Property Law and Real Estate Commons^™

Personal Property And Sales -- 1961 Tennessee Survey, James O. Bass, Jr.

Vanderbilt Law Review

The Tennessee courts have heretofore denied recovery in actions for breach of warranty in the absence of privity of contract between the plaintiff and the defendant.' The required privity had not previously been found when a manufacturer was sued by a consumer who purchased from an intermediate dealer. . . .

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Contractual Disclaimer.-In the Dodson case, there was an alter-native holding that the consumer could recover on the theory of an implied warranty of quality or fitness. The significance of such a holding lies in the fact that the express warranty which the court found running from General Motors …

Recent Cases, Law Review Staff

Vanderbilt Law Review

CONSTITUTIONAL LAW--DUE PROCESS--ADMINISTRATIVE AGENCY MAY DENY APPRISAL AND CONFRONTATION IN PURELY INVESTIGATIVE PROCEEDING

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CONSTITUTIONAL LAW--DUE PROCESS--STATE MAY DISCHARGE EMPLOYEE FOR FAILURE TO PERFORM STATUTORY DUTY TO ANSWER

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DAMAGES--REFUSAL TO INSTRUCT JURY TO CALCULATE LOSS OF EARNINGS ON THE BASIS OF NET INCOME AFTER TAXES

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EVIDENCE--ADVERSE SPOUSAL TESTIMONY--WIFE COMPELLED TO TESTIFY IN MANN ACT PROSECUTION

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FEDERAL PROCEDURE--CHANGE OF VENUE--TRANSFER OF CIVIL ACTION MUST BE TO DISTRICT HAVING STATUTORY VENUE

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FEDERAL TORT CLAIMS ACT--SUIT ALLOWED FOR NEGLIGENCE EVEN THOUGH ACCOMPANIED BY MISREPRESENTATION

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INSURANCE--FEDERAL TRADE COMMISSION--REGULATION BY STATE WHERE UNFAIR TRADE PRACTICE ORIGINATES DOES NOT OUST FTC …

Caveat Emptor In Sales Of Realty--Recent Assaults Upon The Rule, Leo Bearman, Jr.

Vanderbilt Law Review

While caveat emptor is still ostensibly the law applicable to sales of realty in every common law jurisdiction, it no longer effectively protects the builder-vendor. In many instances he is now being held liable for damages or rescission for failure to meet what is in result, if not in fact, an implied warranty of good quality and fitness for purpose when he sells a newly constructed home. The expansions of previously settled doctrine by the courts to reach this result have occurred in the areas of implied warranty itself, and in the areas of express warranty, marketable title, fraud,and negligence. …

Financing Industrial Development In The South, Margie F. Pitts

Vanderbilt Law Review

Proponents of public industrial building financing justify their position by pointing to the need to supplement private investment and to raise the level of per capita income in areas which have chronically suffered from this condition. The view one adopts of such financing is often couched on the high theme of free enterprise versus governmental participation. Yet the problem may also be viewed from the perspective of the South and its immediate needs.In the long run, it might well be that this program will have served to furnish a starting point for the process of development which would lead to …

State And Local Taxation -- 1960 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

A congressional statute that became law on September 14, 1959,severely curtails the power of all state and local governments to impose net income taxes. This statute was the aftermath of the Northwestern-Stockham decision, and a series of cases soon to follow, by the United States Supreme Court, which held that neither the due process nor the commerce clause bars the way to a nondiscriminatory, properly apportioned state tax levied directly on net income derived exclusively from interstate commerce. These decisions by the Supreme Court caused such a furor in the business world that demands were soon made on Congress for …

Agency -- 1960 Tennessee Survey, Warren A. Seavey

Vanderbilt Law Review

In Richardson v. Snipes' both parties to an exchange of land employed the plaintiff, the contract providing that the defendant would pay no commission unless the transfer was completed. The other party satisfied the conditions imposed by the defendant, who, however, refused to go through with the exchange. The court properly reversed judgment for the defendant; but the result should not have turned upon the finding of bad faith of the defendant, as the court held. The plaintiff had performed his undertaking which was to provide one who would exchange titles and who would have gone through with the transaction …

Personal Property And Sales -- 1960 Tennessee Survey, Gilbert S. Merritt Jr.

Vanderbilt Law Review

A foreigner given to rash generalizations would quickly conclude upon reading this year's sales and personal property cases that the three most flourishing and litigation-producing institutions in Tennessee are the automobile, the General Motors Acceptance Corporation and bootlegging. The automobile is responsible for all five of the cases covered in this survey; in four of the five the General Motors Acceptance Corporation is the defendant; and two of the five grow out of bootlegging activities.

