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and exclude others PERSONAL PROPERTY Wild Animals • mere chasing, although hot pursuit, does not give right of possession over another who intervenes and captures animal • if animal mortally wounded or capture is certain, hunter acquires a right to possession and title which can not be defeated by another’s possession Pierson v Post (NY 1805) – interference with hunting of a fox Occupancy (deprivation of natural liberty): 1) maintaining pursuit 2) mortal wounding 3) physical taking almost inevitable Buster v Newkirk (NY 1822) – 6 mile wounded deer Uses occupancy rule of Pierson in ruling P had not sufficiently deprived deer of natural liberty to be considered occupier Keble v Hickeringill (QB 1707) Decoy pond “every man that hath a property may employ it for his pleasure and profit” Action lies b/c it imports damage to livelihood [malicious interference]. Ratione soli. Liesner v Wanie (1914) – wounded deer in a corner Instant wild animal brought under control of a person so that actual possession is practically inevitable, vested property interest accrues which cannot be divested by another’s intervening and killing it – differs from ancient law where vested interest cam at point of actual taking. “Practically inevitable” rule. Dapson v Daly (Mass 1926) unlicensed hunter Clarifies rule of Pierson. 1) court not convinced P’s initial wounding of deer = occupancy 2) unless licensed, P not entitled to rights of huntsmen. First step in proving title is proving he was licensed. Clucas v State of Alaska (1991) re: set nets and drift nets in fishing Rule: “first in time, first in right” if net is set. If net is drift, then set net = stable net against which distance is to be measured Intent to possess an area of fish established by placing of net. State of Ohio v Shaw (1902) fish stolen from nets Uses Pierson occupancy rule but expands in reference to fish Rule: to acquire property, it is enough that he has confined them within his own private enclosure where they are subjected to his use, and that he maintains reasonable precautions to prevent escape. Sollers v Sollers (1893) gathering of fish into cove 1) to complete right of property, actual appropriation must be made
2) if animal voluntarily restored to natural habitat after capture such that can only be regained in manner they were obtained, property is lost a) all water is owned by state and not have possession of fish ratione soli b) P not have possession of fish in any meaningful way • if restored to natural element so can only be regained in manner originally taken, property is lost (deals with wild animals, but can argue possession doctrine is similar) Ghen v Rich (1881) beached whale Trade usage allows to get around Pierson rule of pursuit If a fisherman does all that is possible to make the animal his own, that is sufficient. Rule depends on what it reasonably takes to secure a wild animal. North Dakota v Dickinson Cheese (1972) antipollution statute water State sues for polluted water – dead fish. Suit for damages. Rule: state can regulate how persons obtain ownership of fish but state property rights not sufficient to sustain civil action. Statute can only give penalties (no right to reimbursement for fish) Citing: Commonwealth of Penn v Agway (1967) Suit for value of fish killed as result of pollution. Exclusive remedy for states = penal provisions of statute. “Ownership theory” is a myth – state only has power to regulate and preserve exploitation of a resource. But… In re: Steuart Transp. (1980) State sues for loss of wildfowl as result of an oil spill. State can recover – right not depend on ownership, but on sovereign right to protect public interest in preserving wildlife resources. Can recover on a) public trust doctrine b) parens patriae (just not ‘ownership’) Classifying Property as Real or Personal Finders Law of Finds: finder of lost articles, even when they are found on the property of third person, is the owner against all except the true owner. • lost property: personal prop whose possession has been parted with casually, involuntarily or subconsciously • misplaced prop refers to personal property which has been intentionally placed somewhere and then unintentionally left or forgotten • abandoned prop consists of prop that is no longer in possession of the prior possessor who has intentionally relinquished, given up, or released the prop • treasure trove = coin or money concealed in the earth or another private place, with the owner unknown • Rights of a finder: a. Finder of lost prop acquires title against all but true owner. Can’t convert to personal use if reasonably able to find true owner and fail to do so. In general, finder of lost personal prop on land of another is entitled to personal prop unless he is a trespasser b. Finder of misplaced prop not entitled to retain possession of prop as against the owner of the land on which the prop found. Owner of ‘locus in quo’ bailee of goods for the true owner c. Finder of abandoned prop entitled to possession and ownership against all others. d. Treasure trove in US treated as lost property
statutes have eliminated distinction between types of lost property. Statutes can give process for gaining possession of found property.
Haslem v Lockwood (1871) gathering of manure on a public highway Manure = personal property. Rule of abandonment: possession = change nature or enhance value, plus intent to possess. Only person who could bring action would be state (but not have cause of action for interference unless had passed statute claiming power to regulate) Goddard v Winchell (1892) fallen meteorite Personal property which is affixed (embedded) to land. Action in replevin only for personal property. Language of opinion = treat as part of land, but can only rule on basis of personal property. No intent to abandon + ownership of land + no other true owner = landowner keeps possession. Acquiring Abandoned Property Eads v Brazelton (1861) sunken steamboat retrieval Lead in boat abandoned by owners. Rule: in order to establish possession, needed to place his boat over wreckage with means of raising lead (need to maintain possession – give notice to other parties, ie lance in Ghen, nets in Shaw, manure piles in Haslem). Nature of the profession – can’t just mark shipwreck and leave it indefinitely. • Columbus-American: abandonment assumes intent to abandon • Law of Finds: key to ownership = whether owner has abandoned property (either express or implied). Lapse of time and non-use by the owner can give inference of intent to abandon. • Law of Salvage: when property rescued is in marine peril, is rescued voluntarily, and the salvage successful – salvor gets a salvage award (but still has to establish possession in doing this). Court also considers due diligence and ongoing efforts. Finder’s Rights = physical taking + intent to possess • Winkfield doctrine: Bailee must account for thing bailed, and must account for that which is its equivalent and represents it. P still accountable to true owner, even if others were accountable to him in interim. Wrongdoer, having once paid full damages, has an answer to any action by true owner. • Court places premium on luck rather than industry; looks at honorable intention of the finder Lost [involuntary parting] Finder keeps Clark v Maloney – finder who gathers logs and floats them has preferable right of possession. Rule: finder of chattel not acquire absolute property, but has a right against all other. Loss of chattel does not change right of property. [this is contrary to rule in wild animal cases and well-established in chattel cases] Bridges v Hawkesworth – bank notes never in protection of shopowner – unintentionally left on floor. Rule: finder of lost property has a valid claim to the same against all the world except the true owner, and generally that the place in which it is found creates no exception to this rule. Favorite v Miller – finder trespassed and property (statue of King George) was embedded in soil. Court looks at where property was found and uses reasonable person standard to determine mental state of true owner who parted with possession. Property is embedded because it is not (a) gold or silver and (b) is buried in the ground under circumstances indicating the owner will not return. Property Owner/Employer Barker v Bates – finders were trespassing and property owner had preferable right of timber lodged in soil. (ratione soli) [no rule as to whether nontrespasser will prevail over owner of land] South Staffordsville v Sherman – property (rings) goes to employer, not finder. “Manifest intention to exercise control over [the land]” – this not established law in US cases Abandoned [voluntary relinquishment]
Elwes v Brigg – prehistoric boat embedded in property belongs to owner, not lessee Eads v Brazelton – sunken steamboat goes to finder who establishes clear possession Mislaid [intentionally placed but later forgotten] • Treasure trove is personal property that is (1) not lost or mislaid, b/c owner meant to put it where it was for safekeeping (2) money or precious metals (3) an antiquity (owner dead or long gone). Most cases give treasure trove to finder. Finder Armory v Delamirie – 2 rings found by chimney sweep apprentice belong to him (has possession against all but rightful owner) Hannah v Peel – finder gets broach from requisitioned, nonoccupied house. D never in physical possession of the house – never had prior possession of the house Property Owner/Employer McAvoy v Medina – wallet left on table at barbershop property of owner, not client who found it (true owner intentionally placed it on table). This differs from Bridges because property mislaid, not lost. Public policy argument that better to give shop owner possession in order to make it easier for true owner to reclaim it. BAILMENT Rightful possession of goods by one who is not true owner • occurs when there is delivery of personal prop to a subsequent possessor for a particular purpose with an express or implied understanding that when the purpose is completed the prop will be returned • bailee must be in possession of goods • possession = physical control plus intention to exercise that control • lease of space for use by tenant = not bailment • park and lock = no bailment; if keys surrendered to attendant who assumes control of the car, then bailment • Liability: • For sole benefit of bailor, bailee only liable for gross negligence • For sole benefit of bailee, bailee liable for even slight negligence • If for mutual benefit, bailee only liable for ordinary negligence – failure to observe ordinary care (this is predominant standard for all cases) • Can alter standard of care if not against public policy and if terms consented to by both parties • Bailee liable for conversion if wrongfully refuses to return goods or returns goods to wrong person • If goods destroyed or damaged, then liable for negligence • bailee entitled to possession of the bailed property or damages against 3rd parties who wrongfully take or damage the property. Wrongdoer cannot defeat the bailee’s claim by showing title in another with whom the wrongdoer has no connection • ordinarily, bailee cannot transfer property to another person – cannot transfer title to a 3rd person greater than the transferor has • except, if the bailee is a dealer of the kind of goods bailed and the transferee is a BFP for value, then bailee can transfer good title to a 3rd party even though transfer is wrongful Bailment is NOT: 1. bank 2. agency (agent has custody, not absolute control over item) 3. chattel mortgage (ie, contract entered into to purchase car). As long as keep up payments, can’t take away. In bailment, bailor has right to take back item whenever wishes 4. Lease (ie, U-Store It) – closer to line, but no control over your articles
A presumption of negligence is created from proof of damage to a car parked in an enclosed garage – obligation on D to prove not negligent (Allen v Hyatt) 5. then this decides case. Bailee must prove its own due care -. When bailment for reciprocal benefit of both parties. Where identity of item is concealed from the bailee. burden shifts to bailor to show this was negligence. When bailment for reciprocal benefit of both parties. once bailee shows what happened. bailee under duty to exercise “ordinary care” (Peet v Roth) 4. manual control of item – occupancy – court rules that facts show garage had control Swarth v Barneys Clothes Bailee not responsible for wallet left in car to be parked – presence of wallet neither disclosed nor reasonably expected. Bailment contract requires mutual assent by both parties. Bailee has responsibility to re-deliver full value of the goods. In park and lock cases. Even if ring was already in envelope. Expectations of the parties and the facts giving rise to this expectation are important in determining whether a bailment was created (Allen v Hyatt) 6. Bailment = active delivery and acceptance 7. still responsible for value of contents – can argue should have known something of value was in it (knew that it was going to a jeweler). Acceptance is absent when the property is not such as is usually and customarily left with a custodian in like circumstances and no disclosure of this fact is made (Swarth v Barney’s Clothes) 8.if bailee can’t show what happened. line between them too fuzzy Allen v Hyatt Regency – theft of vehicle in parking garage Ticket with limited liability clause. Burden on bailee to prove negligence did not cause the loss. Ring lost by hotel. 9. . expectations of the parties and their conduct can cause differing legal results. Facts (limited access. But if shifting burden of proof. bailee has not consented and there is no bailment (opposite of facts in Peet) 3. Peet v Roth Hotel guest gives ring to cashier to give to jeweler. bailee under duty to exercise ordinary care. Degree of Care/Negligence Slight: beneficial only to bailee Ordinary: mutually beneficial Gross: gratuitous – beneficial only to bailor • distinctions all but disregarded now. Issues: what do the facts tend to create and is that expectation clearly negated (like by a very big sign) * Pierson v Post: have to have physical. An implied contract of bailment with its component obligations arises only where a person in possession of the property of another does some act which is inconsistent with the view that he does not accept the possession which has been thrust upon him. Mutual assent can be expressed by conduct or words (Peet v Roth) 2. Liability is for negligence – ordinary person standard. Should consider “possession and control elements” in defining duty of care of a garage operator to its customers.• consequences of liability substantial depending on how you classify the transaction Applicable Rules: 1. Cashier saw the ring and therefore accepted the bailment. security guard) show that car owner had expectation of bailment situation – expectation not clearly negated. • many cases decided by burden of proof.
