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The National Law Library

Volume FiveVolume FiveVolume FiveVolume FiveVolume Five

PropertyPropertyPropertyPropertyPropertyby

Francis Samuel Philbrick, Ph.D., LLB., LLD.

Professor of Law, The Law School,University of Pennsylvania

Originally published in 1939, by

P. F. COLLIER & SON CORPORATION

TP

Printed In

The United States Of America


2/1732 AntiShyster News Magaz ine www.antishyster.com adask@ gte.net 972-418-8993

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AntiShyster defined:

Blacks Law Dictionary defines shyster as one whocarries on any business, especially a legal business,in a dishonest way. An unscrupulous practitioner whodisgraces his profession by doing mean work, andresorts to sharp practice to do it. Websters NinthNew Collegiate Dictionary defines shyster as onewho is professionally unscrupulous esp. in thepractice of law or politics. For the purposes of thispublication, a shyster is a dishonest attorney orpolitician, i.e., one who lies. An AntiShyster,therefore, is a person, an institution, or in this case,a news magazine that stands in sharp opposition tolies and to professional liars, especially in the arenasof law and politics.

Legal AdviceThe ONLY legal advice this publication offers is this:Any attempt to cope with our modern judicial systemmust be tempered with the sure and certainknowledge that law is always a crapshoot. That is,nothing (not even brown paper bags filled withhundred dollar bills and handed to the judge) willabsolutely guarantee your victory in a judicial trial oradministrative hearing. The most you can hope foris to improve the probability that you may win.Therefore, DO NOT DEPEND ON THE ARTICLESOR ADVERTISEMENTS IN THIS PUBLICATION toillustrate anything more than the opinions orexperiences of others trying to escape, survive, attack

or even make sense of the best judicial system inthe world. But dont be discouraged; theres notanother foolproof publication on law in the entire USA

except the Bible.

NEWS MAGAZINEAnno Domini 2000

National Law Library Vol. 3

Proprietor, Editor &Christian Publisher

Alfred Adask

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POB 540786 Dallas, Texas 75354-0786

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ANTISHYSTER

Itdoesnotrequireamajoritytoprevail,but

ratheranirate,tirelessminoritykeento

setbrushfiresinpeoplesminds.

SamuelAdams

Preface

This brief essay on a vast subject is not de-signed as an epitome of the property law, butrather as an explanation, for students, of whatproperty is, how the property law has grown, and

in a general way how its parts are related. Con-siderable space is given to historical explana-tions and to juristic discussions. It is somewhatthe fashion of the day to criticize both, but theauthor offers no apologies for his procedure.

The property law is full of complexities andanachronisms born of modes of thought we can-not share, of social judgments differing fromthose which we should, if free from precedents,make today, of classifications inadequate forpresent needs, of subtleties and in-directionsthat have distorted and delayed the laws devel-opment. It is the authors conviction, and in hisopinion nearly every brief prepared by any law-yer justifies it, that almost nothing legal can beunderstood or appliedstatutory clause, judi-cial opinion, or general principleotherwise thanby studying its origin and its past. As for theattempt to make clear, by history and otherwise,the nature of things discussed, that has seemedmore worth while than to cram these pages witha multitude of minor rules and distinctions re-garding things whose nature a beginner wouldbe puzzled to discern through a multiplicity ofdetails.

For lack of space all annotations have beenomitted, except those giving the source of di-rect quotations. One quality likely to character-ize any brief treatment of a large subject isdogmatism; another is the accumulation of vaguegeneralities. An effort has been made to avoidboth.

Various acknowledgments must be made. Inwriting Part I, citations on occasional points werechecked, and other authorities called to my at-tention, by Mr. Morris H. Sheer and Mr. Edward I.Cutler, and particularly, on many subjects, byMr. Sydney S. Asher, the last being then a Gowen

Fellow of the University of Pennsylvania LawSchool. All of the proof has been read by Mr.Bernard Chertcoff, now a Gowen Fellow, andthanks to his care various inconsistencies, ob-scurities, and inadequacies have been eliminated.To all three of these students I am grateful foraid and criticism.

Francis S. Philbrick1939 A.D.


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77777 Chapter I. Property in GeneralChapter I. Property in GeneralChapter I. Property in GeneralChapter I. Property in GeneralChapter I. Property in GeneralI. General Concepts2. Property3. Things4. Commercial Value

II. The Content of Property Rights More

Specifically Considered1. Rights ad Rem, in Rem, and in Re

III. Property a Word of Varying Meaning.1. Ownership, Possession, Property2. Changing Meaning of Property

at Different Times3. Geographical Variances of Property4. Various Meanings for Different Purposes

2020202020 Chapter II. Seisin & PossessionChapter II. Seisin & PossessionChapter II. Seisin & PossessionChapter II. Seisin & PossessionChapter II. Seisin & Possessionas the Basis of Legal Titleas the Basis of Legal Titleas the Basis of Legal Titleas the Basis of Legal Titleas the Basis of Legal Title

1. Possession

2. Seisin3. Relation of Seisin and Possession to Title4. Consequent Role of Seisin and Possessionin Older Modes of Conveying Title5. Continuing Role of Possession in Transfersof Title

3131313131 Chapter III. ClassificationChapter III. ClassificationChapter III. ClassificationChapter III. ClassificationChapter III. Classificationof Property Interestsof Property Interestsof Property Interestsof Property Interestsof Property Interests

I. Real Property and Personal Property .1. Origin2. Some Obsolete and Some Enduring Distinc-tions

(1) Variant Rules of Devolution(2) Liability for Debts(3) Variance in the Laws Remedies

Protecting Them(4) The Recording System(5) Modes of Alienation

3. Fixtures

4. Equitable Conversion5. Persistently Varying Treatment of Realtyand Personalty .6. Tendencies toward Unification

II. Legal and Equitable Interests1. Origin of the Distinction2. General Relations of the Two Systems

III. Other Classifications

1. Normal Ownership2. Abnormal Ownership

4747474747 Chapter IV. OwnershipChapter IV. OwnershipChapter IV. OwnershipChapter IV. OwnershipChapter IV. Ownership& Divided Ownership& Divided Ownership& Divided Ownership& Divided Ownership& Divided Ownership

1. Definition of Ownership(1) Varying Content of Rights

Labeled Ownership(2) Ownership and Rights in Rem(3) Ownership and Rights in Re(4) Ownership and Rights of Definite or

Indefinite EnjoymentContent2. Divided Ownership3. Trusts As Example of Divided Ownership

(1) Has the Cestin Rightsin the Trust Property?

(2) Questions Narrowedto Controlling Issues

(3) He Holds Equitable Real Rightsin the Res.

(4) He Has Equitable Ownershipof the Res.

6464646464 Chapter V. Public PolicyChapter V. Public PolicyChapter V. Public PolicyChapter V. Public PolicyChapter V. Public Policyin the Law of Propertyin the Law of Propertyin the Law of Propertyin the Law of Propertyin the Law of Property

1. How Public Policy Has Shaped Property Law.(1) By Control of Alienation(2) By Control of the Use of Property(3) By Increasing Disregard of Title

2. A Conscious Public Policy Indispensible.

ContentsContentsContentsContentsContents22222 PrefacePrefacePrefacePrefacePreface

66666 Part IPart IPart IPart IPart I

Property in General; Nature, Divisions, Formative InfluencesProperty in General; Nature, Divisions, Formative InfluencesProperty in General; Nature, Divisions, Formative InfluencesProperty in General; Nature, Divisions, Formative InfluencesProperty in General; Nature, Divisions, Formative Influences



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6969696969 Chapter VI. GeneralitiesChapter VI. GeneralitiesChapter VI. GeneralitiesChapter VI. GeneralitiesChapter VI. Generalities

Regarding Real & Personal PropertyRegarding Real & Personal PropertyRegarding Real & Personal PropertyRegarding Real & Personal PropertyRegarding Real & Personal Property1. Meaning of Land2. Horizontal and Vertical Subdivisions of theClose.3. Simplicity of Personalty4. Occasional Peculiar Treatment of Propertyas Realty or Personalty5. Relative Importance Today of Realty andPersonalty6. Influence of Feudalism upon the PropertyLaw7. Plan of Later Chapters of Part II

7373737373 Chapter VII. Estates of PresentChapter VII. Estates of PresentChapter VII. Estates of PresentChapter VII. Estates of PresentChapter VII. Estates of PresentEnjoyment in LandEnjoyment in LandEnjoyment in LandEnjoyment in LandEnjoyment in Land

1 Distinction between Possessory and Non-Possessory Interests2. Conception of an Estate3. Some Characteristics of Possessory Estates4. Classification of Freehold and Non-Free-hold Estates5. Estates of Right and of Wrong6. Freehold Estates

(1) The Fee Simple(2) The Fee Tail(3) Estates for Life

7. Estates Less than Freehold(1) Leases and Leaseholds(2) Classification(3) Terms for Years Certain(4) Tenancies at Will(5) Tenancies from Year to Year(6) Relations of Third Persons(7) Rent(8) Abnormal Termination

