PACE UNIVERSITY SCHOOL OF LAW
PROPERTY I -‑ VERSION A
PROFESSOR HUMBACH December 12, 2001
FINAL EXAMINATION TIME LIMIT: 3 1/2 HOURS
IN TAKING THIS EXAMINATION, YOU ARE REQUIRED TO COMPLY WITH THE SCHOOL OF LAW RULES AND PROCEDURES FOR FINAL EXAMINATIONS. YOU ARE REMINDED TO PLACE YOUR EXAMINATION NUMBER ON EACH EXAMINATION BOOK AND SIGN OUT WITH THE PROCTOR, SUBMITTING TO HIM OR HER YOUR EXAMINATION BOOK(S) AND THE QUESTIONS AT THE CONCLUSION OF THE EXAMINATION.
DO NOT UNDER ANY CIRCUMSTANCES REVEAL YOUR IDENTITY ON YOUR EXAMINATION PAPERS OTHER THAN BY YOUR EXAMINATION NUMBER. ACTIONS BY A STUDENT TO DEFEAT THE ANONYMITY POLICY IS A MATTER OF ACADEMIC DISHONESTY.
This examination consists of multiple choice questions and true-false questions. Answer the questions on the answer sheet provided. Write "Version A" on the answer sheet. Write it NOW. Also write your examination number where it says "Write I.D. Number Here," and then carefully mark your number in the blue-striped box labeled "Mark I.D. Number Here." Do not skip lines. You should mark only one box in each of the first five lines for your five-digit examination number.
Answer each question selecting the BEST answer. Mark your choice on the answer sheet with the special pencil provided. Select only one answer per question. If you change an answer, be sure to FULLY erase your original answer or the question may be marked wrong. Make sure your answer marks are dark. You may lose points if you do not mark darkly enough.
When you complete the examination, turn in the answer sheet together with this question booklet.
Every even-numbered multiple choice question asks you to reanswer the preceding odd-numbered question. Question 2, for example, asks you to reanswer question 1. If you are fairly confident about your answer to the principal question, mark the same answer for the "reanswer" question. If you can narrow the choice down to two answers, however, and cannot decide which of the two is the better one, you may wish to mark a different answer on the "reanswer" question. IMPORTANT NOTE: If you decide to mark a different answer on a "reanswer" question, at least one of your two answers will be wrong.
Unless the context otherwise requires (such as where the facts are specifically stated to arise in New York), base your answers on general common law principles as generally applied in American common law jurisdictions. Do not assume the existence of any facts or agreements not set forth in the questions. Unless otherwise specified, assume that the period of limitations on ejectment is 10 years.
Except as otherwise specified, all conveyances are to be considered as if made, in each case, by a deed having the effect of a bargain and sale, after the Statute of Uses, but ignoring the effects of obsolete doctrines such as the Rule in Shelley's Case, the Doctrine of Worthier Title and the destructibility of contingent remainders. Ignore the possibility of dower and, for perpetuities purposes, ignore the possibility of posthumous children in gestation.
1. Crandell operates a vegetable farm that requires large quantities of water. He pumps it from the ground. Because of Crandell’s pumping, the well of his neighbor, Jones, goes dry for several weeks every summer. Jones is forced to haul in water by truck for his livestock and ordinary domestic uses. Jones desires to know his rights, if any, against Crandell:
a. Under the so-called English rule, Jones owns the percolating water beneath his land and if Crandell’s pumping makes that water flow away from Jones’ land then Crandell is, in effect, stealing Jones’s water; Crandell can be made to pay for it.
b. Under the so-called American rule, Jones owns the percolating water beneath his land and if Crandell’s pumping makes that water flow away from Jones’ land then Crandell is, in effect, stealing Jones’s water; Crandell can be made to pay for it.
c. Under the so-called English rule, Crandell has an essentially absolute right to pump out and use the percolating water beneath his land even if the pumping causes the percolating water to flow away from Jones’ land.
d. Under the so-called American rule, Crandell has a right to make only reasonable use of the percolating water beneath his land and, therefore, he would not be permitted to pump out water if, by doing so, he made water flow noticeably out from under Jones’ land.
2. Reanswer the previous question.
3. Parker owns some agricultural land, under which a substantial amount of natural gas has been discovered. The pool of gas extends under the land of several of his neighbors. In Parker’s state, the courts apply the so-called “rule of capture” to natural gas:
a. Parker is considered the absolute owner of the gas naturally occurring beneath his land, and his neighboring owners would be liable if they were to divert that gas from under his land or cause it to flow away by pumping.
b. Parker and each of his neighbors is entitled to whatever gas he or she manages to produce by drilling into the underground pool (as long as they do not trespass in doing so).
c. Parker and each of his neighbors is considered the owner of the gas naturally occurring beneath his or her land, and each has a right to a proportionate share of any gas that is pumped out of the underground pool beneath their several neighboring parcels.
d. If the gas under Parker’s land was piped in from elsewhere and placed into the ground, the person who placed it into the ground should logically be liable in trespass for storing gas without permission under land belonging to Parker.
