Property  Outline

I.  POSSESSION
   A. Finders Keepers, Losers Weepers
      1. Property - the legal relationship among people w/ regard to things.
           i.e.) bundle of sticks - take out one stick, do you still own the item? 
      
      2. Popular Concepts:
 a.) First in Time - The first person to take possession of an item rightfully owns it 
       - encourages  1) productivity;  2.) occupancy;   3.) investment
 b.) Finders and Losers - If you find it and no one else claims it, it’s yours.
       - encourages  1.) taking care of items; 2.) possession; 3.) rightful return to owner;  4.)honesty                                                       
 c.) Prior Possessor Prevails Over  Subsequent Possessor - 
      - rewards  1.) labor;  2,) investment; 3.) bargaining instead of fighting

      3.)Popular societal concepts:
        a.) productivity, bargaining, and protecting investment

      4.)Real(land) vs. Personal (moveable, intangible)
          more complex
          from feudalism
          land brought in real action vs. personal is brought in persona

      5.)Sources of Property Law
          a.) Constitution, determines structure of federal govt., limits power
          b.) statutes based by Congress
          c.) Administrative Regulations
          d.) State Constitutions- sets up state govt., can provide more protection
          e.) State statutes - controls lots of things, more protection, like L-T laws
          f.) State Admin. Regulations
          g.) Common law- in absence of controlling statutes, state courts decide do rules and issues           
               in judges opinions attempt to explain or justify law.

      6.)Functions of Lawyering
          a. ) counsel, research, advocate, state rules, brief cases, argue precedent, resolve legal 
                questions, figure out what P wants.

      7.) Property - rule that governs property is the relationship among people w/ regard to things
           a.) not static or fixed entity; learn tools of system to move ahead.
 
      8.) Why does Law protect ownership?
            - no one would take care of their stuff if it didn’t;  -private property is efficient;
            -encourages investment;  -helps economy
      9.) Instrumental Ends - Property Law cares about the instrumental ends
           1.) what is the best way to return an time to the owner?
           2.) Abstr. rule- The owner of prop.(locus) gets to hold onto the property(instrumental end)    
           3.) the justifications = might facilitate the return of item to true owner.
           4.) being the first in time matters.
     
     10.) Title is relative -
             a.) take finder #2, between F1 + F2 ----- F1 has poss.
                                          between TO + F1------TO has poss.
                  ---- we want to reward honesty
             b.) what are the expectations of the owner of the locus? or the expectations of people?
                  --------- you expect to keep your stuff
             c.) Instrumental Ends- court makes Laws
                  1.) encourage honesty, 2.) fulfill expectations of parties, and 3.) facilitate return to 
                       owner.
     11.) Finders Keepers, Losers Weepers - Cases
            a.) Armory v. Delamirie
               1. Facts: Armory(P), a chimney sweeper’s boy, found a jewel and took it to 
                   Delamarie’s (D) goldsmith shop. Pretending to weigh it, D’s apprentice removed the stones. D 
                   offered P three half pence for jewels, which P refused. D refused stones, P sued
               2. Issue/Rule: Finder of lost property has title to prop. superior to all the world except true owner.                   
               3. Rationale: a.) protects an owner;  b.) expectations; c.) entrusting goods to others- bailee- one who is 
                   entrusted with goods  and is expected to return them; d.) peaceable protection by law- no disruption;
                   e.) might does not mean right; f.) facilitation to actual owner is easier; g.) title is reflective- finder 
                   has poss. superior to all in the world except TO. 
     
     12.) Finder vs. “unconscious possessor”
            b.) Hannah v. Peele
              1. Facts: Peel bought large house in 1938 but never moved in. In 1940 it was requisitioned by the
                  military. While requisitioned, Hannah, a soldier, found a brooch in a room being used as a sick bay.
                  The brooch was in an obscure place, covered with cobwebs and dirt. P gave it to police. In 1942, 
                  T.O. never was found, police gave it to D, who sold it. D never possessed the house himself nor did
                  he have knowledge of the existence of brooch. P sought recovery for brooch or money’s worth.
              2. Issue/Rule: The finder must have a claim to the found property superior to that of the owner of the
                  freehold upon which the property was found (if the freehold owner was never phys. in poss., he may
                  not have actual or constructive poss. of object.  There are two elements of  poss. - phys. poss. 
                  + intention.
              3. Rationale: -reward honesty; -facilitation; -expectations;- ends are served

     13.) Distinguish Peele from Delamarie ?
            a. Peele had stronger argument cause it was his prop., he had diff. expectations that things found in his 
                home would be returned to him(the owner) The homeowner has an intent to exclude and to admit
               persons for only specified reasons(to eat dinner, deliver pizza, etc.)that do not include finding prop.
            b.  A homeowner also has strong expectations that all objects inside the home of which he is unaware of  
               are his.  Why then decision? -reward for honesty, -facilitation, expectations, ends are served
     14.) Bridges v. Hawkesworth:
            1.Facts: small parcel found on the floor of a shop in that portion of the shop frequented by public.
               shopkeeper did not know parcel was there. Parcel was lost because it was assumed that it was not
               intentionally placed on the floor. The finder got parcel over owner of the shop and can keep parcel for
               true owner.
            2.Issue/Rule: Lost property goes to the finder rather than the owner cause it was never in custody or 
               within protection of the shopkeeper.
            3.Rationale: no duty be shopkeeper; facilitation, rewarding honesty; expectations.
     
     15.) South Staffordshire v. Sharmon:
            1.Facts: employee, under landlord’s orders, was cleaning a pool of water when he discovered two rings. 
            2.Issue/Rule: A person may constructively possess something of which she is unaware if she is in poss. 
               of the premises where the article rests. They are entitled to the “prior poss.” rule.  Plus, if employee 
               finds something, he finds it for his boss.
            3.Rationale: expectations; duty of employee; private prop. as opposed to Bridges; facilitation; finder
               is on prems. for a limited purpose, it may be said that the owner gave permission to enter for a 
               limited purpose of cleaning, under direction of owner, and the owner of prems, is entitled to objects 
               found.
     16.) Elwes v. Briggs Gas Co.: 
            1.)Facts: land was leased to a gas company for 99 years. A prehistoric boat was discovered buried on 
                the leasehold. Lessor owned the boast and it did not matter that the lessor had no knowledge of the 
                boat’s existence.
            2.)Issue/Rule: A person possesses everything attached to or under his land; expectations

     17.) Achieving a balance:
            a. Honesty is important even though owner may be long gone.
            b. Courts attempt to achieve balance with expectations, honesty, and facilitation.

     18.) McEvoy v. Medina:
            1.Facts: D owned barbershop. A customer (P) found a pocketbook lying on a table in the shop. P told D
               keep the $ found in the pocketbook until the true owner came for it; otherwise to advertise that $ was
               found. Subsequently, since T.O. was never found, P demanded the $ and D refused to give it to him.
               The judge held that P could not maintain an action.
            2.Issue/Rule: Mislaid Property does not go to the finder, it goes to the owner of the premises.
            3.Rationale: 1.) property was voluntarily placed in the shop by owner, and it is assumed TO will retrace
               steps;  2.) expectations; 3.) secure rights of the owner; 4.) facilitation

B. Acquisition and Possession: First Come, First Served
      1.First in Time: How things began? Property rights exist because they are recognized by the government 
         under whose dominion the rights are asserted. In the United States, dominion is often based on the concept
         of discovery. In reality, conquest is probably a more realistic concept to explain the basis for property 
         rights. 
         a.) most acquisition was done by discovery, now they are done by purchase.
      