8. Estates of Present Enjoyment, Generally

(1) Waste(2) Natural Rights

9393939393 Chapter VIII.Chapter VIII.Chapter VIII.Chapter VIII.Chapter VIII. Non-PossessoryNon-PossessoryNon-PossessoryNon-PossessoryNon-Possessory

Estates in LandEstates in LandEstates in LandEstates in LandEstates in Land1. Future Estates and Future Interests .2. The Origin of Future Interests3. Common Law Future Interests

(1) Reversions(2) Vested Remainders(3) Possibility of Reverter(4) Conditional Future Interests(5) Right of Entry for Breach of aCondition Subsequent(6) Contingent Remainders

4. Future Interests under the Statute of Uses(1) Shifting Uses(2) Springing Uses

5. Future Interests under the Statute of Wills6. Distinctions between Various Future Inter-ests7. Adjustment of Interests of Holders ofParticular and Expectant Estates8. Estates Held in Co-ownership

(I) Tenancy in Common(2) Joint Tenancy(3) Tenancy by the Entireties(4) Community Property

105105105105105 Chapter IX. Non-PossessoryChapter IX. Non-PossessoryChapter IX. Non-PossessoryChapter IX. Non-PossessoryChapter IX. Non-PossessoryInterests Less than Estates in LandInterests Less than Estates in LandInterests Less than Estates in LandInterests Less than Estates in LandInterests Less than Estates in Land

1. Modes of Restricting a Neighbors Rights inHis Land2. Easements

(1) Definition and Types(2) Appurtenant and in Gross(3) Negative and Spurious(4) Creation

3. Scope of Easements and Repairs of ServientTenement

4. Protection of Easements5. Suspension and Extinction of Easements .6. Profits a Prendre7. Real Covenants

(1) At Law(2) In Equity

8. Licenses9. Rent

Part IIPart IIPart IIPart IIPart IITechnical Description of Property InterestsTechnical Description of Property InterestsTechnical Description of Property InterestsTechnical Description of Property InterestsTechnical Description of Property Interests



126126126126126 Chapter X.Chapter X.Chapter X.Chapter X.Chapter X.InterestsInterestsInterestsInterestsInterests

in Personal Propertyin Personal Propertyin Personal Propertyin Personal Propertyin Personal Property1. Their Relative Simplicity2. Divided Ownership and Estates in Chattels3. Leases4. Bailments5. Pledges6. Liens7. Other Estates in Chattels

131131131131131 Chapter XI.Chapter XI.Chapter XI.Chapter XI.Chapter XI.Modes of Creating,Modes of Creating,Modes of Creating,Modes of Creating,Modes of Creating,Destroying, Renouncing &Destroying, Renouncing &Destroying, Renouncing &Destroying, Renouncing &Destroying, Renouncing &Transferring Property InterestsTransferring Property InterestsTransferring Property InterestsTransferring Property InterestsTransferring Property Interests

1. Original Titles2. Adverse Possession3. Prescription4. Voluntary and Involuntary Alienation5. The Conception of Transfer6. The General Rule of Alienability7. When May a Transferee Receive More

Than His Transferror Held?8. The Rule against Perpetuities9. Marketable Title10. Impediments to Marketability

and Restraints on Alienation11. Invalidity of Restraints on Alienation:

Of Legal and Equitable Interests

12. The Ancient Basis:Common Law Conveyancing

13. Uses and Conveyances to Uses14. Essential Character of Conveyancing

before and after the Statute of Uses15. The Evolution of the Deed16. Uses and Deeds in this Country17. Contents of a Deed

(1) Parties(2) Description of Property(3) Statement of the Interest Conveyed

18. The Execution of a Deed:in Particular, Delivery

19. Acceptance of a Deed20. Creation and Conveyance

of Incorporeal Hereditaments21. Covenants for Title

(1) Covenant of Seisin(2) Covenant of Right to Convey.(3) Covenant against Incumbrances(4) Covenant for Further Assurances(5) Covenant for Quiet Enjoyment

22. Wills and Intestacy23. Powers of Appointment24. Fraudulent Conveyances25. The Recording System



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Part I

Property In General:Nature, Divisions,

& Formative Influences



I. PropertyPropertyis thought of by lay-

men as all the things that amanowns. Lawyers, also, ordinarilytalk of property in this sensewhen thinking of a general orunlimited interest in the thinginvolved. Strictly, the law of prop-erty is the bulwark that protectsmens interests in things; and itdoes this by recognizing or de-claring that A has, as regards aparticular thing and some or allother persons (between whom

and A there therefore exist legalrelations), rights in or to thatthing, which rights may be main-tained by self-help with the lawsapprobation or maintained withits more obvious aid throughproceedings in courts of law.Courts frequently use the wordin both senses: property is morethan the mere thing which a per-son owns . . . it includes the rightto acquire, use, and dispose ofit.1

Dealing, then, with rights inor over things, when the lawdeals with the entire right-com-plex held by a man as owner (orwith a large part, or at least a veryimportant part thereoffor legallanguage is inconsistent) it isgenerally regarded as dealingwith title; if with individual andlimited rights, they have indi-vidual namesbut these are like-

wise property, and are ownedby those who enjoy them. Andtherefore the laymans use of theword property to designate theobjects of legal rights, far fromadding confusion, saves confu-sionby leaving title and otherwords to designate the rightsthemselves which the law pro-tects (see p. 25).

The above simple statementscontain many obscurities anddifficulties. What is a thing, forlegal purposes; what is owner-

ship; what is the origin and ba-sis of interests; whether rightspre-date judicial decisions, whichmerely recognize them, or arecreated for all practical legal pur-poses by the decisions; what isthe nature of legal rights whenanalyzed with reference to de-cided cases ;these are all ques-tions equally fundamental andpuzzling. Moreover, since theabove statements assume thatthere are no true legal interests

except so far as interests are ef-fectively protected by law, andsince the extent of their protec-tion has always been limited bythe procedural machinery avail-able for that purpose, it followsthat the substance of legal rightswith which substantive lawdeals has been developed or de-terminedthat is, modifiedbyprocedural law: hence called ad-

jective law. This is particularlytrue of property law in its histori-cal development.

2. ThingsThe concept of things has

sometimes been given by lawyersa very narrow meaning. Austin2

defined them as such perma-nent external objects as are notpersons, sensible objects, con-sidered as the subject of rightsand duties. However, apples,though sensible, are imperma-

nent; yet are under our lawthings and capable of beingproperty. An electric current, ora definitely reasonable expect-ancy of winning a beauty contest,are not even sensible; but elec-tricity withdrawn by tapping awire has been treated, if not asproperty wrongfully taken, atleast as property is treated whenso taken; and a beautys justifiedhopes of winning a beauty con-test have been treated as an in-

terest, for unjustifiable de-struction of which damages havebeen given. On the other hand,though a loss of expected gainswill generally be allowed as anelement of damages whenproved with the requisite cer-tainty, an unconscionable frus-tration of such an expectancy, nomatter how definite the proof ofimminent profit, may or may not

Part I, Chapter I

General Concepts



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be made by equity the basis of aconstructive trust against theunconscionable actor.

As far back as we know any-thing about it our land law wasfull of incorporeal things; butpersonal property originally pre-sented few inconsistencies with

Austins definition. Not so today.Outside of that definition

would fall all incorporeal per-sonal propertycopyrights,patent rights, promissory notes,bills of exchange, insurance poli-cies, claims to annuities, bonds,corporate stock, a seat on anexchange (most of which are ca-pable of inclusion under thevague term, choses-in-action);although such interests consti-tute today by far the greatestpart, measured in money value,of all personal property. Legalremedies have, as just stated,become available for the protec-tion of all these interests that lieoutside of materialistic defini-tions. The common-law actionsof trespass, detinue, replevin andtrover were originally designedto deal solely with corporeal chat-tels. Their application to incorpo-real interestsfor example, the

use of trover for conversion ofcorporate stock as distinguishedfrom the stock certificatepre-sented great difficulty, and bothhampered and distorted the de-velopment of property interests.

The distinction between tan-gible and intangible, corporealand incorporeal, things wasbasic in the beginnings of ourlaw (especially that of land), buthas constantly lessened in im-portance. It was never logical,

since the law deals solely withrights, which are necessarily in-corporeal. But a right that in-volved possession of somethingtangible was of enormously pre-ponderant importance in ourearly law because of its principlesregarding title and transfers oftitle (see page 45)and still re-mains of exceeding importance.

Confusion might be avoided

by excluding the word thingfrom legal language, but this de-parture from men s every day lan-guage would give only a momen-tary relief, for such artificialitiesof terminology cannot be pre-served. In fact almost every otherword, as much as property, will

be found to have a history of in-definite and shifting connota-tions. In practical treatment thelegal meaning alike of thingsand property tends toward theinfinite content of everything.Almost anything may be the ob-

ject of proprietary rights; for ex-ample, expectancies, goodwill,and for some purposes family re-lationships, sentiments or emo-tional disturbances, fall comfort-ably within both.

Now, if something is admit-tedly both a thing and prop-erty, and something else is simi-larly treated in law, that fact ishighly important; but an agree-ment that the second somethingis therefore a thing or prop-erty is not absolutely necessary.Nevertheless, it will in time cer-tainly become such. Such termi-nological embarrassments areeverywhere encountered.