4. Reanswer the previous question.
5. Margery and her niece, Jane, were talking when Jane admired Margery’s ring. “Gee, that’s a pretty ring,” said Jane. Margery replied: “If you like it, the ring is yours.” Jane said: “Oh, thank you, I love it,” and she tried the ring on. When it didn’t fit, Margery said, “I can have it resized,” and Margery took back possession of the ring along with another ring, which belonged to Jane, to use for the resizing. The best interpretation:
a. There was no valid gift here, as there is no factual basis whatever for a court to say that the delivery requirement has been met.
b. The gift has been undone. Margery is again (after a brief interlude) the owner of the ring.
c. The donor has become the bailee of the donee.
d. Margery has made an unenforceable gratuitous promise to make a gift of the ring to Jane.
6. Reanswer the previous question.
7. Velma has purchased a metal shed, which she wishes to place on the back of her lot. The smallest dimension of the shed is 7½ feet. The distance between Velma’s house and the houses on either side is only 6 feet, and the shed (which comes as a completed unit) will not fit through unless it is partially dismantled. Velma has asked the neighbor who lives behind her, Fremisse, to allow the shed to be brought across his property. Doing so would cause no damage to Fremisse’s property and Velma has offered to pay him a reasonable fee for his trouble. So far, Fremisse has refused.
a. Velma would probably be legally entitled, in this situation, to use Fremisse’s property to get the shed to the back of her property, with or without the fee.
b. Velma would probably be legally entitled to use Fremisse’s property to get the shed to the back of her property, but only after she pays a reasonable fee.
c. Velma would not be legally entitled to use Fremisse’s property to get the shed to the back of her property because an unpermitted intrusion onto land of another is a trespass, and is actionable, no matter what the intruder’s reason or objective may be.
d. Velma would probably not be legally entitled to use Fremisse’s property to get the shed onto her property; Fremisse’s interest in keeping his property to himself would probably be deemed, in a case like this, to outweigh Velma’s convenience and self-created needs.
8. Reanswer the previous question.
9. Furman, a trapper, caught a desert fox in a trap he had set out along a stream near his rural home. The fox was not injured and Furman decided to take it home, alive. His neighbor, Clement, heard about the fox and claimed it was the same fox that Clement had purchased recently from a breeder. According to Clement’s story the fox had escaped from him during the night several days before. Clement’s claim to the fox would be supported:
a. If Clement could show that it had animus revertendi.
b. If Clement could show that desert foxes of that variety did not occur naturally in the region.
c. Both of the above.
d. None of the above. The courts would only be concerned to protect Furman’s industry and labor in capturing the fox.
10. Reanswer the previous question.
11. Jackie lent a CD to her friend, Rachel, and Rachel took it home. Later, Jackie told Rachel over the telephone that Rachel could just keep the CD that Jackie had lent her.
a. Title to the CD was transferred when Jackie lent it to Rachel.
b. A bailment of the CD occurred when Jackie lent it to Rachel.
c. There has almost been a completed gift of the CD. The only thing necessary to meet the delivery requirement is for Rachel to briefly return the CD to Jackie and then for Jackie to hand it back to Rachel.
d. Jackie has made a mere gratuitous promise to give the CD to Rachel.
12. Reanswer the previous question.
Facts for Penrod questions. Penrod was travelling down a fresh-water (non-tidal) stream in a small boat when he encountered a sign that read: “Private property. No trespassing beyond this point.” According to state law, the beds and banks of all fresh-water (non-tidal) streams are presumptively owned by the persons who own the adjacent dry uplands, and a person who owns both banks of a stream presumptively owns to the middle. The state’s highest court has, however, reaffirmed the existence of a public easement of navigation like the one we studied in the Adirondack League Club case.
13. Penrod continued down the stream, ignoring the prohibition of the sign. In doing so he navigated over the privately-owned streambed, but he did nothing more. Your best advice to Penrod is:
a. Penrod would not be considered a trespasser if the stream was, indeed, “navigable in fact.”
b. Penrod cannot be considered a trespasser because the mere fact that he was able to navigate down the stream proves conclusively that it was legally “navigable in fact.”
c. Whether the stream is “navigable” or not, Penrod cannot be considered a trespasser as long as he merely floated on the water and did not touch the banks or bed of the stream.
d. The only way for Penrod not to be considered a trespasser is for the stream to be “navigable in law.”