      2. Native American practices with the land:
          a.) land was spiritual - all parts of material world were connected to spiritual world.
          b.) land was connected to certain tribes by historical and spiritual lengths.
          c.) Natives did not think that the land could be possessed.
          d.) Family members were given boundaries-rights to use land in particular ways.
          e.) Meaning of ownership was different. It meant right to hunt, plant, etc.

      3.Johnson v. M’Intosh
         1.Facts: M’Intosh owned land in Illinois that he acquired under a grant from the U.S.  Johnson had 
            purchased same land from the Pinakeshaw Indians.  P brought an ejectment action. The district court
            granted judgment for D and P appeals. 
         2.Rule/Issue: The courts of the U.S. may not recognize a title to real property obtained under a grant 
             made by an Indian tribe.
         3.Rationale: Justice Marshall says 1.) nations agreed that discovery would give title to discovering nation.
            The discovering nation acquired exclusive rights to regulate its relationship with the Native American 
            Indians.  2.) After rev,. the U.S. obtained by treaty all rights to realty that England had. U.S. also acq 
            land from Spain. Thus, U.S. followed practices of Europe. 3.) Disc. gives exclusive rights of occupancy
            either by purchase or by conquest. Title by conquest is normally limited by humanitarian concerns, so 
            that the conquered people are assimilated into society of the victorious nation. Because they are fierce
            savages, Indians are not susceptible to becoming part of society. The only alternatives are to abandon the
            land or enforce the claims of the U.S. by force. 4.) Consequently, Indians are merely occupants and their
            poss. may be protected in peace, but they cannot transfer absolute title to others. The courts of the U.S. 
            cannot recognize title based on a grant by the Indians. a.) title gives pre-emptive right to deal with 
            people already there; b.) political reality was courts were not going to go against rationale of conquest; 
            c.) this decision, concept of property as conclusion, could have changed history.
           
      4.) More on First in Time Theory 
           a.) important for public peace, and security- we will not invest time and effort if we have no assurance
           b.) Locke’s Labor Theory - 1.) encourages productivity; 2.) investment; 3.) can be extended to mean 
                that no one can use your property.
      
      5.) Capture: At common law, in an age where many people had to hunt to survive(either needing the 
           animals for food or protecting themselves or their crops from the animals), a fairly involved set of rules 
           evolved in determining who had possession of the wild animal. Basically, wild animals(animals ferae 
           naturae) were possessed only when actually captured. If a  trap was involved, trap door had to actually 
           shut before trapper possessed the animal. A similar approach was applied to natural resources.
          
      6.) Pierson v. Post - Hunting wild animals/ Capture
           1. Facts: Post (P) and his hounds found a fox on a wild, uninhabited stretch of land. As P was hunting
               and chasing the fox, Pierson (D), knowing that P was pursuing the fox, killed it and carried it off. P
               brought a suit of trespass on the case against D for taking the fox. P won. D appeals. Judgment was
               reversed.
           2. Rule/Issue: The pursuer of a wild animal must actually capture the animal to possess it.
           3. Rationale: To allow poss. based on mere sight of wild animals would cause arguments and litigation; 
               a fox is an animal ferae naturae and a property right in such an animal is acquired by “occupancy” 
               only; authorities agree that mere pursuit or a wounded animal by pursuer is not enough, “occupancy” =
               possession; Pursuit alone is insufficient to constitute occupancy.
           4. Dissent/Livingston: The death of foxes is in the public interest. This court’s decision should be made
               with a view to the greatest encouragement of the destruction of these animals.  Wild animals may be 
               acquired without having to touch them., provide the pursuer is within reach, or has reasonable prospect
               of taking (such as in this case).
           5. Social policy: (1) Competition - Society’s object is to capture foxes (to destroy them) or ducks. To 
               foster competition, resulting in more wild animals being captured, society does not reward the 
               pursuer, only the captor. It is assumed that this brings more people into pursuit, resulting in more
               capture. (2) Ease of administration - Rewarding capture, an objective act, is an easier rule to administer
               than protecting pursuit, hard to define. The rule of capture is promotes certainty and efficient admin.
               in a situation where the stakes (a fox, a duck, etc.) are not high and not worth a lot of judicial time.
               (3) designed to destroy wild animals when it was desirable to do so. Today, this rule leads to
               overcapture of fish and over-investment in capture technology. (4) Rule also wants competition, but
               it does not protect monopolies nor investments. (5) Custom of the hunters is also a big issue.
      
      7. Ghen v. Rich :
           1.Facts: Libellant in P-town shot and killed a fin-back whale which immediately sank and was carried 
              away by the tide. Ellis found the whale 17 miles from where it was killed and instead of sending word
              to P-town, as was custom or usage in the trade, he advertised for the whale sale and sold to respondent.
              R sold blubber and tried the oil.  L heard that the whale had been found and sent a boat to claim it. 
              N either Ellis nor respondent knew the whale had been killed by libellant, but if they had wished, they
              might have known it had been killed by a bomb-lance, each of which has an identifying mark.
           2.Rule/Issue: Custom that the whale was awarded to whoever first killed the whale advances (society’s
              object), because killer could be looking for other whales without waiting around for the whale to rise.
           3.Rationale:  (1) Custom, used to promote peace, was that usage on Cape Cod for many years has been
              that a whale killed and anchored and left with marks of appropriation under these circums. becomes 
              property of the owner. (2) Other cases call whales ferae naturae and rule that complete possession 
              by taker must be established before it becomes property.  (3) Custom might be counter productive
              and lead to overkilling. (4) Custom should apply to all parties when rules are the same. 
       
      8. Keeble v. Hickeringill :
          1. Facts: Keeble owned the land that included a pond. P repaired and installed decoys, nets, and other
              equipment that he used to lure and catch wildfowl.  Hickeringill (D) on three occasions went to P’s 
              pond and discharged guns to scare away the wildfowl. D succeeded and P sued for damages.
          2. Rule/Issue: A landowner has a right to attract wildfowl to his property unimpeded by the direct
              interference of another aimed solely at keeping the wildfowl away.
          3. Rationale: (1) Public policy favors protection of those who uses skill and industry to promote trade.
              (2) Hindering trade in a violent or malicious manner is liable for damages. (3) Rules achieve ends of 
              killing the animals. (4) Hard work should not be infringed on.

      9. Constructive possession - 1.) There are no factors of poss., but you want to poss. it. You possess animals 
          on your property, but if a bird escapes, you do not posses it.  2.) Animus revatendi- Captured wild animals
          that develop a habit of return (a r) continue to belong to the captor when they roam at large. Thus if deer  
          are captured, then tamed, and return home after grazing, they are not available for capture by another. The 
          reason behind this rule is that domesticated animals are valuable to society and this effort to tame wild 
          animals is rewarded.  3.) no animus revertendi - if captured wild animal escapes, the captor loses poss., 
          and the animal is again subject to capture by another. If animal, not native, hunters may be put on notice
          that animal has escaped and some other has prior possession. 

     10. Rule of increase - offspring belongs to a mother, culture accepts this notion. ie.) if dom. animal wanders
           off and she has calves, neighbor takes care of cow and calves, the court ruled that the calves would go 
           to the mother
             a.) Advantages: takes care of the rules of nature, Habitat;  certainty resolution, always know mother; 
              awards productivity of cow owner; encourages investment in animals; clear, certain rule- cheap to 
              administer; comports with fairness   
             b.) Disadvantages: notions of fairness may conflict; prod., certainty, and fairness may not all point in 
                   the same direction.
     
11. 	Natural Resources - Oil, Gas, Water : Rule of capture encourages aggressive pursuit- allows space to be
           used more efficiently. However, court also recognized that in resources it my be better for the future 
          good to conserve. Also, promotes certainty and eliminates conflict when we prevent bottoming- drilling 
           diagonally into someone else’s resources. 
           Policy considerations - court wants to protect investment, but it also wants to reward diligence, certainty.  
     Expectations are also considered.