Whether or not something isor is to be treated as propertyfor legal purposes is determined(or was determined at some timein the past) by applying roughtests. The chief tests have beentwo. First, are ones interests inthe thing legally protectedagainst the world generally ?such protect ion is characteris-tic of proprietary rights. Sec-ondly, has the thing commercialvalue? But there is a third test,

of public policy, in applyingwhich the courts, explicitly orotherwise, emphasize the pur-pose for which classification of athing as property is sought. So,for example, since 1853 a con-tract subsisting between twopersons has, for the purpose ofsecuring them against improperinterference by third personswith its due performance, been

increasingly assimilated to tan-gible things, whose owners havealways been protected againstsuch interference. Moreover,such contract rights (and variousother interests) have through thecenturies become assignable toan increasing extent and with

increasing ease; hence they haveacquired exchange value. Andthis increase in value has bothcalled for, and been acceleratedby, protection of the rightagainst strangers.

3. Commercial ValueCommercial value, the sec-

ond of the above mentionedtests of what is property, is un-satisfactory both historically andpractically.

Not merely the literature offiction, but life itself abundantlyillustrates the fact that a sonsexpectancy of succeeding to apatrimony may have commercialvalue in the opinion of money-lenders; yet this expectancy isonly slowly attaining any recog-nition as a property interest bythe courts. On the other handcontingent remainders, whilethey remained for centuries eas-

ily destructible and to only a verylimited extent transferable, hadvery little commercial value, yetwere always regarded as prop-erty interests. Until varying datesin the nineteenth century, a trueowner of land could not in anystate of this country convey histitle by deed so long as somethird person was actually in theadverse possession of the land(in Infra, pp. 51-52) if a rightfulpossession, as of a tenant, of

course the title was transferablesubject to such interestandthis was pure medieval Germaniclaw; yet his interest had for sixcenturies been regarded as acontinuing property interest. Onthe other hand, some things rec-ognized today as being, for somepurposes or from some view-points, property interests meetvery well, in their historical de-



velopment, the test of exchange-value. To the transfer of chosesin action such impediments ex-isted at law as must have pre-vented an early recognition oftheir property aspects; and thiswould have continued to be trueof the non-equity law even after

equity compelled the assignor toallow the assignee to sue in theformers name. Again, ones re-medial right to sue for damages(perhaps properly speaking oneform of chose-in-action) couldonce not be assigned at all, be-cause to permit merchandizingin quarrels would stimulatetransfers by the impecunious toothers who could afford litiga-tion, thus encouraging what wasregarded as undesirable discord;and this prohibition of mainte-nance and champerty still tosome extent prevails. These par-ticular rights of action are, there-fore, even today, generally notthought of as property. Neverthe-less, to a large extent they sur-vive the death of the personwronged, passing usually to hispersonal representative, if not aspart of at least as does, thedecedents personal property;

and they may be assets of hisestate in bankruptcy.

II. The Content of PropertyRights More Specifically

Considered

1. Rights ad Rem, in Rem,and in Re

If A is the creditor of ormakes a contract with B, he is

said to have against the latter aright in personam, and B is saidto be under a personal duty; andan action to collect the debt, orto collect damages for breach ofthe contract, is called an actionin personam. The same phraseis used ifthe claim is not againstone individual, but against vari-ous individuals.

One may have a contract

right to receive a thing, and vari-ous writers have called this ajusad rem, and, of course, a rightin personam. But the most im-portant right to receive a thingin our law is a property rightan owners right to regain hisproperty which another is wrong-

fully holding. The phrasejus adrem might therefore well be dis-carded, or confined to its propri-etary meaning.

On the other hand, if A ownsland he is generally said to havea rightwhich properly meansa legally enforcible claimagainst the world generally thatnobody shall without his consentcome thereupon, even beforeanybody identifies himself, bydoing so, as the one person inthe world against whom theright is to have substantialmeaning. There is a practical jus-tification for this somewhatstrange language. It is only whenthe coming onto the land iswrongful, a trespass, that dam-ages are collectible; and menhave come to feel (though the lawdid not always have this theoryor any theory) that an act can bewrongful only if a pre-existing

duty, correlative to a pre-exist-ing right, forbade it. However,since one legal relation betweena landowner and persons gen-erally would be anomalous, ithas recently become usual to saythat A holds against such per-sons a multitude of primaryrights corresponding to theirdutiesnotably their duty to for-bear from entering upon theland; and that against one ofthem who actually trespasses he

thereby acquires a secondary orderivative remedial right in per-sonam correlative to thewrongdoers duty to expiate thewrong. The pre-existing primaryrights, because held against in-dividuals, have sometimes beencalled rights in personam, al-though such individuals are notin the usual sense determinate.The more common usage is to

call them rights in rem. The con-cept of rights in rem is manifestlyunsatisfactory at best. Some willagree that it is both useless andpernicious.

A real right or right in re isa right in or over a particular res(thing). That is, it is a right which

men once thought of as exer-cised by the owner directlyagainst, or held directly in, thething; although, of course, onecan only hold rights againstother persons with reference toa thing. All real rights are alsorights in rem; but the latter qual-ity is merely characteristic of (butnot confined to) property rights,whereas real rights are exclu-sively proprietary. In our law theywere originally rights evidencedby seisin, and protected by ac-tions based upon seisin. Everyright that assumed the form ofseisin thereby become realthiswas Germanic law, and Englishlaw.

In preceding sections it hasalso been noted that mere rightsmay be treated as things. Rightsin rights were a vitally character-istic feature of our medieval law;indeed, the real-izing (which un-

der our legal system also becamerealtyizing) of rights was themost characteristic feature ofthat law. If one owns a thing,say land, one holds a complex ofreal rights therein. If one has orholds only an isolated right overanothers thing, as a right of wayover his land, one owns the landto that extent (p. 138). In eithercase there is an interesta de-sired enjoyment or economicbenefit; the law concedes a right

or rights or enjoymentin onecase a single right in the landknown as an easement, in theother case varied rights that con-stitute what is known as owner-ship .of the land. Since both ofthese rights are protectedagainst interference by any otherpersons generally they are rightsin rem. It has seemed to someimproper to say that one can



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own what is only a right in theland of another (jus in re aliena),because it then follows that onehas real rights in it as ones in-corporeal thing (jura in re pro-pria), and these rights beingenforcible against people gener-ally arejura in rem. The only dif-

ficulty lies in the foreign phases,which lead one to Roman law,which thought differently fromour own on this subject. The pre-ceding has always been the atti-tude of our law. If valuable it willbe treated as property; and wecannot avoid thinking of prop-erty as what we own.Jura in reare proprietary and protected inrem, but rights in rem are notlimited to proprietary rightsmany rights of personality beingso protected.

Unusual things treated asproperty is treated have beenreferred to (p. 3). It is also ap-parent from the examples theregiven that something may be-come legally a thing, and furtherbecome property, by develop-ment. The law being a livinggrowth, protecting interests thatstruggle for security, has ofteneliminated old types of property

and admitted new.Sometimes rights which, ad-mittedly, were originally effectiveonly in personam have becomeeffective in remasin the caseof a tenancy for years (see page26). Very similar has been thedevelopment of many other con-tract rights; although these, un-like the tenants right, remainpersonal as respects the agree-ment and its enforcement, yetthe relationship thereby created

becomes an interest treated asan object ofjura in rem. Therights of a cestui que trustagainst his trustee until latelyhave been referred to as in per-sonam but it is clear that in ad-dition the cestui que trusts in-terests in the trustees equitableobligation (and some contend, inthe trust res)constitute jura inre that are enforced in rem; that

is, they are enforced against allpersons save a bona fide pur-chaser for value. Likewise, in apurported present transfer ofafter-acquired property (futuregoods) it is a difficult problemto determine how and to whatextent true proprietary rights, as

distinguished from mere con-tract rights, are created.

On the other hand it hassometimes happened that an in-terest once broadly protected be-comes one of narrower inci-dence. In the old land law aneasement of way was ap-purtenant to both dominant andservient tenements (see page279) in the sense that a trans-feree of either necessarily tookthe attached benefit or burdenas an incident of title. But in thiscountry, because of our record-ing acts (see page 290), the bur-den does not bind a grantee ofthe servient land who gives valueand takes the title without no-tice of the burdens existenceeither actual notice, or construc-tive notice resulting from the re-cording of the conveyance creat-ing the easement. Yet of coursethe right is not the less ajus in

reaproperty right; nor wouldanybody deny that it remains ef-fective in rem, though notagainst literally everybody.

2. Content of the BroadConcept of Right

Social life involves innumer-able relationships between in-dividuals, most of which are non-

jural. But relations of great im-portancenot merely to two in-dividuals as such, but to all oth-

ers in like circumstancescometo be regarded as involving so-cial interests, and many of theseare regulated by law. That is, theybecome legal relations. It is gen-erally agreed that law deals ex-clusively with legal relations; thatlegal relations exist within thearea of constraint by law; andthat where the authorities of menover each other within such re-

lationships end, there law ends.Now, A may (1) be entitled tocontrol in some manner Bs con-duct. If that be disputed, he maycall upon a court of equity tocompel B to act or to abstainfrom acting in a certain manner;or may call upon a court of law

either to compel him to give upproperty which he detains or tocompel him to pay damages fornot having acted or for not hav-ing abstained from acting in acertain mannerin either case incontravention (allegedly) of prin-ciples regulating the relationshipexisting between them. Again,(2) A may hold an authority, un-der other legal principles, him-self to act in such manner as toalter the existing legal relationsuniting B to A or to other per-sons. If his action be challenged,his authority must, here too, bevindicated in court.