either actual. it is a mere promise to make a gift and unenforceable in the absence of consideration • a present gift of either a present or future interest is valid. • 4 categories • contracts • gifts [absence of consideration] • trust [1 person holds property for benefit of someone else – dispenses with problem of delivery] • will [formal document: written. complies with statute of wills] * Statute of Frauds requires real property to be transferred in writing Gifts inter Vivos • delivery should be consistent with thing being given Irons v Smallpiece – actual delivery required Verbal gift to give 2 horse. delivery. but father retains possession. GIFTS: intention. but definition of it depends on circumstances (can be actual. must be: a. intent on part of donor to make present transfer [requires ability to make gift] – can be a present gift of a future interest b. or symbolic) • delivery must divest donor of dominion and control over the property • acceptance essential (presumed if gift beneficial to the donee) • inter vivos: irrevocable transfer of prop made to the donee during the donor’s lifetime • causa mortis: made in contemplation of the donor’s imminent death. acceptance by donee – when gift of value. Higher court eventually reverses opinion. delivery and acceptance • delivery is essential. delivery of gift. If transfer is to take effect in the future. must be actual delivery) Gruen v Gruen – constructive delivery OK Letter giving painting to son. stranger messenger comes forward to reclaim it. promise to make a future gift is unenforceable . but retaining life estate. or there must be actual delivery of the thing to the donee (even if intention clear. there must be a deed or instrument of gift (not just letter of intent to give). sufficient to divest owner of dominion and control over the property – sufficiency of delivery “must be tailored to suit circumstances of the case” c. Rule: To make a valid inter vivos gift. Revocable at any point before donor dies. constructive. acceptance • present transfer of an interest in property. Rule: in order to transfer property by gift. Gift not have to be entire interest in the property • gift of property during donor’s lifetime is valid only if there was intent. witnessed.Cowen v Pressprich When agent discovers messenger delivered wrong bond. acceptance presumed [ignorance of gift not impediment to acceptance] • proponent of gift has burden to prove each element • absence consideration. constructive or symbolic. Court holds for P – exercised dominion over thing and thus had duty to return it only to P. stating that D had not consented to accept the bond and tried to redeliver it in good faith – all that is required of them since they had no duty of care.
not beyond power of donor’s revocation. Checks not cashed until after his death. has a right to retain that possession against a mere wrongdoer who is a stranger to the property [a thief cannot steal from a thief] – wrongdoer cannot claim as a defense that there is title in a 3rd party Russell v Hill Possession gives only a presumption of title.Test = whether the donor intended to the gift to have no effect until after the maker’s death. possession of property must be delivered at time of death and donee must accept gift • burden on donee to establish by clear and convincing evidence Here. UNAUTHORIZED POSSESSION AND BONA FIDE PURCHASERS • no person may transfer a better title to chattel than she has • UCC: • a purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased Voidable title: A gives silver to B. or by mere tort. gift must be made while donor under apprehension of imminent death. plaintiff must show title and possession. D sells to another person. plaintiffs possession must have been lawful against the person as against the person who deprived him of it – possession is good title against all the world except those having a better title. title yours immediately (like a debt) • loan: title remains in lender. Rule: a. P = BFP. gift must be personal property c. B sells to P. B to pay A soon. not valid gift – was just nonenforceable promise to make gift. or whether intended to transfer it to some present interest Gifts Causa Mortis Woo v Smart – gift not made until it is irrevocable Decedent gives 3 checks to life partner before his death. not just the value of it. transfer of check does not operate as assignment of money on deposit – until check cashed. . Thus. but can’t get actual silver back. B had voidable title and full power of transfer. and not revoked in meantime d. intent to make gift b. • One who has acquired the possession of property whether by finding. or a present right of possession” Porter v Wertz P loans painting to D (with possibility of purchase). possession in lendee Court holds that purchasers did not do so in good faith (under UCC. A can still sue B for fraud.] • when decide to buy something but pay later. D not “merchant who deals in goods of that kind” and purchasers did not inquire as to rightful ownership of the painting) and that P can get the painting back. Opposite rule from Anderson – “to maintain trover. • any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in the ordinary course of business Anderson v Gouldberg Rule: • to maintain replevin. [Nemo dat quod non habit – no man giveth that which he hath not. bailment. P has full title. unknowing to P and without every paying P.
Chapin v Freeland – Holmes opinion Action of replevin for 2 counters. real or constructive annexation of the article in question to the realty b. length of time chattels attached to realty b. whether the chattels are essential to the purpose for which realty used c. the law of adverse possession required that stolen animals be held “openly and notoriously” in vicinity of the theft 3) for other types of residential property. Default rule which can be changed by specification. Rule: when the statute would bar a direct proceeding by the original owner. If you buy from a person against whom a remedy is barred. which by becoming annexed to soil or equivalent. • Three Part Fixture Test: a. Ownership rights of a gated irrigation pipe repossessed by bank after farm foreclosure • Law of Fixtures: chattel. cannot be removed during duration if lease. appropriation or adaptation to the use or purpose of that part of the realty with which it is connected c. When a fixture is attached to leased property by the lessor. Strong presumption that trade fixtures installed by lessee remain the lessee’s property.* case shows that a BFP of personal property may transfer property to another who can then defeat the right of its true owner – BFP may transfer more rights than they acquire. then statute not run • “title which will not sustain a cause of action will not sustain a plea”: since D could not have recovered counters by a cause of action. the remedy is also barred against you. he cannot defend his retaking through a cause of action • Statute of Limitations: generally. then the owner cannot retake possession by other means. courts look to what is externally obvious in deciding when S/L begins to run. • Mortgage: private office shuffling of paper • Foreclosure: public change of ownership which ‘should’ be obvious to person who has interest in the property Law of Fixtures Wyoming State Farm v Farm Credit Sys. some courts required use “as openly as an ordinary owner would” • fraudulent concealment: if person liable to personal action fraudulently conceals the cause of action from person he is liable to. the intention of the party making the annexation to make the article a permanent accession of the freehold [sufficient objective intent – looks at actions to determine intent] Lehman v Keller A fixture is an article…of personal property which has been so annexed to the realty that it is regarded as part and parcel of the land. whether the parties to the lease treated the chattels as part of the leasehold estate . • chattels not physically attached to realty are always personalty • chattels which are annexed to realty in such a way as they cannot be removed without materially damaging either the chattel or the realty are always fixtures • chattels physically connected to the realty that can be removed = question (answered by looking at the objective intent of the owner) Test: a. General rule for adverse possession of personal property: 1) action accrues when the P discovers the injury by D 2) when applied to personal property. becomes part of real property for most purposes.
LAW OF NEIGHBORS ADVERSE POSSESSION • in order to constitute possession. not have to invoke disability – longer time prevails • future interests: If X starts to adversely possesses A’s life estate and A dies. X would not gain possession until 20 years after B got the remainder. then B’s remainder extinguished – X would have possession • jurisdictions differ as to how treat disabilities under statute • doctrine of tacking: period of one adverse possessor can be tacked to the period of another adverse possessor if possession in privity with each other • privity: successor party must succeed to same interest (no privity if interruption) • thus. under age. Thus. However. Former possessor can only transfer that which he has Fleming v Griswold Court rules that statutory exceptions for statute of limitation (married. possession throughout the statutory period must be: 1) actual 2) open visible and notorious 3) exclusive 4) continuous and peaceable (unbroken continuity of possession for the statutory period) 5) hostile [and under claim of right] • color of title: paper or instrument that does not qualify as an effective legal conveyance but that the claimant may believe is effective) • relation back doctrine: once S/L run. then S/L starts again when estate changes hands. or insane) not change law of S/L for adverse possession. adverse possessor’s title treated as though it had existed from moment possession began. if S/L ran during A’s life estate. most states extend the time to bring a cause of action beyond the removal of the disability In order to acquire title to real prop by adverse possession. lien goes with the property. if A starts to adversely possess and B ousts him as another adverse possessor. if a lien is on the property being adversely possessed. Acts must be consistent with how a reasonable owner of similar land might have used it • cannot acquire greater title than the person who had the cause of action during the period of possession • title relates back to the time of the possessor’s entry when the true owner’s cause of action accrued • title is an original title – adverse possessor takes title and possession free of all claims which could have been asserted against the former owner during the statutory period • if the true owner is under a disability at the time the cause of action against the adverse possessor accrues. Holder of record title has no claim to damages to the land during the period of adverse possession. B not get to claim A’s years against S/L Anderson v Cold Spring Tungsten .• what “title” a person has in mortgaged property depends on how the jurisdiction classifies mortgage – lien or title. • when S/L gives longer time than disability exception. Disability of Fleming (married) not stop S/L because had already begun to run when land conveyed to her. But. acts of dominion and control must reasonably correspond to the size and condition of land.
Intention must be distinct. improvements not establish title be themselves. Hostile does not require violence or any actual dispute as to ownership between adverse possessor and owner. with or without title showing that all property is actually yours ** Court attacking adverse possession on basis of wilderness.Rule: a showing of force or actual dispute not necessary to constitute hostile entry. those who do not pay taxes on the property claiming to adversely possess cannot claim title to it. Can only claim title to that property on which taxes are paid and deed is recorded (color of title) • color of title = entry under a deed where deed seems to give you more than you actually own • claim of right = belief property is yours. possession must be hostile and adverse. lack of fence can limit amount of land can claim. If possession is in subordination to the rights of true owner. payment of taxes not important Dillaha v Temple • avulsion: river moves suddenly – rights of land owners do not change • accretion: gradual accreting of property on one side of river or another – property owners lose rights they once had to land Rule: in order to acquire title by adverse possession. right is incidental to ownership – not depend on words of conveyance • liability in strict sense – exists although no subsidence is intended or foreseeable . not necessary that all use of property from public be prevented (ok to allow picnicking) Hostility Test: declaration of parties and reasonable deductions from the facts Reasonability test: did the adverse possessor exercise all control that could be expected in view of the character of the land? • Taxes: unless required by statute. cannot acquire gov’t land by adverse possession Meyer v Law Rule: By statute. Lateral Support: right to have land supported by the adjoining land or soil beneath it. others see it as indicative of lack of hostility (ie Dillaha) • except where permitted by statute. can adversely possess a vacation home by being the only people to vacation there for 20 years). then S/L does not run. payment of taxes. • In order for possession to be exclusive. • possession presumed subservient to true owner • offer to purchase land in dispute can go either way – some courts see as legitimate effort to quiet title. Hostility – arises from intention of adverse possessor to claim exclusive ownership of property. • Actual occupancy means ordinary use to which the land is capable and such as the owner would make of it. more restrictive policy for adverse possession Policy reasons for adverse possession: (1) bar stale claims (2) law for the have-nots (3) keep the peace (4) promotion of efficiency – awards party that values it most (5) taming the wilderness – encourages use of land (6) personality theory – personhood becomes bound up with object over time RIGHTS OF LATERAL AND SUBJACENT SUPPORT A. not require visible encroachments and improvements to every bit of land (thus. adjoining land owner has duty to not change his land (ie lowering it) so as to cause this support to be weakened or removed. Intention is controlling factor. clear and unequivocal. Occupancy. public policy. • not need to fence property to claim hostile intent.
natural condition is insufficient and the land slips.courts allow to excavate property. If the support for land in its raw. Contrasts with acts of god. he owns also to the sky and to the depths” • title to subsurface and airspace can be severed from the property Murphy v Bolger Neighbor with protruding barn roof over adjoining property must remove it. liable for damages to buildings if land would have fallen regardless of presence of buildings [natural state: what is or may foreseeably be on land] • Land With Buildings B. • gov’t has taken an easement – owners only entitled to damages. where excavator did not provide artificial support to replace natural support removed). • Adverse possessor probably liable for damages. US v Causby Rule: flights over private land are not a taking unless they are so law and frequent as to be direct and immediate interference with the enjoyment and use of the land. Airspace “to whomever the soil belongs. But. but probably not have right to damages (though this is questionable) AIR AND LIGHT A. not matter how careful might have excavated – right of support absolute • natural state = land as is. not ejectment • dissent: doctrine of sovereign immunity: gov’t can’t be sued except on terms sovereign itself defines – have to consent to be sued • landowner owns at least as much of airspace above ground as he can use in connection with land – unclear what boundaries are to this rule . Statutes can require giving reasonable notice of excavation to take measure to protect land. subsequent owners of land have duty to uphold what is already on land. Subjacent Support: support that the surface of the land receives from the underlying strata • only have to support land in its natural state • strictly liable for injury. not ability to support future buildings = what parties expect ordinarily at time of severance • Land Without Buildings • removal of either results in strict liability: but only to land in its natural state – if land in its natural state could support the buildings. Island Creek Coal v Rodgers Strict liability for operations directly below land Negligence for operations nearby. but must do so in non-negligent way. but not directly under land which is damages • owner or possessor not liable for withdrawal of lateral support unless he is the one who withdraws support (ie. then owner can recover for injuries to both land and structures • negligence: statutes change normal SL rule -. the adjacent landowner is liable for both the damages to the land and the damages to any buildings that are on land. provides for direct protection when excavation lower than normal… Noone v Price Rule: an adjacent landowner has an obligation only to support his neighbors property in its raw or natural condition. give damages when fail to give notice.• liable for natural state of land.
