II. SUBSEQUENT IN TIME: ACQUISITION OF PROPERTY BY FIND, ADVERSE POSSESSION & GIFT (125-69, 175-89)

Question 1

color of title

Answer 1

refers to claim founded on written instrument (i.e. deed, will, judicial decree) which is invalid unbeknownst to the possessor. In this case, the grantee without knowledge of the defect takes possession under color of title. In most states, color of title is not required to be an adverse possessor (although it is sufficient to satisfy this element)

Question 2

What does a finder of property acquire (CL)?

Answer 2

A finder of property acquires (i) no rights in mislaid property, (ii) is entitled to possession of lost property against everyone except the true owner, and (iii) is entitled to keep abandoned property

Question 3

Lost

Answer 3

accidentally parted with and doesn’t know where to find; F entitled to possession against all world except true O (if F is trespasser, employee, guest, etc owner of property gets possessory rights)

ex. O does not notice his watch has slipped off his wrist and landed on street

Question 4

Mislaid

Answer 4

intentionally placed; owner of premises entitled to possession against the world except true O (bc O might return trying to find it)

ex. O lays watch on sink in hotel rm and forgets to pick it up

Question 5

Abandoned

Answer 5

O intentionally relinquished ownership; F obtains possession and title if he has control over the property with intent to assert ownership

ex. O throws his old watch into a garbage can bc a new battery for it would cost too much

Question 6

Defense of Jus Tertii

Answer 6

Defense that neither the plaintiff nor the defendant is the true owner, but that the property belongs to a third party. In Armory, the court says this defense is not allowed because the court can only decide the relative rights of people before it; thus Delamirie must show that his relationship to the stone is stronger than Armory’s (do not have to show absolute right)

Question 7

Armory v. Delamirie

Answer 7

Armory-Delamirie-Jewelry

Initial finder has superior right to everyone but true owner (but, if original finder loses item and B find it, original finder still has superior right)

Facts: Plaintiff, a chimney sweep, found a jewel and took it to the defendant’s shop. The jeweler took the stones and gave him back the socket without the stones.

Question 8

Goal of Restitution Measure?

Answer 8

goal is get everyone back to zero (no unjust enrichment)

F recovers from J, O recovers from J, J recovers from F

Question 9

Chain of Title: who can O sue?

Answer 9

O can sue anyone in the chain (law wants to protect O above all; if this were not the case and O could only sue current possessor, individuals could play keep away from O)

Question 10

Subrogation

Answer 10

Where an insurance company pays you and thus buys your right to go after ∆ for damages (assume rights of the insured)

Question 11

“Benefit of the Bargain” Rule

Answer 11

If X gifted the painting to Y, X can only recover the market value at the moment when X gave it away, not the present market value (because we don’t want X to get the benefit for selling hot goods)

Question 12

claim of title v color of title

Answer 12

claim of title expresses the necessary adversity for adverse possession

color of title means claim is based on written instrument or judgment that is defective, it is sufficient but usually not necessary for adverse possession

Question 13

grantor does not own the land deeded, grantor was mentally incompetent, deed was improperly executed - these are all examples of ______________

Answer 13

color of title where grantee w/o knowledge of the defect takes possession under color of title

Question 14

Hannah v. Peel

Answer 14

Hannah loves brooches.

If owner of house has not moved into the house, owner is not in constructive possession of articles therein of which he is unaware; since Peel had never occupied the house, Hannah was entitled to the brooch

Question 15

McAvoy v. Medina

Answer 15

MvM-Mislaid

When true owner never came back to claim it, P requested that D give him the money and D refused. Court held that the pocketbook was not lost but mislaid, and thus P (finder) had acquired no rights.

Question 16

Quitclaim Deed

Answer 16

gives whatever interest you have

Question 17

What must an adverse possessor file to have title and name as owner recorded in the courthouse?

Answer 17

quiet title action

adverse possessors will not have recordable title; if they wish to have name as owner recorded in courthouse, they must file a quiet title action against the former owner (usually have to do this to sell to someone, since a person will be wary of buying land with no recordable title)

Question 18

constructive possession

Answer 18

when law treats as if he is in possession although he is not or he is unaware of it

ex. landowner is in constructive possession of the objects located under the surface of her land

Question 19

If the finder is a trespasser who prevails?

Answer 19

Owner of premises where object is found always prevails over trespassing finder

Question 20

Who prevails when object is found under or embedded in the soil?

Answer 20

Owner of premises (exception: treasure trove where it was intentionally buried with intent of returning to claim it can go to finder or landowner)

Question 21

Popov v. Hiyashi

Answer 21

Ct rules Popov had pre-possessory right in ball because he took significant but incomplete steps towards securing it and was interrupted only by unlawful acts of others; thus, ball should be sold and proceeds divided between π and ∆ (since ∆ was not a wrongdoer – did not impede π’s efforts to catch ball)

Question 22

Rule of Equitable Division

Answer 22

order property sold and divide proceeds among claimants when there are multiple finders of lost or abandoned property

as in Popov v. Hiyashi

Question 23

trover

Answer 23

suit to recover value of P’s chattel that D had converted (usually by selling it to an unknown party) - action permitted against anyone who refused to deliver up the P’s chattel.