In the first case A asserts aRight in a narrow sense; an au-thority to control anothers con-duct within the framework of anexisting legal relation. In the sec-ond he exercises a Poweranability to alter an existing legalrelation. Both of these authori-

ties are included in right as or-dinarily used in legal speech andwritings. Correlative to As claimis Bs duty; and correlative to Aspower is Bs liabilityso calledno matter whether its exercise bebeneficial to B or detrimental.These two relationships of Claim-Duty and Power-Liabiity seem tobe fundamental.

However, different writers haveregarded a varying number of le-gal relationsfrom one to four

as fundamental. The number de-pends upon slight alterations indefinition. Salmond, for example,used the following: A liberty is thatwhich Imaydo innocently; a poweris that which I cando effectively; aright is that which others oughttodo on my behalf. On the otherhand, Hohfeld and his adherentshave used (substantially) the follow-ing table:



The middle line of this tableseems to be of no value unless itbe linguistic. A court often finds,indeed, that A has no claim orno power against B; but this canonly mean that their relations liein the non-jural field of freedom,that there is no legal relationbetween them (within the area of

present litigation).As for the privilege panel ofthe table, the peculiar relation ofits terms to those in the claimpanel was due to Hohfelds defi-nition of privilege as freedomfrom right or claim of anothernot including freedom, also, fromanothers power; but save forthat restriction the conceptmight, evidently, cover the wholefield of non-jural freedom. Im-munity was defined as freedom

from the legal power or controlof another as regards some le-gal relations; the last words con-fining it (unlike privilege) to thefield of constrained conductthat is, of law. Hence the immu-nity panel necessarily merely re-peats the power panel in reverse.To read from the former that Bis immune to any power in Awhen A has no power or is under

a disability, but that (reading theopposite) sometimes B instead ofbeing immune is under a liabil-ity, is the same as to read fromthe power panel that when Aholds a power B is under a liabil-ity to it, but that (reading the op-posite) sometimes A has nopower or is under a disability. All

these statements amount to say-ing that B is free from any powerheld by A.

If A voluntarily buys Bs landat a tax sale and thereafter paystaxes upon it, an equity courtmay declare that A lacked anypower (authority) to obligate B,by such acts, to reimburse him;thereby merely establishing thatA acted in the field of liberty out-side all law (or in Kocoureks bor-derland of mesonomic rela-

tionssee p. 22); all claims forreimbursement to prevent unjustenrichment remaining merelymoral until the remedy of quasi-contract takes them in. But if inthe same proceedinga suit byB in equity to have removed fromhis title the cloud of As taxtitlethe court declares that he can-not have that relief until after re-imbursing A for the latters ex-

penditures, this decision recog-nizes a true power in B to createin his own favor (by reimbursingA) a claim against A; the exer-cise of the power creating anenforcible legal relation. It is justas concise to say that A has nopower as to say that he is under(or has) a disability.

On the other hand, to saythat the beneficiary of a spend-thrift trust has an immunityagainst a seizure of the trustproperty by a creditor, or that adebtor is similarly immune asrespects his homestead or thetools of his trade, or that any-body enjoys an immunity againsta taking of his property withoutdue process of law (for exampleby a wrongful levy), may ofcourse be linguistically permis-

sible and even usefuland thedecisions in many legal contro-versies have been so stated; butthese decisions merely mean, atbest, under Hohfelds defini-tions, that the creditor has nopower. However, the power,here involved would be that ofsetting in motion the judicial ma-chinery for enforcement of a

judgment that has sustained a

(1) One may have:

(2) The opposites of the preced-ing (i.e., the contrapositions ofthe same person when he lackssuch authorities or such exemp-tions) being, respectively:

(3) The correlatives of the au-thorities and exemptions under(1) descriptive of the positionof a second person against whomthe authority or exemption ex-

istsbeing respectively:

CONCEPTSOF NON-SUBJECTIONTO ANOTHERS CONTROL

BECAUSEOF:

A Privilege An Immunity

CONCEPTSOF LEGALAUTHORITY OVER ANOTHER

BECAUSEOF:

A Claim A Power(or Right)

A No-Right A Disability A Duty A Liability

A Duty A Liability A No-Right A Disability



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claim of the creditor. Aside fromthe possible undesirability oflooking upon this as a power, itseems that such decisions intruth hold that the debtor has arightto control the acts of oth-ers who seek to take the prop-erty in these forbidden ways.

These cases, therefore, seemalso to fall outside of the field ofpower.

They fit perfectly, however,under claim and immunity asused by Kocourek. For Kocourekuses privilege and immunity asaffirmative concepts. To him animmunity is not merely freedomfrom anothers act (which wouldtake us into the non-jural fieldboth as to claims and powers)but is the capability ofprevent-ing anothers act, positive ornegative; and that capabilitymust reside in a claim, becauseof his definition of the latter asa legal capability to require apositive or negative act of an-other person. Likewise, he usesthe word only when the protec-tion is an exception to the gen-eral rule of law. Thus immunityis a special kind of claim; onlya claim to the contrary kind of

act. The word is thus useful,though not adding any new formof relation.

A privilege in Kocourekssense, which is its ordinary senseboth in and outside the law, is afreedom of action or inaction re-sulting from the removal of aprohibition normally existingagainst such action by some ruleof lawor, outside law, of mo-rality or etiquette. Because theholder of a privilege has a capa-

bility of effectively refusing to actas another could normally de-mand, Kocourek defines a privi-lege as a special kind of power.But it is to be noted that itsholder does not himself alterexisting legal relations; the lawplaces him exceptionally outsidethe normal relations. The exist-ence of a privilege, moreover,always depends upon the choice

of the normal rule escape fromwhose constraint creates theprivilege. Usually the form andthe exception are both fixed bytraditional language; not neces-sarily logically fixed.

That this is not always so,however, is illustrated by the fol-

lowing examples. A tenant for lifeor years who is unimpeachablefor waste is privileged to use theland in a manner which gener-ally subjects a tenant to a claimfor damages. A sheriff may justi-fiably enter any close to serve awrit; a landlord may properlyenter the leased tenement atproper times to inspect them. Amay rightfully enter upon Bsland to take As chattels, wrong-fully placed there by B or with Bsconsent, or sold to A by B or withhis consent while on Bs land;may enter to reput thereon Bschattels wrongfully left on Aspremises; may enter to save hisown or some other persons life.He may pass over Bs land toavoid a flooded portion of a pub-lic road; or to collect cattle stray-ing therefrom without his fault.He may destroy his neighborsproperty to check a conflagra-

tion. In all these cases there areprivileges both in the Kocour-ekian and the Hohfeldian sense.But in all of them, also, the dis-regard of normal restrictions thatare notbinding upon the actualactor causes no alteration of le-gal relations previously existingas to him, nor does it involve thecreation of new ones; that is, itdoes not involve the exercise ofa power in the ordinary sense.Again, it is said that a land owner

is privileged, in Kocourekssense, to go upon anothers landto exercise a power to abate anuisance thereon maintained;and that he is privileged to mu-tilate on his own land aneighbors trees in abating thenuisance of their encroachmentupon the destroyers soil and air-space. In each case the departurefrom a norm is clear, but there

seems to be no power. The meretermination of a course of wrong-ful conduct does not alter exist-ing legal relationsthe wrong-doer remains a wrongdoer; theother partys act merely ends theperiod for which a claim for dam-ages is available. The act in ex-

ercise of the privilege merelymakes manifest that the normalrelation is, by rule of law, absent.

On the other hand a landlordmay (particularly in early timeshe could) distrain upon histenants chattels as security forthe payment of rent in arrear.The exercise of the privilege ishere incidental to the exercise ofa true power that creates a lien.

Hohfelds privilege is suffi-ciently broad in terms to includeall the foregoing Kocourekianprivileges. Privileges in bothsenses are also present if Astrikes B in self-defense; if A pub-lishes statements that would bedefamatory but for Bs publiccharacter or As character (as awitness or legislator) when theyare uttered; if A enters upon Bsland by license. But to find inthese cases a power exercised byA, an alteration of legal relations,

seems impossible. On the otherhand, when a constable kills Bsstray dog, or when a landownerejects a trespasser without un-due force, there are present aHohfeldian privilege and power,but a Kocourekian power onlyprovided we choose as our normin the first case (for in the sec-ond doubt can scarcely exist) therule that constables may undercertain restrictions kill dogs with-out liability therefor, and not the

rule: one citizen may notormay not except in self-defensekill anothers dog without liabil-ity therefor.

