Possession is 9/10ths of the Law

[Elendil_s_Heir]

I never cared for probate law myself. The course at my law school was nicknamed “Stiffs and Gifts.”

[Gfactor]

@Elendil's Heir

I never cared for probate law myself. The course at my law school was nicknamed “Stiffs and Gifts.”

Heh. The probate department at the first firm I worked at after law school adopted the slogan: You kill 'em; we bill 'em.

[Hypnagogic_Jerk]

There’s one paragraph that I don’t get in this report:

@Gfactor

Possession is important in cases involving finders of ownerless property (like wild animals) or, more commonly, lost and abandoned property. The general rule is that the finder of lost property doesn’t “own” it; he or she merely has a better claim than any but the rightful owner – the person who had it to start with.

In other words, if A steals a lamp from O, and B later takes it from A, A can recover the lamp from B, and B is not allowed to attack A’s title to the lamp; that’s called a jus tertii argument. If B is to win, B will have to establish her own superior title to the lamp, and she can’t do it by pointing out that someone had it before B.

Shouldn’t that last sentence be “and she can’t do it by pointing out that someone had it before A”? That, in my mind, would be more in line with “B is not allowed to attack A’s title to the lamp”. Or if I’m wrong, can you explain?

Anyway, I agree with the others, this is a very good article, Gfactor. I hadn’t heard of the saying “Possession is 9/10 of the law” before, and when I saw the report I thought it had something to do with illegal drugs. :o But your article was very detailed and explained pretty much everything that I could have wanted to know. So congratulations!

[Gfactor]

@severus

Shouldn’t that last sentence be “and she can’t do it by pointing out that someone had it before A”? That, in my mind, would be more in line with “B is not allowed to attack A’s title to the lamp”. Or if I’m wrong, can you explain?

Good catch. Thanks.

Anyway, I agree with the others, this is a very good article, Gfactor. I hadn’t heard of the saying “Possession is 9/10 of the law” before, and when I saw the report I thought it had something to do with illegal drugs. :o But your article was very detailed and explained pretty much everything that I could have wanted to know. So congratulations!

Thanks.

[Hypnagogic_Jerk]

@Gfactor

Good catch. Thanks.

You’re welcome.

[Billdo]

@Bricker

What would make someone voluntarily practice wills and estates?

And this stuff is the fun part of trusts and estates. The other 90% of the practice is tax law.

(If I had been smart, that’s the practice area I would have gone into. But, alas.)

[SiXSwordS]

@C K Dexter Haven

• [sub]When Friday the 13th comes out on a Tuesday, it’s even more unlucky.[/sub]

In Mexico, Tuesday the thirteenth is the unlucky day, not Friday.

Possesion es nueve décimas de la ley.

[Princhester]

I’ve always been of the view that a (very) significant element of the expression “possession is 9/10ths of the law” is its wry observation upon the legal practicalities.

That is, if a person has possession of a disputed thing it may well be so much trouble to dispossess them of it through long winded legal processes that another person may have no practical legal recourse, even if in theory they have good legal title.

Bear in mind that it appears to derive from an English expression, and the English use irony and sarcasm to a greater degree than Americans. I have never heard the expression used in the context of strict legal analysis, but only ever in the context of the difficulty of obtaining possession of something to which you may have title, but which you have no practical cost effective means of regaining.

[Gfactor]

@Princhester

I’ve always been of the view that a (very) significant element of the expression “possession is 9/10ths of the law” is its wry observation upon the legal practicalities.

That is, if a person has possession of a disputed thing it may well be so much trouble to dispossess them of it through long winded legal processes that another person may have no practical legal recourse, even if in theory they have good legal title.

Bear in mind that it appears to derive from an English expression, and the English use irony and sarcasm to a greater degree than Americans. I have never heard the expression used in the context of strict legal analysis, but only ever in the context of the difficulty of obtaining possession of something to which you may have title, but which you have no practical cost effective means of regaining.

Certainly, that’s the sense of most of the early uses of the proverb. As I pointed out in the report, courts use it these days as a sort of legal rule. And they don’t mean it that way.* E.g., *

That possession is nine-tenths of the law is a truism hardly bearing
repetition. Statements to this effect have existed almost as long as the
common law itself. See Oxford English Dictionary (draft rev. 2003)
(citing a 1616 collection of adages for “Possession is nine points in
the Law”). See also Frederick Pollock & Robert Samuel Wright, An
Essay on Possession in the Common Law 5 (1888) (“*n the eyes of
medieval lawyers . . . Possession largely usurped not only the substance
but the name of Property.”).
The importance of possession gave rise to the principle that
“[p]ossession of property is indicia of ownership, and a rebuttable
presumption exists that those in possession of property are rightly in
possession.” 73 C.J.S. Property § 70 (2004). The common law has
long recognized that “actual possession is, prima facie, evidence of a
legal title in the possessor.” William Blackstone, 2 Commentaries
*196. See, e.g., Edward Coke, 1 Commentary upon Littleton 6.b.
(19th ed. 1832) (strong presumption of ownership created by “continuall
and quiet possession”); Jeffries v. Great W. Ry. Co. (1856) 119
Eng. Rep. 680 (K.B.) (“[T]he presumption of law is that the person
who has possession has the property.”).
This presumption has been a feature of American law almost since
its inception. “Undoubtedly,” noted the Supreme Court, “if a person
be found in possession . . . it is prima facie evidence of his ownership.”
Ricard v. Williams, 20 U.S. (7 Wheat.) 59, 105 (1822). Almost Almost
eighty years later, the Court reaffirmed, “If there be no evidence to
the contrary, proof of possession, at least under a color of right, is sufficient
proof of title.” Bradshaw v. Ashley, 180 U.S. 59, 63 (1901).
See also, Oliver Wendell Holmes, The Common Law 241 (1881)
(“The consequences attached to possession are substantially those
attached to ownership, subject to the question of the continuance of
possessory rights. . . .”).

