Property

Dukeminier, Krier, Alexander, Schill
6th Edition
ISBN: 0735557926

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Page	Case Name	Citation	Court	Audio
3	Johnson v. M'Intosh	21 U.S. 543	Supreme Court of the United States, 1823	Download
17	Pierson v. Post	3 Cai. R. 175, 2 Am. Dec. 264	Supreme Court of New York	Download
23	Ghen v. Rich	8 F. 159	United States District Court, District of Massachusetts, 1881	Download
27	Keeble v. Hickeringill	103 Eng. Rep. 1127	Queen's Bench, 1707	Download
51	International News Service v. Associated Press	248 U.S. 215	Supreme Court of the United States, 1918	Download
55	Cheney Bros. v. Doris Silk Corp.	35 F.2d 279	Circuit Court of Appeals, Second Circuit, 1929	Download
69	Moore v. Regents of the University of California	793 P.2d 479	Supreme Court of California, 1990
88	State v. Shack	277 A.2d 369	Supreme Court of New Jersey, 1971	Download
96	Armory v. Delamirie	1 Strange 505	King's Bench, 1722	Download
99	Hannah v. Peel	K.B. 509	King's Bench Division, 1945	Download
105	McAvoy v. Medina	93 Mass. 548	Supreme Court of Massachusetts, 1866	Download
115	Van Valkenburgh v. Lutz	106 N.E.2d 28	New York Court of Appeals, 1952	Download
130	Mannillo v. Gorski	255 A.2d 258	Supreme Court of New Jersey, 1969	Download
136	Howard v. Kunto	477 P.2d 210	Court of Appeals of Washington, 1970	Download
144	O'Keefe v. Snyder	416 A.2d 862	Supreme Court of New Jersey, 1980	Download
159	Newman v. Bost	29 S.E. 848	Supreme Court of North Carolina, 1898	Download
166	Gruen v. Gruen	496 N.E.2d 869	Court of Appeals of New York, 1986	Download
190	White v. Brown	559 S.W.2d 938	Supreme Court of Tennessee, 1977	Download
197	Baker v. Weedon	262 So. 2d 641	Supreme Court of Mississippi, 1972	Download
208	Mahrenholz v. County Board of School Trustees	417 N.E.2d 138	Appellate Court of Illinois, 1981	Download
215	Mountain Brow Lodge No. 82, Independent Order of Odd Fellows v. Toscano	64 Cal. Rptr. 816	Court of Appeal of California, Fifth District, 1967	Download
251	The Symphony Space, Inc. v. Pergola Properties, Inc.	669 N.E.2d 799	Court of Appeals of New York, 1996	Download
280	Riddle v. Harmon	102 Cal. App. 3d 524	Court of Appeal of California, First District, 1980	Download
285	Harms v. Sprague	473 N.E.2d 930	Supreme Court of Illinois, 1984	Download
292	Delfino v. Vealencis	436 A.2d 27	Supreme Court of Connecticut, 1980	Download
300	Spiller v. Mackereth	334 So. 2d 859	Supreme Court of Alabama, 1976	Download
303	Swartzbaugh v. Sampson	54 P.2d 73	Court of Appeal of California, 1936	Download
313	Sawada v. Endo	561 P.2d 1291	Supreme Court of Hawaii, 1977	Download
322	In re Marriage of Graham	574 P.2d 75	Supreme Court of Colorado, 1978	Download
328	Elkus v. Elkus	572 N.Y.S.2d 901	Supreme Court of New York, Appellate Division	Download
346	Goodridge v. Department of Public Health	798 N.E.2d 941	Supreme Judicial Court of Massachusetts, 2003
365	Garner v. Gerrish	473 N.E.2d 223	Court of Appeals of New York, 1984	Download
369	Crechale & Polles, Inc. v. Smith	295 So. 2d 275	Supreme Court of Mississippi, 1974	Download
384	Hannan v. Dusch	153 S.E. 824	Supreme Court of Appeals of Virginia, 1930
388	Ernst v. Conditt	390 S.W.2d 703	Court of Appeals of Tennessee, 1964	Download
395	Kendall v. Ernest Pestana, Inc.	709 P.2d 837	Supreme Court of California, 1985	Download
403	Berg v. Wiley	264 N.W. 2d 145	Supreme Court of Minnesota, 1978	Download
410	Sommer v. Kridel	378 A.2d 767	Supreme Court of New Jersey, 1977	Download
422	Reste Realty Corp. v. Cooper	251 A.2d 268	Supreme Court of New Jersey, 1969	Download
431	Hilder v. St. Peter	478 A.2d 202	Supreme Court of Vermont, 1984	Download
444	Chicago Board of Realtors, Inc. v. City of Chicago	819 F.2d 732	United States Court of Appeals, 7th Circ. 1987	Download
463	Licari v. Blackwelder	539 A.2d 609	Appellate Court of Connecticut, 1987	Download
474	Hickey v. Green	445 N.E.2d 156	Appeals Court of Massachusetts, 1982	Download
479	Lohmeyer v. Bower	227 P.2d 102	Supreme Court of Kansas, 1951	Download
484	Stambovsky v. Ackley	572 N.Y.S.2d 672	Supreme Court of New York, Appellate Division, 1991	Download
489	Johnson v. Davis	480 So. 2d 625	Supreme Court of Florida, 1985	Download
494	Lempke v. Dagenais	547 A.2d 290	Supreme Court of New Hampshire, 1988	Download
502	Jones v. Lee	971 P.2d 858	Court of Appeals of New Mexico, 1998
506	Kutzin v. Pirnie	591 A.2d 932	Supreme Court of New Jersey, 1991	Download
518	Brown v. Lober	389 N.E.2d 1188	Supreme Court of Illinois, 1979	Download
521	Frimberger v. Anzellotti	594 A.2d 1029	Appellate Court of Connecticut, 1991	Download
527	Rockafellor v. Gray	191 N.W. 107	Supreme Court of Iowa, 1922	Download
533	Sweeney v. Sweeney	11 A.2d 806	Supreme Court of Errors of Connecticut, 1940	Download
536	Rosengrant v. Rosengrant	629 P.2d 800	Court of Appeals of Oklahoma, 1981	Download
546	Murphy v. Fin. Dev. Corp.	495 A.2d 1245	Supreme Court of New Hampshire, 1985	Download
554	Bean v. Walker	464 N.Y.S.2d 895	Supreme Court of New York, Appellate Division, 1983	Download
565	Luthi v. Evans	576 P.2d 1064	Supreme Court of Kansas, 1978	Download
574	Orr v. Byers	244 Cal. Rptr. 13	Court of Appeals California, Fourth District, 1988	Download
583	Messersmith v. Smith	60 N.W.2d 276	Supreme Court of North Dakota, 1953	Download
590	Board of Education of Minnesota v. Hughes	136 N.W. 1095	Supreme Court of Minnesota, 1912	Download
592	Guilette v. Daly Dry Wall, Inc.	325 N.E.2d 572	Supreme Judicial Court of Massachusetts, 1975	Download
598	Daniels v. Anderson	642 N.E.2d 128	Supreme Court of Illinois, 1994	Download
600	Lewis v. Superior Court	37 Cal. Rptr.2d 63	California Court of Appeals, Second District, 1994	Download
604	Harper v. Paradise	210 S.E.2d 710	Supreme Court of Georgia, 1974	Download
608	Waldorf Insurance and Bonding, Inc. v. Eglin National Bank	453 So.2d 1383	District Court of Appeal of Florida, First District, 1984	Download
624	Walker Rogge, Inc. v. Chelsea Title & Guaranty Co.	562 A.2d 208	Supreme Court of New Jersey, 1989	Download
630	Lick Mill Creek Apartments v. Chicago Title Insurance Co.	283 Cal. Rptr. 231	Court of Appeal of California, Sixth District, 1991	Download
639	Morgan v. High Penn Oil Co.	77 S.E.2d 682	Supreme Court of North Carolina, 1953	Download
646	Estancias Dallas Corp. v. Shultz	500 S.W.2d 217	Court of Civil Appeals of Texas, 1973	Download
656	Spur Inudstries, Inc. v. Del E. Webb Development Co.	494 P.2d 700	Supreme Court of Arizona, 1972	Download
672	Willard v. First Church of Christ, Scientist	498 P.2d 987	Supreme Court of California, 1972	Download
677	Holbrook v. Taylor	532 S.W.2d 763	Supreme Court of Kentucky, 1976	Download
682	Van Sandt v. Royster	83 P.2d 698	Supreme Court of Kansas, 1938	Download
689	Othen v. Rosier	226 S.W.2d 622	Supreme Court of Texas, 1950	Download
701	Matthews v. Bay Head Improvement Association	471 A.2d 355	Supreme Court of New Jersey, 1984	Download
709	Miller v. Lutheran Conference & Camp Association	200 A. 646	Supreme Court of Pennsylvania, 1938
716	Brown v. Voss	715 P.2d 514	Supreme Court of Washington, 1986	Download
725	Preseault v. United States	100 F.3d 1525	United States Court of Appeals, Federal Circuit, 1992	Download
746	Tulk v. Moxhay	2 Phillips 774, 41 Eng. Rep. 1143	Court of Chancery, England, 1848	Download
751	Sanborn v. McLean	206 N.W. 496	Supreme Court of Michigan, 1925	Download
