found for the defendant, and the plaintiff appealed.ISSUE(S): Do the words "and her heirs on her father's side" in the will give Sarah Whiton merely a qualified fee?RULE(S): By the old English law, to take land by descent a man must be of the blood of the first purchaser. But in Massachusetts, inherited property may pass from one line to another.HOLDING: The court held that Whitman had a fee simple.REASONING: See rules. Also, to go by the old rule would upset too many titles.

Hall v Hall (224)FACTS: Mr. Hall left some land to his wife in his will, on the condition that if she remarried, their kids would get the land. She gave the land to the Dixons. The validity of this conveyance was contested by some of Ms. Hall's relatives. She went to court to get find out the truth about the conveyance.PROCEDURAL POSTURE: The ower court said that where conveyances are accompanied by an unlimited power of disposition in the grantee, the future interest created in a third party is void. The defendants appealed.ISSUE(S): Was the deed of the Dixons subject to condition that Mrs. Hall not remarry?RULE(S): Limitations upon remarriage in the derogation of an estate in land are valid.HOLDING: The court held that the Dixons had a fee simple subject to a conditional limitation in the deed from her husband. If she remarried, the land would go to her children.REASONING: People cannot convey an interest in land that they do not possess.

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Peters v East Penn Township School District (227)FACTS: James Peters conveyed some land to a school district "To have and to hold the piece of ground…to the School District aforesaid, and its assigns as long as it is used for public school purposes." The school district tried to sell the land, and Peters' son sued.PROCEDURAL POSTURE: Peters brought suit for ejectment. The trial court ruled for the defendant, and the plaintiff appealed.ISSUE(S): Did the school board receive fee simple or was there a limiting statement?RULE(S): A deed which seeks to convey something less than an estate in fee simple must clearly spell out the limitation. Mere statements of purpose do not create a limitation.HOLDING: The court held that there was a limitation on the land, and that it should revert to Peters.REASONING: Certain words such as "so long as" "if it shall happen" or "so that" are technical words that limit deeds.

Mountain Brow Lodge of Odd Fellows v Toscano (230)FACTS: The Toscanos gave a gift deed of some land to the Odd Fellows, with a clause that said, "Said property is restricted for the use and benefit of the second party only, and in the event the same fails to be used by the second party, or in the event of sale or transfer by the second party, the same is to revert to the first parties herein, their successors, heirs or assigns.PROCEDURAL POSTURE: The trustees of the Toscanos brought suit, and the trial court found for the lodge. The trustees appealed.ISSUE(S): Was the clause of the deed an absolute restraint on the power of alienation or merely a condition of title?RULE(S): Absolute restraints on alienability are not permitted.HOLDING: The court held that the clause was merely a limitation on the use of the land, and that it should revert to the trustees.REASONING: The intent of the grantor was to create a condition that the land should continued to be used for lodge purposes. The deed effectively prevented alienation, but that's OK.DISSENT: Because the deed effectively eliminated alienability, it ought to be void.

Bank of Powhattan v Rooney (233)FACTS: Hugh Rooney owed the Bank of Powhattan $2500 after a judgment against him. When he died, he left his son D. Pat Rooney a life estate in some property, under the condition that he should not sell the land to an outsider until 3 years after his death. The Bank got the sheriff to seize the land.PROCEDURAL POSTURE: One of the executors of Hugh's will filed a motion to stay the sale of the land. The trial court enjoined the sales, because the land could not be sold for three years.ISSUE(S): Did the clause of the will restrict alienability?RULE(S): Although the case law is not entirely harmonious, the weight of the authority says that a restraint, even a time-limited one, is void. HOLDING: The court held that the provision in the will was ineffective.REASONING: See rules.

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Estate of Elizabeth Beck (236)FACTS: Elizabeth Berk Sr. left her step-daughter some money, on the condition that the executor would give the money directly to the step-daughter without giving any to her creditors.PROCEDURAL POSTURE: The step-daughter's creditors sued the executor. The trial court said that the creditor could not get the money from the executor.ISSUE(S): Can the creditor recover from the executor?RULE(S): Elizabeth Beck could have kept the money safe from creditors forever by creating a trust. HOLDING: The court held that the creditor could not collect directly from the executor.REASONING: The will created an express trust, which would only hold until such time as the money was delivered.

B. Fee Tail

Takers in tail held a kind of fee simple, because the estate was of potentially infinite duration, but could not alienate it for a period beyond their own lives or devise it, because it passed to the heirs of their body upon their death.

Tail General: A fee tail going to all the heirs of the donee’s body.Tail Special: A fee tail going to certain heirs of the donee’s body.

The historical movement in the US has been to allow some restraints on alienation (ie indirect restraints, use restraints & trusts), but not to allow fee tails. There have been four common statutory modifications:

1) Convert the fee tail into fee simple absolute in the first taker.2) Convert the fee tail into a life estate in the first taker, with a remainder in fee

simple in the hands of the lineal descendants.3) Preserve the fee tail, but allow any taker to convert it to a fee simple by making an

inter vivos conveyance of the property.

A B, but if B dies without issue, to C.Indefinite failure of issue construction: This creates a fee tail. “Die without issue” means “if the takers should ever die without issue.”Definite failure of issue construction: This does not create a fee tail. The time of determination for issue failure is the death of the first taker.

The words “heirs male of his body begotten by M” are words of limitation, because they announce that a fee tail was taken. The male heirs don’t yet have any property interest in the land, although they will get one eventually.

One problem with the fee tail is that:A B lease for 5 years.C, A’s son, has a property right in the land. Once A dies, C can oust B. Since C only takes through A, not from A, C is not bound by A’s promises.

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Wiles case: If a grant is made to a person and his children, and no children are in existence when the grant is made, the grant shall be treated as a fee tail. If there are children, then the words become words of purchase and the children take a present interest in the property. If at the time of the conveyance, the taker has children alive, they take to the exclusion of the taker’s later children. This is an example of the law’s preference for early vesting, and granting the power of alienation sooner rather than later. Allowing the afterborn children to have an interest in the land would render the land inalienable until A’s death.

Void for uncertainty: This occurs when a deed is too ambiguous to do anything. This may occur when a grant to a dead person is made, or the heirs of a living person (no one is an heir of someone living), or when the granting language is very vague (i.e. ‘I set over Blackacre to Mr. Jones.’)

Armstrong v Smith (240)FACTS: The Smiths left some land to their daughter Cynthia, granting "unto our said daughter and offspring or heirs the following described lands or real estate." "Be it known this land is not to be mortgaged or sold." PROCEDURAL POSTURE: Her children sued her to prove that they had an interest in the land and she did not have fee simple. The trial court ruled that she had fee simple.ISSUE(S): Did the grantors intend that the grant be to Cynthia and her children at the time of the deed, or did they intend the grant to be to Cynthia and that class of person who at some indefinite time would be her offspring or heirs?RULE(S): If the former is true, Cynthia and her children then living took an estate as tenants in common. HOLDING: The court held that Cynthia owned a fee simple.REASONING: The intent of the grantors was to create a fee tail, and estate tails are converted by statute to fee simples. Offspring is a word of limitation rather than purchase, so those designated as Cynthia's offspring would take title through her rather than from the testator.

C. Life Estates

Four types of tenancy:1) Tenancy for years: A tenancy for years need not actually be for years; it’s enough

that it’s for a limited period of time. Its defining characteristic is that there is a fixed period.

2) Tenancy at will: A tenant lawfully enters the land, but for no definite term or purpose, and his possession is subject to termination at any time the landlord sees fit.

3) Tenancy at sufferance: A tenant wrongfully stays on land after the expiration of his lease.

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4) Periodic tenancy: A periodic tenancy automatically renews unless one gives notice that it’s going to terminate. The normal rule is that you have to give notice of at least the period in order to terminate.

The difference between the various deeds in terms of consequences:1) Tenancy at will: Reasonable notice must be given.2) Tenancy at sufferance: No notice must be given, once you decide to treat the

tenant as a trespasser.3) Periodic Tenancy: The other party must have one period’s notice.4) Tenancy for years: Notice is written into the lease.

The words “as long as he shall wish to live in Albert Lea” sound sort of like the language in Peters or Mountain Brow or Hall. “While” or “during” are words of duration that tend to create a fee simple subject to a conditional limitation. The reason that this case is decided as a life estate rather than fee simple subject to conditional limitation is because in Hall, Mrs. Hall got an expansive right to alienate the property, whereas the tenant here did not.

The rule is that a lease terminable at the will of one party is terminable at the will of the other. O A as long as A desires also implies that O has a right to terminate. In such circumstances, only statutory notice must be given.

Recordability: In most jurisdictions, short-term leases are an exception, such that unrecorded leasors are protected from bona fide purchasers.

In Smith, the daughter contends that because this was a last conveyance, it must be a fee simple conveyance. Final wills are supposed to convey all of a person’s property. The law calls this the presumption against partial intestacy.

Waste = A tenant for life may enjoy the premises in the condition in which he receives them, and take the profits, but may not do any act which diminishes their value to the reversioner or the remaindman.