even though the idiosyncrasies of the particular P may make it unendurable to him NUISANCE • protects property owner’s right to use and enjoyment of property – can be infringed without a physical intrusion – right not absolute – must prove damages • nuisance per se: act or thing that is nuisance whenever it occurs (ie toxic waste) • nuisance per accidens (nuisance in fact): lawful activity that constitutes nuisance only because of where or when it takes place (hog farm in a city) • Nuisance Factors (1) balancing process – weigh reasonability of neighbor’s conduct against harm to you (what it utility of act to him?) (2) define “unreasonable conduct”: circumstances. and regardless of fact it might have been erected partly from spite [ok as long as structure has economic utility] Doctrine of ancient lights : ability to have scenic view enhances property value – eco asset • court here reject doctrine. If normal persons in that locality would not be substantially annoyed or disturbed by the situation. • rights of neighboring land are relative – court will not say that one person’s right to build on land superior to neighbor’s right to access to sunlight • court prefers to view case as one of nuisance rather than apply Fountainebleau rule of no right to sunlight from adjoining land – holds that P has a cause of action for nuisance and remands • But dissent takes alternate view (solar energy = idiosyncratic): • Nuisance: liable for nuisance only to those to whom it causes significant harm. not abatement Fountainebleau v Forty-Five Rule: more limited than Sundowner – one must use his property in such a way as to not injure the lawful rights of another – use cannot be a nuisance • no right to free flow of air and light from adjoining land • if a structure serves a useful purpose. fit & appropriate. it does not give rise to action for damages or injunction even if structure might cause injury to another.• more narrow rule than in Murphy – can only object to intrusion if harms you in some way or takes part of the airspace that you need for your purposes B. unnecessary for accomplishing end (degree of care used by defendant important) (3) need nexus between injury suffered and land itself . not excessive. Rights in Air and Light Sundowner v King – spite fence Sunlight as a natural right Rule: no property owner has the right to erect and maintain an otherwise useless structure for the sole purpose of injuring his neighbor – “so use your property as to not injure anothers” • rule applicable only to structures which serve no useful purpose and are erected for sole purpose of injuring adjoining property owners • statutory changes: • codify common law. obstructing view is not a nuisance. add arbitrary height limit • remedy: action to recover damages. of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose. Prah v Maretti House built on adjoining land blocks sunlight to house with solar panels. then the invasion is not a significant one.
element of priority – last appropriated right is first to be terminated in event of a water shortage B. water appropriated must be put to actual and beneficial use (more than purely economic determination) e. context d.• Checklist for Behavior a. person must establish that he or she is the first to appropriate the water c. RIPARIAN AND LITTORAL RIGHTS A. In calculating damages. malice • “Coming to the Nuisance” Doctrine: cannot complain something a nuisance when person entered property knowing a nuisance – have to take premises in way you find them • priority of possession – important who was there first • Causation: was D responsible for all of harm? • Special sensibilities of P • Analogize cases by nature of conduct which has previously been found a nuisance • Think of remedy: injunction or damages • Annoyance and inconvenience not necessarily grounds for nuisance action Bove v Donner-Hanna Coke P cannot recover for smoke and soot of adjoining factory because P bought land knowing it was industrial area – area is zoned industrial and actions of factory are not nuisance per se or because of the nature of their operations. and must interfere with the physical comfort of the ordinary reasonable person Test: a. Appropriation doctrine: government agency apportions water to contesting claimants – not limited to riparian landowners 1) Doctrine of prior appropriation: “first in time. Riparian rights can’t be separated from the land – water is not an object of commerce (can’t sell your water to neighbor). even if acts themselves lawful. and this right was considered an incident to ownership of land.S. • principle of sharing: everyone along water has to share in consequences of drought – must make adjustment for reciprocal rights 1) natural flow theory: riparian owner can take water for domestic purposes only – entitled to have water in stream or lake at the normal level . Maliciousness can increase award. Provides for use of water beyond riparian parcel. qualified person must acquire the right (includes legal entities) b. utility b. Sum total of acts = important. Has P suffered substantial harm? b. appropriation statutes and cases define what waters and water courses are subject to doctrine d. Is D’s conduct unreasonable? Griffin v Northridge – really obnoxious neighbors Court allows recovery for repeated acts of neighbors – acts done with sheer malicious intent. slight or theoretical. can consider sentimental and aesthetic value of house. Rule: Inconvenience cannot be fanciful. but certain and substantial. suitability for purpose c. Riparian Doctrine: based on common law which gave the owner of land bordering on streams the right to use the water therefrom for certain purposes. Has 5 elements: a. first in right” – allocates rights of water in western U.
below. • buyers remorse/sellers remorse: if buyer has remorse. willing and able” to buy. the broker earns his commission when (a) he produces a purchaser ready. or on opposite shore. or correlative. Broker must produce a customer ready. purchaser enters into binding contract. Use of water by each owner limited to what is reasonable. Investigates title and property. If contract not consummated because of lack of financial ability of the buyer to perform or because of any other default of his… there is no right to commission against the seller. If transaction fail because of fault of seller. seller has right to enforce a contract signed and require specific performance • problem with test = depends of fault – complex to figure out who is at fault when sale not completed RULE: When a broker is engaged by an owner of property to find a purchaser for it. willing and able to buy. prepares financing – obligation to purchase conditioned on success of these investigations. Statute of Frauds Requires that contracts for sale of lands be in writing. having regard for rights of others above. the legal description of the property. If the failure of completion of the contract results from the wrongful act or interference of the seller. preventing person from fabricating contract where none exists = either Statute cannot be used to effect a fraud or it is an evidentiary device • Doctrine of Part Performance: when buyer pays consideration for land and takes possession of it or improves it. Broker’s Contracts • traditional view: broker earns commission when produces a buyer “ready. broker still has valid claim for commission. and the consideration (essential terms) OR (2) include all the material terms of the transaction • prevention of fraud. willing and able to buy on the terms fixed by the owner (b) the purchaser enters into a binding contract with the owner to do so (c) purchaser completes the transaction by closing the title in accordance with the provisions of the contract. Original English statute: “no action shall be brought upon any contract for the sale of lands or any interest in them…unless the agreement upon which such action is bought…shall be in writing and signed by the party to be charged” • writing requirement (1) specify the parties to the transaction. or improvements to land Cash v Maddox – formalistic treatment of S of F – most courts more lenient in allowing reform by parol . Sale need not be consummated • minority view. but more recent trend: earns commission when produces buyer who is “ready willing and able”. SALE OF LAND * executory period: time between signing of K and closing. purchaser completes the transaction. Rights are mutual. Tristam’s Landing v Wait Brokerage commission dependent on actual sale of land.2) reasonable use theory: no reason for maintaining water at normal level when water can be beneficially used without causing unreasonable damage to other riparian owners. those actions constitute an adequate substitute for a writing – payment alone is never sufficient to satisfy doctrine – most courts also require possession. Court arguably overturns common law rule that sale not have to finish before agent can get commission. common. the brokers claim is valid and must be paid.
* writings must establish essential terms of the contract without resort to parol – land must be described to indicate with reasonable certainty land to be conveyed (degree of certainty required depends on subject matter of the K) – parol cannot be used to supplement a vague and uncertain description -. Time of Performance . building improvements. Non disclosure not invalidate sale. primarily the right to the purchase price and to impose a security interest on the legal title to enforce the payment of the purchase money • If vendor dies. if activity in house). Limited rule of case: where contract places the risk of loss on the vendor and insubstantial damage to the property occurs without the fault of either party. known to seller. and vendor continues to receive rents. then contract can be nullified • Insurance: if vendor holds insurance. Doctrine of Equitable Conversion and Risk of Loss • doctrine treats interests in land as if the land had already been converted into personal property. not reasonably discoverable by tenant – law in area unsettled as to what has to be disclosed (haunted = yes. “As is” provisions not uniformly interpreted by courts as negating warranty of habitability. seller has personal property interest • Vendor Purchaser and Risk Act (1) no transfer of possession (2) were there contractual provisions as to risk (question left for court to decide if parties had contracted around risk) (3) material part destroyed • if met. etc until transfer of deed • unless contract provides otherwise. right to receive land goes to heir but duty to purchase goes to representative of estate • Traditional view: risk of loss on vendee for losses occurring without the fault of either party • Minority view: risk on vendor – but Uniform Acts place risk of loss on one in possession • Obligation to pay taxes usually on one in possession. unsatisfied conditions delay the applicability of equitable conversion Bryant v Willison Real Estate Shows how courts will interpret contracts re: assumption of risk. buyer has equitable interest and seller holds legal title in trust for buyer. Disclosures about Property Seller must disclose material defect in the property. and the vendor is regarded as the beneficial owner of personal property. cellar floods = not necessarily. delivery of possession.court will not decree specific performance unless writing contains essential terms Partial Performance • diversity among the states as to what constitutes part performance such that contract will be enforced in equity: payment of all or part consideration. but vendor or agent is liable for damages. • Applies when there is an enforceable obligation to sell land • Purchaser is regarded as owner of the land for many purposes. purchaser may recover his down payment where the vendor refuses to repair the damage or give an abatement in price. Most states require a combination of at least two of these. Buyer has real property interest. interest descends as personal property – heir gets only a bare legal title which he must convey to purchaser when purchaser performs • If purchaser dies. previous owners criminal = yes. vendor holds proceeds of insurance policy in constructive trust for purchaser (but he can take out premium payments that he’s paid) • in some jurisdictions.
marketable title provision is violated.• • • where time is not of essence. and free of risk of litigation”. P brings action against lawyer for letting them believe title was marketable. but parties can waive that provision later if wanted unless specify time of the essence. even if no suit to quiet title (as long as possession is clear) • however. sues for negligence. court will allow a reasonable time can make time of essence by providing for it in contract. • vendor required to deliver marketable title at closing – purchaser cannot rescind before closing • can require vendor to provide abstract of title showing marketability • Can become unmarketable: • If vendor had title but lost it in an action or proceeding • If vendor never acquired title because of flaw in chain of title • Encumbrance on the title (lien or other nonpossessory interest or a nonfreehold possessory interest – affects use or possession of the land). and the purchaser cannot be compelled to purchase the property. . but then fails because of some action voluntarily undertaken by the buyer. court tries to allow flexibility Express “Subject to Financing” Contract Terms • purchaser conditions obligation to purchase on ability to obtain loan – delays enforceability of contract until condition met • Equitable conversion only applies if contract is specifically enforceable • condition precedent: contract only enforceable after financing happens (no contract until condition met • condition subsequent: contract in effect unless condition not met later (present obligation which can be undone) Bruyere v Jade Realty Divorcing P not entitled to return of down payment (in theory. Where the condition precedent of financing is first satisfied. Definitions involve probability that claim will be made against owner. should obtain affidavits documenting facts of adverse possession and should keep track of vendor’s whereabouts Trimboli v Kinkel Lawyer not mention flaw in chain of title. risk of the failure of the transaction is placed upon the party who so acts Marketable Title • a title not likely to result in litigation – “reasonably free of encumbrances and other title defects. court will read into contract permission to extend contract length – because so many things can go wrong. could have been liable for SP) Rule: intent of the financing clause is to protect the buyer from involuntary breach. Zoning ordinance not encumbrance unless it materially affects the next sale of the property. Court holds that lawyer was negligent and allows P to recover reliance damages (fruitless contract of resale). • can contract around marketable title • some courts allow rescission if the purchaser discovers that vendor knew of unmarketability of title at time of contract (tortious misrepresentation) • quitclaim deed not waive marketable title covenant • Marketable title “of record”: each link in chain of title documented in public records and given to vendee by vendor before sale complete Breaks in Chain of Title • adverse possession is marketable. If any significant question exists concerning the seller’s title to land.