755	Neponsit Property Owners' Association, Inc. v. Emigrant Industrial Savings Bank	15 N.E.2d 793	Court of Appeals of New York, 1938	Download
768	Caullett v. Stanley Stilwell & Sons, Inc.	170 A.2d 52	Superior Court of New Jersey, Appellate Division, 1961	Download
786	Western Land Co. v. Truskolaski	495 P.2d 624	Supreme Court of Nevada, 1972	Download
790	Rick v. West	228 N.Y.S.2d 195	Supreme Court of New York, 1962	Download
793	Pocono Springs Civic Association, Inc. v. MacKenzie	667 A.2d 233	Superior Court of Pennsylvania, 1995	Download
800	Nahrstedt v. Lakeside Village Condominium Association, Inc.	878 P.2d 1275	Supreme Court of California, 1994	Download
828	Village of Euclid v. Ambler Realty co.	272 U.S. 365	Supreme Court of the United States, 1926	Download
841	PA Northwestern Distributors, Inc. v. Zoning Hearing Board	584 A.2d 1372	Supreme Court of Pennsylvania, 1991	Download
850	Commons v. Westwood Zoning Board of Adjustment	410 A.2d 1138	Supreme Court of New Jersey, 1980
858	Cope v. Inhabitants of the Town of Brunswick	464 A.2d 223	Supreme Court of Maine, 1983	Download
862	State v. City of Rochester	268 N.W.2d 885	Supreme Court of Minnesota, 1978	Download
872	State ex rel. Stoyanoff v. Berkeley	458 S.W.2d 305	Supreme Court of Missouri, 1970	Download
880	Anderson v. City of Issaquah	851 P.2d 744	Court of Appeals of Washington, 1993	Download
891	City of Ladue v. Gilleo	512 U.S. 43	Supreme Court of the United States, 1994	Download
901	Village of Belle Terre v. Boraas	416 U.S. 1	Supreme Court of the United States, 1974	Download
911	City of Edmonds v. Oxford House, Inc.	514 U.S. 725	Supreme Court of the United States, 1995	Download
918	Southern Burlington County NAACP v. Township of Mount Laurel	336 A.2d 713	Supreme Court of New Jersey, 1975	Download
952	Kelo v. City of New London	125 U.S. 2655	Supreme Court of the United States, 2005	Download
960	Loretto v. Teleprompter Manhattan CATV Corp.	458 U.S. 419	Supreme Court of the United States, 1982	Download
973	Hadacheck v. Sebastian	239 U.S. 394	Supreme Court of the United States, 1915	Download
980	Pennsylvania Coal Co. v. Mahon	260 U.S. 393	Supreme Court of the United States, 1922	Download
990	Penn Central Transportation Company v. City of New York	438 U.S. 104	Supreme Court of the United States, 1978	Download

Case Information	Fact Summary	Rule of Law
Johnson v. M'Intosh Supreme Court of the United States, 1823 21 U.S. 543 Pg. 3	Two competing claims of right to the same land. One was bought from Indian Tribes, the other was purchased from the U.S. Government.	The Sovereign U.S. Government honors only titles bestowed upon citizens from the U.S. It does not honor land title bestowed upon citizens by Indian tribes.
Pierson v. Post Supreme Court of New York 3 Cai. R. 175, 2 Am. Dec. 264 Pg. 17	Plaintiff Post pursued a fox on uninhabited land. Even though Defendant Post knew Plaintiff was hunting the fox, he killed it and took it first. Plaintiff sued Defendant claiming that he had already laid claim by virtue of his chasing the fox first.	Mere hunting an animal doesn't vest title. One must mortally wound, physically capture, or kill the animal in order to have his title in it vest.
Ghen v. Rich United States District Court, District of Massachusetts, 1881 8 F. 159 Pg. 23	Plaintiff Ghen shot and killed a fin-back whale in Cape Cod. The whale, as a dead whale does, sank to the bottom, later to re-surface for Plaintiff to claim. Before Plaintiff could claim it, however, Ellis found it and sold it to the Defendant. Plaintiff sues for title because it is whale hunters' custom that the title vests in he who kills the whale. Defendant claims that custom does not govern title.	When a hunter catches an animal according to established custom, title to the animal is acquired.
Keeble v. Hickeringill Queen's Bench, 1707 103 Eng. Rep. 1127 Pg. 27	Plaintiff owned a parcel of land used to capture waterfowl. Defendant, at various times, discharged guns loaded with gunpowder attempting to drive away the waterfowl. Defendant succeeded in frightening the waterfowl. Plaintiff brought suit for damages.	A landowner has the right to use his land to lawfully capture wild animals. Any interference with the landowner's lawful exercise of this right is actionable at law.
International News Service v. Associated Press Supreme Court of the United States, 1918 248 U.S. 215 Pg. 51	AP (plaintiff) and INS (defendant) are competitors in the collection and dissemination of the news. AP posts its news on a public bulletin board before publication. INS, bursting with entrepreneurial spirit, begins to take this information from the public bulletin board, incorporating it into its own publications for profit.	"Quasi-property rights" may be invoked to protect against unfair competition by competitors, even when the commodity in question is not "owned" by anyone (like the news). More specifically, when the news has commercial value, it becomes "quasi-property."
Cheney Bros. v. Doris Silk Corp. Circuit Court of Appeals, Second Circuit, 1929 35 F.2d 279 Pg. 55	Cheney Brothers (plaintiff) designs silk patterns. Very few are very successful, and the rare successes have a short life span (for fashion is fickle). Doris Silk (defendant) copies the successful designs and undercuts Cheney Brothers' prices.	Absent a patent or protection under statute, a company's property interest in its product is valid only for the products it creates. "Others may imitate these at their pleasure."
Moore v. Regents of the University of California Supreme Court of California, 1990 793 P.2d 479 Pg. 69	Doctors operating on Moore's spleen removed some cancerous cells that later were capable of producing proteins that impacted the immune system. The cells ended up having a tremendous amount of commercial value. Moore claimed a conversion cause of action in that the doctors deprived him of his use of the cells. That claimed failed, but Moore won on a breach of fiduciary duty to disclose, because the doctors didn't tell him what they intended to do with his cells.	Labor and ingenuity, such as the manipulation of a cell line, can spawn property rights.
State v. Shack Supreme Court of New Jersey, 1971 277 A.2d 369 Pg. 88	Tedesco, a farmer, employed migrant farm workers. Tejeras, a field worker for a nonprofit corporation that helps migrant farmers and Shack, an attorney for a nonprofit that helps migrant farm workers, entered Tedesco's land to provide services to migrant farmers, who were housed on Tedesco's land. Tedesco approached them, he offered to locate a man, who was to have sutures removed, and offered to find the man that Shack wanted to legally advise so long as the legal consultation took place in his office. The men refused and insisted that they provide their services to the men in the privacy of the migrant workers' living quarters without Tedesco's supervision. Tedesco filed a complaint for trespass.	Individual and societal interests may sometimes trump property interests. "Property rights serve human values. They are recognized to that end, and are limited by it. Title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises. Their well-being must remain the paramount concern of a system of law. Indeed the needs of the occupants may be so imperative and their strength so weak, that the law will deny the occupants the power to contract away what is deemed essential to their health, welfare, or dignity."
