Property (OFFSITE LINK) -Online Library of Liberty
5 U.S.C.S. §553: Rule Making -Annotated statute describing Congress' authority to make "rules" for its own property under Article 4, Section 3, Clause 2 of the Constitution
5 U.S.C.S. §553(a)(2) Shepards Report -Case law surrounding Congress' authority to make "rules" for its own property under Article 4, Section 3, Clause 2
Black's Law Dictionary, Sixth Edition, p. 1399:
PURCHASE. Transmission of property from one person to another by voluntary act and agreement, founded on a valuable consideration. Spur Independent School Dist. v. W. A. Holt Co., Tex. Civ.App., 88 S.W.2d 1071, 1073. In a technical and broader meaning relative to land generally means the acquisition of real estate by any means whatever except by descent. Kelly v. Southworth, 38 Wyo. 414, 267 P. 691, 692. Lindburg v. Bennett, 117 Neb. 66, 219 N.W. 851, 855. Oklahoma City v. Board of Education of Oklahoma City, 181 Okl. 539, 75 P.2d 201.
Quasi purchase. In the civil law. A purchase of property not founded on the actual agreement of the parties, but on conduct of the owner which is inconsistent with any other hypothesis than that he intended a sale.
Words of purchase. Words which denote the person who is to take the estate. Thus, if I grant land to A. for twenty-one years, and after the determination of that term to A.'s heirs, the word"heirs" does not denote the duration of A.'s estate, but the person who is to take the remainder on the expiration of the term, and is therefore called a "word of purchase." Williams, Real Prop,; Fearne,-Rem. 76, et seq.
[Black's Law Dictionary,
Sixth Edition, p. 1399]
Black's Law Dictionary, Sixth Edition, p. 1207:
Agency; proxy; the act of constituting another one's attorney in
fact. The act by which one person gives power to another to act
in his place, as he could do himself. Action under a power of
attorney or other constitution of agency. Indorsing a bill or
note "by procuration" is doing it as proxy for another or by his authority.
The use of the word procuration (usually, per procuratione, or
abbreviated per proc. or p.p.) on a promissory note by an agent is notice
that the agent has but a limited authority to sign.
procuration is one made by the express consent of the parties.
An implied or tacit procuration takes place when an individual
sees another managing his affairs and does not interfere to prevent
it. Procurations are also divided into those which contain absolute
power, or a general authority, and those which give only a limited power.
Also, the act or offence
of procuring women for lewd purposes.
See also Proctor;
[Black's Law Dictionary,
Sixth Edition, p. 1207]
Black’s Law Dictionary, Second Edition, p. 955
“PROPERTY. Rightful dominion over external objects; ownership; the unrestricted and exclusive right to a thing; the right to dispose of the substance of a thing in every legal way, to possess it, to use it and to exclude every one else from interfering with it. Mackeld. Rom. Law, § 265.
Property is the highest right a man can have to anything; being used for that right which one has to lands or tenements, goods or chattels, which no way depends on another man's courtesy. Jackson ex dem. Pearson v. Housel, 17 Johns. 281, 283.
A right imparting to the owner a power of indefinite user, capable of being transmitted to universal successors by way of descent, and imparting to the owner the power of disposition, from himself and his successors per universitatem, and from all other persons who have a spes successions under any existing concession or disposition, in favor of such person or series of persons as he may choose, with the like capacities and powers as he had himself, and under such conditions as the municipal or particular law allows to be annexed to the dispositions of private persons. Aust. Jur. (Campbell’s Ed.) § 1103.
The right of property is that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. It consists in the free use, enjoyment and disposal of all a person's acquisitions, without any control or diminution save only by the laws of the land. 1 Bl. Comm. 138; 2 Bl. Comm. 2, 15.
The word is also commonly used to denote any external object over which, the right of property is exercised. In this sense i t is a very wide term, and includes every class of acquisitions which a man can own or have an interest in. See Scranton v. Wheeler, 179 D. S. 141, 21 Sup. C t 48, 45 L. Ed. 126; Lawrence v. Hennessey, 165 Mo. 659, 65 S. W. 717; Boston & L. R. Corp. v. Salem & L. R. Co., 2 Gray (Mass.), 35; National Tel. News Co. v. Western Union Tel. Co., 119 Fed. 294, 56 C. C. A. 198, 60 L. R. A. 805; Hamilton v. Rathbone, 175 U. S. 414, 20 Sup. Ct. 155, 44 L. Ed. 219; Stanton v. Lewis, 26 Conn. 449;
Wilson v. Ward Lumber Co. (C. C.) 67 Fed. 674.
—Absolute property . In respect to chattels personal property is said to be "absolute" where a man has, solely and exclusively, the right and also the occupation of any movable chattels, so permanent, but may at some times subsist and not at other times; such for example, as the property a man may have in wild animals which he has caught and keeps, and which are his only so long as he retains possession of them. 2 BL Comm. 389.—Real property . A general term for lands, tenements, and hereditaments; property which, on the death of the owner intestate, passes to his heir. Real property is either corporeal or incorporeal. See Code N. Y. § 462 — Separate property . The separate property of a married woman is that which she owns in her own right, which is liable only for her own debts, and which she can incumber and dispose of at her own will.—Special property. Property of a qualified, temporary, or limited nature; as distinguished from absolute, general, or unconditional property. Such is the property of a bailee in the article bailed, of a sheriff in goods temporarily in his hands under a levy, of the finder of lost goods while looking for the owner, of a person in wild animals which he has caught. Stief v. Hart, 1 N.Y. 24; Moulton v. Witherell, 52 Me. 242; Eisendrath v. Knauer, 64 111. 402; Phelps v. People, 72 N.Y. 357.
[Black’s Law Dictionary, Second Edition, p. 955]
Black’s Law Dictionary, Fifth Edition, p. 1095
Property. That which is peculiar or proper to any person; that which belongs exclusively to one. In the strict legal sense, an aggregate of rights which are guaranteed and protected by the government. Fulton Light, Heat & Power Co. v. State, 65 Misc.Rep. 263, 121 N.Y.S. 536. The term is said to extend to every species of valuable right and interest. More specifically, ownership; the unrestricted and exclusive right to a thing; the right to dispose of a thing in every legal way, to possess it, to use it, and to exclude everyone else from interfering with it. That dominion or indefinite right of use or disposition which one may lawfully exercise over particular things or subjects. The exclusive right of possessing, enjoying, and disposing of a thing. The highest right a man can have to anything; being used to refer to that right which one has to lands or tenements, goods or chattels, which no way depends on another man's courtesy.
The word is also commonly used to denote everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal, everything that has an exchangeable value or which goes to make up wealth or estate. It extends to every species of valuable right and interest, and includes real and personal property, easements, franchises, and incorporeal hereditaments, and includes every invasion of one's property rights by actionable wrong. Labberton v. General Cas. Co. of America, 53 Wash.2d. 180, 332 P.2d. 250, 252, 254.
Property embraces everything which is or may be the subject of ownership, whether a legal ownership. or whether beneficial, or a private ownership. Davis v. Davis. TexCiv-App., 495 S.W.2d. 607. 611. Term includes not only ownership and possession but also the right of use and enjoyment for lawful purposes. Hoffmann v. Kinealy, Mo., 389 S.W.2d. 745, 752.
Property, within constitutional protection, denotes group of rights inhering in citizen's relation to physical thing, as right to possess, use and dispose of it. Cereghino v. State By and Through State Highway Commission, 230 Or. 439, 370 P.2d. 694, 697.
[Black’s Law Dictionary, Fifth Edition, p. 1095]
Black’s Law Dictionary, Sixth Edition, p. 1106
Ownership. Collection of rights to use and enjoy property, including right to transmit it to others. Trustees of Phillips Exeter Academy v. Exeter, 92 N.H. 473, 33 A.2d. 665, 673. The complete dominion, title, or proprietary right in a thing or claim. The entirety of the powers of use and disposal allowed by law.
The right of one or more persons to possess and use a thing to the exclusion of others. The right by which a thing belongs to someone in particular, to the exclusion of all other persons. The exclusive right of possession, enjoyment, and disposal; involving as an essential attribute the right to control, handle, and dispose.
Ownership of property is either absolute or qualified. The ownership of property is absolute when a single person has the absolute dominion over it, and may use it or dispose of it according to his pleasure, subject only to general laws. The ownership is qualified when it is shared with one or more persons, when the time of enjoyment is deferred or limited, or when the use is restricted. Calif. Civil Code, §§678-680.
There may be ownership of all inanimate things which are capable of appropriation or of manual delivery; of all domestic animals; of all obligations; of such products of labor or skill as the composition of an author, the goodwill of a business, trademarks and signs, and of rights created or granted by statute. Calif. Civil Code, §655.
In connection with burglary, "ownership" means any possession which is rightful as against the burglar.
See also Equitable ownership; Exclusive ownership; Hold; Incident of ownership; Interest; Interval ownership; Ostensible ownership; Owner; Possession; Title.
[Black’s Law Dictionary, Sixth Edition, p. 1106]
Black's Law Dictionary, Sixth Edition, pp. 1323-1324
Right. As a noun, and taken in an abstract sense,
means justice, ethical correctness, or consonance with the rules of
law or the principles of morals. In this signification it answers
to one meaning of the Latin "jus," and serves to indicate law in the
abstract, considered as the foundation of all rights, or the complex
of underlying moral principles which impart the character of justice
to all positive law, or give it an ethical content. As a noun,
and taken in a concrete sense, a power, privilege, faculty, or
demand, inherent in one person and incident upon another. Rights
are defined generally as "powers of free action." And the primal
rights pertaining to men are enjoyed by human beings purely as such,
being grounded in personality, and existing antecedently to their recognition
by positive law. But leaving the abstract moral sphere, and giving
to the term a juristic content, a "right" is well defined as "a capacity
residing in one man of controlling, with the assent and assistance of
the state, the actions of others."
