PROPERTY OUTLINE 2006-2007
Finding
Goddard v. Winchell – a meteorite falls onto land owned by Π, Hoagland picks it up and sells it to Δ, Π sues Δ for recovery of the meteorite
Rule: If an object is of materials natural to the earth and if affixed in or on the land, it belongs to the landowner
Eads v. Brazelton – Π took steps to find an abandoned ship and when he found it, he marked it with buoys and marked that way to the ship; Π then left the site for a period of time and during that time, Δ found the ship and took the cargo it contained; Π claims he was the first possessor of the property and he has the rights to it
Rule: If property is abandoned, the title of property belongs to the first person to take it into possession
Possession requires the following:
actual, physical taking of the property; and
intent to exercise dominion and control of the property
intent must be present intent and not future intent
Armory v. Delamirie – chimney-sweep discovers a jewel in a chimney and takes it to a jeweler to be appraised; jeweler’s apprentice takes the item into a back room and comes back and gives the chimney-sweep the setting without the jewel; when chimney sweep asks for jewel back, apprentice refuses
Rule: The finder of property isn’t the owner but has superior title to the property against all but the rightful owner of the property upon which he may maintain an action
It doesn’t matter if Π wasn’t the owner because he was the prior possessor
Bridges v. Hawkesworth – Π found a package of bank notes on the floor of the Δ’s shop; Π took the bank notes to the Δ and asked him to keep the notes in order to deliver them to the owner; the bank notes were never claimed and the Π requested them from the Δ and Δ refused to give them to Π
Rule: When property is lost, finders have the right to possession against all others except the true owner
The place in which property is found makes no legal difference
McAvoy v. Medina – Π found a wallet on a table in the Δ’s barbershop; Π told Δ to keep the pocket-book in case the owner came to retrieve it, and if they didn’t, to advertise it; afterwards, Π made 3 demands for the pocket-book, all of which Δ denied; both parties agreed that the pocket-book had been misplaced
Distinction between lost and mislaid property:
lost property – property that unintentionally left possession of the owner
mislaid property – property intentionally put somewhere and accidentally forgotten
Rule: mislaid property is deemed to be in control of the owner of the property upon which it was found for the true owner
Smith Stafford Water Co. v. Sharman – Δ found a ring in the bottom of a pool located on Π’s land while cleaning it; Δ turned the rings over to the police who attempted to discover the real owners of the rings, but failed; rings were returned to Δ and Πs sued Δ for return of the ring
Rule: The possession of land carries with it the possession of everything which is attached to it or under it, and carries with it the right of ownership of anything found there in the absence of a superior claim of ownership
Hannah v. Peel – Δ buys a house which he never occupies and it is requisitioned by the government to house troops; Π finds a brooch on the window ledge and turns it over to the police and when it isn’t claimed, the police give it back to Π; Δ claims the brooch belongs to him
Rule: A lost article which is found lying unattached on the surface of the land is not possess by the owner of the locus in quo unless he had previously manifested a control over it, and is instead possessed by the finder, subject to the rights of the real owner
Schley v. Couch – Δ owned a house with an attached garage; while Π was working to remove soil from the garage, he hit a hard object which turned out to be a glass jar containing $1000
Rule: Treasure trove is a doctrine that is no longer recognized and ownership will be determined according to whether the property is lost or mislaid property and possession goes to the finder
Review of Finders Disputes
Lost property – property unintentionally left behind – finder wins
Mislaid property – property intentionally left behind but accidentally forgotten – landowner wins
Treasure trove – finder wins
Imbedded items – what is in the soil belongs with the land – landowner wins
Abandoned property – goes to the first person to exercise dominion and control – finder wins
Possession
physical possession – actual dominion and control over item with present intent of dominion and control – finder support
constructive possession – landowner is in possession of land and anything imbedded in or upon it belongs to the landowner
place of finding
private (residential) place – open only to a small class of people invited to it – favors landowner with constructive possession
public place (private place open to the public) – open to a large amount of people and courts less favorable to landowner if property is lost but more favorable if it is mislaid
finder
invitee – if somebody is invited onto property, the finder is favored because he isn’t an employee or wrongdoer