Armory v. Delamirie King's Bench, 1722 1 Strange 505 Pg. 96	Chimney Sweep found a jewel and took it to a goldsmith for appraisal. The goldsmith offered the sweep a small amount of money for the jewel. The sweep refused the money and demanded the jewel back. The goldsmith refused and the sweep brought suit.	The finder of property does not have an absolute title to the found property, but may keep it against all but the rightful owner
Hannah v. Peel King's Bench Division, 1945 K.B. 509 Pg. 99	Plaintiff, a lance-corporal in the Royal Artillery, was stationed at Gwernhaylod House. While adjusting the curtains in a bedroom, he discovered a brooch covered with cobwebs and dirt. The plaintiff informed his commanding officer of his find of the brooch and handed it to the police. Two years later, the police were still unable to find the owner of the brooch and gave the brooch to the defendant, the owner of the house. The defendant sold the brooch for 66 pounds.	While the owner of land may have some claim to items buried or embedded in the land, generally, the place in which a lost article is found does not constitute any exception to the general rule of law, that the finder is entitled to it as against all persons except the owner.
McAvoy v. Medina Supreme Court of Massachusetts, 1866 93 Mass. 548 Pg. 105	Customer (plaintiff) in a barber shop sees a pocketbook on the counter and claims it as his own. Customer leaves pocketbook with barber (defendant) to advertise and give to true owner. Alas, the true owner never emerges from the shroud of anonymity and the customer asks for the pocketbook back. The barber refuses.	If property is INTENTIONALLY placed and FORGOTTEN, it is deemed "mislaid." In cases of mislaid property, both the true owner and owner of premises (locus in quo) have rights superior to that of finder.
Van Valkenburgh v. Lutz New York Court of Appeals, 1952 106 N.E.2d 28 Pg. 115	A dispute between feuding neighbors. Plaintiff sues to enjoin defendant from encroaching on his land. Defendant asserts adverse possession as an affirmative defense.	"To acquire title to real property by adverse possession not founded upon a written instrument [i.e., no color of title], it must be shown by clear and convincing proof that ... there was an ACTUAL occupation under a claim of title. The essential elements of proof being either that the premises (1) are protected by a substantial inclosure, or are (2) USUALLY CULTIVATED OR IMPROVED."
Mannillo v. Gorski Supreme Court of New Jersey, 1969 255 A.2d 258 Pg. 130	Another dispute between neighbors. Defendant maintains a 15 inch encroachment on plaintiff's land, but the plaintiff does not have knowledge during the statutory period.	"When the encroachment of an adjoining owner is of a SMALL area and the fact of an intrusion is not clearly and self-evidently apparent to the naked eye," the true owner must have ACTUAL KNOWLEDGE for the possession to be open and notorious.
Howard v. Kunto Court of Appeals of Washington, 1970 477 P.2d 210 Pg. 136	Plaintiff mistakenly builds home on the lot adjacent to the land described in his deed. Eventually, plaintiff tries to quiet title to the land in the deed. Defendant, residing on this land only during the summer months, has been there only a short amount of time, though the line of previous occupants stretches back beyond the 10-year statutory requirement.	1. In order to establish "continuous" possession, an actor need only possess in a manner that "ordinarily marks the conduct of owners in general, in holding, managing, and caring for property of like nature and condition. . . . It is not necessary that the occupant should be actually upon the premises continually. If the land is occupied during the period of time during the year it is capable of use, there is sufficient continuity." 2. Tacking the adverse use of predecessors is allowed when there is privity of estate. In other words, an adverse possessor may aggregate the time of successive occupants, so long as possession was continuous, and the transfer of possession was in good faith.
O'Keefe v. Snyder Supreme Court of New Jersey, 1980 416 A.2d 862 Pg. 144	Plaintiff is an artist who had paintings stolen from a New York art gallery in 1946. Years later she discovered the paintings and brought suit to recover the paintings. Current owner claims possession by adverse possession. When paintings were stolen they had little economic value and their theft was not reported to police. In 1976, plaintiff discovered the paintings. Defendant claims title through adverse possession.	To establish title by adverse possession to chattels, the rule of law has been that the possession must be hostile, actual, visible, exclusive, and continuous. In dealing with chattels open and visible possession may not be sufficient to put the rightful owner on notice. Accordingly, the doctrine of adverse of possession may not be the best rule in dealing with chattels and the discovery rule may be more appropriate. The discovery rule provides that a cause of action will not accrue until the injured party discovers, or should have discovered the facts that make up the basis of the cause of action.
Newman v. Bost Supreme Court of North Carolina, 1898 29 S.E. 848 Pg. 159	Plaintiff was a 28 year-old domestic maid. Prior to the death of the plaintiff's employer, a widower, the employer called the plaintiff into his room and upon his deathbed gave her all of his possessions including his life insurance. The employer then provided the plaintiff with a key to the desk that contained the insurance policy and all other important papers. A servant informed the adminstrator of the gift and the administrator refused to honor the gift.	To constitute a donatio causa mortis there must be an intention to give a gift and delivery of the gift. Intent may be inferred from the delivery. Constructive delivery is persmissible when the subjects of the gift are not present, but when the objects are present, manual delivery is required.
Gruen v. Gruen Court of Appeals of New York, 1986 496 N.E.2d 869 Pg. 166	Plaintiff claims that his father gave him a painting for the plaintiff's 21st birthday. Plaintiff never received the painting because the father stated in a letter that he wished to retain a life estate in the painting. Upon the father's death the plaintiff sought possession of the painting from his step-mother. The step-mother refused and the plaintiff brought suit.	To make a valid inter vivos gift the donor must intend to transfer title; the donor must either actually or constructively deliver the gift to the donee and the donee must accept the gift. These elements must be proved by the donee by clear and convincing evidence.
White v. Brown Supreme Court of Tennessee, 1977 559 S.W.2d 938 Pg. 190	Testatrix left a will that stated "I wish Evelyn White to have my home to live in and not to be sold." Ms. White filed action to declare that she had fee simple interest in the home. The neices and nephews of the testatrix are the defendants in the action and claim that Ms. White has only a life estate in the home.	While the common law originally favored the life estate, a modern interpretion creates a strong presumption that a fee simple interest was conveyed. A fee simple will be conveyed unless the words and phrases of the will or other tranfering document clearly evidence an intention to transfer less than a fee simple.
Baker v. Weedon Supreme Court of Mississippi, 1972 262 So. 2d 641 Pg. 197	John Weedon gave his wife a life estate in the land they owned with the remainder going to his grandchildren from a previous marriage. Then later on in life, she was old and in need of money, and wanted to sell the property (in fee simple) to get the money to live on. Of course, the grandchildren (remaindermen) do not want this to happen because the land was increasing in value. Anna brought a suit to order the judicial sale of the land.	The Necessary in the Best Interests of All Parties Rule: Court held that the deterioration and waste of the property is not the exclusive and ultimate test to be used in determining whether a sale of land affected by a future interest is proper, but also that consideration should be given to the question of whether a sale is necessary for the best interest of all the parties, that is, the life tenant and the contingent remaindermen.
Mahrenholz v. County Board of School Trustees Appellate Court of Illinois, 1981 417 N.E.2d 138 Pg. 208	Defendant school board received a grant where it received a tract of land with the condition that "this land to be used for school purpose only; otherwise to revert to Grantors herein." The board used it for classes for a period of time and then only used it for storage. The successors in interest of the original grantor filed a claim to quiet title.	The court held that the word "only" was a word of limitation and held that this suggested that a fee simple determinable was created.