As an adjective, the term
"right" means just, morally correct, consonant with ethical principles
or rules of positive law. It is the opposite of wrong, unjust,
A power, privilege, or
immunity guaranteed under a constitution, statutes or decisional laws,
or claimed as a result of long usage. See Bill of rights;
Civil liberties; Civil Rights Acts; Natural rights.
In a narrower signification,
an interest or title in an object of property; a just and legal claim
to hold, use, or enjoy it, or to convey or donate it, as he may please.
A legally enforceable claim
of one person against another, that the other shall do a given act,
or shall not do a given act. Restatement of the Law of Property,
That which one person ought
to have or receive from another, it being withheld from him, or not
in his possession. In this sense "right" has the force of possession.
In this sense "right" has the force of "claim," and is properly expressed
by the Latin "jus."
See also Conditional
right; Correlative rights; Droit; Jus; Justice; Natural rights; Power;
Recht; Vested rights.
be described as perfect or imperfect, according as their
action or scope is clear, settled, and determinate, or is vague and
also either in personam or in rem. A right in
personam is one which imposes an obligation on a definite person.
A right in rem is one which imposes an obligation on persons
generally; i.e., either on all the world or on all the
world except certain determinate persons. Thus, if I am entitled
to exclude all persons from a given piece of land; and, if there are
one or more persons, A., B., and C., whom I am not entitled to exclude
from it, my right is still a right in rem.
also be described as either primary or secondary.
Primary rights are those which can be created without reference
to rights already existing. Secondary rights can only arise
for the purpose of protecting or enforcing primary rights. They
are either preventive (protective) or remedial (reparative).
or protective secondary rights exist in order to prevent
the infringement or loss of primary rights. They are judicial
when they require the assistance of a court of law for their enforcement,
and extrajudicial when they are capable of being exercised by the party
himself. Remedial or reparative secondary rights
are also either judicial or extrajudicial. They may further be
divided into (1) rights of restitution or restoration, which entitle
the person injured to be replaced in his original position; (2) rights
of enforcement, which entitle the person injured to the performance
of an act by the person bound; and (3) rights of satisfaction or compensation.
to the ownership of external objects of property, rights may be classed
as absolute and qualified. An absolute right gives
to the person in whom it inheres the uncontrolled dominion over the
object at all times and for all purposes. A qualified right gives
the possessor a right to the object for certain purposes or under certain
circumstances only. SUch is the right of a bailee to recover the
article bailed when it has been unlawfully taken form him by a stranger.
also either legal or equitable. The former is the
case where the person seeking to enforce the right for his own benefit
has the legal title and a remedy at law. The latter are such as
are enforceable only in equity; as, at the suit of cestui que trust.
Procedurally, under Rules of Civil Procedure, both legal and equitable
rights are enforced in the same court under a single cause of action.
There is also
a classification of rights, with respect to the constitution of civil
society. Thus, according to Blackstone, "the rights of persons,
considered in their natural capacities, are of two sorts, --absolute
and relative; absolute, which are such as appertain
and belong to particular men, merely as individuals or single persons;
relative, which are incident to them as members of society, and standing
in various relations to each other." 1 Bl.Comm. 123.
also classified in constitutional law as natural, civil, and political,
to which there is sometimes added the class of "personal rights."
rights are those which grow out of the nature of man and depend
upon personality, as distinguished from such as are created by law and
depend upon civilized society; or they are those which are plainly assured
by natural law; or those which, by fair deduction from the present physical,
moral, social, and religious characteristics of man, he must be invested
with, and which he ought to have realized for him in a jural society,
in order to fulfill the ends to which his nature calls him. Such
are the rights of life, liberty, privacy, and good reputation.
rights are such as belong to every citizen of the state or country,
or, in a wider sense, to all its inhabitants, and are not connected
with the organization or administration of government. They include
the rights of property, marriage, equal protection of the laws, freedom
of contract, trial by jury, etc. Or, as otherwise defined, civil
rights are rights appertaining to a person by virtue of his citizenship
in a state or community. Such term may also refer, in its very
general sense, to rights capable of being enforced or redressed in a
civil action. Also, a term applied to certain rights secured to
citizens of the United States by the Thirteenth and Fourteenth amendments
to the Constitution, and by various acts of Congress (e.g. Civil Rights
Acts) made in pursuance thereof. See Bill of Rights; Civil
liberties; Civil Rights Acts.
rights consist in the power to participate directly or indirectly,
in the establishment or administration of government, such as the right
of citizenship, that of suffrage, the right to hold public office, and
the right of petition.
rights is a term of rather vague import, but generally it may be
said to mean the right of personal security, comprising those of life,
limb, body, health, reputation, and the right of personal liberty.
Dictionary, Sixth Edition, pp. 1323-1324]
Black’s Law Dictionary, Fourth Edition, p. 22-23
ABSOLUTE. Complete; perfect; final; without
any condition or incumbrance; as an absolute
bond (simplex oblignlio) in distinction from a conditional bond. Unconditional; complete and perfect in itself; without relation to or dependence
on other things or persons. Instruction as to an
"absolute" gift, Ketch v. Smith, 131 Okl. 263, 268
P. 715, 717. Irrevocable, final. Gift inter vivos
by husband, President and Directors of Manhat.
tan Co. v. Janowitz, 14 N.Y.S.2d 375, 382, 172 Misc.
290. Within limitation or restriction, Comford v.
Cantrell, 177 Tenn. 553, 151 S.W.2d 1076, 1077.
An absolute estate is one that is free from all manner of
condition or incumbrance; an estate in fee simple. John
son v. McIntosh, 8 Wheat. 543, 5 L.Ed. 681; Fuller v. Missroon, 35 S.C. 314, 1-1 S.E. 714: Bradford v. Martin, 199
Iowa 250, 201 N.W. 57.1, 576; Middleton v. Dudding, Mo.
Sup., 183 S.W. 443, 444. A rule is said to be absolute when
on the hearing it is confirmed and made final. A convey
ancc is said to be absolute, as distinguished from a mort
gage or other conditional conveyance. Gogarn v. ConnorS.
153 N.W. 1068, 188 Mich. 161. Absolute property is where
a man hath solely and exclusively the right and also the
occupation of movable chattels: distinguished from a qualified property, as that of a baiiee. 2 Kent 347. An absolute
owner is one in whom elements of titles of possession.
right of pcssession, and right of property, are comhined.
Harris v. Southeast Portland Lumber Co., 123 Or. 549, 262
P. 213. 241. Absolute ownership exists when interest is
so completely vested in insured that he cannot be deprived
of it without his own consent. Norwicii Union Fire Ins.
Soc. v. Sawyer, 57 Ga.App. 739, 196 S.E. 223. 224. 'Absolute
rights are such as appertain and belong to particular persons merely as individuals or single persons, as distin
guished from relative rights, which are incident to them as
members of society; 1 Sharsw.Bin.Com. 123; 1 Chit.Pr.
32. An absolute duty is one that is free from every restriction ; unconditional; determined ; not merely provisional ;
irrevocable. Broken telephone wires. Home Telephone
Co. v. Weir. 101 N.E.1020, 1021, 53 1nd.App. 466: Railroad
employee. Lehigh Valley R. Co. v. Beitz, C.C.A.N.Y., 10
F.2d 74, 77: Pedestrians. Scibilia v. City of Philadelphia.
279 Pa. 549, 124 A. 273, 275, 32 A.L.R. 981. An "absolute
power of disposition," in the absence of statute, would be
one by which the holder of the power might dispose of the
property as fully and in the same manner as he might dis
pose of his individual estate acquired by hls own efforts.
In re Briggs' Will, 167 N.Y.S. 632, 635. 101 Misc. 191. In the
law of insurance that is an absolute illterest in property
which is so completely vested in the individual that there
could be no danger of his being deprived of it without his
own consent. Libby Lumber Co. v. Pacific States Fire Ins.
Co., 79 Mont. 166, 255 P. 340, 345, 60 A.L.R. 1. It may be
used in the sense of vested. Hough v. Ins. Co., 29 Corm.
20, 76 Am.Dec. 581. l'Absolute control" in Motor Vehicle
Act does not require instant stoppage. Gaff v. Clarksburg
Dairy Co., 86 W.Va. 237, 103 S.E. 58, 60. As to absolute
control of a mine, see People v. Boggess. 75 Cal.App. 499,
243 P. 478. 481; and of an estate. see Strickland v. Strick
land. 271 Ill. 614, 111 N.E. 592, 594. Absolute veto is equiv
alent to "pocket veto". Okanogan, Methow. San Poeiis
(or San Pail), Nespelem, Colville, and Lake Indian Tribes
or Bands of State of Washington v. United States, 49 S.Ct.
463, 279 U.S. 655, 73 L.Ed. 894, 64 A.L.R. 1434.
As to absolute "Conveyance," "Covenant,;; "Delivery,"
"Divorce:;' "Estate,':, "Gift," "Guaranty. "Interest,"
"Legacy, "Nuisance, "Nullity," "Obligation," "Proper
ty," "Rights," "Rule," "Sale," "Title," "Warrandice,"
see those titles.