14. Reanswer the previous question.
15. Suppose that Penrod continued down the stream over privately-owned streambed despite the prohibition stated in the sign. At one point the water became very shallow, and he got out of his boat to pull it around the shallow place that was blocking his passage. In doing so, he had to walk on the bed and bank of the stream for a short distance. Your best advice to Penrod is:
a. He will be considered a trespasser because the existence of the impassible area is proof in itself that the stream was not legally navigable-in-fact at that point.
b. He will be considered a trespasser because the public right of navigation is limited to actual boat travel, and it does not include any right to intrude onto the banks or bed of the waterway.
c. If the stream is legally navigable in fact, he will not be considered a trespasser for going on the banks and bed of the stream if doing was absolutely necessary in order to circumvent the obstacle to navigation.
d. He will probably be considered a trespasser unless it is the custom of the country that weekend boaters can enter onto the banks and beds of streams in the process of navigation.
16. Reanswer the previous question.
17. Harper comes to you and says he has discovered that Emmel has removed several tons of mussels (shellfish) from a non-navigable stream on Harper’s land and has made them into buttons, for a considerable commercial profit. Harper wonders what rights he might have against Emmel. Harper admits that he has long allowed his neighbors, including Emmel, to use the stream recreationally for swimming and fishing, but he thinks Emmel has gone too far.
a. Even if Emmel had a license to use Harper’s stream for recreational fishing, it would not follow that Emmel also had a license to take large quantities of shellfish for purposes of commercial gain.
b. Whether or not Emmel had acquired a license to use Harper’s stream for certain activities, Harper would still be legally entitled to prevent Emmel from using the stream for such activities in the future.
c. Both of the above.
d. As long as Emmel had acquired a license to use Harper’s stream for recreational fishing, Emmel could not, in the absence of a warning, be considered a “trespasser” in taking out the mussels.
18. Reanswer the previous question.
19. The Supreme Court in Pennsylvania Coal v. Mahon held that the Constitution protects private property rights. Specifically it held that, without compensation to mining companies:
a. The states can protect the property of small homeowners by forbidding mining companies from removing coal from underneath people’s homes and neighborhoods.
b. The states can protect the property of small homeowners by refusing to enforce, as void and against public policy, any contracts that say mining companies can dig under and destroy people’s homes and neighborhoods.
c. The states may not impair the mining companies’ reserved rights to remove coal from underneath people’s homes and neighborhoods.
d. The states may render it commercially impracticable to mine certain coal as long as the state does not actually take the coal in question away from the coal owner.
20. Reanswer the previous question.
21. The state of N desires to adopt a law that will protect its drinking-water reservoirs. The proposed law would prohibit any new construction within 500 feet of any stream or tributary flowing into the public reservoir system. Much of the land in question is in private ownership, in parcels varying from a fraction of an acre to many thousands of acres in size. The state is considering whether, under the proposed law, it would be constitutionally required to pay any compensation to owners whose ability to build may be reduced or eliminated under the new law.
a. The state may be required to compensate owners of some parcels, especially small ones which, due to their size, are unbuildable because they fall mostly or entirely within the 500’ set-back area.
b. The state probably would not have much liability to compensate owners of larger tracts whose ability to build is reduced but not totally eliminated under the 500’ set-back rule.
c. Both of the above.
d. The state will probably be required to pay compensation to the owners of virtually all existing parcels who are deprived of any substantial value due to the 500’ set-back rule.
e. Because of the important public purpose being addressed by the proposed law, it is not likely that the state would have to pay any compensation to any owners affected.
22. Reanswer the previous question.
23. For the last twelve years or so the Fordmans have been going to a place in the nearby mountains. It is a beautiful setting, at the end of a long unpaved road that runs several miles in from the highway, mostly over state-owned forestland. The particular area that the Fordmans use is, however, on private land, owned by the Howard Timber Company, a large forestry firm. During the summer months the Fordmans occupy a spacious clearing in the woods. They keep a camping trailer there, they have built a large stone fireplace, and they leave a picnic table and tent platforms on the site year-round. Assuming these actions are “open & notorious”:
a. They still could not form a basis for acquiring a title by adverse possession because they are not sufficiently continuous, inasmuch as the Fordman’s physical presence is only during the summer.
b. They could form a basis for acquiring a title by adverse possession, but only if there is also evidence, beyond what appears here, that the Fordman’s were “hostile,” manifesting an actual intention to claim legal title against Howard Timber.
c. They would appear to constitute, on the face of things, a basis for acquiring a title by adverse possession.
d. They could form a basis for acquiring title by adverse possession, but only if the Fordmans did something more to make sure Howard Timber knew that a portion of its land was being adversely possessed.