Permissive waste is when acts of omission damage a life estate (ie not doing routine repairs, or refusing to pay taxes). Comissive waste is when acts of omission damage a life estate (ie cutting down trees).

The law of waste also governs cotenancies, the sale of land during the period between the signing of the deed and the closing, governorships, and some other problems.

O A for life, then to F.A enters the estate, and does nothing to stop the roof from leaking.The statute of limitations starts running when the roof is leaking enough to do damage, and the notice of waste would naturally come to the remainderman.

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The law says that it’s going to have an objective standard, saying that acts on the property which would reasonably come to the notice of a reasonable record holder, are considered to create notice, whether or not actual notice exists.

If the property is a law school, can A tear down the law school and build a better one?

Two potential tests:1) As a life tenant, you cannot exercise the acts of ownership and dominion where

are the exclusive domain or fee simple owners. To tear down the law school would be an act of an owner.

2) As a life tenant, you cannot change the identity of the property. To tear down the law school and put up a new one would not change the identity of the property.

Pabst: Actions which would be waste under ordinary circumstances are not waste given the extraordinary circumstances of this case.

Brokaw was brought as a declaratory judgment, by the person who wanted to tear down the house. In terms of remedies, the defendants got an injunction against the plaintiff. The other possible remedy in waste cases is damages, which is given out when waste has actually occurred.

1) Injunction (this is what happened in Brokaw).2) Damages (this may be given when waste has actually occurred).3) Forfeiture (this was sought in Brokaw, but is not available in all jurisdictions).4) Partition (This is a dividing-up of the property interest, or a sale of the property in

which the proceeds are equally divided. It usually occurs in situations of joint tenancy. Not many jurisdictions allow it for life tenancies.)

John Tillman had a life estate, with a remainder held by Mabel, and the life tenant failed to pay property taxes, bringing into play the state action for sale of the land to pay the back taxes. The property was conveyed to a number of people, but ultimately came back into John’s hands. John conveyed to Richton Tie & Timber Company. It is held that the company could only take a life estate. This is to keep life tenants from using the tax system to convert their life estates into fee simple.

The point of Tillman is to emphasize that a life tenant owes a duty to the remaindermen to preserve their property.

Thompson v Baxter (245)FACTS: A man lived in a residence in the city of Albert Lea. His lease contract granted the demised premises to the defendant "while he should wish to live in Albert Lea." Someone else bought the land from the landlord, and tried to evict the defendant.PROCEDURAL POSTURE: The defendant held that the terms of the lease had given him a life estate, and the trial court agreed.ISSUE(S): Does the defendant have a life estate?RULE(S): Tenancies at will are created by express contract, where there is no definite length of time given in the contract and either party has the right to terminate with proper

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notice. A tenancy of sufferance is where the tenant wrongfully holds over after the expiration of his term. A tenancy from month to month arises where no definite time is agreed on, and the rent is fixed, and the lease is terminable at the expiration of any period for which rent has been paid.HOLDING: The court held that the defendant held a life estate.REASONING: The lease did not fall into any of the three categories of leases with uncertain time limits. A grant with general terms and an uncertain time limit, which does not fall into any of those three cateogries, creates a life estate.

Smith v Smith (249)FACTS: A woman left her daughter a life estate in some land, with the proceeds to be split between her daughter and her son if her daughter should sell the land. The son sued the daughter for waste.PROCEDURAL POSTURE: The chancellor granted a demurrer for failure to plead properly.ISSUE(S): Did the defendant commit waste? If so, what is the proper remedy?RULE(S): It is permissive waste when a life tenant does not perform ordinary repairs on a building.HOLDING: The court held that the defendant had committed waste, and that receivership was the appropriate remedy.REASONING: The defendant only had a life estate because the deed discussed her power to sell. The appropriate remedy is partition (dividing the interest into two interests) and appointment of a receiver.

Brokaw v Fairchild (251)FACTS: Brokaw built a mansion on some very desirable real estate in New York. He left a life estate in the land to his son, the plaintiff, who sought to tear it down and build a new apartment building.PROCEDURAL POSTURE: I think it's trial court.ISSUE(S): Would replacing the mansion with a profitable apartment building be waste?RULE(S): Any act of the life tenant which does permanent injury to the inheritance is waste.HOLDING: The court held that the plaintiff could not tear down the building.REASONING: The testator had meant to leave his mansion to the remaindermen, not just the land. To tear down the mansion would be an act of ownership and dominion.

New York, O & W Railroad v Livingston (256)FACTS: Ed Livingston left his farm to his nephew, with a life estate. He seemed to try to create a fee tail. The nephew sold the farm to a railroad, which built a bunch of improvements on the land. When the nephew died, his son successfully ejected the railroad company. In 1921, the land was taken by eminent domain.PROCEDURAL POSTURE: Not sure.ISSUE(S): Is the railroad entitled to recoup the expenses it made in improving the land?RULE(S): Any public agency which enters lawfully upon land and improves it in good faith may exclude the value of the improvements in proceedings brought thereafter to condemn a hostile right.

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HOLDING: The court held that the railroad was entitled to the price of its improvements.REASONING: The railroad company was acting in good faith, and greatly improved the land.

Tillman v Richton Tie and Timber (259)FACTS: Bouchillion gave John Tillman a life estate in some land, with a remainder to Mabel Tillman. In April 1932 the land was sold to the state for taxes. In November 1932, Tillman conveyed the land to Cutts, who conveyed to Brantley, a trustee, who conveyed to Woodruff. While Woodruff was the owner, the title ripened in the state. In 1935, John Tillman purchased the land from the state. In 1936, Woodruff purchased some of the land from the state and conveyed it back to John Tillman. Tillman conveyed his interest to Hyde, who conveyed it to the defendant.PROCEDURAL POSTURE: The defendant filed a special demurrer, arguing that they were a bona fide purchaser from Hyde. The court sustained the demurrer, and the plaintiffs appealed.ISSUE(S): What sort of interest did the defendant have in the land?RULE(S): Not sure.HOLDING: The court held that the demurrer was inappropriately granted.REASONING: When Tillman reacquired the deed by a patent from the state and a deed from Woodruff, he must have done so in order to redeem the life estate. The question of bona fide purchaser is an affirmative defense which must be proven by the defendant at trial.

D. Marital Estates

Dower: At common law, the right of a wife, upon her husband's death, to a life estate in one-third of the land that he owned in fee. With few exceptions, the wife could not be deprived of dower by any transfer made by her husband during his lifetime. Curtesy: At common law, a husband's right, upon his wife's death, to a life estate in the land that his wife owned during their marriage, assuming that a child was born alive to the couple.

Requirements of dower (according to NY state):1) The land must be an estate of inheritance.2) The husband must be seized of them during the marriage.

O A for life, then to B + heirs.At A’s death, A is married to W. At A’s death, is W entitled to dower? No, because a life estate is not an estate of inheritance.B dies during A’s lifetime. After A’s death, is B’s wife entitled to dower? No, because B was not seized of the land during the marriage. All B had was a remainder, not a possessory interest (seisin).

O A for 99 years, then to B and his heirs.

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A’s wife would not be able to get dower. A has an estate that he can convey in his will. If he dies in 1 year, he can leave a 98 year interest in the property to whomever he wishes. But he is not seized of the land, because he does not have a freehold.Dower defeats wills. If A tried to leave the land to the Red Cross, they could get at most 2/3 of the land for whatever the remainder of his lease is.

O A and his heirs, as long as the land is used for agricultural purposes. A ceases to use the land for agricultural purposes and dies. Is W entitled to dower? According to the Restatements, she would not, because the original interest to which dower attaches itself has disappeared. However, in the case of fee tails, dower does kick in. See Couch at the bottom of 263.

Melenky would be “a different question if the trust had been declared in writing,” because a written trust would create a valid property interest, whereas an oral one does not.

What is the difference between a trust and a bailment? In a trust, there is an expectation that the trustee will use the land for the beneficiary’s benefit. (THIS MIGHT BE ON THE FINAL)

Community property prevails for eight states. It comes up in the context of death or divorce. Community property is inconsistent with dower & curtesy. At common law, the surviving spouse is entitled to dower or curtesy. Today, the surviving spouse is entitled to some share of the first to die, meaning that it is a share of the estate that cannot be taken away by will. Under community property, the spouse is entitled to half the community (the property the spouse owns) as of right. The two are inconsistent because community property defines the property as being owned by both spouses in common, whereas a forced share regimes defines the property as being owned by one spouse. There is a conceptual difference in how the property acquired during the marriage is understood.If the parties had sold the stock when they got to Ohio and used it to buy a house, there would still be community property in the house, because the proceeds of the original community property can be traced.

A B.B cannot defeat W’s dower interest without her full consent.Could B sell to a bona fide purchaser, C? Someone looking on the records would not see anything about W. Mugaas (645) is about exactly this situation. The statute changed the common law so that the purchaser would take free from the common law regime. The situation at common law would be that the interest of a spouse of one of the parties is one that the subsequent parties will take subject to.

