As I move ever closer to the completion of this ‘epic’ case law collection, I am happy to say that I have now finished writing the property law section, and while it’s one of the shorter chapters, the cases studied have been nothing short of diverse, which made a refreshing change from the often narrow English property law cases I have become so accustomed to reading in the past, and during my time as an undergraduate.
All mumblings aside, below is the final list, and I can only hope that you enjoy reading them as much as I enjoyed studying them over the previous several weeks, while for me it’s now time to get started on the final ‘tort law’ discipline.
When parties to an existing litigation require an immediate defence response, the essence of the Constitution reminds those involved, that regardless of how such matters are realised, the purpose of natural law is to permit resolution in every State.
On this occasion, a Texas-based exporter and importer commenced action against a former California-based client for the recovery of monies concerning goods purchased and delivered prior to their dissolution. In response, the appellant issued a cross-complaint to recover monies for the conversion of chattels, after which the superior court of California dismissed the respondents claims, along with their contention that the cross-complaint had not been lawfully served, thus prompting an appeal to the Texas Court of Civil Appeals. Here, it was held that at the time the complaint was served, the California court lacked jurisdiction to uphold such a claim over an out-of-state entity, therefore due process was unsustainable and null by effect.
Pursued in the U.S. Supreme Court, the decision of the Texas Appeals Court was reviewed, giving particular regard to § 1 of art. IV of the U.S. Constitution, which reads:
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
And while the complaint served was ancillary to the original action, the Texas Court of Appeals based its judgment on the principle that any matter of fact or law determinable by jurisdiction unrelated to the cause of litigation is subject to adjudication, as was held in Thompson v. Whitman, and that the complaint was deemed independent of the original matter, and therefore subject to such a review.
However, in Hanley v. Donoghue it had been equally held by the U.S. Supreme Court that:
“Whatever was matter of law in the court appealed from is matter of law here, and whatever was matter of fact in the court appealed from is matter of fact here.”
More importantly, § 442 of the California Code of Civil Procedure provides that:
“Whenever the defendant seeks affirmative relief against any party, relating to or depending upon the contract, transaction, matter, happening or accident upon which the action is brought, or affecting the property to which the action relates, he may, in addition to his answer, file at the same time, or by permission of the court subsequently, a cross-complaint.”
While § 1015 (as amended by St.Cal.1933) also notes:
“When a plaintiff or a defendant, who has appeared, resides out of the State, and has no attorney in the action or proceeding, the service may be made on the clerk or on the justice where there is no clerk, for him. But in all cases where a party has an attorney in the action or proceeding, the service of papers, when required, must be upon the attorney instead of the party…”
Therefore when the appellant issued his complaint to the attending attorney, both aspects of Californian law were satisfied enough to uphold the powers of art. IV of the Constitution, and that such diligence by the appellant lawyer was now grounds enough for the Court to reverse the Texas Appeal Court’s decision with a view to the resolution of the proceedings in question while holding that:
“There is nothing in the Fourteenth Amendment to prevent a State from adopting a procedure by which a judgment in personam may be rendered in a cross-action against a plaintiff in its courts, upon service of process or of appropriate pleading upon his attorney of record.”
Conversion of seemingly abandoned property is not without the law, however there are inherent differences as to how best to remove or despatch such property, while considering the enduring proprietary rights of the original owners. In a matter concerning a number of goods of varying value, the claimants sought damages for loss, when after giving ample notice for their removal, the recent freehold purchasers took steps to enforce their rights to enjoyment of the land now owned.
Under a conveyance dated May 2 1994, the respondents purchased land from the claimant’s mother, on condition that time be given for the removal of specific items owned by her son and daughter-in law. With an express threshold of July 31 1994 for all items outstanding, the claimants removed a portion of the items listed, after which no attempts were made to recover the remainder.
Noted within the conveyance was express mention that:
“Any items remaining after deadline shall be considered abandoned and can be disposed of in discretion by the purchaser who will exercise prudent discretion.”
And so upon expiration of the agreed threshold, the respondents proceeded to both remove and where possible, sell the items either privately for profit, or by way of scrap, with the remaining few items kept under secure storage.
At the point of litigation, the claimants argued that unless stated, the items both sold and left in situ, were still under ownership, and that no acquirement of title has succeeded, despite no attempts to remove them beyond the period stated. With reference to the principle of abandonment, the court observed the academic position adopted in ‘The Abandonment and Recaption of Chattels’ (1994) by Lee Aitkin, in which it reads:
“The act of abandonment, in Pollock’s terms, confers a revocable licence which is only terminated when a subsequent possessor manifests dominion over the chattel with the intention of possessing it to the exclusion of others, including the former possessor.”
However in ‘Is Divesting Abandonment Possible at Common Law’ (1984) by A.H. Hudson, it was argued that abandonment through intention was sufficient enough to warrant acquisition by those taking new ownership, (otherwise known as ‘divesting abandonment’) which in effect, created further confusion as to how best to ascertain when property has been lawfully abandoned.
In Canada (Attorney General) v. Brock, the Canadian Supreme Court had earlier turned to American jurisprudence when adhering that once relinquished of title, such property remains abandoned until appropriated by those intending to take ownership, while ‘Black’s Law Dictionary’ (1979) clarified how:
“Abandonment includes both the intention to abandon and the external act by which the intention is carried into effect.”
With particular regard to the case in hand, McCutcheon v. Lightfoot had enabled the Supreme Court of Canada to rule how:
“[A]bandonment of a chattel may be inferred in circumstances where an owner fails to remove his or her chattels within a reasonable time after receiving notice from the proprietor demanding their removal. In such circumstances, the destruction, consumption or sale of the chattels would not constitute a conversion thereof.”
While in Addison on Torts (7th Edn), it was equally argued that:
“A man cannot be made a bailee of goods against his will; and, therefore, if things are left at his house, or upon his land, without any consent or agreement on his part to take charge of them, he is not thereby made a bailee of them.”
Thus with close examination of the rights afforded both parties, the court held that the items retained and sold or disposed of, were subject to five distinct groups, within which three were estopped from right of claim, damages for conversion were awarded at $300 for the item sold privately and the final group remained abandoned unless agreed otherwise.