BOOK V
PERSONAL PROPERTY
CHAPTER I
NATURE OF PERSONAL PROPERTY
Sec. 1. Definition. Property is deemed to be any object, cor-
poreal or incorporeal, capable of being reduced to exclusive posses-
sion. Property, for most purposes, is classified as either real or
personal. Generally speaking, real property is considered to be
land or anything permanently attached thereto. All other prop-
erty is said to be personal property.
Sec. 2. Types of personal property. There are three distinct
kinds of personal property: chattels real, chattels personal in pos-
session, and chattels personal in action. Chattels real are those
interests in land which at one's death do not pass directly to the
heirs, but pass first to the administrator or executor for administra-
tion, as provided for by law. Usually, leases of land for a period
of years are considered chattels real.
Chattels personal in possession are those tangible and movable
objects which may be transferred from hand to hand. This class
of personal property is the kind with which most of us are quite
familiar.
Chattels personal in action, often called "choses in action," in-
clude those things to which one has a right to possession, but con-
cerning which it may be necessary to bring some legal action in or-
der eventually to enjoy possession. Any contract action may be
said to be a chose in action. The most common form of a chose
in action is a negotiable instrument. It evidences a right to the
money provided for therein, but it is possible that an action may
have to be maintained to reduce the money to possession.
Sec. 3. Methods of acquiring title. Title to personal property
may be acquired through any of the following ways: original pos-
session, transfer, or accession.
Sec. 4. Original possession. Personal property which is in its
native state and over which no one as yet has taken full and com-
plete control belongs to the first person reducing such property to
his exclusive possession. Although most property today may be
said to belong definitely to someone, there are still some kinds of
property, especially wild animals, fish, and other property of like
kind, which are still available for appropriation by any individual.
Property once reduced to ownership, but later discarded, belongs to
the first party taking possession. 1
1 Muggins v. Reynolds, 1908, 51 Tex. Civ. App. 504, 112 S.W. 116; p. 735.
313
314 PERSONAL PROPERTY
In addition to the above, it might be said that property which
one creates through mental or physical labor belongs to the creator
unless he has agreed to create it for someone else, being induced to
do so because of some compensation which has been agreed to by
the interested parties. Under this heading might be included such
items as books, inventions, and trade-marks. This kind of prop-
erty is usually protected by the government through means of copy-
right, patents, and trade-marks.
Sec. 5. Transfer. Property may be transferred through sale,
gift, will, or operation of law. The law relating to a transfer by
sale will be taken up more in detail in a subsequent chapter, as it
forms as important branch of our law today. A transfer by gift
may be made effective, with the consent of the owner, by an actual
physical change in possession of the property. Normally, the gift
is not complete until the change in possession has been effected.
In the case of choses in action, the transfer of possession usually
takes place by means of an assignment, the exception being negoti-
able instruments, which may be transferred either by assignment or
negotiation.
At a person's death, all his property, either real or personal, may
be disposed of by will. The person taking personal property under
the terms of a will is called a legatee, and the property is spoken of
as a legacy.
Where the deceased leaves no will, the property descends as pro-
vided by the laws of descent in the particular state involved. The
laws of the different states vary greatly in this particular, but oper-
ate to transfer intestate property to those persons stipulated in the
law as being entitled to it. Foreclosure sale offers another illus-
tration of transfer of title by operation of law.
In all cases of transfer of property, the transferee takes no better
title than that possessed by the transferor. An innocent third
party who purchases property from one having no title can obtain
no title by such a transfer.
Sec. 6. Accession. Accession, taken literally, means "adding
to." Property permanently added to other property and forming
a minor portion of the finished product becomes part and parcel of
the larger unit. 2 In such cases title automatically passes to the
party holding title to the larger mass. This rule applies where the
minor unit is stolen as well as where it is purchased. If stolen, the
original owner may recover from the party who first converted it to
his own use. The increase in value of personal property caused by
the expenditure of skill or material thereon passes to the one who
retains title to the raw material.
2 Eaton v. Munroe, 1862, 52 Me. 63; p. 735.
NATURE OF PERSONAL PROPERTY 315
Sec. 7. Accession to stolen property. An important problem
arises where property wrongfully taken is greatly increased in value,
after the taking, by the expenditure of labor and materials. In
accordance with the law of the previous section, the benefit of such
increase in value would pass to the one having title to the raw ma-
terial. Such is not always the result arrived at by the courts. An
increase in value by an intentional wrongdoer through the expendi-
ture of labor and materials always passes to the true owner of the
property, and he may successfully bring suit to reduce it to his pos-
session, although the raw material has been enhanced in value
many times. 3 A sale of the property in its improved state by the
wrongdoer does not affect the right of the true owner. He may re-
cover his property from the bona fide purchaser. The person who
has wrongfully taken possession of personal property may never
receive or pass title to it, regardless of how much he has increased
its value.