[Black’s Law Dictionary, Fourth Edition, p. 22-23]
Black’s Law Dictionary, Fourth Edition, p. 1406
QUALIFIED. Adapted; fitted; entitled; susceptible; capable; competent; fitting; possessing legal power or capacity; eligible; as an elector to vote. Applied to one who has taken the steps to prepare himself for an appointment or office, as by taking oath, giving bond, etc. Gibbany v. Ford, 29 N.M. 621; 225 P. 577,578; Board of Com'rs of Guadalupe County v. District Court of Fourth Judicial' Dist., 29 N.M. 244, 223 P. 516, 522. Also limited; restricted; confined; modified; imperfect, or temporary.
The term is also applied in England to a person who is enabled to hold two benefices at once.
[Black’s Law Dictionary, Fourth Edition, p. 1406]
Black’s Law Dictionary, Fourth Edition, p. 299-300
CHATTEL. An article of personal property; any species of property not amounting to a freehold or fee in land. People v. Holbrook, 13 Johns., N.Y., 94; U. S. v. Sischo, C.C.A.Wash., 270 F. 958, 961. A thing personal and movable. Castle v. Castle, C.C.A.Haw., 267 F. 521, 522. Things which in law are deemed personal property, they are divisible
into chattels real and chattels personal.
The term "chattels" is a more comprehensive one than "goods." as it includes animate as well as inanimate property. 2 Chit.Bl.Comm. 383, note. In a devise, however. they may be of the same import. Shep.Touch. 447; 2 Fonbl. Eq. 335.
An interest in corporeal hereditaments less than a freehold. 2 Kent, Comm. 342.
Movable things. 2 B1.Comm. 387; 2 Kent, 340; Co.Litt. 4Sn; 4 Co. 6; In re Gay, 5 Mass. 419; Miller v. IIirschmann, 170 Md. 145, 183 A. 259, 263. Evidences of debt are chattels personal. Greene Llne Terminal Co. v. Martin, 122 W.Va. 453, 10 S.E.2d 901, 906.
Such as concern, or savor of, the realty, such as leasehold estates; interests issuing out of, or annexed to, real estate; such chattel interests as devolve after the manner of realty. Mozley& Whitley; 2 B1.Comm. 386; In re Dalton's Estate, 183 Iowa, 1013, 168 N.W. 332, 334; Intermountain Realty Co. v. Allen, 60 Idaho 228, 90 P.2d 704, 706, 122 A.L.R. 647; Keystone Pipe & Supply Co. v. Crabtree, 174 Okl. 562, 50 P.2d 1086, 1088. An interest in real estate less than freehold, Lincoln Nat. Bank & Trust Co. of Fort Wayne v. Nathan, 215 Ind. 178, 19 N.E.2d 243, 249.
[Black’s Law Dictionary, Fourth Edition, p. 299-300]
Black’s Law Dictionary, Fourth Edition, pp. 402-403
CONVEYANCE. In pleading. Introduction or
In real property law. In the strict legal sense,
a transfer of legal title to land. In the popular
sense, and as generally used by lawyers, it de
notes any transfer of title, legal or equitable.
Chupco v. Chapman, 76 Okl. 201, 170 P. 259, 266.
The transfer of the title of land from one person
or class of persons to another. Klein v. McNam
ara, 54 Miss. 105; Alexander v. State, 28 Tex.
App. 186, 12 S.W. 595; In re Loes' Will, 55 N.Y.S.
2d 723, 726. An instrument in writing under seal,
(anciently termed an "assurance,") by which some
estate or interest in lands is transferred from one
person to another; such as a deed, mortgage, etc.
2 B1. Comm. 293, 295, 309.
Conveyance includes every instrument in writing by
which any estate or interest in real estate 1s created.
aliened, mortgaged, or assigned, or by which the title to
any real estate may be affected in law or equity, except
last wills and testaments, leases for a term not exceeding
three years, and executory contracts for the sale or pu;
chase of lands. Stearns Lighting & Power Co. v. Central
Trust Co., C.C.A.Mich., 223 F. 962, 966; Shraiberg v. Hanson, 138 Minn. 80, 163 N.W. 1032, 1033.
Absolute or conditional conveyance. An absolute conveyance is one by which the right or property in a thing is transferred, free of any condition or qualification, by which it might be defeated or changed; as an ordinary deed of lands, in con
tradistinction to a mortgage, which is a conditional conveyance. Burrill; Falconer v. Buffalo,
etc., R. Co., 69 N.Y. 91; Brown v. United States,
C.C.A.Pa., 95 Fed.2d 487, 489.
Fraudulent conveyance. See Fraudulent.
Mesne conveyance. An intermediate convey
ance; one occupying an intermediate position in
a chain of title between the first grantee and the
Primary conveyances. Those by means where
of the benefit or estate is created or first arises;
as distinguished from those whereby it may be en
larged, restrained, transferred, or extinguished.
The term includes feoffment, gift, grant, lease,
exchange, and partition, and is opposed to deriva
tive conveyances, such as release, surrender, confirmation, etc. 2 B1. Comm. 309.
Secondary conveyances. The name given to
that class of conveyances which presuppose some
other conveyance precedent, and only serve to en
large, confirm, alter, restrain, restore, or transfer
the interest granted by such original conveyance.
2 B1. Comm. 324. Otherwise termed "derivative
conveyances" (q. v.).
Voluntary conveyance. A conveyance without
valuable consideration; such as a deed or settle
ment in favor of a wife or children. Gentry v.
Field, 143 Mo. 399, 45 S.W. 286; Shannon v. Duf
field, 218 Ky. 770, 292 S.W. 322, 323; English v.
Brown, D.C.N.J., 219 F. 248, 256.
[Black’s Law Dictionary, Fourth Edition, pp. 402-403]
Black’s Law Dictionary, Fourth Edition, pp. 1361-1362
GRANT. To bestow; to confer, Traylor v. State, 117 Tex.Cr.R. 323, 36 S.W.2d 506, 507; upon some one other than the person or entity which makes the grant. Porto Rico Ry., Light & Power Co. v. Colom, C.C.A.Puerto Rico, 106 F.2d 345. 354.
Deed. Walker v. Deppe, 346 Mo. 354, 141 S.W. 2d 783, 785. A conveyance. Dearing v. Brush Creek Coal Co., 182 Tenn. 302, 186 S.W.2d 329, 331. Transfer of property real or personal by deed or writing. Commissioner of Internal Revenue v. Plestcheeff, C.C.A.9, 100 F.2d 62, 64, 65.
A generic term applicable to all transfers of real property, 3 Washb. Real Prop. 181, 353; including transfers by operation of law as well as voluntary transfers. White v. Rosenthal, 140 Cal. App. 184, 35 P.2d 154,155.
A transfer by deed of that which cannot be passed by livery. Williams, Real Prop. 147, 149; Jordan v. Indianapolis Water Co., 159 Ind. 337, 64 N.E. 680.
An act evidenced by letters patent under the great seal, granting something from the king to a subject. Cruise, Dig. tit. 33, 34; Downs v. United States, C.C.A.Md., 113 F. 147, 51 C.C.A. 100.
A technical term made use of in deeds of conveyance of lands to import a transfer. 3 Washb. Real Prop. 378-380.
As dlstingulshed from a mere license, a grant passes some estate or Interest, corporeal or lncorporeal. in the lands wlilch it embraces. Jamieson v. Mlllemann. 3 Duer. N.Y., 255. 258.
The term "grant." In Scotland, Is used in reference (1) to original dispositions of land, as when a lord makes grants of land among tenants: (2) to gratultous deeds. Paterson. In such case, the superlor or donor is sald to grant the deed; an expression totally unknown In English law. Mozley 8 Whltley.
By the word "grant," in a treaty, is meant not only a formal grant, but any concession, warrant, order, or permission to survey, possess, or settle, whether written or parol, express, or presumed from possession. Such a grant may be made by law, as well as by a patent pursuant to a law. Strother v. Lucas. 12 Pet. 436, 9 L.Ed. 1137: Bryan v. Kennett, 113 U.S. 179, 5 S.Ct. 413, 28 L.Ed. 908; Hastlngs v. Turnpike Co., 9 Pick., Mass., 80; Dudley v. Sumner, 5 Mass. 470.
For ofice grant, see Office.
Private land grant. A grant by a public authority vesting title to public land in a private (natural) person. United Land Ass'n v. Knight, 85 Cal. 448, 24 P. 818.
Public grant. A grant from the public; a grant of a power, license, privilege, or property, from the state or government to one or more individuals, contained in or shown by a record, conveyance, patent, charter, etc..
[Black’s Law Dictionary, Fourth Edition, pp. 1361-1362]
Black’s Law Dictionary, Fourth Edition, p. 178
BAILEE. In the law of contracts. One to whom goods are bailed; the party to whom personal property is delivered under a contract of bailment. Hotels Statler Co. v. Safier, 103 Ohio St. 638, 134 N.E. 460, 462, 22 A.L.R. 1190. A species of agent to whom something movable is committed in trust for another. Cowart v. State, 16 Ala.App. 119, 75 So. 711, 713; Smith v. State, 78 0kl.Cr. 375, 148 P.2d 206, 208.
[Black’s Law Dictionary, Fourth Edition, p. 178]
Black’s Law Dictionary, Fourth Edition, p. 1669
TRANSFER, a. An act of the parties, or of the law, by which the title to property is conveyed from one person to another. Innerarity v. Mims, 1 Ala. 669; Sands v. Hill, 55 N.Y. 18; Wallach v. Stein, 136 A. 209, 210, 103 N.J.L. 470; O'Hagan v. Kracke, 165 Misc. 4, 300 N.Y.S. 351, 361. Alienation; conveyance. 2 BLComm. 294.
