Property Law and Real Estate Commons^™

Covenants-Restrictions Upon The Use Of Land-Negroes

Michigan Law Review

Many years ago a subdivision in Detroit was platted, with recorded building restrictions. When ready for the sale of lots, the intended high character of the subdivision and its desirability for expensive residences was much advertised. An association, an informal organization of some of the owners of houses in the subdivision, assumed the right to pass upon the desirability of prospective lot purchasers, and there was some indication that the person who advertised and marketed most of the lots verbally agreed to submit to the association the names of prospective purchasers and assured some intending purchasers that colored persons would …

Exclusive And Nonexclusive Powers And The Illusory Appointment, John E. Howe

Michigan Law Review

Powers of appointment may be classified as either general or special. Under this classification a power is said to be a special power when the donee has the right to exercise it only in favor of a limited group of persons of which he himself is not a member.

In considering special powers it is helpful to subdivide them into two separate groups, one being termed exclusive and the other nonexclusive powers. In a factual situation where the intent of the donor is such that the donee of the power has the right to exclude any of the objects, it …

The Development Of The Massachusetts Probate System, Thomas E. Atkinson

Michigan Law Review

American lawyers and laymen alike take for granted a system of probate of wills and administration of decedents' estates under the supervision of a single tribunal usually called a probate court. We are familiar with the setting up of the will, appointment of the personal representative, filing of bond and inventory by the latter, granting of allowances for support of the family, notice to creditors to present their claims, and settlement of accounts of the administration, all accomplished by this court's orders or under its scrutiny. While real property is deemed to pass directly to the heirs or devisees, it …

Secured Obligations, Benjamin M. Quigg, Jr.

Michigan Law Review

The scope of this discussion probably is best defined in the words of the act itself as appear in section 302 (1): "obligations secured by mortgage, trust deed, or other security in the nature of a mortgage · upon real or personal property, owned by a person in military service at the commencement of the period of military service"; and the problems herein discussed are those which arise under the act in connection with the sale, foreclosure, seizure, or repossession of property which is security for such obligations.

A Legal Approach To Equitable Servitudes, Ralph A. Newman

Michigan Law Review

The variety of conceptions of the nature of equitable servitudes is only one indication of the complexity of this particular branch of the law; the difficulty of classifying the topic as a branch of equity rather than of real property, or the reverse, is another, and one which grows out of the interplay of both of these divisions of the law upon the particular field of equitable servitudes. The following discussion is designed to indicate that many of the difficulties inherent in the concept of equitable servitudes may be resolved by analyzing the subject from the point of approach of …

Municipal Corporations - Constitutional Law-Exemption Of Homesteads From Taxation For State Purposes, Hobart Taylor, Jr.

Michigan Law Review

A taxpayer brought a class suit in his own name for the use and benefit of himself and other taxpayers against the city of Wichita Falls to have an ordinance exempting from all taxes $3,000 of the assessed taxable values of all residence homesteads of the city declared void, and for a permanent injunction restraining the city from allowing such exemption and issuing certificates therefor to owners of homesteads. The ordinance had been passed under authority of a constitutional amendment permitting a similar exemption for "state purposes." Held, a homestead is taxable under the constitution for all purposes other …

Constitutional Law - Highways - Billboard Regulations-Application Of Easement Principles, Ruth I. Wilson

Michigan Law Review

In Kelbro, Inc. v. Myrick, where the license and setback requirements of the Vermont outdoor advertising law were sustained together with provisions for summary removal of nonconforming advertisements, the Vermont Supreme Court declared that the commercial billboard companies have no common-law right to the privilege of visibility on which their business depends. Their exploitation of this privilege, it held, is a commercial use of the public thoroughfares which has been permitted only by sufferance and has always been subject to prohibition or regulation by the legislature.

Taxation - Special Assessments - Due Process - Requirement Of Notice For Repair Of Existing Improvement, Hobart Taylor, Jr.