Three principal differences between dower & curtesy:1) Dower was attached to 1/3 of the land, whereas curtesy attached to all of the land.2) For curtesy to attach, it was necessary that a child had been born in the marriage.3) Dower did not attach to equitable estates, whereas curtesy did.

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The move has been to limit the forced share of what the spouse can take to what the deceased spouse owned at the time of death.

The statute says that when one person receives property that was held jointly, O A & B jointly. When one dies, the other receives from O.O A for life, then to B & heirs. When A dies, B does not inherit from A, B takes from O inter vivos.

The normal inheritance tax statute taxes inheritance. That requires that you inherit the property.

The statute at the bottom of 268 makes B pay a tax, by defining accrual rights as a taxable succession. The legislature wanted to close a loophole that would allow people to avoid taxes by declaring joint tenancies with their heirs.

In cases of property owned by married people, the statute assumes that the wife already had ½ of the property, and thus only deems ½ of the succeeding property as taxable.There are two questions here:

1) Is there a change in ownership at the death of the husband? If not, there could be no tax.

2) If there is a change in ownership, does this statute tax it?

Melenky v Melen (262)FACTS: Reuben Melenky gave some land to his son Asher Melen, coupled with a promise to reconvey on demand. Reuben then got remarried, and told his wife she owned some property. The son, when asked to reconvey, only agreed to made a deed for a life estate, thus depriving the wife of her dower.PROCEDURAL POSTURE: The wife sued the son, who filed a demurrer.ISSUE(S): Can the wife recover the land as her dower?RULE(S): A widow shall be endowed with a third part of all the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage.HOLDING: The court held that the wife had no interest in the land.REASONING: The husband was not seized of an estate, nor has he been since the conveyance. He has a cause of action, but dower does not attach to causes of action.

In Re Kessler's Estate (266)FACTS: Kessler and his wife lived in California, which recognizes community property, and while they were there he bought a lot of stock. They then moved to Ohio, which does not recognize community property, and he died. His executor gave half his stock to his wife.PROCEDURAL POSTURE: The state sued to get the taxes on the transfer.ISSUE(S): What manner of interest did the wife have in the property when her husband was alive?RULE(S): Wives have a 1/2 interest in property owned during their husband's life, and get full management of that property when their husband dies.

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HOLDING: The court held that the vesting of the full property rights into the wife was a taxable succession.REASONING: Before the husband's death, the wife did not fully own the stock, because she could not alienate or manage it.DISSENT: The California statute says that the wife has a "present, existing and equal" interest. In the property, which means that she owned it all along and no succession has taken place.

E. Concurrent Estates

Joint tenancy: Joint tenants each own an undivided interest in the whole property, and upon the death of one tenant, the property passes automatically to the survivor, without the formalities of inheritance. A joint tenancy requires the four unities:

1) Title. The joint tenants must take by the same instrument or joint adverse possession.

2) Time: The interest of all the joint tenants must be acquired at the same time.3) Interest: The shares of all joint tenants must be equal, undivided and identical in

duration.4) Possession: All joint tenants have equal rights to possess the whole, in the absence

of any express agreement to the contrary.Destruction of any of these unities creates a tenancy at common.

Tenancy at common: Only the unity of possession is required to create a tenancy at common. Tenants in common have an undivided interest in the property, but there is no survivorship right.

Tenancy by the entirety: This can only exist between husband and wife. They hold as one person, and the survivor takes the whole upon the death of the other. They can sever the tenancy by acting together, but neither acting alone can do so. Neither spouse has a right to partition.

One way to solve the problem of Camp would be to declare the deed to create a tenancy at common, with a life interest in the survivor. This uses all the language (except the ‘as at common law’ part), and fits the intent.

In joint tenancies, either party has the right to partition the property and break up the joint tenancy. A tenancy at common with a life interest in the survivor would be easier.

One doctrine that might have been applied in Camp is the reformation of deeds. That doctrine would allow parties to reform the deed if it did not do what it intended. That might have been used in cases like this. It requires that the parties be able to prove what they intended, and allows them to go to a court of equity to get the document revised.

In many cases (not this), it is possible to point to fraud on the part of one party when a deed does not do what one party thought it did.

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O A & B as joint tenants.B B.At the common law prior to Riddle, B still took her interest from O, so the four unities remain. But B could dissolve the joint interest by doing:B C and thenC B.B would take her interest from C, and the requirements of time and title would be gone.The judge notes that under California law, the four unities were no longer essential for the creation of a joint tenancy.

Partition brings to an end a joint tenancy or tenancy at common by dividing the property. Partition is a legal action. Usually, the parties are given a choice of how they want to divide the property. After a partition, the parties hold in severalty. In many cases, the property is sold, or one of the parties buys out the other.

Wills cannot sever joint tenancies.

O A & B as joint tenants.At A’s death, B takes from O, not A.

Camp v Camp (274)FACTS: Robert Camp and Tincy Camp, his mother, bought a piece of land. The deed described them as tenants in common with right of survivorship. Robert Camp died.PROCEDURAL POSTURE: Robert Camp's wife sued to get the land, saying that a tenancy at common had been created. His mother contended that a joint tenancy with the right of survivorship was created. The trial court found for the mother.ISSUE(S): How should deeds be construed in the face of ambiguity?RULE(S): Tenancies at common do not include a right of survivorship, by definition.HOLDING: The court held that a tenancy at common had been created, meaning that the wife could get the property.REASONING: Although the intention was to create a joint tenancy, that relies on parol evidence which should not be admitted except as a last resort. The phrase 'tenancy at common' comes first in the document, so that's the phrase which will be enforced.DISSENT: What the hell?! The court is applying really technical, stupid rules when the intent of the parties is clear despite a drafting error.

Riddle v Harmon (278)FACTS: Frances Riddle and her husband had a joint tenancy in some land. She wanted to break it up before her death, so she granted herself an undivided one-half interest in the property so as to break up the unity.PROCEDURAL POSTURE: The trial court ruled in favor of the husband, saying that he still had survivorship.ISSUE(S): Can joint tenancies be unilaterally converted into tenancies at common?RULE(S): In order for a joint tenancy to exist, all four unities (title, time, interest and possession --- see page 273) must persist.

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HOLDING: The court held that Frances had successfully destroyed the joint tenancy and her husband's right of survivorship.REASONING: It is possible to unilaterally destroy joint tenancies through strawman transfers. We might as well cut out the middleman and accept reality.

Allison v Powell (283)FACTS: Harold Allison and the Powells owned title to real estate as joint tenants. On July 31, 1981, Harold filed a complaint in partition seeking partition. The complaint was served to the Powells on March 9, 1982. Meanwhile, Harold died on January 10, 1982. PROCEDURAL POSTURE: The trial court dismissed the motion, saying that the right of survivorship continued.ISSUE(S): Does a pending action to partition real estate owned by joint tenants survive the death of the joint tenant at whose instance the action was commenced?RULE(S): In order for a joint tenancy to exist, all four unities (title, time, interest and possession --- see page 273) must persist.HOLDING: The court held that the pending action to partition the real estate did not destroy the joint tenancy.REASONING: Harold still had time to back out. The tenancy is not destroyed until the partition is irrevocable.

F. Reversions, Reverters & Powers of Termination

When owners of land convey less than a fee simple, they necessarily retain an interest in that property. In life estates or leases, this interest is a reversion. In determinable fees, it is a right of reverter. In fee simple upon condition subsequent, it is a right of entry for condition broken, also known as a power of termination. All of these future interests are exempt from the Rule Against Perpetuities.

Reversions are devisable and alienable, whereas possibilities of reverter are not.

The deed in Peoria Heights uses the word ‘revert’, yet the court says this is a fee simple on condition subsequent. There is a presumption that in doubtful cases, the courts will prefer construction of fee simple on condition subsequent rather than a fee simple determinable. The distinction is that the deed frames itself about what will happen to the land if something happens, rather about how long the village has the right to the land.

The simple question comes down to whether in 1910, Gilbert alienated his right of re-entry for condition broken. The court says that he did not, because he cannot do it.What assets cannot be alienated? No one can alienate what he does not have. Does Gilbert have what he tried to convey to Kiethley?

Gilbert only had a possibility of reverter. One analagous situation might be:A owns a lottery ticket. A winnings to B, if A wins the lottery. It seems as if in this situation, there ought to be a possibility of alienation.

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The courts generally do not like being able to alienate the right to bring a lawsuit.

Two differences between Cavalry and Village of Peoria:1) In this case, there was a quitclaim deed instead of a warranty deed.2) In this case, the deed went to the property holder instead of to a stranger.

The difference between a determinable fee and fee on conditions subsequent: The former says, “Use it in a particular way, and it’s yours forever,” the other says, “You get the land right now, and if a certain condition occurs, you lose the land.”

What does the line, “this possible right of re-entry passes to the heirs not be descent but by force of representation” mean? The court holds that the heirs represent the grantor.