Real Property -- 1960 Tennessee Survey, Thomas G. Roady, Jr.

Vanderbilt Law Review

It is unfortunate that the statutes in this state on which such decisions as the instant one are based have not long since been repealed or modified. It is becoming more and more apparent that the courts cannot be expected to lessen the oftentimes arbitrary and seemingly unjust result which flows from the literal application of these statutes. The instant case would have been an excellent one in which to permit the defendant to establish the title of his grantors on the merits. But in spite of the desirability of relaxing the rigorous enforcement of such statutes, the court continues …

The Real Estate Broker's Undertaking, William E. Wallace

Vanderbilt Law Review

In earlier articles I have discussed problems dealing with the enunciation and expression of listing agreements, their formal import' and the effect of one important segment of many of the attendant" payment" clauses. The former article concerned itself with the general problem of the relationship existing between a real property owner and his broker, while the latter dealt with the significance of words by which the payment clause of a brokerage agreement was introduced and with the effect of a wrongful default by the landowner. The present article will consider the legal significance of the actual terms employed to designate …

Insurance--1959 Tennessee Survey, William R. Andersen

Vanderbilt Law Review

What is the meaning of the term "actual cash value" in the standard fire policy? The middle section of the court of appeals, following a prior Tennessee case and the weight of authority, held that the phrase is synonomous with "market value" only where the goods are readily replaceable in a current market. Where there is no market, or where the market value is inadequate to properly indemnify the insured, "actual cash value" means the "'value to the owner' or the loss he suffers in being deprived of the goods." Since the goods involved in this case were personal effects, …

Real Property--1959 Tennessee Survey, Thomas G. Roady, Jr.

Vanderbilt Law Review

Future Interests.-The creation of divided interests in real property always carries with it problems in controlling the use and man- agement by the owner of the possessory interest. One of the most difficult problems in future interests is how to adjust the relation between the holder of a present possessory interest and the holder of a future interest in the same parcel of land. In resolving such problems many courts are influenced primarily by the nature (classification) of the future interest involved and have worked out with some degree of certainty the distribution of benefits and burdens in the simple …

Personal Property And Sales--1959 Tennessee Survey, Claude E. Bankester

Vanderbilt Law Review

Damage to Chattel in Possession of Mortgagor or Conditional Vendee.--When a chattel is mortgaged or sold pursuant to a conditional sales contract and is subsequently damaged by a third party while in possession of the mortgagor or conditional vendee, it is generally agreed that either party to the chattel mortgage' or conditional sales contract has a sufficient interest in the chattel to allow him to maintain an action against the wrongdoer. In Ellis v. Snell, the court allowed recovery by the mortgagor for the full amount of damage to the'mortgaged automobile, even though he was in default on the mortgage …

Professional Liability Of Abstracters, Thomas G. Roady, Jr.

Vanderbilt Law Review

One of the most vigorous rules in the law of conveyancing is that a vendee of real estate assumes the risk of all defects in title discovered after delivery of the deed. In short, the doctrine of caveat emptor applies with full force to the purchaser and to protect himself as fully as possible he must insist that the transaction proceed in such a manner as to give him recourse against someone should he sustain a loss by reason of the title risk taken or he must proceed in a manner that will eliminate (or at least minimize) the risks …

Loss Of Citizenship -- Statutory Expatriation, David E. Nelson Jr.

Vanderbilt Law Review

There is no provision in the United States Constitution which expressly gives or denies Congress a right to deprive a person of, or prescribe a method whereby a person may lose, his citizenship. Yet in the Nationality Act of 1940 Congress provided for the involuntary expatriation of an American citizen upon the intentional commission of one or more of several specified acts. In 1957 three cases involving this statute reached the Supreme Court of the United States. The constitutionality of the section providing for loss of citizenship by voting in a foreign election was upheld; the one providing for loss …

Creditors' Rights And Security Transactions -- 1958 Tennessee Survey, Forrest W. Lacey

Vanderbilt Law Review

Fraudulent Conveyances: In Nashville Milk Producers, Inc. v. Alston' a bill to set aside transfers of a herd of dairy cattle alleged that the debtor in 1953 purported to transfer the herd to his wife, and that in 1955 the wife purported to transfer the herd to their son.Both transfers were alleged to have been made for no consideration,or a consideration that was not fair and adequate. The bill also charged that the conveyances rendered the grantor insolvent, and were part of a general scheme participated in by all three defendants to hinder, delay and defraud existing and subsequent creditors. …

Annual Survey Of Tennessee Law, Harold Seligman

Vanderbilt Law Review

Of particular significance in this field during the survey year has been the decision of the Supreme Court of Tennessee in Southern Bell Tel. and Tel. Co. v. Tennessee Pub. Serv. Comm'n. Several aspects of administrative law are involved in this holding, including scope of review, evidence to be considered by the court on review, and the rate-making function...