Michigan Law Review

Plaintiff brought this action against the Board of Commissioners of Wells County, Indiana, to quiet his title to 160 acres of land owned by him in the county and to enjoin enforcement of supplementary drainage assessments upon the property as permitted by Indiana law. Plaintiff contended that the statute creating drainage districts was violative of due process of law and unconstitutional in that it authorized supplementary assessments to be made by the Board of Commissioners without the same notice and hearing which was required before the original assessment could be made. On demurrer, the Wells Circuit Court held for plaintiff …

Trusts - What Constitutes Revocation When No Method Specified, Dickson M. Saunders

Michigan Law Review

By trust deed of 1927, settlor conveyed two mortgages {the first for $5,200, and the second for $1,000, both given by Harry E. Hough and wife) to trustees, in trust for herself for life, and providing for certain disposition upon her death. The trust deed was revocable with reserved power in the settlor to convey, release or otherwise dispose of the property. In 1928 the settlor released both mortgages but took in lieu thereof one mortgage for $6,200 from the same mortgagors on the same property. This substitution was effected to accommodate the mortgagors and no money changed hands. The …

Eminent Domain - Disposition Of Award When Land Is Subject To Life Estate And Remainder, Mary Jane Morris

Michigan Law Review

Testator devised property to his adopted daughter for life and remainder to her children, but should she leave no children at her death, then the estate was to go to a named charity. The United States took title to this property and paid the compensation into court. The life tenant and one of the five children filed a motion that the life tenant be permitted to withdraw the funds arising from the condemnation for the purpose of having them immediately reinvested in other real estate and/or government securities. This motion was approved by the guardian ad litem for the one …

Easements-Use Of Boundary-Line Driveways As Permissive Or Adverse

Michigan Law Review

The essence of prescription as a means of acquiring ownership or an interest is long-continued use. If the claimant's task were simply the proof of the use and that it had been open, it would not be a difficult one. The chief difficulties are encountered in establishing that the use had the necessary quality of adverseness. The like requirement as to a possession that ripens into ownership under the statute of limitations has its problems, but they are, generally speaking, not so troublesome.

Deeds - Effect Of Noncompliance With Statute Requiring Grantor To Set Forth In Deed Name Under Which He Derived Title, Mary Jane Morris

Michigan Law Review

In a suit between plaintiff and defendant Girola Bros., plaintiff obtained a judgment and levied upon certain property. Plaintiff purchased the land at an execution sale and recorded the sheriff's deed conveying the property to him. Prior to the commencement of the action, defendant Girola Bros. had changed its name to Madalay, Inc., and under the latter name had conveyed the property, subsequently levied on by plaintiff, to defendant M. Girola, pending the action by plaintiff. This deed was recorded. It set forth Madalay, Inc., as grantor, but failed to set forth the name in which Madalay, Inc., derived title …

Constitutional Law - Validity Of Rent Provisions Of Emergency Price Control Act, George T. Schilling

Michigan Law Review

The administrator of the Office of Price Administration brought an action in a federal district court to enjoin defendant from violating the rent provisions of the Emergency Price Control Act of 1942, and orders and regulations issued pursuant thereto. Defendant, by way of counterclaim, challenged the constitutionality of the act and Regulation No. 10 and sought an in junction restraining plaintiff from enforcing against her the provisions of the act, from interfering with the use and occupancy of her premises and her right to invoke the jurisdiction of the state courts, and requesting the suspension of the penal provisions of …

Assault And Battery - Defense Of Property

Michigan Law Review

In a suit brought to recover damages for the death of plaintiff's husband the evidence indicated that the deceased, and other intruders, entered defendant's place of business after having been ordered to leave. The group "threw bricks and other missiles at Gennaro, destroying whiskey bottles and other property, whereupon Gennaro secured a pistol and shot and killed Wade." It was held that defendant was justified in killing the inebriated trespasser. Wade v. Gennaro, (La. App. 1942) 8 So. (2d) 561.

Trusts - Constructive Trusts - Protection Of Trade Secrets And Like Confidential Information, E. George Rudolph

Michigan Law Review

Plaintiff hired a seismograph company to make surveys of certain land for the purpose of locating oil and gas. The results of the survey were favorable. An employee of the seismograph company communicated the results to the defendant who thereafter leased the land. Plaintiff brought suit to have defendant declared constructive trustee of the land for plaintiff. Held, that the relief could not be granted since defendant might have leased the land without such information. Ohio Oil Co. v. Sharp, (D. C. Okla. 1942) 45 F. Supp. 969.