O A & heirs on condition subsequent.O dies in 1864.The right goes to the heirs, but it’s not as if O conveyed to them. O’s heirs are his proxy.

To determine heirs, we don’t look at wills, we look at the statute of descent & distribution. The heirs of Palmer ascertained in 1864 are different than the heirs of Palmer ascertained in 1898 and 1928.

In Long, there are two theories as to Henry’s interest: He could have had a reversionary interest, or a possibility of reverter. If he had a reversionary interest (this is what the appellate court decided), it would be devisable, and could be left to his heirs.

O A for life. O retains a reversion. This is a present, vested interest that can be alienated.

Suppose that in Long there had been a right of re-entry for condition broken, and there had been a mere possibility of reverter. This would not have been alienable, either by will or inter vivos conveyance. Rights of re-entry for condition broken descend to the heirs upon the death of the original grantor. This case would be different, because Jesse’s quitclaims would have been invalid.

The heirs of Henry ascertain at the moment that the condition is broken. This is a different set of people than the heirs of Henry at the moment Henry dies. The only people who were Henry’s heirs at law (i.e. had his blood) at the time of Jesse’s death would be Howard and Paul.

Village of Peoria Heights v Keithley (286)FACTS: On January 4, 1904, Gilbert conveyed some land to the village, on the conditions that they passed an anti-drinking ordinance and that they use the lots for a waterworks and town hall. The village passed the ordinance, but didn't build anything. On December 20, 1910, Gilbert conveyed the land to Keithley. On March 1, 1920, Gilbert quit-claimed the land to the village.PROCEDURAL POSTURE: The village sued to cancel Keithley's deed. Keithley

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answered that the village had no interest in the lots. The trial court found for the village.ISSUE(S): Who can enforce a breach of covenant subsequent?RULE(S): A breach of condition can be taken advantage of only by the grantor or his heirs. His grantee, whether before or after the breach, acquires no right to enforce a forfeiture.HOLDING: The court held that Keithley's title was worthless, and quieted title in the village.REASONING: See rules.

Trustees of Cavalry Presbyterian Church v Putnam (288)FACTS: Palmer conveyed some land to the church, with the condition subsequent that the land could only be used as a church and a reverter clause. His heirs quitclaimed to the church, saying that they gave up their rights of reverter. PROCEDURAL POSTURE: The church sought a declatory judgment that the heirs had no right to take the property under the reverter clause?ISSUE(S): Are reversion rights waivable by heirs?RULE(S): Grantors and their heirs can waive the right of reverter.HOLDING: The court held that the heirs had waived their right to take advantage of the reverter clause.REASONING: See rules.

Long v Long (290)FACTS: Henry Long granted a fee tail general to Jesse Long. Henry Long left his residual to his wife, who left it to her sons. Jesse quitclaimed the land to Rosella, who left it to John and Marie Brown. The Browns quitclaimed it to Howard and Esther Long. Jesse Long died without issue.PROCEDURAL POSTURE: The probate court determined that a possibility of reverter is not an estate of inheritance and that upon the happening of the contingency---the grantee's death without issue---the property passes to the heirs at law of the grantor then living.ISSUE(S): When a grantor creates a fee tail, does it create a possibility, of reverter, which is descendible and devisable at the death of the original grantor?RULE(S): A statute had changed fee tails so that they were a life estate which granted fee simple in the hands of the first donee at tail. The interest created in the grantor is a vested reversion.HOLDING: The court held that the series of conveyances begun by Jesse were effective to convey his 1/3 reversionary interest to Howard and Esther Long.REASONING: Reversions created by fee tails are vested estates fully descendible, devisable and alienable inter vivos.

G. Remainders

A remainder is any future interest limited in favor of a transferee in such manner that it can become a present interest upon the expiration of all prior interests simultaneously created, and cannot divest any interest except an interest left in the transferor.”

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Remainders may be held in fee simple (absolute, determinable, subject to a condition subsequent or executory limitation), for life or for a term of years. They have four features in common: 1) They are created at the same time and by the same document as the prior possessory interest, 2) There must be no gap in seisin between the prior possessory interest and the remainder, 3) The prior estate cannot be cut short by a divesting event, and 4) They must be held by a person other than the grantor of the document in which they are created.

Gray’s Rule Against Pereptuities: “Whether a remainder is vested or contingent depends upon the language employed. If the conditional element is incorporated into the description of, or into the gift to the remaindermen, then the remainder is contingent, but if, after words giving a vested interest, a clause is added divesting it, the remainder is vested. Ex: ‘O A for life, remainder to his children, but if any child dies during the lifetime of A his share to go to those who survive’ creates a vested remainder subject to complete divestment. ‘O A for life, remainder to such of his children as survive him’ creates a contingent remainder.

Remainders limited to unknown people are void.

O A for life, then to B and his heirs. There is a vested remainder in B. The remainder does not require B to outlive A. After B’s death, it goes to his heirs, or whoever he alienated it to.

O A for life, then to B and his heirs, if B graduates law school.The above is a contingent remainder. It becomes a vested remainder if B graduates law school. If the contingency is not met, then it is voided and the grantor gets a reversion.

O A for life, then if B survives A, to B and his heirs, but if B does not survive A, to C and C’s heirs.These are cross-remainders.

Differences between reversion and remainder: 1) A reversion is something retained by the grantor, remainders may go to strangers.2) Remainders are not created by the law, they are created by grantors.

O A for life, and if A has no children, to B and his heirs.If A has no children, B has a contingent remainder. By the usual logic, we would think that if A has children, B’s interest fails and there is a reversion in O. The court in McRorie says that the grant implies that O’s intention was to give it to A’s children.

The rule in Shelley’s case is that: The rule that if -- in a single grant -- a freehold estate is given to a person and a remainder is given to the person's heirs, the remainder belongs to the named person and not the heirs, so that the person is held to have a fee simple absolute. It requires five things:1) A freehold estate in the ancestor.

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2) The interest involved must be created in the same instrument.3) Only land is covered by the rule of Shelley’s Case.4) The estates must be of the same quality. They are both legal or both equitable. 5) The word ‘heirs’ must be used in a technical sense. It cannot not be used as descriptio personarum (describing the persons), which tells you who people are and when. (i.e. all Helmholz’s property students in the past present and future is using it in its technical sense, all of Helmholz’s property students in present is using it in as descriptio personarum.)

The doctrine of mergers says: when two successive estates come into the same hands, they merge into one. ex: When you take a life estate and also get the remainder, you can combine them into fee simple.

O A for life, then to O’s heirs.The Doctrine of Worthier Title converts a remainder in the grantor’s heirs into a remainder in the grantor himself. If O’s creditors want to reach O, they have to find property that O owns. If you apply the DOWT, O has a remainder in the property which his creditors can reach.

Stewart Merchant’s Nat’l Bank in trust for Stewart, for Stewart’s life, with a remainder to his heirs.

The big difference between the DOWT and the Rule of Shelley’s Case is that the former purports to be carrying out the intention of the testator. The latter is not an intent-effecutating doctrine, but an intent-destroying doctrine. It says that if you attempt to create a remainder after a freehold estate in the descendents of a taker, the taker gets fee simple.

Mostly, the Rule in Shelley’s Case is obsolete, but DOWT still sticks around.

Whenever you have outstanding contingent interests, there is an implied reversion to the grantor.

By statute, spouses are usually heirs. At common law, spouses are not heirs.

Once a remainder has ‘fallen to the ground,’ it cannot get back up. ‘Falling to the ground’ voids a provision completely. (some states reverse that)

O A for life, then to the heirs of B who attend the 2080 Olympics.In both cases, we have the question of what’s going to happen to the land in the interval between the death of the life tenant and the granting of the fee.Under the rule of Ryan, the ‘heirs of B’ provision falls to the ground and stays there, meaning that the heirs of O will own the fee simple.Under the rule of the states, the ‘heirs of B’ provision is not destroyed by its failure to vest immediately, and the property will go to the heirs of B who attend the 2080 Olympics as soon as that class can be ascertained. The bottom line of the rule of the states

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is that the land will not be alienable until 2080, which seems to be in conflict with the law’s preference for early vesting and free alienability. This is the nice thing about the Ryan rule.

In Buckley, the children had a contingent class remainder before they were born, but upon their births, the class remainder vested in them. Walter’s argument was that the class was determined at the time when the life tenants died.

The consequence of holding that a vested remainder was created means that Hazel and James take through inheritance. But Maurice could have willed the property to anyone.The consequence of treating estates as vested is that they may ‘cast property to strangers,’ by leaving it to people outside the family. Another problem with the result in this case is that it causes tax problems. Since the remainder has a value, it will be taxed under the current inheritance tax.

The consequences of renouncing a will are that the will isn’t annihilated, just that one gives up one’s rights under the will. Thus, the widow gave up her right to a life estate.

One possibility in Ryan if you don’t have the doctrine of destruction of contingent remainders is to put in a reversion to the heirs of the grantor, subject to an outstanding executory interest in the remainderman.

