COMMERCIAL LAW (continued 2)

If a person has a lawful estate in land, and retains possession without right after his interest ceases, he is said to be a tenant at sufferance. If A rents B's house for one year, and, at the expiration of the year he still occupies the house without B's consent, he is a tenant at sufferance. He, in fact, has no estate in the premises except that which the owner suffers him to enjoy. This interest is called an estate at sufferance. A tenant at sufferance is a wrongdoer. He may be ejected at the will of the owner. The owner is not permitted to use excessive force in ejecting a tenant at sufferance. He may use the force necessary to eject him. At the present time, most of the states have statutory provisions by which unlawful tenants may be ejected by legal process.

296. Estates in Remainder. There may be many estates in the same piece of real property. If an owner of an estate in fee simple by one instrument grants an estate less than fee simple to one person and the balance of the fee simple estate to another, the latter estate is called a remainder. If A, an owner in fee, by the same instrument grants B an estate for life, remainder in fee to C, C has an estate in remainder. If C is living at the time the estate is granted, the estate in remainder vests in him at the time of the grant, and is called a vested remainder. If the estate in remainder depends upon any contingency, or is conditional in any way it is said to be a contingent remainder. If A grants a life estate in his farm to B, and the remainder to the heirs of C, the heirs of C cannot be determined until C's death. The estate in remainder is said to be contingent.

297. Estates in Reversion. An owner of an estate in real property in fee simple is permitted to grant his interest in the form of as many estates as he pleases. As long as the total of his grants do not equal his interest, he is said to retain an estate in reversion. If A owns a farm in fee simple, and grants B an estate for ten years, A's remaining interest is called an estate in reversion.

298. Title to Real Property. Title to real property or the right of the owner eventually to obtain possession of it may be acquired in several ways. Mere occupancy under claim of title will, under certain circumstances, if for a certain uninterrupted period of time, give the occupant title. An uninterrupted possession of real property, under a claim of right for a period in excess of twenty years will in most states give the occupant title by adverse possession.

Civilized nations provide by law that the heirs of the owner of real property shall take the title to the property at the owner's death. Estates less than freehold pass as personal property to the executors of the estate of the deceased owner. The statutes of the different states designate who are heirs.

Title to land owned by the government is transferred by public grant. Title by an owner may be conveyed to another by voluntary gift, by devise or will, or by deed. Title by devise or will is discussed in the chapter on Wills.

299. Deeds. The customary method of transfer of real property is by deed. A deed is a written instrument sealed and delivered for the conveyance of land. Deeds were originally divided into deeds-poll, and indentures. Deeds-poll were mere written obligations of the grantor delivered to the grantee, the grantee making no covenants. An indenture, on the other hand, consists of mutual obligation on the part of grantor and grantee. The obligation of each was reduced to writing, signed, sealed, and delivered, the one in exchange for the other. A lease is an example of an indenture. The term, indenture, originated from the custom of writing the obligation of both parties on the same piece of paper, and by writing some letters of the alphabet between the two agreements, and by cutting the paper through these letters at sharp angles. The separate obligations could be identified by fitting together the saw-tooth edges of the different instruments. At present, duplicate copies are made designating them as indentures. Leases are discussed more at length in the chapter on Landlord and Tenant.

At present, the form of deeds in common use are quit claim deeds and warranty deeds. Some states provide forms of deeds by statute. Even in the absence of statute, a written instrument, properly signed and delivered by the grantor, containing a description of the property, and an expression of intention to convey the real estate described, is probably sufficient to constitute a deed. A formal deed is customarily used. Transfers of real property are important transactions. A formal deed contains several formal parts known by different names. These formal parts have resulted from well recognized customs and practices, some of them dating back a great many years. The formal parts of a warranty deed are the premises, the habendum, the redendum, the conditions, the warranties or covenants, the conclusions and the acknowledgment.

300. Premises of a Deed. The premises of a deed contain the name and description of the parties. If a deed is given by an unmarried person, he should be designated in the premises of the deed as A B, unmarried. This enables abstractors of titles to determine that a complete transfer of title has been made. Otherwise there is nothing to show that A B did not have a wife at the time the transfer was made. In this event, the wife would retain her right of dower. The premises usually contain the date of instrument. Sometimes, the date is placed at the end of the instrument. The consideration is also contained in the premises. The consideration of a deed may be either good or valuable. If the grantor receives something of value, as money or an article of value, the consideration is said to be valuable. If a parent grants real property to a child or relative and states the consideration to be love and affection, the consideration is adequate, and is known as good consideration. The receipt of the consideration is also acknowledged in the premises of a deed. The language by which the grantor conveys the estate, such as "give," "grant," "set over," and "release" is contained in the premises as well as the description of the estate granted.