24. Reanswer the previous question.
25. Suppose that in the previous question the Fordmans honestly (but mistakenly) believed that the land they were using belonged to them, inherited from Mr. Fordman’s uncle some years before. Suppose they were on Howard Timber lands because they had simply gotten their bearings wrong. Under the “better” rule:
a. Their possession could not ripen into title because their possession—being under an honest mistake—is not hostile.
b. Their possession ought to ripen into a title by adverse possession (if it otherwise qualifies) despite the fact that it is due to an honest mistake.
c. Their possession could not form a basis for acquiring title to the clearing by adverse possession because it is too broken up, with physical presence only in the summer.
d. Their possession could not form a basis for acquiring title to the clearing by adverse possession because an heir has a legal duty to find out which land he has inherited and to take possession only of that.
26. Reanswer the previous question.
27. Elgar shot a pheasant while hunting on land belonging to Thompson, who now claims to be entitled to possession of the pheasant. Elgar did not have Thompson’s permission or any other license to hunt at that location (other than the usual hunting license issued by the State Dept. of Wildlife).
a. Thompson should be entitled to the pheasant under the principle of animus revertendi (the “animal reverts” to the owner of the land).
b. Thompson should be entitled to the pheasant under the principle of ratione soli (“by right of the soil”).
c. Both of the above.
d. None of the above. Elgar should be entitled to the pheasant under the principle of ferae naturae (“wild animals”).
28. Reanswer the previous question.
29. Nestor is the lessee of a large industrial lot under a 25-year lease from Ringel, who has a reversion in fee simple absolute. Nestor uses the land mostly to store heavy building supplies—pipes, beams, and various kinds of equipment. The lease has about 6 years more to run. Recently it was discovered that the owner of the neighboring land has been encroaching for the last 11 years by maintaining a fence that encloses a 750 sq. ft. strip at the back of the leased premises. The neighbor’s use has been such that, ordinarily, it would result in acquisition by the neighbor of a ripened title to the strip by adverse possession. From these facts it would appear that:
a. The neighbor has acquired a ripened title to the strip as against Nestor.
b. The neighbor has acquired a ripened title to the strip as against Ringel.
c. The neighbor has acquired a ripened title to the strip as against both Nestor and Ringel.
d. The neighbor has probably not acquired a ripened title to the strip as against either Nestor or Ringel.
30. Reanswer the previous question.
31. When Deakin died intestate in late 1996, he was the record owner of Blackacre, which he had owned for several decades. Smeaville was his sole heir. At the time of Deakin’s death, the land had been in the adverse possession of Urton for seven years. Urton remained in adverse possession until 1997, when he delivered a deed purporting to convey the land to Marsh, and the latter has possessed the parcel ever since. All adverse possession by Urton and Marsh has been of the sort which would, if continued for the requisite period of time, ripen into title.
a. By now Marsh has acquired a ripened title to the land by adverse possession.
b. Marsh has not yet acquired a ripened title to the land because there was no privity of estate between Marsh and Urton.
c. Marsh has not yet acquired a ripened title to the land because he and Urton, even taken together, have adversely possessed against Smeaville for only about five years.
d. Marsh has not yet acquired a ripened title to the land because there was no privity of estate between Smeaville and Deakin.
32. Reanswer the previous question.
33. One year ago, an adverse possessor named Barker acquired a ripened title to a parcel of land belonging to Quisp. If the period of limitations on trespass actions is three years:
a. Quisp should still be able to recover mesne profits from Barker for the past three years.
b. Quisp should still be able to recover mesne profits from Barker for the last two years before his title ripened.
c. For purposes of bringing a trespass action against Barker, Quisp would be considered to have had constructive possession of the land for the final two years before Barker’s title ripened inasmuch as Quisp was the still the true owner during those last two years.
d. Quisp should be barred from recovering mesne profits from Barker for any portion of the adverse possession because title acquired by adverse possession relates back to the time the adverse possessor first entered into possession.
34. Reanswer the previous question.
35. Compton occupies a parcel of wooded land that he claims to own in fee simple absolute under a long chain of recorded deeds. Trentoff entered the land without permission and cut down much irreplaceable ancient timber. Compton has sued for the “permanent” injury to the land. Trentoff’s defense points out that a deed in Compton’s chain of title was defectively executed. As a result, Trentoff asserts, Compton is unable to prove legal title to the land and he appears, therefore, to have the rights of a mere possessor. Under the “better” rule (that is, the Winkfield-type rule):
a. Trentoff should prevail because Compton is trying to assert a jus tertii under which he does not claim.
b. Compton should prevail because Trentoff is trying to assert a jus tertii under which he does not claim.
c. Trentoff should not be required to pay for “permanent” injury to the land because, if Compton is a mere possessor, the true owner might come back at any time and dispossess him.
d. Compton should win because, where neither of two parties can show title, the law should presume that title is held by whichever party happens to be the plaintiff in the particular case.