One importance of a contingent rather than vested remainders is that the latter cannot accelerate.

Courts will look at the intent of the grantor in cases of incomplete disposition, where the will doesn’t make sense unless additional language is added.

According to Black, contingent remainders can be vested for some purposes.

Ryland and Gibbon took a contingent remainder, because they took a secondary remainder. The primary remainder was to Corinna’s children.

The common-law rule is that contingent remainders cannot be alienated or devised. If that’s so, neither Gibbon nor Ryland would be able to take. The court says that contingent remainders are vested for some purposes. Contingent remainders are transmissable when the contingency depends on the event rather than the person.

O A for life, remainder to A’s heirs.Ignore the rule in Shelley’s case. The identity of the heirs is uncertain. This remainder would not be transmissable.O A for life, remainder to B, if B reaches the age of 30.The identity of B is certain. This remainder would be transmissable. But if B transmits it to C, and B dies at age 29, C’s interest fails.O A for life, remainder to B’s surviving children & heirs.

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Assume that B has children. Two things that can happen; B can have more children, or B’s children can die. This means that the takers of the land are unknown until A’s death. Thus, the children in existence cannot alienate their interests.

Browning examines the law’s preference for early vesting. It concludes that there should not be a preference either way, but rather, evaluation of the grantor’s intent. It is a good indication of the modern view as to the preference.One technique the court uses for evaluating intent is looking at language in other provisions of the will, and then applying a sort of expressio unius argument. They do this at the top of page 314.Another technique the court uses is looking at the hypothetical ‘reasonable testatrix,’ argument, which pushes in favor of contigent remainder for tax purposes.The final technique the court uses is looking at the intent to keep the land away from Clyde Browning.

O A for life, then to B’s issue & heirs.This produces the same problem as in Browning. We aren’t sure whether B’s issue are determined at the time of O’s death, A’s death or B’s death.The old common-law rule says that it vests at O’s death, due to the preference for early vesting.The more modern perspective says that it vests at A’s death, since that is more likely in line with O’s intent.We don’t want to wait until B dies, because he could die a long time after A dies.Under rule 2, until A dies, B’s issue & heirs cannot alienate the fee, because the consent of all of the issue would be necessary to convey it, and we don’t know how many issue there would be.

O A for life, then to B’s children, whenever born, and heirs.In this case, the class is not closed until B dies.

O A for life, then to B’s surviving children at age 25. (these age conditions are pretty common)The simplest method is to see which of B’s children are age 25 on A’s death.We may be able to reach a better interpretation (in light of O’s intent) if we qualify the contingency as surviving A. Once that contingency has been met, the interest becomes vested. It then becomes possessory at the age of 25.

O A for life, then to B’s surviving children if they stay drug-free.The best way out of this would be to construe it as being that A’s death is the time the condition is assessed. If the children are drug-free at A’s death, they take fee simple and can start gobbling pills without consequence.

McRorie v Creswell (294)FACTS: George Misenheimer left a life estate to his wife & daughter. The reverter clause said "Provided Rosanna shall have no heirs, then it shall go to…my son." Rosanna then conveyed the property to the Martins, who conveyed it to the Creswells.

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PROCEDURAL POSTURE: The trial court found that the Creswells could only take a life estate in the land, and that the heirs of the daughter (the plaintiffs) could take the land once their mother died.ISSUE(S): Did the use of the words "heirs" create a fee defeasible upon death?RULE(S): When the word 'heirs' is used to refer to issue, instead of in its technical, fee simple-creating sense, it may create a fee tail, vesting a remainder interest in children.HOLDING: The court held that Rosanna's children gained the right to the land as soon as their mother died.REASONING: See rules.

Stewart v Merchants Nat'l Bank of Aurora (298)FACTS: Stewart set up a trust after receiving money in a personal injury suit. The trust provided that upon his death, the money would be equally divided amongst his heirs. Stewart tried to cancel the trust and get his money.PROCEDURAL POSTURE: The trial court held that Stewart could not revoke the trust because the interests of unborn heirs were involved.ISSUE(S): Did the trust create an interest in the heirs, such that their consent is necessary for revocation?RULE(S): Trusts may not be revoked unless all the beneficiaries consent. According to May, the word 'heirs' in trusts are words of limitation, not purchase. But according to statute, the word 'heirs' is a word of purchase.HOLDING: The court held that Stewart could revoke the trust.REASONING: Stewart did not intend to give his heirs an interest in the trust. Furthermore, if Stewart died, the trust could be attacked by debtors, meaning that the heirs did not have a full trust interest.

Ryan v Monaghan (302)FACTS: James left a life estate to his wife, with a contingent remainder in the heirs of his son James Jr., such that if the son died without issue and unmarried, the property would go to his brothers and sister.PROCEDURAL POSTURE: The brothers and sister sued for the land. ISSUE(S): Who has a right to the land?RULE(S): Rules of contingent remainders, and nemo est haeres viventis.HOLDING: The court held that James Jr. had the land, and that the siblings had a contingent remainder.REASONING: The remainder to the heirs failed, since James Jr. was still alive and had no heirs. Since the remainder failed, the property passed to his heir at law. The interest of the siblings is contingent on James Jr. dying unmarried and without issue.

Buckley v Buckley (303)FACTS: Carrie left a life estate to her husband Oakey, with a contingent remainder in her sons Homer and Willis. Oakey survived both Homer and Willis. Upon Homer's death, Homer's son Walter, grandson James Lee and step-granddaughter Hazel sued for the land.PROCEDURAL POSTURE: The trial court found that Walter was the sole owner of the land, since title to the fee did not vest until the death of the survivor of Homer and Willis, or the death of Oakley. Since Walter was Homer's only surviving son at the death of

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Oakley, only Walter could collect.ISSUE(S): At what time do the remainders vest?RULE(S): The vesting of estates is favored. Unless the testator clearly states otherwise, it occurs at the time of the testator's death.HOLDING: The court held that Walter and James could both collect.REASONING: At Homer's death, his vested title went to Walter and Maurice, and at Maurice's death, his vested title went to James.

Danz v Danz (307)FACTS: Charles Danz left a will devising a life estate to his widow, and on her death or remarriage the remainder to his nephew and niece, but in the event that either of them died before the death or remarriage of the widow, the property to go to their heirs, and in the event of the niece dying without issue, her share to go to Albert Danz and Edward Danz or their heirs. The widow then renounced the will.PROCEDURAL POSTURE: Charles' niece appealed the decision of the circuit court construing the will.ISSUE(S): 1) Is the remainder vested or contingent? 2) Does the renunciation of the will by the widow accelerate the remainder so that the niece and nephew have a right to present enjoyment? 3) Does the executory devise prevent acceleration of the remainder?RULE(S): 1) If the conditional element is incorporated into the description of the gift to the remaindermen then it is contingent, but if, after words giving a vested interest, a clause is added divesting it, the remainder is vested. 2 and 3) Whether or not acceleration is possible depends on the intent of the testator.HOLDING: The court held that the niece and nephew held a vested remainder, subject to being divested on a named contingency, and that acceleration was possible.REASONING: 1) See rules. 2) The remarriage part implies that Charles only wanted his widow to have the property for as long as she needed it to support herself. He would have been cool with acceleration.

Black v Todd (310)FACTS: Jane Pressley left a life estate to Corinna, with a contingent remainder in her children, and if she died childless, a life estate to Mary with a contingent remainder in her children, and if she died childless, to Samuel Black. Mary died before Corinna. At Corinna's death, Mary's sons Ryland and Gibbon took. PROCEDURAL POSTURE: Samuel Black sued them for the land, and the trial court found for Ryland and Gibbon.ISSUE(S): At what time do the remainders transmit to Ryland and Gibbon?RULE(S): Contingent remainders are transmissable when the contingency relies on the event rather than the person.HOLDING: The court held that as soon as Mary Brown died, the class of people who were her children froze, and Ryland and Gibbon took the contingent remainder.REASONING: See rules.

Browning v Sacrison (312)FACTS: Kate Webb left her daughter a life estate in some land, with a remainder to her grandsons, or if either of them died, then to the surviving grandson. One of the grandsons

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died without issue, and his wife sued for half the property when Kate's daughter died.PROCEDURAL POSTURE: The trial court found that the remainder was contingent, and did not vest until Ada's (Kate's daughter) death.ISSUE(S): Do the remainders vest upon Kate's death or Ada's death? Also, how strong is the preference for vesting?RULE(S): The preference for vesting is not that strong, since there are good reasons for either (vesting: eases confusion and alienability, contingent: tax advantages). The thing to do is look at the grantor's intent.HOLDING: The court held that the remainders were contingent upon Ada's death.REASONING: If the remainders were contingent upon Kate's death, and either of the grandsons had died intestate and without issue, their shares in the land would have gone to their father Clyde. Kate definitely did not want that, since she said so in her will.

H. Statute of Uses & Executory Interests

Purefoy: A contigent remainder which has not matured by the time that the life estate it is based on ends falls to the ground. Something which could be a remainder will be treated as a remainder for all purposes, including destructability.