not just the land as described initially. courts divided on whether rescission is an equitable remedy II. then not look at contract anymore. date of contract 3. c. observation of property and lack of statement of price per acre). property forfeited). Info-forcing rule to force parties to state exact terms of sale of deed at closing. this bad faith provides damages measured by the lost benefit of the bargain (increased costs in the second transaction are recoverable) c. contract must be legally binding and damages must be inadequate remedy. Specific performance is an equitable remedy – court has discretion in giving or denying Rescission a. a variation in acreage from what the parties had contemplated is not grounds for rescission or other relief. duress b. but not to sellers b. which can be reduced by any amounts recoupable when property is later resold. Damages a.76 acre. undue influence. Sale was made “in gross” and variation from that listed was not material – title could easily be fixed by employing a surveyor. Rule for Sale in Gross: generally. If contract to sell 1 acre and only convey . If want just equitable relief. measured on the day of the breach. Includes non-defaulting party’s reasonable out-of-pocket costs. mistake must be material – so substantial and fundamental as to defeat the object of the parties Rule for Mistake Relief: equity will provide a remedy when by mutual mistake the land contains materially more or less acreage than the parties believed. if diligently attempted to do so Specific Performance a. CONTRACT REMEDIES I. grounds for rescission: mutual mistake of fact.Quantity of Acreage Disputes Turner v Ferrin Contract for deed (here. Assumes that defaulting party was not a vendor intentionally misrepresenting facts b. nominal: traditional measure. intentional misrepresentation. surprise. would have had the amount of property listed on the deed. Once deed conveyed. fraud. Promise to convey 1 acre is subsumed into the deed. duress. not on the contract. consideration of his obligation fails in whole or in part Definition of Mistake: unintentional act or omission arising from ignorance. A slight disparity will justify equitable relief if the sale is by the acre. III. remedy is on the deed. need to consider whether variation material. date of purchaser’s breach (majority of states) 2. or misplaced confidence. If vendor gives total misrepresentation of ownership. If Turners had paid full price for the property. down payment and then monthly payments – like installment contract – if don’t make payments. through the fault of the party as to whom he rescinds. but if the sale is in gross a great disparity must exist to authorize relief Merger By Deed Contractual promises merge into deed and disappear. . Grounds for Rescission: Rescission allowed (1) if the consent of the party was given by mistake or obtained through fraud. or undue influence (2) if. Three dates for determining vendor’s damages when land values are falling 1. courts traditionally grant to purchasers. Court says 50% or more is material discrepancy. failure of consideration. Lump sum price – presumption of sale in gross (also. in order to grant. In majority of states. seller can keep down payment of a defaulting purchaser d. date vendor resells property . [does allow promises to be put into deed] Can contract around this expressly.
when deed is delivered – S/L begins to run even if grantee unaware of breach: • seisin: grantor owns the title that the deed purports to convey • right to convey: generally. Can only recover full damages once.gives possession under claim of freehold estate. not need to do this) Deed Covenants for Title 1. Transfers whatever interest grantor has in property. could never be suspended – someone must always be seised who could discharge feudal obligations (land descends to heir of last person seised). Historically. same as seisin: grantor owns the estate deed conveys. Parties often go to court to get this to force other party to giver back all that they’ve received as well IV. Special Warranty (limited warranty): most common limitation is that has all covenants. Remedy is against immediate grantor. • Covenants look good on paper. actually or constructively • further assurances: not used much in US – undertaking on part of grantor to do such further acts as necessary to perfect grantee’s title – requires grantor to execute any document or take such action as necessary to perfect grantee’s interest in property • more than one remote grantee may enforce a covenant that runs with the land against the original grantor • damages must be shown in order to get recovery (covenants of indemnity) • generally. Assertion of rights must rise to level of constructive eviction. Quitclaim: no title covenants.c. 1535: Statute of Uses: made other modes of alienation legal that didn’t require ceremony 1677: Statute of Frauds even after this passed. Lack of title important. can’t claim damages over price of land plus interest. • general warranty: same legal effect as quiet enjoyment: defend grantee against all lawful claims of the grantor or 3rd persons who would evict the grantee. though this differs from seisin because having current possession of property not important – holding title with right to convey is enough • against encumbrances: guarantee that property conveyed is not subject to outstanding rights or interests that would diminish value of the land (existence of zoning law does not breach. Equitable lien of both vendor and purchaser LAND TRANSFERS Livery of seisin: symbolic delivery of land -. person seeking rescission must offer to restore all that he received under the contract (“tender back” requirement). but is limited to grantor’s period of ownership – grantor hasn’t created any encumbrances 3. but case law shows not much recovery under them 2. if any • most common form • does make a difference in outcome (estoppel by deed) . but a violation of the law is a breach). writing did not transfer the property – still technically needed livery of seisin until Real Property Act of 1845 Statute of Enrollments: purpose was to prevent clandestine conveyances – made a deed of bargain and sale of a freehold interest void unless within six months it was enrolled in a court of record (once Real Property Act passed. General Warranty (provides most protection) • Present covenants: breached. • future covenants: breach after deed is delivered (run with the land) – not breached until an ‘eviction’ has occurred • quiet enjoyment: protects against outstanding interests in land when the adverse interest holder asserts his rights in the land. Can sue original grantor but adverse interest holder must assert right and must be constructive eviction. if at all.
max recovery is purchase price. Proffitt v Isley – rule used here changed by many states by statute or judicial decision Rule: unless evicted. • Implied covenants of title in a statutory warranty deed: more limited than a general warranty deed. his silence is equivalent to a false representation • voidable title: title is not a nullity until person being defrauded raises objection – w/out suit. can only sue for nominal damages – can’t recover for mere existence of encumbrance. and back up the chain of title. must be an ouster. Remedy is against the immediate grantor. Are a covenant only against acts done or suffered by the grantor and his heirs – do not include defects to title anterior to immediate grantor. cancellation of deed proper remedy if the promise of support was fraudulently made with no intention to carry it out at the time of its execution. . Constructive eviction: assertion of rights. unless evicted for it. begin excavating coal) before have an action. and grantee seeks recovery from immediate grantor. • when a covenant of title runs with the land. become liable upon a breach of the covenant of to the grantee in possession or entitled to possession at the time – person in possession can sue the original or remote grantor.Anderson v Anderson Court finds that cancellation of deed proper where consideration was a promise which grantee did not intend to fulfill. back to and including the original grantorcovenantor. Paul Title Insurance v Owens Damages: when complete failure of title. regardless of whether he has taken from the immediate grantor with a warranty. Promise or obligation of the grantee will be construed as a covenant unless an intention to create a conditional estate is clearly and unequivocally revealed by language of instrument Covenant: breach = damages Condition subsequent: failure = forfeiture Rule: mere failure of consideration is not sufficient ground for forfeiture of property. Measure of damages for breach of covenant against incumbrances = amount necessary to remove the incumbrance. not a clear rule. Covenant is a choses in action. such as causes of action for a breach of covenant (since they are choses in action. • most courts changed this rule and have made a breach of present covenant assignable • can ask for a bill of sale conveying any causes of action relating to the property. not assignable at common law. Knowledge of the paramount title holder not enough – person has to actually come upon land (here. However. • An outstanding title which could be asserted in a judicial proceeding against the party in possession is equivalent to an eviction. Law dislikes forfeiture if just covenant – damages can better assess what real harm to parties has been (as opposed to complete loss of property). Must pay off encumbrance before can sue for damages. Rule: Covenant of warranty or quiet enjoyment is breached only when there is an actual or constructive eviction of the covenantee by the paramount titleholder – mere want of title not enough. With remote grantor. grantee has title and can give voidable title to another Brown v Lober 1/3 interest in subsurface coal rights. all grantors. and therefore personal property giving rise to cause of action for damages) St. who can then sue his grantor. Actual eviction: disturbs possession. • where the particular circumstances impose on a person a duty to speak and he deliberately remains silent.
subject to different laws 5. Attorneys Fees: generally recoverable for a breach of deed covenant. pass to the grantee • grantor who gives a deed warranting the title is estopped from later denying that title passed to the grantee • normally not apply when grantor gives a quitclaim deed. present v future conveyance 2. Metes and Bounds • describes each boundary line of the property by a series of “calls” which consist of the distance and direction of travel (“bearing”) of each boundary. but only if incurred while defending the title. Also not recoverable if grantee successfully defends title and shows that adverse claimant has no interest in the property. • Doctrine of merger: once purchaser accepts a deed to the property. • Starts with a “point of beginning” • Descriptions are best prepared from a survey of the property that describes the length of each boundary line and its bearing in relation to the points of a compass C. unless makes express representations that the quitclaim is in fact conveying title LEGAL DESCRIPTIONS • transposed numbers. the title representations in contract are unenforceable. Deeds only under S of F – lessor degree of formality required Estoppel by Deed/ Doctrine of After-Acquired Title • doctrine by which a person executes a deed purporting to convey an estate which she does not have or which is larger than she has. but not good for describing irregularly shaped or small lots. will must be probated to be effective – deed is effective between parties even if not recorded 4. will = gratuitous – no consideration 3. livery of seisin required for delivery of deed but not of will 6. at common law. statutory formalities : lots for Wills. ie residential subdivisions B. Objective standard: look to benefit of title owner. missing info. Differences between Will and Deed 1. Shouldn’t close the sale until all questions about title have been resolved or provide in the closing documents that the doctrine of merger will not apply.• • • “Betterment Acts” or “Innocent Improver Acts” if improvement on land made in good faith (you think you’re the owner and have a right to do something on property). but by apparent defects – even if later proven to have no effect on title. and such a person at a later date acquires such estate in that land. then the subsequently acquired estate will. then can recover value of improvement (usually in form of a lien on the property when resold). etc in legal description can render title unmarketable • no particular form of description required as long as accurate – deed can incorporate other documents of description • street addresses alone are not legally sufficient A. Marketable title gives more protection than covenants – marketable standard is violated not just by actual defects. by estoppel. Recorded Subdivision Plat . Government Survey System/ Rectangular Survey system • uses east-west/north-south lines to subdivide land – land divided into townships (36 square miles) which is then further subdivided into 36 sections which can also be divided fractionally • works well for dividing large farmland.
A description in a deed includes the appurtenances (That which belongs to something else. useless or contradictory words may be disregarded as mere surplussage (but problem is deciding what language is surplussage) 6. most lead you to intent of parties. the latter prevails (not so likely to happen now with modern short form deeds). 7. Before land subdivided. one ambiguous and one clear. Common law rules apply when controversy not governed by recording act • when statute fails. . • clear possession of the property gives notice – statute applies when possession not apparent • Big question: what would C find when constructing the chain of title? [difference between tract index and grantor-grantee in outcome] • Statutes apply to sale or mortgage. or orchard. particular descriptions control over general descriptions. construction prevails which is most favorable to grantee (presumption that grantor drafted deed and any ambiguity is his mistake) 2. Specific language controls general language. extrinsic evidence will be allowed to explain a latent ambiguity but a patent ambiguity (can see ambiguity on face of deed) must be resolved within 4 corners of the deed 4. but not to easements (only to purchasers) A. then grantee is as well. monuments control distance and courses. and quantity is the least reliable of all (used in prioritizing a metes and bounds description) 5. courses control distances. first in time = first in right. 3.• landowner must submit map of property showing proposed boundary lines of the new parcels. and anything else required by subdivision regulations. if an exception to a deed is erroneously described. the boundary line extends to the center. when a tract of land is bound by a monument which has width (such as highway or stream). provided the grantor owns that far. if B conveys to C. insufficient in itself. Recording Acts • Notice: unrecorded conveyance or other instrument is invalid against a subsequent BFP for value and without notice. then C can still get protection from the statute. even if they wouldn’t meet requirements (ie notice) • consideration important – if B takes property without notice but pays no consideration (ie thru a will). But. must be approved by local zoning and other relevant departments. unless the deed manifests an intention to the contrary 10. to a house) to the tract even though they are not specifically mentioned in the deed • many of these overlap • but. barn. False descriptions can be disregarded. Something annexed to another thing more worthy as principal. proposed location of any new streets and easements. an outhouse. whether or not subsequent BFP records. the conveyance is good for the whole tract and title to all of the land passes (canon sustains the larger grant at the expense of the grantor who made the mistake in describing the exception) 9. then C prevails. If grantor shielded by the recording act. and which passes as incident to it. an adjunct. even though B couldn’t prevail against A. a BFP for value without notice takes priority over a former equitable interest. Priority determined upon status at the time he acquires deed or mortgage. although a false particular may be disregarded to give effect to a true general description. common law prevails • “Shelter doctrine”: important component of ownership is ability to transfer. may be made certain through incorporation by reference 8. which is what court is primarily interested in Priorities and Recording • at common law. If C looks at the index and sees only a devise to B and no prior conveyance to A. a description. Canons of Construction of Land Descriptions 1. However. then statute not apply to him. an appendage. garden. as a right of way or other easement to land. Law seeks to sustain deed rather than upset it. if deed contains 2 descriptions.
then others are charged with notice of the interest of the possessor • recording acts protect purchasers with quit claims • mortgagee is protected as long as meet requirements of BFP status To qualify as BFP. B. Bone Fide Purchaser • to be a BFP with protection under recording act. must not have had notice of the conflicting claim when it acquired its interest in the property • actual • constructive: charged with notice by statute or rule of law. all future purchasers have constructive knowledge • inquiry: follows from the duty of a purchaser when he has actual or constructive knowledge of facts which would lead a prudent person to suspect that another person might have an interest in the property. • Race-Notice: an unrecorded conveyance or other instrument is invalid against a subsequent BFP for value without notice who first records. since she will prevail if record first. First to record wins. must • be subsequent • pay value (more than nominal consideration) • be without notice (value paid before notice) • be of good faith • one who takes a mortgage to secure a pre-existing debt without further consideration is not a purchaser for value • cases are divided as to whether one who takes an absolute conveyance of land in satisfaction of an antecedent debt is a purchaser for value • if a person is in possession of land. Notice is implied by law and not dependent on actual notice from which knowledge of an unrecorded instrument would be implied. Priority determined by who wins race to recording office. In order to prevail. must be BFP for value without notice of the prior interest and must record first. unrecorded deed • Has constructive notice of a prior deed if deed is properly recorded • Has actual and constructive notice if he knows of the existence of a properly recorded deed C.• Race: no conveyance or other instrument is valid as against purchasers for valuable consideration until after it is recorded. • Constructive notice prevents a subsequent purchaser or incumbrancer from being a BFP • Types of notice: • Subsequent purchaser has actual notice when he knows of the existance of a prior. and subsequent purchaser need not be bona fide and without notice. purchaser 1. Constructive Notice Clear possession gives notice • recorded instrument gives constructive notice of its contents to subsequent purchasers. Adverse Possession • recording acts have no application to title procured by adverse possession – apply only to a title procured by instruments of conveyance which can be recorded D. is not considered properly recorded and does not give constructive notice to subsequent purchasers or incumbrancers E. • An instrument which does not constitute a regular link in the chain of title or which is not identified by a recital in an instrument in such chain. to conduct a further investigation into the facts . If deed properly recorded. Constructive notice is a rule of law. irrespective of any knowledge he might actually have. Chain of title • every purchaser takes his interest in the property conveyed subject to prior interests properly recorded.