12. 	Creation : The notion that the person who creates property also owns it may seem elementary, but the scope of ownership is not always clear.  Apart from statutes that specifically protects creators’ rights such
          as copyright, trademark, and patent statutes, a creator’s ownership rights may be uncertain. For example, 
          an artist’s painting or a secret food formula is susceptible to being copied, diminishing the value of the
          original. 
  
13. 	No protection against imitation          
a.) 	Cheney Bros. V, Doris Silk Corp., :
1. 	Facts: Doris Silk Co. manufactures and designs silk patterns for the fashion industry. The designs have
              no such originality as would support a patent and they are impossible to copyright under the Copyright 
              Act. Cheney Brothers copied one of P’s popular designs at the beginning of the 1928 season and 
              undercut P’s prices.  D denied that it knew that the design was P’s. The parties wish a decision on the 
              equity of the bill.
2. 	Issue/Rule: P’s designs cannot be protected, even during the first season that they are introduced. 
3. 	Rationale: Learned Hand says that the public needs to be protected against monopolies. Issue has too much public impact, must be decided by legislature. A man’s property is limited to the chattels which
              embody his invention.
 
14. 	Persona as property: Persona is protected under the law, ie. Bette Midler and Ford Motors case. It goes 
    against Locke’s Labor Theory . -economic investment and invasion of privacy. Her image was falsely 
        used.
 
15. 	Smith v. Chanel : 
        1.Facts: Perfume company (Smith) claimed in advertisements that its perfume was the equivalent of the 
           more expensive Chanel No. 5 
        2.Issue/Rule: Since appellee’s perfume was unpatented, appellants had the right to copy it.
        3.Rationale:  -encouraging investment, -free market, -availability of products, - competition, -Chanel 
           lovers will still buy Chanel; -reward effort, sill, and ability

16. 	Moore v. Regents of the University of California:
       1.Facts: In 1976 Moore(P) sought treatment for hairy-cell leukemia at the Medical Center of  UCLA,
          owned by the Regents (D’s), Ds confirmed the diagnosis after conducting tests and told P his condition 
          was life-threatening and that his spleen should be removed. P was not told that his cells were unique and 
          had scientific and commercial value. After P’s spendectomy, Ds retained his spleen for research purposes, 
          and during seven years of follow-up tests, samples of P’s blood, tissue, and other fluids were taken 
          without his consent. P sued for wrongful conversion, alleging that his blood and bodily substances were 
          his “tangible personal property.”
       2.Issue/Rule: P only has a cause of action for lack of informed consent, and has no cause for conversion 
       3.Rationale:  1.) There was no conversion because he could not establish interference with property interest
          since he cannot establish that his blood and tissue are his once they re removed from his body. Once 
          cells are excised, they are no longer his. Plus, he had no legal title to them. 2.) The new cell line was a 
          new product, and he had no labor invested in them. 3.) We want to protect the future of scientific 
          research. 

C. 	GIVERS AND RECEIVERS
       
1. 	Introduction: A gift is defined as a voluntary conveyance to another. No consideration is involved. As in the case of deeds, the gift must be intended and there must be delivery. The grantee must also accept the gift. Delivery means that there must be a change of possession from the grantor to the grantee. Manual delivery is not required if it thus impractical. Instead the grantor can effect constructive delivery (e.g., handing over the means of acquiring possession, such as car keys). Some courts will permit the gift to be made by a written instrument if manual delivery is impractical (either due to size of the object or due to circumstances the parties are in.) This form of delivery is symbolic delivery. Also, the intent to transfer must be a present intent. Finally, an escrow agent can be used in conveyance.
   
•	3 requirements: intent, delivery, and acceptance.

•	why is delivery needed? 1.) to make gift concrete, to establish what giver is actually doing, realization;
2.) 	The act is an unequivocal evidence of a gift to actual witnesses of the transaction; 3.) Delivery of the  object to the donee, after the act, is prima facie evidence favor of the alleged gift.

•	Connection between delivery and intent - 1.) symbolic or constructive:
•	Symbolic delivery - handing over something symbolic of the property given. The usual case is handing
            over a written instrument declaring a gift of the subject matter; for example, Joe hands to Marilyn a 
            paper reading, “I give my grand piano to Marilyn, Joe.”  But if a gift can be handed over, it usually must 
            be handed over.
•	Constructive delivery - handing over a key or some object that will open up access to the subject matter
           of the gift.
 
2. Constructive or symbolic delivery
a.) 	In re Cohn:
        1.Facts: Cohn (D) executed and delivered in the presence of his entire family an instrument of gift for 500 
          shares of stock to his wife as a birthday present. D died six days later. At time of gift, D owned and was
          entitled to 7,213 shares of stock, which was in name and poss., of the firm’s safe deposit box.  The stock 
          had been charged off on the firm’s books on Dec. 20, 1910, and was not a firm asset after that. The firm
          was dissolved by the death of D’s brother on Au. 30, 1911. Prior to his death, D had agreed to enter into a
          new partnership to which he was to contribute some of his shares. On Sept. 22, 1911, D directed his 
          counsel to hurry the new partnership agreement because he wished to get his stock, which was to be 
          delivered when the new agreement was singed on Sept. 29, 1911, the day D died. The execution and 
          delivery of the instrument of the gift was testified by D’s two daughters, who were present at the time of
          delivery. The surrogate court found a valid gift. The excerpt doesn’t make clear the identity of the parties
          who appeal; respondents (Rs) are the executrix, trustees, and the special guardian.
        2.Issue/Rule: There was a gift inter vivos because the instrument which read “I give this day,” and D’s
           intention to make a birthday gift override the appellant’s contention that D intended to make a gift in the
           future instead of a present gift, evidenced by testimony that “he could not give her the stock because it 
           was in the company but as soon as he could get it he would give it to her.” 
        3.Rationale: Delivery may be symbolic. Common law rule required delivery only to prevent mistake,
           imposition, and fraud. Here, there is no doubt as to D’s intentions. 
        4.Dissent: No valid gift inter vivos was made cause D retained dominion and control over the gift for
           use in his new partnership. There is a clear intent to give it in the future. The instrument did not assign,  
           transfer, or set over stock; it was not a deed or instrument of gift that divested D’s poss. and dominion.
           D’s subsequent actions clearly show that this was his intent.
        5.Class notes: Intent is usually a question for the jury while delivery is usually an issue for judge.
           Court says that symbolic delivery is O.K. if it is not poss., to deliver.  Intent is key, court wants
           clear, valid, intent. Dissent argues that both possession and title must be passed. Title is not the same
           as possession.  Dissent believes unless you deliver object, no gift is made.
   
3. 	Gifts causa mortis: Gifts made in contemplation of imminent death (including surgery in which grantor may not survive). This permits death bed conveyances outside of a will. If donor survives, the gift is 
      automatically revoked. You need two things for this gift, intention and delivery of the thing given.