The nice thing about Purefoy is that it made interests alienable immediately.

O Son for life, then to the children of the son, whenever born, if they reach 21, or the daughters are married at under age 21.By itself, this language would be a contingent remainder, with the contingency being reaching the age of 21 or marriage. Under the rule in Purefoy, if they don’t reach 21 by the time of the son’s death, they lose forever.

It’s possible to have an interest that takes in defeasance of an existing estate.

O A for life, then to B and her heirs if she graduates from law school.This is a contingent remainder, because of Purefoy. This could be a contingent remainder if B graduates before A dies, so therefore it is a contingent remainder. This means that it is destroyed by failing to vest at A’s death.

O A and his heirs, but if B graduates from law school, to B and her heirs.This is an executory interest, because it can take effect immediately and cut short an existing freehold estate. This is a ‘shifting executory interest,’ because seisin shifts to B if something happens.

O A for life, remainder to X and his heirs, but if B graduates from law school, it immediately goes to her and her heirs.There is a vested remainder in X and his heirs, subject to complete divestment. B has an executory interest, since she can cut short A or X’s freehold.

Blackman v Fysh (317)

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FACTS: The testator left a life estate to his son, with a contingent remainder to the son's children who were twenty-one at the time of the son's death. He also provided that the son did not have the power to sell his life estate, and if he attempted to do so, the gift to the son is void and the son's children take.PROCEDURAL POSTURE: Not sure.ISSUE(S): What sort of interest do the grandchildren have in the property?RULE(S): A power of forfeiture capable of defeating a life estate before its natural determination transforms a contingent remainder into an executory interest.HOLDING: The court held that the grandchildren had an executory interest, and that they took whenever they became twenty-one.REASONING: See rules.

I. Powers of AppointmentO A for life, then to _____.Theory of powers of appointment: The person who exercises the power is simply filling in the blanks.If A appoints B, B takes from O, not A. Some of the consequences of this:O A for life, then to my heirs In this case, the Rule in Shelley’s Case applies, even though A lacked a freehold estate. The life estate and remainder are treated as if they came into effect at the same time, through the same document.O A for life, then to O’s heirs In this case, the DOWT applies, such that O gets the remainder.O A for life, then to my grandchildren who reach the age of 21 In this case, the exercise of the power would be void for violating the rule against perpetuities, since it would be measured against the time when O created the interest, rather than when A exercised it.

There are powers of appointment which are limited to a specific class.O A for life, then to any of A’s children that A shall specify. A leaves the property to the Red Cross. That grant is void, so it is as if the power of appointment was not exercised.

Doctrine of capture: If you have a general testamentary power of appointment, and the donee makes an ineffective attempt to exercise it, the law will treat the assets as having been captured by the donee’s estate, and thus go to his heirs at law.

Gilman lays out the doctrine that the owner of a general power of appointment, presently exercisable, is not to be treated as the owner of the property, at least in respect to creditors.

Gilman is parallel to Melenky, in that the law refused to create an estate to subject it to litigation. Just as the Melenky court said it wouldn’t force the husband to exercise his power, the Gilman court said it wouldn’t force the son to exercise his power of

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appointment.Another place where the law will not force people to exercise rights to the benefits of creditors is right of re-entry for condition broken.

Bank of Dallas states the rule that although the assets which are subject to power of appointment are usually not reachable by creditors, there is an exception when the donor and donee are the same person. Put another way: A person cannot evade the claims of his creditors simply by creating a power of appointment in himself.

It’s important to take seriously the question of remainders. Remainders are real interests until the power of appointment is exercised.O A for life, then to such people as A shall appoint, and if A does not exercise this power, then to B and his heirs.B has a vested remainder, subject to divestment if A exercises his power of appointment.

O A for life, then to such children of A as A shall appoint, and in default of appointment to B and his heirs.The children of A do not take by way of remainder, but by way as objects of the power of appointment. If the power is mandatory (or held in trust), the donee must exercise it. If he fails to do so, a court will do it for him. This is in conflict with a taker in default of appointment.If you put in a mandatory power of appointment and there is nobody in the class who can take (i.e. A has no children), then remainders can kick in. B would have a remainder until A had children, at which time the mandatory power would kick in and the remainder would fall away.

In Rowland’s Estate, we see that powers of appointment is not an area of the law where courts say, “Do it right or you haven’t done it at all.” Courts will try to carry out the testator’s intent.

Johnson v Whiton is a good example of how the power of appointment might have been used profitably. Royal Johnson could have legally given to Sarah for life, then to such relatives on her father’s side as she sees fit to appoint. This could be either testamentary (if he didn’t want her to be able to alienate the property) or inter vivos.

Can the donee of a power of appointment appoint in further trust (can the donee appoint to the specific group of people in trust and fasten the trust upon them)? O A for life, then to such persons as A shall designate.Can A designate B for life, and then to such persons as B shall designate?

Gilman v Bell (320)FACTS: Solomon left his wife some land for as long as his son Robert lived, and at Robert's death to his heirs, all subject to a power in Robert to appoint himself or any other person during his lifetime. Gilman, a creditor of Robert, tried to take the property.PROCEDURAL POSTURE: The trial court held that Robert Bell did not have a life estate or fee simple, but only power of appointment.ISSUE(S): What sort of interest does Robert have in the land?

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RULE(S): A power of appointment is a power given by the donor to the donee to appoint the taker of the property. It is not itself a property right until executed.HOLDING: The court held that Robert held only a power of appointment, and that Gilman could not have relief.REASONING: See rules.

Bank of Dallas v Republic Nat'l Bank of Texas (321)FACTS: Patricia Fewell created a trust "for the use and benefit of herself and her children." Her creditors tried to reach this trust.PROCEDURAL POSTURE: The trial court held that the corpus of the trust was not subject to garnishment, but the income was.ISSUE(S): Can the income and/or corpus of an irrevocable spendthrift trust be reached by garnishment for a debt of the settlor?RULE(S): In spendthrift trusts created by others, no part of the spendthrift trust can be taken on execution or garnishment by creditors of the beneficiary. But this is not true when the Settlor who creates the trust is also the beneficiary. If the Settlor has a life interest and also the power to appoint the remainder by deed or will, his creditors can reach the principal of the trust as well as the income.HOLDING: The court held that both the interest and corpus of the trust could be reached by the creditors.REASONING: See rules.

In Re Rowland's Estate (325)FACTS: Eva Rowlands gave her friends the Cuthberts a power of appointment over the residue of the will, to distribute to any of her close friends. She asked them to give generously to Maria Discombe, her maid. The Cuthberts kept everything for themselves.PROCEDURAL POSTURE: Maria Discombe sued over the distribution, and the probate court ruled against her.ISSUE(S): Do the Cuthberts have a general power of appointment (in which case they can do whatever they want with the money) or a special power (in which case they can only give the money to a special class of people?) Also, is the power discretionary or imperative?RULE(S): To create a power in the nature of a trust, three things are necessary. 1) The property to be in the trust must be clearly defined, 2) The beneficiaries must be clearly defined (although not necessarily named individually), and 3) The power must be imperative.HOLDING: The court held that the Cuthberts had a special power of appointment, and that this power was imperative.REASONING: The conditions of a power in the nature of a trust were met. Furthermore, it was clearly the intent of the testatrix that Discombe get something.

J. Rule Against PerpetuitiesJohn Chipman Gray’s formulation of the RAP: “No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest.”

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Posner says, “The RAP is something of a misnomer. It does not limit the duration of a condition in a bequest, but rather limits the testator's power to earmark gifts for remote descendants."

A power of revocation keeps the identities of the “lives in being” from being assessed until the death of the person who holds that power. This may have the effect of making otherwise invalid grants valid under the RAP. Ex: A T in trust to pay for A’s living expenses, on A’s death to A’s eldest son in trust for life, and on the eldest son’s death the principal to his eldest child. A maintains a power of revocation.Without the power of revocation, this would be invalidated by the RAP. A’s eldest son is not a “life in being” at the time of the grant. If the eldest son dies more than 21 years after A, then the grandchild wouldn’t take until more than 21 years after the death of the last “life in being.” But the power of revocation means that the identities of the “lives in being” are assessed at the time of A’s death.

The RAP isn’t supposed to apply to commercial transactions, but the line between commercial transactions and the creation of future interests isn’t clear. United Virginia is an example of how courts have generally put options contracts on the property side of the law.

RAP is about possibilities, not what actually happens.

The most useful possibility for analyzing RAP is the possibility that everyone dies.

O A for life, remainder to A’s surviving children.No life is specified in this conveyance (it doesn’t say A’s life shall be used to determine the RAP).A dies tomorrow. Either his children immediately get the land, or he has no children and the remainder fails. Failing is just as good as vesting for the purposes of the RAP.

There is no estoppel in the RAP. Abbot’s personal representative was the one arguing that the agreement created by Abbot was invalid. That’s a little odd, since ordinarily you can’t take advantage of your own fault.