Hohfelds privilege includesa field often conceived of as out-side all lawwhere one may, forexample, destroy a neighborsbusiness by fair competition,sue or show leniency to onesdebtor, cultivate or walk in ones



garden, drive one s car, study orburn ones book. Certainly allthese acts are called lawful; thelast three are said to be inci-dents of title, and are at leastnaturally referred to in explain-ing that conception. Courts haveoften declared that the right to

acquire and enjoy property in-cludes a right to make con-tracts to secure it; and the Su-preme Court of the United Stateshas held the right to contractto be property. That the latterright is essential to the enjoy-ment of property is evident. Yetsuch privileges and rightsseem to be liberties; just as theright to engage in private bank-ing was a liberty until statutesmade that area of freedom anarea of law. And even where truerights are involved, as JusticeHolmes has remarked, a largepart of the advantages enjoyedby one who has a right are notcreated by the law.... What thelaw does is simply to preventother men to a greater or lessextent from interfering with theacts of enjoyment.3 Freedombeing particularly precious, menare litigious and courts corre-

spondingly much occupied inprotecting it. Particularly, menhave realized that one mansproperty may restrict anothersliberty, or insure his own. Hencethe protection, even constitu-tional in this country, of the lib-erty to acquire property. But thesuperabundance of judicial dis-cussions and delimitations ofthat liberty, or of other liberties,does not make them a part of thefield of law as ordinarily defined:

mens steady desire is that theyshall remain outside that field. Ifthe acts above referred to areacts-within-the-law, then almostall human actsincident to theenjoyment of contract and prop-erty, and lawful expression ofpersonalityare equally so; andlegal relations would exist as toall of them between each citizenand all other members of the

community. Inasmuch as legaltraditions and general customsare such that few of these actsare ever challenged, hence needand receive no protection by ju-dicial pronouncement, perhapsno great harm results from theirrecognition as privilegesthey

are like the infinitude of rightsand duties in rem which neverhave a practical existence; but,seemingly, their recognition asprivileges has no advantage.Under Kocoureks definitionsthey are mere extra-legal liber-ties; liberty ending where theconstraint of law begins.

The word power has longbeen used to designate an abil-ity in A to alter Bs legal relations,with A or other persons, withoutBs concurrent action and usuallyindependently of positive actionor immediate control by a court(such as is present in the distri-bution of a decedents estate tohis next of kin made by the ad-ministrator).

Sometimes such exercise ofa power is in performance of aduty, as when a conveyance ofland is made in pursuance of acontract with B or an agency for

C, or when A exercises a specialpower of appointment held intrust (i.e., he passes Bs title, bydeed or will, to some of a groupthat is the beneficiary of thetrust). In these cases the exer-cise of the power plainly createsvarious new legal relations, andit terminates the potential con-straint by judicial process towhich the holder of the powerhad been subject. Manifestly, noHohfeldian privileges can here be

present. Whether Kocourekianprivileges are present again de-pends upon the choice of thenormal rule (that applicable topersons generally or that appli-cable to administrators and do-nees-ofpowers) whose relaxationwould create privileges.

In the vast majority of cases,however, powers are exercisedneither in performance nor in vio-

lation of a duty. This is true ofany landowners power to makeany person a gratuitous granteeof land; of any chattel ownerspower to abandon title thereto,and his further power to create,by such abandonment, in anyother person who desires the

chattel a power to acquire origi-nal title thereto by occupancy; ofthe power of a devisee or gratu-itous grantee to refuse the titlealready conveyed, thereby divest-ing himself of his new legal rela-tions. If A licenses B to cross landno trespassory relation ariseswhen B enters, but A has a powerto restore, by revoking the li-cense, Bs duty not to cross un-permitted. In all these casesthere is a Hohfeldian privilege toexercise a power, but none inKocoureks meaning of the word.

Other examples are thepower of some bailees to gainliens on chattels by improvingthem; the power to subject theowner of an abandoned ship toclaims for salvage; the power ofone assignee of a credit-claim togain priority over earlier assign-ees thereof by giving prior no-tice to the debtor; a pledgees

power to sell his debtors pawnafter default. If land is limited toA in fee, subject to a conditionallimitation over to B in fee that isdependent upon Bs conduct, Bhas a power to gain the title bysatisfying the condition. If A benamed grantee in an instrumenthanded to a third person with in-structions to give it to A whenhe satisfies a condition, he re-ceives immediately at least apower to acquire the title. And

where a creditor holds a claimbarred by the statute of limita-tions the debtor has a power toreestablish, by a part payment ora promise to pay, the originalclaim-duty relationship. In allthese cases there is a Hohfeldianprivilege, but whether there isone in Kocoureks sense depends(as stated above) upon what istaken as the field of operation of



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the normal rule. In the last threecases such a privilege seemsabsent. In the three precedingcases there is no such privilegeunless the normal rules are takento be those which, respectively,regulate the unsolicited improve-ment of anothers property gen-

erally (not merely abandonedships), fix the general ranking ofsimilar claims in order of time,and deny to creditors generally(and even to lien-holders) powerto sell by sell-help their debtorsproperty. In the first case such aprivilege is more clearly, by ordi-nary legal phraseology, recog-nized as present.

All the terms are manifestlyartificial. Rightlong used tocomprehend Hohfelds right andpower, and privilege in theKocourekian senseis restrictedto one of those three authorities.Duty, which has apparentlyserved as the correlative of all inserving as that of Right in itscomprehensive sense, is similarlynarrowed. Again, a layman wouldunderstand privilege to be re-lease from any normal con-straintwhether imposed byanothers claim or by his power

(or possibly by his privilege); butthis is not so under Kocoureksdefinition. The employment ofdisability as the negation ofPower alone carries an implica-tion that Power comprehends allability to constrain others. It isequally arbitrary to limit liabil-ity exclusively to constraint byanothers Power. Immunitywould mean to laymen absenceof constraint by any of the threeauthorities with a correspond-

ing complexity of opposites andcorrelatives; but Hohfeld con-fined it to the field of power.However, arbitrariness of defini-tions seems to be an inescapableprerequisite to obtaining anysatisfactory terms.

There are other difficulties ofmore substance. It seems evidentthat the vast scope of theHohfeldian privilege lessens its

usefulness in analysis. But someillustrations are useful. Considerthe offer of a contract to buyland. Such an offer does alter theofferees legal relations, providedwe assume that every possibleofferee stands, before any offeris made, in legal relations with

all other persons as possibleofferors.

At any rate, the actual offereeacquires a power to bind the of-feror, by acceptance, to a right-duty relationship. In Kocoureksterminology, therefore, the offeris the exercise of a mesonomicpowernot totally outside thelaw (anomic) nor already coer-cive (zygnomic), but potentiallycapable of becoming coercive.The offer restricts, in a sense, Bspreexisting total freedom fromcontractual alliances, but only byenlarging his capabilities of ac-tion, enabling him to step, byacceptance, from outside the lawinto its field of coercive relations.On the other hand, if the offerbe one of a gratuitous convey-ance of land, or an oral offer of agift of a chattel not handed over,no legal results whatever followacceptance; and it would there-

fore seem impractical, lookingbackward, to regard the originaloffer-power as other than a lib-erty (Hohfeldian privilege) out-side the law. By the same test, itmight seem practical that void-able legal relationssuch as arescindable sale induced byfraud, or the sales and convey-ances of infants and bankruptseven though ultimately actuallynullified by exercise of a power,should be meanwhile regarded

as true albeit destructible legalrelations; yet also practical thatacts which are presently withoutlegal effect, although not voidas an infants executory promise,or a contract made for one per-son by another who lacks author-ityshould be regarded(Kocourek) as lacking legal char-acter,- albeit capable of vivifica-tion by affirmance. But it does

not seem possible to include, asKocourek does, among legal re-lations (relations existingthrough and for the law) pow-ers to break contracts or com-mit crimes or torts; although truelegal relations are of course cre-ated by such wrongful acts

which relations are alterations oflegal relations theretofore exist-ing under the accepted doctrineof rights in rem.

In short, analysis of the looseconcept of right still presentsdifficulties, and terminology can-not be regarded as settled. It alsoseems clear that if the distinc-tions between the componentelements of that general conceptshould be made the basis for dis-tinguishing decided cases inseeking precedents they arelikely to cause more harm thangood: the vague term rightseems sufficiently -to cover thesubstance of the interest towhich the law should attend.

It is due to the varied con-tent of what are loosely calledrightsfrom inattention tothat variety, or emphasis for im-mediate purposes upon one oranother elementthat there

have resulted the divergentmeanings of property- above il-lustrated (pp. 3, 4), and which willnow be further illustrated.

III. PROPERTY A WORD OFVARYING MEANING

I. Ownership, Possession,Property

The words ownerand own-ershipapparently date from the

mid-fourteenth century and latesixteenth century respectively. Intheir place the phrases generalproperty and special propertywere earlier (and are still) em-ployed, but apparently onlyrarely down into the sixteenthcentury. In the sense of a mansvaluable belongings, the wordproperty was apparently rarebefore the eighteenth century.



The place of all the precedingwords was long filled in commonlegal usage by the words pos-sessor, possessions, estate, or bysuch phrases as he who has thething, he to whom the thingbelongs. In other words, thegeneral signification of the words

property and ownership was de-veloped, under other names, be-fore those words were used;moreover, all the words abovereferred to remained words ofcommon speech.