Mountain Brow Lodge No. 82, Independent Order of Odd Fellows v. Toscano Court of Appeal of California, Fifth District, 1967 64 Cal. Rptr. 816 Pg. 215	Lodge No. 82 of the Independent Order of Odd Fellows received land which was "restricted for the use and benefit of [the lodge], only; and in the event the same fails to be used by the [lodge] . . . the same is to revert to the [grantors], their successors, heirs or assigns. The lodge filed suit to quiet title to the parcel.	No formal language is needed to create a fee simple subject to condition subsequent as long as the intent of the grantor is clear. The rule in construing a deed is to ascertain the intention of the grantor.
The Symphony Space, Inc. v. Pergola Properties, Inc. Court of Appeals of New York, 1996 669 N.E.2d 799 Pg. 251	Plaintiff had purchased a building for lower than market value so that the owner could take advantage of a propety tax exemption. The purchase agreement allowed the original owner to retain the income producing parts of the building and allowed the plaintiff to use the theater at a low cost. The agreement provided that the original grantor could had the option of repurchasing the property. As the property value soared, the successors in interest to the original owner attempted to repurchase the property. The plaintiff theater filed a declartory action holding the option agreement void.	The Rule against Perpetuities reflects the public policy of the State. Granting the relief requested by defendants would thus be contrary to public policy, since it would lead to the same result as enforcing the option and tend to compel performance of contracts violative of the Rule. Similarly, damages are not recoverable where options to acquire real property violate the Rule against Perpetuities, since that would amount to giving effect to the option.
Riddle v. Harmon Court of Appeal of California, First District, 1980 102 Cal. App. 3d 524 Pg. 280	Husband (plaintiff) and wife (defendant) hold real estate as joint tenants. Dying wife realizes that husband will take over her interest, and in one last act of marital discord, conveys a one-half interest in the property to herself in order to sever the joint tenancy.	A joint tenant may sever the joint tenancy by conveying interest to herself.
Harms v. Sprague Supreme Court of Illinois, 1984 473 N.E.2d 930 Pg. 285	Brothers John and William (plaintiff) are joint tenants in real estate. John mortgages one of the properties and becomes a co-debtor with defendant. John then dies.	1. Joint tenancy is NOT severed when less than all of the joint tenants mortgage their interest in the property. 2. A mortgage on a joint tenant's interest does NOT survive the death of the joint tenant who mortgaged their interest.
Delfino v. Vealencis Supreme Court of Connecticut, 1980 436 A.2d 27 Pg. 292	Plaintiff and defendant own property as tenants in common. Plaintiff and defendant own an undivided 99/144 and 45/144 interest, respectively. Plaintiff wishes to partition the land by sale, and defendant (who runs a garbage disposal business on the land) wants a partition in-kind.	"[A] partition by sale should be ordered only when two conditions are satisfied: (1) the physical attributes of the land are such that a partition in kind is impracticable or inequitable, AND (2) the interests of the owners would better be promoted by a partition by sale." Furthermore, the presumption is that a partition of kind would be in the best interests of owners, and "burden is on the party requesting a partition by sale to demonstrate that such a sale would better promote the owners' interests."
Spiller v. Mackereth Supreme Court of Alabama, 1976 334 So. 2d 859 Pg. 300	Plaintiff and defendant are tenants in common of a warehouse. When their lessee, Auto-Rite, vacates the warehouse, defendant begins using the space as a storage facility and puts locks on the warehouse (for safety). Plaintiff demands that defendant either vacate half the premises, or pay rent. Defendant ignores this demand.	"[A] cotenant in possession is not liable to his cotenants for the value of his use and occupation of the property [i.e. RENT]," UNLESS there is "an agreement to pay rent or an OUSTER of a cotenant." Ouster is denying a cotenant the right to enter. NOTE: "Simply requesting the occupying cotenant to vacate is not sufficient [to establish ouster]."
Swartzbaugh v. Sampson Court of Appeal of California, 1936 54 P.2d 73 Pg. 303	Mrs. Swartzbaugh (plaintiff) and her husband own land as joint tenants. Husband leases part of property to Sampson (defendant) to be the site for a boxing ring, despite plaintiff's outspoken opposition. Plaintiff eventually sues to cancel lease.	1. A conveyance of a lease by one joint tenant to a third party does NOT sever a joint tenancy. 2. Joint tenant has the right to lease his interest to a third party without the consent of other joint tenant.
Sawada v. Endo Supreme Court of Hawaii, 1977 561 P.2d 1291 Pg. 313	Endo (defendant) injures Sawadas (plaintiff) in an auto accident. Sawadas sue and win damages, but Endo conveys tenancy by the entireties to sons, and Sawadas are unable to satisfy their judgments. As a result, they sue again to set aside the conveyance for satisfaction of the original award.	Primary Rule of Law (for Property Law): The separate creditor of either spouse may NOT reach the property held in tenancy by the entirety. The other rule deals with fraud: Neither conveyance nor creation of a tenancy by the entirety may be used to defraud creditors.
In re Marriage of Graham Supreme Court of Colorado, 1978 574 P.2d 75 Pg. 322	Wife works full time as a stewardess and supports her husband through graduate school, all the while cooking and cleaning. Husband gets his MBA. They divorce.	Professional degrees do NOT constitute marital property subject to division by the court.
Elkus v. Elkus Supreme Court of New York, Appellate Division 572 N.Y.S.2d 901 Pg. 328	Opera singer and husband marry early in her career. Husband gives up his own career to follow, teach, and critique his wife. Husband also takes care of the children. Wife becomes famous, makes a ton of money, and of course, they divorce.	Celebrity status, and its economic value, can be a marital asset subject to equitable distribution.
Goodridge v. Department of Public Health Supreme Judicial Court of Massachusetts, 2003 798 N.E.2d 941 Pg. 346	Petiioners challenged the validity of the Massachusetts department of health to bar same-sex marriages by attempting to secure marriage licenses for which they were denied.	The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual. The marriage ban is consequently unconstitutional.
Garner v. Gerrish Court of Appeals of New York, 1984 473 N.E.2d 223 Pg. 365	Tenant (defendant) enters into lease with landlord, whereby tenant reserves the SOLE right to terminate the lease. Landlord dies, and the executor of landlord's estate (plaintiff) orders tenant to leave. Tenant, in a bold display of heroic defiance, refuses.	A lease agreement that grants tenant the sole right to terminate creates a "determinable life tenancy" for the tenant.
Crechale & Polles, Inc. v. Smith Supreme Court of Mississippi, 1974 295 So. 2d 275 Pg. 369	A 5 year lease exists between landlord (plaintiff) and tenant (defendant). At the end of the lease, tenant proposes a month to month arrangement, but landlord refuses. Despite this refusal, tenant stays past the end of lease and submits a check for a month. Landlord cashes the check. The following month, tenant submits another check for one month's rent, but landlord refuses to accept it. Instead, landlord brings suit against holdover tenant for value of a one-year lease.	"When a tenant continues in possession after the termination of his lease, the landlord has an election either to evict him (treat him as a trespasser it is said) OR to hold him as a tenant [for a full new term]." However, if a landlord "accepts monthly checks for rent due, he in effect agrees to an extension of the lease on a month-to-month basis."
Hannan v. Dusch Supreme Court of Appeals of Virginia, 1930 153 S.E. 824 Pg. 384	Plaintiff leased property from defendant. When plaintiff went to take possession of the property he found that the property was already possessed. The Plaintiff sued the defendant requiring him to provide possession to the plaintiff.	Under the American rule,the landlord is not bound to put the tenant into actual possession, but is bound only to put him in legal possession, so that no obstacle in the form of superior right of possession will be interposed to prevent the tenant from obtaining actual possession of the demised premises. If the landlord gives the tenant a right of possession he has done all that he is required to do by the terms of an ordinary lease, and the tenant assumes the burden of enforcing such right of possession as against all persons wrongfully in possession, whether they be trespassers or former tenants wrongfully holding over.