In South Carolina law, too, it is well established that, absent evidence
of superior title, “[t]he law ever presumes in favor of possession,
for possession alone is prima facie evidence of a good title.”
Gourdin v. Theus, 5 S.C.L. (3 Brev.) 153, 171 (S.C. Const. 1808).
See, e.g., Stephenson Fin. Co. v. Wingard (Ex parte Dort), 121 S.E.2d
1, 3 (S.C. 1961); Jackson v. Frier, 144 S.E. 66, 69 (S.C. 1928);
Thompson v. Chapman, 93 S.E. 142, 143 (S.C. 1917). In this case, the
possession of the Law and Willcox families triggers the presumption
of their ownership of the papers.
The presumption of possession is not confined to the early nineteenth
century, nor is it confined to examples of early Americana.
Rather, it applies across the law of personal property. See, e.g., Nesbitt
v. Lewis, 517 S.E.2d 11, 14 (S.C. Ct. App. 1999) (ownership of
dog); Hammond v. Halsey, 336 S.E.2d 495, 497 (S.C. Ct. App. 1985)
(ownership of cannon); Clanton’s Auto Auction Sales, Inc. v. Harvin,
120 S.E.2d 237, 239 (S.C. 1961) (ownership of automobile). The
unusual circumstances of this case do, however, provide a notable
illustration of why such a presumption exists in the first place.
First and foremost, the presumption operates to resolve otherwise
impenetrable difficulties. Where neither party can establish title by a
preponderance of the evidence, the presumption cuts the Gordian
knot, determining ownership in favor of the possessor.

http://pacer.ca4.uscourts.gov/opinion.pdf/061179.P.pdf

Quoted at length because federal cases are not subject to copyright.

[Princhester]

Sure, but while the court’s may use the term as a sort of legal rule, that is still not the way the term is used by the average layman. IME, when a layman uses the expression he does not mean it as a statement of loose legal principle (even if he could) but as a statement as to the practical hopelessness of trying to recover possession of property that is rightfully yours, much of the time.

[buns3000]

@Princhester

Sure, but while the court’s may use the term as a sort of legal rule, that is still not the way the term is used by the average layman. IME, when a layman uses the expression he does not mean it as a statement of loose legal principle (even if he could) but as a statement as to the practical hopelessness of trying to recover possession of property that is rightfully yours, much of the time.

This was always my impression, too.

[Princhester]

Dammit I hate grocers apostrophe’s

[Gfactor]

I’ve definitely seen it used both ways by laypeople. In fact, I’ve seen laypeople assert it as a justification for keeping something–not as a taunt-- even to the true owner. But I don’t mean to invalidate your experience; it could be used differently in Australia, for example. Or maybe we just run with different crowds.

[Princhester]

I’m a lawyer too, if that’s what you mean. Though I should add, I agree that something so vague as what is understood by a popular expression is always going to be a matter of debate, and very much an area in which YMMV.

[Gfactor]

@Princhester

I’m a lawyer too, if that’s what you mean.

I thought I remembered that.

Though I should add, I agree that something so vague as what is understood by a popular expression is always going to be a matter of debate, and very much an area in which YMMV.

Exactly. I wouldn’t be surprised if the Edward III line was used precisely because it *was * ambiguous, and hence, ironic. The real Edward III actually showed the old-style other tenth, after all.

War occupied the largest part of Edward’s reign. He and Edward Baliol defeated David II of Scotland and drove David into exile in 1333. French cooperation with the Scots, French aggression in Gascony, and Edward’s claim to the disputed throne of France (through his mother, Isabella) led to the first phase of the Hundred Years’ war. The naval battle of Sluys (1340) gave England control of the Channel, and battles at Crecy (1346) and Calais (1347) established English supremacy on land. Hostilities ceased in the aftermath of the Black Death but war flared up again with an English invasion of France in 1355. Edward, the Black Prince and eldest son of Edward III, trounced the French cavalry at Poitiers (1356) and captured the French King John. In 1359, the Black Prince encircled Paris with his army and the defeated French negotiated for peace. The Treaty of Bretigny in 1360 ceded huge areas of northern and western France to English sovereignty.

http://www.britannia.com/history/monarchs/mon32.html

[Ceejaytee]

@Billdo

And this stuff is the fun part of trusts and estates. The other 90% of the practice is tax law.