Even under more favorablecircumstances the vast changesthat have taken place, in thecourse of centuries, in the lawreflecting alterations in the pro-cedure of the courts, in the na-ture of commerce and business,and even in the social funda-ments underlying thesewouldhave prevented that fixation ofcontent which is essential toterms of precise meaning. Ofthose modes of user whichpeople generally consider in-separable from the ownership ofproperty some have apparentlyalways existed as liberties out-side the law, some have a rela-tively modern origin in statutes,

most have for centuries beenregulated by the non-statutorylaw; but the limits of their enjoy-ment have varied much histori-cally and from place to place.Title is not today what it oncewas even as regards land, al-though that has for many centu-ries been the best protected ofall mens belongings. Much lesshave rights remained unalteredregarding even the most com-mon and important of particular

interests in land, or regardingmany forms of personal property.

As for property in thelaymans sense of interest pro-tected, variations in these inter-ests have been vast; not merelybe-cause shrinkages in protec-tive rights have wholly removedsome things from the field ofproperty while expanded pro-tection has fortified the position

of others, but also because to-tally new interests have comeinto the domain of law; that is,have by its protection been madeproperty.

As already said, it is usuallymost convenient as a matter ofwords to refer to the thing or in-

terest protected as property,although in legal effect the ref-erence is to the complex of pro-tective rights that give legal con-tent to. the. interest.

2. Changing Meanings ofProperty at Different Times

The changes in the meaningof property at different timesareillustrated in a multitude of ways.In considering a few examples itis useful to bear in mind the twosenses in which the word is used.

Consider the development ofleaseholds. These scarcely wereheard of before the late twelfthcentury; at that time the tenanthad only a contract claim againsthis lessor; he had notand neveracquiredseisin, which was thebasis of the only interests rec-ognized by the feudal land law;and consequently his interestwas not, and it has never be-

come, real property. Yet he had,as soon as leases are heard of,somewhat of a real remedyi.e., the land was specificially re-coverable by him. First from hislessor, against whom covenantsecured specific performance,orif that was impossible be-cause a second tenant had re-ceived itother lands of equalvalue under a warranty impliedfrom the lessors mere covenantthat the termor should enjoy the

land. Then (before 1250), againstsuch a second lessee. And finallyagainst all persons, mainlythrough the long development ofthe action of ejectment out oftrespass, partly by statutes. Thesecurity of occupation thus as-sured him must steadily haveincreased the desirability andpromoted the assignability ofleaseholds; the statute of 32

Hen. viii c. (1540) transformedthe covenants of the parties into

jura in re (see page 296); thewhole institute became one ofproperty law. It is evident in thiscase how a widening conceptionof wrongs, and correspondingdevelopment of duties, were at

once made effective through andrecorded in legal remedies; andas the duties acquired a gener-alized and stable character theircorrelative rights entered thelaws consciousness. Such hasbeen the general course of legaldevelopment. The effectivenessof rights means the security ofinterests thereby protected. Inboth senses property is simulta-neously established.

The common law declares allcontingent estates, when theperson to take it is not ascer-tained, to be a mere possibilitynot coupled with an interest, andto be neither devisable, descend-ible, alienable by voluntary con-veyance, nor subject to execu-tion... Such a naked possibility isin law neither an estate, property,right nor claim. One having sucha possibility may in the futurehave a right or claim, but cannot

be correctly said to have any ex-isting claim.4 Contingent re-mainders have been recognizedproperty interests for centuries,but it is only since statutes have,very recently, been making themindestructible, that they have at-tained importance as assets inbankruptcy. Most of the forms ofincorporeal personal propertynamed above (p. 3) are, substan-tially, of very modern origin;some of them are throwing out

new forms of still indefinite ex-tent. So far as regards attach-ment of or execution against adebtors property, it is onlywithin the last century that eq-uitable interests have beenbrought within that description.

Powers to dispose of land byconveyance inter vivoshave var-ied exceedingly from age to age.Originally, they could not be con-



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veyed free of the preemptionrights of the grantors heirs. Inboth England and the UnitedStates public policy has at differ-ent times been very marked inimpeding or obstructing trans-fers of landed property (see page162). The modes of conveyance

have been subject to require-ments whose strictness andsubtlety made the law of realproperty infinitely complex.

As regards wills much thesame is true. A man is today per-mitted to dispose by his will ofany property which, were thereno will, would pass either to hisheirs or, through his personalrepresentative, to his next of kin;and today rights of action maygenerally be so disposed of,since they have come generallyto survive the death of theirholder. But great limitationsupon such powers of disposalexisted in our earlier law. Indeed,even today there by no meansprevails judicial unanimity in as-serting the existence of a basicconstitutional rightas part ofthe title to property either todispose of this by will, or to haveones heirs or kindred take it

under the intestacy laws. On thecontrary, the majority of courtsconcur in excluding these fights,save by tolerance of legislatures,from the right-content of prop-erty.

Similarly, the fights of entryof a disseisee and the right ofentry to enforce forfeiture forbreach of a condition subse-quent (pp. 52, 254), although de-scendible, were in the old law notalienable by will or deed.

3. GeographicalVariances of Property

Geographical variances in themeaning of property, even fromstate to state in this country, areequally clear, notwithstandingour background of common ex-perience and the general similar-ity of our basic legal purposes.This is particularly true of prop-

erty in the sense of right-contentor titlefor the objects(or sub-

jects, as many prefer to say) ofproperty rights are probably al-most identical throughout thecountry.

If one owns land in differentstates, ones enjoyment thereof

may be restricted by infinitelyvarying public control under thepolice powermunicipal ordi-nances respecting fire-risks, thekeeping of hogs, utilization ofthe land under zoning ordi-nances, state statutes regulatingrural drainage and school dis-tricts, and so on. The non-statu-tory law respecting nuisanceswill similarly vary; the ownersstatus will not be precisely thesame in any two states as mort-gagor or mortgagee, or as re-spects the rights of creditorsagainst the property under judg-ment and equitable liens, andthrough executions. In case ofthe owners death intestate, therules of different states will varyin fixing the degree of relation-ship to the decedent withinwhich persons sharing the landas heirs must fall; or in determin-ing what other persons (particu-

larly widows, adopted and illegiti-mate children, collaterals of thehalf-blood) shall be statutoryheirs. In the few states recogniz-ing community property ofspouses the whole conception ofindividual title varies from thatelsewhere prevailing. If land bea- homestead the owner enjoysin all or nearly all states an im-munity, as regards it, to attacksby creditors; this being of veryrecent origin, created in two-

thirds of our states in the lastfifty years.

If one buys an automobile inone state and drives it into oth-ers, the sum-total of rights thatconstitute title, obligations at-tached thereto and liberties or-dinarily associated therewith,may differ very considerably fromstate to state; for example, withreference to requirements regu-

lating transfers of the title, driv-ing with a foreign operators li-cense, liability for injuries to pas-sengers taken in as guests, at-tachment of liens, penalties formechanical defects, regulation ofthe number of permissible pas-sengers, etc. In recent years a to-

tally new encroachment on thefield of liberty formerly enjoyedhas appeared in some states;they have imposed upon driversof automobiles licensed in otherstates, as a precondition to law-ful use of their highways, a con-sent to the acquisition of per-sonal jurisdiction over them bylocal courts, in actions broughtagainst them for damage to per-sons or property done in drivingtheir cars in the state visited,through service upon a publicofficial thereof.

Another mode of statingthese geographical variations inthe rights and duties of a prop-erty owner is the rule of conflictof laws that title to land is deter-mined by the law of the locusas respects existence, mode ofcreation, and the nature of rightsand obligations included; andthat the same is true, though

today in lesser degree, of corpo-real chattels. Of course, the rulearose, not from consciousness ofthe variations now under discus-sion, or of any sense of theirimportance, but from the doc-trine of territorial sovereignty,under which the law of eachcountry or state is supreme.

Probably even greater varia-tions of the meaning of title ex-ist in the case of incorporeal per-sonalty. When physical evidences

of such exist, convenience fre-quently gives to the law of theplace where such evidence is lo-cated dominance in determiningthe creation, existence, and con-tent of title; but these are mod-ern departures, steadily enlarg-ing, from a medieval doctrine,then applicable even to corporealchattels, that movables followthe personthat is, are subject



to the same law as their owner(in our legal system the law ofhis domicil, or legal residence).

Nor need such variations restupon a statutory basis. Even theincidents of ownership may becut down by the laws and usagesof a state. 5

4. Various Meanings forDifferent Purposes

Finally, the things or inter-ests included under the descrip-tion propertyvary with the pur-poses for which that descriptionis adopted.