In effect, P waives right to the return of the chattel and insists that D be subjected to a forced purchase of it

Question 24

replevin

Answer 24

bring replevin to recover possession of a chattel D wrongfully distrained

Question 25

ejectment

Answer 25

bring ejectment to recover possession of land

Question 26

replevin and ejectment were suits to recover ____________

Answer 26

possession

Question 27

trespass, case, and trover were suits to recover _____________

Answer 27

damages

Question 28

Benefits of adverse possession?

Answer 28

protects title of occupiers when it’s hard to prove, reward productive use (efficient), clarifies title, honors expectations

Question 29

Requirements of adverse possession?

Answer 29

1. actual entry giving exclusive possession
2. open and notorious
3. adverse and under a claim of right
4. continuous and uninterrupted

Question 30

If possessor abandons the property for any period of time, without intent to return, is continuity of adverse possession lost?

Answer 30

Yes - possession returns constructively to true owner. If adverse possessor later returns the statute of limitations begins to run anew.

NOTE: If adverse possessor is ousted and then reenters, he can tack on his previous period of adverse possession.

Question 31

Does adverse possessor acquire all interests in the property?

Answer 31

no, adverse possessor only acquires interest of whoever holds land at time he begins possession

if future interest was created before adverse possessor took possession, these are not adversely possessed (i.e. if life estate was in place before statute started running, adverse possessor only acquires life estate and statute starts again when remainder kicks in)

if future interest was created after adverse possessor took possession, statute would run against O and all successors in interest

Question 32

What makes it a req to have written agreements for land?

Answer 32

Statute of Frauds: Typically requires a written agreement for land; however courts have found ways to enforce oral agreements between neighbors on boundaries.

Question 33

Van Valkenburgh v. Lutz

Answer 33

VV - L tried to take tip of V

Court rules in favor of VV; claims Lutz’s possession was not hostile (i.e. he thought he owned all the land; court claims he needs to know he did not in order to satisfy that standard); Lutz did not actually possess enough of the land (but, true point of that standard is to make sure true owner is put on notice, which he was here)

Question 34

Manillo v. Gorski

Answer 34

ll 2 small

Court holds in cases where encroachment is so small, owner must be given actual notice (mere constructive notice is not sufficient); there is no presumption of notice. P wanted the court to use the Maine rule of aggressive trespass but court applies the objective test and says D’s possession only need to be open and notorious.

Question 35

Voidable title

Answer 35

Owner intends to pass title, but can void transaction because of fraud or misrepresentation (i.e. buyer purchases it with bad check); True owner can void title until purchaser sells to BFP

Question 36

Voidable title: Can owner go after BFP after BFP purchases from original purchaser?

Answer 36

No, owner can sue original purchaser, but once original purchaser sells to BFP, O cannot go after BFP (one area where BFP is favored over true owner)

Question 37

Void title

Answer 37

owner does not intend to pass title or has no capacity to do so

Question 38

Void title: Can owner go after BFP?

Answer 38

A BFP from a thief is not protected against the claim of the owner unless the statute of limitations has run on the owner.

Question 39

Is act of entrusting sufficient to protect BFP?

Answer 39

Yes

Question 40

O’Keeffe v. Snyder

Answer 40

SoL starts when owner first knows or reasonably should know through due diligence where the stolen goods are

O’Keeffe claims paintings were stolen and thus statute of limitations never started running. The paintings first went missing in 1946 when Steiglitz was showing the 2 paintings at his gallery, but O’Keefe did not report them missing until 1972. Snyder claims he was BFP and bought the paintings in 1975 from Frank, who had had the paintings in family for over 30 years. Since the statute of limitations was 6 years for personal property, Snyder claims that Frank had adversely possessed them.

Question 41

The Winkfield

Answer 41

Postmaster sues Winkfield for mail that sank to sea when Winkfield rammed his ship; Postmaster recovers. Then a person who sent package sues Winkfield, but he can’t recover because Winkfield has already paid. When Winkfield stands in postmaster’s shoes after paying him, he is not liable to shippers (as postmaster would not have been for losing mail absent negligence).

Question 42

Rule of Increase

Answer 42

The offspring of animals belong to the owner of the mother. But if A takes possession of B’s cow before B’s cow gives birth, and later A requires adverse possession to the cow then A also gains rights to keep the calf because adverse possession relates back to the point when A first took possession.

Question 43

Doctrine of Market Overt

Answer 43

Some European countries follow the doctrine that a BFP may acquire good title from a thief if the sale takes place in an open market.

Question 44

How are disability provisions limited?

Answer 44

because only disabilities specified in the statute can be considered and usually only disability of the owner at the time adverse possession begins count

Question 45

Law of Accession

Answer 45

When one person adds to the property of another by labor alone, the general rule is that if you took it willfully then property goes back to A, REGARDLESS. Can’t argue that you put it to “better use”.

Exception: If B acted in good faith and significantly increased value, then B will get to keep final product, but must pay A for his property.

Question 46

res

Answer 46

thing

Question 47

Animus possidendi

Answer 47

intention to possess

Question 48

Cujus est solum, ejus est usque ad coelem et ad infernos (ad coelom)

Answer 48

to whomever the soil belongs, he owns also to the sky and to the depths