Ernst v. Conditt Court of Appeals of Tennessee, 1964 390 S.W.2d 703 Pg. 388	Plaintiffs leased property to Rogers for the opperation of a go-cart class. Rogers met with plaintiffs and transfered his lease to defendant who defaulted on the lease. Plaintiffs sued defendant for default. Defendant claimed that the lease was a sublease and not an assignment and consequently, Rogers was liable for his default.	If the instrument purports to transfer the lessee's estate for the entire remainder of his term it is an assignment, regardless of its form or of the parties' intention. Conversely, if the instrument purports to transfer the lessee's estate for less than the entire term--even for a day less--it is a sublease. Additionally, the fact that the original lessee agreed to remain liabile for the remaining terms of the lease does not create a sublease.
Kendall v. Ernest Pestana, Inc. Supreme Court of California, 1985 709 P.2d 837 Pg. 395	Lessee contracted to assign his lease. According to the terms of the lease he contacted the defendant, the successor in interest to the lessor, to gain approval prior to the assignment. The defendant demanded an increased rent before he would approve the assignment. The plaintiff then sued.	Where a commercial lease provides for assignment only with the prior consent of the lessor, such consent may be withheld only where the lessor has a commercially reasonable objection to the assignee or the proposed use.
Berg v. Wiley Supreme Court of Minnesota, 1978 264 N.W. 2d 145 Pg. 403	A landlord was concerned with the destruction of his property. The landlord wrote the tenant a letter requesting that remodling be completed in two weeks. During the two week period, the landlord witnessed what he thought was the destruction of the property and entered the property and changed the locks. The tenant sued for damages and wrongful eviction.	The common-law rule that a landlord may rightfully use self-help to retake leased premises from a tenant in possession without incurring liability for wrongful eviction provided two conditions are met: (1) The landlord is legally entitled to possession, such as where a tenant holds over after the lease term or where a tenant breaches a lease containing a reentry clause; and (2) the landlord's means of reentry are peaceable. However the law disfavors self help and will rarely find the landlord's actions peaceable. The law is written to push landlords from self-help to the summary process.
Sommer v. Kridel Supreme Court of New Jersey, 1977 378 A.2d 767 Pg. 410	Plaintiff landlord entered into a lease agreement with defendant for an apartment. Before begining the lease, defendant wrote to landlord explaining that a change of circumstances necesitated the cancellation of the lease. The plaintiff refused to cancel the lease and refused to rent the apartment to alternative tenants stating that the apartment was leased to the defendant. At the end of the term of the lease the plaintiff sued the defendant for the lost rent from the entire term of the original lease.	Landlords maintain a duty to mitigate damages. A landlord may mitigate the damages by showing that he treated the property as any other property. The landlord shall be required to carry the burden of proving that he used reasonable diligence in attempting to re-let the premises.
Reste Realty Corp. v. Cooper Supreme Court of New Jersey, 1969 251 A.2d 268 Pg. 422	Plaintiff corporation managed commercial rental property. Whenever a rainstorm occurred, rental property was flooded due to the faulty paving of the driveway. Defendant vacated the proprety due to the flooding. Plaintiff sued claiming breach of contract.	Ordinarily a covenant of quiet enjoyment is implied in a lease. When this covenant is breached substantially by the landlord, the courts have applied the doctrine of constructive eviction as a remedy for the tenant. Under this rule any act or omission of the landlord or of anyone who acts under authority or legal right from the landlord, or of someone having superior title to that of the landlord, which renders the premises substantially unsuitable for the purpose for which they are leased, or which seriously interferes with the beneficial enjoyment of the premises, is a breach of the covenant of quiet enjoyment and constitutes a constructive eviction of the tenant.
Hilder v. St. Peter Supreme Court of Vermont, 1984 478 A.2d 202 Pg. 431	Plaintiff entered into a lease agreement with defendant in which plaintiff would occupy an apartment owned by defendant. While defendant granted possession to plaintiff, defendant did not take steps to cure defects in the apartment which included, presence of raw sewage, an awful stench and general conditions of disrepair.	In the rental of any residential dwelling unit an implied warranty exists in the lease, whether oral or written, that the landlord will deliver over and maintain, throughout the period of the tenancy, premises that are safe, clean and fit for human habitation. In determining whether there has been a breach of the implied warranty of habitability, a substantial violation of an applicable housing code shall constitute prima facie evidence that there has been a breach of the warranty of habitability.
Chicago Board of Realtors, Inc. v. City of Chicago United States Court of Appeals, 7th Circ. 1987 819 F.2d 732 Pg. 444	The City of Chicago passed a law setting forth the rights of tenants and the duties of landlords. The ordinance also attempted to unify some of the regulation regarding landlord tenant relationships. Numerous plaintiffs filed suit challenging the constitutionality of the ordinance.	Legislative acts adjusting the burdens and benefits of economic life are presumed constitutional, and the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way. Becasue the ordinance merely readjusts the power in the landlord/tenant relationship it does not deprive property without procedural due process.
Licari v. Blackwelder Appellate Court of Connecticut, 1987 539 A.2d 609 Pg. 463	Plaintiffs are unsophisticated lay people who know little about real estate. Plaintiffs inherited property and entered an agreement with a real estate broker to sell the property. The broker purchased the property and then resold it six days later making $45,000	A real estate broker is a fiduciary and cannot put himself in a postion antagonistic to his principal's interest by fraudulent conduct, acting adversely to his client's interests, or by failing to communicate information he may possess or acquire which is or may be material to his principal's advantage.
Hickey v. Green Appeals Court of Massachusetts, 1982 445 N.E.2d 156 Pg. 474	Buyer (plaintiff) and seller (defendant) ORALLY agree to the sale of property, and buyer writes a check for down payment, which seller accepts. Buyer sells his current home in anticipation of the move. Seller informs buyer that she has decided to sell to someone else for more money. Buyer offers to match the higher price, but seller refuses.	A land sale contract that fails to comply with the Statute of Frauds may be specifically enforced if party acted in reasonable reliance and "has so changed his position that injustice can be avoided only by specific enforcement." This is known as the ESTOPPEL exception to the Statute of Frauds. NOTE: The other important exception is PART PERFORMANCE.
Lohmeyer v. Bower Supreme Court of Kansas, 1951 227 P.2d 102 Pg. 479	Lohmeyer (plaintiff) buys home from Bower (defendant). Bower provides title, which is riddled with a city ordinance and a restrictive covenant, both of which are violated by the property in question.	If VIOLATIONS of covenants or zoning ordinances exist on the property at the time it is sold, then title is rendered unmarketable.
Stambovsky v. Ackley Supreme Court of New York, Appellate Division, 1991 572 N.Y.S.2d 672 Pg. 484	Plaintiff contracts to buy home and then discovers that the house is reputed to be haunted. Seller of house (defendant) had reported sightings of poltergeists in the past, thus creating the public perception.	"Where a condition which has been created by the seller materially impairs the value of the contract and is peculiarly within the knowledge of the seller OR unlikely to be discovered by a prudent purchaser exercising due care with respect to the subject transaction, nondisclosure constitutes a basis for rescission as a matter of equity."
Johnson v. Davis Supreme Court of Florida, 1985 480 So. 2d 625 Pg. 489	Davis (plaintiff) contracts to buy home from Johnson (defendant) and makes a $5,000 down payment installment. Before making the additional $26,000 down payment, Davis notices that roof is problematic. Further investigation reveals that roof needs major work, which was not disclosed by Johnson. Davis sues for rescission and return of $5,000 and Johnson counterclaims for the $26,000.	Seller has a duty to disclose when she knows of facts that affect the value of the home AND are NOT readily observable.
Lempke v. Dagenais Supreme Court of New Hampshire, 1988 547 A.2d 290 Pg. 494	Lempke (plaintiff) bought home. The previous owner had contracted with builder (defendant) to construct a garage. Garage had latent defects, which did not materialize until after Lempke made purchase.	A subsequent purchaser may sue a builder or contractor "under an implied warranty theory for latent defects which manifest themselves within a reasonable time after purchase and which cause economic harm."