The determination of what isproperty for the purpose of taxa-tion has given rise to an immenseamount of litigation; and the con-clusions of different courts havevaried greatly as respects thesame objects. Of course, any-thing treated as property musthave existence in the eye of thelaw; but for different purposes itconcedes or denies existencewith exceeding inconsistency.There can be a sale or a mort-gage, spoken of as immediatelyconsummated, of things not yetin existencewhich things havenever been regarded as subject

to taxation; and even if thosetransactions be regarded as re-ally only creating present inde-feasible rights to future title bysale or mortgage, then theserights are agreed to be propertyrights, which nevertheless arenot taxable. And if contracts aremade tosell or to mortgage or-dinary chattels the former willcreate no property right what-ever, whereas the latter will cre-ate an equitable rightan equi-

table lien.In general, even the complete

power of disposition conferredby a general power of appoint-ment is never spoken of or re-garded otherwise than as apower in one person overanothers property; yet, in a ma-

jority of our states, realty or -per-sonalty actually appointed by theinsolvent holder (donee) of

such a power to a volunteer istreated in equity as assets for thecreditors of the former in prior-ity to the claims of the appoin-tee. Whether this is on the theorythat it was fraudulent not to ap-point to his creditors or to him-self for them, or on the theory

that a complete control (jus dis-ponendi)of the title amounts inequity to full title (particularlywhen joined to rights of imme-diate enjoyment; the donee be-ing for example a life tenant),matters not in substance; for, asalready several times remarked,whether the things be assetsbecause they are property orbecause they are treated asproperty is treated, is a tenu-ous and usually undesirable dis-tinction. Yet all courts agree thatthese things were not propertyof the power-donee under com-mon law principles, nor thereforefor purposes of taxationsinceby tradition one is taxed only onproperty to which one holds le-gal title, and the common lawdid not regard the completejusdisponendi as title. However,most of our states do now, un-der inheritance tax statutes, tax

the property as though owned bythe donee, and this even thoughthe power has not been actuallyexercised, and some states dothis even when the power is spe-cial (see page 458); whereas un-der the Federal statute the powermust be general and must havebeen exercised.

Things may be assets forcreditors in equity which are notproperty for such legal purposesas taxation. Since a creditors

right is not possessory, but onlyone to realize on his debtorsassets by sale, nothing can beassets that is not alienable. Theinterest of the beneficiary of aspendthrift trust may be reachedby some creditors and not byothers. Expectanciesthough,as already noted (p. 6), not prop-erty for most purposesmay beassets of a bankrupt; and which

of them are such has varied un-der different bankruptcy statutesof this country.

The word goods in the origi-nal English Statute of Frauds wasearly held not to include chosesin action; and this exclusion hasnecessarily exercised a great in-

fluence in the United States.Goods unlawfully manufac-

tured or owned (such as in-toxicating liquors during prohi-bition, narcotics, gambling de-vices and the like) may be prop-erty for some purposes, such astaxation, and not for the otherpurposes, such as the commis-sion of the crime of larceny. Thesame is true of cats and dogs.

An unfortunate dictum ofLord Eldon (1818), to the effectthat equity acts to protect prop-erty only, has greatly hinderedthe extension of equitable reliefby compelling courts of equityeither to adopt artificial defini-tions of property or to repudi-ate Eldons dictum. The latter hassubstantially been done in manyinstancesin protecting the po-litical rights of voters and candi-dates, sentimental interests incorpses, rights to privacy, in

ones non-literary letters, in es-tablishing a putative fathersright to have cancelled a regis-tered false birth-certificate underwhich the alleged child couldclaim the status and propertyrights of legitimate offspring,rights to preserve the familyreputation, prevent alienation ofa spouses affection or prevent adaughters seduction, or to en-

joy security against unwelcomeamatory pursuit, against im-

proper expulsion from member-ship in non-proprietary clubs,and against libel or slander thatis merely personal. (although,strictly, none such can exist if theperson libelled has any propertyor does any business). Underdecisions by other courts, how-ever the tendency has been totake the first of the two alterna-tives above stated; for example,



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in protecting a complainantagainst libel or slander involvingor exclusively constituting defa-mation of business products inprotecting interests in gatherednews, in protecting a manu-facturers expectancy that laborwill flow to his factory in ad-

equate amount if unimpeded bystrikers, and in recognizing aright to be protected againstimproper interference with busi-ness goodwill or methods oftransacting business. And evenin some of the instances of thefirst group confusion has re-sulted from an anxiety to avoida direct contradiction of Eldonsproposition.

As respects the prohibitionin our Federal Constitutionagainst taking property withoutdue legal process, not only afranchise and an existing con-tract, but a right to contract havebeen held within the protectionof the prohibition this last with

momentous social consequencesin making impossible the regu-lation by Congress of wages, andtherefore of labor conditions.The right to sue (for moneyperhaps unsuccessfully, andtherefore apparently the mereright to sue) has been protected

under the same clause of theConstitution. True, rights to con-tract, to labor, or to sue have re-peatedly been declared by the Su-preme Court to be part of the lib-erty, as well as part of the prop-erty, which are guaranteedagainst such a taking. A gen-eral course of business has beensimilarly regarded. Although theSupreme Court has queriedwhether reputation is property,it has recognized that a corpo-rate name may be property;which it could only be as a partof good-will, which .of course hascommercial valuewhich, inturn, as has been noted (p. 6), isa very common test of property.

It is clear from the examplesgiven in the preceding pages thatthere is no definiteness in themeaning of title. This may, ofcourse, be otherwise expressedby saying that the liberties, pow-ers, and claims, of the ownerhis legal relations to other per-

sons in regard to the propertyare endlessly variable. Neverthe-less, the general concept and la-bel are indispensable.

(1) Buchanan v. Warley, 245

U.S. 60, 74 (1917).

(2) Austin, Jurisprudence

(5th ed., 1885), 358, 776.

(3) Common Law, 220.

(4) In re Banks Will, 87 Md.

425, 440 (1898).

(5) Per Holmes, J., in Otis v.

Ludlow Co., 201 U.S. 140, 1512,

154 (1906).



I. Possession.Possession is a concept that

has played a primary role in thedevelopment of our property law,and some knowledge of that roleis indispensable to an under-standing of the laws large divi-sions and basic principles.

Physicalpossession (de factoor actual possession; custody,

detention) may exist in the senseof physical control, yet if this isnot recognized and protected bythe law there will be no legalpossession. This is particularlytrue of the custody held by a ser-vant when acting as such (andtherefore particularly in hismasters presence); he enjoys nolegal remedies. Few exceptionsaside, however, whoever hasphysical possession has legalpossession. To the constitution

of physical possession two ele-ments are necessary: first, andsomewhat vaguely, a sufficient,a reasonable, actual control ofthe thing of which possession isclaimed; secondly, a certain men-tal state or animusnamely, anintent to maintain that controlagainst the world generally.This does not mean all theworld, nor does it necessarily

include the true owner (for thenthere would be no difference be-tween possession and adversepossession), be he known or notknown as such to the possessor;nor need the claim to excludeothers be made on ones own ac-count.

Of the first element it hasbeen said tht any power to use

and exclude others, howeversmall, will suffice, if accompaniedby the animus possidendi, pro-vided that no one else has alsothe animus possidendi and anequal or greater power. Butthere must be actual control,however weak.

Thus, a little girl who picksup a pretty beaded purse mayhave little strength to hold it, buther control is actual, whereas aruffian walking beside her and

about to seize it has no controluntil the seizure; and though heranimus be only directed to thebeads, the law would not attemptto measure its intensity as com-pared with the ruffians animustoward the bags pecuniary con-tents; hence she has possession.But a hunter chasing a wild ani-mal has no actual control over itunless it is so severely wounded

and he in such close pursuit thatit is, reasonably speaking on thebasis of general experience, inthe bag. And a fisherman rais-ing his nets is not in possessionof fish, although he will certainlysecure them ifnobody frightensthem away, until the net is sonearly closed that their escapeis practically impossible. The

control may exist, of course, onlyindirectly through control ofsomething else; as, for example,of a house, a yard, an automo-bile, a safe or vault, the clothingon ones person.

As regards the second ele-ment, it is not necessary to claimas owner in the literal sense.But when the law says that ac-tual control of a thing coupledwith an intent to maintain con-trol against the world generally

creates legal possession, the lawalso says that such possessorhas a right to maintain and toregain possession against theworld generallyi.e., against allwho hold no higher right. Andthese rights are the essence, theyindicate the practical meaning, oftitle in our law (see pp. 5556,58).

The concept and therefore

Part I, Chapter II

Seisin & Possessionas the Basis of

Legal Title



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the word possession have, ofcourse, been subject to change,and the meaning of the word istherefore subject to the indefi-niteness that in varying degreescharacterizes nearly all words,and to which even those of theexact sciences are not wholly

immune. The older any word is,and the more active has been itsusethe more fundamental theconcept it expresses and themore varied its applicationthemore evident, always, are histori-cal influences. For example, awindow has not long had thecharacteristic of glass that chieflydistinguishes it today. The con-cept which that very old word em-bodies is so indefinite that onlythe vaguest definition can coverits development; for nothingsave the history of buildings andwords and the past uses of bothcan explain why in different cir-cumstances the wordsbalistraria, crenel, eyelet, peep-hole, loophole, porthole, andFrench-window have been usedwithin the field which any usualdefinition of the word windowwould include. The only impor-tant difference between the con-

cepts of a wall-opening for sightor air and of possession is thatthe former, whatever be the wordused to express it, is infinitelyless likely than the latter to bethe subject of litigation. Whetherit is desirable or regrettable, inrelation to the administration of

justice, that fundamental con-cepts such as that of possessionshould be somewhat indetermi-nate, and therefore flexible intheir application to facts, is a

question upon which the opin-ions of lawyers are divided. How-ever that may be, almost all le-gal concepts, like other concepts,are in fact characterized by theseequivocal and casual qualities.