36. Reanswer the previous question.
37. Four years ago Marylynn bought a painting in good faith from a reputable gallery in New York, where she lives. Recently, she learned for the first time that some years earlier the painting had been stolen from a small museum upstate. Assume that New York law applies, including the 3-year period of limitations for replevin.
a. Since Marylynn has possessed the painting for at least 3 years, she probably has no reason to be concerned about losing it in a replevin action by the upstate museum.
b. In order for the upstate museum to recover the painting from Marylynn, it would have to show that it used reasonable diligence to discover the painting’s whereabouts after it was stolen.
c. Marylynn has apparently no basis to claim a ripened title by adverse possession because her possession would not be considered “wrongful” until a demand for possession had been made by the owner and refused by her.
d. None of the above. The doctrine of adverse possession does not apply to chattels, and there is no way that Marylynn could acquire a ripened title to the painting.
38. Reanswer the previous question.
39. Carlton owns some land with a small cabin on it, which he uses during the summer. Last winter, while Carlton was not at the cabin, an intruder broke into it and did considerable damage. Carlton would now like to sue the intruder for damages.
a. Carlton cannot recover from the intruder in trespass unless Carlton was in actual possession of the cabin at the time of the trespass.
b. Carlton cannot recover from the intruder in trespass unless Carlton was in actual or constructive possession of the cabin at the time of the trespass.
c. As owner of the land where the cabin was located, Carlton would be considered to be in constructive possession of the land, even if the land was at the time (and still) in the adverse possession of Carlton’s next-door neighbor.
d. The old English rule, which required possession in order to sue in trespass, has no counterpart in American common law.
40. Reanswer the previous question.
41. Garwin has asked you to prepare a deed for delivery to Cooke. He wants it to contain a habendum clause providing that Cooke will receive a fee simple determinable. Which of the following could serve the purpose?
a. “Garwin hereby grants and conveys the following described parcel of land unto the said Cooke and his heirs, as long as the same shall be used for farming purposes, and thereafter the land shall revert to the grantor.”
b. “Garwin hereby grants and conveys the following described parcel of land unto the said Cooke and his heirs, but if the same shall cease to be used for farming purposes, then the grantor shall have the right to re-enter and resume possession.”
c. “To have and to hold said land unto the said Cooke and his heirs, but if the same shall cease to be used for farming purposes, then the grantor shall have the right to re-enter and resume possession.”
d. “To have and to hold said land unto the said Cooke and his heirs, as long as the same shall be used for farming purposes, and thereafter the land shall revert to the grantor.”
42. Reanswer the previous question.
43. You represent a community theatre company which, over 30 years ago, received a gift of land with a building on it (the “Old Theater”). The purpose of the conveyance was to provide the company with a playhouse for its amateur theatrical productions. The deed of conveyance specified: “if the premises ever cease to be used for community theatre purposes then the grantor may re-enter and resume possession.” For the last three years, the company has used the Old Theater solely for storage of props and scenery because the building cannot be properly heated in winter. The original grantor vocally supported the company’s decision to perform all recent productions in a local school’s auditorium. Now, she suddenly demands that the Old Theater parcel be returned to her. Which possible basis for avoiding a forfeiture do these facts present?
a. The deed should be strictly construed so the re-entry will not be deemed triggered as long as the Old Theater building is used for any community theatre purposes—since the deed’s wording does not limit use to actual performances.
b. The original grantor has waived the right of re-entry by vocally supporting the cessation of use of the Old Theater building for performances.
c. If the land is in New York or a state with a statute similar to New York’s, it may well be that the condition subsequent has been extinguished because the grantor did not file a “declaration of intention.”
d. All of the above.
44. Reanswer the previous question.
45. Graber runs an independent towing service. He was called to tow a broken down car, which was in a parking garage belonging to Davis. The car belonged to Kim, who had recently purchased it used and had driven it to Davis’ garage. While hooking the car to his tow truck, Graber discovered a secret compartment under the car. There was a bag containing $25,000 in the compartment. If the jurisdiction follows the rule that makes a distinction between lost and mislaid property:
a. The money would, under these circumstances, probably be regarded as “lost.”
b. Of these three people, Davis would be the one with the best claim to possession of the money because he is the owner of the locus in quo.
c. Of these three people, Kim would be the one with the best claim to possession of the money because he is the owner of the locus in quo.
d. Of these three people, Graber would be the one with the best claim to possession of the money because he is the finder.