employee – employer directs what is to be done with the found item – favors landowner
trespasser – if someone is wrongfully on land, found item will most likely go to the landowner
Interests in Real Property
Freehold Estates (these are real property)
Fee Simple (always inheritable)
Fee simple absolute – Grutz à to A and his heirs
Definition – an estate of general inheritance and of potentially infinite duration
Words of purchase – who the estate is to (to A)
Words of limitation – what type of estate (and his heirs)
heirs are the people who would take the estate if the owner dies intestate
If an owner dies intestate:
if relatives, estate goes to the relatives
if no relatives, the estate escheats to the state
intestate succession
issue – lineal descendants of all generations of a particular person
collateral kin – a common ancestor but not related to each other by descent
per capita – a reference of one who takes what he is entitled to in his or her own share
per stirpes – one who takes by representation of another who is deceased and takes the deceased’s share
Cole v. Steinlauf – Π enter into a contract to purchase from Δ, but Πs discover the title to the estate is not marketable; estate was conveyed to B and B conveyed the property to Δ, but B was only conveyed “to B and his assigns forever”
Rule: at common-law, a conveyance that omits the words “heirs” does not express an intention to convey a fee simple absolute
Fee simple defeasible (base/qualified fee)
Oldfield v. Stoeco Homes, Inc. – City conveyed land to Δ subject to conditions and if those conditions weren’t met, the title would end and revert to the city; the time-limit passed and the conditions weren’t fulfilled so the city extended the time limit and keeps doing so; Π alleges that Δ failed to comply with conditions and the land should revert to the city
estate is either a fee simple determinable or a fee simple subject to a condition subsequent
fee simple determinable – an estate of general inheritance of potential infinity that is subject to an automatic termination
G à to A and his heirs so long as the property is used for residential purposes only
Language must connote an automatic termination
Grantor retains a possibility of reverter
Fee simple subject to a condition subsequent – an estate of general inheritance and of potentially infinite duration but is subject to a condition that allows the grantor to elect to terminate and revert land
G à to A and his heirs on the condition that…
when the language of a deed or will is ambiguous, look at the circumstances and constructional bias
the law does not like forfeitures and if you have to choose between an automatic forfeiture and optional forfeiture, the law will choose the optional forfeiture
Rule: If the language of the deed or will is ambiguous as to whether a fee simple determinable or a fee simple subject to a condition subsequent is being conveyed, the circumstances and the instrument as a whole should be considered together to determine intent
Rhodes v. Roberts – deed gave land away to school district for the purposes of school use or cemetery use; it appears as if the grantor wanted to convey a fee simple determinable but the deed said “to the school district and its heirs and assigns” which indicates a fee simple absolute; which estate was conveyed?
Rule: Since the law does not favor forfeitures, the mere expression that property is to be used for certain purposes will not suffice to turn a fee simple into a determinable fee
Fee simple subject to special limitation à fee simple determinable – an estate of general inheritance of potential infinity that is subject to an automatic termination
G à to a and his heirs so long as the property is used for residential purposes
G à to A and his heirs until the property ceases to be used for residential purposes
G à to A and his heirs wile the property is used for residential purposes
It is not necessary to specifically provide for the possibility of reverter in creating a fee simple determinable but because the courts do not like defeasible estates, it is good practice to provide expressly that upon the occurrence of the contingency, the estate shall automatically terminate and revest in the grantor and his heirs in fee simple absolute
Fee simple subject to condition subsequent – an estate of general inheritance and of potentially infinite duration but is subject to a condition that allows the grantor to elect to terminate and revert land
Grutz à to A and his heirs on the condition that the property not be used for commercial purposes, but if the premises are ever used for such purposes the grantor or his heirs shall have the right to re-enter and take possession
Johnson v. City of Wheat Ridge – Judge Johnson conveyed land to Δ to be used for a city park; the deed provided conditions that had to be met within a time-limit; one condition was not met within the time-limit; the deed says that if conditions are not met, the grantor, or his heirs or assigns, may re-enter and take possession of the land; Π failed to bring action within time provided by statute of limitations