The theoretical requirementsof many property concepts arefairly definite. But a paucity offacts, evidence of inconsistantfacts, or the difficulty of inter-

preting conduct, may render im-possible a definite conclusionthat a particular concept fits thefacts of a given situation. Yet,since courts must decide thecases brought before them,some conception of public policy(usually as intuitively felt by the

judges, because indeterminableby exact balancing of social in-terests) will then necessarily de-termine their decision. Such ob-scure situations are often pre-sented in problems of posses-sion or its disturbance. If thephysical facts are in equipoiseand one disputant holds title,possession will be attributed tohim. Particularly, the line be-tween a mere disturbance ofpossession (trespass) and anouster therefrom (whether anoriginal dis-possession or a re-possession by entry) is neces-sarily vague. In these cases, as amatter of policy, the law has forcenturies permitted an injuredparty to exercise an election intreating a dis-possessor (dis-seisor) as such or as a mere tres-passer, or to treat a former ten-ant who remains wrongfully onthe land as a trespasser or a con-

tinuing tenant. A sense of pub-lic interest may cause a relax-ation of technical requirementsin favor of an officer of the courtlevying an attachment or an ex-ecution. Again, in interpretingstatutes which make posses-sion of prohibited articles crimi-nal, but to the end of enforcingthe legislatures supposed realintent to punish only serious of-fenders (possessors as directors,of an unlawful enterprise, pos-

sessors in bulk, or for a consid-erable time), courts may care-lessly deny any possession tomerely casual and momentarypossessorsinstead of denyingonly the type of possession sup-posedly contemplated by thelegislature.

Of these cases, however, onlythat of the attaching officer trulyillustrates variations in the mean-

ing of possession. The rest areessentially exceptions to the nor-mal or expected consequences ofpossession. The cases whichmost complicate the law of pos-session are those of crimes. Inthem a desire to find the defen-dant guilty ormore fre-

quently innocent (as in thecases just referred to, but with-out the excuse of statutory con-struction to serve as an expla-nation) results in extraordinaryrefinements upon, or distortionsof, the concept of possessionwhich generally prevails in non-criminal cases.

Despite all such variations,the concept of possession is inthe great majority of civil casesapplied usefully and with consid-erable consistency. Had it beenimpractical in application it couldnot have retained for seven cen-turies basic importance in ourlaw.

2. SeisinSeisin, speaking loosely, was

the legal possession of old Ger-manic law. For at least three cen-turies after the Norman Con-quest our lawyers had no other

word whereby to describe pos-session. 1 It is true, however,that possession, apparently, hasnever had in any century pre-cisely the same meaning whichattached to seisin in any othercentury. Before the end of thesixteenth century, both conceptsand words were well established.

While the word possessionhad not appeared, many situa-tions which we today cover withthat labelindeed, the vast ma-

jority of themwere includedwithin the concept of seisin. Onthe other hand there were cer-tain exceedingly important formsof dispossession (described bythe terms abatement and in-trusion) that were treated asdisseisins, yet were not typicaldisseisins because they lackedan actual ouster. Also, after atrue disseisin seisin might in



some cases (probably actuallynumerous) be regained by actswhich we would not today de-scribe as amounting to a repos-session, although Littleton(1485) did so describe them;namely by mere continual claimagainst a disseisor whose

strength made an actual entryupon the land impossible or dan-gerous. Nor is this analogous tothe constructive possession ofour modern law, since the latteris attributed to one person onlywhen no other person is in ac-tual possessionthough theanalogy does fit Littletons us-age.

When seisin existed, it en-joyed a protection analogous toand in the main coincident withthat accorded today to legal pos-session. But possession alsothen existed in the case of a ten-ant for years, and the laws pro-tection of such possession wasnot the same as its protection ofseisin; nor was it identical withthe protection given today to atermors possession. Also, with-out even the single exception (asLittleton stated the law) men-tioned in the preceding para-

graph, actual seisin could not begained without acquiring actualpossession. Both could begained, however, by any wrong-doer; and the usurper could passboth to anybody else. And, as willappear in the next section, whenthe man whom we would callowner lost his seisin he was leftwith a mere right which wewould call an imperfect title; andthe way he recovered both sei-sin and what we would call com-

plete or perfect title was bymerely reacquiring possession.On the one hand the freehold[estate] could not be transferredbut by livery of

seisin; on the other, livery ofseisin could not be made by anyperson who had the possessionwithout transferring the free-hold. 2

After the word possession

entered the law, it and seisingradually acquired definitely vari-ant meanings. In the fifteenthcentury possession became theproper term to designate legallyprotected control of chattels per-sonal, whereas in the two preced-ing centuries it was constant us-

age to speak of the seisin of suchchattels. The reasons why seisinwas thus detached from chattelsyet for centuries retained vital-ity in the land law can only beconjecturally stated. On onehand seisin was quite uncon-nected, in origin, with feudal-isms basic concept of tenure,and the application of its prin-ciples very often totally defeatedthe claims of feudal lords towardship, escheat, and other feu-dal derivatives of tenure. Thismust have tended to delay theultimate development, althoughnot greatly, since the feudal in-cidents began to lose vitalitywhen tenure received in 1290from the statute of QuiaEmptores the blow which ulti-mately destroyed it. Of a contraryand vastly greater influence wasthe exclusive position in the landlaw, and special importance in

early governmental arrange-ments, of freehold estates, ofwhich seisin was the basis. Par-ticularly important was the factthat the common law rules gov-erning the inheritance of land,with the basic principle ofseisinafacit stipitem, although also de-rived from Germanic law andquite independent from feudal-ism in origin, were perfectlyadapted to the desires of thegreat landownersespecially, of

course, the rule of primogeni-ture. To these associations withvital social interests seisin appar-ently owed its preservation as aconcept of the land law. The prac-tical differences between it andpossession gradually decreaseduntil finally, long after its own im-portance was gone and long af-ter feudalism had lost all reality,seisin became a technical term

to denote the completion of thatinvestiture by which the tenantwas admitted into the tenure,and without which no freeholdcould be constituted or pass.3

This last phrase was old and ac-tual law; the preceding explana-tion was a fictitious legal prin-

ciple of literary feudalism.Before these changes in the

meaning of seisin had morethan well begun terms for yearshad become of vast importance.Originally not a property instituteat all (see page 26), when theybecame such they were perforce,for lack of seisin, denied recog-nition as real property, and thusbecame personalty as chattelsreal. The landlord was then re-garded as seised of his reversion-ary estate (if a freehold) while thetermor was possessed of the landitself; and this usage persists inour law today.

The differentiation of the twoconcepts was also unavoidable indistinguishing the rights of aguardian from those of his wardactually on the land, and therights of any feudal lord fromthose of his vassal occupying thefeudal tenement. True, some

confusion of the two concepts in-evitably continued; but such in-stances were exceptional. Theway out of the difficulty lay, ofcourse, in applying thedifferentiation (present and clearas far back as reversions and re-mainders were recognized, andnecessarily accentuated by thedevelopment of leaseholds justreferred to) between seisin inlaw of an estate and actual sei-sin of the land. Legal speech fol-

lowed this development. An illus-tration is found in the fact thatafter the Statute of Uses (1536)declared that persons havingthe use of lands should thereafterhave a corresponding legal sei-sin, estate and possession ofthem, the courts proceeded toconcede acquisition of the seisin,but not of the possession, with-out actual physical entry.



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At times the perduring doc-trines of the old law made it es-sential to recognize a double sei-sina distinction between seisinin law and in fact. For ex-ample, before his actual entryupon the inheritance an heir wasnevertheless seised in law (i.e.,

enjoyed the remedies of seisin)unless somebody else hadwrongfully entered and usurpedthe actual seisin; just as anowner away from his propertytoday has constructive posses-sion provided nobody else hastaken actual possession of it.

There was also a distinctionbetween actual disseisin and dis-seisin at election. Originally thelatter included, quite logically,only cases of factitious disseisin;the freeholder being allowed asagainst a trespasser to supposehimself disseised, merely for thesake of taking his remedy by as-size or other real action. ButLord Mansfield (with the supportof some medieval relaxationsthat had marked the way) ex-tended the privilege to include afactitious seisin; that is, he madeit cover the case of a freeholderwho, although actually disseised,

preferred to treat the disseisoras a mere trespasser. This doc-trine is similar to the election al-lowed a landholder today in ig-noring or taking advantage of atrespass.

Disseisin on one hand, anddispossession on the other hand,became distinct. Disseisin re-quired an actual ouster; it there-fore required the adverse claim-ant to be a willful wrongdoer.Adverse possession required

neither. It requires only a claimof right hostile to that of the trueowner, and this is inferred fromacts of user such as would bedone by an owner. Variant stat-utes of limitationeven morethan variant remediesmade thedistinction important, for eventhe old undesired real actionswould be used when circum-stances required it. But th

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