46. Reanswer the previous question.
47. While making a delivery of some canned goods to a supermarket, Tolland found a purse lying on the floor inside the store. Tolland and the owner of the store are now engaged in a legal wrangle over who is entitled to the purse and its contents.
a. If the jurisdiction follows the so-called American rule, Tolland would have the better claim as long as he was not committing a trespass at the time of the find.
b. If the jurisdiction follows the so-called English rule, Tolland would have the better claim even if he made the find in an area of the store (in the back “warehouse” area) that was not open to members of the public.
c. If the jurisdiction follows the so-called English rule, Tolland would likely not have any claim whatever no matter where on the store premises he found the purse.
d. If the jurisdiction follows the so-called American rule, Tolland would likely not have any claim whatever no matter where on the store premises he found the purse.
48. Reanswer the previous question.
49. With the intention of making a gift of money, Gretchen wrote a check to Jordette in the amount of $25000. Gretchen then handed the check to Jordette. Under local holdings, a check does not constitute, in itself, an assignment of the funds in the account.
a. The gift will fail if Jordette does nothing to collect the check before Gretchen dies.
b. The gift will succeed and be upheld if the Jordette cashes the check and receives the funds during Gretchen’s lifetime.
c. Both of the above.
d. None of the above.
50. Reanswer the previous question.
51. Taggert was on his deathbed and he said to his nephew, Reardon: “I want you to have the painting of your grandpa that is hanging over there on the wall.” Reardon said thank you and, when he departed, he removed the painting from the wall, with Taggert looking on approvingly. Reardon took the painting home with him. Later, after Taggert’s death, it was discovered that Taggert had executed a will in which he had made a specific bequest of the very same painting to the local art museum “for the good of society.” Choose the untrue statement.
a. If the will was executed after the above-described gift to Reardon, then the museum should be legally entitled to the painting.
b. If the will was executed before the above-described gift to Reardon, then Reardon is should be legally entitled to the painting.
c. No matter when the will was executed, Reardon has no legal claim to the painting because Taggert never actually made a “delivery” of it to him; Reardon just took it.
d. The gift to Reardon was presumptively a gift causa mortis.
52. Reanswer the previous question.
53. Suppose that, while making a delivery of some canned goods to a supermarket, Tolland found a valuable necklace, with a broken clasp, lying on the floor in the store. News of the find circulated quickly and, moments later, a patron stepped forward and claimed that the necklace was hers. Tolland let her have the necklace but he later learned that she had bragged to some of her friends about her “quick thinking,” which got her a necklace that wasn’t really hers.
a. Tolland would have no rights to the necklace as against the patron because Tolland does not own the necklace, either.
b. Tolland would have no rights to the necklace as against the patron because he may not assert a jus tertii under which he does not claim.
c. Tolland can recover the necklace from the patron in replevin (if she still has it) but he cannot recover money from her.
d. Tolland can recover the necklace from the patron in replevin (if she still has it) or he can recover its value in trover, if he so chooses.
54. Reanswer the previous question.
55. Victor left a valuable antique dresser at a furniture repair studio for cleaning and restoration. Two weeks later, an employee of the studio, in good-faith confusion, accidentally included the dresser in a delivery to another customer whose furniture was about to be shipped to Europe. The ship carrying the dresser sank in a storm. Victor has not yet paid any portion of the amount agreed for the work that was done on the dresser.
a. The studio should be liable for the loss only if its employee was negligent in delivering the dresser to the other customer.
b. The studio could probably be held liable for misdelivery even if it were proved that the employee used ordinary care and that there were no negligence whatever.
c. Since Victor has paid nothing, this transaction should properly be considered a “gratuitous” bailment, and the studio would be liable for the loss if, but only if, it were grossly negligent.
d. The studio in a case such as this can be held liable only if negligent, and the usual presumption is that the bailee has met the standard of reasonable care, unless proved otherwise.
56. Reanswer the previous question.
57. Suppose that when Victor left his dresser at the repair studio he did not tell the studio that the dresser was an antique and the studio’s owner (not being a specialist in antiques) had no idea of its high value. Although the dresser was worth $100,000, its apparent value to a reasonable non-specialist would have been only a few hundred dollars. Suppose now that the dresser was destroyed (delaminated) when a small fire in the varnish room set off the studio’s sprinkler system. The studio owner had used the care that an ordinarily prudent person would use for a piece of furniture worth a few hundred dollars, but not the level of care suitable for a piece worth $100,000. Because he did not use the latter level of care, the fire set off the sprinklers.
a. The owner of the studio would be liable for the full value of the dresser.
b. The owner of the studio would be liable for the apparent value of the dresser (a few hundred dollars) but not more.
c. The owner of the studio should not be liable at all since, apparently, he used the care that an ordinarily prudent person would use under the circumstances.
d. The owner of the studio should not be liable at all since, apparently, there was no bailment here due to a lack a mutual assent--inasmuch as the studio owner never agreed to be liable for large a value.