301. Habendum and Redendum Clauses. The premises of a deed are followed by the habendum and redendum clauses. The habendum clause describes the estate granted, whether an estate in fee, an estate for life, or an estate for years. It is not necessary to repeat the description of the estate in the habendum clause. The habendum clause usually commences with the words, "To have and to hold."

The redendum clause contains any interests or rights retained by the grantor. If the grantor reserves to himself the right to use a certain driveway, he places this reservation in the redendum clause.

302. The Conditions, Warranties and Covenants of a Deed. A warranty deed may not be an absolute transfer of real property, but may be conditional. For example, if the deed is absolute in form, but contains a condition that the transfer is to be of no effect if the grantor pays the grantee a certain sum of money by a certain time, the deed is a conditional one. The conditions above described constitute the deed a mortgage. This class of conditional transfer is discussed in the following chapter. Most deeds are without conditions.

The next formal part of a warranty deed is the covenant of warranty. The grantor covenants that he is lawfully seized of the estate. This means that the grantor has the legal title and right to possession, which right he conveys to the grantee. The grantor also covenants that the grantee shall have quiet enjoyment of the estate, that the estate is free from incumbrance, and that the grantor and his heirs warrant the title to the estate.

303. The Conclusion of a Deed. The conclusion of a deed contains the signature of the grantor and the statement that he has signed and sealed the deed. Most states require by statute that a deed must be signed in the presence of two witnesses. The signature and statement of the witnesses to the effect that the deed was signed in their presence is a part of the conclusion. The mere statement that the grantor signs and seals the deed makes it a sealed instrument. Seals were originally impressions made in wax affixed to the instrument. A scroll or flourish of the pen was regarded as a seal, but at present a deed is in itself regarded as a sealed instrument, and requires no seal nor substitute therefor.

304. Acknowledgment of a Deed. The states of this country require by statute, deeds to be recorded by the public recorder, if parties to the deed desire to give notice of the transfer to third persons. Third persons are deemed to have notice of deeds so recorded even though they have no actual notice. For the purpose of having a deed recorded, the grantor must acknowledge his signature before a notary public who adds his statement to that effect to the deed, and signs and seals the same. A quit claim deed contains no warranties nor covenants. It is merely a release of the grantor's interest to the grantee.

QUIZ QUESTIONS

BAILMENT

1. Define bailment.

2. For whose benefit may bailment be made?

3. Distinguish a bailment from a sale.

4. Give an example of a bailment.

5. Name and define the parties to a bailment contract.

6. May an infant enter into a bailment contract?

7. Is an infant liable for his torts?

8. Classify bailments.

9. Give an example of a bailment for the mutual benefit of both bailor and bailee.

10. Is a bailment a contract?

11. What is the consideration in a bailment for the sole benefit of the bailor?

12. What party to a bailment contract has possession of the property?

13. Is a finder of lost property a bailee?

14. In whom is the title to bailed property?

15. Are the title and possession in the same person?

16. May a person not the owner of property bail it?

17. Give an example of a bailment for the sole benefit of the bailor.

18. What degree of care is required of a bailee in case the bailment is for the sole benefit of the bailor?

19. Give an example of a bailment for the sole benefit of the bailee.

20. What degree of care is required of a bailee in a bailment for his sole benefit?

21. A hires of B an automobile for $3.00 per hour. Is the bailment for the sole benefit of the bailor, the bailee, or for the mutual benefit of both parties?

22. In the above example what degree of care is required of A?

23. What implied warranties accompany mutual benefit bailments?

24. Define and distinguish public and private warehousemen.

25. What are government warehouses?

26. Are warehouse receipts negotiable?

27. What degree of care is required of warehousemen?

28. What degrees of care are recognized in bailments?

29. How is the standard for determining degrees of care arrived at?

30. Is ordinary care the same in the bailment of different kinds of property?

31. If a third person takes property away from a bailee may the latter recover possession?

32. What are the rights of a person purchasing from a bailee?

33. What is meant by liens on personal property?

34. A leaves his watch with B for repairs. B repairs the watch. Can B retain possession until he receives his pay?

35. May a bailee sell property to satisfy his lien?

PLEDGES

1. Is a pledge a bailment?

2. Define a pledge.

3. Does title to property pledged remain in the pledgor?

4. Distinguish pledge from chattel mortgage.

5. Name and define the parties to a contract of pledge.

6. May an infant pledge property?

7. What kinds of personal property may be pledged?

8. Can a person pledge personal property which he expects to purchase?

9. Can a person pledge a growing crop?

10. What is the purpose of a contract of pledge?

11. Can there be a pledge which is not security for an existing debt?

12. If A delivers possession of personal property to B but does not owe B anything, is the transaction a pledge? If not a pledge, what is the transaction?

