Rule & Cases

> Putting a partial limitation on a person on marriage is not contrary to public policy as held
in the Allen v Jackson case. In this case, a woman gave her niece and her husband some
income but if the niece’s husband remarries, he will lose his interest in the income. The
niece’s husband did remarry and the court held that the condition was valid, therefore he lost
his interest in the income.

> Claim ownership: Singh v Ali, the owner of a truck, sold his truck to another man, but still
kept the registration in his name. The parties of this case had a dispute which resulted in the
seller seizing the truck and returning it to his home. The Privy Council held that the
individual who bought/purchased the truck was the rightful owner of it, and that he can take it
back from the seller who had seized it, still had his name registered on the truck, and had
brought it to his home.

> (Equitable interests: Contracts) Right to evict an unfaithful tenant: Walsh v Lonsdale, a
contract was made between the owner of land and the tenant to grant a lease. The man
occupied the property, however, there was no lease granted by the owner. The man declined
to pay his rent in accordance with their agreement. The court in this case held that the owner
can sue the man that is occupying his property/land without paying any rent.

> Limited rights to interests in property’. Meaning that only it is only limited to a specific act
● Easements: it is when other people have rights to a land that is owned by someone
else. Their rights are limited and only allows specific things such as walking or
driving to get across to the final destination and more.

> Valid gift on the basis of perpetuity (condition that property not be sold or
mortgaged):Yeap C Neo v Ong C Neo, the Privy Council’s decision was said in respect of the
case that the judge held that the gifts to be void, because it went against the rule of the
English law which is against creating perpetuities. It was the woman’s desire to perpetuate
her family and make sure the house is kept for their residence and that the house should not
be either sold or mortgaged. By doing so, it expressed her intention to create a perpetuity.
Their Lordships made their decisions based upon the learnt below judge’s order

> Valid gift? (exist at the time the gift has been devised): Long v Blackall, the judge ruled
that the executory device will only be good if it has necessarily happened within a person’s
life, ‘and 21 years and the fraction of a year allowing for time of gestation’.

> Valid gift? (remoteness/rules against perpetuity (21 years rule) Re Dawson, The testator
held all his property in trust for Mary, his daughter, and if her children survived her and have
reached 21 years of age they will be given the property and that when the sons of Mary’s
children reaches 21 years of age and have also survived Mary’s children they will be gifted
the property. The court held that the gift to Mary’s children was valid but the gift to the
grandchildren was invalid because it was too remote. Her sons could have had children after
the 21 years rule, which is that the property to be taken will only be in effect within 21 years
of the death.
● Re wood

> Hickson v Cook, there is a co-ownership or joint tenancy on the property between the
children.
> Occupatio: This is when right of ownership vests in the person that finds un-owned things
that are not owned by another person. These are inclusive of wild creatures where wild
animals/creatures are not capable of being owned unless they are seized or caught by the
owner of the land that they reside on.

> Accession: This is when the right of ownership of smaller things which are incorporated
into the principal thing/land is vested in the owner of the land or principal.
● owners of property acquire rights to property which is produced by or attached to their
property.

> Manufacture: This is when right of ownership is vested in the manufacturer of a product
rather than the supplier.

> Intermixture is when two things that are owned by two different owners are
mixed together. Sometimes it is hard to separate such, sometimes easy. If it is possible to
separate the things mixed together, such things should be returned to the rightful owner.
In situations where it is hard to separate the mixed products, where the mix took place
with consent or by accident, owners of both products would become tenants in common
and share the interest proportionate to their contribution.

> Lost goods-right to possesion = Finder: article that is not attached to or in the ground
○ In Armory v Delamarie, a boy found a jewel in a chimney of a house and had
brought it to a goldsmith to find out what the jewels value is. The man pretended to
weigh it and removed the jewelry. He then refused to give back the jewelry to the boy.
The boy sued and the court held that because the boy is the finder of the jewelry he
has right of ownership and is entitled to the jewelry.
> Lost goods-right to possesion = ) Possessor of ground: article that is attached to or in the
ground
○ In Elwes v Brigg Gas Co, a man cleaning a pool found two rings in the ground
of the pool where he had been cleaning. The company claimed for the two rings and
the man refused to hand it over. The Court held that the Company has the right of
ownership and is entitled to the two rings because they were the owner of the land and
are in control of the pool.
> Loss of Physical possession: still belongs to the owner who lost it. If they remember where
they placed it, regardless of how long they get it, they still have rights of ownership.