58. Reanswer the previous question.
59. Melanie Moore is a famous fashion model. The manufacturer of Topaz shampoo discovered that Ms. Moore uses their brand and hired a photographer to catch her in the act of actually buying a bottle of it at a drugstore near her home. The manufacturer then proceeded to include the photograph prominently in magazine advertisements that asserted, truthfully, that Ms. Moore uses Topaz shampoo.
a. Ms Moore has no basis for legal complaint as long as the information provided about her is true.
b. Ms. Moore has an action against the manufacturer because her right of publicity (or right of privacy) has been unlawfully appropriated.
c. Ms. Moore has no basis for legal complaint because the U.S. Constitution’s guarantee of free expression protects the manufacturer’s freedom to publish any photographs that it is the legal owner of.
d. Ms. Moore has an action against the manufacturer because everybody has a property right in his or her own face and the law gives people an almost absolute right to control publication of pictures of themselves.
60. Reanswer the previous question.
61. Some years before his death, Taggert executed a legal document with a view to giving a statue of his grandfather to his daughter, Dagmar. According to the document, Dagmar was to have possession of the statue from and after Taggert’s death, but Taggert was to retain the right to possess it in the meantime. Taggert delivered the document to Dagmar right after he signed it.
a. If the document executed by Taggert were in proper form to make a testamentary gift of the statue to Dagmar, then Dagmar would have immediately received a future interest in the statue, subject only to Taggert’s life estate.
b. If the document executed by Taggert were meant to provide for a gift inter vivos, then the gift would not be complete until there was a delivery of the statue to Dagmar.
c. Both of the above.
d. If the document executed by Taggert were effective as a deed of gift transferring a future interest to Dagmar, then Taggert could still make a charitable gift of his interest in the statue, but such a gift could not revoke the gift to Dagmar.
62. Reanswer the previous question.
63. An important difference between a testamentary gift and a gift causa mortis (as it is viewed in most states) is that:
a. A testamentary gift is subject to a condition precedent while a gift causa mortis is subject to a condition subsequent.
b. A testamentary gift is subject to a condition subsequent while a gift causa mortis is subject to a condition precedent.
c. A testamentary gift requires an intention that title to pass to the recipient in praesenti whereas a gift causa mortis does not require a delivery.
d. A testamentary gift must made by a will meeting the requirements of the Statute of Wills while a gift causa mortis must be made by delivering a deed of gift.
64. Reanswer the previous question.
65. Fenwick was about to undergo a very serious open-heart operation, and there was a definite risk he would not survive. In apprehension of this eventuality, he called together his family members and handed them various items of jewelry and some small antique matchboxes, which he had collected over his lifetime. He told them that he wanted to make sure these items were “in good hands” in the event he did not “make it.” Presumptively:
a. Fenwick has made gifts inter vivos of the items of jewelry and antiques.
b. Fenwick would be able to revoke these gifts at any time, even before actually undergoing the operation.
c. Fenwick would be able to revoke these gifts only if he actually underwent the operation and did not succumb to it.
d. These gifts would be automatically revoked if, immediately prior to the operation, Fenwick died of a stroke (unrelated to his heart disease) and, therefore, never underwent the operation that had prompted his gifts.
66. Reanswer the previous question.
67. For her husband’s 45th birthday, Adele bought a player piano to give him. She called together the family and guests at his small birthday party and, with everyone standing around the piano in the couple’s living room, she said: “Listen, everybody. This is Harry’s piano; I’m giving it to him for his birthday.” From then on, Adele was observed to act as though her husband was the owner of the piano. According to testimony, when guests asked if they could play it, she’d say: “Don’t ask me. It’s Harry’s. He’s the one you need to ask.”
a. Mostly likely a court would and should hold that the gift has failed because the delivery requirement has not been met.
b. When the donor and donee both live in a common household and a large item is given, courts will sometimes relax the delivery requirement if there is sufficiently strong evidence of donative intent.
c. This was presumptively a gift in contemplation of marriage, since the donor and donee are married to each other.
d. The donor became the bailee of the donee.
68. Reanswer the previous question.
69. Margery and Jane, her niece, were talking when Jane admired Margery’s ring. “Gee, that’s a pretty ring,” said Jane. Margery replied: “This ring used to belong to your grandmother. When I die, it will be yours.” Has Margery made a valid gift of the ring?
a. No, she has tried to make what would amount to a testamentary gift without complying with the Statute of Wills.
b. No, the law requires a signed writing in order to complete a gift of something very valuable, like this ring.
c. No, because there has been no express indication of acceptance by the donee and a completed gift requires acceptance.
d. Yes. Because the donative intent is very clear, the courts would hold that there has been a completed gift.
70. Reanswer the previous question.
In answering the following TRUE/FALSE questions, assume (unless otherwise specified) that, at the times of conveyance, O is an owner in fee simple absolute, and that every named party is alive and unmarried. Remember that the conveyances are to be interpreted as set forth in the last two paragraphs on the instruction page. Assume that all life estates end at the death of the named life tenant. When you see words appropriate for a defeasible fee simple, assume that the words of conveyance also include whatever additional words (such as words of reverter or re-entry) may be required by law in order to create the defeasible estate.