Conveyance must be recorded to protect from subsequent claims. buyer was put on inquiry notice. mortgage only signed by 1 person. • deed and words used put purchaser on inquiry notice that might be something from having the well on the property • court imports into statute a common law standard of enforcing restrictions when purchaser should have known that they might have existed • must inquire with people who had adverse interest. implied easements. Deed not contain restriction.2. Court rules that common for exclusive rights to be at work in shopping centers – sophisticated lessees are on inquiry notice. RULE: In cases of shopping centers and subdivisions. take property on notice that there are likely restrictions. and short term leases not subject to recording acts – purchasers take notice of these interests without notice of their existence In re Barnacle By accident. Payments can be enough to make you full BFP. as long as payment large enough • Recording is required to protect real property interests from conflicting claims. must have given consideration for the conveyance F. (lessees/buyers should check title and ask about restrictions) Methonen v Stone – unrecorded water agreement for subdivision plat Holding: intention to create servitude must be clear on face of the instrument – ambiguities are resolved in favor of use of land free of easements – no documents from time of deed showed this servitude. JC Penney v Giant Eagle Shopping center leased to drugstore with lease provision for exclusive drugstore rights. and also record before A • applies even if deed conveys less than fee simple CASES • BFP pro tanto: partial purchaser – entitled you BFP status for as much as paid (ie. Issue can be whether something was properly recorded within meaning of statute • Marital rights. lien on blackacre for ½ of value). Applicable recording act: unrecorded conveyance valid as to parties to it and as against one who has actual notice of it. However. recording acts not cover against: • forged deeds or instruments • deeds by incompetents • adverse possession and often • recording mistakes • indexing mistakes • possibly other undisclosed interests Notes from Book: Notice: B must be a purchaser for value and without notice Race: B must record his own conveyance before A records Race-Notice: B must be both a purchaser for value and without notice. latent defects (ie a false acknowledgement) = no notice. not just the real estate agent . Hazards not covered by Recording Acts Generally. General (majority) rule: instruments not properly signed do not provide constructive notice Rule in case (and beginning to be followed by more courts): improperly signed documents do provide constructive notice – put title searcher on inquiry notice * happy medium of some courts: patent defects (ie absence of acknowledgement) = constructive notice. and in many states recording necessary to protect against prior claims.
would still have had easement by implication (who would buy land if had not water supply?) – implies easement if necessary to keep property from being useless Geo McDonald v Johns • a conveyance of real or personal property as security for an antecedent debt does not. BFP conveys mortgage on property back to person with an unrecorded interest in the property. as against prior liens or equities • Extension of time for payment can be sufficient consideration • Most states don’t include donees under recording act protection Chergosky v Crosstown Bell Applicable recording act: conveyance void against subsequent BFPs if not recorded BFP filter rule: in case. then can’t claim filter? • QUESTION: THIS CONTRADICTS ITSELF – HOW DOES THE BFP FILTER WORK? Zimmer v Sundell Ps entire chain of title was not recorded until after Ds entire chain of title • recording act does not protect those who purchase from strangers to the title – act gives superior title to those who rely upon the record. and places himself in no worse legal position than before. Filter allows BFP to pass title to others without encumbrance. tax assessments) A. • law requires that you be BFP at the moment of transaction – rule allows you to always have BFP status. since the creditor parts with no value. Were not purchasers in good faith – had they done title search. Such a transfer is not made upon a valuable consideration. Grantor-Grantee . even though future purchasers would have notice of prior unrecorded interest. not those who purchase from strangers to the title • problem with Ps case is that their line of title to the common ancestor was not first recorded. would have seen that title was in a stranger • chain of title rules apply to all types of recording acts Indexes • purchaser acquires title subject to all matters included in the public record – not just in indexes (probate. render the transferee a BFP. pending lawsuits. and without giving any new consideration or being induced to change his condition in any manner. upon principle. • Exception to rule: grantor or former owner or property cannot acquire rights of a BFP – cannot use a BFP to cleanse defective ownership • Illustration: O A unrecorded O B BFP w/o notice B O recorded O v A: O can’t cleanse his interest through another BFP – can’t use filter to defraud • but courts only protect within statute – if purchaser has notice of prior interest. is not entitled to the protection accorded to a BFP (recording act) for value. surrenders no right.Doctrine of Easement by Implication: When there is a severance/splitting up of property in which servient tenant is subject to burden for benefit of other lot. even if prior interest comes to light later. within the meaning of BFP • Rule: a creditor who takes a mortgage on realty merely as security for the payment of a debt or demand already due to him. easement is implied (servient and dominant tenants) • this is what happened in case – even without water agreement.
some courts not adhere to this rule – think party presenting deed for recording is cheapest cost avoider Doctrine of Idem Sonans: Sounding the same Document indexed under misspelled name that sounds same as correct spelling is valid • problem with this is when sounds same but starts with completely different letter (Sapata v Zapata). even if computers beginning to be widely used. not matter which one has name on deed – joint ownership • recording act in Mugaas requires recording of community property and protects against spouse trying to sell ½ of property – protects from this off record risk 2. there was no evidence of adverse possessor Rule: recording acts not apply to title by adverse possession Other Off-Record Risks: 1. can’t just look at the names to do search – system has to be able to handle complexities * but. D had just as much notice as other purchasers Mugaas v Smith P: adverse possessor. Tract Index Each parcel of land in the county is assigned an index page that lists every recorded document affecting title to the land (but still have to check other record offices).Process of title search complex – just missing an index doesn’t mean won’t know status of property . Should look at each interest given by owners. Rule: statutes only require written records. Less available form of index.B doesn’t just check index . When D bought land.Consists of 2 indexes – one arranged alphabetically by name of grantee of each recorded instrument and one that is arranged alphabetically by the name of the grantor of each recorded instrument. Can discover all the property interests conveyed by each owner. Possible party wouldn’t have notice with this situation… question of whether this renders title unmarketable for future purchasers looking at a chain of title with two different names. CASES Frank v Storer Modification of deed filed. most recording acts provide for grantor/ee as official index.Tract index in addition to grantor/grantee . Community Property: husband and wife own property together. Skelton v Martin Party uses county internet site to do title search – site doesn’t show full state of title. deed executed by incompetent person . Rule: an unindexed instrument is still a recorded instrument Though this seems strange. it is probably ok because: .Plus. and then check to see if those interests have been discharged. Clerk sends back to parties with a note that minor referencing problem had to be fixed. Have to look at other gov’t offices to get complete interests in property B. Party knew there was a deficiency in the indexing. Court rules in their favor anyway. forged documents (which are on record) 4. Purchasers not have right to accurate info from other sources. but not indexed.Have to know who is currently in possession of land . with marriages and name changes. mechanics liens 3.
Purpose of act is to allow C to have good title. To claim protection from insurance. zoning restrictions. Title Insurance • policy indemnifies insured if the title to the land is less than that described in the policy • policy usually contains exceptions for defects of title not shown by public record. If C can trace unbroken title for more than 40 years. 40 year period generally starts at time of transfer. but interest still extinguished • if boundaries not disputed at time of registration and description conclusive of boundaries. suffered (knows about it but not like it --unwilling acceptance). • if property interest not included. must give prompt notice in writing to insurer in order to keep coverage • need consent of company before settling claim on own • insurer retains subrogation rights . Torrens property cannot be lost to adverse possession Marketable title acts 1900 OA 1910 A mortgage to X 1930 AB 1955 B C If 40 year unbroken chain of title on record. assumed or agreed to by the insured claimant • law. Purpose is to get rid of stale claims. prior interest is cut off. not by purchase. not against defects that come into existence after the policy issues. it is to insure title to land and also priority of its security interest in the land • usually require that buyer must acquire title by warranty deed and must pay full consideration for the property • title insurance usually pays for • title being vested other than how described in deed • any defect in or lien or encumbrance on the title • unmarketability of title • lack of right of access to and from land • exclusions from coverage • defects or encumbrances “created. ordinance. original insured must retain interest in land • policy protects against occurrence of fraud • when discover defect in title. Policy generally limited to face amount of policy or fraction thereof • if lender has title insurance. gov’t liable to injured interest owner.Mountain States Telephone v Kelton Rule: contractor not bound to search records – constructive notice applies only to those people bound to search records – only have to do this when have interest in title to land Torrens Registration Designed to give certificate of title that can’t be impeached Title itself is registered with government – gov’t acts as a custodian of documents affecting title. doesn’t exist (in general) • if gov’t improperly certifies title. etc relating to occupancy (zoning ordinances) • insured = named in the policy plus those who succeed to interest by operation of law. rights of parties in possession • policy insurer obliged to provide legal defense of title • policy usually insures only against title defects which arose before date of policy.
it pays damages.Swanson v Safeco Action for damages against title insurance company arising from cloud on title (that limits ability to obtain refinancing). excluding short term leases Description and Boundaries • to be effective. and a slight majority agree with this case. • Only ½ of courts have dealt with this issue. Measured from the date defect was discovered. Conveyancing by Deed Written Deed • common law ceremony of feoffment was oral – no writing required • Statute of Frauds requires writing and signature by the conveyor of an interest in real property. Calculating damages: difference between fair market value of property with and without impairment. Not liable in tort for failure to find an encumbrance during the title search – only liable under the policy. need someone named in document as trustee] • nemo est haeres viventis – no one is an heir of the living • english laws of primogeniture and descent – must be of blood of the first purchaser (not take by inheritance) . his boundary line and land area may be extended by accretion • When a river by sudden and violent change alters its course and overtakes privately owned land. title to lands is not changed ESTATES IN LAND Johnson v Whiton • here. Intent of the parties is the controlling factor and all rules of construction are mere aids in determining intent • parol evidence not admissible to determine identity of land described in deed unless it is first found that the description is ambiguous. Then only admissible to explain the ambiguity. • prompt notice required of defect in order for Safeco to be liable • proof of loss required Rule: if cloud on title impairs market value of land. Sarah held legal title [equitable title has to be created by express words. deed must describe land sufficiently so as to identify it • if deed refers to a map or plat. then map of plat is considered part of deed • metes and bounds system: uses compass directions and distances from an ascertainable starting point. caused by the defects to title that the title company should have discovered but did not. Title insurance does not guarantee perfect title. • title insurance company and its agents not liable in negligence for an alleged defect in title when it issues a title insurance policy unless it has voluntarily assumed a duty to conduct a reasonable search in addition to the mere contract to insure title. Greenberg v Stewart Title Insurance indemnifies the insured up to the policy limit against loss if the title is not as stated in the policy. if any. • When a landowner owns to the edge of a stream. insureds are entitled to whatever damage resulted from that cloud. just that they will pay if it occurs. instead. Company not saying there won’t be fraud. not to alter deed.
