Law Commons^™

Property - Construction Of Covenants Restricting Use Of Premises (Two Cases) (Schwarzchild V. Welborn, 1947; Jernigan V. Capps, 1948), William G. Clark

William and Mary Review of Virginia Law

No abstract provided.

Suit For Partition Of Real Estate, Wallace R. Heatwole

William and Mary Review of Virginia Law

No abstract provided.

Taxation-Liens-Nature Of Federal Estate Tax Lien, David D. Ring

Michigan Law Review

At the time of his death, decedent owned certain land in fee simple. His executrix, authorized by an order of the probate court, sold the land to herself as an individual. Subsequently, the United States began condemnation proceedings against the land, paying an award into court. Before distribution of this award was ordered, the executrix in her individual capacity and as ostensible owner was permitted in accordance with statute to withdraw a part of this award. The withdrawal was made without prejudice to her right to the remainder if it proved more than sufficient to satisfy the claims of other …

Recent Cases, Law Review Staff

Vanderbilt Law Review

CONFLICT OF LAWS--FULL FAITH AND CREDIT--DOMESTIC SEPARATE MAINTENANCE DECREE SURVIVES FOREIGN DIVORCE

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CONSTITUTIONAL LAW--DUE PROCESS--USE OF PEREMPTORY'CHALLENGE TO EXCLUDE ALL MEMBERS OF ACCUSED'S RACE FROM TRIAL JURY

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CONSTITUTIONAL LAW--FREEDOM OF SPEECH--USE OF AMPLIFICATION DEVICE IN PUBLIC PARK HELD WITHIN CONSTITUTIONAL GUARANTEE

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CONSTITUTIONAL LAW--SEARCHES AND SEIZURES--EVIDENCE OBTAINED WITHOUT SEARCH WARRANT INADMISSIBLE THOUGH SEIZED IN PROCESS OF LAWFUL ARREST

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CONSTITUTIONAL LAW--RACIALLY RESTRICTIVE COVENANTS--JUDICIAL ENFORCEMENT AS STATE ACTION

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CONTRACTS--BROKER'S COMMISSIONS--RIGHT TO RECOVER UNDERDOCTRINE OF SUBSTITUTED PERFORMANCE

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CONTRACTS--COMMERCIAL FRUSTRATION--REQUIREMENT THAT A BASIC PURPOSE OF THE CONTRACT BE FRUSTRATED

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CRIMINAL LAW--CUMULATIVE SENTENCES--EFFECT OF STATE PAROLE UPON COMMENCEMENT OF …

Mortgages--"Depression Jurisprudence" --Remaining Effects In Statutory Law, John F. Buchman, Iii S.Ed.

Michigan Law Review

Periods of economic depression, to a far greater degree than more prosperous times, bring into sharp conflict the competing interests of debtor and creditor. This conflict becomes especially apparent in the field of mortgage law. The mortgagee-creditor wants to enforce payment of the debt according to the terms of the contract, taking advantage of the security for which he bargained. The mortgagor-debtor is anxious to protect, if possible, his own investment in the mortgaged property. Because of the vast number of cases which occurred during the 1930's in which it appeared unduly harsh and inequitable to accord mortgagees their traditional …

Specific Performance-Marketable Title To Realty-Perfecting Title By Litigation As An Incident To Specific Performance, J. R. Mackenzie S.Ed.

Michigan Law Review

The normal action on land contracts is two-sided, vendor against purchaser or purchaser against vendor, to settle the rights of the parties on the basis of the condition of V's title at the time of the decree. This action is quite satisfactory where V and P agree as to the condition of the title, whether free and clear or not, but must we adhere to this pattern when there is a controversy between them concerning the title? To make the question concrete, suppose that V claims he has an unencumbered fee simple while P asserts there is a paramount …

Water Boundaries, Tide And Shore Land Rights, John Scott Obenour Jr.

Washington Law Review

Waterfront property, though extremely popular in Washington, presents problems of ownership with which few residents are familiar. The effect of transitory water boundaries upon the divisible proprietary interests is especially complex since the present status of such boundaries is uncertain under our court's interpretation of the applicable statutes.