[Black’s Law Dictionary, Fourth Edition, p. 1669]
Black’s Law Dictionary, Fourth Edition, p. 1669
TRANSFEREE. He to whom a transfer is made.
Kramer v. Spradlin, 148 Ga. 805, 98 S.E. 487, 488.
[Black’s Law Dictionary, Fourth Edition, p. 1669]
Black’s Law Dictionary, Fourth Edition, p. 1669
TRANSFEROR. One who makes a transfer.
[Black’s Law Dictionary, Fourth Edition, p. 1669]
Black’s Law Dictionary, Fourth Edition, pp. 1325-1326
POSSESSION. The detention and control, or the manual or ideal custody, of anything which may be the subject of property, for one's use and enjoyment, either as owner ur as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one's place and name. Act or state of possessing. That condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons. Starits v. Avery,
204 Iowa 401, 213 N.W. 769, 771; Schenk v. State, 106 Tex.Cr.R. 564, 293 S.W. 1101, 1102; State v. Compton, Mo.App., 297 S.W. 413, 414; Nevin v. Louisville Trust Co., 258 Ky. 187, 79 S.W.2d 688, 689.
In the older books, "possession" Is sometimes used as
the synonym of "seisin;" but, strictly speaking, they are
entirely- different terms. "The difference between posses-
sion and seisin is: Lessee for years is possessed, and yet
the lessor ls stlll seised; and therefore the terms of law
are that of chattels a man is possessed, whereas In feofments, gifts in tail, and leases for life he is described as
'seised. "' Noy.Max. 64.
"Possession" Is used in some of the books In the sense
of property. "A possession is an hereditament or chattel".
Finch,Law, b. 2, c. 3.
Possession of liquor which Is made unlawful Is possession under some claim of right, control, or dominion, with
knowledge of facts. Schwartz v. State, 192 Wis. 414, 212
N.W. 664, 665. Taking a drink of Intoxicating liquor on
invitation of owner thereof does not constitute criminal
"possession." Colbaugh v. U. S.. C.C.A.Ok1.. 15 F.2d 929,
931: State v. Williams. 117 Or. 238. 243 P. 563; Sizemore
v. Commonwealth, 202 Ky. 273, 259 S.W. 337, 342; Brazeale v. State. 133 Miss. 171. 97 So. 525. 526: Harness v.
State, 130 Miss. 673, 95 So.64; State v. McAllister, 187
N.C. 400, 121 S.E. 739, 740; People v. Leslie, 239 Mich. 334,
214 N.W. 128.
Actual possession. Exists where the thing
is in the immediate occupancy of the party. Simpson v. Blount, 14 N.C. 34; Field Furniture Co. v.
Community Loan Co., 257 Ky. 825, 79 S.W.2d 211,
Adverse possession. The actual, open, and no.
torious possession and enjoyment of real property, or of any estate lying in grant, continued for
a certain length of time, held adversely and in de-
nial and opposition to the title of another claim-
ant, or under circumstances which indicate an as-
sertion or color of right or title on the part of the
person maintaining it, as against another person
who is out of possession. Hall v. Lavat, 301 Mo.
675, 257 S.W. 108, 111; W. T. Carter & Bro. v.
Richardson, Tex.Civ.App., 225 S.W. 816, 817; Bax-
ter v. Girard Trust Co., 288 Pa. 256,135 A. 620, 621,
49 A.L.R. 1011; Mendel v. Poland, 200 Mich. 571,
166 N.W. 910, 912.
Chose in possession. A thing (subject of personal property) in actual possession, as distin-
guished from a "chose in action," which is not
presently in the owner's possession, but which he
has a right to demand, receive, or recover by suit.
Civil possession. In modern civil law and in
the law of Louisiana, that possession which exists
when a person ceases to reside in a house or on
the land which he occupied, or to detain the
movable which he possessed, but without intend-
ing to abandon the possession. It is the detention
of a thing by virtue of a just title and under the
conviction of possessing as owner. Civ.Code La.
art. 3429 et seq. A fiction resulting from the reg-
istry of the title of the original owner. Baldwin
Lumber Co. v. Dalferes, 138 La. 507, 70 So. 493,
499; Maisonneuve v. Dalferes, 138 La. 527, 70 So.
Constructive possession. Possession not actual
but assumed to exist, where one claims to hold
by virtue of some title, without having the actual
occupancy, as, where the owner of a tract of land,
regularly laid out, is in possession of a part, he is
constructively in possession of the whole. Fleming v. Maddox, 30 Iowa 241.
Corporeal possession. The continuing exercise
of a claim to the exclusive use of a material thing.
The elements of this possession are first, the men-
tal attitude of the claimant, the intent to possess, to appropriate to oneself; and second, the effectjve realization of this attitude. All the authorities agree that an intent to exclude others
must coexist with the external facts, and must be
fulfilled in the external physical facts in order
to constitute possession. State v. Wagoner, 123
Kan. 591,256 P. 957,958.
Derivative possession. The kind of possession
of one who is in the lawful occupation or custody
of the property, but not under a claim of title of
his own, but under a right derived from another,
as, for example, a tenant, bailee, licensee, etc.
Dispossession. The act of ousting or removing
one from the possession of property previously
held by him, which may be tortious and unlawful,
as in the case of a forcible amotion, or in pursuance of law, as where a landlord "dispossesses"
his tenant at the expiration of the term or for other cause by the aid of judicial process.
Estate in possession. An estate whereby a
present interest passes to and resides in the tenant, not depending on any subsequent circum-
stance or contingency. 2 B1.Comm. 163. An estate where the tenant is in actual pernancy, or
receipt of the rents and other advantages arising
therefrom. 2 Crabb, Real Prop. p. 958, 5 2322.
Eberts v. Fisher, 44 Mich. 551, 7 N.W. 211; Sage
v. Wheeler, 3 App.Div. 38, 37 N.Y.S. 1107.
Exclusive possession. See Exclusive Possession.
Hostile possession. This term, as applied to an
occupant of real estate holding adversely, is not
construed as implying actual enmity or ill will,
but merely means that he claims to hold the possession in the character of an owner, and therefore denies all validity to claims set up by any
and all other persons. Ballard v. Hansen, 33 Neb.
861, 51 N.W. 295; Mittet v. Hansen, 178 Wash.
541, 35 P.2d 93, 95.
Naked possession. The actual occupation of
real estate, but without any apparent or colorable
right to hold and continue such possession; spoken of as the lowest and most imperfect degree
of title. 2 B1.Comm. 195; Birdwell v. Burleson,
31 Tex.Civ.App. 31,72 S.W. 446.
Natural possession. That by which a man de-
tains a thing corporeally, as, by occupying a
house, cultivating ground, or retaining a movable
in possession; natural, possession is also defined
to be the corporeal detention of a thing which we
possess as belonging to us, without any title to
that possession or with a title which is void. Civ.
Code La. arts. 3428, 3430. Railroad Co. v. Le Ros-
en, 52 La.Ann. 192, 26 So. 854.
Open possession. Possession of real property
is said to be "open" when held without concealment or attempt at secrecy, or without being covered up in the name of a third person, or other-
wise attempted to be withdrawn from sight, but
in such a manner that any person interested can
ascertain who is actually in possession by prop-
er observation and inquiry. See Bass v. Pease, 79
Peaceable possession. See Peaceable.
Pedal possession. In establishing title by adverse possession this means actual possession;
that is, living upon or actually occupying the land,
or placing improvements directly upon it. Schaeffer v. Williams, Tex., 208 S.W. 220, 224.
Possession money. In English law. The man
whom the sheriff puts in possession of goods taken under a writ of fieri facias is entitled, while
he continues so in possession, to a certain sum of
money per diem, which is thence termed "possession money." The amount is 3s. 6d. per day if
he is boarded, or 5s. per day if he is not boarded.
Possesslon, writ of. Where the judgment in an
action of ejectment is for the delivery of the land
claimed, or its possession, this writ is used to put
the plaintiff in possession. It is in the nature of
Quasi possession. Is to a right what posses-
sion is to a thing, it is the exercise or enjoyment
of the right, not necessarily the continuous exercise, but such an exercise as shows an intention
to exercise it at any time when desired. Sweet.
Scrambling possession. By this term is meant
a struggle for possession on the land itself, not
such a contest as is waged in the courts. or possession gained by an act of trespass, such as
building a fence. Lobdell v. Keene, 85 Minn. 90,
88 N.W. 426.
Unity of possession. Joint possession of two
rights by several titles, as where a lessee of land
acquires the title in-fee-simple, which extinguishes
the lease. The term also describes one of the es-
sential properties of a joint estate, each of the ten-
ants having the entire possession as well of every
parcel as of the whole. 2 B1.Comm. 182.
Vacant possession. An estate which has been
abandoned, vacated, or forsaken by the tenant.
rhe abandonment must be complete in order to
nake the possession vacant, and, therefore, if
he tenant have goods on the premises it will not
be so considered. 2 Chitty, Bail. 177; 2 Stra. 1064
[Black’s Law Dictionary, Fourth Edition, pp. 1325-1326]
Black’s Law Dictionary, Fourth Edition, pp. 1361-1362
PRIVITY. Mutual or successive relationship to the same rights of property. 1 GreenL.Ev. § 189; Duffy v. Blake, 91 Wash. 140, 157 P. 480, 482; Haverhill v. International Ry. Co., 217 App.Div. 521, 217 N.Y.S. 522, 523. Thus, the executor is in privity with the testator, the heir with the ancestor, the assignee with the assignor, the donee with the donor, and the lessee with the lessor. Litchfield v. Crane, 8 S.Ct. 210, 123 U.S. 549, 31 L.Ed. 199.