● Moffatt v Kazana, the owner sold his house and a few years later the people who
bought the house discovered a biscuit tin filled with a lot of money hidden in their
ceiling. The former owner who sold that house claimed that he placed the money
there and owns the money. He died and proceedings continued. The High Court held
that the money belongs to him, he owns and is entitled to it.

> Un owned things (Wild animals): Blades v Higgs, after a poacher caught numerous rabbits
on a nobleman’s land in England and had sold them to customers, the nobleman claimed for
the return of the dead rabbits. The House of Lords held that the rabbits were owned by the
person whose land they were found/caught on.

> Wild animals: not capable of being owned and no person can claim ownership of them.
Caught on a person’s property, they belong to the person whose property they were caught
on.
 ● In Blades v Higgs, After a poacher caught numerous rabbits on a nobleman’s land in
England and had sold them to customers, the nobleman claimed for the return of the
dead rabbits. The House of Lords held that the rabbits were owned by the person
whose land they were found or caught on.
> Finder of lost item has right of possession such that the item is not embedded in the land:
Bridges v Hawkesworth. In this case a traveler found a packet which contained some bank
notes on the floor of a shop. The traveler handed the packet to the shopkeeper to pass it on to
the owner who never appeared to claim the packet. It was held by the court that the traveler
that discovered the packet was entitled to possession of it.

> Helson v McKenzies where a shopper found a shopping bag in a shop. The shopper then
gave the bag to the shop assistant to keep it until the original owner came back and claimed
it. The shop assistant gave the bag to the wrong person. The original owner of the bag then
sued the shop for losing her bag. The Court of Appeal of New Zealand then held that the
shopkeeper is not the bailee of the owner of the lost bag but is the bailee of the finder.
Therefore the real owner of the bag could not sue the store for giving her bag away to the
wrong person.

> Embedded in the Land (rights of ownership to property/land owner): Waverley v Borough
Council v Fletcher, a brooch was found embedded in a park, centimeters below the surface. It
was held that the local authority has the right of possession over the brooch as the owner of
the park instead of the finder.

> Goods that are fixed to land or buildings may still be regarded as goods and not fixtures if it
can be proven and it is clear that they were fixed to the land or building for a temporary
period of time. In Garrick v Costello,
A man rented a building in central Suva, and operated a hotel there. For this purpose
He attached water pipes through the building, and fixed hand basins, wardrobes and
mirrors to the walls of each room. At the end of his lease the tenant sought to remove
these fittings which was opposed by the landlord who claimed that they were now his
as part of the realty. The Court of Appeal of Fiji held that these were trade fixtures
and did not become part of the realty, but remained in the ownership of the tenant.

> In Bridges v Hawkesworth,

a commercial traveler, while leaving the store he saw a small parcel on the floor. He
opened the parcel after showing it to the store attendant and discovered a large
quantity of bank notes in the parcel. He left the parcel with the shop owner so that
they could give it to the true owner. After several advertisements and three years, no
one came to claim the parcel as the true owner, and so the commercial traveler
claimed the parcel from the shop owner. They declined the return of the parcel to him,
which led the commercial traveler to sue for the return of the notes. ``The court held
that the commercial traveler was entitled as finder of the notes to retain possession of
them, and it made no difference that they were found on the floor inside a store.’
> Dead bodies
● 1875: R v Sharpe court held that one cannot have the right of ownership over
dead bodies or parts of dead bodies.
 ● 1999: the court modified the common law rule in the case of R v Kelly stating that
dead bodies can be owned only with the condition that the body parts are lawfully
worked on by dissection or preservation. This is simply an example of how the
subject matter of property keeps changing over the years.