court agrees that it’s a condition subsequent – court has predilection to find this rather than defeasible fee – suspicion of forfeiture clauses – want to allow for more discretion and not automatic forfeiture • Dissent: consequences of restriction = title may be fragmented in the interests of heirs numbering in 100s and scattered about the globe (if have large class of persons w/o real contact with land. Mountain Brow Lodge v Toscano Conveyance can restrict alienation if purpose is to create a fee subject to condition subsequent Habendum clause – land reverts if a. this condition invalid) • Rule of Construction: all of the provisions of an instrument be considered together and the intent of the grantor of a deed be ascertained from the entire document Peters v East Penn Township Words “so long as” in conveyance create fee simple determinable – technical words of limitation. promissory restraint – not prohibit alienation. are void – absolute restraints are void] • court severs the restrictions • still. Reverter clause would have been better.• • but in case. Wife acquired a fee simple subject to executory interest – when she conveys the property to 3rd party. just promises to pay someone else $ is alienate . disabling (usually invalid) v forfeiture (usually valid) c. but could not retake land. Can also be construed as a covenant – P could sue for damages if condition broken. Statements of purpose can be construed as easement. 3rd party also subject to forfeiture clause • condition on restraint of marriage (in some states. indirect v direct b. fails to be used by lodge valid restriction creating condition subsequent b. can’t create a type of inheritance limiting property to pass along a single family line (heirs on her fathers side) – can pass to both sides under Mass law opinion allows Sarah to take fee simple – allows for alienability of land Hall v Hall Fee simple subject to executory interest created when husband conveys property with a “no remarriage” clause to his wife. in event of sale or transfer this is invalid restraint against alienation [conditions restraining alienation. defeasible fee very hard to operate) Alienation rules: essence of having a fee is ability to sell it: “Conditions are not sustained when they are repugnant to the nature of the estate granted. effect is that they can’t sell it because then they arguably wouldn’t be using it • though language used seems to create determinable fee. when repugnant to the interest created. and tend manifestly to public inconvenience” • policy: harm to creditors – not want people w/o right to pretend they do and defraud creditors • modern: rules encourage transfers of property to person who values it most (though this is weak reason – could get rid of lots of property rules if wanted this outcome) • taking land out of the flow of commerce does injury to the economy a. but words impose limitation which is directly connected with declared purpose of the grant (words are clear regarding intent of the grantor • implicit that land will revert to original grantor or heirs • General rule: words of purpose do not limit fee by themselves. • contingent interests retained by grantor passes to the heirs • words “ as long as” create fee simple determinable. or infringe upon the essential enjoyment and independent rights of property.
Difference from Rooney is the creation of a trust arrangement. just protected funds in transit to her (but could have created trust). Each state has own statute. must be some practical reason • provision in a will that property may not be alienated except to a particular class or group of persons is void • a life estate or an undivided interest in land may be sold on execution to pay a judgment (interest in land vested in Rooney at date of fathers death) • Will: under english law.Hypos: O A for life. property goes to someone else [plus restraint in Hall v Hall where land goes to someone else] – these are usually validated by courts Estate of Elizabeth Beck “Spendthrift trust” – devise in will can exempt creditors from gaining possession for a period. but cannot dispose of the estate by will Fee tail female special O A and his heirs female of his body begotten by X Fee tail special 4 ways to convert fee tail by statute (a) converts fee tail into a fee simple absolute in the first taker (most common solution) . estate passes to specific persons. but if A alienates then to B and heirs. [B takes fee simple upon alienation. have to get permission of both B and A and wouldn’t be bad idea to get quit claim from O – make sure B was conveyed fee simple upon alienation. What used to be a fee tail has been converted by statute to: • fee simple in the grantee (most common) • a life estate in the grantee and a remainder in fee simple to heirs of the grantee • estate in tail to the donee for his lifetime and then fee simple to his heirs • in states which recognize fee tail. creditors can take. O A & heirs in fee. Rooney v Mountain Brow • distinction between restraint on use [MB] and alienation [R] • Rooney: cannot alienate property and any attempt to do so is void: almost always invalid • MB: if there is attempt to alienate. Fee Tail: Estate that lasts as long as there are heirs or descendants of the grantee – upon failure of heirs. Law: restriction stricken. not need technical words of limitation to create a fee simple – with out express limitation. But once Beck has possession. fee simple assumed • Heirs determined by statute of descent and distribution – if die intestate. is void – in order to be valid. but no alienation. A takes in fee ** Law making inroads (but results not harmonious) – condo restrictions OK Bank of Powhattan v Rooney Can creditors levy against his 1/9 interest in land that can’t be sold for three years b/c of clause in fathers will? Answer: Yes • restraint. Here. land reverts to the donor and his heirs. though limited to time. Property subject to trust cannot be alienated until it reaches hands of beneficiary. not create spendthrift trust. O retains reversion] In order for C to purchase fee simple. grantee can convey as if it were a fee simple. This basically has been eliminated by statute in the US.
O A and her children. Can be created by deed. by statute land taken was in fee simple. Mother claims fee simple. land goes to A and her kids (children = shorthand for the names) – RULE IN WILD’S CASE – if she had more children later. however. Life Estate by Operation of Law: . cut or clear timber. Future interest holders have action against tenant. Freehold estate at common law (thus words “heirs. life estate and remainder. by operation of law. Dispute between mother and kids. as long as rents and profits from land enable tenant to make repair. administrators and assigns” could be used in creating the estate) Life Estate by Deed or Will: “to B during his life”: creates life estate “to B with right to use or dispose as he sees fit: creates fee simple “to B with power to sell or mortgage if he finds it necessary” creates life estate the power given is inconsistent with a fee simple. • Can cut timber sufficient to carry out repair • Cannot take out mines. etc without getting consent of future interest holders • No duty to make extraordinary repairs • Improvements destroyed by earthquake or fire need not be rebuilt – if tenant decides to rebuild. couldn’t alienate until mother died and class closed) • creation of fee tail requires words of procreation – “of the body” “offspring” “issue” “children” LIFE ESTATES Estate which has its duration measured by the lives of one or more persons. could create fee tail. then probable that they would be excluded (promotes alienability – if afterborn included. If no children living at time. but converts it into a fee simple absolute in the hands of the lineal descendants (d) preserves the fee tail but allows any taker to convert it into a fee simple by making an inter vivos conveyance of the property Armstrong v Smith Though language of deed created fee tail. and thus grantor conveys less than fee simple • can give a life estate with additional powers to mortgage. future interest holders are not liable for costs of rebuilding “so long as waters of Delaware River runs” – held to be a life estate – life estate tends to be a residual category for when court can’t figure out what the estate is – default category.(b) converts fee tail into a life estate in the first taker. with a remainder in fee simple in the first taker’s lineal descendants (c) preserves the fee tail in the hands of the first taker. But if A had children at time of conveyance. will. etc. Kids each claim 1/5 interest plus ¼ in the remainder. devisee still has to power to devise land and it is not inheritable by his heirs • life estate: measured by life of grantee • life estate pour autre vie: measured by life of person other than grantee (can be more than one person) • life estates can be determinable or subject to condition subsequent or executory limitation • can be alienated inter vivos • Waste: tenant has duty to maintain property in reasonable state of repair as necessary to preserve property’s value for the holders of future interest following. Failure to do so is permissive waste. or fee simple and remainder.
If rents and profits insufficient to pay for repairs. upon death of designated spouse without issue. Tenancy in fee tail after possibility of issue extinct (rarely found in modern law): Tenant in fee tail special. • Basically. No duty to make extraordinary repairs. devise.A. unless property will be further damages. rent fixed at so much per month or year – renewable at every month – continues unless one party terminates Term of Years For definite term of time Smith v Smith re: permissive waste • partial intestacy: testator made no provision for devolution of land after death of her daughter (no remainder interest stated) and hence daughter argues that fee simple given. but easily overcome • court in case assumes life estate. default rules apply. leaking roof. life tenant has duty to protect against acts of God. Remedies: • damages where waste causes loss • injunction against future waste • receivership • partition: division of property between people who have an interest (but often can occur only where parties have current possessory interest. lease. But if not mentioned in creating instrument. has only a life estate in the land B. But. etc and D won’t make repairs. duty to do what is reasonable under the circumstances • Cases are divided on who gets insurance money from damaged property or if tenant is obligated to repair • Can draft around permissive waste obligation. then not have to make them. since she was given less than a fee simple • permissive waste: P claims rotten flooring. but not need to make improvements. Estate by marital right At common law. not future interest) • forfeiture . Not have to rebuild improvements you made if destroyed by act of god. • permanent improvements/big expenses to land apportioned to life tenant and remaindermen. This is weak argument in favor of fee simple. either with or without stipulation for payment of rent Tenancy at Will 1) indefinite period 2) landlord can terminate at any time Tenancy at Sufference Tenant wrongfully holds over after expiration of term Periodic Tenancy No definite time. Rule: have to make reasonable repairs. husband had life estate in all lands of his wife Thompson v Baker Lease’s term determined by life of lessee = life estate with rent [measuring period was the wish of tenant to remain in Albert Lea] Life estate may be created by a deed. Just have to keep property in condition you received it – preserve value for holders of future interest.
each in his or her own name. he is only selling life estate. provided a child had been born to them. Family only gets value of original life estate – the farm (same as with Brokaw) “who shall then be living” = contingent remainder (not vested) If vested. court says he is only redeeming his life estate – not buying the fee. When buy back. Widower entitled to life estate on any lands wife held in fee simple or tail during the marriage. house was worthless as a residence. husband and wife hold title to property they acquire during marriage. They may choose to take title as joint tenants or tenants by the entirety – but if they do not. Complete change of circumstances – surrounding property industrial area. But here. Court says even if house on life estate property eco unfeasible. D can’t profit from his own wrong and can’t be better off than when he started MARITAL ESTATES • at common law. not just land • can’t just do bare cost-benefit analysis – just because apartment building worth more money not mean will be subjectively worth more to remaindermen • in Melms v Pabst. • standard for waste can be affected by language creating life estate – “ my residence” = house. she remained entitled to a life estate in 1/3 of lands even though it was in hands of purchaser • Could contract around dower with wife’s consent • Dower not attach to life estate (not estate of inheritance). Thus. Buys back later from the tax title purchaser. • Issue: how big change has been and how likely it is that testator would have changed his mind had he known the circumstances New York Co RR v Livingston RR holds estate pour autre vie. but they think they have a fee simple. only pay taxes when event occurs. When contingent. Issue is whether improvements RR made to land added to value RR has to pay family when purchasing by eminent domain. Court says no – changes weren’t really waste. Make improvements to land. Court gives permission to tear down – assume testators intention would change if he knew of changes. • Dower: widow entitled to 1/3 life estate share of lands which husband had been seised of an estate of inheritance at any time during their marriage. Thus. but improvements. just as they hold property brought to the marriage. cannot be torn down if remaindermen not consent. person who purchases title from tax sale buys fee. when he sells to subsequent BFP. Law of Improvements Different than waste – improver treated differently than waster – look at question of bona fide of improver when deciding what remaindermen get But. their income and the property purchased with their income belong to them individually. state threatens and initiates proceedings – leave you on property for awhile and you still have interest in land – ability to pay taxes and take back full title until time for redemption expires • Normally. estate for years (not a freehold estate) .Brokaw v Fairchild Son brings DJ action to declare that he can tear down house on property in order to build apartment building because upkeep and taxes on house too expensive. if husband alienated land that belonged to his wife without her consent. would go thru estate and be taxed. • Mechanics of tax title: when not pay. remaindermen get mesne profits – compensated for delay from death of life tenant to taking of property – get fair market value as a RR Tillman v Richton Tie Life tenant allows land to be taken b/c of unpaid taxes.
husband has to have legal title [compare to statute of uses cases where son is trustee and father is beneficiary – if it was in writing. or to take a statutory share as decedent’s heir Uniform Probate Code • right to elect on a sliding scale percentage based on length of marriage • elective share is a right to take against the will Melenky v Melen Father conveys land to son with oral promise to reconvey land when father wants. Problem: life estate not an estate of inheritance • Cardozo says if oral agreement had been written. Still. father would have had a chose in action – right to bring action on the K. only to estate.Modern Statutory Changes to Dower and Curtesy • Making surviving spouse an heir upon intestacy • Widening coverage to include both personal and real property • Equalizing rights of husband and wife • Restricting property subject to them to that held at death • Changing the estate from a life estate to a fee simple interest in a percentage of the decedent’s estate • Giving the surviving spouse an election to take under the will of the first to die. In order for wife to get estate. husband had full control and management of property . Issue: after taxes. Wife tries to claim dower right. property assumed to be part of community. should wife have to pay taxes on the stock ½ that was hers/ that she gained full possession of? Court says yes • husband stood between wife and complete possession of stocks – by statute. Husband dies in common law jurisdiction. then would be separate property. Embedded in facts: difficulty of tracing property – what you buy with money retains same character as money – if bought stock with money he inherited. Son refuses to reconvey property and instead offers only a life estate. but before you’ve actually taken possession] COMMUNITY PROPERTY Husband and wife form community – each ½ owner of community – what one spouse gets during marriage should be owned by the community – each entitled to ½ Excluded: 1) premarital property 2) what either spouse gets by gift or devise during marriage (not a fruit of the marriage) 3) unless parties agree to it • states split over gains from separate property (dividends) and personal injury awards • property acquired under community property regime retains that character even if move to a common law state • have a choice as to what tenancy to take (joint or in common) In Re Kessler’s Estate Husband acquires shares of stock in his name in community property state but then moves. • Seisin there is none either in deed [current possessory right] or in law [right to immediate possession. statute of uses would have kicked in and created legal title in the father] Statute of frauds here makes oral agreement unenforceable. So father would still have had to enforce it before wife could get dower. dower does not attach to choses in action. Law often presumes that if can’t show the reverse.