4. 	No symbolic delivery:
a.) 	Newman v. Bost:  
          1.Facts: The instate, a widower without issue, was stricken ill and, due to paralysis, was confined to his
             bed. In the presence of a witness, Enos, the instate gave to Julia Newman (P), a woman of 28 who had
             been his live-in housekeeper since she was 18, everything he owned. The instate, who had previously
             announced his intention to marry P, gave her several keys and announced that he was giving her
             everything I the house, then pointed out specific pieces of furniture, including a bureau, and repeated         
             that every thing in the house was hers. A few days later he died. P sued Bost(D), he intestate’s 
             administrator, for $3,000 (the amount of an insurance policy on the instate which was kept in a locked
             drawer in the bureau to which  only P had the key); $300, the value of an insurance policy on a piano 
             upon which  collected; $200.94, the value of the household property sold by d; and $45, the amount D
             collected on the sale of the property from P’s bedroom. P claimed the $3,000 and 200.94 as gifts causa 
             mortis and the $45 and the $300 as gifts inter vivos. 
          2.Issue/Rule: Constructive delivery of a gift is good only if actual delivery is not possible.  1.) Actual 
             delivery of the insurance policy was possible, he could have had Enos get it out of the bureau, and he 
             could have handed it over to Julia, thus, no insurance policy given to Julia. 2.) As for the furniture, 
             constructive delivery was possible due to size and weight. Manual delivery was impossible so delivery 
             of keys was sufficient. 3.) As to other articles of household furnishings, except the furniture in P’s 
             bedroom, title did no pass to P since they were not constructively or actually delivered to her, they 
             could have been moved. 4.) As to piano, bought by intestate, placed in parlor, called “Miss Julia’s
             piano,” But when the piano burned, the intestate used insurance money as his own, and although he
             said he would, he never did buy P another piano; thus P cannot recover the piano insurance money 
             since there was never delivery.
             3.Rationale:  1.)prevention of fraud, 2.) uncertainty, 3.) importance of intent

5. 	Retention of chattel by donor
a.) 	Gruen v, Gruen:  
1. 	Facts: Father wrote college student a letter telling him that he was going to give him a Klimt painting
                 for his birthday. P’s father stated that he would retain possession, for his lifetime, however. For tax 
                 reasons, P’s father later sent another letter describing the gift without referring to the life estate. P’s 
                 father also asked that P destroy the first letter, which P did. When P’s father died, painting was still in 
                 poss. Of stepmother. P never had physical possession of painting. D refused Ps request for poss. Trial 
                 court found that inter vivos elements were not satisfied and that a donor can not retain a possesory 
                 life estate after purportedly giving personal property to another. App court reversed.
2. 	Issue/Rule: A donor may make a valid inter vivos gift of a chattel and never surrender possession to
                donee before the donor’s death.
3. 	Rationale:  1.) all elements were met. 2.) Critical test is whether the donor intended the gift to transfer a present interest or intended he gift to have no effect until he donor died. Once an inter vivos gift is made, it is irrevocable and title vests immediately in the donee.  3.) The delivery of the letters satisfies the delivery requirement in this case. 4.) the evidence shows that P’s father intended to give the painting to P while retaining a life estate. D claims that reservation of the life estate defeated the gift. However, there is a difference  between ownership and possession.  5.) P accepted the gift because there was evidence that he had kept the second letter for over 17 years to verify the gift, and he showed that he had told others about the gift. 
  
D. 	ADVERSE  POSSESSION

1. 	Introduction: If a person who does not own land possesses it for the period of time specified in the                 applicable statute of limitations, she acquires title to he land. The prior owner loses her right to the land.
           Depending on the state, the time period for acquiring title by adverse possession is 5 to 21 years.
           Furthermore, the general rule of possessors applies to the adverse possessor before he statute of
           limitations has run. 
  
2. 	Requirements:
a.) 	Actual entry onto and possession(exclusive) of the land - possession must be exclusive and of such a nature 
                that the community would think of the adverse possessor as the true owner.
b.) 	Open and notorious - depends upon land, size, and condition; but owner must be given opportunity to find out about it
c.) 	 Continuous(uninterrupted) statutory period - possessor maintains in customary manner for statutorily required period of time; i.e., farming someone’s land for a number of years.
d.) 	Adverse - adverse possessor must have claim to land adverse to owner. If permission is obtained, no adverse possession.

    3. Policy Reasons for Adverse Possession:
a.) 	earning theory - rewards those who work the land; property law rewards those who work the land.
b.) 	punishment for lack of use of land
c.) 	quiets title - clears up title if you have been here for thirty years
d.) 	protects against trespassers; gives you time to oust them
e.) 	protects investment - if they spent time and money-its theirs
f.) 	assigns land to active claimants
g.) 	benefits society economically 

4. 	Claim of title
a.) 	Van Valkenburg v. Lutz:
1. 	Facts:   Lutz (D) bought lots 14 and 15 in 912. In 1937, Van Valkenburgh (P) purchased lots 31 and 32. Between P’s and D’s property was an unsold, irregularly shaped parcel of land composed of
                   lots 19-22. At first D used lots 18-22 for access to his property. Later, D built chicken coop on these
                   lots. He also gardened on these lots, selling his produce in the neighborhood. In 1947 P bought lots 
                   19-22 at a tax sale. P erected fence across the access way that led to lots 14 and 15 (D’s property). D
                   sued P, admitting that P owned lots 19-22 but claiming right of access across them. D won. P then 
                   sued D to have him removed from lots 19-22. D hired a new attorney and asserted that he had 
                   acquired, by adverse possession, title to lots 19-22 previous to P buying the lots at the tax sale. The
                   trial count found for D.  App. reversed and found that D had not acquired title by A.P.  D
                   appeals.
              2.  Issue/Rule: A party must occupy another’s land ‘under claim of title” in order to acquire title by 
                   adverse possession.
3. 	Rationale: 1.) In a prior lawsuit, D admitted that he was not under “claim of title”; 2.) D had no enclosure; 3.) Since D had no enclosure, he needed to show that land was improved or cultivated
                    to satisfy statute. 4.)His garden was not shown to be substantial; his shed was not improvement; 
                    D’s putting junk on the land was not a substantial improvement on the property. 
4. 	Dissent: There was substantial evidence to indicate that D had a  substantial truck farm, cultivating
                   most of the land in question. It is obvious D intended to acquire and use property as his own, and 
                   that should be enough to satisfy the statute.
5. 	Policy arguments: 1.) owners must obtain notice; 2.) Adv. Poss. must be notorious because they must have an intent to claim, and they must put owners on notice. 

6. 	Definition of  color of title - Possessor claims title via a written instrument like a forged deed, or a deed from a grantor that did not own the land. Some jurisdictions require color of title for adverse possession.

7. 	Parol Transfers - transfers where all that the succeeding adverse possessor gets is physical possession.    
a.) 	Howard v. Kunto
1. 	Facts:  Both P and D are property holders in a summer restore where the houses are used primarily 
                  for summer occupancy. Ps owned the land that was one lot away from Ds. When Ps tried to convey 
                  their holdings to a third party, it was found that the title that they held was to the lot adjacent to that 
                  which they had actually occupied. In fact, most of the property owners occupied land different from
                  what their deed gave record to. Ps then conveyed their deed to the occupant of the adjacent lot in 
                  exchange for his deed, which was for the lot occupied by Ds. Ps next brought action to have title        
                  quieted in them to the lot occupied by Ds. Trial court held that since Ds had owned the land for less 
                  than a year, and the principle of tacking was not established, the title was quieted in Ps.     
                  Ds appealed.
2. 	Issue/Rule: A person who receives record title to tract #1 under the mistaken belief that he has title to tract #2, and who subsequently occupies that tract , may use the period of possession of tract #2 by his immediate possessors (who also held record title to the other tract) for the purpose of establishing title to tract # 2 by adverse possession. 
3. 	Rationale:  1. Privity(taking title from predecessor) is needed to tack the estates in order to create the statutorily required period.  

8. 	Disabilities : If owner is disable, the law will usually give you more time on statute of limitations. For kids, the statute of limitations will not run until they reach a majority age. For disabled owners, the disability must have existed at the time of the action and is governed by the statute.