Eshheat-Bona Vacantia-Right Of State To Claim Unclaimed Royalty Payments Of A Corporation, N. S. Peterman

Michigan Law Review

The State of Arkansas brought suit against defendant to recover "various moneys, rents, royalties, credits, and other personal property, which had been unclaimed, forgotten, abandoned, or otherwise lost by-various persons," and which were allegedly in the possession of defendant. The state, not knowing who the previous owners were, submitted interrogatories to defendant which were designed to discover exactly what was in defendant's possession, and who had been the last known owners thereof. The state based its claim on the statutes and on the common law doctrine of bona vacantia. Defendant's demurrer was sustained. On appeal, held, affirmed. The state …

Equity-Laches And Estoppel As Barring Equitable Relief In Protection Of An Easement, Chester Lloyd Jones S.Ed.

Michigan Law Review

Grantors had conveyed to plaintiff a certain lot in a subdivision with a provision "leaving a street sixty feet wide between Block Five . . . and the . . . tract herein conveyed." A plat of the addition, showing the street, had also been filed. Subsequently, the grantors conveyed to the defendant the land theretofore comprising the street. Construction on that land was begun and seventy-two days later when the building was 40 per cent completed and represented an expenditure of $2,000, plaintiff filed a suit to restrain interference with his easement, serving notice thereof on the defendant the …

Boundary Disputes In Washington, James R. Ellis

Washington Law Review

Quarrels over the physical edges of land ownership still appear on court calendars with disturbing frequency, displaying their peculiar bitterness beyond all value involved. A major factor swelling this litigation has been confusion over the various legal doctrines available in these disputes. Boundary line problems are often capable of treatment on several similar grounds and occasionally present contradictory equities, but they need not be a legal quagmire. This comment will attempt to analyze certain of the formulae currently applied to boundary disputes in Washington with particular reference to the doctrines of Acquiescence and Recognition, Oral Agreement, and Estoppel in Pais. …

The Real Estate Broker's Statute In Washington, Lisle R. Guernsey

Washington Law Review

Shortly after its passage the validity of the statute was sustained against a constitutional attack on the ground of class legislation and the interference with the right of contract. In the case of sales of real property, only contracts between an agent or broker and an owner are covered by the statute. An "owner" includes one whose title is only equitable or a broker who is also an owner, but excludes one who merely has an option to buy land. The statute has been construed to cover only contracts to pay a commission. The test of what constitutes a commission …

Nuisance-Liability For Injury Caused By Encroaching Tree Roots, L. B. Lea

Michigan Law Review

Plaintiff and defendant were ad joining landowners. Roots of poplar trees on defendant's land extended onto plaintiff's premises, clogging the sewage system and extracting such nutritional value from the land as to injure her lawn and flower garden. Plaintiff brought an action for damages and equitable relief. Judgment was rendered for defendant on demurrer. On appeal, held, reversed. The encroaching roots constituted an actionable nuisance. Plaintiff was not limited to the self-help remedy of cutting the roots at the boundary line. Mead v. Vincent, (Okla. 1947) 187 P. (2d) 994.

How Secure Is Your Tax Foreclosure Title?, L. R. Bonneville, Jr.

Washington Law Review

However, in the recent Washington case of Krops v. Jacobson, a tax title, procured through a judgment in foreclosure proceedings for delinquent taxes, was set aside as void, even though the taxes had not been paid. The reason assigned was that the foreclosure had been caused by the failure of the county treasurer to note upon the receipt given in payment for current taxes that certain back taxes were due. To the legislative direction that there shall be two exceptions to the conclusive effect of a judgment in tax foreclosure proceedings, the court has added a third—frustration of the taxpayer …

Eminent Domain-Effect Of Zoning Ordinances On Measure Of Damages, A. E. Anderson S.Ed.

Michigan Law Review

In a proceeding to condemn land located in an area subject to zoning restrictions, defendant contended that in fixing value the adaptability for all possible uses should be considered whether or not such uses were forbidden by zoning ordinances. The trial court instructed the jury that it should consider only the uses to which the property was suitable and available. On appeal, held, affirmed. Long Beach City High School District v. Stewart, (Cal. 1947) 185 P. (2d) 585.