Jones v. Lee Court of Appeals of New Mexico, 1998 971 P.2d 858 Pg. 502	Buyers exectued a purchase agreement for a home, but then failed to go through with the agreement. Sellers subsequently sold the home for less than the orignial agreed purchase price and sued to recover the difference.	If a purchaser defaults on a contract to purchase realty, as a general rule, the seller has three alternative remedies. The sellers may (1) seek relief in equity for rescission, (2) offer to perform and bring an action for specific performance, or (3) elect to retain the realty and file suit seeking an award of damages. Where a party elects to sue for damages resulting from a breach of land sale contract, the burden is on that party to present competent evidence to support such claim for damages. While a subsequent sale is evidence of the market value at the time of breach, it is not conclusive and the court must properly establish the market value at such time.
Kutzin v. Pirnie Supreme Court of New Jersey, 1991 591 A.2d 932 Pg. 506	Plaintiffs entered into a contract to sell their house to the defendants. Defendants agreed to purchase the house and executed a purchase agreement. Defendants paid 10% of the purchase price at the time they exectued the agreement. The defendants did not execute the agreement.	Whenever the breaching buyer proves that the deposit exceeds the seller's actual damages suffered as a result of the breach, the buyer may recover the difference.
Brown v. Lober Supreme Court of Illinois, 1979 389 N.E.2d 1188 Pg. 518	Owner sells 80 acres to defendant, but retains two-thirds interest in the minerals. When defendant resells and conveys deed to plaintiff, however, there is no mention of this reserved interest. Plaintiff then sells to a third party and the partial interest is discovered.	An owner's discovery that there exists a superior title to a portion of its land does NOT constitute a sufficient constructive eviction to breach a covenant of quiet enjoyment. NOTE: Such discovery is sufficient to claim action on a breach of covenant of seisin (watch out for statute of limitations).
Frimberger v. Anzellotti Appellate Court of Connecticut, 1991 594 A.2d 1029 Pg. 521	Defendant fills in part of his wetland property, not knowing that it was a violation. Defendant conveys land to plaintiff with a warranty deed. Plaintiff then orders a survey of the land so that he can do repairs, but discovers that, unbeknownst to all, the property stands in violation of general wetland statutes.	Latent violations of state or municipal land use regulations do not constitute an encumbrance (as related to a deed warranty) IF ALL THE FOLLOWING ARE TRUE: (1) Violations "do not appear on the land records," (2) Violations "are unknown to the seller of the property," (3) "The agency charged with enforcement has taken no official action to compel compliance at the time the deed was executed," and (4) Violations "have not ripened into an interest that can be recorded on the land records."
Rockafellor v. Gray Supreme Court of Iowa, 1922 191 N.W. 107 Pg. 527	Third party conveyed property to defendant. Third party owned $500 to plaintiff and defendant agreed to assume this debt. The propety eventually went through foreclosure. The property was transfered many times and finally the plaintiff brought suit seeking to set aside the original foreclosure for lack of jurisdiction.	The covenant of seizin runs with the land, and is broken the instant the conveyance is delivered, and then becomes a chose in action held by the covenantee in the deed, and that a deed by said first covenantee operates as an assignment of such chose in action to a remote grantee, who can maintain an action thereon against the grantor in the original deed. The rights of the remote grantee are acquired by conveyance (assignment) and not by virtue of actual possession of the premises.
Sweeney v. Sweeney Supreme Court of Errors of Connecticut, 1940 11 A.2d 806 Pg. 533	Maurice Sweeney first deeds his property to his brother, John Sweeney (defendant). Maurice and John then draft, execute, and hand over a second deed to Maurice, which conveys the property back to Maurice (in case John should die before Maurice). They do not RECORD this second deed, and it is accidentally burned when the lawyer's office goes down in flames. Literally. Maurice dies. The widow (plaintiff) contends that there was delivery of the second deed, and thus, the property is hers.	When a deed is formally executed and delivered, "there is a rebuttable presumption that the grantee assented. "[This] presumption can be overcome only by evidence that no delivery was in fact intended."
Rosengrant v. Rosengrant Court of Appeals of Oklahoma, 1981 629 P.2d 800 Pg. 536	Elderly married couple drafts a deed to their nephew, Jay Rosengrant, and ceremoniously hands it to him to "make it legal." Instead of recording the deed, however, they give it to a banker (third party) in an envelope to hold until the couple dies.	"[I]t is the grantor's INTENT at the time the deed is delivered which is of primary and controlling importance." If there is a "ritualistic" delivery, but the grantor does not intend to give up all legal rights to property at that moment, then there is no legal delivery.
Murphy v. Fin. Dev. Corp. Supreme Court of New Hampshire, 1985 495 A.2d 1245 Pg. 546	Plaintiffs purchased a home via mortgage. Fifteen years later plaintiff lost his job and fell seven months behind on the mortgage. In an effort to avoid foreclosure, plaintiffs paid the back payments but failed to pay the legal fees and costs. The lender foreclosed and the house was sold at auction. The only bidder was a reprsentative for the lender who bid the exact amount owed on the mortgage. The lenders solder the property later that day for a sizeable profit.	A mortgagee, therefore, must exert every reasonable effort to obtain a fair and reasonable price under the circumstances, even to the extent, if necessary, of adjourning the sale or of establishing %u201Can upset price below which he will not accept any offer. Inadequacy of price alone is not sufficient to demonstrate bad faith unless the price is so low as to shock the judicial conscience.
Bean v. Walker Supreme Court of New York, Appellate Division, 1983 464 N.Y.S.2d 895 Pg. 554	Buyer (defendant) enters into a land sale contract whereby he takes possession of property but shall not take title until the entire value is paid off. Years later, after having paid off nearly half the value, defendant suffers injury and is unable to make payments. Owner (plaintiff) brings suit to retake possession of property and keep all past payments as liquidated damages.	In land sale contracts, the buyer acquires an equitable interest in the property. Thus, a seller must "proceed to foreclose the [buyer]'s equitable title OR bring an action at law for the purchase price" in order to assert his own rights.
Luthi v. Evans Supreme Court of Kansas, 1978 576 P.2d 1064 Pg. 565	Grantor deeded oil and gas interests to corporation. Corporation recorded the interests Later she deeded similar interests to a different party. Second party checked with the recorder's office and could not find any record of the previous conveyance. The issue of this case is the ownership of the oil and gas rights.	Recordings which do not describe with sufficient specificity the property covered by the conveyance, are not sufficient to impart constructive notice to a subsequent purchaser. Additionally, if a subsequent purchaser has no actual knowledge of the prior assignment, the later assignment prevails over the assignment from Owens to Tours
Orr v. Byers Court of Appeals California, Fourth District, 1988 244 Cal. Rptr. 13 Pg. 574	Plaintiff obtained judgment against Elliott, but recorded the judgment under the names Elliot and Eliot. Elliott subsequently acquired and sold property that was subject to Plaintiff's judgment. During the sale the title of the property did not indicate the judgment due to the misspelling of debtor's name. Plaintiff brought suit against the purchaser of the property for the enforcement of the lien.	The burden is on the judgment creditor to take appropriate action to ensure the judgment lien will be satisfied. If the creditor fails to correctly spell the name, the court will not modify the doctrine of constructive notice to pass liability on innocent purchasers.
Messersmith v. Smith Supreme Court of North Dakota, 1953 60 N.W.2d 276 Pg. 583	Defendant negotiated a oil and gas lease for a certain tract of land with Caroline Messersmith. Unfortunately, Messersmith had already conveyed her land to the Plaintiff, who had not yet recorded the conveyance.	that the recording of an instrument affecting the title to real estate which does not meet the statutory requirements of the recording laws affords no constructive notice.
Board of Education of Minnesota v. Hughes Supreme Court of Minnesota, 1912 136 N.W. 1095 Pg. 590	Grantor conveyed deed to defendant who waited four years to record the deed. Grantor then conveyed the parcel again to real estate developers who also recorded the deed. Real estate developers deeded property to plaintiff who sued to quiet title. Deed to the plaintiff was recorded before the deed to the defendant	A subsequent purchaseris protected by the recording of his deed before the prior deed was recorded.