Derivative interest founded on, or growing out of, contract, connection, or bond of union between parties; mutuality of interest. Hodgson v. Midwest Oil Co., C.C.A.Wyo., 17 F.2d 71, 75.
Private knowledge; joint knowledge with another of a private concern; cognizance implying a consent or concurrence. Taylor v. Ferroman Properties, 103 Fla. 960, 139 So. 149, 150.
In a strict and technical sense a judgment creditor does not occupy such a relation to his debtor as to fall within the meaning of the word "privity," for there is no succession to the property of the debtor until a sale under execution is had and the judgment creditor has become vested with the title thereof. But a majority of the courts have enlarged the meaning of the word, and consequently have held that there is privity between the two before there ls an actual devolution of the title of the property owned by the debtor. Buss v. Kemp Lumber Co., 23 N.M. 567, 170 P. 54, 56, L.R.A.l918C, 1015.
Privity of blood exists between an heir and his ancestor, (privity in blood inheritable,) and between coparceners. This privity was formerly of importance in the law of descent cast. Co. Litt. 271a, 242a; 2 Inst. 516; 8 Coke, 42b.
Privity of contract is that connection or relationship which exists between two or more contracting parties. It is essential to the maintenance of an action on any contract that there should subsist a privity between the plaintiff and defendant in respect of the matter sued on. Brown.
Privity of estate is that which exists between lessor and lessee, tenant for life and remainderman or reversioner, etc., and their respective assignees, and between joint tenants and coparceners. Privity of estate is required for a release by enlargement. Sweet.
[Black’s Law Dictionary, Fourth Edition, pp. 1361-1362]
In re Marshall, 102 F. 323, 324 (9th Cir. 1900)
“'Life,' said Mr. Justice Swayne in the Slaughter-House Cases, 16 Wall. 127, 21 L.Ed. 425, 'is the gift of God, and the right to preserve it is the most sacred of the rights of man. Liberty is freedom from all restraints but such as are justly imposed by law. Beyond that line lies the domain of usurpation and tyranny. Property is everything which has an exchangeable value, and the right of property includes the power to dispose of it according to the will of the owner. Labor is property, and, as such, merits protection. The right to make it available is next in importance to the rights of life and liberty. It lies, to a large extent, at the foundation of most other forms of property. ' ”
[In re Marshall, 102 F. 323, 324 (9th Cir. 1900)]
Butchers' Union Co. v. Crescent City Co., 111 U.S. 746, 757 (1884)
“It has been well said that, "The property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper." Adam Smith's Wealth of Nations, Bk. I. Chap. 10.”)
[Butchers' Union Co. v. Crescent City Co., 111 U.S. 746, 757 (1884)]
[EDITORIAL: Your labor is your property. And the money your employer deducts from your checks and sends to IRS may also be RIGHTFULLY your property. Your primary claim of right is against the employer with whom you exchanged your labor. he is the one in breach of his agreement, if anyone is. Going to the IRS to get that money back is a whole different game. They have every right to refuse to return that money to you until/unless you make a proper claim for refund. This is partly because they know the employer is the one who is liable for the theft of your money, not them.]
51 Am Jur 2d Licenses and Permits § 2
§ 2 License as contract or property right
A license is not a contract between the sovereignty and the licensee and is not property in any constitutional sense. 1Link to the text of the noteHowever, a license is a revocable interest, 2Link to the text of the noteand thus, at least in the context of jurisdiction to revoke a license, the licensee maintains a property interest in a license prior to its revocation, 3Link to the text of the noteeven where the license is allowed to lapse. 4Link to the text of the note
Samuel Adams, The Massachusetts Circular Letter, February 11, 1768
“[It is an] essential, unalterable right in nature, engrafted into the British constitution as a fundamental law, and ever held sacred and irrevocable by the subjects within the realm, that what a man has honestly acquired is absolutely his own, which he may freely give, but cannot be taken from him without his consent.”
[Samuel Adams, The Massachusetts Circular Letter, February 11, 1768;
Windsor v. McVeigh, 93 U.S. 274, 277 (1876)
“*277 There were several libels of information filed against the property of the plaintiff at the same time with the one here mentioned. They were identical in their allegations, except as to the property seized, and the same motion to strike from the files the appearance, claim, and answer of the respondent was made in each case, and on the same day, and similar orders were entered and like decrees of condemnation. One of these was brought here, and is reported in the 11th of Wallace. In delivering the unanimous opinion of this court, upon reversing the decree in the case, and referring to the order striking out the claim and answer, Mr. Justice Swayne said: "The order in effect denied the respondent a hearing. It is alleged he was in the position of an alien enemy, and could have no locus standi in that forum. If assailed there, he could defend there. The liability and right are inseparable. A different result would be a blot upon our jurisprudence and civilization. We cannot hesitate or doubt on the subject. It would be contrary to the first principles of the social compact and of the right administration of justice." 11 Wall. 267.
The principle stated in this terse language lies at the foundation of all well-ordered systems of jurisprudence. Wherever one is assailed in his person or his property, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.
That there must be notice to a party of some kind, actual or constructive, to a valid judgment affecting his rights, is admitted. Until notice is given, the court has no jurisdiction in any case to proceed to judgment, whatever its authority may be, by the law of its organization, over the subject matter. But notice is only for the purpose of affording the party an opportunity of being heard upon the claim or the charges made; it is a summons to him to appear and speak, if he has any thing to say, why the judgment sought should not be rendered. A denial to a party of the benefit of a notice would be in effect to 278*278 deny that he is entitled to notice at all, and the sham and deceptive proceeding had better be omitted altogether. It would be like saying to a party, Appear, and you shall be heard; and, when he has appeared, saying, Your appearance shall not be recognized, and you shall not be heard. In the present case, the District Court not only in effect said this, but immediately added a decree of condemnation, reciting that the default of all persons had been duly entered. It is difficult to speak of a decree thus rendered with moderation; it was in fact a mere arbitrary edict, clothed in the form of a judicial sentence.
The law is, and always has been, that whenever notice or citation is required, the party cited has the right to appear and be heard; and when the latter is denied, the former is ineffectual for any purpose. The denial to a party in such a case of the right to appear is in legal effect the recall of the citation to him. The period within which the appearance must be made and the right to be heard exercised, is, of course, a matter of regulation, depending either upon positive law, or the rules or orders of the court, or the established practice in such cases. And if the appearance be not made, and the right to be heard be not exercised, within the period thus prescribed, the default of the party prosecuted, or possible claimants of the property, may, of course, be entered, and the allegations of the libel be taken as true for the purpose of the proceeding. But the denial of the right to appear and be heard at all is a different matter altogether.”
[Windsor v. McVeigh, 93 U.S. 274, 277 (1876)]
Billings v. Hall, 7 Cal. 1 (1857)
"Nothing can be more clear, upon principles of law and reason, than that a law which denies to the owner of land, a remedy [*10] to recover the possession of it, when withheld by any person, however innocently he may have obtained it; or to recover the profits received from it by the occupant; or which clogs his recovery of such possession and profits, by conditions and restrictions tending to diminish the value and amount of the thing recovered, impairs his right [**20] to, and interest in, the property. If there be no remedy to recover the possession, the law necessarily presumes a want of right to it. If the remedy afforded be qualified and restrained, by conditions of any kind, the right of the owner may indeed subsist, and be acknowledged, but it is impaired, and rendered insecure, according to the nature and extent of such restrictions." (8 Wheat. 75.)
Such legislation is repugnant to the plainest principles of morality and justice, and is violative of the spirit and letter of our Constitution. It divests vested rights, attempts to take the property acquired by the honest industry of one man, and confer it upon another, who shows no meritorious claim in himself.
It has been erroneously supposed, by many, that the Legislature of a State might do any Act, except what was expressly prohibited by the Constitution. Whether there is any restriction upon legislative power, irrespective of the Constitution, is a question upon which ethical and political writers have differed. Many of the ancient writers have based this claim of omnipotence upon the doctrine of the absolute and sacred character of sovereignty, assuming that princes bear [**21] rule by divine right, and not by virtue of the expressed or tacit consent of the governed. Some contend that the very existence of government depends upon the supreme power being lodged in some branch of the Government, from which there is no appeal, and, if laws are passed which are immoral, or violate the principles of natural justice, the subject is bound to obey them. Others contend that there are boundaries set to the exercise of the supreme sovereign power of the State, that it is limited in its exercise by the great and fundamental principles of the social compact, which is founded in consent, express or implied; that it shall be called into existence for the great ends which that compact was designed to secure, and, hence, it cannot be converted into such an unlimited power, as to defeat the end which mankind had in view, when they entered into the social compact.