Some Problems In Special Assessment District Obligations, Irvin Long

Michigan Law Review

The question of the jurisdiction of a board or officer authorized to construct a local improvement and levy special assessments therefor has always been troublesome, and is particularly so when bonds or other obligations are issued in anticipation of the collection of such assessments. A vast amount of litigation has occurred in Michigan in recent years over drain district assessments, and bonds which such districts have issued. While this is of primary interest to Michigan lawyers and investors in public securities, many of the questions involved seem to be of such a general nature, so far as special assessment procedure …

Future Interests - Statute Abolishing The Rule In Shelley's Case Applied To The Worthier Title Doctrine, Joseph W. Morris

Michigan Law Review

Plaintiff set up an irrevocable trust of $75,000 to pay the income to himself for life, and upon his death to distribute the remainder of the trust to his heirs at law according to the laws of succession of the State of California in existence at his death. He later brought suit to terminate the trust on the theory that the worthier title doctrine prevented the creation of a remainder in his heirs at law, and that as sole beneficiary of the trust, he was entitled to termination. Held, the worthier title doctrine was inapplicable because of a statute …

Contracts--Specific Performance-Defense Of Hardship Caused By Defendant's Improvements After Giving Option To Purchase, Robert E. Anstaett

Michigan Law Review

In a lease of plaintiff's corner lot to defendant corporation in 1941, the latter granted plaintiff a five-year option to purchase adjacent lots owned by defendant for $35,000, which was then a fair price. In 1945 defendant's officers, overlooking the option agreement, authorized construction of a warehouse on the adjacent property. After defendant had expended about $20,000 in the construction, plaintiff exercised her option by giving notice to defendant. Upon defendant's refusal to convey, plaintiff sued for specific performance. The trial court dismissed the complaint. Held, reversed and remanded with instruction to decree specific performance upon condition that plaintiff …

Real Property-Easements-Extinction Of Easements Created By Implication Or Prescription On Sale Of Servient Land To Bona Fide Purchaser, Howard W. Haftel

Michigan Law Review

Plaintiffs and defendants owned adjoining farms. About thirty years ago their predecessors in title had constructed an underground tile drain from plaintiffs' farm to and across defendants' farm. In 1934 this drain was obstructed. In 1941 the servient farm was sold to defendants, who gave value and had no knowledge of the existence of the drain. Plaintiffs sought an injunction to compel removal of the obstruction. The lower court found that plaintiffs had acquired a prescriptive right to use the drain before it was obstructed, but refused to grant the injunction on the ground that defendants as bona fide purchasers …

Evidence-Hearsay-Impeachment Of Hearsay By Declarant's Inconsistent Statements, Ira M. Price, Ii S.Ed.

Michigan Law Review

In an action of trespass to try title to land claimed through adverse possession by defendant, the date when defendant first asserted a hostile claim to the premises so as to start the ten year statute of limitations was in issue. Plaintiff's witness, W, was allowed to testify that defendant had told him and others that plaintiffs owned individual interests in the land and that he did not exclusively claim the land. Defendant's witness, Y, then testified over objection that witness, W, had told him that defendant had long claimed the land, and had farmed and fenced …

Landlord And Tenant-Lease Covenant Against Unlawful Business, Bruce L. Moore S.Ed.

Michigan Law Review

In an action to dispossess defendants of certain leased property, plaintiff alleged that defendants breached an express covenant in the lease by which defendants covenanted that they would use the premises for a store, and would not use the premises "for any unlawful business or purpose whatever." Defendants used the premises for a general mercantile store, operating under the trade name "Stop 'N Shop." In so doing, defendants failed to comply with a statute which provided that "It shall be unlawful for any person to engage in a business . . . under any name which does not plainly show …

Constitutional Law -Equal Protection - California Alien Land Law, J. R. Mackenzie

Michigan Law Review

A Japanese alien paid for some agricultural land in California which was conveyed to his seven-year-old citizen son. All records indicated that the son owned the land, although the father, his guardian, managed it. The California Alien Land Law prohibits ownership of any interest in agricultural land by aliens ineligible for citizenship. Property acquired in violation of the statute escheats as of the date of acquisition as does land transferred "with intent to prevent, evade, or avoid escheat." This intent is presumed prima facie whenever an ineligible alien pays the consideration for a transfer of land to one who may …