There is also the question of vesting. The rule is not that the interest must become possessory within 21 years of the last life in being, but that it vest within 21 years of the last life in being. The reason behind this is that the RAP was created to aid alienability.

Bank of Dallas raises the ways in which the RAP might be defeated, on the top of page 331. There is the doctrine of cy pres (courts are invited to rewrite invalid limitations, so they are as near as possible to what they were, and yet do not violate the rule). The other, which has had a little more currency, is the “wait and see” doctrine, which rejects the character of the RAP as dealing only with possibilities and looks at the facts. The difficulty in “wait and see” is that we don’t know what the measuring lives are.

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Today, Jee might not violate the RAP, because we prefer definite failure of issue construction. Take a look at page 240, and the difference between definite and indefinite failure of construction.

The Rule Against Perpetuity can stretch slightly for pregnancy.

Can any grant with a length of time greater than 21 years meet the RAP? O A for life, then to my children who reach the age of 30.You know the identities of the lives in being at O’s death, since a child of O can’t reach the age of 30 after dying.O A for life, then to any of my grandchildren who reach the age of 19.O’s children are not ‘lives in being,’ so this violates the RAP.

The RAP is not restricted to land. It can apply to any property.

United Virginia Bank v Union Oil (329)FACTS: Abbit gave Union Oil an option to buy some land up to 120 days after the city of Newport News acquired some land. 7 years later, his trustee brought suit trying to void the option.PROCEDURAL POSTURE: The bank sought a declatory judgment, which the trial court granted for the defendant.ISSUE(S): Is the option contract void for violating the Rule against Perpetuities?RULE(S): When dealing with a corporate entity, the rule against perpetuities states that the property must vest within 21 years and 10 months of the original signing.HOLDING: The court held that the option violated the Rule Against Perpetuities.REASONING: Since the city of Newport News might not buy the land for more than 21 years, the property might not vest in time and the option violated the rule.

Jee v Audley (333)FACTS: Audley left his wife a life estate of $1000, with a vested remainder in fee tail to his niece, and a contingent remainder in the Jee daughters. The wife died before Audley did, and at the time of his death the niece was 40 and unmarried, and the Jees were 70 and had four daughters.PROCEDURAL POSTURE: The Jee daughters asked for a declatory judgment that they would get the $1000 once the niece died.ISSUE(S): Does the bequest to the Jee daughters violate the Rule Against Perpetuities?RULE(S): Rule Against Perpetuities.HOLDING: The court held that the will did violate the Rule Against Perpetuities, and upon the niece's death the bequest to the daughters would fall to the ground and the money would go back to the testator's estate.REASONING: The bequest did not limit itself to the daughters alive at the time of the testator's death, and there might be another daughter born 21 years after his death. The daughters did not have a vested remainder.

In Re Manson's Estate (334)

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FACTS: Manson left a trust in life estate to his son, with a remainder in life estate to his wife. If the wife did not survive the son, then the daughter would get fee simple.PROCEDURAL POSTURE: Not sure.ISSUE(S): Does the will violate the Rule Against Perpetuities? If so, how should the property be distributed?RULE(S): Rule Against Perpetuities.HOLDING: The court held that the life estate in the son's wife was void. The money should not go to the daughter, but rather, be distributed through the will's residuary clause.REASONING: A secondary life estate in an unknown person is void, since the son might marry someone who hadn't been alive at the time of his father's death. The daughter's remainder was contingent upon her outliving the wife, and as such cannot accelerate.

Sears v Coolidge (337)FACTS: Coolidge created a trust with a remainder, with distribution to take place upon "whichever shall first happen:" either the death of the last survivor of his children, grandchildren and great-grandchildren who were living at the time of his death, or the attainment of 50 years by the youngest surviving grandchild who was living at his death. The second event happened first. Coolidge also left himself a power of appointment he could exercise before his death. PROCEDURAL POSTURE: The trust itself was deemed valid, but the remainder was held void. The people who could take the remainder appealed.ISSUE(S): Does the will violate the Rule Against Perpetuities? And what effect does the power of appointment have?RULE(S): Rule Against Perpetuities.HOLDING: The court held that when a trust contains two conditions, of which the first is too remote and the second, which actually occurs, is not, the rule is not violated. The power of appointment meant that no future interests vested until the death of Coolidge.REASONING: See rules.

V. Intellectual Property

A. Misappropriation of Information

What does the plaintiff have to prove in order to get a remedy under INS?1) They had some sort of a property interest in the information (i.e. they did work to

gather it)2) The defendant has done something to misappropriate the property (i.e. using the

property to compete against the plaintiff, or violating the widely shared and reasonable expectations of the plaintiff).

3) The defendant has been making use of the property in a matter that injures the plaintiff.

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Quasi-property is a partial property right that can only be exercised against certain people.

This case is sort of like the dissent in Pierson v Post, with a moral/utilitarian judgment being applied so as to create a quasi-property right that prevents others from interfering.

Cases in which people have pirated dress designs and movie ideas have been litigated, and the plaintiff was found not to have a cause of action in either one. The court said that they would not find even a quasi-property right in the idea. This means that INS may be more sharply limited than it appears, perhaps applying only to the newspaper business.

The tort of misappropriation has not been extended much beyond the news business.

Hypothetical: Somebody takes your notes and wants to publish them. How is this different from BTC? One difference is that (unlike in INS or BTC), the notes were not publicly available. The person must actively steal the notes. In situations such as this hypothetical, where the plaintiff is harmed by an initial harmful act, we don’t need the tort of misappropriation. The defendant can be zapped for theft or breach of contract.

BTC is different from INS in that:1) There is no direct competition between the two parties. 2) INS only protected the property for a short time. AP could only protect its news

for so long. The Dow Jones got a permanent injunction against the BTC using its averages.

3) Dow Jones’ injury was vague and hard to quantify.

Labor is important because it establishes a quasi-property right and an injury.

A troublesome thing about INS is that the court says that anyone can come up with their own stock index. However, an act of regulation forced the BTC to tie their futures market to an existing index.

Does the BTC decision contravene public policy? The public policy argument is that we’ll never make any technological progress unless we allow people to build on earlier discoveries. The public policy counter-argument is that the basic discoveries will not be made unless people know that they’ll be able to fully profit from their research.

International News Service v Associated Press (964)FACTS: The INS was in the habit of pirating news from AP reports that it had been published in early-edition newspapers or bulletin boards, or by bribing people who worked at AP newspapers or the AP itself.PROCEDURAL POSTURE: The district court granted a preliminary injunction against the INS bribing AP staff, but refused to grant an injunction against the INS getting news from bulletin boards and early editions. The Circuit Court of Appeals modified and sustained the injunction.

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ISSUES: Is there property in news? If there is property in news, does it survive its first publication in a newspaper? Are INS's practices unfair competition?RULES: Case of first impression.HOLDING: The court held that although the members of the public could do whatever they wanted with the information, for the INS to use their competitor's news in such a fashion constituted an unfair business practice. They created the tort of misappropriation.REASONING: The INS was trying to reap the benefits of the AP's labors without any of the costs. News has all the attributes of property necessary for determining that misappropriation by a competitor is unfair competition.DISSENT: Holmes said that the legislature had not spoken on whether or not news was property, and thus that the only ground of complaint that could be recognized was whether the INS was misrepresenting itself by signing its own name to AP reports. Brandeis said that no property right could be found in news without the say-so of the legislature.

Board of Trade of Chicago v Dow Jones (973)FACTS: The BTC wanted to use the Dow Jones index and averages as the basis for setting up a system of hedge funds.PROCEDURAL POSTURE: The BTC wanted to get a declatory judgment that using the Dow Jones Index did not violate Dow Jones' rights. The district court found for the plaintiff, and the defendant appealed.ISSUES: Can the tort of misappropriation apply to non-competitors?RULES: INS v APHOLDING: The court held that the tort of misappropriation could apply to non-competitors.REASONING: The key to information-based property restrictions is that they are supposed to encourage the development of new work. The BTC should make its own index.

B. Copyrights

Feist (the telephone book case on p. 982) draws a distinction between facts and presentation. It’s not enough to present the facts in order to gain copyright protection, they have to be presented in some creative way.

Rockford map says “The second compiler must assemble the material as if there had never been a first compilation; only then may the second compiler use the first as a check on error.” This goes against Brennan’s statement that the fact that the fruit of a compiler’s labor may be used by another is “not some unforeseen byproduct of a statutory scheme,” but rather, “the essence of copyright.”

According to the statute, copyright protection does not extend to any idea… regardless of the form in which it is described.

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Shortly after Feist, there was a case called Key Publications, Inc. v Chinatown Today (945 F.2nd 509), in which a directory of Chinese businesses was held to be copyrightable, since the compilers of the directory had to make a subjective judgment about which businesses were Chinese.

One way to think about these cases is as a matter of misappropriation. One party is appropriating the work of the other, and is pirating valuable work effort from the effort.Tort of misappropriation = A common law version of copyright laws.