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In Flowers v. Benton County Beer Board, the license of a beer permit holder was revoked by a county beer board due to the holder's plea of guilty to driving an automobile while under the influence of an intoxicant in …

Decedents' Estates, Trusts And Future Interests -- 1958 Tennessee Survey, Herman L. Trautman

Vanderbilt Law Review

The subject matter of this article will be presented in three parts entitled Decedents' Estates, Trusts, and Future Interests. The developments of the year' consist of judicial decisions of the appellate courts in Tennessee, and the work of the Section on Real Property,Probate and Trust Law of the Tennessee Bar Association on a new statute concerning intestate succession for the state. Since the General Assembly was not in session, there were no legislative developments. The part entitled Decendents' Estates will include a discussion of intestate succession, wills, and the problems of fiduciary administration in decendents' estates. The problems of fiduciary …

Personal Property And Sales -- 1958 Tennessee Survey, Claude E. Bankester

Vanderbilt Law Review

The existence of a confidential or fiduciary relationship between two parties does not prevent either party from making a gift to the other. However, when the gift is from the dependent party to the dominant party of the relationship, there arises a presumption that the gift was obtained by the exercise of undue influence on the donor and therefore void. Consequently, the burden is placed upon the donee to prove by "clear and satisfactory" evidence that the gift was not obtained by use of undue influence. The relationship necessary to raise the presumption may be of any kind which implies …

Real Property -- 1958 Tennessee Survey, Thomas G. Roady, Jr.

Vanderbilt Law Review

In Bailey v. Eagle Mountain Tel. Co.' the supreme court in an opinion by Justice Swepston affirmed the chancellor of Knox County who had sustained defendant's demurrer to a specific performance action because he regarded the following language in complainant's claim of title as creating a fee simple determinable in the grantee.

"In consideration of love and interest we have in Education, we this day deed, transfer, and convey a certain lot or parcel of land .... To have and to hold for school purposes ... so long as the aforesaid lot of land is used for the aforesaid purpose." …

Local Government Law -- 1957 Tennessee Survey, Thomas G. Roady Jr., Robert L. White

Vanderbilt Law Review

The substantial amount of litigation involving local governmental units, their officers and agents, continued during the period covered by this survey and if volume alone were any indication of significant growth and development in a given area of law this survey article would be of considerable importance. But, in general, the cases decided in this period draw on fairly well established legal rules and principles or upon legislation which has been designed to clarify existing problems. In view of this fact it does not appear justifiable to do much more than to present a summary of these decisions with brief …

Personal Property And Sales, F. Hodge O'Neal, Thomas G. Roady Jr.

Vanderbilt Law Review

Sales

Two sales cases were decided during the survey period. One of the cases, Henson v. Wright,' was an action by the buyer of a tractor to rescind the purchase for breach of warranty.

Judd v. Fruehauf Trailer Co. is a questionable decision which perhaps opens a way for a seller in a conditional sale contract to circumvent provisions of the conditional sales act designed to protect the conditional buyer.

Liability of Common Carrier: Is a carrier liable to a shipper for breach of contract for failure to deliver an animal lost en route from point of shipment to point …

Real Property -- 1957 Tennessee Survey, Thomas G. Roady Jr.

Vanderbilt Law Review

The Rule in Shelley's Case Revisited: During the period covered by this survey the Supreme Court of Tennessee handed down an opinion involving one of those problems periodically recurring in the real property field. In this decision the court revisited the Rule in Shelley's Case, pointing out the classic situation to which it applies and calling attention to the statute in Tennessee which abolished the Rule.

The question before the court was in terms of what estate the grantee, Ralph Parker, acquired where the conveyance was to "Ralph Parker and at his death to his bodily heirs." The court concluded …

An Analysis Of Marriage Trends And Divorce Policies, Robert S. Redmount

Vanderbilt Law Review

Divorce law, theoretically, is the embodiment of policies governing the dissolution of marriage. It is the legal expression of the values attached to marriage and implicitly states the law's understanding of the marital relationship, at least that part of it that reflects conflict and disturbance.