9. 	Waste: If a present possessor does not oust a potential adverse possessor, a potential inheritor may take
        action. He may either encourage ousting or sue present possessor for waste.

10. 	Adverse Possession of Chattels 
a.) 	O’Keeffe v. Snyder
1. 	Facts: P brought a replevin action to recover three paintings that were allegedly stolen from art gallery in 1946. In 1976, P sued D, owner of art gallery, to recover paintings. (P did not claim that D
                 had actual knowledge of the alleged thefts.) D had received the paintings from Ulrich Frank. Frank
                 claimed that his father had the paintings as early as 1943.  D argued that: he was purchaser for value; 
                 he had title by adverse possession, and that replevin action was bared by a six-year statute of 
                 limitations.  Trial court granted S.J.   Ap. Div. Reversed on grounds that the pictures were stolen and 
                 that the defense of the statute of limitations and title of adverse possession were identical and D had 
                 not proved the elements of adverse possession.  D appeals.
2. 	  Issue/Rule: stolen chattel can only be adversely possessed if they are discovered and the statute does 
                 not run until the artwork has been discovered to be stolen. Cause of action accrues at the time of the 
                 theft, absent fraud or concealment, unless the owner is entitled to the benefit of the discovery rule. 
                 The discovery rule causes the cause of action to run when the owner first knows, or reasonably 
                 should know through the exercise of reasonable diligence, or cause of action, including the 
                 identity of the possessor. The owner, then, has the burden of showing due diligence if she wants to 
                 toll the statute of limitations.  
         3.     Rationale: 1.) A thief acquires no title and cannot transfer good title to others regardless of their
                 good faith or ignorance of the theft. Hence, if pictures were stolen, D has no title to them. 
                 2.) To acquire title to chattels by A.P., the possession must be hostile, actual, visible, exclusive, and         
                 continuos. It is difficult to apply this doctrine to such things as jewelry and paintings. 3.) The purpose
                 of the discovery rule is to mitigate harsh results of the statute of limitations. 4.) Real property is easily      
                 seen. 5.) places some burden on owner to prove that they have exercised due diligence. 6.) the court   
                 wanted to help the art world; they now have a registry.

II.  ESTATES      

 A. Feudal estates and fee simples

     1. Introduction: The law pertaining to freehold estates has its roots in the feudal ages. An understanding of 
         these feudal roots is necessary to make sense of modern real property law.

        a.)The Feudal system - Starting with William the Conqueror, England developed a feudal ladder. William claimed the whole of England as his won property. In return for certain services (providing yearly a given quantity of food, a certain sum of money, and /or a number of knights and soldiers), William gave vast tracts to his tenants-in-chief, in order to fulfill their obligations to the king, subdivided, so to speak, their vast landholdings to subtenants who provided a given quantity of services. The subtenants would subdivide their land and obligations in turn. In time, a feudal aldder was built, on the bottom rung, the man in possession who actually grew the wheat, plucked the goose, etc. Since the services were fixed and the value of the land increased, landlords were anxious for their tenants to either die without heirs (in which case the land returned to the landlord) or to breach their obligations (in which case the landlord took the land).
              
         b.)Feudal notions of land v. Modern notions:
            1.) Land in England was a basis for wealth and power, here, it is an article or commerce much less status. 2.) The culture of England demanded feudalism, it was an interaction between law and culture.
            3.) It was simply wrong to talk about landownership in feudalism, it is called tenure unlike tenant-
landlord relationships.  4.) Developed system of vassalage- owning land s between men. Men were
rewarded with land for loyalty. 5.) They were also given land because of personal relationships with their
lord. 6.) Land was not sold or passes on, and you ca be dispossessed for many reasons

c.)Definitions of feudal terms:
     1.) seisin: being in possession of the land short of ownership. Important concept because only the holder of a freehold estate could have seisin. One was “seised” of the land if he had a freehold estate and was in possession or a tenant was in possession from him. Using the example of a landlord/tenant situation, it is the landlord that has seisin to a grantee. This was accomplished by a grantor going onto the land and the grantor’s giving the grantee, in front of witnesses, a clod of dirt or twig from a freehold estate, In a time where few persons could read or write, this formal ceremony was important to protect from fraud, duress, etc.
     2.) subinfeudation: The process of creating another rung in the feudal ladder below the particular tenant. Any tenant had a right to subinfuedate, creating a vassal beneath him. When he did so, he became a mesne (middle) lord, meaning he had a lord above him and a tenant below him.
     3.) Substitution: A tenant who did not want to remain in the feudal ladder could substitute another tenant in his place with his lords’ consent. 
     4.) primagenetica: first born son gets land, mandatory rules of inheritance; unchanged until
           1540
     5.) Escheat: If a tenant dies without heirs, the tenant ‘s position in the feudal ladder was eliminated, and possession of the land or whatever rights the tenant had reverted to the lord.
     6.) Forfeiture:  If a tenant were convicted of breaching his oath to his lord or of a felony, he forfeited his tenure to his lord. The lord retook possession or tenant’s rights. 

d.) The Decline of Feudalism - 
      1.) Statute Quia Emptores: Some 200 years after William conquered, the lords who were high on the feudal ladder had the Statute Quia Emptores enacted. This statute prohibited further subdividing of land and services. In return for this concession, the lords had to give the tenants the right to alienate their land without the lord’s consent. The principle that the land should be freely alienable was thus established. This principle of free alienability is the keystone of English and American freehold law.        
  It also marked the beginning of the decline of feudalism. In a few centuries the land was once again
              owned by the king. It caused land to be escheated . People tried to subinfeudate to avoid paying taxes.

e.) Estates in land developed. - From feudal ages evolved a system of estates in land. The system gradually simplified until all estates had to be one of six types (3 freehold and 3 leasehold). The public policy was that you should be able to sell and do what you please, thus, alienability, the ability to do with land what you will evolved. 
      1. Fee simple - A fee simple estate has the potential to endure forever. The granting language was often “to B and his heirs.”  It is an absolute grant by the grantor to the grantee with no limitations as to its duration. The occurrence of no event can cut it short (hence, it is absolute).  It has the potential of enduring forever (hence, it is simple). Typical language is “to A and his heirs.” 
      P.S. Common law required the phrase “To A and his heirs” to create a fee simple deed. 
     P.S.S. Historical development of fee simple- In early feudal times, land was held through a wholly personal and contractual relationship between the lord and the tenant swearing allegiance to him. The tenant held the land only for his life, and the lord expected to dispose of the land as he pleased after the tenants death. Through time, the tenants received the rights to inheritability  - it was natural for a tenant to wish to pass the holding, including any improvements made by tenant.; The right to Alienability - Quia Emptores gave tenants the right to alienate their holdings without lord’s consent. ; The right of Devisability - land was not devisable at law until 1540, when the Statute of wills was enacted. At that time, the fee simple had three characteristics today associated with it: it is freely alienable by the owner during life; it can be disposed of by will, it will pass to the owner’s heirs. )If none one of these things happen- of the owner of a fee simple dies intestate without heirs-the fee simple will escheats to the state.)
      2.) Fee tail - A fee tail estate has the potential of lasting forever, but will cease whenever the tenant does not have lineal descendent to succeed him. This was important in feudal times it was a common mechanism to keep land in the family of the wealthy nobles. This type of estate is recognized in only a handful of American jurisdictions. granting language was “to B and the heirs of his body.”
   3.)  Life Estate - This is an estate which will end at the death of some person. The granting
    language could be  “to , so long as he lives” or to “b for his life.” At the end of the measuring life,
    the estate ends.