Executors And Administrators - Distribution Of Surplus Proceeds When Realty Devised Subject To A Condition Is Sold For Debts, E. George Rudolph

Michigan Law Review

Testatrix devised a house and lot to the trustees of the First Methodist Church Oil the condition that it be used for a parsonage. In administering the estate it became necessary to sell this real estate. Seven thousand dollars was realized by the sale, of which five thousand remained after debts were paid. This action was brought by the executors to determine the respective rights of the trustees of the First Methodist Church, the residuary legatee, and the heirs at law to this five thousand dollar surplus. Held, the condition relating to the use of the realty was rendered …

Federal Courts - What Is An Equitable Claim To Real Property Within The Meaning Of Section 57 Of The Judicial Code?, Charles J. O'Laughlin

Michigan Law Review

Plaintiff, an Ohio corporation, was the lessee of land in Kentucky. It entered into a contract with defendant lessor, a resident of the District of Columbia, to renew the lease. Defendant failed to carry out his agreement, and plaintiff" sued for specific performance of the contract to lease in the United States District Court for Eastern Kentucky, jurisdiction being based on diversity of citizenship. Plaintiff was unable to obtain personal service upon defendant, but obtained service by publication under section 57 of the Judicial Code, which authorizes the court to take jurisdiction and to allow service by publication in "any …

Insurance - Right Of Insurer To Be Subrogated To Claim Of Insured Against A Third Person Where It Has Paid A Claim On Which It Was Not Liable, Michigan Law Review

Michigan Law Review

Plaintiff paid insured for damage done to his building because of the defendant's negligence, and received a subrogation receipt from the insured. Plaintiff now sues for damages in its own name and for its own benefit. The policy provided that it should be void if the insured did not have sole and unconditional ownership of the property. Title to the damaged property was in the name of the insured's wife, and therefore the policy was void. Held, since the insurer was not obligated under the policy, it was a mere volunteer, and could not be subrogated to the insured's …

Landlord And Tenant - Anticipatory Or Partial Breach By Lessee, Michigan Law Review

Michigan Law Review

Plaintiff was lessor and defendant was lessee under a ninety-nine year lease. After thirty-one years had expired under the lease, defendant gave notice of his intention to quit at the end of the current quarter. Plaintiff informed defendant that he would not accept a surrender, but before the end of the quarter defendant abandoned the premises. When defendant refused to pay rent for the next quarter as it became due, plaintiff sued for the difference between the rent reserved for a thirty-year period and the fair rental value for such a period. Held, the repudiation constituted a total breach …

Constitutional Law - Due Process - Notice And Hearing - Validity Of Statute Authorizing Seizure Of Property Illegally In Possession Of Pawnbroker, Wilbur Jacobs

Michigan Law Review

Complainant, believing his property to be illegally in the possession of defendant pawnbroker, obtained a search warrant, authorized by statute to be issued, on complaint under oath, by any magistrate who is satisfied that there is reasonable cause for complainant's belief. Although the statute required the property to be seized and delivered to complainant on his posting a bond for double the value of the property, the property was not in fact seized. However, actual notice to appear and be heard on a certain date was given to the defendant, even though such notice was not expressly required by the …

Injunctions - Extent To Which Equity Will Protect A Business On The Theory That It Is A Property Right, Michigan Law Review

Michigan Law Review

Plaintiff, a corporation engaged in publishing a newspaper, in order to increase circulation conducted a puzzle contest, offering substantial prizes. Defendant, engaged in preparing and selling answers to various prize contests, sold answers to contestants in plaintiff's contests. Plaintiff sought to enjoin such activity. Held, that the right to conduct a lawful business is a property right which may be protected from unlawful interference. Even if, as mere offerees, the contestants are not bound to plaintiff by contract, defendant's acts amount to an inducement to tender spurious performance and may therefore be enjoined as improper and unlawful interference with …

Municipal Corporations - Waters And Watercourses - Eminent Domain - Pollution Of Water As A "Taking" Of Private Property, Brooks F. Crabtree

Michigan Law Review

Plaintiff sued defendant city for damages caused his land by the continual discharge of raw sewage into the river about one-half mile above plaintiff's land. The pollution rendered the water of the river unfit for domestic use and deleterious to health. Held, that although the plaintiff failed to allege the necessary elements for a tort action against a municipality, under the Washington statute, he stated a valid cause of action for damages under article I, section 16 of the Washington Constitution which states that "No private property shall be taken or damaged for public or private use without just …

Oil And Gas - Interpretation Of Lease Containing Royalty Provisions, Brooks F. Crabtree

