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A. Voluntary Surrender of Possession: Cases 39–44

Chapter 2: Keeping Possession and Losing Possession

Cases 39–40
Cases 41–43
Case 44


Cases 39–40.  Case 39 states the general principle that possession can be lost either voluntarily by intentional transfer, or involuntarily by force.  Case 40 holds that while a voluntary transfer of possession can be accomplished simply by adopting (and presumably manifesting) the requisite intent to surrender possession (i.e., transfer animo alone), Cases 52–55 will suggest that forcible dispossession is effective only when there is both a loss of control (the physical element of corpus) and the intent or decision not to contest the loss (the mental element of animus).  Regarding the requisite elements to transfer possession, the majority rule in the common law seems to be that intent alone is insufficient without some form of delivery (corpus by another name)—at least in order to signal consent to a written contract.  See, e.g.,

REST 2d CONTRACTS (2010) § 102: A written promise is delivered unconditionally when the promisor puts it out of his possession and manifests an intention that it is to take effect at once according to its terms.

[Illustration] . . . 3. A signs and seals a written promise to B and deposits the document in the drawer of his own desk, saying to B and to a third person as he does so that he intends the promise to be immediately binding. There has been no delivery.

Discussion Question:

  1. Changing the facts of Illustration “3” of the Restatement passage quoted above, if the writing purports to memorialize a decision to make a gift, has the promisor effectively made the gift irrevocably? Is the answer to this question affected by the Restatement rule quoted under Cases 5–7 of these notes to Chapter 1?

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Cases 41–43. These three cases distinguish between loss of possession and transfer of possession.  Children and other incompetents are generally deemed to lack the capacity for either the acquisition of possession (see Case 22) or the transfer of it to another.  Thus the rule of Case 40 would not apply to such persons (absent the guardian’s consent), since a transfer of possession requires both the physical and mental elements (corpus and animus).  The mere loss of possession, however, is characterized as a factual matter, and thus within the physical capacity (corpus) of even an incompetent.

Discussion Question:
  1. At common law too a ward lacks the capacity to alienate property without the guardian’s consent.  But what if the ward is compelled by a third party to surrender possession?  Is it the guardian’s fiduciary responsibility to recover that property within the statutory limitations period?  By customary international law and by statute, beginning with the Trade and Intercourse Acts of 1790 as amended in 1834 and subsequently amended and codified at 25 U.S.C. § 177 (1988 & Supp. V 1993), the U.S. government has refused recognition to any alienation or other transaction involving land in the possession of Native American tribes located within the United States, unless the transaction has been authorized by a treaty to which the U.S. government is a party.  This provision from its inception was deemed to establish a “special relationship” analogous to that between guardian and ward between the U.S. government and the Native American tribes located in the United States.  Pursuant to that relationship, the United States has been found to have a “fiduciary duty” to protect the possessory rights of Native American tribes to the land they held by “aboriginal title.”  In The Alabama-Coushatta Tribe of Texas, et al. v. The United States, 2000 WL 1013532 (Fed.Cl.), a suit brought by Native American inhabitants of southeast Texas for damages arising from breach of that fiduciary duty, a federal claims panel found:
    The law is well-established that “forcible removal of an Indian tribe from its aboriginal homeland either by government action or by private parties does not constitute voluntary abandonment unless the forcible removal was undertaken pursuant to clear and specific congressional authorization demonstrably intended to extinguish aboriginal title.” (at 52, footnotes omitted). . . . Since the United States was actually or constructively aware that non-Indian settlers were encroaching upon the Tribe’s lands, the United States violated its fiduciary obligations by knowingly failing to protect 2,850,028 acres of the Tribe's aboriginal lands. . . .  Damages accrued until 1954, when the United States extinguished its “special relationship” with the Tribe. (at 61)

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Case 44. A defective transfer of possession where the defect arises from mistake, such as that raised by this case, would be relevant at common law only insofar as it interrupted the limitations period for the ripening of title through adverse possession.

Discussion Question:
  1. Can good-faith adverse possessors tack successive possessions of land that has been wrongly identified for the requisite statutory period?  See Howard v. Kinto, 477 P2d 210 (1970), in which “the 50 feet [of shorefront] described in the deed is not the same 50 feet upon which the . . . house stood.  Rather, the described land is an adjacent 50-foot lot directly west of that upon which the house stood. . . .  Plaintiff contends, and the trial court ruled, that where the deed [between previous and subsequent adverse possessors] does not describe any of the land which was occupied, the actual transfer of possession is insufficient to [permit tacking based on] privity [of estate] . . . [but t]he requirement of ‘privity’ is no more than judicial recognition of the need for some reasonable connection between successive occupants of real property so as to raise their claim of right above the status of the wrongdoer or the trespasser. . . .  Judgment is reversed with directions to dismiss plaintiffs’ action and to enter a decree quieting defendant’s title to the disputed tract.” 

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Chapter 2: Introduction | A. Cases 39–44 | B. Cases 45–66


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