> Building was constructed on top of the ground in a way that it can only be removed if it
were dismantled or demolished = fixtures = cannot be removed without demolishing it: In
Elitestone Ltd v Morris,
Land owner built numerous wooden bungalows on that land, which were
not fixed into the ground but were resting on their own weight on top of the ground.
The owner later sought to obtain the possession of one of the bungalows, however it
was argued that the bungalow was a chattel and not premises under the Rent Act
1977. The House of Lords held that although the bungalow was resting on its own
weight and was not fitted to the ground it was not to be regarded as a chattel, but was
premises subject to the Rent Act.

> Presumption of gift: this applies in cases where property is given to a child by a parent or
an individual in loco parentis the courts have held that ‘in the absence of evidence to the
contrary’ the parents are to presume that there has been an intention to make a gift.
● Shepherd v Cartwright, A father had shares in some companies in which he arranged
that it be registered in the name of his children. The House of Lords held that the
shares, ‘greatly increased in value’, are presumed gifts for his children and are not
owned by him.
● Presumption of advancement: a general presumption that a husband or parent intends
to make a gift.

> Constructive Delivery: When a donor provides a person with the intention of taking
physical delivery of the object/thing it is to be regarded as a sufficient delivery
● Re Lilingston, Keys to a safe and trunk were handed over by the donor. It was held as
a ‘valid gift of the contents of the trunk and safe’.
● Re Stoneham, A man had told his son that he was to have some ‘furniture, arms and
armour that were in a house that is owned by the father which was, at the father’s
request, occupied by the son’. It was held as a valid gift of the articles.

> Declaration of trust of the Property by the Donor: ‘Donor must have used words to indicate
a present and irrevocable trust of the property in favour of the donee’. (Declare orally or in
writing that the thing is held, either by himself or by some other person, in trust for another
person, that is sufficient to constitute a valid gift.

● In the case of Jones v Lock, A check for 900 pounds was put in the hands of a baby
that is 9 months old by the father and had said that he was giving it to the baby for
himself but he then took the cheque back. It was held by the Lord Chancellor that
what he said was not words of declaration of trust.

> Conditions in Terrorem: It creates fright but does not take away the rights and interests that
have been vested. (Merely to frighten)
 ● Re Brace, A father had devised his house to Irene, his daughter, provided that “on
condition that she will always provide a home for his other daughter Doris who is
mentally handicapped.” High Court held that there was no gift over of that house to
anyone else and that the condition subsequent, for her to always provide a home for
his daughter Doris, was not binding on Irene and that it was a condition in terrorem
'instruction to Irene’.
● EX: “I devised this house for my daughter Helen on the condition that she will always
look after my disabled Son Charles.” Helen failed to look after her disabled brother
Charles but she could still claim the house

> Gift over: Condition subsequent not intended to be effective unless provision was made for
the rights or interest which had been determined or forfeited to be vested in some other
person.

> Condition precedent to separate child from parent

● Re Piper, a father gifted money, by his will, to his daughter’s four children who had
divorced her husband on the condition that they do not reside with their father. It was
held that the condition precedent was void because it was contrary to public policy.

> Total restriction on marriage of a person

● Morley v Rennoldson, A father had given his daughter his personal property subject
to a condition that she does not marry. If she marries, the property would be given to
others. It was held by the court that although there were medical reasons why the
daughter should not marry hence the father’s condition, the condition was a ‘total
restraint on marriage and held to be void’.

> Condition Precedent: Conditions relating to the vesting of property may be expressly stated
in writing or orally, or they may be implied from words and/or conduct. May be expressed
negatively or positively.

● Negative: Re Wolffe [1963] 1 WLR 1211—a testatrix in her will gave a sum of money
to a granddaughter of the testatrix on the marriage of the granddaughter to “a person
of the Jewish faith and the son of parents of the Jewish faith”. The granddaughter
married a man who was neither of Jewish faith nor the son of parents of Jewish faith.
As a result, the High Court held that the granddaughter was not entitled to the legacy -
she did not qualify to obtain a right to the property.
● vest in interest and possession, if the conditions upon which they are dependent are
fulfilled.