But. 4 Unities: (1) title : all must acquire by same instrument or by joint adverse possession (2) time: interest acquired at same time (3) interest: shares must be equal. undivided. each joint tenant has right to sever tenancy and destroy survivorship feature without agreement of the others. and identical in duration (4) possession: all tenants have equal rights to possess whole. applying rule of construction that prefers 1st clause over 2nd if 2 clauses are in opposite . and upon death of one tenant. • Divorce not sever B. Now. the other gets full power over their shares HOMESTEAD RIGHTS [established by statute or state constitution] Property interest that cannot be defeated by the conveyance of one spouse without the other’s consent. C. Objective is to protect the eligible property from the claims of creditors and from alienation by one of the spouses – to insure home during the marriage and for the life of the surviving spouse. Terminations Come to an end when property subject to them is conveyed to a third person. statement in a will cannot sever joint tenancy. Joint tenancies severed by sale or by agreement. but no survivorship right. the property passes automatically to the survivors (outside probate). Generally applies to married couple’s principal residence. Tenancy in Common Only unity of possession necessary to create this. presumption is tenancy in common. presumption was joint tenancy. Camp v Camp Deed language: “tenants in common with rights of survivorship as at common law” Court holds tenancy in common.• • • when this significant change in ownership occurs. May not be defeated by will of deceased spouse. it is a taxable event – wife gets immediate ownership of the whole of her ½ share (before death. Undivided interest in land. Action for waste also available. then passes according to Ohio law courts opinion as gender neutral – even though have management powers. Divorce terminates. Undivided share passes to takers under deceased’s will or by intestacy At common law. Claims for $ that made purchase or improvement of homestead property not defeated by this right. Conveyance destroys four unities. Neither can sever acting alone. Tenancy by the Entirety Exists only between husband and wife – hold as one and surviving spouse takes whole upon death of the other. Joint Tenancy Each owns undivided interest in the whole. in absence of express agreement to the contrary • wife of joint tenant not get dower (not estate of inheritance) but does get in tenancy in common • cotenants may not exclude other tenants from enjoying right to possession of the whole. ousted cotenants can sue in ejectment to recover possession and to recover mesne profits. still only have qualified interest – whoever dies first. By conveying to 3rd party. each only has a qualified interest in their ½) real property passes according to law of site – if live in CA and buy land in Ohio. CONCURRENT ESTATES • right of each tenant to possess the whole A. If they do.
REVERTERS AND POWERS OF TERMINATION Reversion: life estate or lease Vested. • shouldn’t be harder to get out of joint tenancy than to make one • compare to antiquated livery of seisin • no additional power being given to cotenant – no more power than if used a strawman Opinion allows for secret severance – no notice given to joint tenant – allows for suppression of severance until. needed Allison v Powell P and D joint tenants with right of survivorship. which may lead people to think you meant to different things Riddle v Harmon Deceased attempted to sever joint tenancy by conveying to herself as tenant in common. then it’s a tenancy in common (default according to statute) here. When there is no manifest intent [when intent not made explicitly clear]. need manifest intent.• • • for deed to create joint tenancy in VA. agreement not enforceable because of statute of frauds and commencement of action alone not sever – joint tenant can retreat from case until judgment entered. no express or implied condition precedent to that person taking Reverter: determinable fee Power of Termination: fee upon condition subsequent (right of reentry for condition broken) Majority of courts hold that right not lost by attempt to alienate. and not as tenants in common” (as opposed to “joint tenants with right of survivorship”) because other is saying something twice. 2 conflicting clauses do not equal manifest intent to create joint tenancy subtle point: better to say “joint tenants. If there was a binding agreement to partition and pay $ (which executor tried to show by letter). they exist indefinitely law of escheat: state takes unowned property (but not adverse possessed property) Village of Peoria Heights v Keithley Fee on condition subsequent (court has preference for condition subsequent because less forfeiture. no words creating fee simple determinable) Rule: can’t convey a right of reentry – just a contingent interest that won’t necessarily happen. Court holds that action to partition joint tenancy not survive death of tenant. Purchaser would be owner and would break 4 unities. But here. Court allows this direct severance of a joint tenancy – not have to use strawman. and if. then would have equitable conversion. Minority of courts say that do lose rightkind of estoppel. but not necessarily become possessory in future Vested: 1. REVERSIONS. person identified 3. someone born 2. Breach of condition can only be taken advantage of by grantor or his heirs . Can only transfers right if coupled with right of reversion • • • all of these exempt from rule against perpetuities in absence of statute. P files complaint to partition.
and descends to their lineal descendants • Descendable • Devisable • Assignable • Alienable • Will has residuary clause that encompasses real property. • Reversion retained by grantor of fee tail is a vested estate. but that it will remain unto the issue of them to whom it was given after their death. B takes a life estate and children take a remainder Second Rule in Wild’s Case: . B can convey land. or shall revert unto the giver or his heirs if issue fail • created the fee tail • after statute. titles and actions may be released by the living heirs to the terre-tenant for securing his repose and quiet and for avoiding contentions and suits • courts dislike of forfeiture – conveyance makes forfeiture impossible • public policy encourages release of remote contingent rights to those already possessed of the estate • right of reentry is an asset. Issue: where have some kind of reversionary interest in grantor. Rule: all rights. Hence. what happens to it and what can be done with it. but only a life estate • rights of issue could later be barred by an action for common recovery First Rule in Wild’s Case: A by will makes gift of land to “B and his children” but at testators death B has no children. Statute de Donis – concerning gifts of land made upon condition That the will of the giver according to the form of the gift shall be manifestly observed. just one with special prohibitions – can waive right. In absence of expressed contrary intent. Jessie Long could convey his 1/3 reversionary interest in the land that descended to him when his dad (the grantor of the fee tail) died. when Jessie conveyed all the interest he had in his land (fee tail). so that they to whom land was given under such condition shall have no power to alienate the land. Court rules that if Original grantor can convey his right of re-entry to grantee – heirs can also convey right to grantee. he was just conveying his 1/3 reversionary interest that would occur if he died without issue. This reversion passes to heirs that are living. but court says that right of reversion not covered by clause • Jessie had inheritable estate – could convey as fee simple but could not dispose of it by will. words are limitation and B takes a fee tail.Trustees of Calvary Presbyterian v Putnam Condition subsequent where all heirs quitclaim right of reentry to grantee. • This has been generally repudiated because no more fee tail • Modern view. but can’t alienate it • policy: hurry up moment of alienation Long v Long Conveyance of property in fee tail to Jessie – “and children is his body begotten” – fee tail because of rule in Wild’s case. Original grantor retains power of reversion (vested reversion) if Jessie has no children. gift of land to B and heirs of the body created estate in fee tail.
determinable.for a term of years 4 features: (1) created simultaneously with and in same document as a prior possessory interest. and the life estate and remainder are of the same quality. and cannot divest any interest except an interest left in the transferor” • can be created in chattels and real property • remainder limited to unknown person is void • where remainder conditioned upon illegal act. a reminder in fee simple or tail” A B for life. subject to a condition subsequent or executory limitation) .If at the time of devise to B and his children takes effect B has living children. to the heirs of A. then the person to whom the life estate is conveyed takes the remainder in either fee simple (or fee tail) and the persons heirs take nothing” “if a life estate in land is conveyed or devised to a person. Rule in Shelleys Case “ when in the same conveyance an estate for life is given to a person with remainder to that person’s heirs (or heirs of his body). • common law presumption in favor of vested remainders Contingent: either subject to condition precedent or is a transfer to a person unascertained or unborn either at the time of transfer or later. then to B or A B and his heirs [doesn’t allow you to create remainder in heirs of grantee in same instrument] . If no heirs. not mean transferee will actually take. then the person to whom the life estate is conveyed has. mediately of immediately.W. but not sensible to think M wanted reversion if Rosanna died with children. [problem is use of ‘heirs’ when really mean children – Rule in Shelleys case not apply.: no remainder explicitly stated. and by the same conveyance or devise. up to the time the prior estate ends • contingent remainders can’t be accelerated McRorie v Creswell – creation of remainders by implication [Holographic will: entirely in handwriting of testator – no witnesses necessary] *any interest not disposed of is retained M Rosanna for life. and are what remains after the prior interest (2) prior interest must be immediately prior to remainder and there must be no gap in seisin between them ( if there is.for life . • modern view.estate in fee simple (absolute. in addition to the life estate. can only take as an executory interest) (3) prior estate must end naturally and it cannot be cut short by a divesting event (4) must be held by person or persons other than grantor of the document in which they are created Vested: transferor has created in an ascertained person(s) a present right to take in the future. take as tenants in common (though a few courts hold that B takes life estate and kids get remainder REMAINDERS “any future interest limited in favor of a transferee in such a manner that it can become a present interest upon the expiration of all prior interests simultaneously created. then to B’s heirs Rule changes this to A B for life. condition disregarded and remainder held absolute May be held in: . a remainder in land is limited. Present right to a future interest. Not a right to immediate possession. or to the heirs of A’s body. then to C. then B and children take concurrent interests as joint tenants for life.
not always necessary to use word ‘heirs’ in technical sense . rule still applies and A takes fee simple. • To B for life. not construction (means rule applies even if results contrary to intent of grantor). or determinable fee • type of estate given to the grantors heirs is immaterial • interest can be equitable or legal • modern law: rule of construction under which intention of grantor is given effect. If B predeceases C. estate for years. • rule abolished by statute (but not apply to cases where rule applied when conveyance written – if interest valid at moment of creation.rule covered real and personal property (Shelley only applies to land) . [at common law applied to devises as well] * converts a remainder limited to the heirs of grantor into a reversionary interest in grantor O B for life. then to heirs of O B – life estate O has reversion O’s heirs have nothing • also protected feudal interests by having O’s heirs take by descent and not by purchase • requires (a) conveyance of real property (b) limitation to grantors heirs or equivalent – sometimes word children or issue is used to mean heirs • has no application if conveyance to a named person. even if that person turns out to be an heir • not apply when heirs are used to mean children – heirs must be used in its technical sense • estate which precedes the limitation to the heirs is immaterial – can be life estate. But grantor must use words in deed to overcome presumption and show that heirs take as purchasers • some states have abolished or modified doctrine (Uniform Probate code abolishes) • since interest in property passes by descent. then to B’s heirs – intervening life estate not change operation. would give way to intent of grantor. Thus. then to C for life.probably a result of feudal system so lord gets his feudal dues when land transferred and so heirs are also liable for dues since property passes by descent • rule of law. then future legislators can’t change the property rights Doctrine of Worthier Title Any limitation in an inter vivos conveyance of real property to the heirs of the grantor is void and the grantor has a reversion. means O had interest to pass to heirs. If were a rule of construction. merger occurs if C dies before B. then remainder passes to B’s estate 5 Requirements (1) ancestor must take freehold estate (2) must be by same instrument (3) only land covered by the rule (4) estates must be of same quality (both equitable or both legal) (5) heirs must be meant in the technical sense – those persons who take if the person dies intestate – defined by statute (not apply if heirs used to mean children or issue) * relation back doctrine applies when dealing with powers of appointment – if A has life estate and appoints by will to his heirs.doctrine purports to carry out intention of grantor • . O’s creditors can reach the property because O has reversionary interest until he dies • O can alienate Differs from Rule in Shelleys Case: .