Michigan Law Review

Several of the plaintiffs owned oil-producing land in Oklahoma and had leased it to one Briggs. The lease ran for a fixed term and "so long thereafter as oil or gas may be produced therefrom by the lessee." It provided for a royalty payment to the lessor of one-eighth of the oil or gas produced, and gave the lessee the right "at any time" to remove all machinery and equipment placed on the premises, including the right to draw and remove the casing. Briggs sold the equipment thereon to defendant and later sold the lease itself to one of the …

Municipal Corporations - Zoning Ordinances - Aesthetic Considerations Under The Police Power, Charles J. O' Laughlin

Michigan Law Review

Plaintiff brought suit to enjoin the enforcement of the zoning laws of the city of Miami Beach. His property was in a zone reserved for apartment hotels and first-class family residences, but adjacent to an area in which business structures were allowed. Plaintiff sought to erect structures of a business character on his property, despite the zoning law. Held, the zoning law is sustained, for plaintiff's property rights must yield to the interest of the community in maintaining the attractiveness of this resort area. City of Miami Beach v. Ocean & Inland Co., (Fla. 1941) 3 So. (2d) …

Taxation - Gift Tax - Transfer In Pursuance Of An Antenuptial Agreement As A Taxable Gift, Michigan Law Review

Michigan Law Review

Plaintiff entered into an antenuptial agreement with his intended wife whereby she waived all rights which she might acquire by virtue of the marriage in certain stock which he owned. In consideration therefor, he transferred to her two annuities and an interest as tenant by the entirety in two parcels of real estate. Plaintiff contended that such transfers did not constitute taxable gifts, and the Board of Tax Appeals decided in his favor. Held, that the transfers were taxable gifts, for a waiver of marriage rights in the property of plaintiff pursuant to an antenuptial agreement did not constitute …

Damages - Effect Of Defendant's Tender Of Specific Restitution Upon Plaintiff's Action To Recover The Value Of Property, William H. Kinsey

Michigan Law Review

A person who has appropriated the land or chattels of another may prefer to return the subject matter rather than be held liable for its money equivalent in a law suit brought by the rightful owner. Whether the appropriator will improve his position by tendering specific restitution presents an interesting question. Because of the numerous remedies at the owner's disposal, it is impossible to formulate a single, concise answer.

Execution - Misdirection Of Process - Validity Of Amendment, Michigan Law Review

Michigan Law Review

A statute provided that where the writ of execution requires the delivery of real or personal property, it "must" be issued to the sheriff of the county where the property is situated. The judgment debtor had some money deposited with the defendant bank in Y county on which plaintiff sought execution. The writ was directed to the sheriff of X county but was delivered to the sheriff of Y county. The writ was served on the defendant bank and the vice president of the bank made a return stating that the bank had no property in its possession, nor under …

Joint Obligations- Effect Of Release Or Covenant Not To Sue, Michigan Law Review

Michigan Law Review

Defendants mortgaged their farm to plaintiff and later conveyed to one Ahart, who assumed the mortgage indebtedness. In a written extension agreement between all three parties it was provided that the defendants and Ahart should be jointly and severally liable for the debt. After foreclosure proceedings were started, Ahart and the plaintiff entered into a written contract by which the plaintiff agreed to release Ahart from all personal liability on the mortgage indebtedness in consideration of a deed to the farm. Thereafter the plaintiff sought a deficiency judgment against the defendants. Held, the defendants were not discharged from their …

Executors And Administrators - Rights Of Creditors Of Legatee Or Distributee During Administration Of Decedent's Estate, Herbert R. Whiting

Michigan Law Review

In order to present a clear picture of the problem involved herein two assumptions must be made before proceeding further: (a) that it is desirable to subject to the claims of his creditors the interest of a legatee or distributee, providing certain procedural and administrative difficulties, subsequently to be considered, can be overcome; (b) that there is no realty in the decedent's estate.

Dower - Premarital Conveyance As Fraud On Dower, Michigan Law Review

Michigan Law Review

Decedent, seven days before his marriage to plaintiff, conveyed all his property to his nephew, the defendant. Plaintiff was not informed of the transfer until some time after the marriage. The property was worth $22,000, and decedent, who was at that time sixty-two years of age, was allowed to retain a life estate therein. Cancellation of a note for $2,904 owing from decedent to defendant served as consideration for the transfer. Held, the transfer was a fraud on dower since it was made without the knowledge of the intended wife for the purpose of defeating the interest which she …