Property purchased from a wrongdoer and increased in value by
the bona fide purchaser follows a different rule. An innocent pur-
chaser of stolen goods, who greatly increases the property in value
by the expenditure of skill and materials, becomes liable to the true
owner for the value of the goods in their original state only. In
effect, title passes to the bona fide purchaser, provided he pays to
the original owner the former value of the property. Unless the
property has been greatly increased in value at least two or three
times its original value an action of replevin to recover the prop-
erty may be maintained by the original owner.
An unintentional wrongdoer, who greatly improves in value the
property wrongfully taken, if sued for the value of the property, is
always liable for the original value of the property. If he has im-
proved to a great extent the value of the property by the expendi-
ture of skill and labor, the original owner may not replevin the
article from him. There are a few courts, however, which seem to
permit the original owner to recover the improved article.
Sec. 8. Confusion. Property of such a character that one unit
may not be distinguished from another unit, and which is usually
sold by weight or measure, is known as fungible property. Grain,
hay, logs, wine, and other articles of like nature afford illustrations
of property of this nature. Such property, belonging to various
parties, often is mixed by intention of the parties, by accident, or
by the misconduct of some wrongdoer. Confusion of fungible
property belonging to various owners, assuming that no misconduct
is involved, results in an undivided ownership of the total mass.
8 Sligo Furnace Co. v. Hobart-Lee Tie Co., 1911, 153 Mo. App. 442, 134 S.W. 585;
p. 736.
316 PERSONAL PROPERTY
To illustrate: grain is stored in a public warehouse by many parties.
Each owner holds an undivided interest in the total mass, his par-
ticular interest being dependent upon the amount stored by him.
Should there be a partial destruction of the total mass, the loss
would be divided proportionately.
Confusion of goods which results from the fraudulent conduct of
one of the parties causes the title to the total mass to pass tempo-
rarily to the innocent party. If the wrongdoer is unable to show
that the resultant mass is equal in value per unit to that of the in-
nocent party, he loses his interest in the resulting mass. Where
the new mixture is worth no less per unit than that formerly be-
longing to the innocent party, the wrongdoer may claim his portion
of the new mass by presenting convincing evidence of the amount
added by him.
Sec. 9. Abandoned and lost property. Property is said to be
abandoned whenever it is discarded by the true owner, who, at that
time, has no intention of reclaiming it. Such property belongs to
the first individual again reducing it to possession.
Property is lost whenever, as a result of negligence, accident, or
some other cause, it is found at some place other than that chosen
by the owner. Title to lost property continues to rest with the true
owner. Until the true owner has been ascertained, the finder may
keep it, and his title is good as against everyone except the true
owner. 4 The rights of the finder are superior to those of the person
in charge of the property upon which the lost article is found. Oc-
casionally, state statutes provide for newspaper publicity concern-
ing articles which have been found. Under these statutes, if the
owner cannot be located, the found property reverts to the state if
its value exceeds an established minimum.
Mislaid or misplaced property is such as is intentionally placed
by the owner at a certain spot in such a manner as to indicate that
he merely forgot to pick it up. In such a case the presumption is
that he will later remember where he left it and return for it. The
owner of the premises upon which it is found is entitled to hold such
property until the true owner is located.
Sec. 10. Extent of ownership. Title to personal property may
be held in common with others. Normally, in such a case, the
owners are entitled to an equal use of the property or to their por-
tion of the income derived from its use. In the event of the death
of one of the co-owners, his share in the property passes to the
executor or administrator of his estate.
Under the laws of many states, personal property, as well as real
estate, may be held in joint tenancy. The interest of a deceased
'Hamaker v. Blanchard, 1879, 90 Pa. St. 377, 35 Am. Rep. 664; p. 737.
NATURE OF PERSONAL PROPERTY 317
owner passes automatically to his joint owner without the necessity
of probate. Because of this fact, husband and wife in many cases
are holding personal property jointly in order to avoid the expense
of administration of an estate in the event of the death of either.
Joint tenancy of personal property does not arise unless a contract
between the co-owners states clearly that such is the case and that
the right of survivorship is to apply.
Review Questions and Problems
1. What are the two kinds of property? How many kinds of personal
property are there? What is meant by choses in action?
2. How may personal property be acquired?
3. Ay a farmer, learns that another party killed a number of rabbits
frhich were running at large upon his farm. To whom do the rabbits be-
long?
4. A desires to present an automobile to his son, and, on January L
he purchases and delivers a Buick car to the son, telling him that it is a
belated Christmas gift. Shortly thereafter, the father demands the car.
Is the father entitled to it?
5. What happens to personal property not disposed of by will?
6. A intentionally took corn belonging to B and distilled it into whisky.
B had the sheriff seize the whisky, but A contends that the whisky be-
longs to him because of the great increase in its value. Is A correct?
7. A, the driver of a garbage wagon owned by B, found a diamond ring
in the garbage. The owner cannot be found. Which party is entitled
to possession of the ring?
8. What is fungible property? A owns some lumber which he fraudu-
lently mixes with lumber owned by B. The quality of the two piles of
lumber was entirely different, but the content of the two amounts cannot
now be distinguished. May B retain title to both amounts?
9. What is meant by joint ownership? When is it used? Why?
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