Associations-Title To Land Conveyed To Church After Expiration Of Charter, R. V. Wellman

Michigan Law Review

The X Church was incorporated by special charter for a period of fourteen years from 1814. Subsequent charters extended its corporate existence until 1871, since which time, though the members have remained associated under the same name, there has been no attempt to re-incorporate. In 1922, land was conveyed to "X Church, its successors and assigns." Defendant contracted with the chairman and the warden of the Church to buy the land described in the deed of 1922. Subsequently, plaintiff, who had been elected minister of the Church in 1945, was authorized to execute and deliver the necessary deed of …

Equity-Certainty And Completeness Of Terms As Prerequisites To Specific Enforcement Of A Contract To Sell Land

Washington and Lee Law Review

No abstract provided.

Property-Recovery Of Damages In Assumpsit For Use And Occupation For Naked Trespass To Realty

Washington and Lee Law Review

No abstract provided.

Trusts-Rule Against Perpetuities-Tetamentary Trust For Maintenance Of Testatrix' Home As Depository For Ashes Of Testatrix And Daughter, Richard L. Eckhart S.Ed.

Michigan Law Review

Testatrix provided that her body should be cremated, the ashes mixed with the ashes of her deceased daughter, and both placed in a designated room on the second floor of testatrix' home. The executors were directed not to sell the home but to use rentals from the first floor to maintain it, such rentals to be obtained from any member of the Socialist Party whom the executors should find proper and able to pay the rental. Held, the attempted disposition was invalid as a violation of the rule against restraints on alienation. Alexander v. House, (Conn. 1947) 54 …

Real Property-Unenforceability Of Restrictive Covenants-Methods Of Protecting Plan, Charles B. Blackmar S.Ed.

Michigan Law Review

The restrictive covenant is a device by which property owners can gain some degree of assurance that neighboring property will not be used in an objectionable way. The restrictions are usually reciprocal and negative, common examples being building restrictions, regulations as to use for business, and prohibitions against occupancy by certain races. By private agreement much greater protection can be had than is afforded by zoning ordinances and nuisance doctrines.

Rights In Land-Legal Status Of The Spite Fence, Leroy Redfern

Michigan Law Review

Defendants erected a brick wall upon their lot in a manner that cut off light and air to the first floor window of the adjoining premises belonging ,to plaintiffs. Plaintiffs brought a bill in equity to compel removal of the wall. Upon finding that the wall was built merely to annoy plaintiffs, and that it was of no beneficial use to defendants, the chancellor ordered it removed. On appeal, held, reversed. Defendants being lawfully entitled to erect the wall upon their land, the court will not inquire into their motive for so doing. Cohen v. Perrino, (Pa. 1947) …

Future Interests-Rule Against Perpetuities--Validity Of An Option Incident To A Lease Exercisable After The Expiration Of The Lease, Irving Slifkin S.Ed.

Michigan Law Review

On November 13, 1941, plaintiff entered into a lease with defendant granting defendant the exclusive right to mine and remove coal from plaintiff's mine for twenty years. Incident to the lease defendant was granted the option, "at any time subsequent to November 1st, 1945, to purchase the remaining tonnage of recoverable coal" at a specified price. A deed thereto was placed in escrow. In January, 1946, defendant elected to exercise the option, tendered the price, and received the deed from escrow. Plaintiff refused to recognize the validity of the option and commenced an action in equity to cancel the deed …

Eminent Domain--Obsolete Buildings--Proof Of Value, J. W. B.

West Virginia Law Review

No abstract provided.

Contracts--Statute Of Frauds--Validity Of Memorandum Made Prior To Oral Contract, Edward S. Tripp S.Ed.

Michigan Law Review

Plaintiff and defendant exchanged several letters concerning six contiguous lots which defendant owned. In one letter plaintiff made an offer to purchase the lots which was declined by defendant. Plaintiff then requested defendant to name her price. She replied that they were worth at least $12,000 but made no offer to sell. Subsequently they orally contracted for sale of the lots for $11,000. As a down payment plaintiff gave defendant a $500 check which contained a notation that it was "to be applied on purchase of property on E. Central Ave., Albuquerque, N. M. . . ." Defendant indorsed and …