71. O conveyed “to A for life, then to B and her heirs if B marries C.” O has a reversion.
72. O conveyed “to A and his heirs.” The heirs of A have a remainder.
73. O conveyed “to A for life, then to B and her heirs if B marries C.” B has a contingent remainder.
74. O conveyed “to A and her heirs, then if A dies childless, to B and her heirs.” B has a contingent remainder.
75. O conveyed “to A for two years, then to B and her heirs if B marries C.” B has a contingent remainder.
76. O conveyed “to A for life, then to B and her heirs.” If B dies before A, the land will revert to O.
77. O conveyed “to A for life.” The conveyance creates an executory interest.
78. O conveyed “to A to take effect in possession beginning from and after the time of my death.” The conveyance creates an executory interest.
79. O conveyed “to A for life, then to B and her heirs if B survives A by at least one year.” B has an executory interest.
80. O conveyed “to A for life, then to B and her heirs if B survives A by at least one year.” O has a reversion.
81. O conveyed “to A for life, then to B and her heirs if B survives A by at least one year.” O has a future interest that is subject to divestment.
82. O conveyed “to A for life, then to B’s first child to reach the age of 21 years.” B has three children, aged 15, 12, and 8. This conveyance creates a vested remainder, subject to divestment.
83. O conveyed “to A for life, remainder to B’s first child born before the death of A.” B is living but childless. This conveyance creates an executory interest.
84. O conveyed “to A for life, remainder to B and the heirs of his body.” In a state that still recognizes the fee tail, B would have a remainder in fee tail.
85. O conveyed “to A for life, then to B and her heirs if B marries C.” C then dies, never having married. B has no interest.
86. O conveyed “to A for life, then to B and her heirs if B marries C after the death of A.” B has a vested remainder subject to divestment.
87. O conveyed “to A for life, then to B and her heirs if B marries C after the death of A.” B has a contingent remainder.
88. O conveyed “to A for life, then to B and her heirs, but if B dies childless then to C and his heirs.” B has a vested remainder subject to divestment.
89. O conveyed “to A for life, then to B and her heirs, but if B dies childless then to C and his heirs.” C has a contingent remainder.
90. O conveyed “to A for life, remainder to the heirs of B” (a living person). This conveyance creates a contingent remainder.
91. O conveyed “to A for life, remainder to the heirs of B” (a person who had died just before the conveyance). This conveyance creates a vested remainder.
92. O conveyed ”to A for 5 years, then to the heirs of B” (a living person). This conveyance creates a contingent remainder.
93. O conveyed “to A and his heirs until the United States admits a 51st state to the Union.” The future interest in O would be a possibility of reverter.
94. O conveyed “to A and his heirs as long as swans nest on Belle Isle.” A has a fee simple on executory limitation.
95. O conveyed “to A and his heirs as long as swans nest on Belle Isle, then to B and her heirs.” A has a fee simple on executory limitation.
96. O conveyed “to A and the heirs of his body” in a state that still recognizes the fee tail. O has a reversion
97. O conveyed “to A and his heirs as long as the house is kept painted white with green shutters.” The premises would automatically revert back to the grantor if the house is painted green with white shutters.
98. O conveyed “ to A and his heirs on the condition that the premises be kept as a nature preserve and open to the public.” O has a right of re-entry under which possession will automatically revert if the premises are converted to a golf course.
99. O conveyed “to A as long as he desires to remain living on the land.” The more modern tendency is to interpret this conveyance as creating a determinable life estate rather than tenancy at will.
100. O conveyed to “to A for life, then to A’s first child who reaches age 25, and his heirs.” The future interest to “A’s first child who reaches age 25” is void under the rule against perpetuities.
101. O conveyed to “to A for life, then to A’s first child now alive who reaches age 50, and his heirs.” The future interest to “A’s first child now alive who reaches age 50” is void under the rule against perpetuities.
102. O conveyed to “to A for life, then to A’s first child and his heirs, but if A’s first child does not survive until age 25, then to B and his heirs.” The future interest to “A’s first child” is void under the rule against perpetuities.
103. O conveyed to “to A for life, then to A’s first child, but if A’s first child does not survive until age 25, then to B and his heirs.” The future interest to B is void under the rule against perpetuities.
104. O conveyed to “to T and his heirs for the benefit of A for life then for the benefit of B and his heirs.” T has an equitable fee simple absolute.
105. O conveyed to “to T and his heirs for the benefit of A for life then for the benefit of B and his heirs.” B has an equitable remainder in fee simple absolute.
<end of examination>