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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 hierarchy
b) reciprocal obligations

Alternative Rights to Possess

License- interest in property, can only use resource in specified way, like renting car or hotel room
Easement- interest in property, no right to possess, right to specific, limited use of land (drive on driveway, city utilities)


a) Heirs
b) Issue
c) Ancestors
d) Collaterals
e) Escheat

2) Heir Inheritance Preference: (only if dies intestate, ie no will)
a) Based on individual state statute: (but generically)
i) If spouse and children, share inheritance
ii) No spouse, then issue preferred
iii) No spouse/issue, then parents preferred
iv) No spouse/issue/parents, then collateral preferred

3) Rule of Primogeniture:

i) Eradicated today


Fee Simple Conditional

Alienable during grantor’s lifetime

Fee Tail

Statute de Donis Conditionalibus
Lineal descendents only
Present owner can alienate possessory interest (life estate), but not affect rights of issue
Forfeiture could not be valid longer than tenant’s life
Expires when original owner and all descendents are dead
Land will then revert to grantor/grantor’s heirs via reversion
Every fee tail has a reversion/remainder at the end

Abolishment of Fee Tail in U.S.:

Abolished by Thomas Jefferson w/ exception of a few states
Fee tails were “anti-republican” in nature

Modern example: estate tax…

Still exist: Delaware, Main, Massachusetts, Rhode Island

Modern Fee Tail Rules: ( the State defines property rights)



O’s conveyance to “A,” lacking a “gift over,” immediately turns into a fee simple
“A” would receive a fee simple absolute estate
Must discern Category I or II state when “gift over” concept exists


Life Estates

WHITE v. BROWN, Supreme Court of Tennessee, 1977

Issue: language of the case; how to interpret the will

“not to be sold”- intent to create something less than a fee simple?

prevent alienability?

“to live in”- fee simple or life estate?

Lide did not want the property to be sold

All agreed it should be sold
How do you divide the proceeds?


I: Life Estate to Evelyn White, remainder to heirs (dissent)

Jesse Lide has future interest (reversion) in fee simple
Lide’s heirs inherit estate (intestate succession) upon Evelyn White’s death
Her will does not address the reversion (to whom it will go next)

“residuary clause” does not exist
goes to heirs (issue, ancestors, then collaterals)
Collaterals (nieces/nephews)

II: Fee Simple Absolute to Evelyn White (majority)

All proceeds from sale of the house go to EW
Lide’s will lacks a “gift over;” no reference to the remainder; so did she mean to only give Life Estate? No.

Rules of Construction:

Based in common law

Statutory presumptions
Modern system of estates

Cannot place an absolute alienation on a fee