Among the advocates of the former system are Paley and Burke, and of the latter, Vattel and Locke. Locke contends "that the great end of man's entering into society being the enjoyment of property in peace and safety, and the great instrument and means of that being the laws established in that society, the first [**22] and fundamental positive law is the establishing of the legislative power; the first and fundamental natural law which is to govern the Legislature itself, is the preservation of the society, and so far as consistent with public good, every [*11] person in it. While on the one hand, he concedes the doctrine that the legislative power is not only the supreme power of the commonwealth, but sacred and unalterable in the hands where the community have placed it, the edict of any, in what form soever conceived, or by what power soever backed, cannot have the force and obligation of a law without the sanction of the Legislature, which the public has chosen and appointed and in whom the legislative power is invested by the consent of those for whom they are to legislate; on the other hand, he contends that though the legislative be the supreme power, it cannot possibly be absolutely arbitrary over the lives and fortunes of the people. For, it being but the joint power of every member of society, given up to that person or assembly which is the legislative, it can be no more than those persons had in a state of nature before they entered into society, and gave up their natural rights [**23] to the community; for nobody can transfer to another more power than he has in himself, and nobody has an absolute, arbitrary power over himself or over any other, to destroy his own life, or to take away the life or property of another. A man cannot subject himself to the arbitrary power of another, and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law gave him for the preservation of himself and the rest of mankind, this is all that he doth or can give to the commonwealth, and by it to the legislative power; so that the Legislature can have no more than this. Their power, in the utmost bounds of it, is limited to the public good of the society. It is a power that hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subject. Thus, the law of nature stands as an eternal rule to all men, binding upon legislatures as well as others. The fundamental law of nature being the preservation of mankind, no human sanction can be valid or good against it. That the legislative or supreme authority cannot assume to itself a power to rule by temporary [**24] arbitrary decrees; but is bound to dispense justice, and to decide the rights of the subject, by promulgated standing laws, and known authorized judges. To avoid the inconveniences which disorder men's property in a state of nature, they unite in societies. The object of this union is, that they may have the united strength of the whole to secure and defend their property, and may have standing rules to bound it, by which every one may know what is his. It is to this end men give up their natural powers to society, which puts the legislative powers into such hands as they think fit with this trust; that they shall be governed by declared laws. Absolute arbitrary powers, or governing without settled standing laws, can neither of them, consist with the ends of society and government; and men would not quit the freedom of a state of nature, [*12] and tie themselves up under a government, were it not to preserve their lives, liberty, and fortunes, by stated rules of right and property. It cannot be supposed that they should intend, had they the power to do so, to give any one or more an absolute, arbitrary power over their persons and estates. For this were to put themselves in a [**25] worse condition than a state of nature, wherein they had the liberty to defend their rights against the injuries of others, and were upon equal terms; whereas, by supposing that they have given up themselves to the absolute, arbitrary power of the legislator, they have disarmed themselves, and armed him to make a prey of them when he pleases. The supreme power cannot take from any man his property without his own consent, for the preservation of property being the end of government, and that for which men enter into society, it necessarily supposes and requires that the people should have property and be protected in it, without which they must be supposed to lose by entering into society, the very thing which was the end and design of the social compact to secure, and for the attainment of which they entered into it. If this position be true, it was fallacious to think that the supreme or legislative power of any commonwealth can do what it will, irrespective of the principles of natural justice, or dispose of the estates of the subjects arbitrarily, or divest vested rights at pleasure."
In England, the doctrine of parliamentary omnipotence has often been asserted; but, notwithstanding [**26] the declaration of Lord Coke, "that the power and jurisdiction of Parliament is so transcendental and absolute, that it cannot be controlled or confined, either for person or cause, within any bounds," it has been doubted by learned judges whether an Act which contravened the principles of natural justice could be upheld, and whether Parliament could make a man a judge in his own case. This doctrine has undergone some modification in England.
"It is undoubtedly true," says Mr. Smith, in his Commentaries on Statutory and Constitutional Construction, p. 255, "that the Parliament of England, notwithstanding the doctrine of its omnipotence, certainly in modern times, has been greatly restrained by the force of public opinion, from interfering with or divesting vested rights. It has not, in fact dissolved in an arbitrary manner any corporation, since the instance of the suppression of the order of Knights Templar, in the time of Edward II., which was in the early part of the fourteenth century; and of the religious houses in the reign of Henry VIII.; so that the doctrine that the power of Parliament is omnipotent, may at this time be considered as resting mainly on theory. When, in 1783, [**27] a bill was introduced into Parliament, by Mr. Fox, for the purpose of annulling the charter of the East India Company, it was successfully resisted by Mr. Pitt, Lord Thurlow, and others, as being [*13] subversive of the law and constitution of the country; mainly on the ground that the Act was a tyrannical one, which broke through every rule of British justice, being an attack upon a most solemn charter, affirmed and confirmed by the sacred faith of Parliament. It broke through all those ties which bind man to man; was fraught with the most pointed mischief against national honor and legislative integrity, and its passage would take away all security to individuals that private property would not be destroyed by legislative tyranny."
Whatever doubt may have formerly existed on this subject, the question has been settled, by an overwhelming weight of authority, in this country, that the spirit of free institutions is at war with such a principle.
In the case of Taylor v. Porter, 4 Hill. 140, Judge Bronson, one of the ablest judges that has ever adorned the bench of this or any other country, after admitting the right to take private property for public use, [**28] held HN9 "that there was no provision in the Constitution that just compensation should be made to the owner, when his property is taken for private purposes. If the power exists to take the property of one man, and transfer it to another, it may be exercised without any reference to compensation. The power of making bargains for individuals has not been delegated to any branch of the government, and if the title of A can be, without his fault, transferred to B, it may as well be done without, as with consideration. This view of the question was sufficient to put them on inquiring where can the power be found to pass such a law as that under which the defendant attempted to justify? It is not to be presumed that such a power exists, and those who set it up should tell us where it may be found. Under our form of government, the Legislature is not supreme. It is only one of the organs of that absolute sovereignty which resides in the whole body of the people; like other departments of government, it can only exercise such powers as have been delegated to it, and when it steps beyond that boundary, its acts, like those of the most humble magistrate in the State, who transcends his jurisdiction, [**29] are utterly void."
Where then shall we find a delegation of power to take the property of A and give it to B, either with or without compensation?
Only one clause in the Constitution can be cited in support of the power, and that is the first section of the first article, where the people have declared that HN10 "the legislative power of the State shall be vested in a Senate and Assembly." He admitted that the two houses, subject only to the qualified negative of the Governor, possessed all "the legislative power of the State;" but the question immediately presents itself, what is "legislative power," and how far does it extend? Does it reach the life, liberty, or property of the citizen, who is not charged with transgression [*14] of the laws, and where the sacrifice is not demanded by a just regard for the public welfare. The security of life, liberty, and property lies at the very foundation of the the social compact; and to say that this grant of "legislative power" includes the right to attack private property, is equivalent to saying that the people have delegated to their servants the power of defeating one of the great ends for which governments were established. If there [**30] was not one word of qualification in the whole instrument, he should feel great difficulty in bringing his mind to the conclusion that the clause under consideration had clothed the Legislature with despotic power; such is the extent of their authority, if they can take the property of A, either with or without compensation, and give it to B. "The legislative power of the State does not reach to such an unwarrantable extent. Neither life, liberty, nor property, except when forfeited by crime, or when the latter is taken for public use, falls within the scope of this power."
In the case of Wilkinson v. Leland, 2 Pet. 657, Judge Story says, HN11 "that government can scarcely be deemed free where the rights of property are left solely dependent on the legislative body, without any restraint. The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred." And Judge Mills, in Fisher v. Cockerill, (5 Mon. 129,) says: "It is so repugnant to the moral sense of every correct man, that the Legislature should delude, or intend to entice, the individuals of a community by presenting [**31] to them rights against other individuals, under prescribed rules, and after the pursuit is undertaken and drawn to a close, at great expense, to snatch away the right, and leave the pursuer to pay the cost of the pursuit, that it might be argued, and with some plausibility, that such a delegation of power was not within the terms of the compact, that it is a right never ceded to any department of the government by the people when they gave the delegated powers which they have conferred by the Constitution."
Other authorities might be cited to the same effect, but they are so numerous that it would require a volume to contain them. Having, as we think, satisfactorily established the doctrine, that HN12 the Legislature cannot pass a law divesting vested rights, we apprehend no difficulty in maintaining the proposition that the act under advisement has this effect; and if a law which imposes upon a party, as a condition of the recovery of his property, payment for the improvements which were his already, or denies him the rents and profits of the land, can be upheld, then an Act which divests the right entirely could be maintained, as we see no difference in the principle between taking a [**32] part and taking the whole.
Our attention has been called to numerous cases decided by [*15] the tribunals of other States. We have examined them all, and without referring to them especially, believe that we are warranted in saying that there is no case to be found like the present; that the laws upon which those decisions were made provided alone for the case of a party who had entered innocently upon lands, believing he had a good title; that in some of these cases no constitutional objection was urged; that in many, it was not claimed that the law had a retrospective action; and that in none was it held that the Legislature could authorize one man to intrude upon the lands of another, or offer a premium to fraud and violence. The object of all the statutes which we have seen on this subject, was to allow the defendant the benefit of his equities in an action of ejectment, instead of driving him to a Court of Chancery.
The policy of most of the States has been to encourage settlement in good faith upon vacant lands as a means of developing agricultural interests, and the wisdom of that policy has manifested itself in the rapid growth of the West and Southwest.
However desirable [**33] such a policy may be, and however necessary to the interest of this State, it ought not to be encouraged or maintained when founded in wrong and injustice to her citizens. It is a law as immutable as those of nature, that States and nations, like individuals, are bound to obey the principles of natural justice in all their dealings with their subjects and others, and while a seeming temporary prosperity may follow the infractions of this rule, the day of retribution must come as certainly as effect follows cause.