f.) White v. Brown (217)
     1. Facts: Lide devised her home to white (P), “to live in and not to be sold.”  P contended that she received title to the home in fee simple. Brown (D) and the testator’s other heirs at law claimed that the will conveyed only a life estate to P, leaving the remainder to pass Ds by intestate succession. The Chancellor held for Ds and the court of appeals confirmed.  P appeals.
     2. Issue/Rule : The language of the will is construed to create in P a fee simple interest in the home.
     3. Rationale :  !.) Intent was ambiguous, thus rule of construction was applied in interpretation.  2.) The court will apply statutory rules of construction in effect in Tennessee. The statute provides that unless the words and context of the instrument clearly demonstrate an intention to convey a lesser estate or interest. This Tennessee statute is in contrast to the common law presumption that a life estate is intended unless the intent to pass a fee simple is clearly expressed in an instrument. 3.) D did not supply sufficient evidence of an intent to limit P’s interest to a life state. 4.) Doubts should not be resolved against limitation and in favor of the absolute estate. So interpreted, the caveat “not to be sold” expresses an attempt to impose a restraint on alienation of the fee, rather than an attempt to create a life estate. The attempted alienation, being inconsistent with the principle of free alienability of a fee estate, is void as contrary to public policy.
      4. Dissent: The admonition that P was to have the house to live in and “not to be sold” clearly and unambiguously creates a life estate, precluding the need to resort to statutory rule of construction.

g.)  Baker V. Weedon (226)
      1. Facts : Baker (P) sought order permitting her to sell property against the interests of Weedon’s grandchildren (Ds). Weedon bequeathed by will certain property to his thirds wife, P. The will gave P a life estate with the remainder interest in P’s children, if any. If P had no surviving issue, Ds were named as beneficiaries. The will expressly failed to provide for Weedon’s children. P remarried after Weedon’s death in 1932 and continued to live on land bequeathed to her. in 1964, the apartment of Highways sought a right-of-way through the land P was living on. Ds were, at that time, made aware of their remainder interests in the property. P and Ds made an agreement giving P part of the award from the sale to the government. P then sought a court order permitting her to sell the remainder of the land because she needed the money for living expenses. Ds opposed the sale. Although the land was of negligible agricultural value, it was of rapidly increasing commercial value.,. The chancellor in the lower court approved the sale, finding the property of negligible agricultural value.  Ds appealed.         
      2. Issue/Rule : A court can approve the sale of property where there are future interests in that property if present interstate needs and is allowed by will to use property’s equity.
      3. Rationale : 1. she was only allowed to sell enough of the land sufficient to provide for her reasonable needs. 2. The court of equity needs to preserve the estate from waste or deterioration because of its future interests. 3. The court in this case followed not the test of waste or deterioration, but the test of whether a sale is necessary for the best interests of all parties. The court determined that the best interests of all the parties would not be served by a judicial sale of all the property. 4. Policy considerations emphasize waste because the property has future interests and it has commercial value.
          
h.) Defeasible estates  A fee simple can be created so that it is defeasible on the happening of some vent, and the owner of the fee simple then loses, or may lose, the property. If the fee simple is defeasible, it is not absolute. Defeasible fees are most commonly encountered in deeds restricting the use of land. It is usually uncertain when that state or event will end the estate. Looks like fee simple, but a feasible estate ends and reverts back to another.  They may last forever or they may end due to an event. ------ there are two kinds of defeasible estates: fee simple determinable and
      fee simple subject to condition subsequent

1. fee simple determinable:  This is a fee simple estate that will automatically end if some specified event occurs. This is a fee simple because it may last forever. It is “determinable” because at the occurrence of the specified event, it will automatically end.  Typical language is “to A so long as  . . .,”  “to A while . . . ,” or “to A until . . .”   The grantor’s future interest is possibility of reverter. 
2. Fee simple subject to a condition subsequent: This is a fee simple estate (thus it may last forever) which may be cut short at the occurrence of some specified vent. It does not automatically ends, however, The grantor may end it, if he wishes, after the occurrence of the specified event. Typical language is “to A, but if A is ever adjudicated insane, then G has the right to reenter.” The granter’s future interest is a “right to reenter.”  
3. The difference. The key word is “automatically.”  Any fee simple determinable automatically ends at the occurrence of the specified event. Any fee simple subject to a condition subsequent may be ended by the grantor, if he so chooses, after the occurrence of the specified event. Of course, if the grantor id dead, then his successors are entitled to exercise the “right of entry.” Note that also the difference between the respective future interests. The grantor of a fee simple determinable has a “possibility of  reverter” since it is possible that The land will revert back to him. In the case of a fee simple subject to condition subsequent, the grantor has a “right to re-enter” because at the occurrence of the specified event he has the right to re-enter, but he odes not have to do so.  In case of ambiguity, the court will always declare the estate to be free simple subject to a condition subsequent. The reason for this is that courts disfavor the automatic divesting of estates.
  
g.) Distinctions between a fee simple subject to a condition subsequent and a fee simple determinable
      Marenholz v. County Board of School Trustees (238)
  1. Facts : Action to quiet title to real property. On March 18, 1941, W.E. and Jennie Hutton deeded property to the Trustees of School District No. 1 and their successors in interest (D), The deed provided that the land “was to be used for school purposes only, otherwise to revert to Grantors herein.”   in July, 1941, the Huttons conveyed to Earl and Madeline Jacqman 390n acres surrounding the school property, specifically excluding tract conveyed to D.  W.E. and Jennie Hutton died, leaving Harry E. Hutton as their only legal heir. On October 9, 1959, the  Jacqmains conveyed to P the 390 acres, including a reversionary interest in school grounds. D held classes on property until May 30, 1973., at which time it was used for storage purposes only. On may 7, 1977, Harry Hutton conveyed to P all his interest in the school property. On September 6, 1977, Harry disclaimed his interest in the property in favor of D, Both conveyances were recorded. The trial court held for D. P appeals, contending that the deed of March 18, 1941, did not convey a fee simple subject to a condition subsequent, followed by a right of reentry for condition broken, but instead created a fee simple determinable followed by an automatic possibility of reverter.
   2.Issue/Rule : The legal effect of the language of the deed was to indicate a fee simple determinable.
   3.Rationale : Although the deed did not contain the classic language used to create a fee simple determinable (“for so long as,” “while,” or “until”), we find that the grantors intended to create such amn estate followed by a possibility of reverter.  2.) The word “only” following the grant “for school purposes” constitutes a limitation within the granting clause. This suggests that a limits grant was intended, rather than a full grant subject to a condition.  3.) when read in conjunction with the phrase “otherwise to revert to grantors,” the granting clause seems to trigger a mandatory return rather than a permissive return. There is no language, such as the words “may reenter,” indicating that the grantor must act affirmatively to retake possession of the land.   

h.)   Restraints on alienation -  Mountain Brow Lodge No. 82, Ind order of odd Fellows  v.  Toscano 
       (247)
      1. Facts : Action to quiet title to real property. Toscanos deeded lot Lodge (P).  The deed contained  a clause which provided that if (I) the land failed to be used by P or(11) P sold or transferred the lot, then the lot reverted back to Toscanos, their successors, heirs, and assigns. The Toscanos dies. P sued heirs (D) to quiet title in itself. P lost and appealed.  P contends the restriction was an absolute restraint on alienation and thus void. D contends the covenant was created a fee simple subject to a condition subsequent.
      2. Issue/Rule : A grantor may restrict use of the land.
      3. Rationale :  1.) Conditions restraining the alienation of land are void. Clearly, forbidding P to sell the land is an invalid restraint on alienation. However, the clause limiting the property to P’s use is not an invalid restraint on alienation.  2.) A grantor may restrict the use of land.  Here, the prior owner was a member of the lodge, and it was obvious that the clause limits land to lodge’s use sin order to ensure that the land was sued for P’s purposes as a fraternal lodge. 3. Thus, the clause created a fee subject to condition subsequent with the title to the revertor in the grantors.  
     4.Dissent : The entire clause is invalid as a restraint upon alienation . The clause the majority allows to 
     stand has the same effect as the clause forbidding the sale of the land; it limits who can use the land
     without reverting to the grantors. This is impermissible. 