Guilette v. Daly Dry Wall, Inc. Supreme Judicial Court of Massachusetts, 1975 325 N.E.2d 572 Pg. 592	In a planned subdivision, the plot deeds reference the subdivision and contain restrictions for the benefit of other plots in the subdivision. Defendant owns a plot in the subdivision and wishes to construct a multi-family apartment buidling on his plot. Defendant's deed mentions the subdivision, but does not contain any restrictions on defendant's use of the property.	Where the common grantor has not bound his remaining land by writing, we have held that the statute of frauds prevents enforcement of restrictions against the grantor or a subsequent purchaser of a lot not expressly restricted. Where, as here, however, the grantor binds his remaining land by writing, reciprocity of restriction between the grantor and grantee can be enforced.
Daniels v. Anderson Supreme Court of Illinois, 1994 642 N.E.2d 128 Pg. 598	Plaintiff owned two of four lots. Contained in the agreement to purchase these lots was a right of first refusal on one of the other lots. Defendant entered into an agreement with purchaser to purchase this lot. After entering into a contract, but before paying all consideration, purchaser learned of plaintiff's right through actual notice. Plaintiff sued seeking specific performance of the contract.	A bona fide purchaser is a person who takes title to real property in good faith for value without notice of outstanding rights or interests of others. A bona fide purchaser takes such title free of any interests of third persons, except such interests of which he has notice. A buyer who, prior to the payment of any consideration receives notice of an outstanding interest, pays the consideration at his or her peril with respect to the holder of the outstanding interest. Such a buyer is not protected as a bona fide purchaser and takes the property bound by the outstanding interest.
Lewis v. Superior Court California Court of Appeals, Second District, 1994 37 Cal. Rptr.2d 63 Pg. 600	Petitioners purchased a piece of property. After entering escrow, a third party recorded a federal lis pendens. This lis pendens was not indexed until after the petitioners acquired title to the property. After acquiring title the petitionersbegan renovating the property. This renovation involved a substantial sum. During the renovation, petitioners learned of the lis pendes. They filed a motion for summary judgment which was denied.	In order to prove fraudlent conveyance the plaintiff must prove that a party colluded with the debtor or otherwise actively participate din the fraudulent scheme of the debtor. "Fraudulent intent," "collusion," "active participation," "fraudulent scheme"-this is the language of deliberate wrongful conduct. It belies any notion that one can become a fraudulent transferee by accident, or even negligently.
Harper v. Paradise Supreme Court of Georgia, 1974 210 S.E.2d 710 Pg. 604	Appellants are the children of a deceased party who received property as life tenant. The appellants were listed as remaindermen. The deed was lost by the life tenant and not recorded until 35 years after the conveyance. Before the deed had been recorded, the life tenant had mortgaged the property and defaulted on the mortgage.	Grantees bear the burden of ascertaining the contents of previous conveyances and any interests transfered in these earlier conveyances. The grantees are required to make such an inquiry to protect their interests unless they can prove that such an inquiry would have been futile.
Waldorf Insurance and Bonding, Inc. v. Eglin National Bank District Court of Appeal of Florida, First District, 1984 453 So.2d 1383 Pg. 608	Plaintiffs, entered into a purchase agreement with seller. Seller had promissory note with bank which was secured by the property. When Plaintiff completed the purchase with seller by cancelling a debt owed by seller to plaintiff. When seller defaulted on his promissory note, defendant attempted to take property from plaintiff.	A contract to convey legal title to real property on payment of the purchase price creates an equitable interest in the purchaser. Beneficial ownership passes to the purchaser while the seller retains mere naked legal title. Subsequent successors to the legal title take such title burdened with the equitable interests of which they have either actual or constructive notice. In Florida, acutal possession is constructive notice to all of the world.
Walker Rogge, Inc. v. Chelsea Title & Guaranty Co. Supreme Court of New Jersey, 1989 562 A.2d 208 Pg. 624	Purchaser entered into a contract to buy a lot and purchased a title insurance policy. Purchaser relied on a survey that indicated the lot was approximately 19 acres. After purchaser had completed purchase, purchaser discovered that lot was actual approximately 12 acres. Purchaser attempted to claim a loss under the title insurance policy.	Title insurance is no substitute for an accurate survey. Title companies are in the business of guaranteeing title, not acreage.
Lick Mill Creek Apartments v. Chicago Title Insurance Co. Court of Appeal of California, Sixth District, 1991 283 Cal. Rptr. 231 Pg. 630	Plaintiffs purchased three lots and purchased title insurance for these lots. Lots had previously been used by various corporations for warehouses and/or chemical processing plants. Incident to this use of the property, the companies maintained underground tanks, pumps, and pipelines for the storage, handling, and disposal of various hazardous substances. These hazardous substances eventually contaminated the soil, subsoil, and groundwater. Plaintiff became liable for this contamination and filed a claim under the title insurance policy.	Environmental liability does not present an encumbrance on the title of property. Additionally, a defect in the physical condition of the land does not render the title unmarketable.
Morgan v. High Penn Oil Co. Supreme Court of North Carolina, 1953 77 S.E.2d 682 Pg. 639	Plaintiffs own nine acres of land. After plaintiffs had lived on their land, defendant built an oil refinery 1000 feet from the plaintiffs land. The oil refirery emitted nauseating gases and odors in great quantities. Plaintiff's sued to declare the refinery a nuisance.	A private nuisance exists in a legal sense when one makes an improper use of his own property and in that way injures the land or some incorporeal right of one's neighbor. A person who intentionally creates or maintains a private nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised by him to avoid such injury.
Estancias Dallas Corp. v. Shultz Court of Civil Appeals of Texas, 1973 500 S.W.2d 217 Pg. 646	Defendant operated an air conditioning unit on the property next the the plaintiff's residence. The Plaintiff complained that the noise eminating from the air conditioner constituted a nuisance.	Even if a jury finds facts constituting a nuisance, it was held that there should be a balancing of equities in order to determine if an injunction should be granted. If the court finds that the injury to the complainant is slight in comparison to the injury caused the defendant and the public by enjoining the nuisance, relief will ordinarily be refused. It has been pointed out that the cases in which a nuisance is permitted to exist under this doctrine are based on the stern rule of necessity rather than on the right of the author of the nuisance to work a hurt, or injury to his neighbor. The necessity of others may compel the injured party to seek relief by way of an action at law for damages rather than by a suit in equity to abate the nuisance.
Spur Inudstries, Inc. v. Del E. Webb Development Co. Supreme Court of Arizona, 1972 494 P.2d 700 Pg. 656	Plaintiff developer, planned a retirement community in the suburbs of Phoenix, Arizona. As the new community grew in size, it approach defendant's feedlot. The feedlot produced unpleasant scents and flies which were blown in the direction of the new community. Plantiffs sued to declare the feedlot a public nuisance.	A private nuisance is one affecting a single individual or a definite small number of persons in the enjoyment of private rights not common to the public, while a public nuisance is one affecting the rights enjoyed by citizens as a part of the public. To constitute a public nuisance, the nuisance must affect a considerable number of people or an entire community or neighborhood. However,it does not seem harsh to require a party, who has taken advantage of the lesser land values in a rural area as well as the availability of large tracts of land on which to build and develop the area, to indemnify those who are forced to leave as a result.
Willard v. First Church of Christ, Scientist Supreme Court of California, 1972 498 P.2d 987 Pg. 672	Seller sold property which was eventually purchased by Plaintiff with an "easement to run with the land only so long as the property for whose benefit the easement is given is used for church purposes." This easement entitled the defendant church to use the property for parking. Plaintiff filed suit seeking to quiet title in the property and remove the easement.	Common law rule prohibited a grantor from retaining an interest in a third party. This rule no longer applies in California.