> Condition Subsequent: Conditions relating to the divesting of property may be expressly
stated in writing or orally, or they may be implied from words and/or conduct. May be
expressed negatively or positively.
 ● Negative: Re Gape [1952] Ch 743 the court held that two relatives living in the USA
would lose their rights to a property under a will if they failed to take up permanent
residence in England within six months.
● Positive: Bromley v Tryon [1952] AC 265 A testatrix devised a large estate of
freehold land to relatives who also were related to the owner of another large estate,
so she provided that if the devisees became entitled to the other large estate or the
bulk thereof they would lose their interest in the property that she was devising. The
House of Lords held that it was clear that one of the relatives was entitled to the other
large estate. One of the devisee’s lost his interest in an estate. (Breach of condition
subsequent)
● Condition to be fulfilled after the transfer of property. condition is to be strictly
complied with and the transfer will happen only after the completion of such
condition

> Under common law, selling of goods is only possible if they have been ascertained. Rights
of ownership will pass only if they have been ascertained.

> The general principle is that goods must be ascertained (identified or determined) for Saul
to claim the bullocks.

● ‘In Re Goldcorp Exchange Ltd, Investors in New Zealand bought gold and silver held
in general stock by a company, but the investors were held not to own any gold or
silver, because none had been set aside or identified for them, except for one for
whom some had been separated and set aside’.
● Re Wait, the court held that they buyers, although they paid in advance for the 500
tons of wheat from a cargo of 100 tons, they did not own the wheat for the reason that
the goods had not been ascertained yet. It had not been ascertained ‘which of the
cargo was sold to each’.

> reversions: he right to ownership of land which will return or revert to the original owner
after a prior right to that land vested in another person has expired

● EX: Max owns a freehold land says to Rex “ I am leasing this land to you to use for
farming only for 25 years”

> remainders: the right to ownership of land which will transfer to another person, often
called a remainderman, a prior right to that land which is vested in another person, has
expired.

● Rights in Remainder: Courts have accepted the contingent remainder created by

landlords where only a certain condition has been fulfilled will the interests of the
freehold vest. For example, reaching 21 years of age, or an adoption or a rejection of a
religion.
> right of survivorship: When Eli dies Sandra and Mary will hold property in equal shares.
When Sandra dies Mary will take property absolutely.
> Tenancy in Common: Ex: The three boxes broke open resulting in a quantity of kiwi fruits
rolling around in the cargo area, therefore it was difficult to separate these fruits.

> Nonderivative: Acquiring ownership to property that does not have original owner

> Special Property: Limited rights to property. EX: Julia has a limited right to a bicycle
because she is only hiring it

> General Property: Rights of ownership to the property.

> Remoteness of Vesting:

> Implied trust: when the person who owns the property does not express in a statement that
he will hold onto the property for the benefit of the other person

> Express Trust: When an individual agrees to hold unto the property for the other
individual’s benefit.
●

> Constructive Trust: Does not necessarily depend on intention of parties but imposed by
courts when they consider that a person’s conscience should be affected with regard to a
property. EX: an individual receiving a property in which he knows or should know that has
been dealt with in breach of trust.

> Vested in Interest: everything is done to enable an individual to acquire rights of ownership
of a property. If the property is owned by someone else then everything that the law requires
for them to do must be done for the transfer of rights of ownership.

> Vested in Possession: the actual enjoyments of rights and interests in a property that occurs
as soon as they are acquired (vested in interests). When these rights and interests can be
exercised or enjoyed then they are referred to as vested in possession.

> Resulting Trust: a trust presumed to come into effect when certain gifts are made to
beneficial owners owner can only take it back within 12 years of it being taken

> Doctrine of conversion: the equitable principle that converts one form of property to
another where there is an obligation to do so

> Undue Influence: arises when a person takes advantage of a person’s dependency to acquire
property from them.