The analytic discourse which follows briefly assesses the roles and meanings of marriage, the sources and consequences of marital disharmony and the complications of marriage dissolution. The history and composition of divorce policies and laws is carefully savored and sharply scrutinized for fidelity to the reason and experience of marriage. The outcome of this analysis …

Real Property -- 1956 Tennessee Survey, Herman L. Trautman

Vanderbilt Law Review

Bona Fide Purchases Without Notice: There were two cases, First Federal Savings and Loan Ass'n v. Dearth' and Harris v. Buchignani, decided during the year which concerned the title acquired by a purchaser of real property without actual notice of an unrecorded interest. The first of the above cases concerned a purchaser from the heir of the deceased record owner, and the second concerned a purchaser from a record owner who had previously executed a contract of sale which was not recorded. Both cases originated in Memphis.

Creditors' Rights And Security Transactions -- 1956 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

Possession of Land Under Contract of Sale as Notice to Subsequent Purchaser of the Land: There is a security transaction facet in the ejectment case of Harris v. Buchignani,' decided by the Tennessee Supreme Court, which should be given some attention. In that case, by clear implication, the court put forth some disturbing doctrine relative to priorities under the Tennessee recording statute. Without specifically mentioning it, the court appears to have disavowed and repudiated the doctrine that possession of property inconsistent with the record title holder is notice to a subsequent deed of trust lender so as to prevent the …

Personal Property And Sales -- 1956 Tennessee Survey, J. Allen Smith

Vanderbilt Law Review

The Right to Possession: In Shirley v. State' the Supreme Court of Tennessee held that a county court clerk could not be required to return money illegally gained by participation in a gambling game, which money had been confiscated by the sheriff and turned into court. Despite a theoretical difficulty arising from the absence in Tennessee of a statute authorizing forfeiture of gambling funds, the decision invoked the equitable principle that courts will not assist persons violating the law. For its result, the court relied in considerable measure on the New York case of Hofferman v. Simmons, which involved a …

Restitution -- 1956 Tennessee Survey, John W. Wade

Vanderbilt Law Review

The pervasive principle of Restitution--that "A person who has been unjustly enriched at the expense of another is required to make restitution to the other"'--makes use of many remedies, both at law and in equity. This year's Restitution cases will be classified according to the nature of the remedy.

One who pays the obligation of another may be entitled to indemnity, if he has not acted officiously. He may also be entitled to the remedy of subrogation, permitting him to "step into the shoes" of the person to whom, he paid and enforce any lien or right which that person …

Marriage In The Conflict Of Laws, Charles W. Taintor, Ii

Vanderbilt Law Review

It must first be recognized that three different types of problems are raised in this field by what purport to be marriages: problems concerning the creation of the relationship of man and wife; those concerning the method whereby the parties signify their consents to the assumption of the relationship; and those concerning the legal protection accorded to claims arising therefrom. These involve, respectively, the status, the ceremony, and the incidents' of marriage.

It has often been said or assumed in the past that the laws of the domicile or domiciles of the parties at the time of the ceremony govern …

Model Will, With Explanatory Comments, Of The Father Of A Closely-Knit Family Group, Designed To Minimize Family Estate And Income Taxes, William J. Bowe

Vanderbilt Law Review

I, Marital Deduction Sprinkle, of Special Power, Tax haven, being of sound and disposing mind and memory, do hereby make, publish and declare this to be my Last Will and Testament, hereby revoking all wills and codicils heretofore made by me.

Tangible Personal Property

All of my tangible property of every nature and wheresoever situated, except any such property being used by any business in which I may be interested, I give and bequeath to my wife, Mary, outright, if she survives me; if she fails to survive me, I give and bequeath said personal property to those of my …

What Is A Sale For Sales Tax Purposes?, Clyde L. Ball

Vanderbilt Law Review

Each of the states which has adopted some form of sales tax' has also adopted its own individual definition of the term "sale" or retail sale." So long as a tax upon a business transaction does not offend some constitutional principle, a legislature is free to include such transaction within its statutory definition of a sale for purposes of an excise tax levy. The statutory definitions, then, are conditioned not by the normal denotation or connotation of the word "sale," but rather by the taxing policies of the several legislative bodies. Synthesis of these varying statutes into an acceptable general …