Rockford Map v Directory Service (978)FACTS: Directory Service Co. published plat maps. They used maps published by Rockford as a template, then double-checked the facts and added new information. Rockford found out about this and sued.PROCEDURAL POSTURE: The district court found for the plaintiff, and the defendant appealed.ISSUES: What copyright protections do compilers have?RULES: Facts cannot be copyrighted. The copyright in a compilation "extends only to the material contributed by the author of such work." There is a right to check one's work against the work of another compiler, but one must do all the same work as the original compiler.HOLDING: The court held for the plaintiffREASONING: See rules.

Mid America Title Co v Kirk (985)FACTS: Mid America compiled and copyrighted a bunch of factual information about a particular parcel of residential land. They sued somebody else for copying it.PROCEDURAL POSTURE: The magistrate judge granted summary judgment to the defendant, and the plaintiff appealed.ISSUES: How much originality is necessary for copyright protection?RULES: Facts cannot be copyrighted, but their arrangement or selection can be if there is some originality.HOLDING: The court held that Mid America's work involved too little originality to be protected by copyright.REASONING: All that Mid America did was assemble facts, based on strict industry standards.

C. Moral Rights of Artists

Moral rights are statutory rather than common law rights.

Two possibilities on the purpose of the moral rights statutes:1) Protect the rights of artists.2) Protect and preserve art.

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Some of these moral rights statutes have their own statutes of limitations. In cases where they don’t, do we look to the personal injury statute of limitations or the property damage statute of limitation?

The fact that the name of the Massachusetts statute is called the ‘Art Preservation Act’ might lead one to believe that its purpose is #2. However, the language of the statute leads one to believe #1 (with a mention of #2). Footnote #4 on page 993 says that artists are allowed to destroy their own works. This would seem to undermine #2.

The work-for-hire exception could be a means of distinguishing between ‘fine art’ and simply being a skilled tradesman. It also undermines #2, since it creates a sub-section of art that is not protected.

The statute in Massachusetts protects only fine art, as defined by experts.

Moral rights are a good example of how ‘transplants,’ foreign legal ideas, can get into the American common law, usually changing somewhat in the process.

Note that under the Moakley statute, the right is limited to the artist’s lifetime + 50 years. Also note that the sort of material covered under the act is strictly limited, and that it only applies to originals and limited-edition prints. The statute also says that modifications to the work due to its presentation, lighting, restoration, etc. do not count as defacement. The statute is riddled with places in which the words, narrowly construed, defeat the purpose.

What is the goal of the statute? One possibility is that it was created to preserve art for future generations, and has nothing to do with the artists. Another possibility is that it was created to protect artists. A third possibility is that it’s just one of those dumb, trendy things that the legislature does from time to time.

One question in Moakley is whether or not the church has religious or free speech freedom under the 1st amendment to tear the mural down.

Moakley v Eastwick (992)FACTS: The plaintiff painted a mural for a Unitarian church. The building was later bought by a different church, which wanted to tear down the mural based on religious objections. The plaintiff sued to stop them.PROCEDURAL POSTURE: Direct appellate review.ISSUES: What moral rights do artists have? Are they sufficient to prevent destruction, even when the work is owned by someone else?RULES: The Art Preservation Act gave artists the right of integrity and paternity. However, in works that are unremovable, the rights under the Act are forfeited unless specifically reserved in writing.HOLDING: The court held for the defendant.REASONING: See rules.

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D. Right of Publicity

There may be lesser protection for public officials than mere public figures.

It does not seem that the law distinguishes between manufacturers and non-manufacturers, as long as they are attempting to profit monetarily.

It seems that the wrong does not depend on mens rea, meaning that there is strict liability.

There is a parody defense. The point of the parody defense is to protect commentary, as opposed to simple exploitation.

Note that the MLK case would have come out differently in NY, since the NY statute only allows protection for living persons.

The Stephano case may would have come out differently in GA, under the precedent of Cabaniss v Hipsley (p 1005). The GA test only involves “use or advantage,” nor the stricter “trade or advertising standard” of NY.

Differences between NY and GA1) GA only allows the appropriation tort in cases applying to the living.2) GA recognizes 4 species of privacy tort: 1) unreasonable intrusion on the

seclusion of another, 2) appropriation of the name or likeness of another, 3) unreasonable publicity given to private facts, and 4) publicity unreasonably placing another in a false light before the public.

3) GA uses the more lenient “use or advantage” standard instead of the “trade or advertising” standard of NY.

4) In NY the plaintiff cannot claim a common-law right of publicity because there is a statute, whereas in GA there is no statute and the right of publicity is a common law right.

5) The NY statute does not differentiate between private individuals and public officials. The GA statute treats the right to privacy and the right to publicity differently.

6) In GA, the right is descendable, indicating that it is more similar to a property right than an injury tort.

This is not an area of the law where there is a stable, consistent pattern. Jurisdictions tend to vary a lot.

Martin Luther King Center v American Heritage Products (1000)FACTS: AHP tried getting the right to sell King busts, but the center did not consent. The company went ahead anyway, and the center sued them.PROCEDURAL POSTURE: The center sought a preliminary injunction against the sale of the busts, based on the argument that the busts violated Dr. King's right of publicity.

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The defendants contended that no such right existed. The district court denied the injunction and the plaintiffs appealed.ISSUES: Is the right to publicity recognized in Georgia as a right distinct from the right of privacy? If so, does it survive the death of its owner? Is it inheritable? Must the owner of the right have commercially exploited it before his death?RULES: Previous courts had allowed a right of publicity, in which public figures were allowed to prevent the unauthorized commercial exploitation of their names. The precedents about inheritability go both ways. Some courts said that the right of privacy survived the death of its owner, some disagreed.HOLDING: The court held in favor of the plaintiff, answering all three questions in the affirmative.REASONING: The reason for the right of publicity is to encourage effort and creativity. Saying that it cuts off at the death of the celebrity seriously diminishes its economic value. Furthermore, the trend in the common law has been to encourage survivability.

Tony Stephano v News Group Publications, Inc. (1011)FACTS: Stephano was a model, who had his picture taken in a bomber jacket for an advertisement. New York magazine then used that photo in a ‘news article’ about products and services available in the Metropolitan area.PROCEDURAL POSTURE: Stephano sued for violation of his right of publicity and for violating his civil rights by using his photograph for advertising purposes without his consent. The magazine defended itself by saying that the article was a matter of legitimate public interest, and as such did not fall under the right of publicity. The trial court issued summary judgment for the defendant, and the appellate court reversed.ISSUES:Was the article an advertisement or a news item? RULES: Under the Civil Rights Law, use of a living person’s name or image for advertising or trade purposes without their consent is a tort. HOLDING: The court held that the plaintiff could not recover.REASONING: The plaintiff had only circumstantial evidence that the article was an ‘advertisement in disguise.’ This is not enough to justify a jury trial. E. Patents

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

Three types of patent:1) Utility patents: A patent granted for one of the following types of inventions: a process, a machine, a manufacture, or a composition of matter (such as a new chemical). Utility patents are the most commonly issued patents.2) Design patents: A patent granted for a new, original, and ornamental design for an article of manufacture; a patent that protects a product's appearance or nonfunctional aspects.

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3) Plant patents: A patent granted for the invention or discovery of a new and distinct variety of asexually reproducing plant.

Rasterops sets forth the following method for determining patents:1) The inventor conceives of the complete invention.2) Conception must be proved by corroborating evidence which shows that the

inventor disclosed his complete thought to others, expressed in clear enough terms so as to enable those skilled in the art to make the invention.

3) The trier of fact must determine the date by which the invention was reduced to practice, either actually or constructively. Active reduction occurs when the inventor gets the invention to work. Constructive reduction occurs when the inventor files for a patent.

4) If the prior inventor was the first to conceive but last to reduce the invention to practice, the trier of fact must determine if he was reasonably diligent in attempting to reduce the invention to practice---beginning at a point before the later inventor conceived his intention.

5) The trier of fact must determine whether the prior inventor even abandoned, suppressed or concealed the prior invention.

Public accessibility refers not to the entire public, but to a subset of the public that is interested in the subject and knowledgable about how to research it.

In Re Cronyn (1019)FACTS: Some chemistry students at Reed wrote thesis papers which were stored in the library and indexed by the name of the author. One of their professors tried to patent the ideas in their papers, and they sued.PROCEDURAL POSTURE: The Board of Patent Appeals held that the theses were printed publications.ISSUES: What does it require in order for a paper to be published for the purposes of patent law?RULES: The statutory phrase 'printed publication' has been interpreted to mean that before the critical date the reference must have been sufficiently accessible to the public interested in the art. Dissemination and public accessibility are the keys to the legal determination whether a prior art reference was 'published.'HOLDING: The court held that the theses had not been published.REASONING: The partial indexing system made it nearly impossible for members of the concerned public to know that students had written their theses on this particular topic.DISSENT: The dissenter said that indexing was neither necessary nor sufficient for publication to have taken place.

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