g.) Determinable fee and right of partial entry --Ink v. City of Canton
     1. Facts: suit for money on deposit. In his memory, descendants of Henry Ink gave 33 1/3 acres to City (D) for use as a park “and for no other use and purpose whatsoever.”  When this condition was not met, the land was to revert to the grantors. Also, the park had to be named after Henry Ink. The land was used for a park until 1961, when the tate appropriated the bulk of the land for use as roadway. The state deposited $130,000 in a fund. The sum represented the value of the taken land and the amount the remaining land declined in value. Ink (P), descendant of the grantors, sued D for tehd eppoist3ed money. D won and P appeals.
     2.Issue/Rule : The owner of a reverter should be paid when, through no fault of the grantee, the land is no longer used for its conditionally granted purposes.
     3.Rationale :  1. Fairness, usually, the grantee gets everything, but the owner of the reverter gets nothing, Unfair if the grantee has paid nothing for the land. He gets the value for the land as if he had put it to a more rewarding use than the restriction allows.  2, Thus, where the land is given to the grantee, the owner of the reverter is entitled to the following amount: The greater value of the land, less the value of the land with the restriction, which equals the amount due the owner of he reverter. he grantee gets that amount representing the value of the land without restriction.
      3.) Ink also shows that the holder of a right of entry may exercise a partial right of entry.

III. CO-OWNERSHIP

A. Common Law Concurrent Interests
     types, characteristics, creation

    I. Introduction - At common law, the three basic forms of concurrent tenancies were tenancies in common, joint tenancies, and tenancies by the entirety .

     a.) Tenancy in common : This form of concurrent ownership is the simplest. It is created by an express conveyance or when the property is inherited. Each tenant (co-owner of an interest has a sated share of the property. Moreover, each tenant has an undivided interest in the whole property. each tenant has an equal right to possess the whole property. Thus, unless his co-tenants object, one tenant can enter and use the whole property. when one tenant dies, his interest goes to his heir there is no rights of survivorship). tenants in common can have unequal shares of the property and need not have the same estate.
          1.) Unless otherwise stated, it is presumed that a conveyance creates a tenancy in common.
          2.) Tenants in common can petition the court to divide the property among them, the court will  
                do so if it is in the interests of the tenants as a whole.

     b.) Joint Tenancy: Each tenant has an undivided interest in the whole property, but the distinctive characteristic of this tenancy is the right of survivorship. When one tenant dies, the surviving joint tenants receive the decedent’s interest in the property. The decedent’s interest can never pass to his heirs (unless, of course, one of them happens to be a joint tenant).
         1.) Four unites are required to remain joint tenancy, if one is interrupted, then you have a    
               tenancy in common.
               a.) Unity of Title  - every one of the joint tenants must acquire title by the same
                    conveyance, be it a deed or a will. This requirement must be carefully scrutinized
                    for its pitfalls. Often a husband will desire to convey property to himself
                    and his wife as joint tenants. If he does this by “granting Blackacre to myself  and my                     
                    wife, as joint tenants,’ all he has created is a tenancy in common. The reason for this is that
                    at common law no one could convey property to himself. Thus, the husband’s conveyance 
                    to himself and his wife amounted to a conveyance to his wife of one-half of the property, w
                    with him retaining the other half.
               b.) Unity of Time - Each joint tenant’s interest must vest at the same time. If G conveys 
                     Blackacre “to A for life, then to her heirs and the heirs of B as joint tenants,”   all that is
                     created is a tenancy in common. There is a failure of the concurrent estate to vest in A’s 
                     heirs and B’s heirs at the same time.
                c.) Unity of interest - Each joint tenant’s interest must be equal and must be the same type of 
                     estate. Thus, a conveyance of one-third of Blackacre to A for life and the other two-thirds 
                     to B in fee simple fails because (I) the interests are not  = and (ii) because the estates are
                     not equal (one is a fee simple, the other a ,life estate).
                d.) Unity of Possession - When each joint tenant acquires his interest, he must have the right 
                     to possess the whole. Of course, after the tenancy is created, the tenants can agree that 
                     only one of them is to have actual possession of the property.

     c.) Tenancy by the entirety: This form of tenancy can exist only between husband and wife. It is 
        quite similar to joint tenancy in that the four unites must be satisfied and there is a right of 
        survivorship. However, severance by one of the tenants is impossible. In the states which still   
        recognize this form of tenancy (many states no longer recognize it), it is presumed that a conveyance  
        to a husband and wife creates a tenancy by the entirety.
       
      2.) Severance : A joint tenant may sever the right of survivorship by severing any of the four unities. The common law viewed this strictly. Modern law generally requires that the joint tenant intend to sever one of the unities.
         
         a.) Ridle v. Harmon (330)
              1. Facts : Mr. Riddle and his wife acquired a parcel of real estate as joint tenants. Mrs. Riddle 
                  decided to terminate the joint tenancy so she could dispose of her share by will. Her attorney 
                  had her execute a deed granting herself an undivided one-half interest in the real estate. The
                  deed specifically stated that the purpose of the deed was to terminate the joint tenancy. the
                  trial court quieted title to the real estate in P. Harmon (D), the executrix of Mrs. Riddle’s will
                  appeals. 
              2. Issue/Rule : A joint tenant may terminate a joint tenancy by granting his or herself one half 
                  undivided interest to himself or herself.
              3. Rationale : each joint tenancy has the right to destroy the joint tenancy without consent or
                  knowledge of the other joint tenant by conveying his or her separate estate by gift or 
                  otherwise.   2.) At common law, the only way for a person to create a joint tenancy
                  with another person was to use a “strawman,” who would receive the property, then 
                  reconvey it to the original owner plus the other joint tenants. Calif. changed this rule by
                  statute so that a joint tenancy conveyance may be made from a sole owner to himself
                  and others;  3.) Prior cases have held that a joint tenancy cannot be terminated without a 
                  using a strawman; i.e., the joint tenant would have to reconvey to the former joint tenant.
                  This is outdated, and can be met by using a trust or an associate of the attorney involved as 
                  strawman. because there is no reason other than tradition for following the feudal law
                  requirements, the strawman procedure is no longer necessary. 4.) Other ways to create an
                  indestructible right of survivorship is creating a life estate with a contingent remainder in fee 
                  to the survivor; a tenancy in common in fee simple with an executory interest in the survivor; 
                  and a fee simple to take effect in possession in the future.

         b.) Harms v. Sprague (336)  Effect of a mortgage on a joint tenancy.
               1. Facts : Harms (P) and his brother took title to some real estate as joint tenants
                   with right of survivorship. P’s brother obtained a mortgage on the joint tenancy. When his 
                   brother died, P sued Sprague (D), the executor and sole devisee, as ell as the mortgagees, to 
                   quiet title and to obtain a declaratory judgment . D counterclaimed seeking recognition of 
                   D’s interest as a tenant in common. The trial court found that the mortgage severed the joint 
                   tenancy and survived the death as lien against D’s one-half interest. The appellate court 
                   reversed, and D appeals. 
              2.  Issue/Rule : If one joint tenant mortgages his interest in the joint property, the
                   joint tenancy is not severed.
              3.  Rationale : The courts have held that a judgment lien on one joint tenant’s interest does    
                   not sever the joint tenancy unless a deed is conveyed and the redemption period has passed.
                   b.) If a mortgage is merely a lien, and not a conveyance of title, the execution of a
                   mortgage by a joint tenant would not destroy the unity of title. Early cases followed
                   the title theory of mortgages and would have resulted in the severance of the joint tenancy in 
                   this case.  c.) Because the joint tenancy survived the execution of he mortgages, P became the
                   sole owner of the property upon his brother’s death. The mortgage does not survive. P takes
                   takes the property through the conveyance which created the joint tenancy, not as his 
                   brother’s successor.  The mortgage was a lien on P’s brother’s interest, which was 
                   extinguished by his death.  
         