It has become common in our Courts to denounce titles similar to the one under which the plaintiff claims, and it is useless to disguise the fact, that they are unpopular with the people at large, owing, probably, to the circumstance that many grants have been forged for the purpose of covering improvements made in good faith; but this prejudice should be confined to such fraudulent grants, and ought not to be extended to all alike. The decisions of this Court prior to the decision of the Fremont case by the Supreme Court of the United States, have prevented the holders of bona fide titles from commencing suits for the recovery of their property, and it would be a great [**34] wrong to hold that they had lost their rights for not doing what the law had previously held they could not do. In the present case, there is no pretence of fraud. The early pioneers of California, who encountered so many dangers and privations in settling this country and developing its wealth and resources; who have laid the foundation of a new empire, and opened to the world a new field of wealth and enterprise, would have cause to complain of injustice, and to denounce the fairness and policy of a government which took from them the honest acquisitions of toil and danger [*16] to enrich needy adventurers, upon the shallow pretext of policy, and under the false assumption of legislative omnipotence.
Judgment reversed, and new trial ordered.
[Billings v. Hall, 7 Cal. 1 (1857)]
Van Brocklin v. State of Tennessee, 117 U.S. 151 (1886)]
“’This provision authorizes the United States to be and become a land-owner, and prescribes the mode in which the lands may be disposed of, and the title conveyed to the purchaser. Congress is to make the needful rules and regulations upon this subject. The title of the United States can be divested by no other power, by no other means, in no other mode, than that which congress shall sanction and prescribe. It cannot be done by the action of the people or legislature of a territory or state.' And he supported this conclusion by a review of all the acts of congress under which states had theretofore been admitted. Mr. Webster said that those precedents demonstrated that 'the general idea has been, in the creation of a state, that its admission as a state has no effect at all on the property of the United States lying within its limits;' and that it was settled by the judgment of this court in Pollard v. Hagan, 3 How. 212, 224, 'that the authority of the United States does so far extend as, by force of itself, Proprio vigore, to exempt the public lands from taxation when new states are created in the territory in which the lands lie.' 21 Cong. Globe, 31st Cong. 1st Sess. p. 1314; 22 Cong. Globe, pp. 848 et seq., 960, 986, 1004; 5 Webst. Works, 395, 396, 405.”
[Van Brocklin v. State of Tennessee, 117 U.S. 151 (1886)]
The Antelope, 23 U.S. 66; 10 Wheat 66; 6 L.Ed. 268 (1825)]
“Every man has a natural right to the fruits of his own labor [as absolutely owned PRIVATE property], is generally admitted; and no other person can rightfully deprive him of those fruits, and appropriate them against his will…”
[The Antelope, 23 U.S. 66; 10 Wheat 66; 6 L.Ed. 268 (1825)]
Lynch v. Household Finance Corp., 405 U.S. 538 (1972)
“"It cannot be doubted that among the civil rights intended to be protected from discriminatory state action by the Fourteenth Amendment are the rights to acquire, enjoy, own and dispose of property. Equality in the enjoyment of property rights was regarded by the framers of that Amendment as an essential pre-condition to the realization of other basic civil rights and liberties which the Amendment was intended to guarantee." Shelley v. Kraemer, 334 U.S. 1, 10. See also, Buchanan v. Warley, 245 U.S. 60, 74-79; H. Flack, The Adoption of the Fourteenth Amendment 75-78, 81, 90-97 (1908); J. tenBroek, The Antislavery Origins of the Fourteenth Amendment (1951). ”
[. . .]
“The broad concept of civil rights embodied in the 1866 Act and in the Fourteenth Amendment is unmistakably evident in the legislative history of § 1 of the Civil Rights Act of 1871, 17 Stat. 13, the direct lineal ancestor of §§ 1983 and 1343(3). Not only was § 1 of the 1871 Act derived from § 2 of the 1866 Act, but the 1871 Act was passed for the express purpose of "enforc[ing] the Provisions of the Fourteenth Amendment." 17 Stat. 13. And the rights that Congress sought to protect in the Act of 1871 were described by the chairman of the House Select Committee that drafted the legislation as "the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety." Cong. Globe, 42d Cong., 1st Sess., App. 69 (1871) (Rep. Shellabarger, quoting from Corfield v. Coryell, 6 F. Cas. 546, 551-552 (No. 3230) (CCED Pa.)). That the protection of property as well as personal rights was intended is also confirmed by President Grant's message to Congress urging passage of the legislation, and by the remarks of many members of Congress during the legislative debates.”
[. . .]
“Such difficulties indicate that the dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a "personal" right, whether the "property" in question be a welfare check, a home, or a savings account. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized. J. Locke, Of Civil Government 82-85 (1924); J. Adams, A Defence of the Constitutions of Government of the United States of America, in F. Coker, Democracy, Liberty, and Property 121-132 (1942); 1 W. Blackstone, Commentaries *138-140. Congress recognized these rights in 1871 when it enacted the predecessor of §§ 1983 and 1343(3). We do no more than reaffirm the judgment of Congress today.”
[Lynch v. Household Finance Corp., 405 U.S. 538 (1972)]
[EDITORIAL: CIVIL rights are STATUTORY privileges. Constitutional rights are not privileges and cannot be taken away without the consent of the absolute owner, who is always a human being. See:
Why Statutory Civil law is Law for Government and Not Private Persons, Form #05.037
Brushaber v. Union Pac. R.R, 240 U.S. 1, 16 (1916)
“. . .the classification of direct was adopted for the purpose of rendering it impossible to burden by taxation accumulations of property, real or personal, except subject to the regulation of apportionment, it was held that the duty existed to fix what was a direct tax in the constitutional sense so as to accomplish this purpose contemplated by the Constitution. ( 157 U.S. 581.)”
[Brushaber v. Union Pac. R.R, 240 U.S. 1, 16 (1916)]
[EDITORIAL: What they mean is PRIVATE property. Government can and does tax PUBLIC property all the time. Civil statuses of "citizen", "resident", and "person" are their creation and public property. See:
Hierarchy of Sovereignty: The Power to Create is the Power to Tax, Family Guardian Fellowship
That is the main and only way they can institute an excise tax to begin with. See the next case cite for proof.]
Union Elec. Co. v. U.S., 363 F.3d. 1292, 1304 (Fed. Cir. 2004)
“We conclude that an excise tax (in contradistinction to a direct tax) is a tax imposed on the acquisition, ownership, or use of particular kinds of categories of [PUBLIC] property that falls short of being a general tax on the whole of an individual's personal property.”
[Union Elec. Co. v. U.S., 363 F.3d. 1292, 1304 (Fed. Cir. 2004)]
Budd v. People of State of New York, 143 U.S. 517 (1892)
“Men are endowed by their Creator with certain unalienable rights,-'life, liberty, and the pursuit of happiness;' and to 'secure,' not grant or create, these rights, governments are instituted. That property [or income] which a man has honestly acquired he retains full control of, subject to these limitations:
 First, that he shall not use it to his neighbor's injury, and that does not mean that he must use it for his neighbor's benefit [e.g. SOCIAL SECURITY, Medicare, and every other public “benefit”];
 second, that if he devotes it to a public use, he gives to the public a right to control that use; and
 third, that whenever the public needs require, the public may take it upon payment of due compensation.”
[Budd v. People of State of New York, 143 U.S. 517 (1892) ]
American Jurisprudence 2d, United States, §45 (1999)
“A claim against the United States is a right to demand money from the United States.  Such claims are sometimes spoken of as gratuitous in that they cannot be enforced by suit without statutory consent.  The general rule of non-liability of the United States does not mean that a citizen cannot be protected against the wrongful governmental acts that affect the citizen or his or her property. If, for example, money or property of an innocent person goes into the federal treasury by fraud to which a government agent was a party, the United States cannot [lawfully] hold the money or property against the claim of the injured party. ”
[American Jurisprudence 2d, United States, §45 (1999)]
United States ex rel. Angarica v. Bayard, 127 U.S. 251, 32 L.Ed. 159, 8 S.Ct. 1156, 4 AFTR 4628 (holding that a claim against the Secretary of State for money awarded under a treaty is a claim against the United States); Hobbs v. McLean, 117 U.S. 567, 29 L.Ed. 940, 6 S.Ct. 870; Manning v. Leighton, 65 Vt. 84, 26 A 258, motion dismd 66 Vt. 56, 28 A 630 and (disapproved on other grounds by Button’s Estate v. Anderson, 112 Vt. 531, 28 A.2d. 404, 143 A.L.R. 195).
 Blagge v. Balch, 162 U.S. 439, 40 L.Ed. 1032, 16 S.Ct. 853.
 Wilson v. Shaw, 204 U.S. 24, 51 L.Ed. 351, 27 S.Ct. 233.
 Bull v. United States, 295 U.S. 247, 79 L.Ed. 1421, 55 S.Ct. 695, 35-1 USTC ¶ 9346, 15 AFTR 1069; United States v. State Bank, 96 U.S. 30, 96 Otto 30, 24 L.Ed. 647.
“When the Government has illegally received money which is the property of an innocent citizen and when this money has gone into the Treasury of the United States, there arises an implied contract on the part of the Government to make restitution to the rightful owner under the Tucker Act and this court has jurisdiction to entertain the suit.
90 Ct.Cl. at 613, 31 F.Supp. at 769.”
[Gordon v. U. S., 227 Ct.Cl. 328, 649 F.2d. 837 (Ct.Cl., 1981)]
California Civil Code, Section 2224
California Civil Code
“One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he or she has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it.”