(If I had been smart, that’s the practice area I would have gone into. But, alas.)

That’s why I edit the stuff in legal publishing but don’t practice. The academic stuff is fun, the tax stuff is BOR-ing. NY probate’s my area. There’s some fun stuff there–until the tax chapters. Due execution, revocation, undue influence–let the games begin!

[Gfactor]

@Polycarp

Gentlemen, we are getting into GD territory with this comment, and you can either respond briefly here or take it over there, but in Rosoff v. Harding, it appeared that it was rather a case of Law v. Justice – and Justice lost. :mad:

Sorry, I just noticed this post.

Anyway, I dunno. This is an area of law where justice can be hard to find. As the court pointed out,

In addition, Teresa’s entire estate planning scheme was substantially changed with the creation of the revocable trust and the last will. The
trust, and not the will, contained the specific bequests, that were made from the Molinari Trust assets in the prior will. The trust does not mention the Molinari Trust or make the gifts contingent on anything other than Teresa’s death. Therefore, as far as we can tell, those gifts would still be made from whatever other assets funded Teresa’s trust. Thus, if we applied the doctrine of dependent relative revocation to revive the exercise of the power of appointment in the prior will, the beneficiaries in that will would receive their shares as set forth in the will, yet the beneficiaries of the trust would also receive their bequests as set forth in the trust. Thus, some beneficiaries of both would receive twice as much as Teresa intended. This would not comport with the testator’s intent as expressed in either the prior will or the trust.

Plus, we’re dealing with the intentions of two different people. Her brother made clear his intention that, for whatever reason (probably fear of fraud or undue influence), an exercise of her power of appointment less than 18 months before she died was ineffective unless she prepared and executed the will in front of the trustees of his trust. She was aware of this requirement, and did it the first and second time. Then at 95, she did it the wrong way, and made significant changes. It’s difficult to reconstruct her intention. Her brother’s more general intention is clear though. If the power isn’t exercised properly, the property goes to people he designated.

The shortcut to avoiding fraud and undue influence may or may not have worked. We don’t know if there was any. And if there was, we don’t know who did it. It would be a clever (Body Heat-like) trick to induce Teresa to sign a will that was intentionally defective (or just forge one), but tried to give the assets to someone else, thereby taking advantage of some complicated probate law. But it’d have to be even more movie-like, because the failed condition here is that she didn’t live long enough. So whoever did it would have to make sure she died within 18 months (not an unlikely event for a 95-year old, but timing is everything). It’s more likely that this was a tax-driven plan (possibly suggested by Arnold). In that case, the lawyer who drafted the trust and the new will probably screwed up, which sucks, I agree.

Of course, the trick would be avoiding any suspicion or accusation of forgery, fraud, lack of testamentary capacity, or undue influence. All of these would invalidate the entier will and trust. If any of these were proven, we wouldn’t even need dependent relative revocation because either the revocation would be a non-event (forgery) or Teresa would have lacked the capacity to revoke her prior will.

[Gfactor]

The case: http://www.flprobatelitigation.com/4D04-725.pdf

[duglie]

I can’t even guess where I got it from, but I’ve long been under the impression that the expression “possession is 9/10 of the law” refers to 90% of law being about property and rights involving property.

As to the other 10th, when I was 14 I had “possession” of something that belonged to my father. I proudly told him that possession is nine tenths of the law" and clutched the item tightly.

My dad, who was 6’1" 200+ pound cop, and fully capable of looking very menacing when he wantd to, leaned in close to my face and asked, “Do you want to meet the other tenth?” :eek:

[OtakuLoki]

Just reading this article today, and had some questions.

The short summary of the story is that the house had been the scene of a homicide. When the current owner was cleaning up in the attic he found some $100K in vacuum sealed bags. Because of the history, the owner contacted the police to ensure that there were no concern or liability attached to the money. When the former owner of the house (who had purchased the house after the murder from the estate) heard that the money was found she had her lawyer claim that the money was hers and had to be returned. Obviously this is now going to the courts.

My understanding had been that unless the contract of sale makes some kind of stipulation for found property, the current owner benefits from found monies. (I seem to recall that there are some curlicues if the previous owner had reason to believe that the money or treasure were misplaced or missing from his or her tenancy in the house, but other than that…)

Can any of our legal Dopers speak up to educate me, and any others who might be interested, in the ins and outs of found monies?

According to my reading of Gfactor’s column here on “What Does ‘Possession is Nine Tenths of the Law’ Mean?” it would appear to me that the previous owner had relinquished her claim to the monies that might be later found in the house, since she’d not actually mislaid the money, herself, and had no reason to expect it to be there, and thus no claim to the subsequently found money on a property she’d sold.

Moderator note: I could have put this into the GQ section, but I think it’s a more accurately an expansion of the issues that GFactor already dealt with in his excellent column. If you disagree, please feel free to move it as needed.