13. Who has possession of pledged property?

14. Does the pledgee have title to property pledged?

15. In case of a chattel mortgage who has title to the mortgaged property?

16. In case of pledge of negotiable instruments, who has title to the instruments?

17. What is meant by loans on collateral securities?

18. What is a collateral note?

19. By whom are collateral notes commonly used?

20. After payment of the debt for which property is pledged, who is entitled to possession of the pledged property?

21. Who is entitled to possession of property pledged before payment of the debt secured?

22. In case of pledge of negotiable instrument who must collect the interest and instrument when due?

23. What degree of care is required of a pledgee in the protection of pledged property?

24. If the pledgor fails to pay the debt when due, what may the pledgee do with the property?

25. In selling pledged property what notice, if any, should the pledgee give the pledgor?

26. What is meant by foreclosing a lien in equity?

27. Define and explain redemption.

28. When may the right of redemption be exercised?

MORTGAGES ON PERSONAL PROPERTY

1. Define chattel mortgage.

2. In case of a mortgage of personal property, who has possession of the property? Who has title?

3. Define mortgagor and mortgagee.

5. Distinguish chattel mortgage and sale.

4. Distinguish chattel mortgage and pledge.

6. Distinguish pledge and sale.

7. May choses in action be mortgaged?

8. Define and distinguish choses in action and choses in possession. May both be mortgaged?

9. What is the purpose of a chattel mortgage?

10. Does a chattel mortgage require a consideration?

11. Can there be a chattel mortgage without a debt to be secured?

12. Must a chattel mortgage be in writing?

13. A mortgages his horse to B to secure a debt of $40.00. A delivers the horse to B. The mortgage is oral. Is it binding?

14. What is the reason for filing or recording a chattel mortgage?

15. Does a chattel mortgage of property, possession of which is given the mortgagee, have to be recorded to be binding?

16. Who is entitled to possession of mortgaged personal property?

17. A mortgages his household furniture to B, later he stores the furniture with C. C acquires a storage keeper's lien. Is the latter's lien superior to B's?

18. Does a mortgagor retain an interest which he may dispose of?

19. Does a mortgagee have absolute title to the property mortgaged?

20. If A, the mortgagee of personal property, sells the debt secured by the mortgage to B, what becomes of the mortgage?

21. When the mortgagor defaults in payment of the secured debt, how may the mortgagee obtain possession of the property?

22. Define equity of redemption.

23. Can a mortgagor enforce his equity of redemption after the mortgagee has obtained possession of the property?

24. Can a mortgagee enforce his equity of redemption without paying the mortgage debt?

25. Define foreclosure.

26. What is the purpose of foreclosure?

27. How is foreclosure enforced?

CARRIERS

1. Define and give an example of common carrier.

2. Define and give an example of private carrier.

3. What constitutes a person or company a common carrier of goods?

4. Is a common carrier of goods obliged to carry goods of all kinds?

5. Distinguish common carrier and private carrier.

6. What is the exceptional liability of a common carrier, and what is the reason for this liability?

7. If goods intrusted to a common carrier are lost without negligence of the carrier is the latter liable to the owner?

8. Is the exceptional liability of an insurer a matter of express or implied contract?

9. What are the exceptions to the liability of a common carrier as an insurer of the goods intrusted to his care?

10. Define and give an example of public enemy.

11. Define and give an example of Act of God.

12. Is a common carrier permitted to limit his common law liability as an insurer of the goods by special contract?

13. Is a common carrier permitted to stipulate against the carelessness of his agents or servants?

14. Is a common carrier permitted to limit his liability as an insurer of goods by stipulating in the bill of lading issued that the valuation is limited to a certain amount, unless informed otherwise by the shippee?

15. What does the Interstate Commerce Act provide relative to the above question?

16. What is a bill of lading?.

17. Distinguish bill of lading and shipping receipt.

18. What are the two essential features of a bill of lading?

19. In what sense, if any, is a bill of lading a negotiable instrument?

20. A, in Cleveland, orders a car of hogs from B, in Buffalo. B delivers the hogs to the railway company in Buffalo, to be shipped to A in Cleveland. In whom is the title to the hogs?

