LAW OF PERSONAL PROPERTY

CHAPTER I

PROPERTY RIGHTS

In dealing with the subject of Personal Property, it is important for the student to remember that the word property is herein used as an abstract term and means ownership, or right of dominion, though in popular speech it is invariably used to denote the concrete object over which ownership is asserted. Bearing this in mind, personal property may be defined as the sum total of all the legal rights of men to the acts and forbearances of their fellowmen as respects all external things capable of ownership, except freehold estates in land, heirlooms, and fixtures.

§ 1. Property Rights Classified. By legal right is meant the conduct which one person is entitled, by authority of the State, to enforce from another or others. It may arise by contract, or without any contract. It may be a right to have another do some positive act, as in contracts and quasi-contracts; or it may be a right to have another refrain from doing something that would violate the right to life, liberty, or property, when correlative to the right there is a duty. In the above cases the right of one person to control another's conduct exists prior to any violation of such rights, and is, therefore, called an antecedent right. But the moment anyone's antecedent right is violated, there arises a new remedial legal right to redress either by way of restoration or compensation. A legal wrong disturbs the equilibrium of antecedent rights, and the person injured

Copyright, 1912, by American School of Correspondence.

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has a right to have the same re-established by the power of the State. This is what makes an antecedent right a legal right. A legal right may be a right against all the world, as is true of the rights of life, liberty, reputation, family, and most property rights, in which case it is called a right in rem; or it may be a right against some particular individual, as is true of the right to the performance of a promise, of a quasi-contract, and of a remedial right, in which case it is called a right in personam. The antecedent legal rights known to the law may be in rem or in personam, and are the rights of life, liberty, reputation, the exercise of one's calling, family, property; and the right to the performance of a contract and a quasi-contract, both in personam, and also forms of property rights. The remedial rights known to the law are preventive and redressive, and redressive remedies are restorative and compensatory.1

Property rights are generally in rem, or universal, and require from all others forbearance with respect to them; but they include also rights in personam. Property rights are divided into personal property rights and real property rights, or more briefly personal property and real property, a division which is based upon the objects to which the rights relate, real property relating to freehold estates in land, heirlooms, and fixtures; and personal property relating to everything else which is capable of ownership, both corporeal things and incorporeal things. Personal property, as may be seen from the definition and the discussion above, is a legal right which is resolvable into four elements: (1) The acts and forbearances to which it entitles the holder to exact from another or others; that is, the nature, limitations, and extent of the right. (2) The objects to which the right relates. (3) The person or persons in whom the right resides, or who own the right. (4) The person or persons who are under obligation or duty as respects such acts and forbearances for the benefit of the owner of the right. We shall treat these elements in order. Personal property may be created by any one of 1 Willis on Contracts 1-7; Willis on Damages 14-19.

various methods of original acquisition, or by any one of various methods of secondary acquisition; all of which will be alluded to, and such as will not receive separate treatment elsewhere in this work, will be discussed. Last of all the violations of the rights of personal property will be treated.

Term "Property" Loosely Used. Property in its primary and true meaning denotes the right to certain acts or forbearances from others as respects certain objects of ownership; but the term is sometimes inaccurately applied to these objects of ownership themselves. For example: A, a farmer, is the owner of cattle, horses, sheep, swine, poultry, machinery, harnesses, vehicles, furniture, and many other corporeal things, besides insurance, promissory notes, perhaps some railway stock, or stock in a creamery, debts against parties who have bought hay, butter, animals, and other farm produce from him, and other incorporeal things either without any physical evidence thereof (as in the case of the right to the services of his hired man), or with such evidence (as in the case of the promissory notes). The chances are that the farmer would say that all of these things are his personal property, and roughly speaking there is no objection to his statement; but in the legal and true sense these are only the objects of his personal property. His rights, known as personal property, not only relate to these corporeal and incorporeal objects, but they also include the power, backed up by the State, to compel some particular fellowmen to do some particular acts with respect to such things, or to compel all of his fellowmen to refrain from doing certain things with respect to such things; and it is the conduct that he can require that is the principal element of value in his right of personal property, and it is the failure to give the conduct to which he is entitled which constitutes a violation of his right of personal property and gives him a right to sue at law.

§ 2. Rights to Acts and Forbearances. The personal

2 Campbell v. Holt, 115 U. S. 620; Wynehamer v. The People, 13 N. Y. 378; Rigney v. Chicago, 102 Ill. 64.

property which anyone may have, therefore, is not the particular objects with respect to which the right may be asserted, although these objects are necessary to such property; but his personal property is the conduct which he may exact from his fellowmen with respect to such objects. This conduct may be negative, to refrain from interfering with certain acts which the holder of the right may desire to perform with respect thereto, as to possess, use, or dispose thereof so long as the holder does not interfere with the coördinate rights of his fellowmen in respect to other objects over which they assert rights or in respect to other rights than property. Such negative conduct is an incident of all property, but the amount of such conduct that a property owner can claim depends upon the amount of property ownership that he has, or rather the more conduct he can claim the more property he has. If he has the right to have all the world give him the possession, use, and disposal of any object, he has a greater property than if he can merely insist upon being given the possession. If he has such right only for a stated number of years, he has less property than he would have if he has the right in perpetuity. If a person does not have the right to dispose of his interest in a chattel to another, he has much less property than if he could also dispose of the same. This conduct which a person may exact may be positive. The objects of ownership in such a case, except in bailments, are incorporeal if indeed there are any at all. There are no visible tangible objects. Yet the conduct that can be required gives just as great a property as though it related to corporeal things.

The right of a promisee to the performance of a contract is of this class. Frequently the promisee has the right to the payment of money, when his property is called a debt, secured or unsecured, and it may be in the form of an oral promise, or in bills, notes, bonds, insurance, legacies, etc.; but the promisee may have a right to many other things than the payment of money, as to labor of a servant, or bailee, or agent, or to a conveyance, or to a sale, in all of

which cases he is the owner of personal property. He may not always be able to sell his right. If it is one created by a bilateral contract, and he has not performed his promise, he may not be able to assign his right, because a promisor can never assign his obligation to a stranger and the right is inseparably connected therewith. His property, therefore, is not so great, yet it is property. The remedial rights to restoration or compensation by way of redress of the violation of antecedent rights, which arise upon the violation of such rights by torts and breaches of contracts, are also personal property. Some of them cannot be assigned. Some of them do not survive the death of the owner. But most of them may be both assigned and do survive the death of the owner in modern law. All of them are property. The obligations created by pure implication of law, and known as quasi-contracts, also give the one for whose benefit they are created a personal property. The right is generally the right to the positive act of paying an amount of money. All rights to positive acts are in personam; all rights to negative forbearances are in rem.

In the case of personal property right created by executory contract, the promisee, or his assignee, has a right to whatever acts the promisor has engaged to perform so far as the promisor is concerned. The same is also true of quasi-contracts and remedial rights. In the case of all other personal property rights, whether created by executed contracts or by any of the other known methods of acquiring title, and so far as third parties are concerned even in the case of executory contracts, the person in whom the right resides is entitled only to acts of forbearance instead of positive acts. The extent, or quantity, of personal property which a person owns, then, depends upon the nature and extent of the acts and forbearances to which he is entitled.

§3. Absolute Property. A person has the absolute property in an object of ownership when he has as against all the world, except the State, the exclusive and unquali