> Nemo dat rule: adopted by both American and English common law as a general rule. It is
applied if an individual has purported to transfer to another the right of ownership of goods
that he does not have ownership of, the rights of ownership will not be transferred and the
individual purchasing the goods will have acquired nothing. Basically, rights of ownership of
goods may not be transferred by the seller if they do not have rights over the goods and the
individual purchasing it will not be able to acquire rights of ownership.
● National Employers’ Mutual General Insurance Association Ltd v Jones, a car
belonging to a woman in England was stolen. The car was sold by the thieves to a
man who then sold the car to another man who then sold the car to a car dealer who
had then sold it to yet another car dealer. The woman has traced the car through her
 insurers and demanded that the car be returned to her. The House of Lords held that
the car could be recovered because under the nemo dat quad habet rule the thieves do
not have the right to transfer ownership of the car to the man because they do not
own the car. That being said, the thieves (sellers) did not have title and so no title
could be acquired by the purchasers.
> Exceptions to the above rule:
● Ostensible Authority: the authority that an agent of the seller appears to have.
● This is when the individual who has rights of ownership of the goods places
those goods into the hands of another ‘whose normal business was to sell
things of that nature’, the owner is prevented from denying that person from
having the authority to sell the goods.
● Actual consent of owner to sale’ – if the seller has consent from the owner of the
goods then rights of ownership may be transferred
● ‘Special common law or statutory powers of sale or sale by order of conduct’ – sale
under special common law powers, statutory powers of sale and sale by order of the
court
● Open Market, market overt
● ‘Sale by mercantile agents and other apparent owners authorised by legislation’ (four
requirements must be met)
○ Mercantile agents can pass title only if the purchaser has no notice of any
defect in title
● Voidable Contracts
● Disposal of goods by seller in possesion of goods after sale (five requirements must
be met)
● Disposal of goods by person agreeing to buy those before property has passed to that
person
● Stolen Goods

> Void contract: confer no rights on either party.

> Voidable Contract: Valid until avoided.

> Fixture: installed in or fixed to the property, therefore becoming part of the building.
● If a building was constructed on top of the ground in a way that it can only be
removed if it were dismantled or demolished, courts have regarded such to be fixtures
because it was made with the intention to be permanently attached to the ground even
if not fitted into the ground resting on its own weight. In Elitestone Ltd v Morris,
○ Land owners built numerous wooden bungalows on that land, which were not
fixed into the ground but were resting on their own weight on top of the
ground. The owner later sought to obtain the possession of one of the
bungalows, however it was argued that the bungalow was a chattel and not
premises under the Rent Act 1977. The House of Lords held that although the
bungalow was resting on its own weight and was not fitted to the ground it
was not to be regarded as a chattel, but was premises subject to the Rent Act.

> Chattel: items of personal property. Assets that are identifiable and movable.
● Garrick v Costello: goods were attached to the building for their own comfort, they
continue to be regarded as goods owned by the tenant of the building.

> Corporeal: having a legal right over tangible things

> Incorporeal: having a legal right over things that cannot be seen or handled. Concerns itself
with intangible things.

> Realty: immovable property - it's land and anything attached to the land.

> Personalty: movable property. anything that can be subject to ownership, except land.

> “there is no equity in this court to protect an imperfect gift”

● Milroy v Lord: a wealthy man in America, Thomas Medley, executed a dead man
giving 50 shares owned by him in the bank of Louisiana to a trustee to hold for his
niece in England, Mrs Milroy, and in the event of his death to transfer the shares to
the niece. He also gave the trustee a power of attorney to deal with his shares. The
Trustee never lodged with the bank the power of attorney authorising him to deal with
the shares owned by Medley, as required by the bank’s constitution, nor did he or
Medley transfer the shares of the bank from the name of Medley to the name of Mrs
Milroy. After Milroy’s Death, Mrs Milroy requested that the trustee hand over the
shares the shares to her but he refused, and she bought proceedings to compel him
○ The Court of Appeal held that the requirements of the law with regard to the
transfer of the shares to Mrs Milroy had not been complied with, so there had
been no gift of the shares to Milroy at common law.
○ Courts of equity will not intervene because of the rule that there is no equity in
this court to protect an imperfect gift