21. If A stipulates that the hogs are to be delivered F. O. B. Cleveland, in whom is the title to the hogs after they are delivered to the railway company, and before they reach Cleveland?

22. What goods, and under what circumstances, is a carrier obliged to accept for shipment?

23. Explain the meaning of stoppage in transitu. Under what circumstances is a shipper permitted to exercise the right?

24. What carriers are obliged to make delivery at the residence or place of business of the consignee, and what carriers are obliged only to deliver at their depots or warehouses?

25. Define and explain carrier's lien.

26. How may a carrier enforce his lien?

27. Why is a common carrier not permitted to discriminate between shippers?

28. When, if at all, is a carrier of mail liable for negligence?

29. Is the government liable to an owner of mail for its loss?

30. What are the principal features of the Interstate Commerce Act of 1906?

ENTRANCE TO THE ADMINISTRATION BUILDING OF THE WERNER COMPANY, AKRON, OHIO

CARRIERS OF PASSENGERS

1. Is every person or company carrying passengers for compensation a common carrier?

2. Are owners of buildings operating elevators common carriers of passengers?

3. When does a person become a passenger?

4. Is a person traveling on a pass a passenger within the legal meaning of the term, passenger?

5. Is a public carrier of passengers obliged to accept all who present themselves as passengers?

6. When, and how, may a public carrier eject a passenger?

7. What degree of care is a public carrier of passengers obliged to exercise?

8. What constitutes baggage?

9. What is the liability of a carrier of passengers for loss or injury to baggage?

INNKEEPERS

1. Must a person represent himself as being ready and willing to furnish both food and lodging to all who desire to become guests, in order to be an innkeeper?

2. Are boarding-housekeepers innkeepers?

3. Are innkeepers obliged to receive all persons who present themselves as guests if the regular price is tendered?

4. What degree of care in the protection of guests is required of innkeepers?

5. What degree of care is required of innkeepers in the protection of the baggage of guests?

6. What is an innkeeper's lien?

7. How may an innkeeper enforce his lien?

REAL PROPERTY

1. Define real property.

2. What is included in the term, real property?

3. Define and give an example of hereditament.

4. Define and give an example of tenement.

5. Are standing trees real or personal property?

6. Are trees blown down real or personal property?

7. What is the practical distinction between real and personal property?

8. Define emblements.

9. Do emblements belong to the tenant or to the landlord?

10. Are apples emblements? If not, why not?

11. How may a wall become a party wall by prescription?

12. Define fixtures.

13. Are fixtures real or personal property?

14. Does the rule as to fixtures differ in case of a tenant, and in case of an owner?

15. Do owners of adjoining property own a partition fence jointly or does each one own a particular part of the fence?

16. Define and give an example of a way of necessity.

17. Define and give an example of a way of convenience.

18. How are highways ordinarily established?

19. How may a highway be established by prescription?

20. Into what classes are estates divided as to the quantity of interest held?

21. What is a freehold estate?

22. From what is the term, freehold, derived?

23. Define and give an example of an estate in fee simple.

24. What is meant by entailing an estate?

25. What was the reason for the practice of entailing estates?

26. To what extent may an estate be entailed in this country?

27. What is the rule against perpetuities?

28. Define and give an example of a life estate.

29. What claims do life estates embrace?

30. Define estate by the curtesy.

31. Define and give an example of dower estate.

32. Define and give an example of homestead estate.

33. Define and give an example of an estate for years.

34. Is a lease for two months an estate for years?

35. May a holder of an estate for years transfer it?

36. What is meant by waste?

37. What is the general rule relating to waste?

38. Give an example of an estate at will.

39. Distinguish an estate at will from an estate at sufferance.

40. How may an estate at will be terminated?

41. Define and give an example of an estate in remainder.

42. Distinguish vested and contingent remainder.

43. Distinguish estates in reversion from estates in remainder.

44. How may title to real property be acquired?

45. Define deed.

46. Define deed poll.

47. Define indenture.

48. What are the formal parts of a deed?

49. What things are included in the premises of a deed?

50. What is meant by the habendum and redendum clause of a deed?

51. What is a warranty of a deed?

52. What are the general warranties of a deed?

53. What things are included in the conclusion of a deed?

54. What is meant by the acknowledgment of a deed?

A CORNER IN THE JOHN CRERAR LIBRARY, CHICAGO, ILL.