         c.) Delfino v. Vealencis: (346)
              1. Facts: Delfinos (Ps) and D owned a 20.5-acre parcel of land as tenants in common. D 
                  occupies the land.  Ps seek to develop the property into building lots. Ps brought an action to 
                  partition the property by sale; D moved for in-kind partition.  The trial court held that 
                  petition in kind would result in material injury to the rights of the parties and ordered that the 
                  property be sold at auction and proceeds distributed to the parties.  D appeals.
              2. Issue/Rule : Court did not properly order the sale, pursuant to statute, of the property 
                  owned by Ps and D as tenants in common.            
              3. Rationale:  1.) The couts must consider the interest of all parties and not only the economic 
                  gain of one party. The court failed to consider that D had actula and exclusive possession of
                  a portion of the property for a substnatial period of time; D made her home on the property  
                  and derives her livelihood from the operation of a business on this portion of the property.
                  
         d.) Spiller v. Mackereth: (353) - Rights and Duties of Co-ownership
              1. Facts: Spiller and Mac (P) owned a building as tenants in common. When lessee vacated,
                  D entered the bulilding, began using it as a warehouse and supplied new locks. P wrote a
                  letter demanding that D vacate half of the building or pay half the rental value.  D refused.
                  The court founf for P. D appeals.
              2. Issue/Rule: The cotenant in possession is not liable to his cotenants for the value of his use 
                  of the property in the absence of an agreement to pay rent or an “ouster”.
              3. Rationale: 1.) P’s letter was not a demand for equal use nad enjoyment of the land. 2.) Since 
                  there was no agreement to pay rent, ouster of a ctenant must be established before D is 
                  required to pay rent to P.

         e.) Swartzbaugh v. Sampson: (357)
              1. Facts:  P and her husband owned as joint tenants 60 acres of land. Her husband entered in an 
                  option to lease this property to Smapson (D).  P sued her husband and D to have the lease 
                  canceled.  (Sampson leased the property in order to construct a boxing pavilion on it. P
                  disapproved of this and would not sign any lease. Her husband and D then entered into the
                  lease without P’s knowledge.  Subsequently, the two men enetered into a second lease.)  P
                  lost in the lower court and appeals.
              2. Issue/Rule: One joint tenant who has not joined in the lease executed between her cotenant
                  and another can not maintain an action to cancel the leases where the lessee is in possession 
                  of all the leased property to the exclusion of the plaintiff.
              3. Rationale: 

         f.) Sawada v. Endo: (     )
              1. Facts: Action to set aside a conveyance of real property. The Ps were struck by a car driven 
                  by Endo (D). On the date of the accident, D owned a tenant by entirety a parcel of real 
                  property.  Shirtly after the accident, D and his wife conveyed, without consideration, the real 
                  property to their sons. The deed was recorded shortly before the auto accident trial. Ps won 
                  the auto accident and, after being unable to satisfy their money judgement from D’s personal
                  property, sought to have the above conveyace set aside so they could satisfy the money
                  judgement. (D died a few days after the auto accident trial.) Ps lost and appeal.
              2. Issue/Rule: The interest of one spouse in real property held in tenancy by the entirety,
                  is not subject to levy and execution by his or her individual creditors.
              3. Rationale: 1.) Marital estate stays in tact - permits planning for childre’s educations, family
                  emergencies. 2.)  Married Womna’s Property Acts abrogated husband’s common law 
                  dominance over the marital estate. Also inuslated wife’s interests in the estate from seprarte
                  debts of her husband. 3.) Ech spouse owns entire estate. 4.) Not unfair to creditors- they can 
                  combine signatures.

          g.) United States v. 1500 Lincoln Avenue
                1. Facts: Husband arrsted and jailed for illegal sale of pharmeceutical drugs. Govt. seized 
                    property.
                2. Rule: when one owner committs illegal acts subjecting property to forefeirture, all property
                    is forefeited.
                3. Rationale: Since wife was unaware of illegal activity, husband’s interest in tenancy should 
                    be forefeited while giving wife her right to excluive use and possession, as well as 
                    survivorship rights.  Husbdand’s interest is terminated. W has lifetime and survivorship
                    interests. W has protection against h’s creditors. Govt. can sue for any of h’s interest if W 
                    dies.

IV.        LANDLORDS  AND TENANTS

Changes in common law rules : 1. drafting leases, 2. statutes, 3. law reform litigation 

L-T relationship originated in England. 

1. Tenacy for years: - fixed period of years (not necesarily measured in years)
                                    -the calendar dates for beginning and end are ascetainanble; For example,
                                      “one year after from the date of signing this lease.” : a lease for more’
                                      than a year has to be in writing.
                                     - if entered lease orally, most courts will say it is periodic tenancy
 2. Periodic tenancy: - fixed period of time until LL or T gives notice of termination. 
                                    - examples are “from month to month,” or “from year to year.” Absent 
                                      contract, terms and conditions carry over from period to period.
                                     - requires advance notice, common law requires 6mths. to term. 
                                     - notice is to be received no later than last day of period you want to terminate.
                                     - ie.) you want out on Nov. 30, you have till end of Oct. to terminate. 
 3. Tenancy at will:   - lasts at will only so long as the LL and T desire.  Both can terminate at any
                                      time. Lease may provide for a given period of notice, such as 30 days, before 
                                      the lease can be terminated.
                                    - potentially infinite duration; many steas require notice now.
 4. Tenancy at sufferance: - A tenant who is rightfully in posession but wrongfully remain sin 
                                                possession after the tenancy expires becomes a tenant at sufference. The
                                                T is not a tresspasser and is not really a T cause is there w/o LL 
                                                permission. Tenant at sufferenace lasts until landlord either evicts the T
                                                elects to hold T to another term. The states apply varying rules as to the
                                                terms of the tenancy that apply if the Landlord elects to hold T to another
                                                term. 
                                                - there was a fixed term that was violated.

1. Garner v. Garrish: 
    1. Facts: Donovan leased house to Gerrish for $100 month.Lease was to continue until D terminated
        the agreement at his won choice. D moved in and lived there for over four yerars when Donovan 
        died. Garner, P, served D with notice to leave. D refused, and P inituaed an eviction  proceedibng     
        on claim that the lease created a tenancy at will. D calimed that lease was a tenancy for life, but    
        court garnted P S.J., holding that since lease term was indefinite, it was  month-to month term.
        Appellate affirmed,, D appealed.
    2. Rule: Tennat has a right to termiante lease at own right which means that T has a determinable life
        tenancy. 
    3. Rationale: muat asses intention of parties. Clear that donovan intended to reserve right of terminationn to Garrish.

Holdover tenants - a T who holds over(satys beyond the end of the lease period) is a T at sufference.
 The period of suffereance lasts until the LL decides to either evict holdover T (after whixh time the T
 becomes a trespasser or to hold the T to another lease term (or one year whichever is less. If the LL.
 elects to hold over foe another year, it is under the same terms and conditions as the original lease. At
 common law, there were no excuses for being a hold over tenant. Now some courts will accept excuses
 if it is apparent that R did no intend to stay beyond the term.