U.S. v. Kagama & Another, Indians, 118 U.S. 375 (1886)
"But these Indians are within the geographical limits of the United States. The soil and the people within these limits are under the political control of the government of the United States, or of the states of the Union. There exists within the broad domain of sovereignty but these two. There may be cities, counties, and other organized bodies, with limited legislative functions, but they are all derived from, or exist in, subordination to one or the other of these. The territorial governments owe all their powers to the statutes of the United States conferring on them the powers which they exercise, and which are liable to be withdrawn, modified, or repealed at any time [118 U.S. 375, 380] by congress. What authority the state governments may have to enact criminal laws for the Indians will be presently considered. But this power of congress to organize territorial governments, and make laws for their inhabitants, arises, not so much from the clause in the constitution in regard to disposing of and making rules and regulations concerning the territory and other property of the United States, as from the ownership of the country in which the territories are, and the right of exclusive sovereignty which must exist in the national government, and can be found nowhere else." Murphy v. Ramsey, 114 U.S. 44 ; S. C. 5 Sup. Ct. Rep. 747.
[U.S. v. Kagama & Another, Indians, 118 U.S. 375 (1886)]
“The United States, we have held, cannot, as against the claim of an innocent party, hold his money which has gone into its treasury by means of the fraud of its agent. While here the money was taken through mistake without element of fraud, the unjust retention is immoral and amounts in law to a fraud of the taxpayer's rights. What was said in the State Bank Case applies with equal force to this situation. ‘An action will lie whenever the defendant has received money which is the property of the plaintiff, and which the defendant is obligated by natural justice and equity to refund. The form of the indebtedness or the mode in which it was incurred is immaterial.“
[Bull v. United States, 295 U.S. 247, 261, 55 S.Ct. 695, 700, 79 L.Ed. 1421]
The final question is whether the Government's action constituted a "taking" of petitioners' property interests within the meaning of the Fifth Amendment. Before the United States compelled Rice to transfer the hulls and all materials held for future use in building the boats, petitioners had valid liens under Maine law against both the hulls and whatever unused materials which petitioners had furnished. Before transfer these liens were enforceable by attachment against both the hulls and all materials. After transfer to the United States the liens were still valid, United States v. Alabama, 313 U. S. 274, 281-282, but they could not be enforced because of the sovereign immunity of the Government and its property from suit.The result of this was a destruction of all petitioners' property rights under their liens, although, as we have pointed out, the liens were valid and had compensable value. Petitioners contend that destruction of 47*47 their liens under the circumstances here is a "taking." The United States denies this, largely on the premise that inability of petitioners to enforce their liens because of immunity of the Government and its property from suit cannot amount to a "taking."
The Government argues that the Ansonia case is dispositive of this Fifth Amendment issue. In that case, the contract between the shipbuilder and the United States provided, as to one of the ships contracted for, the dredge Benyuard, that as progress payments were made, the portion of the work paid for should become the property of the United States. Subcontractors claimed liens on the uncompleted vessel under the Virginia supply-lien law. This Court merely held that, as the property had passed to the United States by virtue of the terms of the contract, no lien could be enforced against it. No question was raised as to the rights possessed by the subcontractors prior to the acquisition of title by the United States nor as to whether that event entitled them to just compensation under the Fifth Amendment. There is, to be sure, reason to believe that the subcontractors' liens in that case, like those of petitioners here, did attach as soon as materials were furnished, which would necessarily be prior to the making of a progress payment for the portion of the work incorporating those materials and the consequent passage of title to the United States. See Hawes & Co. v. Trigg Co.,110 Va. 165, 185-186, 199, 65 S. E. 538, 546-547, 551-552. But the Fifth Amendment question was not raised or passed upon. In these circumstances we cannot regard the court's decision as dispositive on the precise point now under consideration, and must proceed to decide that question.
48*48 We hold that there was a taking of these liens for which just compensation is due under the Fifth Amendment. It is true that not every destruction or injury to property by governmental action has been held to be a "taking" in the constitutional sense. Omnia Commercial Co. v. United States, 261 U. S. 502, 508-510. This case and many others reveal the difficulty of trying to draw the line between what destructions of property by lawful governmental actions are compensable "takings" and what destructions are "consequential" and therefore not compensable. See, e. g., United States v. Central Eureka Mining Co., 357 U. S. 155; United States v. Causby, 328 U. S. 256; United States v. General Motors Corp., 323 U. S. 373; United States v. Sponenbarger, 308 U. S. 256; Pennsylvania Coal Co. v. Mahon, 260 U. S. 393; Louisville & Nashville R. Co. v. Mottley, 219 U. S. 467; Legal Tender Cases, 12 Wall. 457, 551.
The total destruction by the Government of all value of these liens, which constitute compensable property, has every possible element of a Fifth Amendment "taking" and is not a mere "consequential incidence" of a valid regulatory measure. Before the liens were destroyed, the lienholders admittedly had compensable property. Immediately afterwards, they had none. This was not because their property vanished into thin air. It was because the Government for its own advantage destroyed the value of the liens, something that the Government could do because its property was not subject to suit, but which no private purchaser could have done. Since this acquisition was for a public use, however accomplished, whether with an intent and purpose of extinguishing the liens or not, the Government's action did destroy them 49*49 and in the circumstances of this case did thereby take the property value of those liens within the meaning of the Fifth Amendment. Neither the boats' immunity, after being acquired by the Government, from enforcement of the liens nor the use of a contract to take title relieves the Government from its constitutional obligation to pay just compensation for the value of the liens the petitioners lost and of which loss the Government was the direct, positive beneficiary.
The Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. A fair interpretation of this constitutional protection entitles these lienholders to just compensation here. Cf. Thibodo v. United States, 187 F. 2d 249.
The judgment is reversed and the cause is remanded to the Court of Claims for further proceedings to determine the value of the property taken.
Reversed and remanded.
[Armstrong v. United States, 364 US 40 (1960)]
[This is a HUGELY important ruling, because it says that the govermment implicitly waives sovereign immunity when it takes your property of any kind, including for tax collection]
Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987)
“We have repeatedly held that, as to property reserved by its owner for private use, "the right to exclude [others is] `one of the most essential sticks in the bundle of rights that are commonly characterized as property.' " Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433 (1982), quoting Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979). “
[Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987)]
Kaiser Aetna v. United States, 444 U.S. 164 (1979)
“In this case, we hold that the "right to exclude," so universally held to be a fundamental element of the property right, falls within this category of interests that the Government cannot take without compensation.”
[Kaiser Aetna v. United States, 444 U.S. 164 (1979)]
 See, e. g., United States v. Pueblo of San Ildefonso, 206 Ct.Cl. 649, 669-670, 513 F.2d. 1383, 1394 (1975); United States v. Lutz,295 F.2d. 736, 740 (CA5 1961). As stated by Mr. Justice Brandeis, "[a]n essential element of individual property is the legal right to exclude others from enjoying it." International News Service v. Associated Press, 248 U.S. 215, 250 (1918) (dissenting opinion).
“It is not open to question that one who has acquired rights of property necessarily based upon a statute may not attack that statute as unconstitutional, for he cannot both assail it and rely upon it in the same proceeding. *528 Hurley v. Commission of Fisheries, 257 U.S. 223, 225, 42 S.Ct. 83, 66 L.Ed. 206.”
[Frost v. Corporation Commission, 278 U.S. 515, 49 S.Ct. 235 (U.S., 1929)]
Readings on the History and System of the Common Law, Second Edition, Rosco Poung, 1925, p. 543
“How, then, are purely equitable obligations created? For the most part, either by the acts of third persons or by equity alone. But how can one person impose an obligation upon another? By giving property to the latter on the terms of his assuming an obligation in respect to it. At law there are only two means by which the object of the donor could be at all accomplished, consistently with the entire ownership of the property passing to the donee, namely: first, by imposing a real obligation upon the property; secondly, by subjecting the title of the donee to a condition subsequent. The first of these the law does not permit; the second is entirely inadequate. Equity, however, can secure most of the objects of the doner, and yet avoid the mischiefs of real obligations by imposing upon the donee (and upon all persons to whom the property shall afterwards come without value or with notice) a personal obligation with respect to the property; and accordingly this is what equity does. It is in this way that all trusts are created, and all equitable charges made (i.e., equitable hypothecations or liens created) by testators in their wills. In this way, also, most trusts are created by acts inter vivos, except in those cases in which the trustee incurs a legal as well as an equitable obligation. In short, as property is the subject of every equitable obligation, so the owner of property is the only person whose act or acts can be the means of creating an obligation in respect to that property. Moreover, the owner of property can create an obligation in respect to it in only two ways: first, by incurring the obligation himself, in which case he commonly also incurs a legal obligation; secondly, by imposing the obligation upon some third person; and this he does in the way just explained.”
[Readings on the History and System of the Common Law, Second Edition, Roscoe Pound, 1925, p. 543]
Bouvier’s Maxims of Law, 1856
Quando duo juro concurrunt in und personâ, aequum est ac si essent in diversis.
When two rights [public right v. private right] concur in one person, it is the same as if they were two separate persons. 4 Co. 118.
[Bouvier’s Maxims of Law, 1856;
Bouvier’s Maxims of Law, 1856
“Quod meum est sine me auferri non potest.
What is mine cannot be taken away without my consent. Jenk. Cent. 251. Sed vide Eminent Domain.
Id quod nostrum est, sine facto nostro ad alium transferi non potest.
What belongs to us cannot be transferred to another without our consent. Dig. 50, 17, 11. But this must be understood with this qualification, that the government may take property for public use, paying the owner its value. The title to property may also be acquired, with the consent of the owner, by a judgment of a competent tribunal.”
[Bouvier’s Maxims of Law, 1856;