but remainder not destroyed (will take at death of son without kids) Doctrine of destructibility of contingent interests – when they fail. son inherits reversion when alternate contingent remainders fall to ground. once the remaindermen born. Not applicable in most states. ** Case no longer majority rule. thus permitting it to be effective as a springing or shifting use under the statute of uses. alternate contingent remainders [to heirs of testators son or to testators siblings]. Under doctrine of worthier title. whole fee not given away and testator retained reversion. Issue: is Stewart the sole beneficiary. then O retains no interest ** can’t ascertain heirs during Stewarts life – can’t consent b/c not know who they are **case comes down to question of whether remainder supposedly created was a remainder or a reversion. Incomplete intestacy during life of son before son has kids. the remainder becomes possessory. son gets fee simple when contingent remainders fail. Stewart would have retained all interest (but here statute changes doctrine – heirs supposed to take by purchase) • court allows Stewart to revoke trust – his intent was to keep control – all clauses leave an interest in him Ryan v Monaghan: remainder must vest or fail at termination of prior estate Life estate to the wife. the next estate presently entitled would vest in possession immediately. three ways by which a contingent remainder could be destroyed (1) by condition precedent failing to happen which permitted the contingent remainder to vest at or before the termination of the prior estate (2) by merger (when life estate and next vested estate comes into same hands) (3) by forfeiture (ie tortious enfeoffment) Artificial Destruction Doctrine At early common law. Thus. they take a vested interest subject to open Problems with vested remainder: (1) creation means property may be passed to strangers . then to persons designated by will or heirs at law if dies intestate. • words used not create a contingency. subject to spendthrift provision. son would take. can terminate trust even if irrevocable • if there’s a present interest reversion in O. Hence. Thus. creditors can reach • if remainder in O’s heirs.Stewart v Merchants Bank Stewart trying to revoke trust. so must be vested • policy interests favor vested estate (unless manifest clear intent otherwise) • hence. they go away Common law: in order to take. • cannot alienate because of spendthrift provision • anything not disposed of in instrument is retained by Stewart – If Stewart outlives 10 years. not at death of the life tenant. if the condition occurs after the death of the life tenant. Rule: if all beneficiaries of trust are ascertained and they agree. Buckley v Buckley Remainder vests at time of testators death. Under modern view. heirs of remaindermen took interest in property as well. Where rule abrogated. As heir at law. At common law. contingent remainder has to vest at termination of prior estate – destroyed if can’t vest at that time. even though his heirs take remainder if Stewart dies intestate? Stewart Trustee for 10 years for Stewart. then he gets reversion. Contingent remainders not being limited to take immediately were destroyed. if a life tenant purported to convey the fee (tortious enfeoffment).
and remainder vests absolutely O A for life. Rule: 2nd interest was transmissible. Widow renounces and takes statutory share. with remainder to her kids. O A for life. then to Mary Brown for life. Remainder vests. for if the period for division is reached before the happening of the contingency upon which the remainder is to be divested. then to issue of B Contingent as to event. as long as B has kids when A dies. then to B’s children. • vested or contingent depends on formal language distinctions • formal difference between condition precedent and condition subsequent • preference to vested remainders • acceleration of remainders depends on intent of grantor • executory devise is destructible by arrival of period for distribution. Contingent remainder transmissible where contingency depends on event and not on person. then C’s interest extinguished. contingency no longer exists. . not know who heirs will be Can’t join anyone to alienate fee – uncertain who people will be O Corrina for life. then to B’s children. then to heirs of B Contingent as to person – until B dies. If contingent upon surviving life tenant. would be estopped from denying deed if property comes into his hands. are estopped from ever going back on deed] Browning v Sacrison O Ada for life. [estoppel by deed: if convey interest away by warranty deed.(2) taxation: vested remainder is real asset and subject to taxation • no limit to # of contingent remainders that can create in the alternative • grantors intent = super important Danz v Danz Will: determinable life estate to widow. the executory devise is defeated • when widow renounced will. but can’t transmit. Black v Todd Life estate in Corrina. then to Mary and kids if Corrina dies w/o issue Becomes certain who will take after Mary dies – class closes but still contingent – only condition outstanding was Corrina’s death w/o kids. Issue is when interest vests (at death of testator or of life tenant) 1) consequences of treating something as vested or contingent • if brothers took a vested remainder. Class closes at the moment prior estate comes to an end. but if either of them be dead then all to the other. Contingent as to event – know who will take if event happens Can join all interests and alienate fee O A for life. then to B if B becomes an M. or if they all die to C. Hence. Corrina’s kids can transfer their interest after Mary died but before Corrina died. contingent remainder in surviving children. then to Samuel Black. O A for life.D. it won’t take. If B has another child. then widow of brother would get interest. O A for life. If none take. on her death or remarriage property goes to niece and nephew. B has 3 kids. But if one of kids transmits by warranty deed. Uncertainty as to person until B dies and class closes. A dies. then to Franklin and Robert. time for distribution arrived because widow no longer needs life estate. then all interest goes to surviving brother. if any. If none take.
but if grandsons or granddaughters attempt to alienate. O holds legal title but must convey it to A – no longer need seisin.2) good example of kinds of reasoning available to lawyers to make decision (a) Preference for vested remainders not absolute – modern rule agnostic as to presumption of vesting – Ryan v Monaghan no longer majority rule • No longer need doctrine that hurries up moment of vesting • When have ambiguous remainder. remainder to Bs kids Statute only requires seisin in cestqui ce use. remainder to Bs kids Life estate and remainder both executed O A & heirs for use of B for 99 years. not in future interests given to B Only A has to be seised.can create contingent future interest preceded by a terms of years O A and heirs in fee for the use of B and B’s heirs Statute executes the use – gives B legal and equitable title and removes A from picture O A and heirs for 99 years for the use of … Not under statute – A not seised of the land [legal term of years in A. most people prefer contingent (c) inclusion of words in one place is exclusion of words in another (d) disinheritance of kids’ dad – if vested at time of testator death.can now be gap in seisin between limitations of freehold estate to successive grantees . etc. was just a contract – hadn’t transferred land by going onto land (though contracts were specifically enforceable in equity). the other person shall be seised of a like estate as he had in use – converts equitable estate into corresponding legal estate Introduces new methods of creating and transferring estates: . O A and heirs for use of B for life. but not subsequent uses Blackman v Fysh Will: creates life estate in son Clause 1: contingent remainder – property goes to kids who have reached 21 or girls who have married before 21 Clause 2: executory interest -. more likely that the dad could take if kids died intestate • Uniform Probate Code (applies only to trusts): reverses traditional presumption in favor of vested construction – “a future interest under the terms of a trust is contingent on the beneficiary’s surviving the distribution date” STATUTE OF USES Where one person is seised of land to use of another. equitable term of years in B] O bargain and sells to A and heirs At common law.converts equitable future interest into legal future interest = executory interest (legal future interest created by means of an executed springing or shifting use) . gift void and goes to their kids . After statute. no longer need to save it from destruction by treating it as vested rather than contingent – survives in either case (b) should look at intent commonly prevalent to conveyors similarly situated – to avoid taxes.future interest can now take effect by cutting short prior estate in another grantor . O b&s A & heirs for use of B & heirs Statute exercises first use.
either before or after testator dies.special power: limits appointees to a certain class • creditors of a donee of general but unexercised power cannot reach the affected property unless: (1) donee is also the donor of the power and the conveyance is fraudulent (2) donee who is also the donor creates the power by transferring property in trust and reserves for himself the life income and a general power to appoint the corpus (b) . Alienability postponed until 21 years after death of life tenant (dad of remaindermen). it will be treated as a contingent remainder for all purposes Examples of Contingent Remainders: (a) O A for life. then property reverts to O Ryan v Monaghan – even if B has kids later.exclusive: power to exclude a member of the class (“then to such children”) • . then to children of B If A dies and B has no kids. donee. Language not exclude • anything except those who don’t reach age 21. can take effect as either a contingent remainder or as an executory interest.discretionary (d) . then to B and heirs (b) O A for life.presently exercisable : can exercise whenever wants (c) – mandatory: if no taker in default. then to B’s children and heirs Previous rule: Class closes at A’s death – no more afterborn members can share – hurries up moment of alienation. at death of life tenant know the maximum number of kids • if son dies and no kid yet 21. appointee (a) . but law will do it for them . when created. then to heirs of A ascertained 1 year after A’s death Avoids rule in Shelleys case because heirs not used in technical sense Executory interest POWERS OF APPOINTMENT 4 Parties: donor. not a condition precedent – estate still vests • under court’s decision – all children take who reach age 21. But. then to children of B if they graduate from law school (e) O A for life. taker in default. closes at life tenants death if goes to heirs or to issue Rule in Purefoy v Rogers If an interest.general power: donee can name whoever he wishes . Rule of convenience – closes a parents death if remainder in children. However. Can’t force person to do anything.testamentary: can only be exercised in a will . then to children of B if they survive A (d) O A for life. property would go into receivership until kids reached 21 Class Gifts: O A for life. then discretionary. Kids who reach 21 but die before life estate ends would still take. no reason to do this – really just need to determine maximum # of people who could take. won’t take b/c remainder fell to ground (c) O A for life. Class continues to be open. Different case if remainder was in B’s issue – no way to close class unless closes at A’s death. then to children of B if they attend A’s funeral Gap between As death and funeral = executory interest [remainder must vest or fail at end of prior estate] (f) O A for life.court not consider this invalid restraint on alienation – dealing with a life estate and remainder – easier to impose a forfeiture when not dealing with fee simple • “when child reaches 21” – enjoyment of estate postponed until reaches age.
Legislatures have closed this loophole and made transfer taxable at A’s death. settlor’s kids have a remainder which can be defeated by exercise of the power of appointment. if none. then remainder would be vested and creditors couldn’t reach In re Rowlands Estate • “friends” = general discretionary power of appointment – terms friends too vague to create certain class • but when name a certain person within that otherwise vague class. and A appoints to his grandkids who reach 21. appointment not valid – grandkids not lives in being when O gave to A (though would be OK if looked at point where A appoints). if O A for life. then property passes under A’s estate. • Common law preferred indefinite failure of issue construction (assume you meant to create a fee tail). if at all. Modern law prefers definite failure of issue construction • Adaptations to rule: . then defective exercise is appointing to person not named in class – Gilman says this subjects assets to creditors If general power. not later than 21 years after some life in being at the creation of the interest” • under relation back doctrine. not seised of an estate of inheritance Bank of Dallas v Republic Nat’l Bank 1971 trust: revocable trust for use and benefit of A and A’s kids amendment: trustee gives interest to A during life. Same person who created power holds the power.nonexclusive: “then to children in such shares”. Not know who A’s grandkids are as a class until A dies. Thus.. Even if A exercises power through his will. and can give A or her kids principal if needed. not what actually happens. but A never had any real control over property. to the donor or her estate Doctrine of Capture: if general power of appointment exercised invalidly. Rule: creditors can reach spendthrift trust made be beneficiary where income/interest goes only to the settlor. B not owe inheritance tax because he is taking directly from O. [as opposed to Gilman. defective if appoint to person who not exist. unless contrary to the intention of grantor (ie. must be lives in being at original conveyance. unexercised power of appointment is an asset • dower: just a chose in action. A has testamentary power of appointment. the appointment is void as illusory (though this is difficult in application and not universally followed) Failure to exercise a power of appointment means property passes to takers in default or. • Rule about possibilities. Gilman v Bell O Ellen for life of Robert. • but for bankruptcy purposes. If all the permissible objects do not receive a substantial share as a result of an appointment. power becomes imperative Common Law Rule Against Perpetuities – Rule of Law “ No interest is good unless it must vest. where court can’t force you to exercise power over someone else’s assets]. Defective Exercise of Powers: If special testamentary power.beneficiary. Here. • if A had given herself special power of appointment (to choose among her kids). but Robert has power of appointment Power not a property right – title and interest in thing not vest in donee until he exercises power. Creditors can’t force you to exercise power – can’t reach property until Robert accepts. default to B might mean contrary to intention) Relation Back Doctrine: what A is doing is filling in blank O has supplied – act by A relates back to creation of remainder – simple discretionary act on part of A.
• • * a. it is void . Validity of the remainders determined in light of facts existing at death. Court holds that violates Rule because no guarantee that road or highway will ever be built. cy pres: court reforms a written instrument to comply with the rule (usually with gift to charity) as close to donor’s intention as possible c. means bio kids. wait and see: allows 21 years to run before deciding case b. Jee v Audley – fertile octogenarian Remainder in daughters then living of John & Elizabeth Jee: violates rule because chance that Jees will have kids after testator dies. since no clear lives to use as measuring. Court also allows grantor to contrue rule against himself – invalidate his own conveyance. reversions Measuring Lives • can use any lives (even a large group) as long as not too indefinite/group ascertainable • have to think “what if everyone died?” • every person capable of reproducing until death United Virginia Bank v Union Oil Option to buy parcel of land after a road and highway built beside it. gifts from one charity to another b. not adopted In Re Manson’s Estate Problem of unborn widow: possibility that might be born after testator death = can’t be measuring life Rule: where a secondary life estate is limited upon the life of any wife whom the primary life tenant might marry. Exceptions to Rule: a. rule is 21 years flat. Second Look doctrine: assumes relation back – look at facts known at death with testamentary power of appointment. right of re-entry for condition broken d. rights of reverter c. • stranger to the adoption doctrine at common law: if stranger gives gift to children. Uniform Statute: changes limitation to 90 years d. When party is a corporation.