Holbrook v. Taylor Supreme Court of Kentucky, 1976 532 S.W.2d 763 Pg. 677	In 1942 appellants purchased the subject property. In 1944 they gave permission for a haul road to be cut for the purpose of moving coal from a newly opened mine. The roadway was so used until 1949, when the mine closed. In 1957 appellants built a tenant house on their property and the roadway was used by them and their tenant. In 1964 the appellees bought their three-acre building site, which adjoins appellants, and the following year built their residence thereon. At all times prior to 1965, the use of the haul road was by permission of appellants.	Where a license is not a bare, naked right of entry, but includes the right to erect structures and acquire an interest in the land in the nature of an easement by the construction of improvements thereon, the licensor may not revoke the license and restore his premises to their former condition after the licensee has exercised the privilege given by the license and erected the improvements at considerable expense.
Van Sandt v. Royster Supreme Court of Kansas, 1938 83 P.2d 698 Pg. 682	Plaintiff discovered her basement filled with sewage from Defendant's house. Defendant had been draining sewage across plaintiff's land. Plaintiff sued to stop this practice.	When one thus utilizes part of his land for the benefit of another part, it is frequently said that a quasi easement exists. An easement created by implication arises as an inference of the intentions of the parties to a conveyance of land. The inference is drawn from the circumstances under which the conveyance was made rather than from the language of the conveyance.
Othen v. Rosier Supreme Court of Texas, 1950 226 S.W.2d 622 Pg. 689	Plaintiff purchased property which was landlocked. Plaintiff used a road across defendant's property. Defendant built a levee which flooded the road and rendered it useless for weeks at a time. Plaintiff sued for access to the road.	Before an easement can be held to be created by implied reservation it must be shown: (1) that there was a unity of ownership of the alleged dominant and servient estates; (2) that the roadway is a necessity, not a mere convenience; and (3) that the necessity existed at the time of severance of the two estates. Generally, the hostile and adverse character of the user necessary to establish an easement by prescription is the same as that which is necessary to establish title by adverse possession.
Matthews v. Bay Head Improvement Association Supreme Court of New Jersey, 1984 471 A.2d 355 Pg. 701	Homeowners association limited access to the beach to members of the association and their guests. Plaintiffs sued to gain access to the beach	The public trust doctrine acknowledges that the ownership, dominion and sovereignty over land flowed by tidal waters, which extend to the mean high water mark, is vested in the State in trust for the people. While the public's rights in private beaches are not co-extensive with the rights enjoyed in municipal beaches, private landowners may not in all instances prevent the public from exercising its rights under the public trust doctrine. The public must be afforded reasonable access to the foreshore as well as a suitable area for recreation on the dry sand.
Miller v. Lutheran Conference & Camp Association Supreme Court of Pennsylvania, 1938 200 A. 646 Pg. 709	Two brothers constructed a lake for the purpose of manufacturing ice. They also entered into a partnership for the promotion of the boating, fishing and bathing oppoturnities. After the death of one of the brothers, licenses to use the lake were granted by the estates of the brothers without regard to one another. Defendant's acquired a license for the use of the lake and the plaintiffs sued claiming the license did not allow bathing.	Easements in gross are assignable as long as it was the intention of the parties to make it assignable. If there be a division of the dominant parcel, then the easements must be used in their entirety.
Brown v. Voss Supreme Court of Washington, 1986 715 P.2d 514 Pg. 716	Plaintiffs purchased Parcel B which benefited from an ingress easement over Parcel A. Plaintiff also acquired Parcel C, which was next to Parcel B. Plaintiffs removed the residence on Parcel B and intended to build a new residence that straddled both parcels. Defendant attempted to prevent Plaintiff from using the easement and place obstacles in the easement to prevent use.	If an easement is appurtenant to a particular parcel of land, any extension thereof to other parcels is a misuse of the easement.
Preseault v. United States United States Court of Appeals, Federal Circuit, 1992 100 F.3d 1525 Pg. 725	Plaintiffs owned property in Vermont over which the Railroads had an easement dating back many years. In response to a government takings claim, the Plaintiffs asserted that the easement had been abandoned and that they were due compensation from the government.	While easements may be terminated by a showing that they have been abandoned, abandonment requires more than mere non-use. Abandonment requiresacts by the owner of the dominant tenement conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its future existence.
Tulk v. Moxhay Court of Chancery, England, 1848 2 Phillips 774, 41 Eng. Rep. 1143 Pg. 746	Plaintiff sold land with an agreement to keep the property in its similar form. The land then passed to the defendant whose deed did not contain the covenant. Plaintiff brought suit to enforce the restriction.	The court will enforce some covenants in equity that cannot be enforced by law.
Sanborn v. McLean Supreme Court of Michigan, 1925 206 N.W. 496 Pg. 751	Plaintiffs and Defendants reside in a residential community that has restrictions place upon a majority of the lots. Defendants attempted to build a gas station on their non-restricted lot. Plaintiffs sued attempting to block the construction of the gas station.	If the owner of two or more lots, so situated as to bear the relation, sells one with restrictions of benefit to the land retained, the servitude becomes mutual, and, during the period of restraint, the owner of the lot or lots retained can do nothing forbidden to the owner of the lot sold.
Neponsit Property Owners' Association, Inc. v. Emigrant Industrial Savings Bank Court of Appeals of New York, 1938 15 N.E.2d 793 Pg. 755	Plaintiff, a homeowners association, acquired a lien on Defendant's property for the failure to pay fees to the association. These fees were required by covenant which was included on the deed. Plaintiff foreclosed on the property to satisfy the lien.	A covenant will run with the land and will be enforceable against a subsequent purchaser of the land only if: (1) the grantor and grantee intended that the covenant should run with the land; (2) the covenant is one 'touching' or 'concerning' the land with which it runs; (3) there is 'privity of estate' between the promisee or party claiming the benefit of the covenant and the right to enforce it, and the promisor or party who rests under the burden of the covenant. Covenant to pay a fee sufficiently runs with the land.
Caullett v. Stanley Stilwell & Sons, Inc. Superior Court of New Jersey, Appellate Division, 1961 170 A.2d 52 Pg. 768	Defendant, a developer, sold property to the plaintiff in order to build a residential building. Defendant claimed to retain a right, by covenant to construct the residence. Plaintiffs sued claiming that this covenant was unenforceable.	Generally prerequisite to a conclusion that a covenant runs with the land at law is a finding that both burdened and benefited properties exist and were intended to be so affected by the contracting parties. When, however, the Burden is placed upon the land, and the Benefit is personal to one of the parties and does not extend to his or other lands, the burden is generally held not to run with the land at law. The policy is strong against hindering the alienability of one property where no corresponding enhancement accrues to surrounding lands.
Western Land Co. v. Truskolaski Supreme Court of Nevada, 1972 495 P.2d 624 Pg. 786	Appellant subdivided 40 acres and included on the subdivided lots covenants limiting the use of the lots to residential use. Later, because of changed circumstances appellant attempted to building a shopping center on some of the lots. Respondants sought to enforce the covenants.	Restrictive covenants will not be thwarted and consequently rendered unenforceable as long as these covenants are still of real and substantial value to those homeowners living within the subdivision. As long as the original purpose of the covenants can still be accomplished and substantial benefit will inure to the restricted area by their enforcement, the covenants stand even though the subject property has a greater value if used for other purposes.
Rick v. West Supreme Court of New York, 1962 228 N.Y.S.2d 195 Pg. 790	Rick owned 62 acres of vacant land, which he subdivided in 1946. A declaration of covenants, restricting the land to single-family dwellings was filed in the courthouse. In 1956 Rick sold to Catherine West a ½ acre lot, upon which she built a house. In 1957 the land was zoned for residential use. Subsequently Rick contracted for the sale of 45 acres to an industrialist, the sale being conditioned upon rezoning of the tract to industrial use. The town rezoned the 45 acres, but West would not release the covenant in her favor and the sale fell through.	By the settled doctrine of equity, restrictive covenants in respect of land will be enforced by preventive remedies while the violation is still in prospect, UNLESS the attitude of the complaining owner in standing on his covenant is Unconscionable or Oppressive.
Pocono Springs Civic Association, Inc. v. MacKenzie Superior Court of Pennsylvania, 1995 667 A.2d 233 Pg. 793	Appellants purchased a vacant lot at Pocono Springs Development in 1969. In 1987, appellants decided to sell their still-vacant lot. A subs