Because the Π didn’t bring action within the period allotted by the statute of limitations, Δ’s fee simple defeasible turns into a fee simple absolute
Rule: violation of condition subsequent does not cause the land to automatically revert to the grantor or his heirs and if the grantor or heirs does not bring action to re-enter the premises within the statute of limitations, they are barred from doing so later
Courts will usually refuse to construe a conveyance as a fee simple subject to a condition subsequent unless there is an express right of re-entry or power of termination provided for in the deed
Fee simpl
B has a vested remainder because B is an ascertained person and there is not condition precedent to its becoming possessory
3 types of vested remainders:
indefeasibly vested remainder – to ascertained persons, not subject to any condition precedent, and not subject to being divested or cut down in size
Grutz à to A for life, then to B and his heirs
vested remainder subject to complete defeasance – subject to a condition subsequent which operates to divest or cut off an otherwise vested remainder
Grutz à to A for life, then to B and his heirs, but if B dies in A’s lifetime, then to C and his heirs
vested remainders subject to open – vested remainders which are subject to being diminished in size in favor of additional members of the class of remainderman
Grutz à to A for life, remainder to his children and their heirs
Contingent remainders – Grutz à to A for life, remainder to those children of A alive at his death and their heirs
Definition: remainder to an unascertained person or subject to a condition precedent before becoming possessory
Grutz à to A for life, and, if B marries, then to B and his heirs
B has a contingent reminder because he must marry before he has the right to protection
A remainder can be contingent for several reasons:
it’s to an unborn person(s)
Grutz à to A for life, then to A’s children (not yet born)
it’s to an unascertained class of persons
Grutz à to A for life, then to A’s children who survive him
Until A’s death, you don’t know what children will be alive
it’s subject to an express condition precedent
Grutz à to A for life, then to B, but only if Yankee’s win 2006 World Series
Contingent remainder in B because Yankee’s have to win before B has present right to possession
Grantor retains a reversion and if contingent remainder fails, estate reverts to the grantor
Abo Petroleum v. Amstutz – in 1908, James & Amanda à to B for life, then to her surviving children, but if B dies without surviving children, then to B’s heirs; in 1911, James & Amanda attempt to convey a fee simple to B, but once an interest is created in someone, you can’t cancel it and instead of a fee simple, B got the grantors’ reversion; B claims she has a fee simple because of the doctrine of destructibility
B has a life estate and the reversion interest, B’s surviving children have a contingent remainder, and B’s heirs have an alternative contingent remainder
Doctrine of Destructibility – a contingent remainder must vest on or before the preceding estate ends, or the contingent remainder destructs
Gà to A for life, and if B obtains a J.D., then to B and his heirs
A has a life estate, B has a contingent remainder, and G has a reversion
If A dies before B gets a J.D., B’s remainder destructs
Doctrine of Merger – when two successive, vested estates are conveyed to the same person, the smaller of the estates will be absorbed by the large estate
G à to B for life, and if H obtains a J.D., then to H and his heirs and then G conveys his reversion to B
B has a life estate and a reversion from two consecutive conveyances
The life estate is absorbed by the reversion in fee simple because the reversion is bigger than the life estate
B is left with a fee simple absolute
in Abo, B received a life estate and reversion in fee simple in two consecutive conveyances, so the life estate is absorbed by the reversion pursuant to the Doctrine of Merger
The merging of B’s two estates destroyed the contingent remainders under the Doctrine of Destructibility because the remainders failed to vest before the life estate was terminated
B is left with a fee simple absolute which can be conveyed away
Rule: because the Doctrine of Destructibility is a relic and since its complexity, confusion, unpredictability, and frustration are the consequences of adhering to it, it is no longer applicable
Neb.Stat. §76-116 abolished the Doctrine of Destructibility
Sybert v. Sybert – J à to Fred for life, remainder in fee simple to the heirs of his body; Fred dies childless and intestate but with a wife surviving him; battle between the grantor’s heirs, who said they retained reversion because the contingent remainder failed, and Fred’s wife, who said Fred had a fee simple and she inherited it; court held that because of the Rule in Shelley’s case, Fred was conveyed a fee simple absolute
