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Property I
SUNY Buffalo Law School
Steinfeld, Robert J.

Johnson v. M’Intosh,  (1823)
Johnson has deed from Indians; M’Intosh has deed from U.S. govt.
Rule: Property rights have always been conferred to the discoverer. Absolute title to lands cannot exist at the same time, in different persons, or in different governments.
Issue: Was Indian interest freely alienable? 
Johnson’s title is nullified- title was invalid, because Indians never had feely alienable rights. M’Intosh has valid title.
absolute title cannot be held by more than one government,
right to possession, but they lacked the right to transfer it (except to the U.S. govt.).
Right of preemption: government can buy or conquer land.
Right of Discovery
Differences in Property Rights
Exclude others
Role of the state in property
Enforces/defends property rights of those who hold the property
Recognizes owner’s right to control the resource
State defines specific rights
court of the conquerors
PIERSON v. POST, (NY 1805)
If you deprive the animal of its natural liberty or rendered escape impossible, then you have possession.
Because Post didn’t deprive the animal of its natural liberty, and has not rendered escape impossible, he did not have possession of the animal. Therefore, Pierson had a right to take the animal.
Constructive Possession
First possession = property rights
What is the legal definition of possession?
Effort invested; Physical hold; Mortal wounding
Rule: Deprives animal of natural liberty/renders escape impossible
System of Estates
1)      Estates in Land – time-dependent right of possession
a)      Based on a measure of how long you are entitled to hold the land
i)        Fee Simple
(1)   Originally required “and his heirs” in transfer (until Qui Emptores)
(2)   Heritable
(3)   Divisible
(4)   Alienable
ii)      Fee Tail
(1)   Lacks alienability****
(2)   Lacks divisibility
(3)   ONLY heritable
(a)    Right to possession may only go to issue only (“heirs of his/her body”)
(b)    remainder in fee simple always exists in grantor
iii)    Life Estate
(1)   For the life of owner
iv)    Leasehold
(1)   Renter has right to possession for length of the lease, subject to forfeit if you don’t pay rent
b)      Words of Purchase “to A and his heirs”
i)        Who is taking interest in the land?
c)      Words of Limitation “to A and his heirs”
i)        What type of estate/interest in the land
2)      Tenure (based on feudal system)
a)      Vertical h

odern example: estate tax…
Still exist: Delaware, Main, Massachusetts, Rhode Island
Modern Fee Tail Rules: ( the State defines property rights)
Fee Tail States: ME, DE, MA, RI:
Tenant can convert FT into FS
Present owner may disentail (get rid of) it “inter vivos” (during life) by conveying a fee simple during his life
Nullifies Fee Tail
Enables land to be alienable
Cannot devise a fee simple, so, if not conveyed in life to a fee simple, upon death it will pass to their issue
“to A and the heirs of his body, and if A dies without issue to my daughter B and her heirs”
Non-Fee Tail States:
Category I:
“A” gets possessory fee simple absolute at conveyance;
 O is out
Fee Tail is never created
“gift over” to B is void (not dependent on A’s issue)
“A”’s issue have no automatic rights to land
Category II:
“gift over” concept (for a limited time only)
B has future interest in fee simple, conditional upon A’s having living issue at A’s death